A recent Washington Post article highlights a bill that was recently introduced in Congress suggesting that the FCC bring back their rules for audio descriptions of video programming – rules which were thrown out by the Courts several years ago as being beyond the scope of the Commission’s authority without explicit Congressional authorization.  But not only does this bill propose to give that missing Congressional approval to the FCC to re-introduce video description requirements for broadcast television, but it would authorize the FCC to introduce these rules, and closed-captioning requirements, on all video screens, including MP3 players, wireless devices and other video devices getting their programming through the Internet or other digital technologies.  With this bill, and various other proposals that have surfaced in recent months, it seems more and more likely that, as the Internet becomes even more important in the provision of broadcast-like programming in the future, the FCC may be called on by Congress to impose broadcast-like restrictions on that programming.

The full text of the recent bill, introduced by Congressman Markey, Chair of the House Subcommittee on Telecommunications and the Internet, can be found here.  A summary of the bill is also available on Congressman Markey’s website.  The bill deals first with the accessibility of telephones and other communications devices, before setting out the provisions dealing with the captioning and video description requirements for broadcast and Internet video devices.  The bill first asks the FCC to study and report to Congress on the issues with captioning and video description on video devices, and then asks the FCC to adopt rules governing these matters, making video programming placed on the Internet that was either broadcast on a television stations or which is "comparable" to broadcast programming to be subject to these rules.  The idea is to make all TV-like programming subject to the rules, no matter what device it is viewed on.  Presumably, if adopted, the law would allow the FCC to make exemptions for certain types of programming (just as it currently allows exemptions from the current closed captioning requirements for small entities that have insufficient resources to caption a program).  The bill also requires that the FCC make sure that program guides and emergency information are available to those with hearing or visual difficulties, and that the navigation devices on video receivers can  be worked by those with disabilities.  So the FCC would have much to do to comply with this law, if adopted, and all within an 18 month period.

Continue Reading Closed Captions and Video Description – The First Step to FCC Regulation of On-Line Media?

According to press reports, the Obama campaign is contemplating an ad schedule during the upcoming Summer Olympics.  This raises the question of what political broadcasting rules would apply to such a buy.  The Olympics run from August 8 through 24, before the lowest unit rate window for political candidates.  Thus, the Obama campaign is not entitled to lowest unit rates.  Instead, the candidate would only be entitled to a "comparable rate" to what a commercial advertiser in a similar situation would receive.  The campaign would not get frequency discounts that a big Olympics sponsor might get, unless the campaign bought in the same frequency, or other discounts that may apply to larger advertisers.  But the reasonable access provisions of the rules do apply once you have a legally qualified candidate, so it would seem as if at least some political ads would have to be placed in the Olympic programming.  In various political seminars held throughout the country, when this question has been raised, the FCC representatives have consistently said that, given the fact that the Olympics run for such a long period, at least some access must be made available to Federal candidates who are willing to pay the price that the airtime commands.

During the Super Bowl, the Obama campaign bought time, but it was purchased on local stations, not on the network itself (see our post here).  Affiliates of NBC would also have reasonable access issues of their own, were the Obama campaign to approach them directly, or were some local Federal candidate to request time on their stations.  As these stations have less inventory during the Olympics than does the network, the amount of time that would have to be provided would be less (and a candidate need not be given access to the exact time spot that they might request – not everyone can get the coveted spots in certain high profile event’s finals – as long as the access that they are given is reasonable under the circumstances).  But the access rules would apply -so at least some access would have to be given.  Note that in a few states with late primaries for Congress and the Senate, it is possible that there would be Federal candidates entitled to lowest unit rates, even during the Olympics.  State and local candidates, however, have no right of access, so stations would not have to sell them time in the Olympics.

Continue Reading The Politcal Broadcasting Implications of An Olympic Ad Buy

On June 25 and June 30, David Oxenford presented a webinar to members of the Kansas Association of Broadcasters on the FCC’s political broadcasting rules and policies.  The webinars discussed topics including reasonable access, equal opportunities, lowest unit rates, and political advertising paperwork requirements.

A copy of the Davis Wright Tremaine Political Broadcasting Guide can be found here.

A copy of the PowerPoint used in the presentation is available here.

The processing of the applications for new noncommercial FM stations marches on.  This week, the FCC released a list of groups of Mutually Exclusive applications (commonly known by those who regularly deal with the FCC as "MX groups"), i.e. applications that are linked together in that, because of interference concerns, not all can be granted.  In some cases, all of the applications in an MX group overlap with each other so that only one can be granted.  In other cases, referred to as "daisy chains", you have a situation where Application A precludes Application B from being granted, and Application B prevents Application C from being granted.  While A and C could be granted if not for B, all three end up in a single MX group.  According to the Public Notice released with the list of MX groups, the applications on this list are all situations were there are 13 or fewer applicants in the MX group.  MX groups with a greater number of applications will appear on a subsequent public notice.  MX Groups with 4 or fewer applications were identified back in March.

The Commission has advised all applicants to review the lists to see if they were included in an MX group erroneously or omitted from an MX group in which they should have been included.  If they discover a mistake, the applicant should file, within 30 days, notice with the FCC so that its application can be processed with the group to which it belongs.  Applicants can also try to work out settlements during the 30 day comment period (or notify the FCC at the end of the period that they are still working on a settlement).  Otherwise, at the end of the 30 day period the FCC promises to begin work to resolve the MX cases through the use of the point system (which we explained, here).  So the process marches on, and we should start to see more applications from the noncommercial filing window acted on in the coming months.

FCC Form 388 reports on the efforts of television stations to educate their viewers about the digital television transition.  We wrote about the details of that new form, filed for the first time in April.  When the form was last filed, as it had been adopted only days before, the Commission did not have time to update its CDBS system to allow for the electronic filing of that form in the system where all other FCC forms are submitted.  Instead, the FCC required that first form be filed in ECFS, the system usually used for filing rulemaking comments in docketed proceedings.  However, the Commission has just announced that the form is now available in CDBS so, when the form is next submitted on or before the July 10 deadline, reporting on the last three month’s DTV educational activities, broadcasters can use the standard filing system.  The ECFS filing system caused great consternation among broadcasters and the FCC, as it did not automatically link up the reports with the stations that submitted them.  Thus, many stations that timely filed the form received admonitions from the FCC, alleging that the forms had not properly been submitted.  Hopefully, as the standard filing system can now be used, those sorts of issues will be avoided.  So remember to file the form by the deadline, and to use the CDBS system this time around.

The FCC today issued an order extending the comment deadline in its Broadcast Diversity proceeding, extending the comment date a full month until July 30, with Reply Comments now due on August 29.  This important proceeding, about which we wrote here, will address many issues, including proposals to, among other things, repurpose television Channel 6 (and possibly Channel 5) for FM use after the completion of the television digital transition, to allow FM licensees who multicast to sell one of their multicast channels independently of the main channel, to allow certain AM stations with expanded band channels to avoid turning in one of their channels at the end of the 5 year transition period if the licensee is a designated entity (or sells one of its channels to a designated entity), and to provide Class A television stations with must-carry status.  The rulemaking proceeding will also look at whether the current definition of a designated entity (focusing on the fact that it is a small business as opposed to any review of the race or gender of its owners) is the one that the FCC should continue to use.  Thus, this is an important proceeding in which many broadcasters should be interested, and now you have more time to prepare comments on the issues that are raised.

The FCC has just issued orders fining two stations, one for $8000 and one for $5000, for not having EAS receivers that were in compliance with FCC rules.  The stations, which are located in the same building, shared one EAS receiver.  According to FCC rules, co-located stations can share EAS receivers when they are also co-owned.  Here, however, the stations were not under common ownership so, under the rules, they could not share the same receiver.  In addition, in connection with the station that received the higher fine, the FCC noted that the receiver was not properly calibrated, having incorrect date and time information – being set permanently on January 10, 1995.  As the system was set up to automatically retransmit the required monthly EAS tests, and those tests would not be properly relayed if they were encoded with a date that the system did not think had yet occurred, the station had not been transmitting the required monthly tests, nor noting the failure to do so in their station log.

In attending several engineering seminars at broadcast conventions in the last few months, I’ve noted that broadcast compliance inspectors consistently identify non-working EAS receivers as the number one compliance problem at broadcast stations.  And one of the biggest problems is with receivers that either have never had the correct date set, or which have a clock which is malfunctioning so that the correct date and time is not properly updated.  Inspectors have also noted that many times they find EAS receivers not having the proper audio inputs so that they can receive the station that they are supposed to be monitoring, or proper outputs so that they can relay the tests that they do receive.  And, as a station’s chief operator is supposed to be weekly checking the station’s log, which should include a record of all EAS tests sent and received, these discrepancies should be noted within a few days – yet they often go unnoticed for long periods of time – meaning that the station can also be fined for not having properly maintained their station log.  As these fines can add up, stations should insure that their equipment is working and monitored to avoid making some involuntary contributions to the US Treasury.

I’m writing this entry as I return from the annual convention of the Iowa Broadcasters Association, held this year in Des Moines, Iowa. Anyone who has read, watched or listened to the national news this week knows of the terrible tornadoes that devastated a Boy Scout camp in that state, and the floods ravaging many of its cities and threatening others. I arrived in Iowa on Wednesday having just completed the filing of reply comments in the FCC’s localism proceeding, and after reviewing the many comments filed in that proceeding. After talking with, watching and listening to the Iowa Broadcasters, I was struck by the contrast between the picture of the broadcast industry contained in the Commission’s notice of proposed rulemaking and that which I saw and heard reflected in the words and actions of the broadcasters. I could only think of how the broadcasters of Iowa and the remainder of the country have dealt admirably in their programming with the disasters that nature has sent their way, and with the other issues facing this country every day, and have been able to do this all without any compulsion by the government. Why, when we have probably the most responsive broadcast system on earth, do we need the government to step in and tell broadcasters how to serve their communities?

At dinner on Wednesday, I watched one station general manager repeatedly getting up from his meal to take calls from his station about their coverage of a tornado that had come within a quarter mile of his studio, and how he had to insist that his employees take shelter from the storm rather than continuing to broadcast news reports from their exposed location as the tornado bore down on them. Another told me of how he and another employee had spent the previous day piling sandbags around the station to keep the water from flooding the studio, all the time reporting between every song the station played updates on the weather and travel conditions in their community. Other stations had continued to operate after their tower sites flooded by gerry-rigging antennas on dry land to permit their continued operation. In one of the more minor inconveniences, one station talked about operating for a few days after their city’s waterworks had been inundated by floods , meaning that their studio (and the rest of town) had no running water for drinking or even for flushing the toilets.  Yet, between these inconveniences, large and small, the broadcasters continued their service, without being told how by the government.

Continue Reading Iowa Broadcasters – Floods, Tornadoes and Localism

Watch what your employees are up to. That’s the message of a recent decision by the FCC, fining a broadcaster $4000 for airing a telephone call that was taped and broadcast without the consent of the caller. In the case released earlier this week, the licensee asked for forgiveness based on the fact that the employee had already left the employment of the station, and because the licensee did not know of the conduct, could not even confirm that it occurred, and did not condone that conduct if it had in fact taken place. Essentially, the FCC found that the evidence provided by the caller who complained to the FCC was so convincing that the Commission could conclude that the call had in fact been aired without the caller’s consent even though the licensee could not confirm it, and the licensee was responsible for the actions of its employees. This sends the clear message to licensees that they must carefully supervise their employees, and think twice about putting that “wild and crazy” disc jockey on the air if the licensee thinks that he won’t be restrained by the Commission’s rules.

This case is another example of the FCC’s rules against airing phone calls without the consent of the caller (or taping those calls for airing without consent), except in the limited circumstances where a caller should know from the context of the program that, by calling the station, he will be put on the air. For instance, if the caller calls on a call-in line to an on-air show where the stations employees are regularly putting callers on the air, then the station should not have problems under the rules. But broadcasters are safest if they are cautious with such phone calls – warning callers with a taped or live message that there call may be taped or put on the air before the taping or airing occurs

Continue Reading Fine for Airing Telephone Call Without Permission – Unauthorized Employee No Excuse

The appeals of last year’s Copyright Royalty Board decision on the royalties paid for the use of sound recordings by Internet radio stations continue on, and one recent filing raises interesting questions of whether or not the CRB was properly appointed.  Last week, the Department of Justice, which represents the CRB in defending its decision in the Court of Appeals, filed its brief in opposition to the briefs of the webcasters, which we summarized here.  The DOJ brief essentially argued that the webcasters’ briefs were insufficient to satisfy the requirement for a successful appeal – that the CRB decision was arbitrary and capricious or otherwise contrary to law.  Essentially, a Court need not revisit the decision and substitute its judgment as to whether the it believes that the decision was correct, but instead, to overturn a decision, the Court must find that the CRB (the expert agency) either violated the law or could not, on the fact, have logically come up with the decision that it did.  Thus, the DOJ brief made arguments that there was enough factual evidence for the CRB to decide in the way that it did, and made arguments that the webcasters had not offered contrary arguments or evidence on certain points during the CRB proceeding and were therefore barred from raising those arguments now.  Just before the DOJ brief was filed, another pleading raised the fundamental question of whether the Copyright Royalty Board was properly appointed and, if not, whether it has the constitutional authority to decide the cases that it has been considering.

This new argument about the CRB’s authority comes in a request filed with the Court of Appeals by Royalty Logic, a party to the CRB proceeding.  Royalty Logic is not a webcaster, but instead is seeking to be an alternative collection agency to SoundExchange.  Its pleading seeks supplemental briefing on the question of whether the Copyright Royalty Judges are “inferior officers” of the Federal government who, under the Constitution, can only be appointed by the President, by the Courts or by the head of a Department of the government. In a recent Supreme Court case, the Court found that certain tax court judges, who were appointed by a chief judge and not by a cabinet-level officer (the head of a “department”) violated this Appointments Clause of the Constitution. There has been much press coverage in the past few weeks as to whether this decision also applies to patent judges, and whether it could invalidate hundreds of patents approved by these judges (see the NY Times article on this issue, and listen to an NPR piece about the controversy). Royalty Logic contends that the same logic should apply to the appointment of the Copyright Royalty Judges who make up the CRB.  The Copyright Royalty Judges are appointed by the Librarian of Congress.  One question would be whether the Librarian is the equivalent to the head of a department though, technically, the Library of Congress is not even in the Executive Branch of government, but instead part of Congress.  In any event, Royalty Logic notes that the Copyright Royalty Tribunal, a predecessor agency done away with during the Clinton administration as part of their "Reinventing Government" program (one of the few agencies that was "reinvented"), had members appointed by the President.

Continue Reading Does the Copyright Royalty Board Exist – Internet Radio Appeal Proceeds and New Issues Arise