The FCC recently revised its TV “white spaces” rules to facilitate the use of unlicensed communications devices on spectrum originally allocated exclusively for broadcast television. Although there is still a long way to go before new unlicensed devices are deployed in this spectrum, the recent revision of the rules has triggered an important deadline. As
Digital Television
FCC to Take a Fresh Look at Retransmission Consent Rules Governing Carriage of Broadcast Television Stations
By Brendan Holland on
Among the many items adopted by the Commission at last week’s open meeting was a Notice of Proposed Rule Making (NPRM) regarding retransmission consent agreements and the carriage of broadcast television stations by cable and satellite providers. Retransmission consent has been a hot topic of late both in Washington and in the national press. During the past year, a few carriage negotiations between broadcast television stations and cable or satellite operators have resulted in interruptions – or threats of interruptions – in the carriage of local stations. As a result, both Congress and the public have paid increasing attention to retransmission consent negotiations, and the Commission’s NPRM is a effort to review some aspects of its rules governing the relationship between local broadcast stations and the cable and satellite providers that retransmit their signals. A copy of the NPRM is available here.
The NPRM is the outgrowth of a petition for rule making filed in March 2010 by cable and satellite providers, along with several public interest groups. These groups jointly petitioned the FCC seeking significant changes to the current retransmission consent process. Perhaps the most notably aspect of last week’s NPRM is not the changes the FCC proposes, but rather the changes it refrains from pursuing. The Commission states in the NPRM that it does not believe that it has the authority to adopt either interim carriage mechanisms – to require the continued carriage of a station without a station owner’s consent while negotiations continue – or mandatory binding dispute resolution procedures for retransmission consent negotiations, both of which were proposed by the cable and satellite providers in their petition for rule making. In both cases, the Commission found that it lacked the statutory authority to pursue the rule changes proposed by the petitioners.
While it proposes to refrain from action on those two elements of the petition for rule making, the Commission does propose to review several aspects of its rules in an effort to, in its words, "protect the public from, and decrease the frequency of, retransmission consent negotiation impasses within our existing statutory authority." To that end, the NPRM seeks input on strengthening the good faith negotiation rules, including whether it would be per se violation of the good faith negotiation rules for a station to give a network with which it is affiliated the right to negotiate for carriage, or for a station to grant another station or station group the right to negotiate for carriage, such as when a station is party to a local marketing agreement (LMA) or joint sales agreement (JSA). In addition, the NPRM proposes changes to the notice requirements of its carriage rules to require advance notice to consumers if there is the possibility that a station will be dropped from a providers’ programming line up. This advance notice would allow consumers to make alternative plans if negotiations ultimately fail and a station’s signal is deleted from the lineup.Continue Reading FCC to Take a Fresh Look at Retransmission Consent Rules Governing Carriage of Broadcast Television Stations
FCC Initiates Rule Making to Reinstate Video Description Regulations for Television Programming
Yesterday, the FCC initiated a rule making proceeding to reinstate its prior video description rules with certain modifications, as required by the Twenty-First Century Communications and Video Accessibility Act of 2010 (Act). The proposed rules would require large market broadcast affiliates of the top four national networks and most cable operators and DBS providers to provide programming with audio narrated descriptions of a television program’s key visual elements beginning as soon as first quarter 2012. Davis Wright Tremaine previously summarized the Act in our earlier advisory available here.
The Notice of Proposed Rule Making (NPRM) takes the first step toward restoring the video description regulations that the FCC previously adopted in 2000, but which were subsequently vacated by the U.S. Court of Appeals for the D.C. Circuit. Now with explicit Congressional authorization, the FCC seeks to restore the video description rules by Oct. 8, 2011, as required by the Act. The FCC proposes a quick implementation, with the video description and pass-through rules beginning Jan. 1, 2012. The most significant elements of the reinstated video description rules are:
- Broadcast affiliates of the top four national networks—ABC, CBS, Fox, and NBC—located in the top 25 television markets must provide 50 hours per calendar quarter of prime time and/or children’s programming with video descriptions.
- The top five national nonbroadcast networks must provide 50 hours per calendar quarter of prime time and/or children’s programming with video descriptions. The proposed rule would be applied to multichannel video programming distributors (MVPDs), including cable operators and DBS providers with 50,000 or more subscribers, and presumably then be applied to the top five networks through affiliation agreements.
- “Live” and “near live” programming is exempt from the rules.
- In order to count toward the requirement, the programming must not have been aired previously with video descriptions, on that particular broadcast station or MVPD channel, more than once.
- All broadcast stations, regardless of market size or affiliation, and all MVPDs, regardless of the number of subscribers they serve, must “pass through” video description when such descriptions are provided and when the station or program distributor has the technical capability to do so.
In addition to proposing to reinstate the rules previously adopted by the FCC, the item asks many practical implementation questions about refreshing market rankings, applicability of the rules to low power television, and what constitutes the “technical capability” to pass through video descriptions. In particular, the FCC seeks to refresh the list of the top 25 DMAs, as well as update the top five national nonbroadcast networks subject to the rule. In determining the top five nonbroadcast networks, the FCC proposes to exclude from the top five any nonbroadcast network that does not provide, on average, at least 50 hours per quarter of prime time non-exempt programming, i.e., programming that is not live or near-live. The NPRM specifically seeks comment from any network that believes it should be excluded from the top five covered networks because it does not offer enough pre-recorded prime time or children’s programming.Continue Reading FCC Initiates Rule Making to Reinstate Video Description Regulations for Television Programming
Federal Court Says No To Internet Retransmission; Section 111 Compulsory License Does Not Permit Internet Broadcasting Without Compliance With Federal Regulations
By Brendan Holland on
As our colleague Brian Hurh wrote recently on our sister blog, the www.broadbandlawadvisor.com, a federal district court last week granted a preliminary injunction prohibiting the mere retransmission of broadcast television programs over the Internet, without more. The order is not only important for its confirmation of a 2008 Copyright Office decision rejecting Internet retransmission of video…
FCC Rejects Request by Low Power Television Broadcaster to Test Technology to Enable Broadband Service Over Broadcast Spectrum
Last week the FCC rejected a request by a low power television broadcaster seeking an experimental license to test a technology that would allow broadcast television stations to provide broadband access. The brief decision, available here, was issued by the FCC’s Media Bureau and rejected the request primarily on the grounds that the technology the LPTV broadcaster sought to test is inconsistent with the existing ATSC standard for transmission of digital television signals in the U.S. This decision brought about a rebuke by a Wall Street Journal columnist, suggesting that the FCC was not fully exploring one way to rapidly deploy broadband through existing TV licensees, in fears of foregoing the revenues that would come from an auction of reclaimed television spectrum. This issue arises while the FCC considers the digital conversion of LPTV, and the future of the television spectrum generally.
As has been well known and discussed for at least the last decade, the ATSC standard chosen for digital television broadcast service in the United States is not ideal for mobile service and is not well suited for two-way broadband service. The current ATSC standard was designed to provide a signal to fixed locations for traditional in-home television watching. As we have written before, in 2000, in the early days of the digital television conversion, some broadcasters suggested that the system be changed to accommodate a more robust signal allowing better mobile reception and other services that maximize the capacity of the digital channel. That proposal was rejected for fears of slowing the digital conversion, but is seemingly being revisited now. Continue Reading FCC Rejects Request by Low Power Television Broadcaster to Test Technology to Enable Broadband Service Over Broadcast Spectrum
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
By David Oxenford on
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
FCC Designates Database Adminstrators for TV White Spaces Devices
By David Oxenford on
The Commission today released an Order conditionally designating 9 companies to be database administrators for white spaces devices. As we wrote in our article describing the FCC’s recent decision on reconsideration of its White Spaces order, these administrators will be responsible for maintaining a database of all users of the TV spectrum who must be protected from interference from white spaces devices. Protected entities include TV stations, LPTV stations and TV translators, cable and satellite receive locations, certain wireless microphone users, and the paths between TV stations and translators. Each database must maintain all of this information, so that white spaces devices can determine what channels must be protected in areas in which they are operating.
The conditional nature of the designation reflects the fact that these administrators had requested designation in late 2009, before the recent Order on Reconsideration which adopted the new requirements that all white spaces devices must communicate with these administrators instead of relying on any sort of spectrum sensing. Thus, the FCC is requiring the proposed administrators to update their filings to reflect that they can meet the new requirements for the maintaining the database. One of these new requirements is one of security – so that it can be ensured that the users will have an accurate data base from which to operate, without fear of tampering or other abuses. The FCC will also require that each administrator attend an education session conducted by the FCC, and to go through a rigorous testing period – with tests conducted by the FCC to make sure that the administrator’s service will actually provide the necessary information to protect incumbent TV spectrum users from interference from white spaces devices.Continue Reading FCC Designates Database Adminstrators for TV White Spaces Devices
FCC Adopts Notice of Proposed Rulemaking Looking to Reallocate Some TV Spectrum to Wireless Broadband
By David Oxenford on
The FCC today started an examination of the future of the spectrum currently used by broadcast television, beginning the formal process of implementing the ideas raised in its Broadband Plan of repurposing some of that spectrum for use by wireless broadband technologies. Specifically, the FCC adopted a Notice of Proposed Rulemaking, seeking comment on a number of issues. While the full text of the FCC’s order has not been released, many of the issues for consideration can be gleaned from the comments made at the FCC meeting. In the initial presentation made about the NPRM, it was stated that the principal issues to be addressed in the NPRM were:
- Allowing new primary allocations in the television spectrum for fixed and mobile wireless users.
- Providing a framework that would allow two or more broadcast television stations to share a single 6 MHz channel, retaining full must-carry rights for each station, while allowing for the return of spectrum to the FCC to be auctioned for wireless uses
- Looking at ways to increase the value of VHF television channels (channels 2 through 13) for DTV use, including proposals to allow stations operating on such channels to operate at higher power and to increase performance standards for indoor antennas
Co-primary uses could be important for many TV users, as currently LPTV and TV translator stations are secondary services, implying that such services might be preempted by new primary wireless users. The enhancement of the VHF spectrum would be important to any attempt to dedicate significant spectrum to wireless broadband without substantial disruption to over-the-air television, as without the use of those channels (which are underutilized, particularly in urban markets, as they have proved to be very susceptible to interference and do not provide as broad coverage as VHF analog service did), the ability to repack the TV spectrum to clear portions of the spectrum for wireless would be very restricted in the major metropolitan areas where any spectrum crunch is likely to be most acute.
As FCC Chairman Julius Genachowski stated, this was an efficient presentation on an important issue. The explanation of the proposals took far less time than each of the Commissioner’s individual statements, all of which raised important issues that will be addressed in this proceeding. The FCC public notice about this proceeding is available by clicking here. But an examination of each of the Commissioner’s statements (which are available through the links on their names, below) is important to understand the scope of the issues to be addressed by the FCC. Continue Reading FCC Adopts Notice of Proposed Rulemaking Looking to Reallocate Some TV Spectrum to Wireless Broadband
The Future of the Broadcast Media – As the FCC Meeting Next Week Considers What to Do With the TV Spectrum
After Thanksgiving – everyone’s thoughts turn to technology policy. Well, maybe not everyone, but reading Thursday’s New York Times, David Pogue wrote his column celebrating his 10th anniversary in the paper with observations about truths that he has discovered about the technology world. Many of those same truths apply to broadcast policy, and are particularly relevant with a week coming up in which the FCC may take its first steps toward dramatically reshaping the media landscape as it considers the future of the television spectrum, and potentially repurposing some of that spectrum for wireless broadband. Pogue’s first observation was that new technology does not replace old technology – instead it merely provides more choice to the consumer. He points out that TV did not replace radio, and that satellite radio didn’t replace radio either. Instead, these services became complements, perhaps eroding the audience of the established technology in some ways, and perhaps making the older technology redefine its mission, but the older technology survived, and remained relevant. We’ve written similar observations about the future of radio – it’s a technology that reaches masses with no incremental costs for adding new listeners – and is now and, for the foreseeable future will be, the most efficient way to reach large audiences with popular formats.
It is a similar story with other communications media. And we sometimes over-react to short term trends believing that some audience erosion for a particular technology will result in its doom, when in fact it may just result in some form of re-invention. In the last two years, we’ve seen print media go from being left for dead, to being part of one of the most talked about media deals of the last month – the merger between the Daily Beast and Newsweek to bring a print component to a new media darling. Television, too, is not dead yet – it still the most watched source of video programming, whether distributed over the air or through some multichannel video transmission source, with over-the-air programming about to get a new take as mobile DTV begins its roll-out in the coming months. Recently, there has even been the occasional article about consumers "cutting the cord" – relying on over-the-air TV, supplemented by web video content, to drop their cable or satellite connection. As Pogue suggests, all these media will continue to survive and offer choices to consumers. But Pogue does not take into account the potential impact of a fundamental change in regulatory policy that intervenes to disrupt the natural progression of the marketplace.Continue Reading The Future of the Broadcast Media – As the FCC Meeting Next Week Considers What to Do With the TV Spectrum
FCC Releases Multiple Items Implementing Rules for Satellite Television Extension and Localism Act (STELA)
By Brendan Holland on
Posted in Cable Carriage, Digital Television
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)