In two recent FCC decisions, one dealing with a commercial operator and that other with a noncommercial licensee, the Commission’s staff addressed the issue of how large an FCC fine could be imposed on a broadcaster without that fine being subject to reduction because of the licensee’s inability to pay. In the first case, a
The Public and Broadcasting is a document first written by the FCC in the 1970s to tell the public about how the FCC regulates broadcast stations, and to tell the public how they can get involved in the regulatory process. Broadcasters must maintain a copy of the manual in their public file, and make it available to members of the public who request it. For years, the manual was grossly out of date, finally being updated a few years ago. Today, the FCC issued a Public Notice announcing that they have once again updated The Public and Broadcasting, and that all stations need to place the new version in their public file. The new version, with a new subtitle "How to Get the Most Service from Your Local Station" can be found here. Stations should print that document, and place it in their public file.
The manual is updated, and sets out most of the programming and other operational rules that would be of interest to the public. The manual seems to be objective – pointing out that most programming decisions are left to the broadcast licensee to avoid violating the Freedom of Speech rights of the broadcaster.
In two decisions released this week by the FCC, here and here, two large broadcast group owners were admonished for failures to comply with the FCC’s EEO rules. In both cases, failures to widely disseminate information about job openings in one market were discovered by the FCC in the course of random EEO audits that selected these stations for review. In both cases, the Commission determined that the violations were serious, and imposed reporting conditions (essentially subjecting the stations to an FCC audit of their EEO annual public file reports every year for the next 3 years). And in each case, the FCC would have fined the stations for their violations, but the Commission moved too slow, as in both cases, license renewals were granted between the time of the violations and the EEO audit. Under provisions of the Communications Act, the Commission cannot fine a station for action that occurred during a prior renewal term – so the grant of the renewals cut off the possibility of a fine in these cases.
These actions highlight the importance of complying with the Commission’s EEO rules, which we have summarized in our EEO Guide, here. In particular, in both cases, the station groups had not widely disseminated information about job openings, as required by the rules. Wide dissemination requires the use of recruitment sources designed to reach all groups within a community to allow their members to learn about the job openings at the station. The Commission’s aim is to bring into the broadcast workforce employees representing diverse groups within a community rather than hiring all their employees from traditional broadcast sources. In these cases, the stations had used only corporate websites, on-air announcements, and word of mouth recruiting. No outside sources, or sources reasonably likely to reach the entire community, were used by the broadcasters, hence the admonition and the reporting conditions.
In the last few weeks, I’ve received several calls from broadcasters about on-air employees who have decided to run for local political office, and the equal time obligations that these decisions can create. Initially, it is important to remember that equal opportunities apply to state and local candidates, as well as Federal candidates. And the rules apply as soon as the candidate is legally qualified, even if the spot airs outside the "political windows" used for lowest unit rate purposes (45 days before a primary and 60 days before the general election). For more information about how the rules apply, see our Political Broadcasting Guide. In one very recent example of the application of these rules, a situation in Columbia, Missouri has been reported in local newspaper stories concerning a radio station morning show host who decided to run for the local elective hospital board. To avoid having to give equal time to the host’s political opponents, the station decided to take the employee off the air. This was but one option open to the station, as set forth in the article, quoting the head of the Missouri Broadcasters Association, who accurately set out several other choices that the station could have taken.
These choices for the station faced with an on-air host who runs for office include:
- Obtain waivers from the opponents of the station employee allowing the employee to continue to do his job, perhaps with conditions such as forbidding any discussions of the political race.
- Allow the candidate to continue to broadcast in exchange for a negotiated amount of air time for the opponents
- Provide equal time to the opposing candidates equal to the amount of time that the host’s voice was heard on the air (if the opponents request it within 7 days of the host being on the air)
- Take the host off the air during the election
Other situations have also arisen concerning non-employees, running for office, who may work for another local station, for ad agencies, or for advertisers, but whose voice or picture appears on spots that run on a station.
The FCC has released the full text of its Order adopting enhanced disclosure requirements for broadcast television stations – requiring that they post their public files on their websites and that they quarterly file a new form, FCC Form 355, detailing their programming in minute detail, breaking it down by specific program categories, and certifying that the station has complied with a number of FCC programming rules. The Commission also released the new form itself and, as detailed below, the form will require a significant effort for broadcasters to document their programming efforts – probably requiring dedicated employees just to gather the necessary information. The degree of detail required is more substantial than that ever required of broadcasters – far more detailed than the information broadcasters were required to gather prior to the deregulation of the 1980s – though, for the time being, much (though not all) of the information is not tied to any specific programming obligations set by the FCC.
Before getting to the specifics of the new requirements, the thoughts of the Commission in adopting this order should be considered. The Commission’s decision focuses on its desire to increase the amount of citizen participation in the operation of television stations and the decisions that they make on programming matters. While many broadcasters protested that the public rarely cared about the details of their operations, as evidenced by the fact that their public files were rarely if ever inspected, the Commission suggested that this was perhaps due to the difficulty the public had in seeing those files (the public actually had to go to the station to look at the file) and the lack of knowledge of the existence of the files (though broadcasters routinely broadcast notice of the public file’s existence during the processing of their license renewal applications, rarely producing any viewers visiting the station to view the file). With respect to the new Form 355 detailing the station’s programming, the Commission rejected arguments that reporting of specific types of programming in excruciating detail imposes any First Amendment burden on stations, as the Commission claims that it has imposed no new substantive requirements. Yet the Commission cites its desires that the public become more involved in the scrutinizing of the programming of television stations, which it states will be aided by the new form, and also emphasizes the importance that the Commission places on local service (an item detailed in Form 355). At the same time, in its proposals detailed in its Localism proceeding (summarized here), the Commission is proposing rules requiring specific amounts of the very programming that is reported on Form 355, the very numbers that, in this proceeding, it claims have no significance. Moreover, citizens will be encouraged by the Commission’s actions to scrutinize the new reports, and file complaints based on the perceived shortcomings of the broadcaster’s programming. Broadcasters in turn will feel pressured to air programming that will head off these complaints. So, implicitly, the Commission has created the First Amendment chilling effect that it claims to have avoided.
At its December meeting, the FCC adopted a Notice of Proposed Rulemaking on Localism. At that meeting, while the Commissioners discussed the generalities of the proposals being made, the specifics of the proposals were unknown. The full text of the NPRM has now been released, and it sets out the areas in which the Commission proposes to re-regulate broadcast stations. The order also hints at a number of other proceedings that the Commission intends to launch in the near future, and reminds broadcasters of a number of other existing proceedings that will potentially bring about greater regulation. From the discussion in the NPRM, new rules will apply to all broadcasters – large and small – and potentially place significant burdens on all stations which, as always, are hardest for small stations to deal with. Given the number of new regulatory initiatives discussed by the Commission, the NPRM is a must-read for all broadcasters, and this proceeding is one in which all broadcasters should participate.
Among the specific proposals on which the Commission asks for comments include the following:
Community Advisory Boards: The Commission tentatively concludes that all stations will be required to establish a community advisory board to advise the station on the issues of importance to the community that can be addressed in the station’s programming. The Commission indicated that it did not want to bring back the burden of the ascertainment process that was abolished in the 1980s, but asks how the Board should be established so as to represent the entire community, suggesting that the categories of community leaders that were used in the ascertainment process could be used as a standard to guide the licensee in determining the make-up of the board. Other questions include how often the board should meet, and how the board members should be selected (or elected – though by whom, the Commission does not suggest).
Other Community Outreach Efforts. The Commission also suggests that other community outreach efforts should be considered as possible mandates for broadcasters. These would include the following:
- Listener surveys by telephone or other electronic means (general public surveys were also part of the ascertainment process abolished in the 1980s, so if this were adopted together with the Community Advisory Board, ascertainment would effectively be back)
- Focus sessions or town hall meetings
- Participation of management personnel on community boards, committees, councils and commissions (mandatory civic participation?)
- Specific phone numbers or email addresses, publicized during programming, for the public to register their comments on station operations.
Remote Station Operations. Comments are sought as to whether television stations should be forbidden to operate without being manned during all hours of operation. Radio operations will be addressed in the proceeding to consider the public interest issues posed in the Digital Radio Proceeding (see our summary here).
Quantitative Programming Guidelines. The Commission proposes to adopt quantitative standards for programming that a station would have to meet to avoid extra processing and scrutiny at license renewal time. Questions include what categories of standards should be established (just local programs – or more specific requirements to set required amounts of news, public affairs and other categories – and how to define what programming would qualify in each category), should requirements be established as specific numbers of minutes or hours per day or per week or by a percentage of programming or through some other metric, should other specific requirements or measurements be established?
Main Studios. The commission suggests reverting to the pre-1987 requirement that each station maintain a main studio in its community of license
Network Programming Review. The Commission asks whether rules should be adopted to require that local network affiliates have some ability to review all network programming before it is aired. If so, what programs would be exempt from the requirement (e.g. live programs), how much prior review is necessary, would such a right disrupt network operations?
Voice Tracking. The Commission asks if "voice-tracking," (i.e. a radio announcer who provides announcing on a radio station from outside a local market, sometimes including local inserts to make it sound as if the announcer is local) should be limited or prohibited, or if disclosure should be required.
Local Music. While the Commission indicates that it did not think that a ban on national playlists was required, it did ask whether broadcasters should be required to report the songs that they play, and how they choose their music. With that information, the Commission asks if it should consider the amount of local music played when assessing whether a station has served the needs of its community at license renewal time.
Class A TV. The Commission asks whether it should adopt rules that permit more LPTV stations to achieve Class A status, meaning that they would no longer be secondary stations subject to being forced off the air by interfering uses of the TV spectrum by full-power TV stations.
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.
The FCC today issued the long-awaited text of its decision on Digital Audio radio – the so-called IBOC system. As we have written, while adopted at its March meeting, the text of the decision has been missing in action. With the release of the decision, which is available here, the effective date of the new rules can be set in the near future – 30 days after its publication in the Federal Register. With the Order, the Commission also released its Second Further Notice of Proposed Rulemaking, addressing a host of new issues – some not confined to digital radio, but instead affecting the obligations of all radio operations.
The text provides the details for many of the actions that were announced at the March meeting, including authorizing the operation of AM stations in a digital mode at night, and the elimination of the requirements that stations ask permission for experimental operations before commencing multicast operations. The Order also permits the use of dual antennas – one to be used solely for digital use – upon notification to the FCC. In addition, the order addresses several other matters not discussed at the meeting, as set forth below.