The FCC today released a Public Notice granting the request of several broadcast organizations for an extension of time to respond to the extensive proposals for re-regulating the broadcast industry contained in the FCC’s Localism Notice of Proposed Rulemaking. We wrote about those proposals, here. Comments, which were to be filed next week,
The FCC has released the full text of its Order adopting enhanced disclosure requirements for broadcast television stations – requiring that they post their public files on their websites and that they quarterly file a new form, FCC Form 355, detailing their programming in minute detail, breaking it down by specific program categories, and certifying that the station has complied with a number of FCC programming rules. The Commission also released the new form itself and, as detailed below, the form will require a significant effort for broadcasters to document their programming efforts – probably requiring dedicated employees just to gather the necessary information. The degree of detail required is more substantial than that ever required of broadcasters – far more detailed than the information broadcasters were required to gather prior to the deregulation of the 1980s – though, for the time being, much (though not all) of the information is not tied to any specific programming obligations set by the FCC.
Before getting to the specifics of the new requirements, the thoughts of the Commission in adopting this order should be considered. The Commission’s decision focuses on its desire to increase the amount of citizen participation in the operation of television stations and the decisions that they make on programming matters. While many broadcasters protested that the public rarely cared about the details of their operations, as evidenced by the fact that their public files were rarely if ever inspected, the Commission suggested that this was perhaps due to the difficulty the public had in seeing those files (the public actually had to go to the station to look at the file) and the lack of knowledge of the existence of the files (though broadcasters routinely broadcast notice of the public file’s existence during the processing of their license renewal applications, rarely producing any viewers visiting the station to view the file). With respect to the new Form 355 detailing the station’s programming, the Commission rejected arguments that reporting of specific types of programming in excruciating detail imposes any First Amendment burden on stations, as the Commission claims that it has imposed no new substantive requirements. Yet the Commission cites its desires that the public become more involved in the scrutinizing of the programming of television stations, which it states will be aided by the new form, and also emphasizes the importance that the Commission places on local service (an item detailed in Form 355). At the same time, in its proposals detailed in its Localism proceeding (summarized here), the Commission is proposing rules requiring specific amounts of the very programming that is reported on Form 355, the very numbers that, in this proceeding, it claims have no significance. Moreover, citizens will be encouraged by the Commission’s actions to scrutinize the new reports, and file complaints based on the perceived shortcomings of the broadcaster’s programming. Broadcasters in turn will feel pressured to air programming that will head off these complaints. So, implicitly, the Commission has created the First Amendment chilling effect that it claims to have avoided.
At its December meeting, the FCC adopted a Notice of Proposed Rulemaking on Localism. At that meeting, while the Commissioners discussed the generalities of the proposals being made, the specifics of the proposals were unknown. The full text of the NPRM has now been released, and it sets out the areas in which the Commission proposes to re-regulate broadcast stations. The order also hints at a number of other proceedings that the Commission intends to launch in the near future, and reminds broadcasters of a number of other existing proceedings that will potentially bring about greater regulation. From the discussion in the NPRM, new rules will apply to all broadcasters – large and small – and potentially place significant burdens on all stations which, as always, are hardest for small stations to deal with. Given the number of new regulatory initiatives discussed by the Commission, the NPRM is a must-read for all broadcasters, and this proceeding is one in which all broadcasters should participate.
Among the specific proposals on which the Commission asks for comments include the following:
Community Advisory Boards: The Commission tentatively concludes that all stations will be required to establish a community advisory board to advise the station on the issues of importance to the community that can be addressed in the station’s programming. The Commission indicated that it did not want to bring back the burden of the ascertainment process that was abolished in the 1980s, but asks how the Board should be established so as to represent the entire community, suggesting that the categories of community leaders that were used in the ascertainment process could be used as a standard to guide the licensee in determining the make-up of the board. Other questions include how often the board should meet, and how the board members should be selected (or elected – though by whom, the Commission does not suggest).
Other Community Outreach Efforts. The Commission also suggests that other community outreach efforts should be considered as possible mandates for broadcasters. These would include the following:
- Listener surveys by telephone or other electronic means (general public surveys were also part of the ascertainment process abolished in the 1980s, so if this were adopted together with the Community Advisory Board, ascertainment would effectively be back)
- Focus sessions or town hall meetings
- Participation of management personnel on community boards, committees, councils and commissions (mandatory civic participation?)
- Specific phone numbers or email addresses, publicized during programming, for the public to register their comments on station operations.
Remote Station Operations. Comments are sought as to whether television stations should be forbidden to operate without being manned during all hours of operation. Radio operations will be addressed in the proceeding to consider the public interest issues posed in the Digital Radio Proceeding (see our summary here).
Quantitative Programming Guidelines. The Commission proposes to adopt quantitative standards for programming that a station would have to meet to avoid extra processing and scrutiny at license renewal time. Questions include what categories of standards should be established (just local programs – or more specific requirements to set required amounts of news, public affairs and other categories – and how to define what programming would qualify in each category), should requirements be established as specific numbers of minutes or hours per day or per week or by a percentage of programming or through some other metric, should other specific requirements or measurements be established?
Main Studios. The commission suggests reverting to the pre-1987 requirement that each station maintain a main studio in its community of license
Network Programming Review. The Commission asks whether rules should be adopted to require that local network affiliates have some ability to review all network programming before it is aired. If so, what programs would be exempt from the requirement (e.g. live programs), how much prior review is necessary, would such a right disrupt network operations?
Voice Tracking. The Commission asks if "voice-tracking," (i.e. a radio announcer who provides announcing on a radio station from outside a local market, sometimes including local inserts to make it sound as if the announcer is local) should be limited or prohibited, or if disclosure should be required.
Local Music. While the Commission indicates that it did not think that a ban on national playlists was required, it did ask whether broadcasters should be required to report the songs that they play, and how they choose their music. With that information, the Commission asks if it should consider the amount of local music played when assessing whether a station has served the needs of its community at license renewal time.
Class A TV. The Commission asks whether it should adopt rules that permit more LPTV stations to achieve Class A status, meaning that they would no longer be secondary stations subject to being forced off the air by interfering uses of the TV spectrum by full-power TV stations.
As we wrote earlier this week, the FCC is to consider at its meeting next Tuesday a Report on the results of its "Localism" proceeding, and a Notice of Proposed Rulemaking seeking public comment on the findings contained in the Report. From rumors going around Washington today, that Notice may ask for comments on tentative findings that would roll back of much of the broadcast deregulation of the last 25 years. Rumors are that the Commission will be issuing "tentative conclusions" determining that the FCC should re-impose specific ascertainment requirements of some sort (requiring that broadcasters regularly meet with specific types of community leaders to get their input on station programming). Also, the Commission will tentatively conclude that there should be quantitative programming requirements – that each station do a specific amount of local programming and perhaps specific amounts of news, public affairs other types of programs each week. If a licensee does not meet the requirements, the station’s license renewal application would not be granted routinely by the FCC’s staff, but instead would be subject to an additional level of scrutiny by the full Commission. The Commission is also apparently proposing that it return to the old rules that all stations have a manned main studio during all hours of operation. There is reportedly also a proposal that stations report to the FCC about how they decide what music they play.
Staring in the early 1980s, the FCC did away with many of the specific, detailed programming requirements that had previously bound broadcasters. These requirements were quite burdensome, especially for small stations and stations in small markets with limited staffs. Rather than spending their time on broadcast operations, station staff had to make sure that their operations met programming standards imposed from Washington, dictating the government’s ideas of what was good for the station’s audience, even if the station might feel, because of its format or the demographics of its audience that a particular type of programming did not serve the needs of its community. In the mid-1980s, the FCC concluded that these rules were no longer necessary, as it was concluded that there was enough media diversity that the marketplace would dictate that broadcasters serve their audiences with appropriate content that met the needs of that audience as, if they did not, some other broadcaster would. The economic incentive of the fear of the loss of audience to a competitor who better served the public was deemed enough to insure that the broadcaster acted responsibly.
The FCC today adopted new requirements for television broadcasters to quarterly file a report with the FCC quantifying their service to the public. The order also requires that stations keep their public file on their website, if they have a website. Broadcasters will also be required to broadcast twice each day a notice as to how listeners can find their public file. This order resolves some of the issues raised in a rulemaking proceeding (about which we wrote here) begun over 7 years ago as part of the rules to govern TV’s digital transition. Yet these new rules apply to analog as well as digital television operations. In fact, the public file rule goes into effect 60 days after the publication of the FCC’s order in the Federal Register.
The new FCC form will replace the Quarterly Issues Programs lists prepared by licensees since the mid-1980s. The Quarterly Issues lists were originally adopted to replace more detailed reporting requirements which forced broadcasters to collect and file the same types of information that the FCC is now requesting. While the new forms are not yet released, from the discussion at the FCC meeting, it appears that they will require the following information:
- Details about civic and election coverage provided by the station
- Information about programming from independent producers that is aired by the station
- Information about the number of Public Service announcements (PSAs) aired by the station
- A description of efforts that the station has undertaken to serve its community
- Specifics about emergency information provided by the station
- Information about how emergency and other information is provided to viewers with disabilities
- There was also some discussion that indicated that the reports would require information about how stations ascertain the needs of their community that are addressed in their programs.
The FCC has released the agenda for its Open Meeting to be held on Tuesday, November 27. The agenda is full of issues of importance to broadcasters, and several items may resolve issues that may be troubling – including issues relating to low power FM stations (LPFM) and resolving a long outstanding proceeding concerning the possibility of mandatory public interest obligations for TV stations. The Commission also has on tap initiatives to encourage the entry of minorities and other new entrants into the broadcast business – even though comments on the Commission’s proposals on this matter were received just a month ago.
First, the Commission is to release an Order on Low Power FM. We have written about some of the issues that could be decided previously – including issues of whether or not to allow the assignment and transfer of such stations (here) and whether to give these stations preferences over translators and even improvements in full power stations (here and here).
On the TV side, the Commission seems ready to issue an order on the public interest obligations of television operators. We wrote about the proposals – made as part of the Commission’s DTV proceedings (though to be applicable to all TV stations), here. Proposed rules included the standardization of quarterly issues programs lists, making station’s public fies available on the Internet, and quantifying other public interest obligations.
In a Public Notice released today, FCC Chairman Kevin Martin announced his intention to modify only the newspaper-broadcast cross-ownership rule, among all of the multiple ownership rules under consideration. That rule prohibits ownership of a broadcast station and daily newspaper in the same market. Somewhat surprisingly, Martin proposes to leave all other multiple ownership rules untouched. And his proposal only suggests clearing the combination of a newspaper and either a television station or a radio station in the Top 20 markets, and only if the TV station is not among the Top 4 rated stations in the market. Any other combination would be presumed to be prohibited, though a showing could be made to rebut that presumption.
As we have previously written, Chairman Martin has long signaled his desire to modify or eliminate the newspaper-broadcast cross-ownership rule. His specific proposal was also described in an op-ed piece he wrote for today’s NY Times, and which is attached to the FCC Public Notice. It would allow ownership of a daily newspaper and one broadcast station (radio or TV, but not both) in the top 20 DMAs (i.e. TV markets). Even then, Martin would prohibit common ownership of a newspaper and any of the top four TV stations in that market, and would require that there be at least eight independently owned media voices (daily newspapers and full-power TV stations) following the transaction.
Martin does not otherwise propose any changes to the other multiple ownership rules currently under consideration, including limits on local TV and radio ownership, as well as the national TV ownership cap that counts UHF stations at 50% of their actual audience. Martin’s editorial makes clear that he would also scrap the Commission’s former "cross media" limits that were remanded back to the FCC by the U.S. Court of Appeals in the 2004 Prometheus decision. The "cross media" limits would have weighted various media within a market to determine what level of media ownership would be permitted in that market.
As the Commission held its last localism hearing in Washington on Halloween night, FCC Chairman Kevin Martin’s views on how the FCC should insure that stations are responsive to their communities became somewhat clearer. In his opening statement, the Chairman outlined a set of actions that could be taken by the FCC to insure more service to the public. While emphasizing the importance of efforts to encourage new entrants into broadcast ownership, the Chairman’s proposals to add new regulatory requirements, including requiring that a station be manned during all hours of operation, may well have the result of making it more difficult for any new entrant (or for existing smaller operators) to profitably operate their stations. In addition, he has offered proposals that would seemingly require cable and satellite carriage of in-state television stations not in a system’s DMA – a proposal sure to cause concern to stations in DMAs that straddle state lines.
The Chairman’s statement includes the following proposals:
- Requirements for uniform filings by broadcasters quantifying their public service – presumably their news and information programming and the public service announcements that they provide
- Requiring that stations have manned main studios during all hours of operations (not just during business hours)
- Allowing flexibility for LPFM stations to be sold, but adopting new rules to insure that such stations are used for local programming, not something provided from a network or other programming source
- Providing television viewers the ability to get an in-state television stations on cable and satellite even if the county in which they reside is "home" to a DMA with stations in another state
- Capping the number of applications accepted from the 2003 FM translator filing window – which might result in the dismissal of hundreds of applications that have effectively been frozen for 4 years
Twice this week, the FCC released decisions denying applications proposing city of license changes for AM stations proposing to take away the only station licensed to one community and move it to another. In its order adopting simplified city of license changes (see our previous posts including those here and here), the FCC refused to change its policy of not allowing the removal of an established radio station which is the only station licensed to a community except in cases where an extraordinary showing justifying a waiver of the rules could be made. The two cases decided this week show that merely moving to a community with greater population (even one which has no other station licensed to it) will not, in and of itself, justify a waiver of the rules. Thus, stations which are the only station licensed to their communities are effectively blocked from changing cities of license without providing a "back-fill", i.e. moving another station so that it can be licensed to the community that would otherwise be abandoned.
In one case decided this week, the broadcaster proposed to move its AM station to a community that had three times the population of the one that it was proposing to leave. The Commission rejected the move, finding that the residents of the current community should be able to rely on continued service from that station. This was true even though other stations could be received in the community, as the Commission reminded licensees that their primary responsibility is to serve the needs of their city of license, and that this primary service cannot be duplicated by the secondary service provided by a station licensed to another town or city.
A reminder to all radio and television broadcast stations, both commercial and noncommercial, that Quarterly Issues Programs Lists reporting on the important issues facing the stations’ communities, and the programs aired in the months of July, August, and September dealing with those issues must be prepared and placed in the stations’ public inspection file…