Public Interest Obligations/Localism

Every year, about this time, I dust off the crystal ball to offer a look at the year ahead to see what Washington has in store for broadcasters. This year, like many in the recent past, Washington will consider important issues for both radio and TV, as well as issues affecting the growing on-line presence of broadcasters. The FCC, Congress, and other government agencies are never afraid to provide their views on what the industry should be doing but, unlike other members of the broadcasters’ audience, they can force broadcasters to pay attention to their views by way of new laws and regulations. And there is never a shortage of ideas from Washington as to how broadcasters should act. Some of the issues discussed below are perennials, coming back over and over again on my yearly list (often without resolution), while others are unique to this coming year.

Last week, we published a calendar of regulatory deadlines for broadcasters.  This article looks ahead, providing a preview of what other changes might be coming for broadcasters this year – but these are delivered with no guarantees that the issues listed will in fact bubble up to the top of the FCC’s long list of pending items, or that they will be resolved when we predict. But at least this gives you some warning of what might be coming your way this year. Issues unique to radio and TV, and those that could affect the broadcast industry generally, are addressed below.

General Broadcast Issues

 

There are numerous issues before the FCC that affect both radio and television broadcasters, some of which have been pending for many years and are ripe for resolution, while others are raised in proceedings that are just beginning. These include:

 

Multiple Ownership Rules Review: The FCC is very close to resolving its Quadrennial review of its multiple ownership proceeding, officially begun in 2011 with a Notice of Proposed Rulemaking. The rumors were that the FCC was ready to issue an order at the end of 2012 relaxing the rules against the cross-ownership of broadcast stations and newspapers, as well as the radio-television cross-interest prohibitions, while leaving most other rules in place. TV Joint Sales Agreements were also rumored to be part of the FCC’s considerations – perhaps making some or all of these agreements attributable. But even these modest changes in the rules are now on hold, while parties submit comments on the impact of any relaxation of the ownership rules on minority ownership. Still, we would expect that some decision on changes to the ownership rules should be expected at some point this year – probably early in the year. 


Continue Reading Gazing Into the Crystal Ball – What Washington Has In Store For Broadcasters in 2013

The care and feeding of the broadcaster’s public file is a hot topic once again. For many years, the public file was often overlooked, being visited most often by competing broadcasters looking for dirt on their cross-town rivals, or by college journalism students assigned a project by their professor requiring the review of local stations’ files. But, with the debate that occurred earlier this year over the online public file for television stations, the file has received much publicity, being the subject of review and analysis in the popular and academic press, as well as in the broadcast trade journals. This week, the FCC issued a reminder about the obligations of a television broadcaster for complying with the public file rules (see that reminder here). In the past two weeks, I’ve conducted two seminars for broadcast groups on the public file obligations of stations. The first was a webinar for 20 state broadcast associations and their members, organized by the Michigan Association of Broadcasters. The PowerPoint slides used in that presentation are available here.

The slides set out information about the importance of the file, and provide some description of the required contents of the file, and the retention period for documents that need to be contained in the file. Radio stations have the obligation to place all of the required documents in their local, paper files and maintain them there for the appropriate period of time. TV stations, with the advent of the FCC-hosted public file (see one of our previous posts on the mechanics of the online file here), actually have a somewhat easier time in meeting some of their obligations – as the FCC itself will post to the file all documents that stations are required to file with the FCC – including renewal and technical applications, ownership reports, children’s television reports, coverage maps, the station license and the Public and Broadcasting procedure manual. Radio stations need to find all of these documents and manually place them into their files. TV stations need only upload other information that is not filed at the FCC – like Quarterly Issues Programs lists, annual EEO Public File Reports, and certifications as to the station’s compliance with the Children’s television commercial limits. Beyond these basics, in the seminars that I recently conducted, several other interesting questions were raised.


Continue Reading The Care and Feeding of the Broadcaster’s Public Inspection File – An FCC Reminder and a Compliance Seminar

For one blog entry, I’ll depart from our usual discussion of legal issues. There is plenty of time to analyze the effect that last night’s election will have on the broadcast industry, and to discuss other issues of importance to broadcasters. Instead, as we approach the holiday season, I thought that I’d go into another direction. I’ve just returned from the NJ coast, where my family has a home that was partially flooded by Hurricane Sandy. While we had some property damage, it was nothing compared to the destruction I saw in other neighborhoods on the Jersey Shore. Seeing the number of people affected by the storm, and hearing the radio reports from locations up and down the coast where the destruction was far worse, made me think that I should talk a little about the good things that the broadcast and communications industry does, and how those in the industry can help take care of their own.

It has been great to see the many TV networks broadcasting programs with the specific purpose of promoting hurricane relief. And, in a post that we’ll put on the blog later today, the FCC has just made it easier for noncommercial broadcasters to contribute in these. Being on the ground at the NJ shore for a few days, without electricity other than what was provided by a small gas-powered generator, demonstrated to me the power and importance of portable media – including radio. Throughout my weekend at the shore, we could get news and entertainment from a battery-powered radio and the radio in our car. Together with tidbits of news from Facebook posts, a local list-serve and the few other sites that we could get on our mobile phones (for as long as the phones stayed charged) in an area where the mobile networks were often slow due to the high demand for wireless service as the storm had ruined many landline connections  – these were our links to the outside world. Radio kept going, providing updates of all that was going on in the area. One local radio station was particularly noteworthy, as it was operating even though it did not have operating phones or email access. Yet it continued to broadcast, conveying information as to how people could help each other. That information was collected from people posting on the station’s Twitter feed. The station truly showed how convergence of electronic and broadcast media can really work well together. 


Continue Reading Broadcasters Giving Back – Thoughts on Sandy, Public Service and Communications Charitable Contributions

Moving a station from a rural area into a more urban one was a fairly common occurrence until the recent recession – when the value of new "move-in" stations in many larger markets essentially collapsed. Soon after the collapse, the FCC stepped in to stop what the marketplace had already severely slowed, by effectively prohibiting the practice of moving stations into urbanized areas.  In its Rural Radio Order (which we summarized here), the Commission adopted “presumptions” that eliminated preferences that applicants had received for proposing a new service to large suburban communities, and preferences based solely on the number of people that a modified station would serve. A number of parties (including ones that I represented), sought reconsideration of the FCC’s order, challenging both the theory of the FCC order and some of the details. On Friday, the FCC issued its order on reconsideration, denying any fundamental changes in the policy, but clarifying some of the details of the showings to be made in evaluating city of license changes for broadcast stations, and also grandfathering under the old rules more of the applications that were pending when the new rules were adopted.

Before discussing the changes, it is worth reviewing the Commission’s processes for deciding which of competing proposals for new FM channels in different communities should be granted, and whether the change in the city of license of an existing station is in the public interest. These choices are governed by Section 307(b) of the Communications Act and the substantial case law that has built up at the FCC around that section. Section 307(b) requires that the Commission make a “fair, efficient and equitable” distribution of radio service among the states and communities. Over the years, the FCC has adopted standards for determining how to make this distribution – favoring applications that propose a “first local reception service” (or service to “white areas” – those that currently receive no predicted service from other stations), net favoring a second reception service, next giving a preference to those providing a “first transmission service” (i.e. a first station licensed to a community). Finally, if none of the preceding preferences come into play, the Commission looks at “other public interest factors” – usually the total population served by a proposal, including an evaluation of the other services from other stations available in both the gain and loss area of a proposed facility move (or in the proposed coverage areas of the new allotments that the Commission is evaluating). 


Continue Reading Reconsideration of FCC’s Rural Radio Decision – Making It Difficult to Move a Radio Station from a Rural to an Urban Area

 The Online Public File for television stations is now a reality. While appeals of the imposition of the rules remain pending, both the FCC and the US Court of Appeals denied stays of the August 2 effective date for the new requirements, so full-power and Class A television stations should now be complying with the new obligations to maintain their public files online. The Online Public File is hosted by the FCC, and uses the FCC’s newly created system for uploading, storing and accessing the documents. So far, the system seems to be functioning with a minimum of problems, though one or two glitches have been reported here and there.

Documents that stations file with the FCC are supposed to be uploaded to the Online Public File automatically by the FCC, so individual stations do not need to worry about importing them into the new system. We have heard that this may not have occurred in every instance, so stations should check their files to be sure that the proper uploading has in fact occurred. Other documents will need to be uploaded by the stations themselves, and stations will also be responsible for maintaining and monitoring the file, and deleting documents when their retention is no longer required.

Just what are the requirements for the new online public file? The FCC has put out its own Frequently Asked Questions, available here. There are many other questions that will no doubt arise over time.  We have tried to do our own summary of the obligations as we know them in the answers to common questions that we are getting about the obligations under the new rules.  Those questions and answers are set out below.


Continue Reading Questions and Answers About the TV Online Public Inspection File

On Friday, the US Court of Appeals for the DC Circuit followed the FCC’s lead in denying the NAB’s request for stay of the requirement for TV stations to post their public inspection files online.  Accordingly, that rule goes into effect on Thursday, August 2, 2012.

Effective that date, TV stations should post all new public file documents online in the FCC database created for this purpose.  Stations will have six months in which to post pre-existing public file documents into that database. The online posting requirement applies to TV stations only…not to radio stations or cable systems.

Posting of the political public file will not be required until July 1, 2014, except for the top four network affiliated stations (ABC, NBC, CBS, Fox) in the top 50 markets.  No station will be required to post political file documents created prior to August 2, 2012.


Continue Reading It’s Official: Online Posting of TV Public File Required Beginning August 2nd; FCC Schedules More Demos of System

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

At its meeting today, the FCC voted to require that television stations maintain most of their public inspection files online, in a database to be created by the FCC (see the FCC’s Public Notice here).  While the details about this obligation have not yet been released, from the comments at the FCC meeting, much is already evident.   All TV stations will have to post their files to an online server to be maintained by the FCC.  Proposals for new obligations to post information about sponsorship identification and shared services agreements have been dropped, at least for now.  Most documents not already online at the FCC will need to be uploaded within 6 months of the rule becoming effective.  And, in the most controversial action, broadcaster’s political files will need to be posted to the new online database, though in a process that is to be phased in over time.

The political file obligation will apply at first only to affiliates of the Top 4 TV networks in the Top 50 markets.  And only new information for the political file will need to be posted.  Information in the file before the effective date of the order apparently will not need to be posted online, at least not initially.  The requirement for posting the political file online will be reviewed in a proceeding to begin one year after the effective date of the new rules.  As stations outside the Top 50 markets, and other stations in those large markets, will not need to comply with the political file obligations until July 2014, the FCC will be able to reexamine the impact of the disclosure obligations before the compliance obligation for the political file expands to all stations. 


Continue Reading FCC Votes to Require Online Public File for TV Stations – Rejects Compromise for Political File