After a series of FCC meetings where the only mention of broadcasters was in connection with taking TV spectrum for wireless broadband, the tentative agenda for the next FCC meeting, to be held on March 3, 2011, is full of broadcast issues – issues that could have broadcasters wishing that they were ignored once more.  The biggest issue is the initiation of a proceeding to re-examine the retransmission consent process by which television broadcasters negotiate with cable and satellite companies for payment for the carriage of their signals.  But also on the agenda are proceedings to look at rural radio services and whether the Commission should limit the ability of broadcasters to move stations from rural to urban areas, and the initiation of a proceeding to require that television programmers provide audio descriptions of the action taking place on the video portion of their programs to aid those who are visually impaired.

The retransmission consent proceeding is one which arises after several well-publicized cases where television stations and multichannel video program distributors (like cable and satellite television providers) have had disputes about the amount to be paid to the television broadcaster for the carriage of their signal by the MVPD.  In a few cases, this has resulted in the television station being pulled from the MVPD for some period of time until the dispute can be resolved.  Some MVPDs have argued that there should be more oversight over the process by which television stations can force the MVPD to pull the station’s signal until the retransmission negotiation is completed.  MVPDs argue that viewers, who can get the signal over the air as it is made available by the TV station for free, should not be held hostage to the negotiations and should not suffer when the station is pulled from the MVPD to further the TV station’s negotiation posture.  Broadcasters, on the other hand, argue that the system is working, that the number of stations who have been pulled from an MVPD is few, and that the MVPD should pay for the valuable television signal, just as it pays for other programming that it carries from cable networks.  The FCC is expected to ask whether some reform of the process, and perhaps some government oversight or mandatory mediation, should be required.


Continue Reading Next FCC Meeting Full of Issues for Broadcasters – Retransmission Consent, Moving Rural Radio Stations Toward Urban Areas, and TV Video Description

The FCC’s auction of new VHF TV channels in New Jersey and Delaware (about which we have written many times including here) has resulted in only three qualified bidders.  Despite this lack of interest in these VHF channels, the FCC seems to be looking at VHF as a way to facilitate its announced plans for the clearing of significant portions of the television spectrum for wireless broadband use.  The Commission this week set the comment date – March 18, 2011 – on ways to overcome the issues that have been posed to TV stations that have remained in VHF channels after the digital transition.  In the same proceeding, the FCC also seeks comments on allowing TV stations to share the same 6 MHz channel, with both stations retaining their cable and satellite must-carry rights.  That same proceeding implies that we may well have seen the last new over-the-air television stations.  This crucial proceeding on the future of the television band requires careful attention by all parties who may be affected by the many proposals contained in this relatively compact Notice of Proposed Rulemaking. 

The first part of the FCC’s proposal (about which we previously wrote here), is to look at ways to get some of the television stations to give up their current channel to allow the FCC to use it for broadband, and having that station share another station’s channel to continue to provide its program service on what is the equivalent of a digital subchannel.  The proposal to encourage multiple TV stations to share the same 6 MHz channel raises many issues.  First, the FCC recognizes that the proposal may result in some television stations giving up their ability to broadcast in High Definition (one of the principal reasons for the initial transition to digital), but suggests that stations sharing the same channel could work out "dynamic arrangements" to allow sharing the spectrum flexibly, increasing the portion digital bandwidth allocated to one station when it has programming that would benefit from higher definition, while switching some of the bandwidth allocation to the other station at other times. 

While the Commission assumes that each station will continue to exist as an independent station even when sharing a channel with another station, many of its questions in this proceeding seem to signal uncertainty about this conclusion.  Issues on which the Commission seeks comment include:

  • What effect will channel sharing have on the deployment of HD programming and mobile television?  The Commission does not ask about 3-D television, which some broadcasters have begun to experiment with, and might be worth a comment if there are those who expect that to be part of the television future that could be affected by channel sharing arrangements.
  • In channel sharing, would each station be able to maintain a Standard Definition signal at all times?
  • The Commission assumes that each station sharing a single channel (and thus a single transmission facility) would retain a separate license, and be individually responsible for FCC-rule compliance (e.g. EAS, indecency, children’s television, political broadcasting, etc).  How would responsibility over the technical compliance be apportioned?
  • Should commercial and non-commercial stations be allowed to share the same channel?  Could commercial stations share channels that have, to this point, been reserved for noncommercial educational uses?
  • Will there be a loss in service to the public from such combinations?  Will there be television "white" and "gray" areas created, i.e. areas where there will be no over-the-air television service or only a single service?
  • Should cable and satellite service be included when evaluating questions of loss of service?
  • What impact should channel sharing have on other FCC rules, like the media ownership rules?

Perhaps the biggest issue with channel sharing is the cable and satellite carriage issue, which raised a number of issues for the Commission.  The issues, summarized below, also demonstrate the Commission’s tentativeness in its conclusion that two stations sharing the same channel are really independent stations.


Continue Reading While Few Vie for New VHF TV Stations in NJ and Delaware, FCC Sets Comment Date on Improving VHF Digital Reception and TV Channel Sharing With Must Carry Rights As Ways to Help Clear TV Band for Broadband Users

Yesterday, the FCC released four different items to implement the changes enacted by Congress in the Satellite Television Extension and Localism Act, better known as STELA. With one item addressing significantly viewed out-of-market stations, two items regarding signal prediction and measurements for the reception of DTV signals, and a Public Notice requesting comments and data for a report to Congress, the FCC has wrapped up several open issues regarding STELA. As we have written about previously, here and here (among others), in addition to extending the blanket copyright license allowing satellite television providers to deliver distant signals to "unserved" viewers unable to receive a signal from their local network affiliate, STELA raised a few additional issues that the FCC needed to address through various rule makings.  With yesterday’s flurry of activity, the FCC has now addressed those issues.

With the first item, the Commission modified the significantly viewed rules that allow for the importation of distant signals in certain circumstances.  The item clarifies that a satellite subscriber need only receive the local-into-local package as a precondition for that subscriber to receive a significantly viewed station, they don’t have to receive the specific local (i.e., in-market) affiliate of the same network as a precondition to receive a distant station affiliated with the same network.  The item further clarifies that STELA no longer requires that equivalent bandwidth be dedicated to in-market and significantly viewed stations, so much as there is an HD format requirement.  Accordingly, subscribers can only receive a significantly viewed HD signal, the satellite carrier must carry the HD signal of the local station affiliated with the same network.  In reaching its decision, the Commission was cognizant of the tension between the protection of localism and Congress’s intention of achieving closer parity between the rules for satellite TV providers and cable TV providers, and it worked to reach a balance between those two sometimes competing goals.  A copy of the Order is available here.


Continue Reading FCC Releases Multiple Items Implementing Rules for Satellite Television Extension and Localism Act (STELA)

The FCC’s Media Bureau today asked for public comment on the Petition recently filed by a number of multichannel video providers – including seven large cable companies, both DBS companies, and Verizon – along with the American Cable Association and several public interest and trade organizations. The Petition seeks changes in the rules governing the retransmission consent process, including potentially requiring arbitration of disputes and limiting the ability of television stations to withhold their signals while the retransmission consent negotiation process is proceeding. Comments in this proceeding are due on April 19 and replies on May 4.

This Petition was prompted in part by several recent high profile retransmission consent negotiations, where television stations threatened to pull their signals from cable systems if their requests for compensation were not met. While television companies argue that being able to pull their signals is a necessary bargaining chip in the negotiation process, petitioners submit that the changed video marketplace makes this option unreasonable, as it can harm both the video provider and the local viewers who are deprived of the station’s signal while negotiations are ongoing.


Continue Reading FCC Asks for Comments on Petition Seeking Reform of Retransmission Consent Process

Only a day after asking over-the-air television broadcasters to justify their existence and why some or all of their spectrum should not be reclaimed by the FCC to be used for wireless broadband (and giving interested parties only until December 21 to not only justify their existence, but also to come up with technical means by which the spectrum could be more efficiently used, business plans for their future use of the spectrum, and a survey of the competing needs for that spectrum – see more detail below), the FCC issued another request for comments, asking how current video devices could be made more accommodating to Internet video.  These comments, also due on December 21, seemingly bring consumer electronics manufacturers and multi-channel video providers into the FCC’s rapidly-expanding evaluation of the video industry and its future.  As the comments filed in connection with these two requests will no doubt lead to proposals to be included in the FCC’s February report to Congress on strategies for broadband deployment, these quickly prepared filings could help determine the future of the video industry for the foreseeable future.

The new proceeding, looking for a "plug and play" model of consumer video devices that can access conventional television delivery systems and the Internet, starts with the statement that Internet video is "tremendously popular" and a prediction that, as it expands, new applications for such video will be found.  The Commission says that it sees Internet video as one way of spurring broadband adoption.  How to best promote the plug and play model for consumer video devices that can access the Internet is the crux of the comments that the FCC seeks.  The Commission first asks whether there are currently video devices that allow televisions to view not only the programming provided by multichannel video providers (e.g. cable and satellite), but also Internet video that may be available through an Internet service provided by that same MVPD, stating that it was not aware of such devices.  Next, the Commission asks what would be necessary to develop such devices, and what rules the Commission could adopt to possibly require capabilities in set top boxes and other devices to provide this universal access to video programming of all sorts.  The third area of inquiry from the Commission asks about standards that could be adopted to make Internet video and video from other sources interact with all other home audio and video equipment, including DVRs, to bring about the "digital living room."  And finally the Commission asks what stands in the way of plug and play devices that will work with all networks by which video is delivered.


Continue Reading In Less Than 3 Weeks, Let’s Provide Detailed Analysis on Fundamentally Changing the Television Industry – Comments Sought on Encouraging Internet Video in Addition to Repurposing TV Spectrum

An article from TV NewsCheck last week reported on an approach by an FCC representative to television operators, floating an idea that the FCC would "buy" TV spectrum from existing television station operators, and repurpose that spectrum for wireless users – presumably some sort of wireless broadband.  The funds to buy the spectrum would come from the auction of the frequencies.  Over-the-air TV viewers would perhaps be left with a limited over-the-air service.  Today, another article cites a study filed at the Commission that suggests that the auction of TV spectrum could bring in more than three times the value of what that spectrum is for broadcasting.  Could these developments grow into a ground swell that could signal the end of over-the-air television?  Nicholas Negroponte made the much quoted observation almost 15 years ago, before the Internet was the multi-media service that it is today – that communications devices that were wired will become unwired, and those that were wireless would become wired – the "Negroponte Switch" or the process of "unwiring."  But is this switch inevitable for television, and is it in the industry’s best interest?

The theory of unwiring looked at the growing demands of wireless data networks for more and more bandwidth. While voice and data services were, at one time, wired services (the plain old telephone, the fax, even the telegraph), more and more of that information is now being digitally packaged and delivered wirelessly.  At the same time, video programming was delivered through wireless over-the-air television (though no one ever referred to it as "wireless"), but each year is more and more delivered by wired means (by cable companies and what used to be telephone companies).  At this point, estimates are that only a bit more than 10% of television households get their television programming exclusively from over-the-air reception.  Looking at this transition, some have theorized that the progression would continue, and the broadcast services would end up being delivered to fixed locations by wire, while the data services would be delivered wirelessly.


Continue Reading Could Calls on the FCC for More Spectrum Lead to the End of Over The Air TV?

Come the New Year, we all engage in speculation about what’s ahead in our chosen fields, so it’s time for us to look into our crystal ball to try to discern what Washington may have in store for broadcasters in 2009. With each new year, a new set of regulatory issues face the broadcaster from the powers-that-be in Washington. But this year, with a new Presidential administration, new chairs of the Congressional committees that regulate broadcasters, and with a new FCC on the way, the potential regulatory challenges may cause the broadcaster to look at the new year with more trepidation than usual. In a year when the digital television transition finally becomes a reality, and with a troubled economy and no election or Olympic dollars to ease the downturn, who wants to deal with new regulatory obstacles? Yet, there are potential changes that could affect virtually all phases of the broadcast operations for both radio and television stations – technical, programming, sales, and even the use of music – all of which may have a direct impact on a station’s bottom line that can’t be ignored. 

With the digital conversion, one would think that television broadcasters have all the technical issues that they need for 2009. But the FCC’s recent adoption of its “White Spaces” order, authorizing the operation of unlicensed wireless devices on the TV channels, insures that there will be other issues to watch. The White Spaces decision will likely be appealed. While the appeal is going on, the FCC will have to work on the details of the order’s implementation, including approving operators of the database that is supposed to list all the stations that the new wireless devices will have to protect, as well as “type accepting” the devices themselves, essentially certifying that the devices can do what their backers claim – knowing where they are through the use of geolocation technology, “sniffing” out signals to protect, and communicating with the database to avoid interference with local television, land mobile radio, and wireless microphone signals.


Continue Reading Gazing Into the Crystal Ball – The Outlook for Broadcast Regulation in 2009

This week, an interesting concept has been advanced in a series of applications filed with the FCC.  Ion Media Networks, the successor to Paxson Television, has proposed to transfer some of its broadcast stations to a new company, Urban Television LLP, to be owned 51% by Robert Johnson, the former owner of BET, and 49% by Ion itself.  But, when we say that they are transferring "some" of its stations, we don’t mean that any of its stations are being transferred, but instead only that a piece of its stations are proposed to be transferred.  Ion proposes to continue to own and operate stations in every market where it currently operates, but proposes to sell digital multicast channels to Johnson. Unlike any LMA or other programming agreement, the proposal is to actually take one 6 MHz television channel and break it up so that Ion continues to program one channel with its programming and the Urban Television will program the other channel with its programming, and become the actual license of that portion of the spectrum.  The FCC has accepted the applications and issued a Public Notice, giving parties 30 days to file comments on the proposal. 

It is not unheard of for two licensees to share the same channel – though where it is currently occurs most frequently is in connection with noncommercial broadcasters who share a single radio or TV channel, they divide it by time, so that one licensee operates, say midnight to noon and the other operates from noon to midnight.  Obviously, in these shared-time arrangements, both broadcasters are not operating on the same channel at the same time.  This new proposal, though, does not come out of the blue.  The idea of allowing a broadcaster to sell a digital channel to a different company, has been proposed before, for both Digital Television and Digital HD Radio channels when the original station is multicasting, as a way to increase diversity of ownership.


Continue Reading Splitting a Television Station License – Ion and Robert Johnson Propose a Unique Concept for Increaing Media Ownership

The Commission this week released an Order exempting certain small cable systems from the requirement that, after the February 2009 digital transition, for a three year period, cable systems carry both an analog version of a broadcast television station’s signal plus the station’s high definition signal.  This dual carriage requirement was imposed so that the

The FCC today issued an order extending the comment deadline in its Broadcast Diversity proceeding, extending the comment date a full month until July 30, with Reply Comments now due on August 29.  This important proceeding, about which we wrote here, will address many issues, including proposals to, among other things, repurpose television