Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.
…
Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.
…
With the change in administration at the FCC, there are opportunities for certain actions to be taken very quickly, without going through the full process of a rulemaking requiring public notice of the proposed rule change and time for public comment. At the end of this last week, we saw the FCC’s Media Bureau take actions in three different proceedings directly applicable to broadcasters to undo what had been done during the prior administration – rescinding actions with respect to noncommercial ownership reports, the disclosure of information about the sponsor of political advertisements, and on the treatment of TV assignment and transfer applications for television stations where shared service agreements are involved. Below, we’ll give a few details about each of those actions.
Two of the rescinded actions were January rulings by the Media Bureau which, at the time they were issued, drew statements of concern from then-Commissioners Pai and O’Rielly. The Republican Commissioners argued that the actions should have been taken by the full Commission, not the Media Bureau. As these decisions were not final (appeals can be taken or reconsideration requests can be filed within 30 days of an action, and the full Commission, on its own, can set aside a staff action within 40 days), the Media Bureau, presumably at the urging of the new Chairman, set these actions aside for further consideration by the full Commission.…
TV stations in markets outside of the Top 50, and stations in the Top 50 markets that are not affiliated with one of the Big 4 networks, need to begin to upload new material placed into their political files into their Online Public File as of July 1 – just a few weeks away. David O’Connor of my firm and I conducted a webinar for television broadcasters from 7 states last week, where we discussed this new obligation for smaller TV stations, and talked about what documents are supposed to go into the political file. We also reviewed the content of the NAB forms that are helpful in tracking the documentation that needs to go into the political file. The slides from that presentation are available here.
As we wrote in April, the FCC has already reminded broadcasters of this new obligation as of July 1, and there does not appear to be any potential that the obligation will be changed between now and the July 1 effective date. Broadcasters need not upload political file contents that were placed into the file before July 1 (they should continue to be kept in the station’s paper file for the two-year required holding period). But, starting on July 1, all new political file documents need to be placed into the station’s Online Public file accessible through the FCC website.
Continue Reading A Presentation on the Obligations of Small Market TV Broadcasters to Begin To Upload Their Political Files into Their Online Public File as of July 1
The FCC has announced that the obligation for television broadcast stations to post their public inspection files online will become effective August 2, 2012, absent a stay requested by the National Association of Broadcasters (NAB), which has appealed the rule to the US Court of Appeals for the DC Circuit.
Absent a stay, the rule requires full power and Class A television stations to post any NEW public file documents online at an FCC-hosted website as of August 2nd. Those broadcasters will have six months or until February 2, 2013 to post PRE-EXISTING public file documents online.
The political public file, which is the subject of the NAB appeal, will be treated a bit differently. NEW political public file documents must be posted effective August 2 by only the top four network affiliated stations (ABC, CBS, NBC and Fox) in the top 50 markets. There is no requirement to post pre-existing political file documents online.
All other TV stations (i.e. non-network affiliated stations in the top 50 markets and ALL TV stations outside of the top 50 markets), do not have to post political public file documents online until July 1, 2014.…
Continue Reading Online Public File Requirement for TV Broadcasters Effective August 2, 2012
Does a broadcast station need to book a political ad buy for an agency purporting to be representing a candidate, but refusing to reveal who that candidate is? We’ve recently received this question from a number of broadcast stations in a number of states, as agencies seemingly are jockeying to tie up valuable commercial time in advance of what is likely to be a hotly contested election in November. This seems to be happening particularly with stations that have coverage areas that include parts of certain “swing states” in the Presidential election, or in states with crucial Congressional or Senatorial elections. It seems to us that, unless and until you know that there is a real candidate, there is no obligation for a station to book time for a hypothetical candidate or candidate to be named later.
Booking time for an unknown candidate raises numerous issues for a station. How can a station account for the sale of that time in its political file? If it doesn’t know who the candidate is, it can’t place the required information (which includes the candidate’s name) into the political file. Booking time for a political candidate gives rise to equal opportunities obligations, even outside the 45 and 60 days political windows. How can you determine to whom you owe equal time when the station itself doesn’t even know who the candidate is? And, if the agency even refuses to reveal if it is a Federal or state campaign for which it plans to buy time, making time available to an agency on behalf of an unknown candidate that turns out to be a state candidate may cause the station, through the application of equal opportunities, to have to sell time for a race to which it did not intend to provide access, or to open up dayparts to that state race when it did not intend to offer those dayparts to state candidates. In fact, without knowing the candidate, how can the station assess whether the candidate is legally qualified, or that the time is being purchased by an authorized candidate committee? …
While rumors are flying that the FCC is rushing to adopt its proposals to require that TV stations put their public inspection files online (see our summary of the proposals here), both the FCC and public interest groups are targeting the public files of television stations – looking to copy some or all of those files. Rumors are that the FCC inspected the public files of all television stations in at least one city – and asked for copies of the complete files to be produced at the FCC within a day or two, in some cases requiring the copying of several file cabinets worth of material very quickly. Whether this inspection is a one-shot deal or the start of a program to audit the files of TV stations across the country is unclear. At the same time, public interest groups have been urging their members to inspect TV station public files across the nation, to copy parts of those files, and to post the information that they collect online. TV stations across the country need to be prepared for these inspections.
Why these actions now? Some may think that the FCC is just conducting a random audit, while others may suggest that the demand for complete public files is just a fact-finding mission as part of its rulemaking process. The more suspicious of broadcasters may think that this represents the FCC sending a message that the online public file is coming, and stations may find it easier to accept the online file rather than facing these demands for the instant reproduction of their entire files to be inspected at leisure in Washington. …
While the FCC is entertaining comments on its proposal to move the public inspection file for broadcast television stations online (see our article here), the existing physical public files of several New York area broadcasters came under examination by the New York Times, according to an article in Sunday’s paper. The article seemed to both make fun of the contents of the required public file, while at the same time noting that the people at several stations contacted by the reporter seemed to be unaware of the Commission’s requirements that the file be made available immediately to anyone who visits a station and asks to see it, and that requiring appointments is not an option. We’ve written in the past about stations that received substantial fines for requiring a visitor to make an appointment to see a station’s files (see, one case where a commercial TV station was fined $10,000, and another where a noncommercial FM was fined $8000 for a similar violation). If the NY Times article is accurate, stations need to reexamine their policies and be sure that those dealing with the public know of the location of the file and the fact that it must be made available upon request – no questions asked. For more information about the public file requirements, see our Guide to the Basics of the Public Inspection File for Commercial Stations, here.
The second aspect of the report, poking some fun at some of the weird comments from the public found in the file, reinforces some of what I have been told by broadcasters. At a broadcaster meeting last week, I was told stories of station public files that have expanded exponentially since the FCC added a requirement that the file contain emails from the public, as well as letters. Broadcasters report that the letters from the public can now often take up several drawers of a file cabinet, while the remainder of the file fits in a single drawer. While the Commission has tentatively concluded that these letters would not be required to be included in the electronic online file, the recent rulemaking proposal did suggest that the letters be retained at the station, and that perhaps summaries of the written comments be made part of the online file. In addition, comments were requested as to whether social media posts about station operations be kept in some fashion – even though sites like Facebook and Twitter, by their very nature, keep most of what it posted on their sites for the public to view (see our summary of the proposals here). Broadcasters at my meeting last week were very concerned about the volume of paper that would generate, and the need for manpower to review Twitter feeds and Facebook posts almost around the clock to see if any needed to be placed into the file as they related to the station operations.…
The FCC has set the date for comments on the proposal for television stations to maintain an online public inspection file, including an online political file (see Federal Register notice here). Comments are due on December 22. Replies are due on January 6. Happy Holidays from the FCC! We summarized the FCC’s proposals here and here. While the proposed new rules will relieve stations from the burden of hosting the files themselves (as the FCC is proposing to host all of the files on its own servers), it still requires that stations upload their information – including all information that is put in their political file, into a new electronic reporting system to be devised by the FCC. As we described in detail in our summary of the proposal for the online public file, the FCC is asking whether certain new public file obligations should be added to those currently in place. These include possible posting of comments on programming that come from the station’s social media efforts in addition to the letters and emails currently required; a proposed requirement to place in the public file information about sponsorship identification of all "pay for play" material that is broadcast on a station (currently only broadcast, not kept in any paper form); a requirement to provide information about shared services agreements and the programming that they provide to a station; and a requirement that all information about fines and other enforcement actions taken against a station be posted to the online file. So how much does the FCC think that this will cost stations?
As we wrote yesterday, in adopting rules, the FCC is currently bound by the Paperwork Reduction and the Regulatory Flexibility Acts, both of which require some assessment of the impact of new regulations, particularly on small businesses. In the Federal Register publication, the FCC’s assessment of the regulatory burden of these proposed new obligations is broken down into several pieces. The burden for the new online public file requirement, including the posting of the political file, is set forth as follows:
Respondents/Affected Parties: Business or other for-profit entities; Not for-profit institutions; Individuals or households
Number of Respondents and Responses: 25,422 respondents; 59,833 responses
Estimated Time per Response: 1 to 104 hours.
Frequency of Response: On occasion reporting requirement; Recordkeeping requirement; Third party disclosure requirement
Obligation To Respond: Required to obtain or retain benefits. The statutory authority for this collection of information is contained in 47 U.S.C 151, 152, 154(i), 303, 307 and 308
Total Annual Burden: 2,158,909 hours
Total Annual Costs: $801,150.00
Stations should look at and evaluate these numbers as part of their response, as the FCC has invited a cost-benefit analysis of the proposed new rules. How is it that the FCC assumes that the regulatory burden would be over 2 million hours, but that the costs would be less than a million dollars? How will this work be done and paid for? It is also interested in that the number of respondents is listed as 25,422. As there are only 1,782 full-power television stations and about 450 Class A stations according to the last FCC Report on station totals, who else is expected to report on this form? The FCC, in its Notice of Proposed Rulemaking, specifically exempted radio from the obligations for an online public file – at least for the time being.…
The full text of the FCC’s Order overturning its 2007 decision on online public inspection files for TV broadcasters and the adoption of the Form 355 "enhanced disclosure form" has now been released. This order, adopted at the FCC’s open meeting this week (held on October 27, 2011, which we wrote about here), also contains a Further Notice of Proposed Rulemaking again suggesting an online public file, but this time it would be one hosted by the FCC. In reading the full text, more details of the FCC’s proposal become clear. As set forth below, the Order suggests everything from a future application of these rules to radio once the bugs have been worked out, to an examination of whether a station needs to save Facebook posts and other social media comments in the same way that it preserves letters from the public and emails about station operations, to a proposal for stations to document in their files information about all "pay for play" sponsorships. Comments on these proposals, and the others summarized below, which include a request for detailed information about the costs of compliance with the proposals, are due 30 days from when the order is published in the Federal Register, with Reply Comments due only 15 days thereafter. The FCC, after sitting on these obligations for almost 5 years, now seems to be ready to move quickly.
In reaching it’s decision, the order first discusses some proposals that it was rejecting – some for the time being. For radio broadcasters, the most important of the rejected thoughts was the extension of this rule to radio. The Commission noted that there were proposals pending and ripe for action as part of the Localism proceeding (which we summarized here), to extend the online public file obligations to radio. In this week’s order, the FCC decided that it was not yet ready to apply these rules to radio. The Commission noted that there might need to be differences in the rules for radio (implying that, at least partially, there might be resource issues making it difficult for radio broadcasters to comply with these rules), and also finding that it would be better to see how an online file works for TV before extending the rule to radio. But, from the statements made in the Order, there is no question but that, at some point in the future, some form of the obligations that are proposed for TV will also be proposed for radio broadcasters.
Also, it is important to note that the FCC’s Localism proceeding is not dead yet. While this week’s Order stems from the FCC’s Future of Media Report (renamed the Report on the Information Needs of Communities), and that report recommended that the Localism proceeding be terminated, this Order did not do that. The Commission notes its plans to start a new proceeding designed to force broadcasters to complete a more comprehensive report on their public interest programming. That proceeding may be where the looming Localism proposals are finally dealt with. Statements at the meeting and passages in the Order make clear that the examination of the public interest obligations for broadcasters will begin with a Notice of Inquiry, which is a most preliminary stage of an FCC proceeding (which would be followed by a Notice of Proposed Rulemaking after the inquiry comments are reviewed) and then an Order. So final resolution of these issues seem to be far down the road. If that is the case, will the Localism proposals stay on the table until the Order in this new proceeding is adopted? It is certainly unclear from the Commission’s statements thus far.…
