Noncommercial Broadcasting

Noncommercial broadcasters get no breaks when dealing with proposed FCC fines, said the Commission’s Media Bureau in two cases released this week.  While many noncommercial broadcasters may yearn for a day when they were treated leniently if violations were discovered – getting off with perhaps an admonishment letter – those days are over, as they have been for some time. In one case released this week, the FCC specifically states that noncommercial broadcasters are no different than commercial ones when dealing with fines (or "forfeitures" as they are called by the FCC).  If the noncommercial broadcaster violates a rule, they will be treated just like a commercial broadcaster, and have to pay the same fine as would the commercial broadcaster.  

Noncommercial broadcasters have often argued that they cannot afford to pay big fines, as their budgets are limited.  Even when noncommercial stations are owned by colleges or local governments, they have limited budgets, and fines don’t figure into them.  But, in two recent cases, the FCC has rejected arguments for the reduction of proposed fines based on financial hardship, in both cases finding that the budget of the station was not important – it is the total budget of the licensee that is important in assessing if a fine is too much (see our post about how the FCC determines if a fine should be reduced because its payment would create a financial hardship on a station).  In the case cited above, the FCC said that it was the local government agency (a metropolitan school district) that was the licensee, and its financial resources should have been assessed in determining whether the proposed fine was too great.  In a second case, it was a state university that owned the station, and the FCC said that it would look to the overall finances of the university in determining if the fine was too high – not the amount budgeted for the station.  In neither case had the licensee put forward a financial showing for the full licensee organization, so the FCC rejected the requests for reductions of the fines based on financial hardship.Continue Reading FCC Makes Clear Noncommercial Broadcasters Get No Breaks on FCC Fines, Nor on Financial Hardship Showings

The FCC today heard from its Future of Media task force, when its head, Steven Waldman presented a summary of its contents at its monthly meeting.  At the same time, the task force issued its 475 page report – which spends most of its time talking about the history of media and the current media landscape, and only a handful of pages presenting specific recommendations for FCC action.  The task force initially had a very broad mandate, to examine the media and how it was serving local informational needs of citizens, and to recommend actions not only for the FCC, but also for other agencies who might have jurisdiction over various media entities that the FCC does not regulate.  Those suggestions, too, were few in the report as finally issued.  What were the big headlines for broadcasters?  The report suggests that the last remnants of the Fairness Doctrine be repealed, and that the FCC’s localism proceeding be terminated – though some form of enhanced disclosure form be adopted for broadcasters to report about their treatment of local issues of public importance, and that this information, and the rest of a broadcaster’s public file, be kept online so that it would be more easily accessible to the public and to researchers.  Online disclosures were also suggested for sponsorship information, particularly with respect to paid content included in news and informational programming.  And proposals for expansion of LPFMs and for allowing noncommercial stations to raise funds for other nonprofit entities were also included in the report. 

While we have not yet closely read the entire 475 page report, which was tiled The Information Needs of Communities: The Changing Media Landscape in a Broadband Age, we can provide some information about some of the FCC’s recommendations, and some observations about the recommendations, the process, and the reactions that it received.  One of the most important things to remember is that this was simply a study.   As Commissioner McDowell observed at the FCC meeting, it is not an FCC action, and it is not even a formal proposal for FCC action.  Instead, the report is simply a set of recommendations that this particular group of FCC employees and consultants came up with.  Before any real regulatory requirements can come out of this, in most cases, the FCC must first adopt a Notice of Proposed Rulemaking, or a series of such notices, and ask for public comment on these proposals.  That may take some time, if there is action on these suggestions at all.   There are some proposals, however, such as the suggestion that certain LPFM rules be adopted in the FCC’s review of the Local Community Radio Act so as to find availability for LPFM stations in urban areas, that could be handled as part of some proceedings that are already underway.Continue Reading Recommendations from the Future of Media Report: End Localism Proceeding, Require More Online Public File Disclosures of Programming Information, Abolish Fairness Doctrine

The question has recently arisen as to when underwriting announcements can be aired on noncommercial radio and TV stations.  The New York Times recently quoted me on the subject in an article discussing the plans of PBS to experiment with putting underwriting announcements in programming, rather than merely in the breaks between the end of one program and the beginning of the next.  The FCC rules for both radio and TV state, in italics, that the scheduling of underwriting announcements "may not interrupt regular programming."  What does that mean?

In 1982, in adopting the rules as to the timing of sponsorship announcements and the acknowledgment of donations, the FCC relied on what was then a recently-enacted statute addressing the sponsorship of public broadcasting programming.  The House of Representatives report adopting that legislation contained language interpreting the meaning of the prohibition against these announcements interrupting regular programming.  The FCC relied on that language in adopting the rules currently on the book.  There, Congress said that announcements could be run "at the beginning and end of programs,…between identifiable segments of a longer program" or, in the absence of identifiable segments, during "station breaks" where the flow of programming was "not unduly disrupted."  For radio, this seems like a much easier test to meet, as there are always breaks in programs, e.g. between stories on a news program like Morning Edition, between guests on a program like Fresh Air, or between music sets on a noncommercial music-oriented station.  For TV, the issue is somewhat more complicated, thus the questions that the Times wrote about in connection with the PBS tests.Continue Reading When Can Underwriting Announcements Be Run on Noncommercial Radio and TV Stations?

How do you determine who is control of a noncommercial broadcaster governed by a self-perpetuating Board of Directors?  That question was addressed in a recent FCC decision, dismissing an application for a new noncommercial FM station that had not properly disclosed its owners on its FCC Form 340 application. In that case, the applicant had reported to the FCC

The sale of a noncommercial radio station is often controversial, especially when it’s clear that the format of the station will change after the transfer.  In a decision released last week denying a Petition to Deny challenging the application for the sale of KTRU, the noncommercial radio station owned by Rice University, the FCC again made clear that they are not in the business of regulating the formats of broadcast stations.  For 30 years, the FCC has held firm to its position that the marketplace is best for deciding on what format a station should broadcast.  Thus, when Rice University students argued that the sale of their station and the loss of the diverse format that the station had programmed would harm localism and diversity, the FCC rejected the argument.  Seemingly, that decision makes sense, as we don’t want a government agency becoming a czar of the programming offered by broadcast stations.  When we see decisions from the regulatory bodies in the United Kingdom or Canada sanctioning stations that don’t stick to their legally proscribed formats, we wonder how such a system could possibly function in the US.  Can you imagine the FCC fining a station because it played too many hits on an alternative station?  Of too much rock on an Adult Contemporary station?  Once the FCC or any government agency gets into regulating formats, these sorts of decisions will follow.  Luckily, based on this decision and the prior 30 years of precedent, we won’t have to worry about such an eventuality.

The Commission also rejected other objections to the sale of KTRU. The Petitioners had challenged the noncommercial purpose and educational plan of the buyer – an argument summarily rejected as the buyer was already the licensee of another noncommercial station in the market.  The ownership of that station led to another argument – that the sale would violate ownership limits by concentrating too many noncommercial stations in the hands of one operator.  But the FCC made clear that there are no ownership limitations on how many noncommercial stations one company can ownContinue Reading FCC Makes Clear It Doesn’t Regulate Formats – Rejects Petition Against Sale of Noncommercial Station

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

Under FCC policies, stations licensed as noncommercial educational (NCE) stations cannot conduct fundraising for parties other than the station licensee if such fundraising will disrupt the normal program schedule of the station.  So the Jerry Lewis Telethon and similar charitable programming efforts cannot be conducted by noncommercial stations without a waiver from the FCC.  In recent

Fines for noncommercial broadcasters who air acknowledgments of their donors and contributors that sound too much like commercials have been a problem area for many noncommercial educational radio and television stations, and have resulted in significant fines from the FCC.  The FCC allows "enhanced underwriting announcements" that identify a sponsor, what their business is

The FCC today issued fines of as much as $12,000 for public file violations.  Together with the fine issued earlier this week for a station that did not allow unrestricted access to its public file, these actions make clear how seriously the FCC takes the obligations of broadcast stations to maintain and make available their public inspection files.  The fines issued today went to both commercial and noncommercial stations, with two noncommercial stations each receiving fines of $8000 for not having complete public files.  Violations are expensive – even if your station is owned by a noncommercial entity.

The largest fine, $12,000, went to a commercial station that, when inspected by FCC Field Inspectors in March 2010, could not produce anything in its public file more recent than 2006.  While the licensee claimed that the documents were kept at the office of the station owner several hundred miles away, the FCC found that the violation of having nothing from more than 3 years of operation was so egregious that an upward adjustment from the standard $10,000 public file fine was warranted.  The two fines issued to noncommercial stations were not as egregious, but still resulted in significant fines.  A review of the details of those cases are instructive as to the excuses and mitigating circumstance that the FCC rejected when the licensees tried to argue for a significant reduction or elimination of the fine.  Continue Reading Big FCC Fines for Public File Violations for Commercial and Noncommercial Stations