Here are some of the legal and regulatory actions of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released a Second Report and Order and Order on Reconsideration regarding Next Gen TV (ATSC 3.0). The Report and Order provides guidance on how the Commission will evaluate petitions for waiver of the local simulcasting rules for broadcasters deploying ATSC 3.0 who cannot find a partner station to broadcast its signal in the current transmission standard, declines to allow broadcasters to use vacant in-band channels for voluntary ATSC 3.0 deployment, and clarifies that the “significantly viewed” status of an ATSC 3.0 station will not change when that station moves its ATSC 1.0 simulcast channel to a host facility.  The Order on Reconsideration denied petitions challenging aspects of the Commission’s 2017 Next Gen TV order, including issues dealing with the local simulcast requirement, the application of retransmission consent rules, patent licensing issues, and sunset of the obligation to use the current transmission standard for ATSC 3.0 (that sunset allowing the new transmission mode to evolve over time without the need for FCC action).  (Second Report and Order and Order on Reconsideration)
  • The Commission granted a waiver to a Jacksonville, Florida TV station, allowing it to complete its post-incentive auction move to a new channel by September 8, beyond the current July 3 end of Phase 10 of the repacking of the television band when all TV stations were to have moved to their post-transition facilities. Because of issues related to COVID-19 and other technical matters, the Commission granted this extension and authorized its Media Bureau to grant similar relief to other stations suffering from similar delays (Order)
  • Two members of Congress wrote a letter to FCC Chairman Ajit Pai urging the Commission to “halt any increases to annual regulatory fees due in 2020 for broadcast licensees.” Ann McLane Kuster (D-NH) and Chris Stewart (R-UT) wrote in their letter that this action requires no congressional action and would help alleviate some of the economic hardship suffered by stations due to the COVID-19 pandemic.  The Members noted that broadcasters are a critical component of the pandemic response by, among other things, informing and educating Americans about public health guidance.  (Letter).  The NAB, as well as a group of state broadcast associations, also filed comments at the FCC opposing the FCC’s proposal to increase broadcast regulatory fees, arguing that broadcasters’ fees should not increase in relation to the fees paid by other industries regulated by the FCC, particularly as broadcasters have been so hard hit by the economic fallout of the pandemic. (NAB Comments and State Association Comments)
  • Last Monday, the reply comment period closed in the FCC’s Significant Viewing proceeding. Designation as a significantly viewed station has implications for determining whether a cable or satellite TV system will carry a TV station in an area that is not part of its home market.  For an in-depth look at what the FCC seeks to resolve through this proceeding, see this post at the Broadcast Law Blog.  (Reply Comments)
  • On Tuesday, the Senate Commerce Committee held a hearing considering the re-nomination of FCC Commissioner Michael O’Rielly to a new five-year term. The Commissioner, in response to a question, noted that he believes the FCC’s and DOJ’s current media competition rules are “problematic,” and that he hopes to work with DOJ to shift its narrow view of the competitive marketplace where it does not recognize that broadcasters  don’t just compete with other broadcasters, but instead directly compete with a wide range of other media companies, including digital media outlets.  (Opening Statement and Archived Video)(see Broadcast Law Blog articles here and here on the competition between broadcasters and other media and how the assessment of the definition of the marketplace is important to the evaluation of broadcast ownership limits)
  • The Enforcement Bureau acted last week against two pirate radio operations, one in Pennsylvania and one in Arkansas. These actions are reminders that broadcast operators must hold a valid license to operate and that the FCC will pursue illegal operations.
    • In the first case, the Enforcement Bureau shut down a station that was broadcasting on 90.7 MHz and 91.5 MHz from Stroudsburg, Pennsylvania. The operator, as part of a consent decree, admitted to the unauthorized operation of the station, agreed to pay a $1,500 civil penalty, and agreed to not operate an unauthorized station in the future.  The PIRATE Act, signed into law in early 2020, gives the FCC authority to fine pirate radio operators up to $100,000 per violation (with a $2 million cap), but, in this case, the operator claimed an economic hardship, which persuaded the FCC to lower the fine to $1,500.  (Order and Consent Decree)
    • In the second case, the Enforcement Bureau issued a $10,000 fine to an operator for the unauthorized operation of a radio station on 103.1 MHz in Alma, Arkansas. (Forfeiture Order)
  • The US Court of Appeals upheld a lower court order throwing out a rule adopted by the Department of Health and Human Services that would have required all TV advertising for prescription drugs to state the wholesale price of the drug. Based on these court decisions, this additional information will not need to be added to the disclaimers that these ads already contain. (Court Decision)(Broadcast Law Blog article on the decision)


Continue Reading This Week at the FCC for Broadcasters: June 13, 2020 to June 19, 2020

With many people now entering their third month of complying with stay-at-home orders and social distancing and summer being right around the corner, it would be easy for broadcasters to look past their regulatory obligations to focus on the day when they can ramp up operations and profits.  As you can read below, however, June is a busy month with important obligations for many stations.

June brings the start of summer and the start of the license renewal cycle for television stations.  By June 1, full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia and full-power AM and FM stations and LPFM and FM translators in Michigan and Ohio must file their license renewal applications. Those stations should already be close to completing their renewal applications, looking to file them on or before the June 1 deadline.  See our article here on the FCC’s announcement of the newly-revised procedures for filing TV license renewal applications.  On June 1 and again on June 16, stations filing renewals need to broadcast their post-filing announcements informing their audiences of the filing of the renewal application.
Continue Reading June 2020 Regulatory Dates for Broadcasters: License Renewals, EEO Reports, Broadcast Internet Consideration, and Comments on Significant Viewing, DTS, White Spaces, Regulatory Fees, and Video Description

Here are some of the regulatory and legal actions in the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • In connection with the Commission’s required monthly Open Meeting which was held last week, the FCC adopted two items of importance to broadcasters, which we previewed in last week’s update.
    • The first item adopted new rules implementing streamlined and standardized public notice obligations associated with various broadcast applications. The revised rules abolish requirements for printed notices in local newspapers and pre-filing announcements for license renewal.  (News Release)  (Second Report and Order).  The effective date of these changes will be announced later, although in a separate Order, the FCC immediately waived the requirement for license renewal pre-filing announcements for all future renewal windows.   The requirements for license renewal post-filing announcements are unchanged
    • The second item proposed for public comment the amounts of the annual regulatory fees to be paid in September by broadcasters and other FCC-regulated communications entities.  In addition to asking for comments on the allocation of the fees to be paid, the FCC asks if it can do anything to assist those who pay the fees in light of the current pandemic.  While the FCC is required by Congress to collect the regulatory fees, it asks if there are actions it can take while still complying with its statutory obligations, e.g. by allowing some companies to pay their fees over a greater period of time.  The FCC also completed the transition of TV fees to a system based on population in a station’s service area instead of the size of the market in which the station operates.  It also reduced the fees to be paid by certain VHF television broadcasters.  The comment period for the proposed 2020 regulatory fees will be set after the notice is published in the Federal Register.  (Report and Order and Notice of Proposed Rulemaking).


Continue Reading This Week at the FCC: May 9, 2020 to May 15, 2020

During most months, FCC procedures, rules and regulations, with their mostly predictable schedules and deadlines, give broadcasters a feeling of routine.  In this time of stay-at-home orders, social distancing measures, and face-mask wearing, even FCC deadlines cannot provide the semblance of normality we are all looking for.  In fact, May is one of those months where there are no regularly scheduled regulatory filings (e.g., no renewals, EEO reports, fee filings, or scheduled public file disclosures).  Nevertheless, as always, there are a number of important regulatory dates—and changes in some dates—for May of which broadcasters should be aware.

The radio license renewal process continues its march across the country, and the renewal cycle for television begins with the required filing by June 1 of license renewals by full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia.  Those stations should be working on their renewals in May, looking to file them on or before the June 1 deadline.  See our article here on the FCC’s recent announcement of the procedures for filing TV renewal applications.
Continue Reading May Regulatory Dates for Broadcasters – License Renewal Preparations, FCC Meeting, and Comments on the Communications Marketplace, Significant Viewing and FM Zonecasting

This week, the FCC’s Notice of Proposed Rulemaking on Significant Viewing was published in the Federal Register, setting a comment deadline of May 14, with reply comments due by June 15.  The NPRM asks for comments as to whether the FCC should update its rules for establishing whether or not a TV station is “significantly viewed” in a market other than the one in which it is located, and whether the FCC has the statutory authority to make changes to these rules that have largely been in effect since 1972.

A determination of significantly viewed status is important for determining whether a cable system or satellite television company will carry a TV station in areas that are not part of its home market.  For FCC purposes, significantly viewed stations generally are not subject to the network nonduplication and syndicated exclusivity protections provided to home market stations – meaning that their programming that duplicates that of a local station need not be blacked out by the MVPD at the request of the local station that has the rights to such programming in that market.  For copyright purposes, if a station has significantly viewed status, the MVPD pays at the low rates applicable to a local station pays for the compulsory copyright license needed to carry all of the programming of a television station.  If the station is not significantly viewed, the much higher “distant signal” rate applies, giving the MVPD far less incentive to carry such stations.
Continue Reading Comment Dates Set on Possible Revision to Rules on Significantly Viewed Television Stations for MVPD Carriage Purposes – What Is Being Asked?

FCC business marches on in this time of social distancing and mandatory lockdowns, though with modifications caused by the circumstances in which we find ourselves.  The FCC released a Public Notice yesterday announcing that its monthly open meeting scheduled for March 31 will be held by teleconference rather than live in the FCC meeting room.  It can be viewed on the FCC’s website and on its YouTube channel.  Most of the action items will have already been voted on by the Commissioners through the “circulation” process.  This means that the votes will be taken on the written orders without any formal presentations by FCC staff members explaining the actions, and without orally-delivered statements by any of the Commissioners – though the Commissioners can certainly make their feelings known in written statements on the items on which they will have voted.  The meeting itself is likely to consist of Commission announcements and statements by the Commissioners on the current state of affairs.

Issues that were to be considered at the meeting of interest to broadcasters include the adoption of a Notice of Proposed Rulemaking on Distributed Transmission System technology for TV stations – making it easier for TV stations to fill in their market coverage with multiple transmitters spread throughout the market, rather than a single big transmitter in the center of the market – a technology made easier as stations transition to the new ATSC 3.0 transmission system (see the draft NPRM here).  FCC Notices of Proposed Rulemaking on significantly viewed TV stations (draft NPRM here) and cable carriage disputes (draft Further Notice of Proposed Rulemaking here) are also on the agenda.
Continue Reading FCC Activity in the Time of COVID-19 – Commission Meeting to be Held Virtually, Commissioner O’Rielly Nominated for New Term

Last week, the Senate approved a reauthorization of STELA, the new bill called STELAR (the “STELA Reauthorization Act of 2014”), adopting the version that had been approved by the House of Representatives earlier in the month.  In addition to simply giving satellite television companies (essentially DISH and DirecTV) the a five-year extension of their rights to rebroadcast the signals of over-the-air television stations without authorization from every copyright holder of the programming broadcast on those stations, STELAR made other changes to both the Communications and Copyright Acts that will have an impact on TV station operators once this bill is signed by the President.  The Presidential signing is expected before the end of the year.  [Update, 12/5/2014 the President signed the Bill yesterday evening, so it is now law]

Some of the important provisions for TV stations contained in this bill include provisions that impact not only the relationship between TV stations and satellite TV companies, but also ones that have a broader impact on the relationship of TV stations with all MVPDs, including cable systems. There is also a provision actually providing more latitude for LPTV stations to negotiate carriage agreements.  Some of the specific provisions of this bill include:

JSA Extension:  STELAR will give TV stations currently operating with a Joint Sales Agreement with another station in their market which they cannot own under the current multiple ownership rules 6 more months to terminate such operations – until December 19, 2016 (after the next Presidential election).  See our discussion of the changes in JSA attribution here and here.
Continue Reading Congress Passes STELAR – Renewing Authorization of Satellite Carriers Carriage of TV Stations – With Some Important Changes to JSA, Retransmission Consent and Market Modification Rules

Sometimes the FCC decisions come out in a flurry, often with little nuggets of importance in each one.  Rather than trying to write about each one, we’ll from time to time, just try to highlight those nuggets for your consideration.  At the end of last week, three decisions came out with just such nuggets – all dealing with different issues.  The first case involved the issue of divestiture trusts – trusts set up to hold broadcast assets when a buyer of broadcast properties, usually in connection with the acquisition of a broadcast group, needs to divest some stations so that the buyer remains in compliance with the multiple ownership rules (usually in radio where the attribution of LMAs and JSAs make impossible divestitures like those used in television, to parties with no connection to the buyer but operating with a Shared Services or Joint Sales agreement).  In the past, the FCC has not put any limit on how long the stations could remain in a divestiture trust, with some stations spending 5 or 6 years (or longer) in such trusts before they are finally sold.  This case involved an acquisition of a large number of radio stations by Townsquare Media from Cumulus.  Here, the Commission established a two year limit on period of time that the trust could hold the stations placed in its care.  Thus, the trustee needs to divest of those stations within that period.  We would not be surprised to see that limit imposed on any trusts created in the future – perhaps even on some longstanding trusts still in place when they are subject to renewal applications, where such trusts have been challenged from time to time.

In TV, often stations that cannot be owned by a broadcaster who is buying another station in the same market consistent with the multiple ownership rules are not sold through a trust, but instead they are sometime bought by an independent party who can support the station through some sort of Joint Sales or Shared Services Agreements with the buyer.  In one of those cases, the continuation of an existing Shared Services Agreement was challenged in connection with the sale of the brokering station held by Young Broadcasting to Media General.  The FCC again (as they have in many cases before, see for instance our article here), held that the sale was permissible and that the SSA could continue after the sale.  The brokering station did supply news to the brokered station, but it was under 15% of the program time, and thus not attributable.  The brokered station continued to have a financial incentive to operate the station successfully, keeping 70% of the cash flow of the station.  And the mere fact that the owner of the brokering station guaranteed the debt of the brokered station did not make that interest attributable to the broker.  Note, however, that the Commission did question the staffing of the brokered station but, as that station was not being transferred as part of the sale before the FCC, the Commission said that they would review that issue in connection with the license renewal of the brokered station.  Shared Service Agreements are also under consideration in the current Quadrennial review of the FCC’s multiple ownership rules (see our stories here and here ).  So some of these issues may be revisited again in the not too distant future, when the new FCC Chair decides to complete that review.
Continue Reading Odds and Ends – Divestiture Trusts, Shared Services Agreements and Determinations of Significantly Viewed Stations

Just a reminder that by October 1, Television stations must once again make their triennial carriage elections.  By that date, TV stations must notify the local cable systems and satellite carriers in their market in writing as to whether the station intends to be carried pursuant to must-carry or a retransmission consent agreement for the

The FCC just issued a Report to Congress concerning the access of television viewers to in-state television stations.  This report was requested by Congress as part of STELA (the Satellite Television Extension and Localism Act), which extended the compulsory license for direct to home satellite television operators (DISH and DirecTV) – a license which gives them copyright clearances to retransmit all the programming transmitted by the broadcast television stations that they make available as part of their service packages.  Congress also requested a Report from the Copyright Office on the need for the compulsory license – a report also issued this week, which we will write about in another article.  The issue of access to in-state television stations has been a controversial issue, as several Congressmen have sought (and in a few cases actually received) legislative authority for cable providers to carry out-of-market television stations on cable systems serving areas in one state that are part of television markets where the television stations come from a different state.  The report refers to these areas as "orphan counties."  Once legislative authority was granted in one state, many other bills popped up in Congress trying for the same relief in their state – causing concern that the existing television markets (or Designated Market Areas or "DMAs", designated by the Nielsen Company) might be undermined.  To see what impact such changes would have, Congress requested this report from the FCC.

The report for the most part does not make recommendations, but instead simply provides information about the service provided to US television viewers, the potential options for bringing an in-state service to all viewers, and the issues that such proposals would raise. Perhaps the most interesting fact revealed by the report is that 99.98% of all US television households already have access to an in-state television station, either over-the-air or through a Multichannel Video Programming Distributor (e.g. cable or satellite TV system), so this is a very isolated issue.  However,when the FCC sought comments on the issues discussed in the report, a number of individuals in particular DMAs responded about situations where they could not get access to in-state television stations and asked that something be done.  The report assesses the implications of any action that could be taken.


Continue Reading FCC Issues Report to Congress on Access to In-State Television Programming