On Friday, the FCC issued a public notice promising further testing of "white spaces" devices.   As we’ve written before, these devices are being promoted by many of the largest tech companies as ways to make more efficient use of the television spectrum by using low power wireless devices within that spectrum in places where those devices would not interfere with the operation of television reception.  The National Association of Broadcasters and other television groups have opposed allowing such operations for fear that they will cause interference to broadcast stations.  Especially during the digital transition, when listening habits are just being worked out and new digital televisions are just being purchase and installed by users, and because interference to a digital television station does not result in "snow" as in the analog world, but instead no picture at all, broadcasters fear that these devices could severely impact the success of the digital transition. 

In August, as we wrote here, the FCC released the first results of its interference studies, finding the potential for severe interference to television broadcasters.  While broadcast groups trumpeted these tests as proof of their fears, many of the tech companies claimed that the testing was flawed, using at least one device that was malfunctioning.  The tech companies essentially asked for a "do over," while the broadcasters argued that, even if a tested device was malfunctioning, that malfunction itself was enough to demonstrate that the devices are not reliable enough to protect television operations during this sensitive transition.

Continue Reading FCC Plans More Testing of White Spaces Devices to Operate Within the Television Spectrum

With the filing window for new noncommercial FM radio stations opening this coming week (see our summary of the process, here), some potential applicants may be wondering who qualifies as an established local organization entitled to points in the comparative analysis that takes place if applications that are mutually exclusive (both cannot be granted without creating prohibited interference) are filed during the window.  In a decision released this past week, the FCC clarified the rules as to what constitutes a local applicant – holding that simply having a mailing address for a headquarters in the proposed station’s service area is not sufficient.

In this case, an applicant claimed to have an established local presence necessary to qualify for points as a local applicant based on its "headquarters" which it said had been located within 25 miles of the proposed city of license for two years prior to the relevant date for evaluating the applicant’s comparative attributes, as required by the FCC’s rules.  However, when a competing applicant visited the office building in which this supposed headquarters was located, there was no indication in the building directory or on any signs on any door in the building that the organization was located there, and no building personnel had any familiarity with the organization.  The applicant justified its claimed local credit by claiming that the "headquarters" was an office at the specified location that housed a number of businesses and organizations with which one of its Board members was affiliated, and that all of those businesses could not be listed on signage or on the building directory.  The Commission found that the mere presence of an office was insufficient to qualify for credit, citing the Order adopting the NCE point system which said that the headquarters must be the organization’s principal place of business or the principal residence of one of its members, and not just a post office box, lawyer’s office, branch office or vacation home.  To qualify for points as an established local organization, the applicant must have activities and familiarity with the local service area that will permit it to "hit the ground running" in serving the public.

Continue Reading Who is a Local Applicant for an NCE Station?

The Digital Television transition, as we’ve written before, is becoming a political hot potato, with everyone seemingly preparing to point the finger at others if the transition does not run smoothly. In recent weeks, we’ve seen Republicans and Democrats alike taking their shots at broadcasters and the FCC – looking for likely sources of blame if there are a significant number of viewers who have a television signal that is missing in action on February 18, 2009, the day after the end of the transition. Many are blaming television broadcasters for not pushing the transition more in Public Service Announcements and other announcements on their airwaves. Some suggest a set of mandatory public service obligations to inform the public (see details here).  But would such a push at this time do any good when the availability of converter boxes is limited, and the price of digital-only television sets still high?

In recent actions, Commissioner Copps wrote an op-ed piece in USA Today last week sounding an old theme – more public interest obligations for digital television (see our post on the pending proposals, here) – and a newer one, that broadcasters should now be running public service announcements that inform the public of the steps that they need to take to be ready for the transition (either subscribing to cable or satellite or getting a digital television or converter box). A similar point about the publicity for the transition – perhaps even mandatory PSAs – was made in a recent letter from two Republican members of the House Energy and Commerce Committee, Joe Barton and Fred Upton, to the FCC. While there is no question that broadcasters need to promote the digital transition as the public is woefully uninformed of what is coming, does promotion do any good if the hardware is not available?

Continue Reading Pushing Too Hard for Publicity on the Digital Television Transition?

On an NAB Radio Show panel that included the news that LPFM licenses are, in some cases, holding up the processing of certain FM applications while solutions to potential interference to the LPFM station are sought (see out post here), a representative of the Audio Services Division of the FCC’s Media Bureau also revealed that the FCC is routinely accepting and processing requests for special temporary authority to allow AM stations to rebroadcast their signals on FM translators.  Such STA requests must follow the guidelines that are contained in the Commission’s Notice of Proposed Rulemaking that would authorize such use on a permanent basis (see out summary of that proposal here). We have seen some of these requests already granted.

So, AM broadcasters interested in FM translators should start looking for translator stations to use for such purposes realizing, of course, that any FCC authority is temporary and could be overturned when the FCC ultimately makes its final decision in the rulemaking proceeding.  There is no window for the filing of new applications, so an AM licensee seeking to use the STA process must find an existing translator to use for this purpose.  But the opportunity is there, and AM broadcasters can take advantage of it.

During a panel at the NAB Radio Show, FCC Audio Services Division Chief Peter Doyle was asked a question about the processing of FM applications filed under the new simplified process for upgrades in their technical facilities and for changes in their cities of license (see our post here for details about that process).  The question dealt with rumors that the processing of certain FM applications were being delayed if the proposed upgrade would cause interference problems to any LPFM stations which would threaten their existence.  We have written about our concerns that such a policy was possible, here.  According to the response yesterday, these delays are indeed taking place – meaning that LPFM stations that are supposed to be secondary services which yield to new or improved full-service stations are now blocking improvements in the facilities of these full-power stations.

Doyle explained that, at the moment, there is no policy of denying the full-service station’s application – but these applications are being put on hold if they would impede an LPFM’s ability to continue to operate in order to study options as to how the LPFM service might be preserved through a technical change or through agreements to accept interference.  While no final determination has been reached as to what will happen to the applications if there is no available resolution to the LPFM interference issue, he pointed to the pending rulemaking (pending for almost two years) that would give LPFM’s higher status, and in effect allow them to preclude new or improved full-service operations.  There was some indication that these actions were being taken pursuant to the potential policies set out in that Notice of Proposed Rulemaking – even though these policies were simply proposals advanced for public comment and have not yet been adopted by the full Commission.

 

Continue Reading LPFM Slowing Processing of Full Power FM Stations

The FCC today extended the deadline for submitting comments on the voluminous media ownership studies released by the Commission late this summer in connection with the ongoing review of the Media Ownership Rules.  Comments on the studies were originally due by October 1st, with Reply comments due by October 16th.  At the request of several parties, the Commission has now extended the time to comment until October 22nd, with Reply Comments now due by November 1st. 

The Commission’s media ownership studies were released as part of the FCC’s comprehensive quadrennial review of its media ownership rules.  Specifically, the ten research studies were designed to inform its decisions in the proceeding.  In today’s extension, available here, the Commission recognized that "there is a large amount of material to be reviewed and that some parties may need additional time to complete their review and analysis."  Further information on the ongoing multiple ownership rule making proceeding can be found in our earlier blogs, including this recent posting. 

On Monday, the FCC issued a $4,000 fine to a cable operator for the use of a so-called Video News Release, or VNR, in a news segment focusing on consumer issues.   The facts in this case are very similar to the facts in dozens of other inquiries involving broadcast television stations that remain pending before the Commission, and this decision could very well signal the beginning of a number of forfeitures aimed at cracking down on the (until recently) common practice of using video material provided for free by third-parties without providing attribution or a sponsorship identification.  The decision was issued by the Enforcement Bureau and not the full Commission, and goes to lengths to explain that the sponsorship rules apply to cablecasting material aired by cable operators, and that the use of even a free video (i.e. with no consideration promised or paid to the cable operator or broadcaster) can require a sponsorship ID, even if no political or controversial issue is involved. 

In this case, a cable network aired potions of video from a VNR produced on behalf of a product called "Nelson’s Rescue Sleep."  No consideration was given or promised to the cable operator, but the VNR was provided to the cable operator for free.  The sponsorship ID rules typically come into play when money, services, or other valuable consideration is given in exchange for airing the particular material.  Normally, the phrase "services or other valuable consideration" does not typically include services or property furnished without charge or at a nominal fee, such as the VNR.  In this case, however, the FCC concluded that the video was furnished in consideration for the product being identified to a degree greater than what was reasonably related to the use of the product or service in the broadcast. The VNR was included in a news segment about non-prescription sleep aids, but the segment did not contain any other sleep-aid products.  And (because it was a VNR for the product itself) the segment dwelled on and discussed at length the underlying product "Nelson’s Rescue Sleep." Citing to a 44-year old FCC Public Notice that provided guidance to broadcasters in the early 1960s about the sponsorship ID rules, the FCC found that the use of the VNR in this situation obviated the exception for free material and that a sponsorship identification should have been included.   A copy of the FCC’s decision is available here. 

The FCC’s forfeiture order was adopted exactly one year to the day that the material was aired by the cable operator, and thus, seems to have been issued now so as to avoid the possibility that the statute of limitations prevent the Commission from issuing a fine.  Although this is the first such VNR fine against either a cable operator or television broadcaster, it seems likely that more such decisions will be forthcoming.  Indeed, Commissioner Adelstein, who has championed this novel interpretation of the sponsorship identification rules, was quick to issue a statement applauding the Enforcement Bureau for its decision.  Given that the decision seems to cross into the territory of a cable operator’s or broadcaster’s editorial and journalistic discretion protected by the First Amendment, one can imagine that the cable operator (and any broadcasters fined in the future) will attack vigorously the FCC’s interpretation of its sponsorship ID rules with respect to VNRs.

UPDATE:  On Thursday (September 27, 2007), the Commission issued a further decision involving the same cable operator, fining the operator an additional $16,000 for four more VNR incidents similar to the one discussed above.  In each instance, the cable operator included video that was received for free in a program aired on the system without attribution or a sponsorship identification.  The Commission concluded that the free video clips contained extensive images, discussion, and mention of the particular product, which triggered the sponsorship ID rules.  A copy of that decision is available here. 

Continue Reading FCC Issues First VNR Fine. More to Come?

At last Thursday’s Public Hearing on multiple ownership in Chicago, about which we wrote here, a statement was read by a spokesman for Presidential candidate Barack Obama.  According to press reports, the statement expressed the candidate’s positions favoring shorter license renewal terms for broadcasters so that they would be subject to more public scrutiny, as well as criticizing the FCC for allowing broadcast consolidation.  These thoughts essentially echo the comments of FCC Commissioner Copps, especially on the subject of license renewal terms, whose views we wrote about here.  While many press reports have asked if this statement by Senator Obama foreshadows the broadcast ownership debate becoming part of the presidential campaign issues, we worry that it may signal a far broader attack on broadcasters during the upcoming political year.  The statement by Senator Obama is but one of a host of indications that broadcasters may face a rash of legislative issues that are now on the political drawing boards.

Broadcasters make easy targets for politicians as everyone is an expert on radio and television – after all, virtually everyone watches TV or listens to the radio and thus fancies themselves knowledgeable of what is good and bad for the public.  But those in Congress (and on the FCC) have the ability to do something about it.  And, with an election year upon us, they have the added incentive to act, given that any action is bound to generate at least some publicity and, for some, this may be their last opportunity to enact legislation that they feel important.  We’ve already written about the renewed emphasis, just last week, on passing legislation to overturn the Second Circuit’s decision throwing out the FCC’s fines on "fleeting expletives" and making the unanticipated use of one of those "dirty words" subject again to FCC indecency fines.  Clearly, no Congressman wants to be seen as being in favor of indecency (look at the rise in the indecency fines to $325,000 per occurrence which was voted through Congress just before the last election), and First Amendment issues are much more nuanced and difficult to explain to the voter, so watch this legislation.

Continue Reading One Sign That Broadcasters Are About to Become Political Footballs – Obama Suggests Shorter Broadcast License Terms and Less Consolidation

A reminder to all radio and television broadcast stations, both commercial and noncommercial, that Quarterly Issues Programs Lists reporting on the important issues facing the stations’ communities, and the programs aired in the months of July, August, and September dealing with those issues must be prepared and placed in the stations’ public inspection file by October 10, 2007.  The failure to have a complete set of Quarterly Issues Programs lists, which were timely prepared and placed in a station’s public file, can lead to significant fines at license renewal time so all stations are urged to prepare their Quarterly Issues Programs lists in a timely fashion.  See our full advisory here for further details.

In addition, commercial full power and Class A low power television stations are reminded that Children’s Television Programming Reports on FCC Form 398 must be prepared and filed electronically with the FCC by October 10, 2007.  The Reports must also be placed in the stations’ public inspection files by that date.  Our recent advisory is available here with all the details, including the requirements for DTV stations airing multiple program streams and details about the new Form 398.  Quarterly certifications regarding compliance with the commercial limitations in Children’s Programming should also be prepared and placed in the public inspection file by October 10th.

Over a year ago, the FCC released its Notice of Proposed Rulemaking on amendments to the FCC’s multiple ownership rules.  Issues from newspaper-broadcast cross-ownership, to local TV and radio ownership limits are all being considered.  Our summary of the issues raised in the NPRM is available here.  The FCC has been holding field hearings throughout the country on its proposals, gathering public comment on the proposals – the most recent having been held in Chicago last night.  Only one more field hearing to go and the Commission will have conducted the six hearings that it promised.  Many, including me, had felt that the timing was such that no decision in this proceeding could be reached until 2008 and, as that is an election year, the decision could quite well be put off until after the election to avoid making it a political issue.  However, there are now signs that some at the FCC are gearing up to try to reach a decision late this year or early next – presumably far enough away from the election for any controversy to quiet before the election.  With this push, others are expressing concern about a rush to judgment on the issues, and may well seek to delay it further.

Evidence of the FCC’s increasing attention to the multiple ownership issues include the recent Further Notice of Proposed Rulemaking, asking questions about minority ownership and making proposals on how that ownership can be encouraged (proposals we summarized here).  The FCC has also asked for comment on several studies that it commissioned to look at the effects of ownership consolidation in the broadcast media (the public notice asking for comments is here, and the studies can be found here).  Comments on the Further Notice and the ownership studies are due on October 1, with replies due on October 15.  Some have suggested that this time table is unnecessarily accelerated, especially as certain peer review documents on the ownership studies were just recently released.

Continue Reading A New Push to Address Multiple Ownership?