Back in October, the FCC eliminated the requirement that broadcasters file contracts and organizational documents with the Commission. See our post here for more details. That change became effective on January 22, 2019, as noted in an FCC Public Notice released earlier this week. This change was part of the Modernization of Media Regulation initiative, and was another change made possible by the online public file. As documents related to control of a broadcaster (including stock pledges, options and similar documents) and the organizational documents of any company that owns a broadcast licensee either need to be included in the public file, or specified on a list made available in the public file and made available on request within 7 days, the FCC no longer saw any need for those same documents to be submitted to the FCC. One more filing requirement eliminated – but don’t forget to include these documents (or at least a list of them) in the public inspection file.

With the Copyright Royalty Board now in the early stages of the next proceeding to consider webcasting royalties (see our article here) as well as other proceedings including the distribution of cable and satellite television royalties to TV programmers (see these CRB notices), the Chief Judge of the CRB, Suzanne Barnett, announced her retirement earlier this month. The Librarian of Congress has announced that Copyright Royalty Judge Jesse Feder has been elevated to the Chief Judge’s position. That position requires experience in the administration of judicial proceedings – and presumably his experience on the CRB qualified him for the Chief Judge’s position. His old position will be filled, at least temporarily, by Richard Strasser, who currently serves as legal counsel to the CRB and has, in the past, served as an interim Copyright Royalty Judge. This second position on the Board requires someone experienced in copyright legal issues – again something that Mr. Strasser has from his experience at the CRB. His position is temporary, so it is possible that a new Judge could be appointed for this slot at some point in the future. The third position on the Board, which requires someone experienced in economic issues, continues to be held by Judge David R. Strickler. So, for the time being, these three judges will consider the cases pending before the CRB.

We usually think of the FCC as the agency that sets the details of the broadcast disclosure obligations for political candidate’s TV ads. But the Federal Election Commission has its own rules for political advertising that are binding on the candidates, rather than on the stations. But because these ads run on broadcast stations, stations need to pay attention to them to avoid getting caught up in arguments about whether candidate ads are legal, and because the FEC rules often get adopted by the FCC. For these reasons, broadcasters need to pay attention to an entry in today’s Federal Register, where the FEC gives notice of its receipt of a Petition for Rulemaking proposing changes to the textual disclosures made in TV political ads.

Right now, the written disclosures of the sponsor of political ads need to run at 4% of vertical picture height for not less than 4 seconds – the same requirement reflected in both the FEC and FCC rules. The proposal on which the FEC seeks comment suggests that the screen height requirements in the current rules are outdated in the digital television world. According to the Petition, current industry guidelines for a normal disclaimer size is 22 pixels (approximately 2% of the vertical picture height) using HD resolution. Thus, the Petition suggests that 2% be adopted as the standard for political disclosures when shown on high definition digital television transmissions, with the 4% obligation being retained for standard definition broadcasts. After receiving comments, the FEC will decide whether to commence a formal rulemaking proceeding. Comments on this proposal are due on or before Monday, April 15, 2019.

As we wrote here, at the FCC’s December meeting, the FCC was scheduled to adopt an order eliminating the requirement that broadcasters post a physical copy of their licenses and other instruments of authorization at their control points or transmitter sites. In fact, the Commission adopted that order before the meeting, and it today published the order in the Federal Register, meaning that it is effective as of today. This order was adopted as part of the FCC’s Modernization of Media Regulation initiative. As a station’s licenses are now generally available online, the FCC stated that they saw no reason to require that they be posted at station locations not normally accessible to the public. So there is now one less regulatory requirement for broadcasters to worry about.

While the shutdown of the Federal government delayed FCC activities in January, with the government back in business (hopefully for the long term), we have put together a Calendar of Important Dates for Broadcasters for 2019, available here. The calendar highlights normal regulatory dates like those for Annual EEO Public Inspection File Reports, Quarterly Issues Programs Lists, Quarterly Children’s Television Reports, and Biennial Ownership Reports, it also includes dates relevant to the repacking of the TV spectrum and, something that we have not seen in the last 5 years, dates relevant to the radio license renewal cycle that begins this year. We also have the December start dates for the lowest unit rate windows for the Iowa Caucuses and New Hampshire primary. While this is not a comprehensive list of all regulatory dates that a broadcaster can expect, and while there can be some changes in these dates as the year goes on, it does provide a start keeping you on top of your regulatory burdens. Obviously, consult your own counsel for dates that affect your own station.

Commercial television broadcast stations that are affiliated with one of the top four commercial television broadcast networks (ABC, CBS, Fox, and NBC) and are located in the top 60 television markets are required to provide 50 hours per calendar quarter of video-described prime time or children’s programming, and to provide an additional 37.5 hours of video-described programming per calendar quarter at any time between 6 a.m. and midnight. Other network affiliated stations outside the Top 60 markets must pass through any video-described programming provided by their network. Video description provides an explanation of the action in a TV program that is not evident from the dialog, so that those with visual disabilities can understand what is happening in a TV program. Video description was mandated by Congress, and the FCC yesterday issued a Public Notice asking for comment on this requirement for a report to Congress.

Specifically, the FCC is asking parties to comment on the following questions:

  • The types of described video programming that are available to consumers;
  • Consumer use of such programming;
  • The costs to program owners, providers, and distributors of creating such programming;
  • The potential costs to program owners, providers, and distributors in designated market areas outside of the top 60 of creating such programming;
  • The benefits to consumers of such programming;
  • The amount of such programming currently available; and
  • The need for additional described programming in designated market areas outside the top 60

Comments are due by April 1, and reply comments should be filed by May 1.

The FCC yesterday announced that it is setting up a consumer help desk, where operators will be standing by to answer questions about rescanning the TV spectrum to find TV stations that have changed channels due to the repacking of the TV band. Many TV stations will be changing channels due to the repacking of the TV band following the broadcast incentive auction which shrunk the number of channels dedicated to TV broadcasting as part of the TV band was repurposed for wireless communications uses. As the TV stations that were forced to change channels by the repacking make those changes, consumers receiving their TV signals over the air will need to “rescan” the TV band to make sure that their sets find all the local stations on their new channels. The help desk will be available to answer consumer questions 7 days a week, from 8 AM to 1 AM Eastern Time.

Press reports following a speech this week by the head of the Department of Justice’s Antitrust Division have many in the broadcast industry paying attention. In response to a question following a speech at a DC conference by Makan Delrahim, the chief of the DOJ’s Antitrust Division, he is reported to have said that the DOJ will be holding a workshop to assess whether online advertising should be considered in assessing the local television marketplace, and whether the facts should support a change in the Department’s assessment of mergers by considering online advertising as part of the same competitive market as local TV advertising. Why is this important?

In recent years, particularly in its review of combinations such as last year’s proposed Sinclair-Tribune merger, the DOJ has looked only at the marketplace for over-the-air television in assessing a transaction’s likely competitive impact, refusing to look at the competition for viewers and advertisers that now comes from online sources like YouTube, Facebook and the many other digital platforms competing in today’s media marketplace. Were the DOJ to conclude that digital platforms are indeed part of the same market as TV, there is a greater likelihood that transactions previously questioned on antitrust grounds could see a more favorable reception from the DOJ. This could also have an impact on radio ownership – where the FCC is just about to embark on its own review of the local radio ownership rules. Continue Reading DOJ Reportedly to Review Impact of Digital Advertising on Broadcast Merger Review

Yesterday, we published an article talking about an FCC public notice extending all filing deadlines that fell between January 8 and February 7 (except those dealing with auctions and other activities of the FCC unaffected by the government shutdown) to February 8. The article also mentioned that the FCC gave stations that had not been able to upload material into their public inspection files during the shutdown until February 11 to complete the upload of required public file materials – including specifically the Quarterly Issues Programs lists that should have been uploaded by January 10. This led some broadcasters to ask about public file documents that are now due to be uploaded – e.g. EEO Public Inspection File Reports due to be included in the public file by February 1 by stations in certain states (see our article here for a list of the states) – can stations wait until February 11 to upload those documents? Apparently not, we are hearing from the FCC, as the public notice about the February 11 deadline says that it applies only to documents that were to be uploaded to the public file between January 3 and January 28. So documents that are to be uploaded by February 1 would not be among those with the extended deadline. Obviously, consult your own counsel for details on all of these deadlines – but it looks like, if you have a public file deadline tomorrow – February 1 – you should meet that deadline.

Yesterday, we wrote about upcoming deadlines for broadcasters, and noted that the FCC was going to be releasing an order providing further details on the deadlines for pleadings and other documents that were due during the government shutdown.  That Public Notice was released on Tuesday, and further postponed many filing deadlines which fell during the shutdown.  Filings that were due at the very beginning of the shutdown, from January 3-7, will still be due today, January 30, as noted in prior FCC releases.  However, for documents due January 8 and after (in fact, through February 7), the new filing deadline will now be February 8.  There is also a new deadline for updates to the online public file, including the Quarterly Issues Programs lists that were due in station’s public inspection filed by January 10, which will now be due by February 11.  Quarterly Children’s Television reports to be filed at the FCC would presumably be due on the 8th, with other children’s television documents (including information about compliance with advertising limits in children’s programs), which are only placed in the public file, would have the February 11 deadline.  (1/31/2019 – See our update here – documents due to be uploaded to the public file on January 28 or later, after the end of the shutdown, still need to be filed on time, meaning February 1 EEO Public Inspection File Reports should be uploaded on time).  Comments in proceedings such as the FCC’s proceeding on Class A AM stations will be covered by the new February 8 filing deadline.  Responsive pleadings addressing any of the documents extended by this FCC order will also be extended to follow these new revised filing deadlines.

At the same time, the FCC announced that it would move the date of its February meeting up one week – the be held on February 14.  The agenda for that February meeting is here – addressing all the issues that had been teed up for the January meeting.  The January 30 meeting (now scheduled to begin at 12:30 pm ET) will end up being comprised of nothing more than announcements.  For broadcasters, as we wrote yesterday, the FCC will likely abolish the need for filing the FCC Form 397 EEO mid-term report at its February 14 meeting.  The FCC will also vote on a Notice of Proposed Rulemaking looking at the process for issuing new construction permits to noncommercial broadcast stations and LPFMs.  Presumably, the February 14 date was to insure that the meeting would occur before the next potential shutdown, which could occur on February 15 if no budget deal is reached.  So, for now, broadcasters have some more time to file documents that were delayed by this year’s first government shutdown.

Updated; 1/30/2019, 10:10 AM to note the different deadline for public file updates.