Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Principal Editor: David O’Connor
Annual EEO Public File Report Deadline – April 1
Affected States: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas
By April 1, 2008, radio and television Station Employment Units (SEU) in the states listed above must: (1) prepare their Annual EEO Public File Report; (2) place it in the public inspection file…
In the early 1980s, the FCC deregulated many of the very detailed programing rules that governed broadcasters, based on the theory that the marketplace would assure that broadcasters provided programming of interest to their local community. The FCC looked at the marketplace, and decided that broadcasters either had to program to the needs of their community, or risk the loss of their audience to competitors. Now, the FCC is proposing to bring back many of these rules with a vengeance (see our post on the FCC’s current efforts) – imposing rules even more detailed than those that were abolished over a quarter century ago. A look at this week’s news raises the question of why now – when there are more media choices than ever (and when, particularly in the radio industry, revenues with which to meet such requirements are shrinking) – the FCC cannot rely on the marketplace to assure service to the public. When marketplace forces require that broadcasters use their most important asset – their localism – to compete against all the new competition, the FCC is now looking to require that broadcasters meet their public interest obligations in a very specific, cookie cutter, government-mandated fashion. Some of the announcements made this week highlight the extent of the competition that broadcasters now face.
On the most basic level, there are simply far more stations than there ever were. According to an FCC Report published in 1980, there were 4559 commercial AM stations, 3155 commercial FM stations, and 1038 noncommercial FM stations. While the number of AM stations had not increased substantially by the end of 2007 (4776), the number of commercial FM stations has doubled to 6309, and the number of noncommercial FMs has increased even more substantially, to 2892. TV shows a similar increase in service – from 746 commercial and 267 noncommercial stations in 1980 to 1379 commercial stations and 380 noncommercial stations. In addition, thousand of LPTV stations have been created, and over 800 LPFM stations – services that didn’t even exist in 1980. Clearly, the over-the-air competition is far greater than when the FCC initiated its deregulation efforts.Continue Reading I-Pod Radio, Internet in Cars and More Broadcast Stations Than Ever – Why Can’t the Marketplace Decide?
The FCC today released a Public Notice granting the request of several broadcast organizations for an extension of time to respond to the extensive proposals for re-regulating the broadcast industry contained in the FCC’s Localism Notice of Proposed Rulemaking. We wrote about those proposals, here. Comments, which were to be filed next week,…
localism, “localism report”, “localism NPRM”, “public interest obligations”…
Continue Reading Comments in Localism Proceeding due March 14
Last week, the FCC approved the long-pending application for the transfer of control of Clear Channel Broadcasting from its public shareholder to several private equity funds. Even though the application had been pending at the FCC for over a year, the Commission’s decision was notable for the paucity of issues that were discussed. The decision approves the transfer, conditioned on certain divestitures by the Company and by the equity funds that will control the new company, including divestitures previously ordered by the Commission in connection with the investment of one of these funds in Univision Broadcasting but not yet completed, and rejects three petitions that, from the Commission’s description, did not involve fundamental issues about the nature of the overall transaction, but were instead devoted to certain limited issues, in two cases involving actions in a single market. The divestiture conditions were approved seemingly as a matter of course, and do not provide any new insights into the law concerning the FCC’s attribution rules (unlike the recent decision approving the transfer of control of Ion Television, about which we wrote here, which contained an extensive detailed discussion of what it takes to make an ownership interest “nonattributable” for purposes of the FCC multiple ownership rules). Given the lack of controversy in the Commission’s order, what is perhaps most noteworthy about the decision are the concurring statements of the two Democratic Commissioners, which may provide some indication of the concerns of the Commission should we have a Democratic-controlled Commission following this year’s Presidential election.
Of course, as we’ve described in our posts about the FCC’s Localism Notice of Proposed Rulemaking (here), and the new rules regarding Enhanced Disclosure requirements for television broadcasters (here), the Commission has already begun to act in a far more regulatory manner than any other Commission in the past 20 years. Yet the issues raised by the Democrats in this decision are in areas not yet considered by the Commission. Commissioner Copps expresses his concern about the role of private equity in broadcast ownership, and whether such ownership is in the public interest. In numerous proceedings and in response to the presentation made at the FCC’s January meeting by the Media Bureau, Copps has suggested that private equity should be investigated, both to determine whether the Commission is fully aware of all ownership ties of the companies involved, and also (as emphasized in this case) for the potential economic impact on the operations of the broadcast stations caused by the new debt involved in the acquisition. Here, Commissioner Copps questions whether the announcement of a potential downgrade of the bonds of the Company if these deals occur should have been of more concern to the Commission. Private equity should be aware that, in a future FCC, an investigation of the economics of their operations should be expected.Continue Reading Does the FCC’s Approval of the Clear Channel Transfer of Control Provide a Window Into the Future?
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.Continue Reading FCC Releases Rules for Enhanced TV Disclosure Requirements
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
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 a Report on its Localism proceeding, accessing the evidence that it gathered in its three year long investigation of whether broadcasters were adequately serving the interests of their local communities. We wrote long ago about some of the specific issues that the FCC was reviewing in this proceeding – everything from the public interest programming of broadcasters to their music selection process to their response to local emergencies. Among the report’s conclusions were findings that not all broadcasters were adequately assessing the needs of their communities or serving the public interest through coverage of local news and other local events. Because of these perceived weaknesses in broadcaster performance, the FCC adopted a Notice of Proposed Rulemaking, much as we expected in our post here, tentatively concluding that re-regulation of the broadcast industry was necessary, bringing back some form of ascertainment and some specific quantifiable requirements for public interest programming.
As in the case of the Multiple Ownership order adopted today (summarized here), the full text of the FCC Report and the Notice of Proposed Rulemaking has not been released. Instead, only a short Public Notice, and the statements of the Commissioners at the meeting, are available to determine what was done. From these notices, it appears that three tentative conclusions were reached. They are, as follows:
While these may sound like noble decisions, there are many details and much history that the Commission needs to address before these proposals become final FCC rules.Continue Reading FCC Adopts Localism Report and Starts Rulemaking to Consider Adopting New Public Interest Obligations for Broadcasters
As we wrote earlier this week, the FCC is to consider at its meeting next Tuesday a Report on the results of its "Localism" proceeding, and a Notice of Proposed Rulemaking seeking public comment on the findings contained in the Report. From rumors going around Washington today, that Notice may ask for comments on tentative findings that would roll back of much of the broadcast deregulation of the last 25 years. Rumors are that the Commission will be issuing "tentative conclusions" determining that the FCC should re-impose specific ascertainment requirements of some sort (requiring that broadcasters regularly meet with specific types of community leaders to get their input on station programming). Also, the Commission will tentatively conclude that there should be quantitative programming requirements – that each station do a specific amount of local programming and perhaps specific amounts of news, public affairs other types of programs each week. If a licensee does not meet the requirements, the station’s license renewal application would not be granted routinely by the FCC’s staff, but instead would be subject to an additional level of scrutiny by the full Commission. The Commission is also apparently proposing that it return to the old rules that all stations have a manned main studio during all hours of operation. There is reportedly also a proposal that stations report to the FCC about how they decide what music they play.
Staring in the early 1980s, the FCC did away with many of the specific, detailed programming requirements that had previously bound broadcasters. These requirements were quite burdensome, especially for small stations and stations in small markets with limited staffs. Rather than spending their time on broadcast operations, station staff had to make sure that their operations met programming standards imposed from Washington, dictating the government’s ideas of what was good for the station’s audience, even if the station might feel, because of its format or the demographics of its audience that a particular type of programming did not serve the needs of its community. In the mid-1980s, the FCC concluded that these rules were no longer necessary, as it was concluded that there was enough media diversity that the marketplace would dictate that broadcasters serve their audiences with appropriate content that met the needs of that audience as, if they did not, some other broadcaster would. The economic incentive of the fear of the loss of audience to a competitor who better served the public was deemed enough to insure that the broadcaster acted responsibly.
.Continue Reading Moving Forward Back to 1980 – The FCC Set to Conclude that Specific Public Interest Obigations are Required for Broadcasters
The FCC has released its agenda for its December 18 meeting – and it promises to be one of the most important,and potentially most contentious, in recent memory. On the agenda is the Commission’s long awaited decision on the Chairman’s broadcast multiple ownership plan relaxing broadcast-newspaper cross-ownership rules (see our summary here). Also, the FCC will consider a Further Notice of Proposed Rulemaking on Localism issues (pending issues summarized here) following the conclusion of its nationwide hearings on the topic, as well as an Order and Further Notice of Proposed Rulemaking on initiatives to encourage broadcast ownership by minorities and other new entrants (summary here). For cable companies, the Commission has scheduled a proposed order on national ownership limits. And, in addition to all these issues on ownership matters, the FCC will also consider revising its sponsorship identification rules to determine if new rules need to be adopted to cover "embedded advertising", i.e. product placement in broadcast programs. All told, these rules could result in fundamental changes in the media landscape.
The broadcast ownership items, dealing with broadcast-newspaper cross-ownership, localism and diversity initiatives, all grow out of the Commission’s attempts to change the broadcast ownership rules in 2003. That attempt was largely rejected by the Third Circuit Court of Appeals, which remanded most of the rules back to the FCC for further consideration, including considerations about their impact on minority ownership. The localism proceeding was also an outgrowth of that proceeding, started as an attempt by the Commission to deal with consolidation critics who felt that the public had been shut out of the process of determining the rules in 2003, and claiming that big media was neglecting the needs and interests of local audiences.Continue Reading FCC Meeting Agenda for December 18 – Potentially One of the Most Important in Recent Memory – Multiple Ownership, Localism, Minority Ownership, Product Placement and Cable TV National Ownership Caps
