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The recent decision of the Third Circuit Court of Appeals which overturned the FCC’s 2007 rulings on newspaper-broadcast cross ownership and on diversity initiatives, took an unexpected turn today.  The FCC issued a Public Notice announcing that it would immediately stop giving "Eligible Entities" an advantage in certain instances – most particularly the extension of construction permits for new stations that are close to their expiration dates.  In the FCC’s 2007 Diversity Order, the Commission, to encourage more diversity in broadcast ownership, allowed "eligible entities", i.e. small businesses under SBA definitions, to acquire construction permits for new stations that were close to expiration, and to get an additional 18 months in which to construct the station.  In most other circumstances, the FCC will not extend a construction permit (absent some limited "tolling events" that will give applicants a limited amount of time to construct – but just the amount of time that a limited unforeseen event takes out of the usual 3 year construction period).  The 18 month extensions given to Eligible Entities have become an important way of saving construction permits about to expire when the original permit holder could not complete construction in the given 3 year construction period.

Today’s decision takes away that opportunity to extend unbuilt construction permits.  And the ruling goes even further, pulling the rug out from under recent grants of CP extensions – even ones that have already been granted, unless the extensions have become "final," i.e. no longer subject to reconsideration or appeal.  Those extensions granted in the last 40 days are subject to this order, and if these CPs have an initial expiration date that has already passed, they will be canceled.  This will no doubt cause some great consternation among parties who have purchased a construction permit in reliance on an FCC order extending the permit by 18 months, and may even have taken steps to construct the station since purchasing it, and now find themselves with a permit that has already expired.  The Commission makes no suggestion why some other remedy consistent with the Court’s order, but not so harmful to parties that relied on prior Commission policy, could not have been adopted – perhaps a new "tolling event" giving applicants a limited period of time to get a station on the air before the CP was canceled.  Sellers no doubt relied on the prospects of a pending sale (and simultaneous extension) to stop taking last minute extraordinary efforts to get a station constructed before the CP expired, and Buyer’s relied on the FCC order extending a CP to close purchases.  Given the potential for some entities to suffer greatly by this ruling, look for appeals to be filed.Continue Reading FCC Stops Processing Applications By “Eligible Entities” – No Extensions of Unbuilt CPs When Sold to a Small Business

[Update – 4/9/2011.  Based on the announcement late last night, the Federal government will not be closing on Monday.  But the agreement that was reached yesterday still needs to be documented and voted on by the House and Senate.  But, barring an unforeseen breakdown in the deal, these shutdown instructions can be shelved…

With April Fool’s Day only a few short days away, and with many articles running in the trade press about what stations should and shouldn’t do on that day, we thought that we would weigh in with our own legal reminder – no matter what you do, be careful not to violate the FCC’s rule against broadcast hoaxes.  That rule, Section 73.1217 of the Commission’s Rules, prevents stations from running any information about a "crime or catastrophe" on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as "direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties."  Air a program deemed a hoax, and expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station claimed that there was someone at the station who had taken them hostage, and another case where a station broadcast bulletins that announced that a local trash dump had exploded like a volcano, and was spewing burning trash around the local neighborhood.  In both cases, first responders were notified about the non-existent emergencies, actually responded to the notices that listeners called in, and were prevented from doing their duties responding to real emergencies.  In light of these sorts of incidents, the FCC adopted its prohibition against broadcast hoaxes.  But the FCC rule is not the only reason to be wary on April 1. Continue Reading Planning an On-Air April Fools Day Prank? – Remember the FCC’s Rule Against Broadcast Hoaxes

Broadcasters are inevitably moving toward a digital future – exploiting new Internet and mobile platforms to supplement their traditional over-the-air operations.  Last week, I conducted two sessions in Salt Lake City for the Utah Broadcasters Association, one on the legal issues to be considered in connection with broadcasters’ use of the digital media, and a second updating broadcasters on all the legal and regulatory issues that they face from Washington with their over-the-air operations.  Slides from the digital media presentation, Broadcasters Online: Legal Issues in the Cyber Jungle, are available here, and those from the broadcast update, the Top Ten Washington Issues that Should Keep Broadcasters Awake at Night, are available here.

To show how quickly things move in Washington, since the seminar, there have been two new developments that relate to topics discussed at the seminar.  On the day of the seminar, the Commission’s Enforcement Bureau came out with a policy statement about a certification that broadcasters need to include in all of their advertising contracts certifying that the advertising was not sold with a discriminatory purpose – as there will be a specific question about the certification in all license renewal applications.  We have summarized the requirements for the clause to be included in the advertising contract here. Continue Reading Digital Media Issues and a Washington Update for Broadcasters – Presentations to the Utah Broadcasters

The start of the FCC’s license renewal cycle for radio stations is close at hand, and we have issued an advisory to help radio stations prepare for the process.  A copy of the advisory is available here, and contains information about the pre- and post-filing announcements that stations are required to air, as well…

Broadcast engineers are often tasked with much of a station’s regulatory compliance, as well as its planning for the future.  At last week’s Michigan Association of Broadcasters Great Lakes Broadcasting Conference, I did a presentation to the a session of broadcast engineers and others, sponsored by the local chapter of the Society of Broadcast Engineers. We covered the industry’s macro issues of spectrum reallocation for television, and HD Radio for radio, and the possible use of TV Channels 5 and 6 for radio.  We also talked about restrictions on the movement of AM and FM stations based on the FCC’s rural radio proceeding, and the issues between translators and LPFM stations.  Then we talked about many of the day to day issues that can get a station in trouble – particularly with license renewals coming up.  A copy of the slides that I used in the presentation is available here.  Additional information on many of the topics that I discussed last week are also available on our blog, as listed below.

Some of the articles that we have written that would be important to members of the engineering community include the following:

  • The latest on White Spaces, and the development of the database that will be used to protect TV stations, translators, cable headends and other current users of the TV spectrum, an issue that I neglected to address at the conference 
  • A summary of the FCC’s proceeding to determine how incentive auctions would work to clear space in the TV spectrum for wireless broadband, and on making VHF channels more useful for digital television
  • The latest on video description of TV programming can be found here.
  • Information about closed captioning requirements and the new complaint process for issues about such captioning can be found here
  • Our checklist for the commercial broadcaster’s public file can be found here
  • Information on the FCC’s rural radio proceeding can be found here

There are plenty of other articles on the Blog about FCC Fines, LPFM/FM translator issues, Tower issues, EAS and other matters that are important to engineers – and to the stations they work for.Continue Reading FCC Legal Issues for Broadcast Engineers – A Presentation to the Michigan Broadcasters

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

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

On February 8, 1996, the Telecommunications Act of 1996 was signed into law by President Bill Clinton.  While the Act had significant impact throughout the communications industry, the impact on broadcasters was profound, and is still being debated.  The Act made changes for broadcasters in several major areas:

  • Lengthened license renewals to 8 years for both radio and TV, and eliminated the "comparative renewal"
  • For radio, eliminated all national caps on the number of radio stations in which one party could have an attributable interest and increased to 8 stations the number one party could own in the largest radio markets
  • For television, raised national ownership caps to having stations that reached no more than 35% of the national audience, with no limits on the number of stations that could be owned as long as their reach was under that cap.
  • Allocated spectrum that resulted in the DTV transition

Obviously, the DTV spectrum began the profound changes in the way television is broadcast, and led to the current debate as to whether over-the-air television should be further cut back in order to promote wireless broadband (see our recent post on the FCC’s current proceeding on this issue).  While the other changes have now been in effect for 15 years, the debate over these provisions continue.  Some argue that the renewal and ownership modifications have created too much consolidation in the broadcast media and lessened the broadcaster’s commitment to serving the public interest.  Others argue that, in the current media world, these changes don’t go far enough. Broadcasters are under attack from many directions, as new competitors fight for local audiences (often with minimally regulated multi-channel platforms, such as those delivered over the Internet) and others attack broadcasters principal financial support – their advertising revenue. Even local advertising dollars, traditionally fought over by broadcasters and newspapers (with some competition from billboards, direct mail and local cable), is now under assault from services such as Groupon and Living Social, and from other new media competitors of all sorts.  With the debated continuing on these issues in the current day, it might be worth a few looking back at the 1996 changes for broadcasters, and their impact on the current broadcast policy debate.Continue Reading On the 15th Anniversary of the Telecommunications Act of 1996, The Effect on Broadcasters is Still Debated

When the FCC looks to adopt new rules or policies through rulemaking proceedings or through other significant cases, there are often companies, associations and individuals trying to influence the decision on these matters.  Such discussions with FCC decision makers are permitted, but the parties trying to influence the FCC’s decisions must file notices in the Docket of…