The FCC today announced its agenda for its October meeting, to be held next Thursday, October 12.  Three of the items to be considered relate to television and video issues.  The FCC will be seeking comments for its annual report to Congress on the status of competition in the video industry.  At the same time, it will be seeking comments on the competitive practices in the broadband industry – perhaps looking at issues often discussed in the network neutrality debate.  These two proceedings are both Notices of Inquiry – in other words, comments are filed and considered by the FCC, but won’t necessarily result in any new rules.  In fact, before adopting rules, the Commission would have to release a separate Notice of Proposed Rulemaking, seeking further public comment before any action is taken.

However, the third proceeding is a Notice of Proposed Rulemaking – and one that has already been controversial.  The Commission will issue a Notice of Proposed Rulemaking on the television "white spaces" proposal.  This proceeding will consider whether to allow wireless companies to operate in the spectrum currently reserved for exclusively for television operations.  In theory, as proposed by wireless and computer companies, devices can be made to transmit broadband wireless communications on television channels that are not in use in a particular location.  The television industry, on the other hand, has expressed great concerns with whether such devices can really operate without interference to present and future television stations.  The concern is especially acute given the on-going digital transition, when any interference to the broadcast signal may further confuse the consumer’s adoption of the new technology.

This has already been a very contentious proceeding that television broadcasters will want to closely monitor.  Watch for the specifics of the Commission’s proposal next week.

Within 10 days of the end of each calender quarter, broadcasters (both commercial and noncommercial) need to place into their public inspection files their quarterly issues programs lists.  We recently published an advisory with details of this quarterly obligation, and a suggested form for the public file report.  Remember that these reports need to be in your file by October 10.

While most broadcasters have recently had their licenses renewed, stations shouldn’t think that they don’t have to worry about these reports so early in their next renewal cycle.  In fact, in the renewal cycle that is just reaching its end, a number of stations were fined as much as $10,000 for quarterly issues programs list violations that had occurred early in the last renewal cycle.  So what you do now will save you money down the road.

In a decision released this week, the FCC fined a station group in Alaska for violations of its EEO Rules.  The station group had failed to do any outreach for about a quarter of its job openings.  However, what was notable about the decision was that the Commission also faulted the licensee for using only one website for recruiting for another quarter of its job openings.  The FCC decision stated that reliance on the Internet as the sole recruitment source for job openings was insufficient to achieve the required wide dissemination of notice of the job opening, as the FCC did not believe that the Internet was sufficiently universal to provide notice of that opening to all groups within a entire community.

While in this day and age, it is certainly questionable as to whether Internet access is less ubiquitous than newspaper readership, this is the Commission’s position at this point.  Thus, stations are advised that, to be in compliance with the Commission’s rules, they must rely on sources in addition to the Internet when publicizing job openings. 

For more information about achieving compliance with the FCC’s EEO rules, see our advisory outlining the rules and providing model forms necessary to document that compliance.

On August 18, we reported on meetings held between Senator Brownback of Kansas and representatives of the advertising community dealing with the subject of the advertising of "unhealthy foods."  It looks like those meetings have led to action as, according to a Hollywood Reporter story today, the FCC will be forming an obesity task force to look at such advertising.

FCC task forces often do nothing more than study an issue, but sometimes they develop  recommendations that lead to regulatory actions.  No matter where this task force ends up, broadcasters need to stay involved in the process to make sure that it does not lead to ill-defined rules that are difficult or impossible to comply with.  Can you imagine having to weigh the fat content or caloric impact of all foods that are being advertised on your station?  Might you have to channel McDonald’s chicken McNuggets ads to some late-night safe harbor, while the ads for salads would be permissible at any time of day?  The permutations that are possible are both innumerable and a little frightening.  This is a proceeding that bears careful monitoring by the broadcaster.

At a continuing legal education seminar held by the Federal Communications Bar Association a week ago, Bobby Baker, the FCC’s chief of the Office of Political Programming, confirmed an issue that has been confounding broadcasters for many months. In recent years, several organizations, including Google’s dMarc service, have begun to take remnant advertising inventory from broadcasters, and to market that inventory on-line. For this left-over spot time, prices that are charged for such time are often less than a local advertiser would pay for similar time on the same radio station.

Given that we are now in a political window, the issue has been raised as to the impact that the sale of a station’s advertising time through one of these on-line services has on the services lowest unit rate for political candidates. The simple answer given last week was that, if a commercial advertiser can buy a particular spot on a particular station using an on-line service, and that spot carries with it the same rights that a spot purchased directly from the station has (e.g. it runs in the same time period, has the same protections against pre-emption, it carries similar make-good rights), then the spot must be considered in the station’s lowest unit rate analysis for spots of the same class. While not specifically addressed by Bobby at the seminar, it would seem that  even if the spot has unique properties from spots sold locally (e.g. high level of preemptibility, no make good or preemption protection, a different rotation), it would form a different class of time that must be offered to the candidate who requests information about all classes and rotations, even if the candidate buys direct without using one of these electronic services. Spots sold through these on-line services would be like spots sold by a station’s rep firm, which similarly must be considered in a lowest unit rate analysis.

However, if the spot is sold as part of a package with other stations, where the advertiser buys on a cost-per-thousand basis or based on some other form of audience delivery, and where the advertiser does not have the ability to buy spots on any single station, then the spot does not impact on the station’s lowest unit rate. This would be an application of the FCC’s policy with respect to unwired networks and other sales of multiple stations, which has held that such sales do not affect lowest unit rates.  As other advertising issues arise during this political season, look for advice here.

It has been reported that a draft Notice of Proposed Rule Making regarding the effects of communications towers on migratory birds is circulating among the Commissioners.  In April of this year, it was reported that an NPRM on this issue was expected in the (then) near future.  (See for example, TelecomWeb and BroadcastEngineering.)  It’s now the end of September, and it seems this item is finally gaining traction, according to trade press reports.  These reports indicate that Chairman Martin’s office is circulating a draft NPRM on the issue on among the FCC Commissioners.  In 2003, the Commission issued a Notice of Inquiry on this matter under then-Chairman Michael Powell, and opened a proceeding as docket WT 03-187.  Although the NPRM was not included on the agenda for this week’s Open Meeting, it seems the item is no longer on the back burner.

Together with the FAA’s current proceeding on requiring additional FAA applications when changes are made to communications towers (which we discussed in June, here), this new proceeding could make construction and modification of new towers more difficult.  Parties interested in commenting in this proceeding should sharpen their pencils and update their data, to be prepared when the NPRM is actually released.