With Barack Obama’s historic victory just sinking in, all over Washington (and no doubt elsewhere in the country), the speculation begins as to what the new administration will mean to various sectors of the economy (though, in truth, that speculation has been going on for months).  What will his administration mean for broadcasters?  Will the Obama administration mean more regulation?  Will the fairness doctrine make a return?  What other issues will highlight his agenda?  Or will the administration be a transformational one – looking at issues far beyond traditional regulatory matters to a broader communications policy that will look to make the communications sector one that will help to drive the economy?  Some guesses, and some hopes, follow.

First, it should be emphasized that, in most administrations, the President has very little to do with the shaping of FCC policy beyond his appointment of the Commissioners who run the agency.  As we have seen with the current FCC, the appointment of the FCC Chairman can be the defining moment in establishing a President’s communications policy.  The appointment of Kevin Martin has certainly shaped FCC policy toward broadcasters in a way that would never have been expected in a Republican administration, with regulatory requirements and proposals that one could not have imagined 4 years ago from the Bush White House.  To see issues like localism, program content requirements and LPFM become such a large part of the FCC agenda can be directly attributed to the personality and agenda of the Chairman, rather than to the President.  But, perhaps, an Obama administration will be different.


Continue Reading The Promise of an Obama Administration for Broadcast and Communications Regulation

The Federal Communications Commission voted 3-2 on to issue an order imposing regulatory controls on the Internet. The ruling concerns a network management technique used by Comcast for its high-speed Internet service that had the effect of giving slightly lower priority to some peer-to-peer (P2P) upload sessions so that the latency-sensitive applications of the vast majority of its Internet customers would remain uninterrupted. The Commission ruled that the practice—which Comcast previously announced would be phased out this year—violated the Commission’s “network neutrality” policy guidelines and amounted to discriminatory “blocking” and “monitoring” of Internet content, as well as “interference” with consumers’ “right to access” lawful Internet content. While not fining Comcast, the Commission instead orders Comcast to report on the technique, submit a compliance plan for terminating it by year-end, and describe to the FCC and the public the specifics of what new management techniques will be implemented. Noncompliance, warns the Commission, will be subject to future injunctive relief and additional enforcement actions.   Additional details of the FCC’s announcement, and specific concerns about this ruling, can be found in our firm’s advisory bulletin about this decision.  The Press Release on the FCC action can be found here.

While the full text of this decision is not yet available, the New York Times ran a story summarizing its effects.  The statements of the Commissioners on this decision are also available.  The dissents approach the issues from somewhat different perspectives.  Both express the hope that these kinds of objections could have been resolved by industry organizations – Commissioner McDowell’s statement going into great detail about the lack of notice and precedent for the decision, and the potential impact that the decision will have on network management practices and voluntary decisions of Internet management organizations.  Commissioner Tate raises questions of what the decision will do to attempts to design technological systems that can sniff out adult content for purposes of protecting children from such content.  It’s interesting that the FCC’s own proposed rules for portions of the 700 mhz band include such requirements for the monitoring of adult content.


Continue Reading FCC Finds Comcast Internet Management Technique Violates Net Neutrality Policy

Today’s morning newscasts were filled with the stories of the passing of George Carlin – a comedian and satirist who effectively wrote the indecency regulations that most broadcasters abide by – without the FCC ever having had to adopt the regulations that he attributed to them.  In the broadcast world, Mr. Carlin was probably best known for his routine about the Seven Words that You Can Never Say on TV.  When that routine was aired by a New York radio station, and heard by a parent who claimed that he had a child in his car when the routine came over his radio in the middle of the day, the resulting FCC action against the station resulted in appeals that ended in the Supreme Court which, in its Pacifica case, upheld the right of the FCC to adopt indecency rules for the broadcast media to channel speech that is indecent, though not legally obscene, into hours when children are not likely to be listening.  But what this case and the FCC ruling did not hold are perhaps more misunderstood than what the case did hold.

First, the case was about "indecency" not "obscenity."  Many of this morning’s newscasts referred to the Pacifica decision as being an Obscenity decision.  Obscenity is speech that can be banned no matter what the time and place, as it is speech that is deemed to have no socially redeeming value.  Indecency, on the other hand, is a far more limited concept.  Indecent speech is speech that is constitutionally protected – it has some social significance such as the social commentary clearly conveyed by the Carlin routine.  It cannot be constitutionally banned.  But the Supreme Court upheld the FCC’s decision in the Pacifica case that, because of the intrusive nature of the broadcast media, it can be limited to hours where children are not likely to be in the audience.  Hence, the FCC has a "safe harbor" that allows indecent programming between the hours of 10 PM and 6 AM, when "obscene" programming is never allowed on the air.


Continue Reading George Carlin – Writing the Indeceny Rules the FCC Never Did

The Public and Broadcasting is a document first written by the FCC in the 1970s to tell the public about how the FCC regulates broadcast stations, and to tell the public how they can get involved in the regulatory process.  Broadcasters must maintain a copy of the manual in their public file, and make it available to members of the public who request it.  For years, the manual was grossly out of date, finally being updated a few years ago.  Today, the FCC issued a Public Notice announcing that they have once again updated The Public and Broadcasting, and that all stations need to place the new version in their public file.  The new version, with a new subtitle "How to Get the Most Service from Your Local Station" can be found here.  Stations should print that document, and place it in their public file.

The manual is updated, and sets out most of the programming and other operational rules that would be of interest to the public.  The manual seems to be objective – pointing out that most programming decisions are left to the broadcast licensee to avoid violating the Freedom of Speech rights of the broadcaster. 


Continue Reading FCC Releases New Version of the Public and Broadcasting and Sets Up Help Desk for Broadcast Complaints