On September 10, 2009, David Oxenford addressed the Christian Music Broadcasters’ Momentum ’09 Conference in Orlando, Florida. Dave’ s presentation was titled 18 Issues in 18 Minutes: What a Broadcaster Should Worry About From Washington DC. In 18 minutes, Dave discussed topics including the FCC’s proposed localism rules, sponsorship identification and noncommercial underwriting issues, contest fines, FCC technical
A recent stir was created when a Midwestern television company was reported to have signed a contract with a state government agency, promising to market the agency and its programs throughout the state. This promotion was to include a segment in the company’s televised news promoting the effects of the work of the agency. Questions were immediately raised about whether this was prohibited by FCC rules. But, when the news pieces ran, the company was very careful to state after these segments that they were sponsored by the station and the state agency. As the FCC has no rules about what can be included in the "news" (and probably could not consistent with the First Amendment), the only real issue was one of sponsorship identification. As the licensee did here, if the sponsor of the story is identified, making clear to the public who was attempting to persuade them on the issue addressed, there should be no FCC issues.
This is different from the issues that have arisen previously at the FCC, where there have been fines levied against television stations and cable systems for airing programming that was sponsored, but for which no sponsorship identification was provided (see our posts here and here). This includes the video news release or VNR issues, where the FCC has fined stations for using news actualities provided by groups with a financial interest in the issue that was being addressed, but without identifying the fact that the material was provided by the interested parties. Where a program addresses a controversial issue of public importance, the disclosure rules are more strict, requiring that the station not only disclose that it received money to air a story – but to also disclose anything that it got from the interested party – including tapes or scripts.
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.
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…
This week, an interesting concept has been advanced in a series of applications filed with the FCC. Ion Media Networks, the successor to Paxson Television, has proposed to transfer some of its broadcast stations to a new company, Urban Television LLP, to be owned 51% by Robert Johnson, the former owner of BET, and 49% by Ion itself. But, when we say that they are transferring "some" of its stations, we don’t mean that any of its stations are being transferred, but instead only that a piece of its stations are proposed to be transferred. Ion proposes to continue to own and operate stations in every market where it currently operates, but proposes to sell digital multicast channels to Johnson. Unlike any LMA or other programming agreement, the proposal is to actually take one 6 MHz television channel and break it up so that Ion continues to program one channel with its programming and the Urban Television will program the other channel with its programming, and become the actual license of that portion of the spectrum. The FCC has accepted the applications and issued a Public Notice, giving parties 30 days to file comments on the proposal.
It is not unheard of for two licensees to share the same channel – though where it is currently occurs most frequently is in connection with noncommercial broadcasters who share a single radio or TV channel, they divide it by time, so that one licensee operates, say midnight to noon and the other operates from noon to midnight. Obviously, in these shared-time arrangements, both broadcasters are not operating on the same channel at the same time. This new proposal, though, does not come out of the blue. The idea of allowing a broadcaster to sell a digital channel to a different company, has been proposed before, for both Digital Television and Digital HD Radio channels when the original station is multicasting, as a way to increase diversity of ownership.
The FCC today adopted new requirements for television broadcasters to quarterly file a report with the FCC quantifying their service to the public. The order also requires that stations keep their public file on their website, if they have a website. Broadcasters will also be required to broadcast twice each day a notice as to how listeners can find their public file. This order resolves some of the issues raised in a rulemaking proceeding (about which we wrote here) begun over 7 years ago as part of the rules to govern TV’s digital transition. Yet these new rules apply to analog as well as digital television operations. In fact, the public file rule goes into effect 60 days after the publication of the FCC’s order in the Federal Register.
The new FCC form will replace the Quarterly Issues Programs lists prepared by licensees since the mid-1980s. The Quarterly Issues lists were originally adopted to replace more detailed reporting requirements which forced broadcasters to collect and file the same types of information that the FCC is now requesting. While the new forms are not yet released, from the discussion at the FCC meeting, it appears that they will require the following information:
- Details about civic and election coverage provided by the station
- Information about programming from independent producers that is aired by the station
- Information about the number of Public Service announcements (PSAs) aired by the station
- A description of efforts that the station has undertaken to serve its community
- Specifics about emergency information provided by the station
- Information about how emergency and other information is provided to viewers with disabilities
- There was also some discussion that indicated that the reports would require information about how stations ascertain the needs of their community that are addressed in their programs.
The FCC has released the agenda for its Open Meeting to be held on Tuesday, November 27. The agenda is full of issues of importance to broadcasters, and several items may resolve issues that may be troubling – including issues relating to low power FM stations (LPFM) and resolving a long outstanding proceeding concerning the possibility of mandatory public interest obligations for TV stations. The Commission also has on tap initiatives to encourage the entry of minorities and other new entrants into the broadcast business – even though comments on the Commission’s proposals on this matter were received just a month ago.
First, the Commission is to release an Order on Low Power FM. We have written about some of the issues that could be decided previously – including issues of whether or not to allow the assignment and transfer of such stations (here) and whether to give these stations preferences over translators and even improvements in full power stations (here and here).
On the TV side, the Commission seems ready to issue an order on the public interest obligations of television operators. We wrote about the proposals – made as part of the Commission’s DTV proceedings (though to be applicable to all TV stations), here. Proposed rules included the standardization of quarterly issues programs lists, making station’s public fies available on the Internet, and quantifying other public interest obligations.
A reminder to all radio and television broadcast stations, both commercial and noncommercial, that Quarterly Issues Programs Lists reporting on the important issues facing the stations’ communities, and the programs aired in the months of July, August, and September dealing with those issues must be prepared and placed in the stations’ public inspection file…
Every day, on almost every television channel, it seems as if you can find a presidential candidate making an appearance – and it’s not just on the Sunday morning political interview programs. Last week, it was Hillary Clinton on the David Letterman Show (where her husband is scheduled to appear this week). In the last two weeks, both Barack Obama and John McCain have made the pilgrimage to talk with John Stewart on the Daily Show. Mike Huckabee seems to be a fixture on the Colbert Report. And at the end of last week, TNT reportedly stated that, candidacy or not, it would continue to run episodes of Law and Order featuring Fred Thompson. With all of these appearances of candidates on television, one might wonder if the FCC’s Equal Opportunities (a/k/a the "Equal Time") rules FCC have been repealed. In fact, it appears that all of these appearances are within exemptions to, or are otherwise not covered by, the Equal Opportunities Doctrine of the FCC.
That doctrine requires a broadcaster or, in some instances, a cable system, to provide equal opportunities to competing candidates to appear on the air. In the most common situation, if one candidate buys commercial time on a broadcast station, the station must treat other candidates in the same race equally, and allow them to buy equal amounts of time on the station at equivalent rates to those paid by the first candidate. In a candidate is given free time, all his or her opponents are entitled to the same amount of free time, if they request it within seven days of the first candidate’s appearance. However, the statute provides many exemptions, and all of these recent appearances appear to fall within these exemptions.
The FCC released an order today, fining a broadcaster $20,000 for misrepresentations made in its license renewal application about the completeness of its public inspection file. The fine issued in this case was not a fine for the fact that the file was incomplete (two stations in the cluster had each already been fined $4000 for the actual public file violations), but instead the fine was issued because the licensee had certified in its renewal application that the public file had been complete and accurate at all points during the course of the license term. This case highlights both the need to keep an accurate public inspection file, and the need to carefully consider all certifications made in FCC applications. Incorrect certifications can lead to fines and potentially even more severe sanctions if the FCC finds an intentional misrepresentation or lack of candor – the potential loss of a license. Admitting a minor paperwork transgression like an incomplete public file will result in a fine – an inaccurate certification which appears to try to hide a problem can lead to far more severe consequences.
In this case, the FCC found that the licensee had not maintained Quarterly Issues Programs lists. The licensee claimed that its obligations had been met through a listing of public service announcements that the stations had put in their files. The FCC rejected that argument, citing the requirement in its rules requiring that Quarterly Issues Programs lists contain "a narrative description of what issues were given substantial treatment" by the licensee as well as the programs that treated each issue. In addition, the time and date of broadcast of each program, as well as its title and duration, is to be provided. A simple list of PSAs does not meet these requirements – as it does not list the issues addressed, much less provide the detailed program information required by the rule. For a summary of the Quarterly Issues Programs list obligations, and a model form to be used to meet the obligations, see our most recent memo on the subject, here. Remember, the Quarterly Issues Programs Lists are a broadcast station’s only official record of how they have served the public interest needs of its community, so be sure that adequate attention is paid to the completion of these forms.