Last week, there was much written in the press about the MORE Act passing in the House of Representatives, taking actions to decriminalize marijuana under federal law.  This would include removing marijuana from Schedule I, which is the list of drugs whose use for almost all purposes is prohibited in the United States.  The passage of this bill through the House, though, should not be taken as a sign to start running marijuana advertising on your broadcast station – though there are some signs that the day on which that advertising can be run may be in sight.

First, it is important to remember that this bill passed only in the House of Representatives.  Without also being approved by the Senate and being signed by the President, the House’s action had no legal effect.  Because of the way that Congress works, if the bill does not pass the Senate in the current legislative session, which ends in the first few days of January 2021, the whole process must start over again – bills do not carry over from one Congressional session to another.  So, to become law in the new year, a new Congress would have to start with a new bill, and a new House of Representatives and a new Senate would both have to vote to adopt the legislation. Continue Reading MORE Act Passes House – But Don’t Rush to Run Marijuana Ads on Your Broadcast Station

One of the last questions about the repacking of the television spectrum following the television incentive auction was whether there would be a UHF television channel set aside in each television market for unlicensed wireless uses.  Microsoft and other tech companies have been pushing for that set aside for years, arguing that more capacity for wi-fi-like services and wireless microphones was needed.  These parties argued that there was room in the television spectrum for the set aside of a single 6 MHz channel in every market for these unlicensed wireless uses that would be protected from encroachment by new or modified TV operations.  The broadcast industry naturally opposed this proposal which would further diminish the already curtailed television spectrum.  Yesterday, the FCC finally decided the question by closing the proceeding without taking any action to set aside any channel for these wireless users.

In terminating the proceeding, the FCC looked at the TV spectrum following the repack and determined that there were numerous TV markets in which there was no vacant UHF channel to dedicate to these wireless users.  There was certainly no vacant channel that could be consistently used across the country so that manufacturers of equipment would have a nationwide dedicated channel for certainty as to where their devices would work.  In addition, since the proposal was first advanced, other spectrum has been made available by the FCC for unlicensed wireless users.  Even in the spectrum used by TV stations, white spaces devices are allowed to operate where they do not cause interference to existing TV stations (see our articles here, here, and here).  Because of these developments, and the burdens that protecting a channel for unlicensed wireless users would put on continuing TV operations and the expansion of such operations (e.g. though the use of DTS, see our article here), the FCC decided to terminate the ongoing proceeding without taking any action on the proposals that had been made.  This appears to have been a unanimous decision of the Commission, so it is one unlikely to be revisited by any new FCC after the change of administration.

 

The Senate this week confirmed Nathan Simington for the seat on the FCC currently held by Michael O’Rielly.  It is expected that Mr. Simington will be sworn in as a new Commissioner later this week, allowing Commissioner O’Rielly to serve through tomorrow’s FCC open meeting where he will likely give his farewell comments to the FCC and communications audience.  Commissioner O’Rielly has generally been a friend to broadcasters, championing many causes for the industry, including changes to the Children’s Television rules and fighting pirate radio.  Broadcasters will certainly miss his voice at the FCC.

Commissioner Simington comes to the FCC with a relatively low-profile background.  He has been a lawyer for less than a decade, and his communications background appears to be limited to serving as an in-house lawyer for a wireless service company and working at the NTIA (the administration within the Commerce Department charged with developing communications policy for the administration and oversight over government spectrum).  At NTIA, he worked to some degree on the administration’s proposals for the FCC to interpret provisions of Section 230 of the Communications Decency Act (see our posts here and here) – proposals currently under review by the Commission.  His outlook as a Republican appointee seems to generally be a deregulatory one, though his specific thoughts about broadcast regulation have not been set out in any detail. Continue Reading New FCC Commissioner Nathan Simington on the Way

Last week, the FCC announced a Consent Decree with a Florida broadcaster, with the broadcaster admitting violations of several FCC rules and agreeing to pay a $125,000 fine and enter into a consent decree to ensure future compliance.  The violations addressed in the decree include (i) the failure to monitor tower lights and report that they had been out for significant periods of time, (ii) the failure to update the Antenna Structure Registration (ASR) of the tower to reflect that the broadcaster was the owner, (iii) not following the announced rules in conducting certain contests, and (iv) broadcasting seemingly live content that was in fact prerecorded, without labeling the programming as having been prerecorded.  While the details of the violations are provided in only summary fashion, these violations all serve as a reminder to broadcasters to watch their compliance – and also highlight the apparent interest of the FCC in enforcing the rule on seemingly live but prerecorded content, a rule rarely if ever enforced until this year.

Looking at the contest violations first, the Consent Decree gives a general description of the contests in question in a footnote.  One contest was apparently a scavenger hunt.  The station had intended for the contest to run for an extended period, but a listener found the prize soon after the on-air promotion began.  To prolong the on-air suspense, the station agreed with that listener to not reveal that she had won.  The station continued to promote and seemingly conduct the contest on the air for some time, until finally awarding the prize to the original winner.  In another contest, the station gave prizes to people who called in at designated times during the day.  According to the allegations in the Consent Decree, fake call-ins were recorded by the station to be broadcast during times when there were no live DJs.  As we have written before (see our articles here and here), the FCC requires that stations conduct on-air contests substantially in the manner set out in the announced rules for that contest – and the broadcasts about the contest cannot be materially misleading.  The FCC concluded that these contests did not meet that standard, and also found another problem with those prerecorded call-ins to the station. Continue Reading $125,000 FCC Penalty to Broadcaster for Tower Structure and Contest Rule Violations – Including Violation of Rule Against Broadcasting Seemingly Live Recorded Programming Without Informing Listeners

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.  Also, we include a look at actions to watch in the week ahead.

  • FCC Chairman Ajit Pai announced his intention to leave the FCC by January 20, the day that President-Elect Joe Biden is inaugurated. Pai has been at the Commission since 2012 and has led the Commission as Chairman since President Trump elevated him in 2017.  The news release announcing his departure highlights some of the issues he hopes will be part of his legacy.  (News Release)
    • In other FCC personnel news, Nathan Simington’s nomination to fill the Commission seat now held by Michael O’Rielly moved ahead after the Senate Commerce Committee, along party lines, voted to advance his nomination. The next—and final—step is a vote by the full Senate which would have to be done before the current Senate session adjourns at the beginning of January.  If not completed by the end of the session, the nomination and confirmation process would have to begin again.  Senate Majority Leader Mitch McConnell (R-KY) plans to take up the nomination soon, but certain Democratic senators have indicated they may try to delay or derail a vote on Simington’s nomination.  Should Simington be confirmed, the agency, with the departures of Chairman Pai and Commissioner O’Rielly, would be deadlocked at two Democratic and two Republican Commissioners in the early months of the Biden Administration until a new Democratic Commissioner is nominated and confirmed.  We wrote about Simington’s nomination, here.
    • Commissioner Michael O’Rielly sent a farewell email and video to FCC staff on Friday afternoon that recognized that his departure from the agency is imminent. O’Rielly can serve only until the adjournment of the current congressional session in early January or until his successor is confirmed and sworn in, whichever comes first.
  • The Commission released a Notice of Proposed Rulemaking that seeks comment on allowing FM boosters to originate a limited amount of programming that is different from the programming being aired on their primary station. Proponents of this “zonecasting” idea believe that boosters could deliver hyper localized news, weather, emergency alerting, and advertising.  Interested parties should review the NPRM, consult with their technical experts, and begin drafting their comments as the FCC wants detailed input on the technical and operational aspects of the proposal.  Comments will be due 30 days after the NPRM is published in the Federal Register.  See our blog post, here, for a detailed look at the proposal.  (Notice of Proposed Rulemaking)
  • The FCC’s International Bureau issued an updated list of C-band incumbent earth station lump sum reimbursement elections, showing that nearly 98% of lump sum elections were accepted. The Bureau also released an updated list of incumbent earth stations eligible for reimbursement.  Operators of earth stations should carefully review these documents to make sure that their operations are properly reported so that any reimbursement to which they are entitled will not be jeopardized.
  • The FCC announced that television stations in DMAs 61 through 70 that are covered by the expanded audio description rules should be preparing to comply with the new rules beginning January 1, 2020. (Public Notice).  We noted the FCC decision to expand the obligations to provide audio descriptions of certain broadcast TV video programming here and here.
  • A Florida FM licensee will pay a $125,000 fine after admitting to failing: (i) to conduct the required daily inspection of an antenna structure’s lighting system, (ii) to notify the FAA about a lighting failure, (iii) to register an antenna structure with the FCC, (iv) to conduct two contests in a manner substantially as announced by pre-selecting the winners in those contests, and (v) to disclose that programming broadcast over the station during a supposedly live call-in contest was prerecorded. (Order)
  • A West Virginia TV station was admonished for its failure to comply with the FCC’s rules for commercial limits in children’s programming. The station disclosed in its license renewal application that a website URL was displayed for about a half of a second during the closing credits of a program directed at children 12 years or younger.  Stations cannot include in children’s programming the URL of a website whose primary purpose is to sell merchandise related to the program.  In this case, the Video Division found that that the website was not primarily noncommercial in nature.  The Division also noted stations are ultimately responsible for the programming on their air, even if the program was, as it was here, supplied by a network or other programmer.  See the FCC’s letter for more details on these issues.
  • The FCC rejected a petition by a party asking the Commission to reconsider its policy against awarding “secondary” grants in groups of mutually exclusive noncommercial educational FM applications. (Order on Reconsideration).  We wrote here about the FCC’s reasoning for maintaining its processing policies that exclude such secondary grants.
  • The FCC finalized rulemaking proceedings amending the TV Table of Allotments to change the channels of three TV stations from VHF to UHF channels. The FCC had agreed to start processing these requests several months ago despite a freeze on channel changes and other coverage modifications for TV stations (see our article here).  These orders noted that the recent FCC decision to lift the filing freeze on TV technical applications that expand a station’s service area, making any waiver of that freeze unnecessary. (FCC Orders granting requests for channel changes in Mesa AZ, Minneapolis MN and Portland OR).  As the lifting of the TV freeze has now become effective, expect more changes in the technical facilities of TV stations soon.

Next week, on December 10, the FCC will hold its last Open Meeting of 2020 at which it will vote on new rules for Broadcast Internet (ATSC 3.0) services.  The new rules will clarify how the Commission will calculate the annual ancillary and supplementary fees owed by broadcasters that lease their spectrum to third parties and, if the FCC’s tentative order is adopted, will reduce the fees owed by noncommercial broadcasters that offer noncommercial Broadcast Internet services.  Unchanged in the new rules is the requirement that broadcasters providing these ancillary services must continue to offer at least one standard-definition over-the-air signal.  We are also watching a late addition to the meeting agenda—an Order that will require electronic payment of fees for activities administered by the Media Bureau.  No additional details are currently available, but most broadcasters already pay their fees by credit card and electronic wire transfer.

Zonecasting – the proposal by GeoBroadcast Solutions to allow FM boosters to originate limited amounts of programming different than their primary station – has advanced at the FCC though the release this week of a Notice of Proposed Rulemaking formally asking if the FCC should adopt rules permitting this service and, if so, what those rules should be.  We wrote about the initial proposal earlier this year when it was first received by the FCC.  The proposal would allow an FM broadcaster to use an FM booster to geo-target ads and news to different parts of its service area by putting this different information (up to 5% of a station’s hourly programming) on a booster.  So, for instance, a station could be running an ad for a car dealer in one part of its market on its main station and originate an ad for a different local dealer in another part of the market by originating that programming on a booster – with both ads running at the same time.  This week’s NPRM asks numerous questions on many aspects of the proposal.

These questions generally center in three very general areas.  First, the FCC asks about the technical issues (would the service cause interference as boosters operate within the primary station’s 1 mv/m service area and operate on the same channel as the primary station – and would this system work with HD radio operations). Second, it asks about the operational issues (questions about how much origination should be allowed, what kinds of programming could be originated, how many different boosters should be allowed for each main station, and how the service would be rolled it out).  Finally, it asks about business and policy questions (including whether this is really a good thing for the industry and its economics).  We will provide a little more color on each of these areas below, but first it is worth mentioning the FCC’s treatment of a comment that was filed when this proposal was first advanced – seeking to expand this proposal to cover translators as well as boosters (see our article here on that proposal). Continue Reading FCC Starts Rulemaking on Possible Adoption of GeoBroadcast Solutions Zonecasting Proposal to Allow FM Boosters to Originate Limited Amounts of Programming

This has obviously been a most unusual year.  So, on this Giving Tuesday (and it is also near my birthday, perhaps contributing to the desire to do something different), I thought that I would depart from our usual coverage of legal and policy issues and talk about something else – broadcasters giving back.  Broadcasters have long been known for their service to their communities, service celebrated in a statement by soon-to-depart Chairman Pai and in a tweet from Commissioner Rosenworcel (a potential replacement for the chairman in a new administration) on commercial radio’s 100th anniversary last month.  And while broadcasters are always giving back to their communities and should be celebrated for that, those of us who make our living in some aspect of the industry should recognize that there are plenty of ways for us to give back as well – both to those in the industry who are not as fortunate as some of the familiar success stories we hear, and to those who need assistance in obtaining education and training to enter the media industry we so appreciate.

During this year, those of us who have remained healthy and employed are truly blessed. While it may be a cliché, you don’t realize what you have until it is gone. We should all be thankful for jobs, friends and good fortune, and I urge readers who can to give back where possible.  In the broadcast industry itself, there are many groups doing good work. One in particular that I think bears mention is the Broadcasters Foundation of America, which provides relief to broadcasters and former broadcasters who have, for one reason or another, fallen on hard times – whether that be for health reasons or because of some other disaster that has affected their lives. The Foundation deserves your consideration. More about the Foundation and its service, and ways to contribute, can be found at their website, here. Continue Reading Broadcasters and Giving Tuesday

December is a busy month for broadcasters with routine filings to complete and action on FCC proceedings that will carry over to the next administration.  Keep on top of these dates and deadlines even as your calendar fills up with holiday celebrations.

We start at the beginning of the month, with December 1 being the deadline for the filing of applications for the renewal of license of radio stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota, and TV stations in Alabama and Georgia.  These stations should have already reviewed their public file (as we noted here, stations should pay particularly close attention to their political files) and be putting the finishing touches on their renewal application (see our article about license renewal preparation here). Continue Reading December Regulatory Dates for Broadcasters: License Renewals, EEO Filings, DTV Ancillary/Supplementary Fees, Comment Deadlines and More

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC is seeking comment on proposed sponsorship identification requirements for broadcast programming that is paid for, or provided by, foreign governments or their representatives. The proposed rules set out specific disclosure obligations to inform audiences of a foreign government’s influence over the programming to which they are listening or viewing.  Comments are due by December 24, 2020 and reply comments are due by January 25, 2021.  (Federal Register)
  • Parties have until December 24, 2020 to weigh in on a proposal by the NAB to clarify who is legally responsible for the programming on a subchannel of one TV station when that programming is a simulcast of another station’s programming. This would include when that subchannel is acting as the required ATSC 1.0 “lighthouse” signal for the primary video stream of a station that has converted to ATSC 3.0 (Next Gen TV) operations.  The NAB suggests that the originating station, rather than the host station, should be liable for public service, political broadcasting, public file and other legal obligations that arise from that programming.  Reply comments are due by January 25, 2021.  We wrote about this proposal in more detail, here. (FCC Public Notice)
  • A Baltimore television station is looking at a $20,000 proposed fine from the FCC for violations of the limits on commercials in children’s programming. The station, in its license renewal application, disclosed it aired a commercial for the “Hot Wheels Super Ultimate Garage” eleven times during the “Team Hot Wheels” children’s program.  FCC policies treat the entire program as a commercial when ads featuring characters from the program are aired during the program, deeming it a “program-length commercial.”  Thus, the station will be deemed to have far exceeded the limits on commercial time in children’s programs.  The Video Division noted “that, in the context of the cognitive abilities of young children, airing a commercial for a ‘Hot Wheels Super Ultimate Garage’ play set during the ‘Team Hot Wheels’ program presents the clear risk for confusion between ‘program content’ and ‘commercial matter’ that the commercial limits rule was designed to avoid.”  See our blog post for more details.  (WUTB(TV) Notice of Apparent Liability)
  • The oral argument date in the FCC v. Prometheus Radio Project was set for January 19, 2021. This case is the Supreme Court’s review of the 2019 decision by the Third Circuit Court of Appeals which overtured the FCC’s 2017 change in the broadcast ownership rules (including the abolition of the broadcast-newspaper cross-ownership rules and the rule requiring eight independent operators before common ownership or joint programming of two TV stations in a market is permitted).  See our post, here, about the case.
  • The FCC denied an Application for Review refusing to overturn a decision by its Media Bureau dismissing an application for a new FM translator filed by a Los Angeles area AM station. The dismissal occurred before the FCC’s new translator interference rules were adopted, and this week’s decision rejected arguments that the dismissal request should have been put on hold until those rules were adopted and took effect.  This case discusses the difference in the old and new standards (and the differences in processing objections to applications that are predicted to cause interference versus objections to actual interference that arise after a translator begins operations) and shows that the FCC will not revisit cases decided under the old translator interference rules, even if the new rules would have led to a different decision. (KGBN Translator Opinion and Order)

Looking ahead to next week, new rules for audio-described programming, adopted in October, are set to be published in the Federal Register on Monday, which will start the clock on the rules taking effect.  If the publication happens as planned, then the new rules will become effective on December 30.  TV stations in DMAs 61-70 that are required to provide audio-described programming should be ready to begin complying on January 1, 2021.  We took a closer look at this proceeding, here.