Programming Regulations

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At its meeting today, the FCC vacated its 2007 Order mandating an online public file and the filing of the Form 355 “Enhanced Disclosure” form that detailed the public interest service of television broadcasters. But these requirements are not gone, as the Commission has adopted a Further Notice of Proposed Rulemaking asking to reinstate an obligation for an online public file, and a Notice of Inquiry is apparently circulating at the FCC that would propose a substitute for the Form 355. The proposal for the new online public file apparently also suggests including new information in the online file, including information about sponsorship identification and copies of shared service agreements. While the text of the FCC order is not yet out, from the information provided at the FCC meeting, the following matters appear to be on the table at the FCC:

  • The FCC proposes that TV broadcasters will need to have an online public file, submitted to and maintained on servers at the FCC rather than on each individual station’s website
    • Several Commissioners suggest that the Commission will develop a mechanism for accessible storage of online public files, which may be searchable by the public
    • The online public file form will automatically import other FCC filings that are required to be in the file
    • Until the FCC electronic database is perfected, the documents will be placed online in their current formats
  • Letters from the public concerning station operations are proposed to be excluded from the online file out of privacy concerns, though broadcasters will still need to keep those letters in a public file at the station.
  • The online public file is proposed to include the political file, which was exempt under the 2007 rule as it would be too burdensome to update that report rapidly during an election season
  • The online file is proposed to include additional material not now required to be in the public file, including:
    • Copies of shared services agreements
    • Sponsorship identification information that is now only broadcast on air in connection with the program in which sponsored material is included
  • The FCC is currently considering a Notice of Inquiry, a draft of which is apparently circulating among the Commissioners now, that proposes some form of enhanced disclosure form that will replace the Form 355 (and the current Quarterly Programs Issues list) to document the public service provided by TV broadcasters

Continue Reading FCC Proposes Revised Rules for Online Public File – Including Political File – and Discusses the Public Interest Obligations of TV Stations

Yesterday, the FCC released an Order that reversed a five-year-old decision by its Consumer and Governmental Affairs Bureau (“CGB” or “Bureau”) that had granted certain video programmers “undue burden” exemptions from the FCC’s closed captioning rules. The reversed Bureau decision had changed the criteria for undue burden exemptions and permanently exempted two video programmers from compliance with the closed captioning rules on the basis of the new criteria. Finding that the Bureau’s new criteria deviated from both the statute and FCC precedent, the Commission overturned the decision, reversed 296 subsequent exemptions that had been granted by the Bureau in reliance thereon, and reinstated the original criteria for captioning exemptions. DWT has just released an advisory that provides more detail about the Commission’s decision, which can be found here. In addition, a copy of the Commission’s Order can be found here.

In overturning the undue burden exemptions CGB approved in 2006, the Commission found numerous faults with both the Bureau’s initial decision and its handling of hundreds of subsequent petitions seeking similar exemptions. Although undue burden exemptions were to be reviewed by the Commission on a case-by-case basis after opportunity for public comment and were to consider four factors: (1) the nature and cost of the closed captions for the programming; (2) the impact on the operation of the provider or program owner; (3) the financial resources of the provider or program owner; and (4) the type of operations of the provider or program owner, the Bureau deviated from previous Commission decisions by expanding the scope of the factors considered.  In particular, its decision relied primarily on the non-profit status of programming providers and that the programming was not produced for primarily commercial purposes.  Further, the Bureau found captioning programs would constitute a “significant hardship” and that there was a significant risk that mandating captioning would cause the video programming provider to cancel the programming.
 Continue Reading FCC Overturns Hundreds of TV Closed Captioning Exemptions and Clarifies “Economically Burdensome” Standard in Connection with Captioning Rules

Online public files, detailed reports about virtually every program aired on a television station as to its source and whether it addressed various types of perceived community interests, and other paperwork requirements that would have required most television stations to hire a new employee just to deal with the burden, were all part of mandatory television public interest reporting requirements adopted by the FCC back in 2007 (see our articles here and here on these reports on FCC Form 355).  Similar obligations were also proposed for radio but never adopted.  The TV "enhanced disclosure" rules have never been implemented, however, and were apparently never even submitted to the Office of Management and Budget  for approval of their compliance with the Paperwork Reduction Act.  The numerous petitions for reconsideration filed against these rules are on the tentative agenda for the next FCC meeting, to be held on October 27.  Not only is the disposition of these petitions on the agenda, but a proposal for a further proceeding to look at new requirements for an online public file, to be hosted by the FCC, is to be considered at the same time.  What can broadcasters expect to happen?

In the Future of Media Report issued by the Commission earlier this year (actually renamed the Report on the Information Needs of Communities), the FCC study group recommended abolishing these 2007 rules, and terminating the proceeding looking at imposing them on radio (see our summary here).  The Report seemed to recognize that the reports were far too burdensome on licensees, and were not reasonably related to the current FCC rules on programming.  In essence, the reports required the collection of lots of information, without any regulatory purpose for the information collected.  In light of these findings, and the 4 year delay in implementing the rules already adopted, it seems safe to conclude that the 2007 rules are probably on their way out.  But the accompanying notice suggesting that the FCC will begin a new rulemaking to look at the online public inspection files, to be hosted by the FCC, raises questions about what will replace the 2007 rules.Continue Reading TV Public Interest Obligations and Online Public Inspection File on Agenda for Next FCC Meeting

The end of September marks the close of the Third Quarter of 2011, which brings two quarterly filing obligations for broadcast stations.  The first obligation is that by October 10 all radio and television stations, both commercial and noncommercial, must prepare and place in their public inspection file Quarterly Issues Programs Lists reporting on the important…

The FCC just issued a Report to Congress concerning the access of television viewers to in-state television stations.  This report was requested by Congress as part of STELA (the Satellite Television Extension and Localism Act), which extended the compulsory license for direct to home satellite television operators (DISH and DirecTV) – a license which gives them copyright clearances to retransmit all the programming transmitted by the broadcast television stations that they make available as part of their service packages.  Congress also requested a Report from the Copyright Office on the need for the compulsory license – a report also issued this week, which we will write about in another article.  The issue of access to in-state television stations has been a controversial issue, as several Congressmen have sought (and in a few cases actually received) legislative authority for cable providers to carry out-of-market television stations on cable systems serving areas in one state that are part of television markets where the television stations come from a different state.  The report refers to these areas as "orphan counties."  Once legislative authority was granted in one state, many other bills popped up in Congress trying for the same relief in their state – causing concern that the existing television markets (or Designated Market Areas or "DMAs", designated by the Nielsen Company) might be undermined.  To see what impact such changes would have, Congress requested this report from the FCC.

The report for the most part does not make recommendations, but instead simply provides information about the service provided to US television viewers, the potential options for bringing an in-state service to all viewers, and the issues that such proposals would raise. Perhaps the most interesting fact revealed by the report is that 99.98% of all US television households already have access to an in-state television station, either over-the-air or through a Multichannel Video Programming Distributor (e.g. cable or satellite TV system), so this is a very isolated issue.  However,when the FCC sought comments on the issues discussed in the report, a number of individuals in particular DMAs responded about situations where they could not get access to in-state television stations and asked that something be done.  The report assesses the implications of any action that could be taken.Continue Reading FCC Issues Report to Congress on Access to In-State Television Programming

Yesterday, FCC Chairman Genachowski issued a press release stating that the FCC was abolishing the Fairness Doctrine as part of its clearing of its book of 83 obsolete media rules.  What should the reaction of broadcasters be now that the Fairness Doctrine has been officially abolished?  Probably, a collective yawn.  In 1987 – almost 25 years ago – the FCC felt that it could not enforce the doctrine as it was an unconstitutional restriction on the freedom of speech of broadcasters.  Since then, we have had no instances where the FCC has tried to revive the doctrine.  While, as we have written before, the revival of the doctrine is a political issue that is from time to time bandied about as something horrible one political party or another plans to impose on America, there really has been no serious attempt to bring the doctrine back in this decade.  So the repeal of the actual FCC rule that sets out the doctrine is really inconsequential, as it practically changes nothing.

What remains unknown about yesterday’s announcement from the Chairman is just how far this repeal goes.  While certain corollaries of the Doctrine – including the political editorializing and personal attack rules – have been specifically mentioned in press reports as being repealed, the one vestige of the doctrine that potentially has some vitality – the Zapple Doctrine compelling a station to provide time to the supporters of one candidate if the station provides time to the supporters of another candidate in a political race, has never specifically been abolished, and is not mentioned in the Chairman’s statement.  Zapple, also known as "quasi-equal opportunities", has been argued in in various recent controversies, including in connection with the Swift Boat attacks on John Kerry, when Kerry supporters claimed that they should get equal time to respond should certain television stations air the anti-Kerry Swift Boat "documentary."  We have written about Zapple many times (see, for instance, here, in connection with the Citizens United decision).  What would be beneficial to broadcasters would be a determination as to whether Zapple has any remaining vitality, as some have felt that this doctrine is justified independent of the Fairness Doctrine.  Perhaps that clarification will come when the full text of the FCC action is released.Continue Reading FCC Repeals the Fairness Doctrine – Who Cares?

US broadcasters often complain about FCC regulations on programming, but they don’t realize how easy they have it compared to much of the rest of the world.  I recently spent several days in one of the former Soviet Republics discussing broadcast regulation with broadcaster representatives, employees of the country’s regulatory agency, and members of citizen advocacy groups.  What seemed most surprising to those in this developing capitalist country was the fact that, in the US, broadcasters can change formats at will to react to marketplace conditions.  This is not a freedom enjoyed in much of the rest of the world – even in Western Europe or in Canada.  We’ve written many times (see, for instance our article here) that the FCC does not consider format issues – even where there are citizens complaints about a proposed change in format or a sale of a station that will probably lead to such a change.  In fact, just last Friday, the FCC again reached that same conclusion, finding that it will not prevent a sale because the sale will result in a format change.  The FCC has determined that format choices are a business decision protected by the First Amendment, so broadcasters are free to change at will, without the government interfering in these programming decisions.

In the country that I visited, their regulatory agency issues station licenses with strict format restrictions.  The agency even regulates networks (both broadcast and cable) to make sure that their programming meets the needs of the communities that they are intended to serve and that the programmers comply with various regulatory and structural requirements.  Unlike in the US, where there may be penalties when a company violates the limited program restrictions that are in place (e.g. political broadcasting, children’s television obligations, indecency rules), in many countries, even the decision as to what kind of entertainment programming to offer is subject to government review.  This country is certainly not unique in regulating broadcasting in that way.  In looking at the website of Ofcom, the regulatory authority for the United Kingdom, you can see how closely formats are regulated.  One recent request for public comment (which could not be approved on an expedited pro forma basis as it was deemed to raise significant questions requiring public input before a decision could be made), proposed the following change in the format of a radio station:

Current Character of Service

A RHYTHMIC-BASED MUSIC AND INFORMATION STATION PRIMARILY FOR LISTENERS OF AFRICAN OR AFRO-CARIBBEAN ORIGIN, BUT WITH CROSS-OVER APPEAL TO YOUNG WHITE FANS OF URBAN CONTEMPORARY BLACK MUSIC AND AT LEAST 26 HOURS A WEEK OF IDENTIFIABLE SPECIALIST MUSIC PROGRAMMES (TO INCLUDE REGGAE, RnB AND HIP HOP RHYTHMIC-BASED (e.g. DANCE, CLUB etc).

Proposed Character of Service

A RHYTHMIC-BASED MUSIC-LED SERVICE FOR 15-29 YEAR-OLDS SUPPLEMENTED WITH NEWS, INFORMATION AND ENTERTAINMENT. THE SERVICE SHOULD HAVE PARTICULAR APPEAL FOR LISTENERS IN THEIR 20s AND AT LEAST 12 HOURS A WEEK OF IDENTIFIABLE SPECIALIST MUSIC PROGRAMMES.

Can you imagine a requirement that the FCC look at each proposal of a radio station to make programming changes along the lines set out above?  Some US stations make these kind of changes routinely, trying to fine tune their programming to provide the best service that they can to the public.  Stations in the US do the research to determine what programming they will broadcast, and how to insure that programming will reach the biggest and best audience – and the station’s decisions are not subject to second guessing by the government.  In some of these other countries, the government does the research to determine what format it thinks is best for the public.  While we had more regulation in the past – these systems are obviously far different from what we do in regulating formats today.Continue Reading FCC Once Again Declines to Intervene In Format Dispute – US Broadcasters Have it Easy Compared to Much of the World

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 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 own. Continue Reading FCC Makes Clear It Doesn’t Regulate Formats – Rejects Petition Against Sale of Noncommercial Station