Yesterday was a busy day for the TV incentive auction, where the FCC is attempting to clear portions of the TV band by paying TV stations to surrender their licenses, and repurpose the cleared spectrum for wireless broadband users. As we wrote earlier this week, Stage 3 of the Forward Auction started yesterday, where wireless companies would have had to come up with over $42 billion dollars to meet the costs of clearing the TV band. The Forward Auction closed after one round of bidding with bids totaling $19,676,240,520. Thus, we are on to Stage 4, with the FCC expected to attempt to clear 84 MHz of TV spectrum instead of the 108 MHz target in the just concluded Stage 3. The Reverse Auction in Stage 4 is expected to commence on Tuesday, December 13, but look for confirmation later this week.

At the same time, there are two other bits of auction related news – both dealing with stations eligible for the auction. In the first, the US Court of Appeals rejected the appeal of Walker Broadcasting Company, a company that had an authorization for a new TV station, but had not finished construction and licensing of that station in time for inclusion in the auction. Had it been included in the auction, the company could have attempted to sell its license in the auction and, if its station was not one purchased in the auction for surrender, the FCC would have had to find a new channel on which the station could operate after the auction. Instead, the Court upheld the FCC’s ruling that the station had not met the required construction deadlines, and therefore did not qualify to be included in the auction or for post-auction protection.
Continue Reading Incentive Auction News: Stage 3 Forward Auction Closes After One Round, Stage 4 to Commence Next Week; GAO Issues Report on Effects on LPTV; Court Dismisses Appeal of TV Station Exclusion from Auction

In at least 7 decisions released last week, the FCC fined TV stations between $3000 and $18,000 for failure to timely file Form 398 Children’s Television Reports – reporting on the programming broadcast by the stations to address the educational and informational needs of children. In these cases, the fines were not for failing to file the reports at all, but instead for the failure to timely file the reports. All but one of the cases involved Class A television stations, which, as we’ve written before, are being subject to very strict scrutiny as the FCC looks to find some willing to give up their protected status before the upcoming incentive auctions (Class A stations being protected from being bumped off the air by new users – but subject to all the rules applicable to full power stations). In each of the cases involving Class A stations, the FCC has offered to forget the fines for noncompliance, if the station gives up its Class A status and becomes an LPTV station, which has no protections.  If the station gives up its protected status, it will have no rights to receive compensation if it gives up its channel in the incentive auction, or if it is forced to change channels in the repacking of TV channels after that auction. 

These cases all stem from the FCC review of the license renewal of the station. With the obligation to file a Form 398 only two weeks away – the quarterly report being due on July 10 – TV stations, especially stations that have not yet filed their renewals, need to pay attention now to make sure that they don’t miss the upcoming deadline.  With public files now online, the FCC late-filing becomes more visible, and with the television renewal cycle in full swing, many TV stations are either now or soon to be under the scrutiny of the FCC. So meeting these obligations becomes important – as the failures can be costly. And, as set forth below, any time that there are multiple late filings – late by more than 10 days (which the FCC note that it might excuse as de minimis) – a fine is likely.


Continue Reading FCC Fines of Up to $18,000 Proposed for 7 TV Stations For Failure To Timely File Children’s Television Reports – The Big Renewal Issue for TV Stations?

The FCC has announced that the obligation for television broadcast stations to post their public inspection files online will become effective August 2, 2012, absent a stay requested by the National Association of Broadcasters (NAB), which has appealed the rule to the US Court of Appeals for the DC Circuit.

Absent a stay, the rule requires full power and Class A television stations to post any NEW public file documents online at an FCC-hosted website as of August 2nd.  Those broadcasters will have six months or until February 2, 2013 to post PRE-EXISTING public file documents online. 

The political public file, which is the subject of the NAB appeal, will be treated a bit differently.  NEW political public file documents must be posted effective August 2 by only the top four network affiliated stations (ABC, CBS, NBC and Fox) in the top 50 markets. There is no requirement to post pre-existing political file documents online.

All other TV stations (i.e. non-network affiliated stations in the top 50 markets and ALL TV stations outside of the top 50 markets), do not have to post political public file documents online until July 1, 2014.


Continue Reading Online Public File Requirement for TV Broadcasters Effective August 2, 2012

While the FCC has not yet started a proceeding to set rules for the auction of television spectrum for broadband purposes, the Commission is taking steps to clear the spectrum in other ways.  Two weeks ago, we wrote about the FCC’s actions proposing to remove the Class A designation from certain LPTV stations that had

The FCC has released 16 Show Cause Orders threatening to deprive a number of low power television (LPTV) stations of their Class A status for failure to file Children’s Television Programming Reports.  These orders appear to be implementing a long-rumored get-tough policy on Class A TV stations, as the FCC prepares to clear portions of the TV spectrum to auction it for use by wireless broadband providers, in accordance with the authorizing legislation we wrote about last week. Class A stations are protected from interference like full power TV stations, while other LPTV licensees can be displaced from their current channels by new primary users – potentially including future wireless broadband auction winners. Therefore, if these Class A stations are downgraded to LPTV status, the FCC could displace them as needed for spectrum auctions.  If they retain their Class A status, they are protected like full-power TV stations, and the FCC must attempt to replicate their coverage in any repacking of the spectrum that may occur.

These 16 Show Cause Orders all have essentially the same set of facts as this one.  Specifically, all of the stations failed to file multiple Children’s Television Programming Reports and failed to respond to FCC letters cautioning the stations that failure to file these reports could result in loss of Class A status.  As the FCC notes in all of the Show Cause Orders, Class A licensees are required to comply with many full power TV requirements, including the need to maintain a main studio and a public inspection file, to comply with children’s programming requirements, political programming requirements, station identification requirements and Emergency Alert System rules. Failure to comply with any of these requirements could result in loss of Class A status.


Continue Reading Failure to File Children’s Programming Reports Could Cause Loss of Class A Status for LPTV Stations

Last week, the FCC issued fines to Class A TV stations which seem to have forgotten the requirements for such stations. Class A TV stations were low power television stations on which, early in the decade, Congress decided to confer "protected" status, meaning that they could not be knocked off the air by a new full-power TV station or by a change in the facilities of a full-power station.  LPTV stations, by contrast, are "secondary services," meaning that they can be knocked off the air by changes in primary stations.  Class A stations were given this protection if they could show that they were providing local programming, had a local studio, and otherwise complied with all the operating requirements that a full-power station station has to meet – including a manned main studio, children’s television obligations, EEO reporting, and public file requirements.  Cases released last week remind these stations that they must still meet all requirements for full power stations, as the FCC fined Class A stations for main studio, public file and children’s television violations.

In one case, the FCC fined a station $1000 for violations of the main studio, main studio staffing and public file rules.  The fine was originally set at $24,000 but, as the licensee demonstrated that it had no ability to pay the higher fine, the penalty was reduced to $1000.  The FCC had tried to inspect the station, and was unable to obtain access to the transmitter site.  The Commission staff then tried to find the station’s main studio, and found that no one answered the phone number listed for the station, there did not appear to be anyone at the address on file for the main studio location, and there was of course no access to the public file.  As Commission rules require that stations have main studios in their principal service areas that are manned during normal business hours, and that stations have their public file at this location, the fine was issued.


Continue Reading Class A TV Stations Need to Remember They Are Subject to Full-Power Rules – Fines for Kids TV and Main Studio Violations

In several decisions released on Friday (here, here and here), the FCC fined Class A TV stations for not meeting their obligations under the Children’s Television Rules to notify their viewers about the location of their public file containing information about the educational and informational programming they broadcast directed to children

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

We recently wrote about the Federal Communications Commission’s actions in their Diversity docket, designed to promote new entrants into the ranks of broadcast station owners. In addition to the rules adopted in the proceeding, the FCC is seeking comment on a number of other ideas – some to restrict the definition of the Designated Entities that are eligible to take advantage of these rules, others to expand the universe of media outlets available to potential broadcast owners – including proposals to expand the FM band onto TV channels 5 and 6, and proposals to allow certain AM stations, which were to be returned to the FCC after their owners received construction permits for expanded band stations, to retain those stations or transfer them to Designated Entities. The proposals, on which public comment is being sought, are summarized below.

Definition of Designated Entity. The first issue raised by the Commission deals with whether the class of applicants entitled to Designated Entity status and entitled to take advantage of the Commission’s diversity initiatives should be restricted. One proposal is to restrict the Designated Entity status to companies controlled by racial minorities. The Commission expressed skepticism about that proposal, noting that the courts had throw out several versions of the FCC’s EEO rules, finding that there was insufficient justification offered by the FCC to constitutionally justify raced-based preferences. The Commission asked that proponents of such preferences provide a “compelling” showing of needed, as necessary for a constitutional justification for governmental race-based discrimination.


Continue Reading FCC’s Acts to Increase Diversity in Media Ownership – Part 2, The Proposals for Future Actions – Channel 6 for FM, AM Expanded Band, Definition of Designated Entity, Must Carry for Class A TV and Others