An FCC decision in a case involving two applicants for a construction permit to construct a new noncommercial television station in Tulsa illustrated an interesting dilemma that can arise from the application of the "point" system that is used to decide comparative cases for new noncommercial stations. We wrote about the point system, here. In this
Last week, the FCC released a Public Notice asking for comments on whether it should begin a Section 403 investigation into the use of Arbitron’s Portable People Meter ("PPM"). A coalition of broadcast groups, the "PPM Coalition," principally comprised of broadcasters providing service to minority communities, sought the investigation as a way of delaying the implementation of the PPM technology next month in a number of large broadcast markets. In their request, which can be found on the Minority Media and Telecommunications Council website, the PPM Coalition argues that the investigation is justified based on the Commission’s objectives (and various administrative and legislative mandates) to improve minority ownership in broadcasting. The PPM Coalition contends that methodology problems in PPM implementation result in artificially low ratings for minority owned stations. These parties argue that, if the system is implemented, a number of minority-programmed stations will disappear. Arbitron has argued that the Commission does not have the jurisdiction to regulate ratings services (who are obviously not FCC licensees) or the methodology that they use. Comments on the request for an investigatory hearing are due on September 24, and replies on October 6 (two days before the PPM system is to be implemented in eight markets).
Section 403 of the Communications Act gives the Federal Communications Commission the power to conduct investigations of any complaint of any violation of its rules or of provisions of the Communications Act, or to explore any other matter relating to the provisions of the Act. Such investigations are often conducted before an Administrative Law Judge, but can be conducted before the Commission itself, and allow the FCC to use full discovery techniques (e.g. document production requests and depositions) and to conduct an evidenciary hearing. In the past, the process was used much more frequently. It has been used both to investigate specific complaints of possible misconduct by individual licensees, and to conduct broader inquiries into business practices in a regulated industry to decide if FCC regulation was necessary. For instance, in the 1960s, there was an investigation into network practices to determine if those practices required FCC action to regulate the network-affiliate relationship. In recent years, the power has been rarely used, and when used has tended to relate to specific allegations of misconduct to determine if the FCC should bring some sort of enforcement action against a regulated entity.Continue Reading FCC Seeks Comment on Whether to Begin Investigation of Arbitron PPM – How Far Does FCC Regulatory Power Extend?
In a very unusual, if not unprecedented case, the FCC announced a Public Forum on the license renewal application of WWOR-TV to assess the service provided by that station to the citizens of New Jersey. While the FCC has in the past held evidentiary hearings on license renewal applications, those hearings were trial-type, adversarial proceedings held on specific issues before administrative law judges – not amorphous public proceedings on general questions about the service provided by the station. This proceeding seems much more akin to the "localism" hearings that the FCC has been holding around the country (including the most recent held in Washington on Halloween), only in this case it is not conducted to come up with some general policy guidelines, but instead it is to assess whether a broadcast license worth hundreds of millions of dollars should be renewed. While the revocation of a license for failure to serve the public interest under the license renewal standards that have been in effect for the last 11 years is unprecedented, this process may be one that other stations could face were proposals of certain Congressional and FCC proponents of license renewal reform to get their way.
As we wrote here and here, some have suggested that the FCC’s license renewal process should be fundamentally reformed. There have been suggestions that license renewal, which once occurred every three years for broadcast stations but now comes up but once every eight years, should return to that shorter cycle. And some have suggested that the license renewal process should have more "teeth" to assess a broadcaster’s performance (see, for instance, the statement of Commissioner Copps at the FCC Localism hearing in Portland, Maine in June). These teeth have been suggested to include everything from specific quantitative showings of public interest programming by the broadcaster, to local public hearings to assess the level of that service for some or all broadcast stations. How the FCC would have the resources to conduct hearings for any meaningful number of broadcast stations is unclear – but the suggestion has been made by various proponents of license renewal reform. Continue Reading FCC Sets Unusual Public Forum to Assess License Renewal of New Jersey Television Station
Over a year ago, the FCC released its Notice of Proposed Rulemaking on amendments to the FCC’s multiple ownership rules. Issues from newspaper-broadcast cross-ownership, to local TV and radio ownership limits are all being considered. Our summary of the issues raised in the NPRM is available here. The FCC has been holding field hearings throughout the country on its proposals, gathering public comment on the proposals – the most recent having been held in Chicago last night. Only one more field hearing to go and the Commission will have conducted the six hearings that it promised. Many, including me, had felt that the timing was such that no decision in this proceeding could be reached until 2008 and, as that is an election year, the decision could quite well be put off until after the election to avoid making it a political issue. However, there are now signs that some at the FCC are gearing up to try to reach a decision late this year or early next – presumably far enough away from the election for any controversy to quiet before the election. With this push, others are expressing concern about a rush to judgment on the issues, and may well seek to delay it further.
Evidence of the FCC’s increasing attention to the multiple ownership issues include the recent Further Notice of Proposed Rulemaking, asking questions about minority ownership and making proposals on how that ownership can be encouraged (proposals we summarized here). The FCC has also asked for comment on several studies that it commissioned to look at the effects of ownership consolidation in the broadcast media (the public notice asking for comments is here, and the studies can be found here). Comments on the Further Notice and the ownership studies are due on October 1, with replies due on October 15. Some have suggested that this time table is unnecessarily accelerated, especially as certain peer review documents on the ownership studies were just recently released.Continue Reading A New Push to Address Multiple Ownership?
The FCC, after taking two years off, is looking to finish their field hearings on Localism by scheduling a hearing in Portland, Maine on June 29. This hearing is not one of the six hearings to discuss possible new multiple ownership rules, but instead a continuation of the hearings started by Chairman Powell after public controversy over the 2003 multiple ownership rules. In an ironic twist of fate, this public notice was released on the Friday before the National Association of Broadcasters Educational Foundation hosts their Service to America Awards Dinner to honor broadcasters and the public service commitment that they have to their communities. Thus, while the FCC is looking in the hinterlands for evidence of the responsiveness of the broadcast industry to the needs of their listeners, some of the best evidence of that service was on display some 12 blocks from the FCC’s headquarters.
The Localism hearings were part of a larger proceeding begun in response to the controversy after the 2003 multiple ownership rules. When the Democratic Commissioners, Congressional legislators from both parties, and a variety of citizen’s groups from across the political spectrum complained about how the public’s input was not sought before the rules were adopted, the FCC tried to respond to some of those complaints by putting out a Notice of Inquiry on Localism. The proceeding was to assess how well broadcasters were serving their communities, and the Notice asked for public comment on a grab bag of issues including the following:
- whether a broadcaster’s public interest obligations should be quantified (bringing back obligations abolished in the 1980s that required specific amounts of the programming of broadcast stations to be devoted to news and public affairs programming),
- should broadcasters be required to play specific amounts of local music,
- is payola a major issue,
- whether more programming should be devoted to political campaigns,
- whether the voices of minorities were being heard on the airwaves.
- if the FCC should authorize more LPFM stations and take other steps to make airtime available to new entrants