The FCC’s Emergency Alert System ("EAS") is the bane of many broadcasters.  Failing to have operational EAS equipment, or otherwise failing to comply with the requirements of the rules, including failures to conduct the mandatory tests of the system, are among the most common causes of a fine following an FCC field inspection.  To help ensure compliance with the EAS rules, the FCC has issued a series of booklets outlining the EAS obligations not only for broadcasters, but also for cable systems, satellite radio and wireline video providers.  These booklets can be found here.  As the FCC rules require that these booklets be maintained at the location of normal duty operator for a station or systems, all media companies that are subject to the EAS rules should download and post the appropriate booklet at their control points.

The new booklets cover new requirements imposed on broadcasters in connection with their digital operations.  These operations, along with services provided by satellite radio and telephone company video providers, were only recently made subject to the EAS rules (see our post here).  These booklets provide the first full summary by the FCC of the application of the rules to these services.  Thus, operators need to be sure to not only print out and post these booklets, but read them carefully to make sure that their operations are in full compliance.  Do it today! 

(Update – 12/11/2007 – the FCC today issued an order upholding a fine of $8000 to a cable operator who had EAS equipment that was not installed at the time of an FCC inspection.  This demonstrates how costly EAS violations can be)

With a possible decision looming on December 18 on the Chairman’s proposal to loosen the newspaper-broadcast cross-ownership rules (see our summary here and here), the FCC this week granted two applications involving the sales of the Tribune Company and of the Clear Channel television stations, where the decisions focused on the application of the multiple ownership rules – and where the Commission granted multiple waivers of various aspects of those rules – some on a permanent basis and many only temporarily.  And, in the process, both of the Commission’s Democratic Commissioners complained about the apparent prejudgment of the cross-ownership rules and one complained about the role of private equity in broadcast ownership.  Both decisions are also interesting in their treatment of complicated ownership structures and, at least under this administration, evidence the Commission’s desire to stay out of second guessing these structures. 

In the Clear Channel decision, the Commission reviewed the proposed ownership of the new licensee by an affiliate of Providence Equity Partners.  As there were no objections to the proposed sale, the FCC approval process was somewhat easier than it might have been – though the Commission did seem to be somewhat troubled by the fact that Providence was already a shareholder with an interest attributable under the multiple ownership rules in Univision Communications, which had stations in a number of markets in which the Clear Channel television stations operate.  The Commission approved the sale, giving Providence 6 months to come into compliance with the ownership rules – and conditioning the initial closing of the Clear Channel sale on Providence meeting divestiture requirements that it had promised to observe in connection with the Univision acquisition, and had not yet complied with (in fact the Commission recently asked for comments on a proposal by Providence to come into compliance in the Univision case by simply converting their interest in Freedom Communications, which has interests in Univision markets, into a nonvoting interest which would not be attributable under Commission rules)

Continue Reading Ownership Waivers All Around – FCC Approves Sales of Tribune and Clear Channel TV

At last Tuesday’s FCC meeting, the Commission adopted a controversial order, over the objection of two Commissioners, that could limit the processing of some applications for improvements by some full power FM stations, and would restrict translator applications, all in the name of encouraging Low Power FM (LPFM) stations to provide outlets for expression by groups that cannot get access to full-power radio stations (see our summary of that action here).  In recent weeks, two ideas have received some publicity providing an alternative outlet for these prospective local broadcasters – and both provide a simple solution (one more immediate and ad hoc than that other), but both leading to the same result – why not just extend the FM band by using TV channel 6?

The current FM band begins at 88.1 MHz, a channel that is actually immediately adjacent to TV Channel 6.  The FCC has for years restricted operations of noncommercial FM stations (which operate from 88.1 to 91.9 on the FM dial) in areas where there are Channel 6 TV stations in order to prevent the radio stations from creating interference to the reception of the TV stations.  That’s while you will often find fewer noncommercial stations, or ones with weaker coverage, in communities that have TV Channel 6 licensees.  TV stations use an FM transmission system for their audio.  Thus, you will also find that most FM receivers (especially ones without digital tuners) will pick up the audio from TV channel 6 if tuned all the way to the left of the dial.  The short-term solution to expanding the FM band came from one broadcaster who noted that fact.

Continue Reading Who Needs LPFM? – Why Not Just Expand the FM Dial?

The New York Times recently published an article about NBC’s owned and operated station in New York City acceptance of advertising for liquor.  While ads for beer and wine have been a staple on broadcast stations (though see our discussion of the limits on that advertising, here), ads for other alcoholic beverages ads have been less frequent.  Many broadcasters have for years believed that such ads were prohibited by the FCC or some other government agency.  In fact, alcohol ads have not been prohibited by law, but instead by voluntary actions of trade associations representing broadcasters and the alcoholic beverage industry .

Until the early 1980s, the National Association of Broadcasters had a voluntary code of conduct for broadcasters, suggesting good standards and practices for broadcasters: limiting some broadcast content while encouraging broadcasters to air other programming perceived to be in the public interest.  Among the conduct that the Code prohibited was the advertising of hard liquor. While the NAB Code was not mandatory for broadcasters, in filing many routine applications for new stations and for the acquisition of existing stations, the FCC in the past had requirements that the potential broadcasters explain how their programming would serve the public interest.  Most applicants would shorthand their compliance plans by simply promising to abide by the NAB code, in effect binding themselves to the code through those representations made to the FCC.  The Code was in place until the early 1980s, when the Department of Justice became concerned that code provisions suggesting maximum commercial loads and similar matters functioned as a restraint of trade in violation of the antitrust laws, and the NAB Code was abandoned.

Continue Reading Will You Drink to That? – Advertising Liquor on Broadcast Stations

For Tuesday’s FCC meeting, the Commission had an agenda crowded with items dealing with the cable television industry.  The issues that were to be discussed may well have provided the controversy that caused the Commission to start its meeting 12 hours after its scheduled beginning.  At the end of the day, two controversial issues were discussed, prompting strong rhetoric from the Commissioners.  Two specific items were adopted over dissent from some of the Commissioners.  In the first, the Commission agreed to collect more information from cable systems about their subscriber numbers to determine if the cable industry has surpassed the 70/70 threshold, (passing 70 percent of all U.S. television households with 70 percent of those households subscribing to cable) which would open a statutory door for the Commission to adopt more intrusive cable regulations.  Second, the FCC slashed the costs of leased access to cable channels, cutting the costs for non-affiliated programming companies that want to lease channel capacity on cable systems to provide their programs.  Details about both of these actions, and some of the discussions about these items, can be found in a Bulletin published by our firm, available here.

The FCC today adopted new requirements for television broadcasters to quarterly file a report with the FCC quantifying their service to the public.  The order also requires that stations keep their public file on their website, if they have a website.  Broadcasters will also be required to broadcast twice each day a notice as to how listeners can find their public file.  This order resolves some of the issues raised in a rulemaking proceeding (about which we wrote here) begun over 7 years ago as part of the rules to govern TV’s digital transition.  Yet these new rules apply to analog as well as digital television operations.  In fact, the public file rule goes into effect 60 days after the publication of the FCC’s order in the Federal Register.  

The new FCC form will replace the Quarterly Issues Programs lists prepared by licensees since the mid-1980s.  The Quarterly Issues lists were originally adopted to replace more detailed reporting requirements which forced broadcasters to collect and file the same types of information that the FCC is now requesting.  While the new forms are not yet released, from the discussion at the FCC meeting, it appears that they will require the following information:

  • Details about civic and election coverage provided by the station
  • Information about programming from independent producers that is aired by the station
  • Information about the number of Public Service announcements (PSAs) aired by the station
  • A description of efforts that the station has undertaken to serve its community
  • Specifics about emergency information provided by the station
  • Information about how emergency and other information is provided to viewers with disabilities
  • There was also some discussion that indicated that the reports would require information about how stations ascertain the needs of their community that are addressed in their programs.

Continue Reading FCC Adopts Rules Requiring TV Stations to Keep Public File on Website – and Adopts New Requirements for Quantifying Public Interest Obligations

In an unusually contentious FCC meeting, the FCC adopted rules that promote Low Power FM ("LPFM") stations seemingly to the detriment of FM translators and improvements in the facilities of full-power FM stations.  While no formal text of the decision has yet been released, the Commission did release a Public Notice summarizing its action.  However, given the lack of detail contained in the Notice as to some of the decisions – including capping at 10 the number of translator applications from the 2003 FM translator window that one entity can continue to process and the adoption of an interim policy that would preclude the processing of full-power FM applications that created interference that could not be resolved to an existing LPFM station – it appears that the Press Release was written before these final details were determined.  And given that the two Republican Commissioners dissented from aspects of this order supported by their Chairman (and also dissented on certain cable items considered later in the meeting), one wonders about the process that resulted in the Republican chairman of the FCC voting with the two Democratic Commissioners on an item that in many respects favors LPFM stations to the detriment of existing broadcast operators.

In any event, specific decisions mentioned in today’s meeting include:

  • Treating changes in the Board of Directors of an LPFM station as minor ownership changes that  can be quickly approved by the FCC
  • Allowing the sale of LPFM stations from one non-profit entity to another
  • Tightening rules requiring local programming on these stations
  • Maintaining requirements that LPFM stations must be locally owned, and limiting groups to ownership of only one station
  • Limiting applicants in the 2003 FM translator window to processing only 10 pending applications each, and requiring that they decide which 10 applications to prosecute before any settlement window opens (the two Republican Commissioners favored allowing applicants to continue to process up to 50 applications)
  • Adopting an interim policy requiring that full-power FM stations that are improving their facilities in such a way that their improvement would interfere with an LPFM station to work with the LPFM to find a way to eliminate or minimize the interference.  If no resolution could be found, the full-power station’s application would not be processed (which we have expressed concerns about before)
  • Urging that Congress repeal the ban on the FCC making any changes that would eliminate protections for full power stations from third-adjacent channel interference from LPFMs

Continue Reading FCC Meeting Adopts Rules Favoring LPFM, Restricting Translator Applications, and Possibly Impeding Full Service FM Station Upgrades

By December 1, 2007, licensees of commercial and noncommercial digital television stations must file an FCC Form 317 electronically reporting on whether the station has provided any ancillary and supplementary services during the twelve-month period ending on September 30, 2007.  If the station did provide such services and generated any revenue from such services, then the FCC wants to know about it.  More importantly, the FCC wants its 5% cut of the gross revenues derived from such service.  Currently, only licensees are required to file the Form 317, so stations that do not yet hold a DTV license for some reason are not required to file.  The form is very brief, soliciting information about the license and the types of services provided, if any, and must be filed electronically through CDBS.

The Federal Election Commission last week adopted new rules, implementing a relaxation in its rules defining what is considered a prohibited "electioneering communication" by a union or corporation.  This change may allow more political spending by these organizations during the upcoming election campaigns  The rule changes were adopted in response to a Supreme Court case which threw out the FEC’s old rules (see our post on that decision, here).  The old rules had prohibited in the 30 days before a Federal primary or 60 days before a general election the purchase of ads by unions or corporations if they mentioned a candidate in that election.  The Supreme Court found that restriction unconstitutional, where the ad addressed an issue without mentioning the election.  Because of that Supreme Court decision, the FEC was forced to rewrite its rules.

The new rules allow corporate and union expenditures on ads on issues, even if the ads mention a candidate, unless the ad is "susceptible of no other interpretation" other than as urging a vote for or against a particular candidate.  The new rules (Section 114.15) provide a "safe harbor" which allows a union or corporation to conclude that their ad is not prohibited.  If the ad does not mention the upcoming election (or the candidacy of an office holder, or the political party of the candidate or the fact that the public will soon be voting) and does address an issue, where the mention of the candidate comes in connection with a suggestion that the public urge the candidate to support a position on the issue, then the ad will fall within that safe harbor.

Continue Reading Federal Election Commission Adopts Rule That May Allow More Issue Ads During Election Season

The FCC has released the agenda for its Open Meeting to be held on Tuesday, November 27.  The agenda is full of issues of importance to broadcasters, and several items may resolve issues that may be troubling – including issues relating to low power FM stations (LPFM) and resolving a long outstanding proceeding concerning the possibility of mandatory public interest obligations for TV stations.  The Commission also has on tap initiatives to encourage the entry of minorities and other new entrants into the broadcast business – even though comments on the Commission’s proposals on this matter were received just a month ago.

First, the Commission is to release an Order on Low Power FM.  We have written about some of the issues that could be decided previously – including issues of whether or not to allow the assignment and transfer of such stations (here) and whether to give these stations preferences over translators and even improvements in full power stations (here and here).

On the TV side, the Commission seems ready to issue an order on the public interest obligations of television operators.  We wrote about the proposals – made as part of the Commission’s DTV proceedings (though to be applicable to all TV stations), here.  Proposed rules included the standardization of quarterly issues programs lists, making station’s public fies available on the Internet, and quantifying other public interest obligations. 

Continue Reading FCC Meeting to Consider LPFM Reform, Public Interest Requirements for TV Stations, and Minority Ownership Proposals