The FCC denied reconsideration on the last phase of the digital television transition – requiring that all LPTV stations and TV translators cease analog operations and be operating digitally by September 1, 2015. See our summary of the original ruling on the digital conversion of LPTV and TV translator stations here. In denying reconsideration, the FCC determined that the September 1, 2015 date will hold – denying requests that the final decision be postponed while the FCC considers the repacking of the television band as part of the incentive auction process to clear part of the TV spectrum for wireless broadband purposes. The FCC also noted that some parties wanted to keep operating in an analog mode on TV channel 6, as the audio can be received by FM receivers (so-called "Franken FMs"). The Commission determined that using Channel 6 to provide an audio service this was not a sufficient reason to keep analog operations on TV channels alive past the deadline that they have established. (See our articles about these hybrid LPTV/FM stations, which take advantage of the fact that Channel 6 is adjacent to the FM band and that analog TV used an FM audio system, here).

The Commission did note that, in response to some petitions for reconsideration, that any LPTV station or translator moving to Channel 6 for digital operations be required to protect noncommercial FM stations that would be operating on adjacent frequencies. While the Commission does not expect that such interference will occur frequently, they made clear that LPTV and TV translators are secondary services, and they cannot continue to operate if they cause interference to primary services, including primary noncommercial FM stations.


Continue Reading No Relief on LPTV/TV Translator Digital Conversion Deadline – 2015 Deadline for End of Analog Operations Upheld on Reconsideration

The FCC yesterday proposed abolishing the UHF discount – which counts the audience reached by a UHF station as only one-half when computing whether the owner is approaching the 39% cap on nationwide audience that can be reached by one owner. While many FCC rulemaking proposals are very subtle, with many nuances that are important in the debate about the final rules to be adopted, this proposal is actually straightforward – should the discount be abolished or not.  Following the digital transition, which saw many migrate from VHF to UHF, most television stations are now UHF (meaning that they operate on TV channels 14-51). While many stations may continue to identify themselves by their old VHF channel numbers, the vast majority now really operate on UHF channels because of UHF’s technical superiority in a digital world.  Digital allows these stations to identify themselves with a “virtual” number – looking to consumers like they are still on channels 2, 4, 7, 9, etc. – when they are really operating on a UHF channel.  But the actual channel of operation is used for claiming the UHF discount and assessing compliance with the 39% audience cap. In yesterday’s Notice of Proposed Rulemaking, the Commission proposed doing away with that discount, as the impediment that stations used to suffer from being on a UHF channel (worse indoor reception, a more limited coverage area and significantly higher electricity costs) are no longer as severe, and being on UHF actually has become an advantage (as UHF, in a digital world, is less susceptible to interference and needs a smaller antenna, thus being better for mobile operations). While the Commission’s proposal is straightforward, and the logic seems simple, the proposal is not without issues.

These issues were identified by Commissioner Pai who yesterday dissented from the proposal for the abolition of the rule. The Commissioner noted that several television groups are already above the cap if the discount is abolished (including Univision), and several others are nearing the 39% cap. He suggested that, if the discount is to be abolished, the Commission should consider lifting the cap above 39% to reflect today’s competitive television marketplace realities, and to not effectively raise the cap on how many stations can be owned. He also suggested that diversity should be part of the consideration, given the impact on Univision. Perhaps the biggest area of debate that he raised is the question of when any rule change would take effect.


Continue Reading FCC Starts Proceeding to Consider Abolishing the UHF Discount – Effectively Lowering TV Ownership Limits?

We have not written as much as we should have about the current FCC proceeding looking to reclaim parts of the television spectrum in order to repurpose it for auction to wireless users. The process by which the FCC will pay some broadcasters to give up their spectrum (the "incentive auction"), and get the money to pay for that surrender of spectrum from a simultaneous auction of the reclaimed spectrum, is a very complicated one. It will require careful judgments about how much money will be received and how much will be needed to be spent to clear the required spectrum, and to pay for other costs required by Congress in the enabling legislation (see our article here about the legislation), including the costs of moving remaining broadcasters to new channels after the auction. In order to provide a uniform block of wireless spectrum across the country (so that devices can be built to receive new signals on the same channels everywhere), the television stations that are not going to return their spectrum to the FCC will have to be “repacked” into a reduced television band, requiring some stations to change channels to accomplish that repacking. This week, the FCC made two announcements that will begin to shed some light on that transition – announcing the panelists for a discussion on the repacking process, and asking for comments on the costs to be incurred by TV broadcasters which can be reimbursed by the fund that the FCC is required to maintain to fund that repacking.

The FCC first released notice of the panelists for a September 30 discussion of how the repacking of TV spectrum will take place, discussing the likely mechanics of the repacking and the ways that the repacking can be accomplished efficiently.  (For more on the discussion, go to this page on the FCC website).  Representatives of the FCC will moderate panels of trade association representatives, engineers and others to discuss the repacking process. The discussion will be webcast by the FCC (go here for the webcast on September 30).


Continue Reading FCC Seeks Comments on Reimbursable Costs of TV Stations Changing Channels as Part of Repacking of TV Spectrum for Incentive Auctions, and Announces Panels to Discuss the Process

The US District Court in Washington DC issued a decision earlier this month, enjoining the operation of the television streaming service FilmOn X throughout the United States – except within the Second Circuit (covering NY) where the US Court of Appeals reached a contrary decision in connection with Aereo – a very similar service. Both of these services utilize multiple small antennas to receive over-the-air television programs, which are recorded on a central server and sent over the Internet on demand to individual viewers. In effect, these viewers, by paying the subscription fee charged by the services, get their television programming on the Internet – through their computers and soon to their mobile devices.  The contrary decisions in these two cases illustrate a fundamental disagreement between two courts as to the meaning of the "public performance" right enjoyed by copyright holders in their copyrighted works.

As we wrote here, the Second Circuit, in the Aereo case, determined that, as the transmission of the over-the-air programming was done on an individual basis, at the demand of the individual viewer, it was not a “public performance.” In the Second Circuit’s opinion, the fact that the transmission is made to a single user, either when the program is aired or on a delayed basis, made each individual performance of the television program a "private performance," which did not infringe on the rights of the copyright holders, and more than a transmission of a signal from an antenna on someone’s roof to the television set in the living room was a public performance.  The DC Court disagreed with that interpretation, joining a District Court in California in deciding that this type of service, without the permission of the broadcaster, is a violation of the copyright laws.

The DC Court was very thorough in its review of the issue and its basis for disagreeing with the Second Circuit (or agreeing with the dissenting opinion in the Second Circuit). The issue raised in the FilmOn X case, whether the retransmission over the Internet of the over-the-air television signal of a broadcaster is essentially the same issue raised 40 years ago when cable television operators first started to operate, charging customers for bring them television signals from over-the-air TV stations. After the Supreme Court at that time, in the Fortnightly and Telepromter cases, agreed with cable operators that their retransmissions of television stations did not constitute a "public performance" of those signals, Congress intervened in 1976, revising the Copyright Act to make clear that such retransmissions of broadcast signals were in fact covered by the Act. The changes adopted then, which are still in place in the Copyright Act, were cited by the DC Court in finding that the operations of FilmOn X indeed violated the copyright holders public performance rights under the Copyright Act.


Continue Reading DC Court Issues Injunction Against FilmOn X for Its Aereo-Like TV-Streaming Service – Increasing Legal Confusion Over TV Public Performance Rights

In at least 7 decisions released last week, the FCC fined TV stations between $3000 and $18,000 for failure to timely file Form 398 Children’s Television Reports – reporting on the programming broadcast by the stations to address the educational and informational needs of children. In these cases, the fines were not for failing to file the reports at all, but instead for the failure to timely file the reports. All but one of the cases involved Class A television stations, which, as we’ve written before, are being subject to very strict scrutiny as the FCC looks to find some willing to give up their protected status before the upcoming incentive auctions (Class A stations being protected from being bumped off the air by new users – but subject to all the rules applicable to full power stations). In each of the cases involving Class A stations, the FCC has offered to forget the fines for noncompliance, if the station gives up its Class A status and becomes an LPTV station, which has no protections.  If the station gives up its protected status, it will have no rights to receive compensation if it gives up its channel in the incentive auction, or if it is forced to change channels in the repacking of TV channels after that auction. 

These cases all stem from the FCC review of the license renewal of the station. With the obligation to file a Form 398 only two weeks away – the quarterly report being due on July 10 – TV stations, especially stations that have not yet filed their renewals, need to pay attention now to make sure that they don’t miss the upcoming deadline.  With public files now online, the FCC late-filing becomes more visible, and with the television renewal cycle in full swing, many TV stations are either now or soon to be under the scrutiny of the FCC. So meeting these obligations becomes important – as the failures can be costly. And, as set forth below, any time that there are multiple late filings – late by more than 10 days (which the FCC note that it might excuse as de minimis) – a fine is likely.


Continue Reading FCC Fines of Up to $18,000 Proposed for 7 TV Stations For Failure To Timely File Children’s Television Reports – The Big Renewal Issue for TV Stations?

As is the case with most months, June brings a number of FCC deadlines for broadcasters, both standard regulatory filings and comment deadlines in important regulatory proceedings. The regular filing deadlines include license renewal applications due on June 3 (as June 1 is a Saturday) for Commercial and Noncommercial Full-Power and Class A Television Stations, TV Translators, and LPTV Stations in Ohio and Michigan; and Commercial and Noncommercial AM and FM Radio Stations, FM Translators, and LPFM Stations in Arizona, Idaho, Nevada. Noncommercial stations in the states with renewals also have to file their Biennial Ownership Reports, as do noncommercial radio stations in Maryland, Virginia, West Virginia, and the District of Columbia.

Renewal pre-filing announcements must begin on June 1 for Commercial and Noncommercial Full-Power and Class A Television Stations in Illinois and Wisconsin and for Commercial and Noncommercial AM and FM Radio Stations in California. Post-filing announcements for radio stations in Texas should continue on June 1 and 16, as well as for TV stations in Indiana, Kentucky and Tennessee.

In addition to these regular filings, broadcasters also have many other deadlines that are coming up either in the month, or soon thereafter. Broadcasters who were successful bidders in the recent FM auction have payment deadlines on June 12, and then have a July 24 deadline for the filing of "long-form" applications on FCC Form 301 specifying the technical facilities that they plan to build (see the FCC Public Notice here). Applicants for new FM translators left over from the 2003 filing window are now in a settlement window, with deadlines for settlements between competing applicants due on July 22 (see the FCC public notice here). 


Continue Reading June FCC Obligations for Broadcasters – Renewals, EEO, FM Translator and Auction Filings, and Comments on Regulatory Fees, Indecency, and Incentive Auction Band Plan

The President has nominated Thomas Wheeler as the next FCC Chairman, to become effective after confirmation by the US Senate. What does this mean for broadcasters? As we have said before, one never really knows what issues will drive a Chairman’s agenda. For this Chair, some issues are clear – like dealing with the incentive auction to reclaim some TV spectrum for wireless use, which is inevitably marching forward. Other issues are forced on the FCC – like dealing with the indecency issues still pending after Supreme Court remand, or the multiple ownership quadrennial review still pending at the Commission while waiting for the MMTC study on the effects of media cross ownership on the ability of minorities and other new entrants to get into broadcast ownership. And some are issues that for one reason or another capture the interest or attention or concern of the FCC Chair. Usually, these issues don’t become clear until after the Chairman assumes his position, but that has not stopped many in Washington from speculating what the new Chairman will do once he is confirmed.

Interestingly, the speculation ranges the gamut, from Free Press fearing that he will be too friendly to big business because of his past service as the head of two trade associations – NCTA (the cable television industry trade association) and CTIA (the wireless industry association), to the statement of Republican leaders of the House Energy and Commerce Committee, fearing that he will impose too many regulations on these same big business organizations. In short, the perspective on the nomination seems to be based, at least in part, on the initial perspective of those who muse about what it means.


Continue Reading The President Nominates Tom Wheeler to Chair the FCC – What Will It Mean for Broadcasters?

We’ve written extensively about copyright issues for audio services, but the big copyright decision that recently made headlines is a TV issue, though one that could have an impact on audio as well. That was the Second Circuit decision in the Aereo case – upholding a lower court decision allowing a company to retransmit over-the-air TV signals to consumers over the Internet – without any royalties to the TV broadcasters or television program producers. The decision looked at the issue of what defines a “public performance” that would require the consent of the copyright owner. The Court found that there is no public performance of television programming where the service is set up so that the programming is streamed to the viewer individually, at their demand, rather than transmitted all at once to multiple consumers – as by a cable system or a  satellite television service. The decision is a controversial one – decided by a 2 to 1 vote with the dissenting judge issuing a strong dissent arguing that the Aereo service was nothing more than a “sham” designed to evade the royalty obligations or copyright permissions that would be necessary if the service were deemed a cable system or other type of multichannel video provider. What does this decision really mean for television stations, and could it have broader implications for the reuse of all sorts of broadcast content on the Internet?

The decision focused on the question of whether the Aereo service “publicly performs” the programming that it sends to its subscribers. Under the Copyright Act, a copyright owner has a bundle of rights which it has the exclusive ability to exploit. This includes the right to copy the copyrighted work, to distribute it, to make a “derivative work” (a work that uses the copyrighted material and changes it in some way – like putting new words to the melody of a copyrighted song), and the right to publicly perform it. The definition of a public performance includes any transmission or retransmission of a performance to multiple individuals at the same time or at different times. This language was added to the Copyright Act at the time of the advent of cable television, to make clear that services like cable, that take an existing performance (like that of a broadcast television station) and then further transmit it to other people (even people who could theoretically pick up the original performance) were themselves making a public performance that needed the consent of the copyright holder or a government-imposed statutory license (which allows the performance as long as the party making the performance pays the copyright holder an amount set by the government). From a cursory look, it would appear that Aereo is retransmitting the signal of the TV station to all of its customers. Why, then, did the Court rule that no public performance was involved?


Continue Reading Aereo Court Decision Permits Internet Streaming of TV Programs Without Royalties – Undermining the Public Performance Right?

With broadcasters making their way to the NAB Convention in Las Vegas, the FCC on Friday provided one topic for conversation among TV broadcasters – issuing a Public Notice imposing a freeze – effective immediately – on the filing of any technical application by any licensee or permittee of a full power TV station or a Class A station if that application which would increase their protected service area. The freeze was imposed, in the words of the FCC, in order to “facilitate analysis of repacking methodologies and to assure that the objectives of the broadcast television incentive auction are not frustrated.”  In other words, the FCC wants a stable TV database from which it can begin the process of repacking TV stations into a smaller portion of the TV spectrum to facilitate the auction of parts of the TV spectrum recaptured after an incentive auction for wireless broadband purposes.

According to the notice, the Media Bureau will no longer accept the following types of applications:

·       Modification applications (and amendments to pending modification applications) by full power and Class A television broadcast licensees and permittees for changes to existing service areas that would increase a full power station’s noise-limited contour, or a Class A station’s protected contour, in one or more directions beyond the area resulting from the station’s present parameters as represented in its authorizations (licenses and/or construction permits).

·       Class A displacement applications that would increase a station’s protected contour.  (However, the Bureau will continue to accept Class A minor change applications to implement the digital transition (flash cut and digital companion channel) subject to current rule limitations.  

The Notice states that the Bureau will consider requests for waivers of the freeze, on a case-by-case basis “when a modification application is necessary or otherwise in the public interest for technical or other reasons to maintain quality service to the public, such as when zoning restrictions preclude tower construction at a particular site or when unforeseen events, such as extreme weather events or other extraordinary circumstances, require relocation to a new tower site.” So, if your tower collapses and you need to move to a different site, a waiver may be possible, but improvements for the sake of improving a station’s signal will most likely be prohibited by the freeze.


Continue Reading FCC Imposes Freeze on Television Station Technical Improvements – Preparing for Repacking the TV Spectrum to Allow for Spectrum Auctions

April is one of those months in which many FCC obligations are triggered for broadcasters. There are the normal obligations, like the Quarterly Issues Programs lists, that need to be in the public file of all broadcast stations, radio and TV, commercial and noncommercial, by April 10. Quarterly Children’s television reports are due to be submitted by TV stations. And there are renewal obligations for stations in many states, as well as EEO Public File Reports that are due to be placed in station’s public files and on their websites. The end of March also brings the obligation for television broadcasters to start captioning live and near-live programming that is captioned on air, and then rebroadcast on the Internet. Finally, there are comment deadlines on the FCC’s proposal to relax the foreign ownership limits, and an FM auction and continuing FM translator filing requirements.

Radio stations in Texas and television stations in Tennessee, Kentucky and Indiana have renewal applications due on April 1. The license renewal pre-filing broadcast announcements for radio stations in Arizona, Idaho, Nevada, New Mexico, Utah and Wyoming, and for TV stations in Michigan and Ohio, must begin on April 1. All of these stations will be filing their renewals by June 1. EEO Annual Public file reports for all stations (radio and TV) with five or more full-time employees, which are located in Texas, Tennessee, Kentucky, Delaware, Pennsylvania or Indiana, must be placed in their public files (which are now online for TV broadcasters) by April 1.   Noncommercial radio stations in Texas, and noncommercial TV stations in Tennessee, Indiana Delaware, Pennsylvania, and Kentucky must also file their Biennial Ownership Reports by April 1


Continue Reading April FCC Obligations for Broadcasters – Renewals, EEO, Quarterly Issues Programs Lists, Captioning of Live or Near-Live Online Programming, FM Translator Filings, an FM Auction and Comments on Alien Ownership