A decision released by the FCC’s Media Bureau staff this week makes clear that the permittee of a noncommercial station, who was awarded the permit based on a 307(b) preference, cannot change transmitter sites so as to abandon service to the area that it promised to cover in order to get the preference –
The Senate has reportedly once again approved the extension of the digital television transition date from February 17 to June 12 (see Press Release from Senator Kay Bailey Hutchison here). This approval was necessary as the bill being considered by the House of Representatives is slightly different than the one passed by the Senate on Monday. Now – it’s back to the House, which failed yesterday to pass that bill by a 2/3 vote (see our post here). Under the expedited process that was being used, the failure to get a 2/3 vote meant that the legislation did not pass. The legislation now must got through the normal consideration process in the House, being first approved by committee, then voted on by the full House – with only a majority needed to approve the measure. The House is going to be out of session tomorrow through Monday, so the committee that now needs to consider the bill could review it next Tuesday, and then it could be voted on by the full House on Wednesday. So if all goes as planned, there could be an extension approved next week. If the House process somehow gets held up, the President and the FCC cannot act on any extension without action by Congress, as the February 17 date is written into law and can only be changed by a new law. Given that the transition is only 3 weeks away, and the extension of the transition is still not a certainty, what is a television station to do?
Initially, stations should proceed as if the February 17th deadline will stick as, for now, it is the law. So keep running all the required crawls, snipes and tickers promoting the upcoming termination of analog television. If an extension is passed, these announcements will only have caused more people to get ready for a transition that will occur sooner or later. But the extension will also allow stations to opt to transition before the new June deadline, and cease their analog operations early. How do these stations proceed?
Last week, the FCC issued several fines to noncommercial broadcasters who had underwriting announcements that sounded too commercial. In these decisions, the Commission found that the stations had broadcast promotional announcements for commercial businesses – and those announcements did not conform to the FCC’s rules requiring that announcements acknowledging contributions to noncommercial stations cannot contain qualitative claims about the sponsor, nor can they contain "calls to action" suggesting that listeners patronize the sponsor. These cases also raised an interesting issue in that the promotional announcements that exceeded FCC limits were not in programming produced by the station, but instead in programs produced by outside parties who received the compensation that led to the announcement. The FCC found that there was liability for the spots that were too promotional even though the station itself had received no compensation for the airing of that spot.
The rules for underwriting announcements on noncommercial stations (including Low Power FM stations) limit these announcements to ones that identify sponsors, but do not overtly promote their businesses. Underwriting announcements can identify the sponsor, say what the business of the sponsor is, and give a location (seemingly including a website address). But the announcements cannot do anything that would specifically encourage patronage of the sponsor’s business. They cannot contain a "call to action" (e.g. they cannot say "visit Joe’s hardware on Main Street" or "Call Mary’s Insurance Company today"). They cannot contain any qualitative statements about the sponsors products or services (e.g. they cannot say "delicious food", "the best service", or "a friendly and knowledgeable staff" ). The underwriting announcements cannot contain price information about products sold by a sponsor. In one of the cases decided this week, the Commission also stated that the announcements cannot be too long, as that in and of itself makes the spot seem overly promotional and was more than was necessary to identify the sponsor and the business that the sponsor was in. The spot that was criticized was approximately 60 seconds in length.