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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 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.

Continue Reading FCC Adopts Rules Requiring TV Stations to Keep Public File on Website – and Adopts New Requirements for Quantifying Public Interest Obligations

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.  Continue Reading FCC Meeting to Consider LPFM Reform, Public Interest Requirements for TV Stations, and Minority Ownership Proposals

In a very unusual, if not unprecedented case, the FCC announced a Public Forum on the license renewal application of WWOR-TV to assess the service provided by that station to the citizens of New Jersey.  While the FCC has in the past held evidentiary hearings on license renewal applications, those hearings were trial-type, adversarial proceedings held on specific issues before administrative law judges – not amorphous public proceedings on general questions about the service provided by the station.  This proceeding seems much more akin to the "localism" hearings that the FCC has been holding around the country (including the most recent held in Washington on Halloween), only in this case it is not conducted to come up with some general policy guidelines, but instead it is to assess whether a broadcast license worth hundreds of millions of dollars should be renewed.  While the revocation of a license for failure to serve the public interest under the license renewal standards that have been in effect for the last 11 years is unprecedented, this process may be one that other stations could face were proposals of certain Congressional and FCC proponents of license renewal reform to get their way.

As we wrote here and here, some have suggested that the FCC’s license renewal process should be fundamentally reformed.  There have been suggestions that license renewal, which once occurred every three years for broadcast stations but now comes up but once every eight years, should return to that shorter cycle.  And some have suggested that the license renewal process should have more "teeth" to assess a broadcaster’s performance (see, for instance, the statement of Commissioner Copps at the FCC Localism hearing in Portland, Maine in June). These teeth have been suggested to include everything from specific quantitative showings of public interest programming by the broadcaster, to local public hearings to assess the level of that service for some or all broadcast stations.  How the FCC would have the resources to conduct hearings for any meaningful number of broadcast stations is unclear – but the suggestion has been made by various proponents of license renewal reform. Continue Reading FCC Sets Unusual Public Forum to Assess License Renewal of New Jersey Television Station

As the Commission held its last localism hearing in Washington on Halloween night, FCC Chairman Kevin Martin’s views on how the FCC should insure that stations are responsive to their communities became somewhat clearer.  In his opening statement, the Chairman outlined a set of actions that could be taken by the FCC to insure more service to the public.  While emphasizing the importance of efforts to encourage new entrants into broadcast ownership, the Chairman’s proposals to add new regulatory requirements, including requiring that a station be manned during all hours of operation, may well have the result of making it more difficult for any new entrant (or for existing smaller operators) to profitably operate their stations.  In addition, he has offered proposals that would seemingly require cable and satellite carriage of in-state television stations not in a system’s DMA – a proposal sure to cause concern to stations in DMAs that straddle state lines.

The Chairman’s statement includes the following proposals:

  • Requirements for uniform filings by broadcasters quantifying their public service – presumably their news and information programming and the public service announcements that they provide
  • Requiring that stations have manned main studios during all hours of operations (not just during business hours)
  • Allowing flexibility for LPFM stations to be sold, but adopting new rules to insure that such stations are used for local programming, not something provided from a network or other programming source
  • Providing television viewers the ability to get an in-state television stations on cable and satellite even if the county in which they reside is "home" to a DMA with stations in another state
  • Capping the number of applications accepted from the 2003 FM translator filing window – which might result in the dismissal of hundreds of applications that have effectively been frozen for 4 years

Continue Reading Shape of Things To Come: New Public Interest Obligations, Changes in TV DMAs and More Flexibility For LPFM

Twice this week, the FCC released decisions denying applications proposing city of license changes for AM stations proposing to take away the only station licensed to one community and move it to another.  In its order adopting simplified city of license changes (see our previous posts including those here and here), the FCC refused to change its policy of not allowing the removal of an established radio station which is the only station licensed to a community except in cases where an extraordinary showing justifying a  waiver of the rules could be made.  The two cases decided this week show that merely moving to a community with greater population (even one which has no other station licensed to it) will not, in and of itself, justify a waiver of the rules.  Thus, stations which are the only station licensed to their communities are effectively blocked from changing cities of license without  providing a "back-fill", i.e. moving another station so that it can be licensed to the community that would otherwise be abandoned.

In one case decided this week, the broadcaster proposed to move its AM station to a community that had three times the population of the one that it was proposing to leave.  The Commission rejected the move, finding that the residents of the current community should be able to rely on continued service from that station.  This was true even though other stations could be received in the community, as the Commission reminded licensees that their primary responsibility is to serve the needs of their city of license, and that this primary service cannot be duplicated by the secondary service provided by a station licensed to another town or city.  Continue Reading FCC Says No To City of License Change Taking Away Community’s Only Radio Service

The FCC has taken the unusual step of issuing a Notice of Apparent Liability, i.e. an announcement that it has fined a broadcaster, against two TV station owners for failing to provide a sponsorship identification for political material sponsored by another Federal agency–the Department of Education ("DOE").  The proposed fines for these two broadcasters totaled over $70,000.  In connection with the same broadcasts, the Commission also issued a citation against the producer of the programs for failing to include a disclosure of the sponsor of the programs, warning that company that it would be fined if it were to engage in such activity in the future, even though the entity was not an FCC licensee.  These actions demonstrate the concern of the Commission over programs that attempt to influence the public, particularly those dealing with controversial issues of public importance, where those who have paid to do the convincing are not evident to the public.

These cases all stem from programs associated with conservative political commentator Armstrong Williams, who was paid by DOE to promote the controversial No Child Left Behind Act ("NCLBA") supported by the current administration.  He did so on two television programs:  his own show, titled "The Right Side with Armstrong Williams" and on "America’s Black Forum," where he appeared as a guest.  These shows were aired by various television stations without any sponsorship identification to indicate that Williams was paid by DOE to promote NCLBA on the air.

In one case, the television broadcaster received $100 per broadcast for airing Right Side, but failed to reveal that it had received any consideration.  The broadcaster claimed that the consideration received was "nominal," which is generally an exception to the sponsorship ID requirement.  However, the FCC noted that the exception for "nominal" consideration applies only to "service or property" and not to "money," holding that receipt of any money, even if only a small sum, triggers the requirement for sponsorship identification.Continue Reading FCC Proposes Fines for Political Sponsorship ID Violations

At last Thursday’s Public Hearing on multiple ownership in Chicago, about which we wrote here, a statement was read by a spokesman for Presidential candidate Barack Obama.  According to press reports, the statement expressed the candidate’s positions favoring shorter license renewal terms for broadcasters so that they would be subject to more public scrutiny, as well as criticizing the FCC for allowing broadcast consolidation.  These thoughts essentially echo the comments of FCC Commissioner Copps, especially on the subject of license renewal terms, whose views we wrote about here.  While many press reports have asked if this statement by Senator Obama foreshadows the broadcast ownership debate becoming part of the presidential campaign issues, we worry that it may signal a far broader attack on broadcasters during the upcoming political year.  The statement by Senator Obama is but one of a host of indications that broadcasters may face a rash of legislative issues that are now on the political drawing boards.

Broadcasters make easy targets for politicians as everyone is an expert on radio and television – after all, virtually everyone watches TV or listens to the radio and thus fancies themselves knowledgeable of what is good and bad for the public.  But those in Congress (and on the FCC) have the ability to do something about it.  And, with an election year upon us, they have the added incentive to act, given that any action is bound to generate at least some publicity and, for some, this may be their last opportunity to enact legislation that they feel important.  We’ve already written about the renewed emphasis, just last week, on passing legislation to overturn the Second Circuit’s decision throwing out the FCC’s fines on "fleeting expletives" and making the unanticipated use of one of those "dirty words" subject again to FCC indecency fines.  Clearly, no Congressman wants to be seen as being in favor of indecency (look at the rise in the indecency fines to $325,000 per occurrence which was voted through Congress just before the last election), and First Amendment issues are much more nuanced and difficult to explain to the voter, so watch this legislation.Continue Reading One Sign That Broadcasters Are About to Become Political Footballs – Obama Suggests Shorter Broadcast License Terms and Less Consolidation

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…

In its Public Notice setting out the rules governing the upcoming filing window for applicants seeking new noncommercial FM stations or major changes in existing stations, which we wrote about here, the FCC has put applicants on notice of the many requirements that must be met in order to have an application considered in the upcoming process.  This is the first opportunity in this century for the filing of applications for new noncommercial FM stations. In order to participate, all applicants must make sure that they follow the rules set out by the Commission.  Applications will be due in a filing window that will open on October 12 and close on October 19.

Fundamentally, the FCC’s Public Notice reminds interested parties that, to be eligible, an applicant must be a noncommercial entity – a nonprofit corporation or a governmental organization.  Individual applicants or profit-making entities cannot participate.  As eligibility to participate and the comparative qualifications of all applicants are assessed at the time of filing, applicants need to assure their nonprofit status is in order before the upcoming filing window.

The Commission also sets out a number of other requirement for the applications that may be filed during the window. Applications submitted during the window will be filed electronically on FCC Form 340, and must contain very specific technical descriptions of the service they plan. The proposal must specify facilities that don’t interfere with other existing stations or pending “cut-off” noncommercial applications. The applicant must have received reasonable assurance of the availability of its proposed transmitter site (i.e. a legally binding contract is not necessary, but a commitment from the site owner that the site will be available and an idea of the terms on which that availability is premised must be obtained). Continue Reading Details on the Noncommercial Filing Window