An interview with FCC Chairman Julius Genachowski has just been released by Broadcasting and Cable magazine. In that interview, the Chairman confirms press reports (which we cited here) that there is a planned FCC Notice of Inquiry to look into the news media in the digital world – the first public confirmation of this
With much of the media world celebrating the life of Walter Cronkite this weekend, we have to wonder what he would have thought about press reports that the FCC is considering the commencement of a proceeding to investigate the status of broadcast journalism – assessing its quality, determining whether the Internet and other new sources are making up for any quality that is lost, and potentially deciding to mandate specific amounts of news coverage by broadcast stations. That surprising story about a planned FCC Notice of Inquiry on the state of broadcast journalism was reported in an an online report picked up by the broadcast trade press last week. And even if that story is not true, concerns about the government’s intrusion into a broadcaster’s coverage of controversial issues arise from the recent Congressional committee action voting down a bill that would ban the FCC from reinstating the Fairness Doctrine. In what should have been a symbolic embrace of the First Amendment (symbolic as, in the last 6 weeks, four of the FCC Commissioners or Commissioners-to-be disavowed any interest in bringing back the Fairness Doctrine in their confirmation hearings ), the defeat of the bill raises questions as to whether someone has an agenda to resurrect the government’s role in assessing broadcast media coverage of controversial issues. In reading one of the many stories of the life of Cronkite (here, at page 3), we were stuck with the contrast between these actions, and the actions of Mr. Cronkite to address controversial issues – regardless of the FCC implications. One anecdote related his questioning of John Kennedy about his religion when Kennedy thought that topic off limits, even in light of the potential president’s veiled threat that, when he took office, he would be appointing the FCC who would be regulating CBS. Do we really want the FCC to have that power to assess what journalism is good, or what opinions each station must air to ensure "fairness"?
In reviewing the many FCC Fairness Doctrine claims that CBS faced in the Cronkite era, we are struck with the amount of time and money that must have been spent in defending its coverage against critics from both the right and the left. We also found one particularly relevant quote from Mr. Cronkite himself:
That brings me to what I consider the greatest threat to freedom of information: the Government licensing of broadcasting. Broadcast news today is not free. Because it is operated by an industry that is beholden to the Government for its right to exist, its freedom has been curtailed by fiat, by assumption, and by intimidation and harassment.
In the last 20 years, since Mr. Cronkite’s retirement as the CBS anchor, the FCC has steadily moved away from the role that he feared. Yet with these recent actions, one wonders if there are some in government now trying to prove Mr. Cronkite’s concerns correct.
This past week, I attended the BIAfn Winning Media Strategies Conference in Washington, DC. During the course of the conference, there was much talk about how broadcasters and publishers need to provide unique service to their communities in order to survive in the competitive media marketplace. The point was made over and over again that, in each market there are unique attributes and personalities that a station should be covering in its programming, and should be exploiting even more broadly through their digital assets, to tie it to its community. Only by doing so will the station be able to survive in the new media environment – and by doing so, the station may be able to thrive. In fact, I was stuck by a statement by USC’s Adam Clayton Powell III that domination of the local online and digital media marketplace was "the broadcasters to lose." In other words, the broadcaster has such unque promotional abilities with its current audience that it can establish its brand in the online and in the mobile world far easier than other media players. But there were also the repeated warning that there is more and more competition for this local digital market from new entrants and other media entities and that, if the broadcasters did not take advantage of their current advantage, the local service would come from someone else. What most stuck me was that there was no question that the superservice to local needs would be coming from someone – broadcaster or not – as a result of marketplace developments, not because of any government mandate. The broadcaster has to adapt to and compete in this new media marketplace or become culturally and economically irrelevant. The broadcaster needs to serve the local market to meet these challenges, not because some Washington agency has ordered him to do so. And the broadcaster needs to serve his community in a way that the public will find compelling, not in a way that the government thinks is best.
At BIAfn, the presentation that made the greatest impact was probably that of Greenspun Media from Las Vegas, which has reinvented a secondary newspaper and a Low Power TV station as an on-line powerhouse, uncovering the aspects of the community that would draw the largest audience and covering that information in great detail. The Las Vegas Sun site not only covers hard news, but also the gaming industry, University of Las Vegas sports and even state government issues in a way that its audience seems to find interesting. Even a history of Las Vegas, in great detail, is included. And video plays a big part of the site, with the company in development of a hip news and events program, 702.tv, that will soon be a daily program on the television station and online (featuring local "celebrities" doing the weather, including strippers and Neil Diamond sound-alikes). While some attendees at the conference thought that Las Vegas presented unique opportunities that might not be available in all communities, many were immediately speculating on the opportunities in their own communities to find unique personalities and events that could be developed on-air and on-line in ways to maximize their connection with their audience.
In a speech to the Free Press Summit, Acting FCC Chairman Michael Copps suggested that broadcast license renewals should no longer be a "postcard", but instead should be a real test of the broadcaster’s service to the public interest – and should happen every three years, rather than on the eight year renewal cycle that is currently provided for by the law. While the Chairman acknowledged that many suggest that the old media are in troubled times and may well be supplanted by new forms of communications, "If old media is going to be with us a while still…we still need to get serious about defining broadcasters’ public interest obligations and reinvigorating our license renewal process." In other words, while broadcasters may be dying, we should regulate them while we can.
First, it should be pointed out that the broadcast license renewal is no longer a postcard, and really hasn’t been for almost 20 years. The current renewal forms require certifications on many matters demonstrating a broadcaster’s service to the public and its compliance with the rules, and additional documentation on EEO performance and other matters. TV broadcasters also have substantial renewal submissions on their compliance with their obligations under the Children’s television rules. Issues of noncompliance with the rules resulted in many fines in the last renewal cycle, demonstrating that this is not a process where the FCC is without teeth. Yet most of these fines were for paperwork violations (e.g. not keeping detailed records of EEO outreach or quarterly issues programs lists demonstrating the public interest programming broadcast by a station), not for any substantive claims that station licensees were fundamentally unqualified and should forfeit their licenses. In fact, the Acting Chairman’s speech recognizes that most broadcasters do a fine job serving their communities, yet he believes that more regulation is necessary to police those that don’t. But is this the time to be imposing additional regulatory burdens on all of the industry, for the actions of a few. Will the overall public interest be served by such actions? .
I just finished speaking on a panel at the Radio Ink Convergence ’09 conference in San Jose. My panel was called "The Distribution Dilemma: Opportunities, Partnership and Landmines." As the legal representative, my role was, of course, to talk about the landmines. And one occurred to me in the middle of the panel when a representative of Ibiquity, the HD Radio people, about one of the opportunities available for the multicast channels available in that system, where an FM radio operator can, on one FM station, send out two or three different digital signals. The particular opportunity that was discussed was the ability to bring in outside programmers to program the digital channels, specifically talking about a recent deal where a broadcaster had entered into a deal with a company that would be brokering a digital channel in major markets, and programming that station with a format directed to the Asian communities. Broadcasters are generally familiar with the fact that, when they broker their traditional analog broadcast station to a third party, the licensee remains responsible for the content that is delivered in that brokered programming – e.g. making sure that there are no payola, indecency, lottery or other legal issues that pop up in that brokered programming. Broadcasters need to remember that that same responsibility applies to multicast streams, whether they are on HD radio or on a multicast stream broadcast by a digital television station. These stream are over-the-air broadcast channels subject to all FCC programming rules.
Foreign language programming has traditionally presented programming issues for broadcasters. In the 1970s and 1980s, there were multiple cases where broadcasters actually lost licenses because there was illegal activity taking place in brokered programming. In these cases, the programming contained illegal content and the licensee had no way to monitor the content of the programs as the licensee had no one on staff who spoke the language in which the programming was produced. The FCC basically said that the licensee had the responsibility to be able to monitor all programming broadcast on its station – so they had abdicated their responsibility to keep the station in compliance with FCC rules by not knowing what was being said in the brokered programming.
Come the New Year, we all engage in speculation about what’s ahead in our chosen fields, so it’s time for us to look into our crystal ball to try to discern what Washington may have in store for broadcasters in 2009. With each new year, a new set of regulatory issues face the broadcaster from the powers-that-be in Washington. But this year, with a new Presidential administration, new chairs of the Congressional committees that regulate broadcasters, and with a new FCC on the way, the potential regulatory challenges may cause the broadcaster to look at the new year with more trepidation than usual. In a year when the digital television transition finally becomes a reality, and with a troubled economy and no election or Olympic dollars to ease the downturn, who wants to deal with new regulatory obstacles? Yet, there are potential changes that could affect virtually all phases of the broadcast operations for both radio and television stations – technical, programming, sales, and even the use of music – all of which may have a direct impact on a station’s bottom line that can’t be ignored.
With the digital conversion, one would think that television broadcasters have all the technical issues that they need for 2009. But the FCC’s recent adoption of its “White Spaces” order, authorizing the operation of unlicensed wireless devices on the TV channels, insures that there will be other issues to watch. The White Spaces decision will likely be appealed. While the appeal is going on, the FCC will have to work on the details of the order’s implementation, including approving operators of the database that is supposed to list all the stations that the new wireless devices will have to protect, as well as “type accepting” the devices themselves, essentially certifying that the devices can do what their backers claim – knowing where they are through the use of geolocation technology, “sniffing” out signals to protect, and communicating with the database to avoid interference with local television, land mobile radio, and wireless microphone signals.
Just when you think that the year will come to a quiet end, something always seems to pop up. Today, the Copyright Royalty Board announced a Notice of Proposed Rulemaking that would change the reporting requirements for services that pay royalties for the use of sound recordings to SoundExchange. The proposed new rules would require that Reports of Use submitted by services relying on the statutory royalty contain "full census reporting" of all songs played by any service. Services would include all users of music who pay royalties due under Sections 112 or 114 of the Copyright Act – including Internet Radio, satellite radio, digital cable radio, digitally transmitted business establishment services, and radio-like services delivered by other digital means, including deliveries to cell phones. This reporting requirement would replace the current system, about which we wrote here, that only requires reporting for two weeks each quarter. Under the new rules, an Internet radio service would have to submit the name of every song that they play to SoundExchange, along with information as to how many times that song played, the name of the featured artist, and either the recording’s ISRC code or both the album title and label. Comments on this proposal are due by January 29.
Currently, the quarterly reports are filed electronically using an ASCII format and using either an Excel or Quattro Pro spreadsheet template as created by SoundExchange. The Board asks for comments as to whether there are technological impediments to providing this information in this manner, and if other changes should be made to more easily facilitate the delivery of this information. The Copyright Royalty Judges who make up the CRB expressed their opinion that the full census reporting is preferable to the limited information now provided, so that SoundExchange does not need to rely on estimates or projections to insure that all artists are fairly compensated when their works are played. Using census reporting, all artists can be paid based on how often their songs are actually played.
In several decisions released on Friday (here, here and here), the FCC fined Class A TV stations for not meeting their obligations under the Children’s Television Rules to notify their viewers about the location of their public file containing information about the educational and informational programming they broadcast directed to children…
The FCC has adopted new procedures for the submission of complaints about the failure to adequately provide closed captioning of video programming carried on television stations and cable systems. In the same order, the Commission issued clarifications about the impact of the digital transition on the obligations of stations and networks to caption programming…
In several recent speeches and press releases, FCC Commissioner Jonathan Adelstein has challenged the FCC to do more in the regulation of children’s programming. In a recent Press Release, the Commissioner outlined proposals including the following:
- Improve the V-Chip and other program blocking technologies
- Improve ratings information for television programming – including potentially having third parties review programming for its suitability to children as opposed to the television programmers themselves doing the ratings
- In the context of a proceeding on Embedded Advertising that has been rumored for quite some time, look at how such advertising is used in children’s programming
- Restrict interactive advertising directed at children.
- Convene a summit to explore these issues
In addition to these proposal, the Commissioner gave a recent speech to the Media Institute in which he expanded on these ideas, and also lengthened this agenda to include further Commission action to define and restrict violent programming. He also expressed his regrets over the recent decision overturning the FCC’s fines for fleeting expletives and urged that action be taken to overturn this decision (see our post here on the FCC’s appeal of that decision). And in yet another recent speech, he emphasized the proceeding on Interactive advertising in children’s programming, remarking on how the Commission has a pending proceeding that has been pending and unresolved for several years. He cited the Commission’s tentative conclusion to ban such ads, as broadcasters form a "portal" for children’s entrance to the Internet. While the Commissioner expressed that the FCC had little jurisdiction to do much on the Internet itself (but see our recent post as asking whether the FCC may soon get more power over the Internet), he felt that restrictions on the links to the Internet from television programs would be useful in protecting children.