Burt Braverman of the DC Office of Davis Wright Tremaine will moderate a panel titled Digital Television (DTV) Is Coming at the Future of Television Conference to be held in New York on November 8 and 9.  The panel will also feature representatives of the National Telecommunications and Information Administration, the National Association of Broadcasters and the Consumer Electronics Association.  David Oxenford and Brendan Holland of DWT’s DC Office also plan to attend the Conference.

As the nation’s television stations move closer and closer to the February 17, 2009 termination of analog broadcasting, plans are well underway to re-use the channel that these stations must surrender after that date.  Currently, most television stations operate on two channels, their traditional analog channel, and a transition channel on which they have been allowed to transmit their digital signal until the end of the digital transition.  As we wrote here, the FCC has assigned to all stations a final channel on which they will operate once the transition is complete (usually the transition channel or the original analog channel).  After February 17, 2009, the television stations will only broadcast on their final digital channel, and their other channel will be returned to the FCC.  All television operations will be consolidated in Channels 2 through 51, allowing the re-use of Channels 52-69.  Some of those returned channels have already been auctioned off (see our post here about some of the operations on those channels), and the FCC has recently announced auction rules for the remaining channels.  Our firm has just issued an Advisory setting out the important dates for participation in that auction – the so-called 700 MHz auction.  That advisory is available, here.

As these channels have excellent propagation characteristics, it is believed that they will be highly sought, with some estimates that the nationwide channels may bring several billion dollars into the Federal treasury.  Rumored uses include various forms of broadband access, either through open systems where consumers will pay for access as they do for any Internet access, but content providers will not have to pay, to more closed systems where the licensees determine what content will be provided.  As set out in the Advisory, at least some degree of openness to new devices that connect to the network is guaranteed on some portion of this spectrum under the Commission’s orders.  But ultimately how much of that spectrum is used for closed systems transmitting video or audio entertainment (sounds like broadcasting) remains to be seen.   The more things change….

2007 – the year of the television actor who decides to become a Presidential candidate.  We’ve already written about the issues under the FCC’s political broadcasting rules, particularly the equal opportunity doctrine, with the candidacy of Law and Order’s Fred Thompson, resulting in NBC replacing him on as the on-air District Attorney of New York City.  Now, Comedy Central television host Stephen Colbert has announced his candidacy for the nomination for President – albeit only as a native son in his home state of South Carolina.  While some cynical observers might conclude that the Colbert action is only a bid to get publicity and press for his new book (just think of all the publicity that he’s getting from this blog entry – Stephen, we want our commission on all the books you sell because of the promotion you get here), his candidacy does present a useful illustration of a number of issues that arise for broadcasters and other FCC regulatees subject to the political broadcasting rules – particularly issues that arise when a station on-air employee runs for political office.  Questions that are raised include when a employee becomes a legally qualified candidate, does the candidate’s appearance on a bona fide news interview program exempt the station from equal opportunities obligations, and the amount and kind of time that is due to opposing candidates should they request equal time.

First, the question of a "legally qualified candidate."  This is important as the on-air appearance of a planned candidate does not give rise to equal time until that individual becomes a "legally qualified candidate."  For most elections, the candidate becomes legally qualified when they file the necessary papers to qualify for a place on the ballot for the election in which they plan to run, or if they actively pursue an write-in candidacy for an office for which they are eligible.  Until they are legally qualified, no matter how much they say they are running, their appearances do not give rise to equal opportunities.  One example of this occurred years ago, when Howard Stern was campaigning for Governor of New York on his morning radio program in New York City.  No equal opportunity issues arose as Stern never filed the required papers to qualify for a place on the ballot with the New York Secretary of State.

However, in Presidential elections, in addition to the usual manner of qualification, a candidate who is qualified in 10 states is deemed qualified in all states.  In addition, a Presidential candidate can become "legally qualified" for purposes of the FCC rules merely by making a substantial showing of a bona fide candidacy (e.g. having a campaign headquarters, making speeches, distributing campaign literature,  and issuing press releases).  So, if Mr. Colbert is out in South Carolina holding campaign rallies and distributing literature in support of his candidacy, he could be deemed a legally qualified candidate before filing the necessary papers (though his recent statement on NPR’s Wait Wait Don’t Tell Me that his road to the Presidency ends in South Carolina may undercut the bona fides of his campaign.  Perhaps that admission will be retracted when he appears on Meet the Press tomorrow).  But, for the other Presidential candidates who are running in all states, participating in debates and engaging in other campaign activities, they are probably legally qualified throughout the entire country now, even though the filing of the papers for a place on the New Hampshire ballot, the first primary, are not due until early November.

 

Continue Reading Stephen Colbert, Equal Opportunities and the Case of the Candidate Host

The FCC today issued a Public Notice extending the NCE filing window, which was to end today, until this coming Monday, October 22.  All applications must be on file by 2 PM Eastern Time on Monday.  This short extension was apparently due to downtime on the FCC’s electronic filing system last night, which precluded the filing of some applications during that period.  This is the window for filing applications seeking authority to construct new noncommercial educational FM stations, or for major changes in existing noncommercial FM stations.  For more details on this window, see our post, here. 

According to an article yesterday in Broadcasting and Cable Online, and another article in the New York Times today, Chairman Martin of the FCC is looking to complete the multiple ownership proceeding (which we summarized here) by the middle of December.  According to the Times article, the Chairman is looking for relaxation of the current newspaper-broadcast cross ownership rules – the prohibition on the ownership of a broadcast station and a daily newspaper in the same market.  What the Chairman has in mind for the rules regarding local radio and television ownership is less clear.  But, no matter what is planned, forces are already mustering to attempt to delay the Commission action.

Contemplating a December action is certainly aggressive.  The Commission had promised to complete the two sets of public hearings – one on the ownership rules and a second on the localism provided by broadcasters – before reaching conclusions in this case.  Each set of hearings still has a final hearing to be held.  The Commission has yet to officially announce the date and location of either of these final hearings – though press reports have indicated that the Commission may look to hold one at the end of the month on the West Coast, and the final hearing in Washington, DC in early November.  In addition, the Commission has just received the final set of comments on the proposals to foster minority ownership, which the Third Circuit had indicated was to be part of the analysis in this proceeding when it stayed the effect of most of the Commission’s 2003 multiple ownership decision and remanded that decision to the FCC for further consideration.  With the comments on minority ownership just having been filed, and comments on the Commission’s own studies on the effect of consolidation not not due until next week (see details), and replies due early next month, does the Commission really have time to consider the issues raised in these comments in this proceeding and reach a December decision, or will some issues need to be delayed for independent consideration?  Seldom has the FCC finished any proceeding within a month and a half of the end of the public comment period – much less an important and controversial one like multiple ownership.

Continue Reading Push to Complete Multiple Ownership Overhaul By the End of the Year

The FCC has taken the unusual step of issuing a Notice of Apparent Liability, i.e. an announcement that it has fined a broadcaster, against two TV station owners for failing to provide a sponsorship identification for political material sponsored by another Federal agency–the Department of Education ("DOE").  The proposed fines for these two broadcasters totaled over $70,000.  In connection with the same broadcasts, the Commission also issued a citation against the producer of the programs for failing to include a disclosure of the sponsor of the programs, warning that company that it would be fined if it were to engage in such activity in the future, even though the entity was not an FCC licensee.  These actions demonstrate the concern of the Commission over programs that attempt to influence the public, particularly those dealing with controversial issues of public importance, where those who have paid to do the convincing are not evident to the public.

These cases all stem from programs associated with conservative political commentator Armstrong Williams, who was paid by DOE to promote the controversial No Child Left Behind Act ("NCLBA") supported by the current administration.  He did so on two television programs:  his own show, titled "The Right Side with Armstrong Williams" and on "America’s Black Forum," where he appeared as a guest.  These shows were aired by various television stations without any sponsorship identification to indicate that Williams was paid by DOE to promote NCLBA on the air.

In one case, the television broadcaster received $100 per broadcast for airing Right Side, but failed to reveal that it had received any consideration.  The broadcaster claimed that the consideration received was "nominal," which is generally an exception to the sponsorship ID requirement.  However, the FCC noted that the exception for "nominal" consideration applies only to "service or property" and not to "money," holding that receipt of any money, even if only a small sum, triggers the requirement for sponsorship identification.

Continue Reading FCC Proposes Fines for Political Sponsorship ID Violations

With the shifting dates for the upcoming Presidential primaries, questions have arisen as to when broadcast stations must start to give Lowest Unit rates to candidates for these elections.  As it appears that, in some states, the primaries or caucuses for the Republicans and the Democrats may be held on different dates, the Lowest Unit rate periods in those states will be different for each party.  For instance, this week’s decision by the Iowa Republican party to move its caucuses up to January 3 will move the beginning of the 45 day period for Lowest Unit Charges for Republican presidential candidates in Iowa to November 19. If the Democrats continue to hold to their planned January 14 caucus date, the Lowest Unit Charge period for Democratic Presidential candidates in Iowa will not start until November 30. Remember, Lowest Unit rates are in effect only for 45 days before a primary (or an open Presidential caucus such as that in Iowa) and the 60 days before a general election. They apply on a race by race basis. Just because you are within the LUC period before one election or primary does not mean that Lowest Unit rates apply to any other race.

This often comes up in Presidential election years when the Presidential caucus or primary in a given state is held early in the year, while the primary for the Congressional, state and local elections are held later in the year.  Even though there are declared candidates for those Congressional, state and local elections, Lowest Unit Charges will not apply to these candidates during the early Presidential primary window, but instead will apply only during the 45 days before their own primary elections (and, during those periods in the late spring or summer after the Presidential primaries and more than 60 days before the general elections, the Lowest Unit rates would not apply to the Presidential candidates).  Broadcasters need to remain alert as these dates are bound to keep shifting – perhaps right up to election day.

Last week, FCC Chairman Kevin Martin was quoted in several trade press reports as having told the House Small Business Committee that his office was working on an item to be circulated among the other commissioners that would ensure low power FM ("LPFM") stations "would have reasonable access to limited radio spectrum."  So what does this mean?  As we wrote recently, the FCC seems to be delaying the processing of some applications for modifications of full-power FM stations because those applications would create interference which would knock an LPFM station off the air.  The FCC is currently looking for ways to preserve the LPFM.  We’ve expressed concerns that this action could be a precursor to the resolution of a pending rulemaking proceeding which asks whether the protection of LPFM stations by new full power stations or ones seeking upgrades should be mandatory.  Could the Chairman’s statements provide an indication of where that proceeding is going?  If so, it would be bad news for full-power FM stations.

The adoption of such an order would also raise questions of how the FCC will deal with conflicts between LPFM stations and translators.  The same proceeding that asked whether LPFM stations should be protected from increases in power by full-power stations also asked whether LPFM should have a preference over FM translators, even suggesting that a new LPFM could knock an FM translator off the air.  Given the broad investment across the country in translators and the unique service that they provide in both rural and more urban areas, often importing unique noncommercial channels, would the additional localism provided by LPFM justify the change in FCC policy?  We may well see how the FCC balances these competing interests in the near future. 

In an Order released today, the FCC affirmed its tentative decision limiting the number of noncommercial FM applications that can be filed by one party in the upcoming window for new reserved educational band stations.  Applications for these stations can be submitted starting on Friday.  See our post, here, for details on the filing requirements.  The Commission upheld its tentative decision to retain a limit of 10 applications, despite requests by NPR, Minnesota Public Radio, and many religious broadcasters for higher limits.  The Commission cited thousands of individual comments in support of the 10 station limit, as well as those of a number of "public interest" groups.  Apparently, the flood of thousands of almost identical individual comments helped convince the Commission that the weight of the comments (perhaps literally) supported its decision.

The Commission did recognize some exceptions to the 10 station limit, exempting major change applications and applications that were originally filed under the old rules for FM educational processing (many of which have been languishing for almost 10 years) which must be refiled in the upcoming window.  In response to concerns that there might be sham applications that are filed to evade the limits, the Commission warned applicants that it retained the ability to investigate any application to make sure that the representations are true.  See our post on a recent case where the FCC rejected an applicant’s claim to credit as a local applicant.  We will see if these efforts by the FCC in fact reduce the number of applications to a manageable number that can be quickly processed by the Commission.

Website operators planning to allow visitors to post their own "user generated content" can, for the most part, take solace that they will not be held liable for third-party posts if they meet certain criteria.  The Communications Decency Act provides protection against liability for torts (including libel, slander and other forms of defamation) for website operators for third-party content posted on their site.  The Digital Millennium Copyright Act provides protection against copyright infringement claims for the user-generated content, if the site owner observes certain "safe harbor" provisions set out by the law.  The requirements for protection under these statutes, and other cautions for website operators, are set out in detail in our firm’s First Amendment Law Letter, which can be found here.

 As detailed in the Law Letter, the Communications Decency Act has been very broadly applied to protect the operator of a website from liability for the content of the postings of third parties.  Only recently have courts begun to chip away at those protections, finding liability in cases where it appeared that the website operator in effect asked for the offending content – as in a case where the owner of a roommate-finder site gave users a questionnaire that specifically prompted them to indicate a racial preference for a roommate – something which offends the Fair Housing Act.  However, as set forth in the Law Letter, absent such a specific prompt for offending information, the protections afforded by this statute still appear quite broad.

Continue Reading Avoiding Liability for Websites that Post User Generated Content