On Friday, the FCC released a Public Notice setting out several groups of applications for new noncommercial FM stations which are mutually exclusive with each other.  These applications were filed in the October window for new noncommercial FM stations (information about which can be found here).  According to the Public Notice, the identified groups are those where there are 4 or fewer applications which are mutually exclusive with each other.  The list can be found here.   The Commission is asking that applicants named on this list advise the Commission within 30 days whether the FCC’s determination of mutual exclusivity is correct, and also whether the named applicants anticipate reaching a settlement or share time agreement. If nothing is filed within that 30 day period, the Commission’s staff will start applying the point system to determine which of these applicants should be preferred and granted.

The Public Notice also makes clear that there are other applications which are part of larger mutually exclusive groups.  These applications will be dealt with at a later date.  The Commission has already processed over 800 other applications which were either granted as "singletons", not mutually-exclusive with other applications, or which were dismissed because the applicant exceeded the 5 station filing cap.  Thus, the FCC is moving quickly to process these applications for new noncommercial stations.  Applicants should carefully review their options in light of this new public notice. 

 

Although many TV stations are already airing PSAs and other programming designed to educate the public about the upcoming digital television transition, the FCC released an Order containing very specific requirements  for these educational initiatives.  These rules mandate public education efforts about the DTV transition by television broadcasters, multichannel video providers, and electronics manufacturers.  In addition, the new rules require that television stations file a quarterly report on a new form, FCC Form 388, with the FCC (that is also placed in the station’s public file and on its website) certifying compliance with the requirements of the rules and setting out specifics of other consumer educations efforts about the DTV transition that the station has undertaken.The requirements will become effective immediately upon publication in the Federal Register, and continue through March 31, 2009, for all full power stations who complete the transition to their full DTV facilities by February 18, 2009.

The FCC has established three options for meeting the educational initiatives requirement, two of which are available to all TV stations, and one of which is available to noncommercial stations only.  Each has very specific mandates as to how many PSAs about the digital transition are required, and how much additional content (crawls, various over-lays onto programming, long-form programs) are required to meet the obligations.  Thus, broadcasters and others subject to these rules should review the specific requirements carefully.

Continue Reading FCC Announces DTV Consumer Education Requirements – Very Specific PSA Obligations Placed on Broadcasters

Federal Register publication of the Further Notice of Proposed Rulemaking on Low Power FM (LPFM) stations and their relationship to FM translators and upgrades of full-power FM stations occurred today.  This sets the comment dates in that proceeding – with comments due April 7, and replies on April 21.  This proceeding looks at technical issues of whether LPFM stations (which were originally authorized as secondary stations, subject to being knocked off the air if they caused interference to full-power stations (including new stations or increases in the facilities of existing stations), should be protected against interference from such new FM facilities.  Also, the proceeding looks at whether LPFM should get a preference over FM translators, perhaps even being able to bump existing FM translators off the air to make way for new LPFM stations.  We wrote more about this proceeding, here.  FM station and FM translator licensees should be sure to file comments with the FCC on how this proceeding could affect their operations.

The FCC today released a Public Notice granting the request of several broadcast organizations for an extension of time to respond to the extensive proposals for re-regulating the broadcast industry contained in the FCC’s Localism Notice of Proposed Rulemaking.  We wrote about those proposals, here.  Comments, which were to be filed next week, have now been extended, with a new due date of April 28.  Reply comments in the proceeding are now due on June 11.  Broadcasters should seriously consider filing comments in this proceeding (see our post here explaining how to file such comments), which could substantially affect the way that they do business, dramatically increasing the paperwork and regulatory burdens that they face.

In recent weeks, Low Power Television stations have been the center of attention in Washington in connection with the Digital television transition.  While all full-power television stations are set to convert to digital operations less than a year from now, ceasing analog operations at the end of the day on February 17, 2009, there is no specific deadline for LPTV stations to convert to digital.  As the NTIA rolls out its coupon program for the purchase of converter boxes that will take digital signals of over-the-air television stations and convert them to analog for those who do not have digital television receivers (see our summary here), LPTV advocates noted that many converters do not pass through analog signals.  Thus, once a television is hooked up to a converter box, that television will not be able to pick up stations broadcasting in analog – so many unconverted LPTV stations after the conversion date will be denied access to television receivers.

Suggestions have been made that the converter boxes be reconfigured to pass through analog – unlikely as many of the boxes have already been manufactured and are on their way to stores (note that some converters do pass through analog signals, but a consumer needs to look for those boxes).  LPTV advocates have also asked for some form of cable must-carry during the transition process – a proposal sure to be opposed by cable system operators. 

Continue Reading The Trouble With LPTV – No Plan for DTV Transition

In a decision last week, the FCC fined a radio station $4000 for broadcasting the message from someone’s telephone answering machine without permission.  The FCC’s rules forbid the broadcast of a telephone call without permission (and the recording of a phone call for broadcast without permission).  So, a station violates the rule when a caller says "hello" before giving permission for the call is broadcast (except in cases where the caller is presumed to know that they may be put on the air, e.g. if they call into a call-in show where callers are regularly put on the air).  Here, the Commission made clear that the airing of even a voicemail or answering machine message without permission violates the rule.

This case is also interesting in that the licensee tried to avoid liability by saying that the infraction occurred during a program that was under the control of an independent contractor who had bought a block of time from the station in which the contractor aired programming that he produced.  The FCC reiterated the importance of a licensee maintaining control over all programming that is aired on a station, even if it is provided by a contractor.  Years ago, the FCC even revoked the license of stations that were broadcasting lottery information during brokered programming, in a foreign language that the licensee did not understand.  In those cases, the FCC made clear that a licensee had to take steps to understand what was being broadcast on its airwaves.  This most recent case should remind stations that sell blocks of time that they need to monitor those blocks to make sure that all broadcasts comply with FCC rules. 

This week, after a long period when we saw little in the way of indecency enforcement by the FCC, the Commission issued two orders compelling payment of fines for television programs broadcast in 2003.  The Commission issued a Notice of Apparent Liability (an order proposing a fine) only a few weeks ago asking ABC affiliates to respond to a potential indecency violation in connection with an NYPD Blue episode run in February 2003 (see our description of the proposed fines here and here).  Only a week after the submission of arguments against the proposed fine made by the cited affiliates in a 75 page response to the Notice of Apparent Liability, the FCC issued its order rejecting the arguments against the fines – an unheard of speed in issuing a decision.  Each station involved was fined $27,500.  Then, later in the week, the FCC issued an Order which fined a number of Fox affiliates $7000 each for perceived indecency violations in an episode of the Married By America reality television program, also broadcast in 2003 – following up on a Notice of Apparent Liability issued over two years ago by the FCC.  In one case, an incredibly quick action resulting in a large fine against many stations – in another a smaller fine against far fewer stations.  Why the differences?

The reason for fines coming now was that, in both cases, the 5 year statute of limitations was coming to an end and, if the Commission did not quickly act, it would be precluded from doing so.  In both cases, the Commission determined that it would fine only stations against which complaints were filed.  In the case of Married by America, the Commission had sent a notice of Apparent Liability to 169 stations, but ended up fining only 13 against which actual complaints had been filed.  In contrast, the Commission fined 45 stations for the NYPD Blue episode, even though the "complaints" were in many cases filed months after the program aired on the stations, and even though many of the "complaints" did not even allege that the local viewer had actually seen the program for which the fine was issued.  Instead, many of the complaints were apparently initiated by an on-line campaign urging that the people write the FCC to complain about the program – even if they hadn’t necessarily seen it.  In its decision, the Commission concluded that the fines were appropriate – even without specific allegations that the program was watched by the people who complained.

Continue Reading A Tale of Two Indecency Decisions – FCC Issues Fines for Married by America and NYPD Blue

In two recent cases, the FCC discussed the issue of "blanketing interference," the interference that can be caused by a broadcaster to electronic devices that are located in homes and businesses near to the station’s transmitter site.  In the first case, the FCC rejected a license renewal challenge finding that there was no specific showing of interference to protected RF devices.  The FCC appends to this decision a guide to the types of interference which a broadcaster must resolve.  In the second case, the Commission also denied a complaint filed against the renewal application of a radio station based on the interference that it allegedly caused in nearby homes.  Here, the Commission published a set of Guidelines as an appendix to the decision – guidelines which help clarify the procedures that a broadcaster should go through to assess its responsibility to remedy interference complaints.  Together, the attachments to these two cases should give stations guidance on what they should do if they get complaints of blanketing interference.

Essentially, broadcasters are required to resolve all complaints of blanketing interference which occur within a station’s "blanketing contour" (1V/m for AM stations, 115 dBu or 562 mV/m contour for FM stations) during the first year of a station’s operation from a particular transmitter site to "RF devices."  These include radios, TVs, and VCRs with tuners in them.  Licensees are not required to resolve complaints to mobile receivers.  Telephones, phonographs, tape recorders or devices using high gain antennas also are not covered.  After the first year, stations, while not fully financially liable, do have the responsibility to provide information and assistance about how to resolve the interference to the person who is suffering that interference.  The Appendix to the second case states that licensees will have to respond to all complaints filed with the FCC and provide details of what they have done to address interference complaints.  So broadcasters should be aware of their responsibilities, and take appropriate actions based on the guidelines set out by the FCC.

The Commission’s Localism Report and related Notice of Proposed Rule Making seeking comment on a slate of proposed new rules has been published in the Federal Register.  Accordingly, Comments in this rule making proceeding must be filed with the Commission by March 14 and Reply Comments must be filed by April 14.  This is a very short period of time in which to comment on a number of significant proposals that are poised to return the broadcast industry to the regulatory structure of the 1980s.  As we reported earlier, the Commission proposes to re-regulate broadcast stations, and the NPRM suggests a number of substantive rule changes, such as effectively re-instating ascertainments, eliminating the unmanned operation of broadcast stations, imposing quantitative programming requirements, and requiring that main studios be maintained within a station’s community of license.  This NPRM proposes a number of potentially burdensome requirements, many of which were eliminated by the Commission long ago, and many of which go beyond what the FCC has ever required.

Given the potential impact that the FCC’s proposed rules could have on broadcast stations, broadcasters are encouraged to file comments in this important rule making proceeding. 
Comments can be filed with the Commission in paper or electronically through the FCC’s Electronic Comment Filing System.  When submitting comments, commenters should be sure to reference the docket number for this rule making, MB Docket No. 04-233.  

As more and more broadcasters create and use websites (and, to some extent, are required to post more information on those sites by the FCC, see our post here), they should be cautious about the legal liabilities that arise from these sites.  For instance, as websites are used to gather personal information for listener’s clubs, news alerts or for e-commerce purposes, the site owners need to be concerned about privacy issues. Many states are now requiring privacy policies to be posted on websites that gather personal information.  In a recent decision, the Federal Trade Commission entered into a consent decree with a website owner who had not abided by the privacy policy that it posted, requiring that the site owner hire security consultants and regularly file reports, for the next 20 years, with the FTC on its efforts to comply with its policies.  This case is a demonstration that website owners should not casually adopt privacy policies without fully understanding and adhering to their terms.

Davis Wright Tremaine’s Privacy and Security blog features a summary of this consent decree and explains the ramifications of the decision.  Broadcasters and other website owners should learn from this decision that they should not blindly copy a privacy policy that they find on some other website and adopt it as their own.  Instead, they need to carefully craft a privacy disclosure that honestly discloses their policies and practices.  In this case, the website owner promised that personal information would be maintained in a secure fashion, yet the FTC found that simple hacking techniques were able to get access to that information.  For website owners who are collecting private information, and promising privacy and security, to avoid legal issues in the future, make sure that you are living up to your promises.