In the wake of Commission’s rejection of hundreds of closed captioning waivers last year, many small television producers are now seeking new waivers for relief from the Commission’s television closed captioning rules.  Last October, the Commission overturned nearly 300 "economically burdensome" captioning waivers on the grounds that the FCC had failed to apply the correct standard of review and

This afternoon, the FCC released its long-anticipated Report and Order (R&O) setting forth the Commission’s new closed captioning rules for IP-delivered video programming, pursuant to the 21st Century Communications and Video Accessibility Act (CVAA). 

As we explained when the rules were first proposed in September, the CVAA directed the FCC to establish how and when certain

The FCC has extended the comment deadline in two proceedings looking at imposing new public interest obligations on TV broadcasters (and potentially, at some point in the future, on radio stations as well).  Both proceedings are an outgrowth of the FCC’s Future of Media Report, that suggested that broadcasters be made to be more

In addition to the normal FCC deadlines for routine filings, January brings the deadline for comments in a number of FCC proceedings, and a filing window for new FM applications.  For TV stations, the Commission recently extended to January 17 the Reply Comment deadline on its proposals (summarized here) for an online public inspection file

The FCC approved the first database manager for TV white spaces devices – those wireless communications devices that will operate in the spectrum currently used by broadcast television, operating on channels not in use in a given area and supposedly avoiding interference to the reception of over-the-air television stations.  Spectrum Bridge is the first company to be approved to act as a database manager, though there are several other companies who have applied and whose systems are in various stages of development and testing.  The database manager is to keep a list of all of the services that a white spaces device needs to protect from interference, and be able to transmit that information to devices to tell them what channels they can use in a given geographical area.  Protection must be accorded not only to TV stations and TV translators and LPTV stations, but also to the receive sites of Multichannel Video Programing Distributors (cable and satellite TV), certain broadcast auxiliary operations, off-shore telephone services and radio astronomy users, some land mobile operators, and certain wireless microphone users.  Today’s Public Notice specifically addresses how wireless microphone users need to register with the FCC to be protected from interference.

The Spectrum Bridge database was tested a few months ago, and the FCC’s letter outlines a number of concerns expressed about its operations.  These include several problems encountered by the NAB in registering sites that were supposed to be protected by white spaces devices.  While licensed facilities of TV stations and land mobile users are available from the FCC’s own database, receive sites for MVPDs and translators need to be registered, as do the location of certain mobile broadcast auxiliary stations.  The FCC ordered Spectrum Bridge to re-open its database for the registration of additional sites to be protected, and said that this would provide registrants the ability to test the modifications to the system in the coming weeks before the system becomes operational. 

Continue Reading FCC Approves First TV White Spaces Database Manager – Wireless Devices in TV Band to Start Operations in January

The FCC this week adopted its rules implementing the CALM Act to address the public perception that commercials are too loud – louder than the programming which they accompany. Congress passed a law last year requiring that the FCC address the issue, and this week’s order adopts these implementing rules which will go into effect on December 13, 2012 (see our articles on the passage of the Act here, and on the Notice of Proposed Rulemaking in this proceeding here). The rules adopted by the FCC allow television stations and MVPDs (multichannel video programming distributors – cable and satellite TV companies) to meet the requirements of the Act by relying on the A/85 Recommended Practice, a standard adopted by the ATSC (the Advanced Television Standards Committee) setting out a process by which these TV providers can assure that commercials that they insert into program streams are not louder than the programs that they accompany. The rules also allow a safe harbor by which stations and MVPDs can comply with the Act in connection with “embedded commercials”, i.e. commercials that are sent to the station or system by a network or other program supplier.

The specific requirements for compliance with the new rules depend on whether the advertisements that are being broadcast are originated by the station or system, or whether they come embedded from some third-party program provider. For commercial insertions by the station or MVPD, compliance is assumed if they install the equipment required by A/85, use it in connection with their insertions, and maintain and repair it as necessary to keep it in good working order. For embedded commercials, stations can run all the programming through some sort of real time processing to ensure that the audio loudness is uniform. However the Commission was concerned would audio processing would degrade the audio quality of the programming provided by third parties. Thus, the Commission offered an alternative safe harbor with respect to embedded advertising. To comply with the safe harbor, stations and systems would either:

  • Rely on widely available certifications from networks and other program suppliers that they have complied with the standards necessary to assure that the commercials are no louder than the programming in which they are embedded, or
  • The stations and systems will need to perform “spot checks” on programming for which they have obtained no certification. Spot checks are done as follows:
    • Large stations (with over $14 million in annual 2011 revenue based on BIA Media Access Pro information) and very large MVPDs ( those with over 10 million subscribers) needs to annually spot check 100% of their non-certified programming. Large MVPDs (those with between 500,000 and 10 million subscribers) need to spot check 50% of their programming. Small stations and systems are exempt from regular spot check obligations
    • The spot check is a once-a-year obligation, requiring the station or system to do 24 hours of monitoring within a 7 day period, including at least one complete program from each non-certified program supplier, to ensure that the programs comply with the A/85 standards
    • Spot checks will phase out over 2 years as more and more programming is brought into compliance
    • If a spot check reveals an issue, the station or system needs to notify the program provider and the FCC, and do another spot check of the non-compliant programming within 30 days . If the programming continues to be noncompliant, then the programming is outside the safe harbor (meaning that, if a station or system continues to run it, they can be subject to fines)

The Order also set out additional details about what kinds of programming are subject to the rules, the complaint process for those who believe that stations or systems are not complying with their obligations, and waivers for small stations and systems.  These matters are discussed below.

Continue Reading A Summary of the FCC Rules Implementing the CALM Act to Regulate Loud TV Commercials

While the FCC is entertaining comments on its proposal to move the public inspection file for broadcast television stations online (see our article here), the existing physical public files of several New York area broadcasters came under examination by the New York Times, according to an article in Sunday’s paper. The article seemed to both make fun of the contents of the required public file, while at the same time noting that the people at several stations contacted by the reporter seemed to be unaware of the Commission’s requirements that the file be made available immediately to anyone who visits a station and asks to see it, and that requiring appointments is not an option. We’ve written in the past about stations that received substantial fines for requiring a visitor to make an appointment to see a station’s files (see, one case where a commercial TV station was fined $10,000, and another where a noncommercial FM was fined $8000 for a similar violation).  If the NY Times article is accurate, stations need to reexamine their policies and be sure that those dealing with the public know of the location of the file and the fact that it must be made available upon request – no questions asked. For more information about the public file requirements, see our Guide to the Basics of the Public Inspection File for Commercial Stationshere.

The second aspect of the report, poking some fun at some of the weird comments from the public found in the file, reinforces some of what I have been told by broadcasters. At a broadcaster meeting last week, I was told stories of station public files that have expanded exponentially since the FCC added a requirement that the file contain emails from the public, as well as letters. Broadcasters report that the letters from the public can now often take up several drawers of a file cabinet, while the remainder of the file fits in a single drawer. While the Commission has tentatively concluded that these letters would not be required to be included in the electronic online file, the recent rulemaking proposal did suggest that the letters be retained at the station, and that perhaps summaries of the written comments be made part of the online file. In addition, comments were requested as to whether social media posts about station operations be kept in some fashion – even though sites like Facebook and Twitter, by their very nature, keep most of what it posted on their sites for the public to view (see our summary of the proposals here). Broadcasters at my meeting last week were very concerned about the volume of paper that would generate, and the need for manpower to review Twitter feeds and Facebook posts almost around the clock to see if any needed to be placed into the file as they related to the station operations.

Continue Reading What the NY Times Article on the Broadcast Public Inspection File Says About the FCC’s Public File Requirements

In an eagerly anticipated case involving TV stations in the Honolulu market, the FCC’s Media Bureau determined that a programming swap that permitted one company to hold the licenses of both the NBC and CBS affiliates in a single market, and to also provide technical and office services and news programming to a third station in the market, was permissible under current rules.  However, the Commission warned that it would consider in its upcoming Notice of Proposed Rulemaking in its Quadrennial Review of the multiple ownership rules whether similar situations should be permitted in the future, and seemingly implied that even this combination could be subject to further review in future licensing proceedings.  The permissibility of shared services agreements has been a question raised by public interest groups for quite some time (see our post here), and has also been raised by certain cable and satellite television operators as such combinations can result in one broadcaster negotiating carriage agreements for multiple stations in a market.  Based on this case, and the issues raised in connection with previous decisions, this will no doubt be a very controversial topic when the Commission considers the upcoming multiple ownership proceeding.

The Honolulu case began with one owner – Raycom – holding two licenses in the market – one an NBC affiliate, and the other an affiliate of the MyTV Network.  As there are 8 independently owned television stations serving Honolulu, the combination of these two stations, only one of which is a Top 4 station in the market, was permissible.  Raycom then entered into a deal with the owner of the local CBS affiliate, where the parties swapped call letters and network affiliations.  Raycom also purchased many of the non-license assets of the station, and received an option to purchase the station, and agreed to pay the licensee, over time, $22 million.  Raycom also entered into a shared services agreement with the owner of the station that had become the MyTV affiliate where Raycom would provide back office services, sales personnel, and a physical location for the station’s studio and transmitting antenna, in exchange for 30% of the stations revenues, and a flat monthly payment.  As detailed below, the Commission determined that the swap of call letters and network affiliations was not subject to review at this time as there was no licensing transaction before the FCC, and the shared services agreement did not violate current FCC policies.

Continue Reading FCC Says TV Shared Services Agreement and a Combination of Two Top 4 Network Affiliates in One Market is Permissible – For Now

The FCC has set the date for comments on the proposal for television stations to maintain an online public inspection file, including an online political file (see Federal Register notice here).  Comments are due on December 22.  Replies are due on January 6.  Happy Holidays from the FCC!  We summarized the FCC’s proposals here and here.  While the proposed new rules will relieve stations from the burden of hosting the files themselves (as the FCC is proposing to host all of the files on its own servers), it still requires that stations upload their information – including all information that is put in their political file, into a new electronic reporting system to be devised by the FCC.  As we described in detail in our summary of the proposal for the online public file, the FCC is asking whether certain new public file obligations should be added to those currently in place.  These include possible posting of comments on programming that come from the station’s social media efforts in addition to the letters and emails currently required; a proposed requirement to place in the public file information about sponsorship identification of all "pay for play" material that is broadcast on a station (currently only broadcast, not kept in any paper form); a requirement to provide information about shared services agreements and the programming that they provide to a station; and a requirement that all information about fines and other enforcement actions taken against a station be posted to the online file.  So how much does the FCC think that this will cost stations?

As we wrote yesterday, in adopting rules, the FCC is currently bound by the Paperwork Reduction and the Regulatory Flexibility Acts, both of which require some assessment of the impact of new regulations, particularly on small businesses.  In the Federal Register publication, the FCC’s assessment of the regulatory burden of these proposed new obligations is broken down into several pieces.  The burden for the new online public file requirement, including the posting of the political file, is set forth as follows:

Respondents/Affected Parties: Business or other for-profit entities; Not for-profit institutions; Individuals or households

Number of Respondents and Responses: 25,422 respondents; 59,833 responses

Estimated Time per Response: 1 to 104 hours.

Frequency of Response: On occasion reporting requirement; Recordkeeping requirement; Third party disclosure requirement

 Obligation To Respond: Required to obtain or retain benefits. The statutory authority for this collection of information is contained in 47 U.S.C 151, 152, 154(i), 303, 307 and 308

Total Annual Burden: 2,158,909 hours

 Total Annual Costs: $801,150.00

Stations should look at and evaluate these numbers as part of their response, as the FCC has invited a cost-benefit analysis of the proposed new rules.  How is it that the FCC assumes that the regulatory burden would be over 2 million hours, but that the costs would be less than a million dollars?  How will this work be done and paid for?  It is also interested in that the number of respondents is listed as 25,422.  As there are only 1,782 full-power television stations and about 450 Class A stations according to the last FCC Report on station totals, who else is expected to report on this form?  The FCC, in its Notice of Proposed Rulemaking, specifically exempted radio from the obligations for an online public file – at least for the time being.

Continue Reading December 22 Comment Deadline Set for FCC Proposal for Online Public Inspection File for TV – What is the Regulatory Burden?

When the FCC last month started a new proceeding to mandate an online public file for television stations, the Commission promised to soon initiate another proceeding to look into the need for a new form to document the public interest programming that TV stations provide.  The FCC today fulfilled that promise, and issued a Notice of Inquiry ("NOI") to start the process of adopting a new form for TV stations to complete to report on various categories of "public interest programming," however that might be defined.  In 2007, the FCC had adopted Form 355 to accomplish that task.  But, after an outcry from stations about the paperwork burden that the form would impose, the FCC never submitted it to the Office of Management and Budget for approval under the Paperwork Reduction Act, and thus the form never became effective.  The adoption of the Form 355 was vacated last month in the online public file proceeding.  But the Commission now proposes its return – in some fashion.  So what does the Commission now propose to require from TV stations to document their public interest programming?

First, the FCC asks a series of questions about how such a form should be structured, and how the information should be collected to be meaningful for those that want to analyze it, but not overly burdensome for the TV stations.   The Commission seems to conclude that the form is necessary – not even asking questions on that basic issue of whether to adopt a standardized form.  The NOI states:

We continue to believe that the use of a standardized disclosure form will facilitate access to information on how licensees are serving the public interest and will allow the public to play a more active role in helping a station meet its obligation to provide programming that addresses the community’s needs and interests

The Commission then goes on to discuss the Quarterly Programs Issues lists  ("QPIs") that are currently required to be placed in a station’s public file every three months – describing the issues that station management sees as important in the community and the programs that the station has broadcast to address those issues (see our most recent advisory on this obligation, here).  The Commission states that these quarterly reports should be replaced, as broadcasters have been uneven in their recordkeeping of such lists.  Of course, that may be because the FCC has never proscribed any specific form for these reports, nor specifically said what is acceptable and what is unacceptable in connection with such reports.  Seemingly, replacing one form with another (albeit a more complete, detailed new form) may well accomplish nothing if the new report does not have clear and unambiguous instructions – something never adopted for the Quarterly Reports.

Continue Reading FCC Proposes New Form Requiring TV Broadcasters to Document their Public Interest Programming