With February 17 only two days away – when all television stations had planned to be terminating their analog service until Congress passed the extension of the conversion deadline until June 12 – many stations are still planning to convert to fully digital operations on that date.  In the last few days, we have seen a flurry of FCC orders about the conversion – including one issued late Friday night modifying requirements that had previously been announced, including the requirement that stations providing analog nightlight service provide emergency information in Spanish.  As stations complained that they did not have the ability to translate their emergency information into Spanish, the FCC dropped the requirement (though still requiring information about the DTV transition to be broadcast in English and Spanish, probably assuming that Spanish-language PSAs providing the necessary information can be obtained from the NAB or other broadcast groups).  That order also officially extended all digital construction permits that would have otherwise expired on February 17, and extended the conditions that are on many of the permits prohibiting digital operations on their final digital channels until the new transition deadline – unless these stations get explicit permission from the FCC to transition early by showing that they will not cause any interference to other stations when they operate on their new digital channels.

The Commission also has been publishing lists of the stations that had intended to go all-digital by February 17 despite the extension.   First, the Commission released a Public Notice of all stations that had initially indicated that they would go silent, with a market-by-market analysis of which stations would go all-digital on February 17 (marked in red) and which would continue in analog.  After analyzing that list, the Commission issued another Public Notice, with a list of stations that could not go all-digital without submitting certifications that they would meet certain consumer education requirements after the transition – including having at least one commercial station in a market continuing to broadcast a nightlight service that not only included information about the digital transition, but also news and emergency information, for at least 60 days.  the certifications also required having a local call center for those who have questions about the transition, having a walk-in center where people can come for assistance with their digital converters, and otherwise taking steps to publicize the transition.  Stations either needed to make these certifications, provide another public interest reason why they had to terminate analog operations on February 17, or agree to continue their analog operations.


Continue Reading Countdown to February 17 – Some TV Stations Still Going All-Digital Despite the Extension of the Conversion Deadline

Last week, the US Senate passed a resolution of disapproval, which seeks to overturn the FCC’s December decision relaxing the multiple ownership rules to allow newspapers and television stations to come under common ownership in the nation’s largest markets (see our summary of the FCC decision here).  This vote, by itself, does not overturn that decision.  Like any other legislation, it must also be adopted by the House of Representatives, and not vetoed by the President, to become law.  In 2003, the last time that the FCC attempted to relax its ownership rules, the Senate approved a similar resolution, but the House never followed suit (perhaps because the decision was stayed by the Third Circuit Court of Appeals before the House could act).  In this case, we will have to see whether the House acts (no dates for its consideration have yet been scheduled).  Even if the House does approve the resolution, White House officials have indicated that the President will veto the bill, meaning that, unless there is a 2/3 majority of each house of Congress ready to override the veto, this effort will also fail.

The reactions to this bill passing the Senate have been varied.  The two FCC Democratic Commissioners, who both opposed any relaxation of the ownership rules, each issued statements praising the Senate action (see Commissioner Copps statement here and that of Commissioner Adelstein here).  The NAB, on the other hand, opposed the action, arguing that the relaxation was minimal, that it was necessary given "seismic changes in the media landscape over the last three decades" (presumably referring to including the economic and competitive pressures faced by the broadcast and newspaper industries in the current media environment), and that it ought not be undone by Congressional actions.   


Continue Reading Senate Resolution of Disapproval on Multiple Ownership – What Does it Mean?

In a recent decision, the FCC interpreted its radio multiple ownership rules in a case involving changes in an Arbitron market.  The FCC’s rules restrict the number of radio stations that one company can own in a market based on how many stations are in that radio market.  In situations where stations are rated in an Arbitron market, the number of stations is determined by how many stations are in that Arbitron market, as determined by data compiled by the financial analysis firm BIA.  In this case, while the application to acquire the station was pending, BIA came out with its first list of stations that it considered to be in the newly created Arbitron market.  That list showed that, in the new market, the Buyer already owned more stations than allowed by the rules, so acquisition of this additional station was prohibited.  The case stands for the proposition that, while changes in Arbitron markets that allow an acquisition to take place must have been in place for two years to become effective (to prevent owners from gaming the system by making short-term changes), changes that adversely affect the ability of an owner to acquire a station become effective immediately.

According to the decision, at the time that the application in question was filed, the station to be bought was listed by BIA as being in the Manchester, New Hampshire Arbitron market.  The number of stations owned by the Buyer in Manchester was such that the acquisition of the station was permissible at the time the application was filed.  However, Arbitron announced the creation of a new Concord radio market just before the filing of the FCC application for approval of the transfer of control of the radio station.  Soon after the filing of the application, BIA released its list of stations in the new Concord market, and it included a number of the stations owned by Buyer, including the station it was proposing to acquire.  In the new Concord market, the Buyer would have too many stations to permit the acquisition of this station under the restrictions set out in the multiple ownership rules.


Continue Reading Adverse Change in Arbitron Market Blocks Radio Acquisition Under Multiple Ownership Rules

The FCC this week released the full text of its decision on the revision of the multiple ownership rules that it adopted at its December 18 meeting.  While the text goes into great detail on the decision to relax the newspaper-television cross ownership restrictions (causing the ruling to be condemned by consolidation critics), the order is very brief in addressing the numerous other issues with the multiple ownership rules that were raised in this proceeding.  Television broadcasters sought greater opportunities to consolidate in local markets, and radio broadcasters requested reconsideration or clarification of various aspects of the Commission’s 2003 decision adopting Arbitron market definitions as the basis of the determining how many radio stations are in a particular market.  These requests were all rejected, some summarily.  Will these parties who were denied relief from the FCC protest as loudly as the critics of the decision with respect to the relaxation of the TV-newspaper cross ownership limits?

We summarized the decision with respect to the newspaper television rules here.  That summary was based on the statements made at the December 18 meeting and on the press release issued that day which provided a brief summary of the Commission’s decision.  The outline we provided in December was basically accurate, and there were few surprises about the newspaper-television cross ownership rules in the text.  The Commission was very thorough in documenting the basis for its decision that newspapers and television stations could be commonly controlled without adversely affecting the public interest, citing a legion of studies supporting their decision, while carefully refuting the studies supplied by consolidation critics.  However, the remainder of the decision, dealing with other aspects of the multiple ownership rules which the Commission refused to change, contained reasoning which was far more limited.  In some cases, particularly dealing with radio issues, the reasoning was almost absent.


Continue Reading FCC Issues Text of Its Multiple Ownership Decision – New Combinations for Newspapers and TV, No Ownership Changes for Radio

Yesterday’s unique Public Notice outlining Chairman Martin’s proposals for reform of the multiple ownership rules (which we summarized here) is a surprisingly restrained and limited approach to relaxation of the ownership rules – proposing to relax only the newspaper-broadcast cross-ownership prohibitions, and only in the Top 20 TV markets.  Moreover, the reform would only allow the combination of a daily newspaper and a single radio or TV station, and the newspaper-TV combination would only be allowed if the TV station is not one of the Top 4 ranked stations in the market.  While the extremely limited nature of the proposed relief has not stopped critics of big media from immediately condemning the proposal (see the joint statement of Commissioners Copps and Adelstein, here), much less attention has been paid to those multiple ownership issues that the Chairman’s proposal does not seem to address – including TV duopoly relief in small markets and clarifications to the radio ownership rules requested by a number of broadcasters who sought reconsideration of the changes that arose from the 2003 ownership reforms. 

The Chairman’s Public Notice is itself a new approach to regulation – putting out for public comment (due by December 11) an action of the Commission just before that action is to be taken.  Usually, the Commission proposes a set of rule changes in a Notice of Proposed Rulemaking, and the Notice provides time for interested parties to comment and then reply to each other’s comments.  Once all the written comments are submitted to the Commission, parties and their representative often make informal visits to the FCC to argue about the suggestions that have been made, and eventually, after much consideration, the Commission’s staff writes up a decision which is vetted by the Commissioners and their staff, and voted on by the full FCC.  Usually, these final decisions are shrouded in secrecy – though outlines of the proposals are often the subject of informed gossip and rumor, rarely does anyone see the full set of rules that the Commission is considering until after the decision is made. 


Continue Reading What Chairman Martin’s Multiple Ownership Proposals Omit – No Relief for Radio and TV