The House of Representatives, after a fairly contentious debate, today passed the Bill extending the termination date for analog service by full-power TV stations, extending the Digital Television deadline until June 12. By that date, all full-power stations will need to complete the transition to digital so that, on June 13, there will be no
As we wrote on Friday, the Senate has passed the Bill that would extend from February 17 to June 12 the deadline for full-power television stations to transition to digital operations. This leaves the House of Representatives to once again consider the matter – supposedly in committee on Tuesday and perhaps by vote of the full House as early as Wednesday. In preparation for that consideration, there have been conflicting letters released by Congressmen supporting the bill and those who are oppose. The opponents claim that the ability of TV stations to transition before the end date, an option that was important to Senate Republicans who unanamously supported the extension of the transition date, may not in reality exist. The supporters of the bill point to the over 1.85 million people who are on the waiting list for the $40 coupons to be applied against the cost of DTV converters to allow analog televisions to receive digital signals after the transition. What do these letters add to the debate?
The Republican Congressmen leading the charge against the delay of the transition suggest in their letter that the ability of TV stations to transition before an extended June 12 DTV deadline is largely illusory, as they imply that most stations cannot transition until the last day because of interference concerns. They have asked the FCC to immediately provide information about how many stations would be precluded from a transition until June 12 if the date is extended. From our experience, while there are some stations that need to delay their DTV transition until some other station has changed channels, we would be surprised if most stations are precluded from doing so. Many stations are simply going to continue on the channels on which they are currently operating their DTV transitional facilities. Thus, if they are already operating their DTV stations on their post-transition channel, by definition they are not suffering from any preclusive interference issues. And the vast majority of the remaining stations are planning to operate after the transition on their current analog channel which itself, in most cases, is free from interference as the analog operation would have in most cases precluded other stations on interfering channels from operating in too close a proximity to the area served by the station. We are aware of many stations ready to transition early even if the deadline is extended until June 12, and we would think that these stations had reviewed their situations before deciding to do so, and would have been aware of interference concerns in preparation for their February 17 changeover. In some cases they may have coordinated an early change with any station that would have presented an interference issue. Thus, we would be surprised if the FCC report prepared for these Congressmen finds a great number of stations that will be forced to wait until June 12 to do their digital conversion even if they are inclined to make the change early.
While it seems like we just finished the election season, it seems like there is always an election somewhere. We are still getting calls about municipal and other state and local elections that are underway. And broadcasters need to remember that these elections, like the Federal elections that we’ve just been through, are subject to the FCC’s equal time (or "equal opportunities") rule. The requirement that lowest unit rates be applied in the 45 days before a primary and 60 days before a general election also apply to these elections. "Reasonable access," however, does not apply to state and local candidates – meaning that stations can refuse to take advertising for state and local elections (unlike for Federal elections where candidates must be given the right to buy spots in all classes and dayparts on a station), as long as all candidates for the same office are treated in the same way. So stations can take ads for State Senate candidates, and refuse to take ads for city council, or restrict those ads to overnight hours, as long as all candidates who are running against each other are treated in the same way.
One issue that arises surprisingly often is the issue of the station employee who runs for local office. An employee who appears on the air, and who decides to become a candidate for public office, will give rise to a station obligation to give equal opportunities to other candidates for that same office – free time equal to the amount of time that the employee’s recognizable voice or likeness appeared on the air. While a station can take the employee off the air to avoid obligations for equal opportunities, there are other options for a station. See our post here on some of those options.
In these challenging economic times, it seems like almost every day we see a notice that a broadcast station has gone silent while the owner evaluates what to do with the facility. This seems particularly common among AM stations – many of which have significant operating costs and, in recent times, often minimal revenues. The DTV transition deadline (whenever that may be) may also result in a number of TV stations that don’t finish their DTV buildout in time being forced to go dark. While these times may call for these economic measures to cut costs to preserve the operations of other stations that are bringing in revenue, broadcasters must remember that there are specific steps that must be taken at the FCC to avoid fines or other problems down the road.
One of the first issues to be addressed is the requirement that the FCC be informed of the fact that a station has gone silent. Once a station has ceased operations for 10 days, a notice must be filed with the the FCC providing notification that the station is not operational. If the station remains silent for 30 days, specific permission, in the form of a request for Special Temporary Authority to remain silent, must be sought from the FCC. The rules refer to reasons beyond the control of the licensee as providing justification for the station being off the air. Traditionally, the FCC has wanted a licensee to demonstrate that there has been a technical issue that has kept the station off the air. The Commission was reluctant to accept financial concerns as providing justification for the station being silent – especially if there was no clear plan to sell the station or to promptly return it to the air. Perhaps the current economic climate may cause the FCC to be more understanding – at least for some period of time.
Earlier this week, we wrote about the apparent compromise in the Senate between Republicans and Democrats that would seemingly allow the Digital Television conversion deadline to be delayed from the current date of February 17 that stations have been warning consumers about for years, pushing that date back until June 12. That compromise legislation passed the…
Last week, the FCC issued several fines to noncommercial broadcasters who had underwriting announcements that sounded too commercial. In these decisions, the Commission found that the stations had broadcast promotional announcements for commercial businesses – and those announcements did not conform to the FCC’s rules requiring that announcements acknowledging contributions to noncommercial stations cannot contain qualitative claims about the sponsor, nor can they contain "calls to action" suggesting that listeners patronize the sponsor. These cases also raised an interesting issue in that the promotional announcements that exceeded FCC limits were not in programming produced by the station, but instead in programs produced by outside parties who received the compensation that led to the announcement. The FCC found that there was liability for the spots that were too promotional even though the station itself had received no compensation for the airing of that spot.
The rules for underwriting announcements on noncommercial stations (including Low Power FM stations) limit these announcements to ones that identify sponsors, but do not overtly promote their businesses. Underwriting announcements can identify the sponsor, say what the business of the sponsor is, and give a location (seemingly including a website address). But the announcements cannot do anything that would specifically encourage patronage of the sponsor’s business. They cannot contain a "call to action" (e.g. they cannot say "visit Joe’s hardware on Main Street" or "Call Mary’s Insurance Company today"). They cannot contain any qualitative statements about the sponsors products or services (e.g. they cannot say "delicious food", "the best service", or "a friendly and knowledgeable staff" ). The underwriting announcements cannot contain price information about products sold by a sponsor. In one of the cases decided this week, the Commission also stated that the announcements cannot be too long, as that in and of itself makes the spot seem overly promotional and was more than was necessary to identify the sponsor and the business that the sponsor was in. The spot that was criticized was approximately 60 seconds in length.
This week, an agreement by Republican Senator Kay Bailey Hutchison, the ranking minority member on the Senate Commerce Committee, to an extension of the DTV transition deadline from February 17 until June 12, was announced. The delay has been requested so that issues about the distribution of the $40 government coupons to consumers to ease their purchase of converters to allow analog TVs to pick up digital signals so that they will continue to work after the transition date can be resolved; and so that there can be more targeted information about the transition delivered to groups that many feel may not have received the message about the transition. But Congressional Republicans have thus far blocked attempts by the Obama administration to delay the transition, so this agreement by Senator Hutchinson is viewed as a sign that the extension may very well be approved in the near term. As the transition deadline is only weeks away, if Congress is going to act, it needs to do so immediately, or the effect of any delay will be negligible as the transition will have, for all practical purposes, already occurred.
Most broadcast stations have made plans for the transition – ordering the equipment, scheduling tower crews, coordinating the changes in frequencies with other stations in the same region that may be necessary to accommodate the digital operations. In some cases, stations have already ceasing their analog broadcasting so that the new equipment necessary to accomplish the transition can be installed, or because these stations will be operating digitally on their analog frequency and have had to allow a tower crew or other engineering support to conduct the work necessary to allow the digital operations on the final channel to occur before the February deadline dates. Given the limited number of such crews, not all of these final changes could happen on a single date, so stations have been changing to all digital operations now as the final date approaches. Without Congressional action very soon, the transition will have, for the most part, already occurred.
FCC Chairman Kevin Martin announced that he will be leaving the Commission on Tuesday as the new President is inaugurated, and thus will not be present at the FCC to set any last minute policy for the DTV transition. In fact, if Martin had decided to stay for the end of the transition, he might well have had to stick around for a while, as there are bills making their way through Congress to delay the February 17 deadline for the transition to digital television. Senator Rockefeller has introduced a bill that would extend the deadline to June 12, which Senate Republicans blocked last week, though it will reportedly be reintroduced this week. At the same time, the three remaining Commissioners have all released letters that indicate that there are significant transition problems that need to be resolved before the transition deadline. While there are those who wonder if the delay will really solve the problems that may exist – the movement is in the direction of a delay.
The letters from the Commissioners are most interesting. First came a letter from Commissioner McDowell, not directed to Congress, but instead to Chairman Martin, publicly asking for information about the FCC’s DTV phone bank to answer questions from consumers about the transition. According to the McDowell letter, he was unable to get information about the status of upgrades to the system to handle the expected influx of calls at the end of the transition. McDowell also complained about calls that were not answered at all, or which had long wait times, when consumers called – wait times that often resulted in connections with a voicemail system. And he raised questions about the failure of the phonebank to be open on weekends. It has now been announced that IBM has been hired to man the phonebank, perhaps answering some of the questions Commissioner McDowell raised in his letter.
What a difference a few days makes. At the beginning of this week, it was full speed ahead for the February 17 termination of analog television. Then NTIA announced that it was out of money to pay for DTV coupons to assist the public in buying converter boxes so that analog TV sets will continue to work after the transition. This action, in turn, caused Consumers Union to ask Congress for a delay in the transition, resulting in Congressman Markey’s office suggesting that the DTV transition might need to be delayed (as we wrote yesterday). Today, the other shoe dropped as the Obama transition team formally wrote to Congress asking for a delay of the termination of analog television. That letter leaves everyone asking – will Congress respond? If so, what are the ramifications?
The NAB responded with a press release talking about how broadcasters are still prepared to meet the deadline, and how the deadline has focused all parties (TV stations, electronics manufacturers, cable and satellite companies) on doing what they need to do in order to be ready for the transition. But the Obama team’s call for the postponement does not seem to be focused on the readiness of program providers to accomplish the switch, but instead on the readiness of viewers to deal with the new digital environment, especially given the lack of coupons for last minute shoppers still waiting to buy their converter boxes. As we’ve written before, many in Washington are worried about the political ramifications of the transition – especially if millions of people wake up on February 18 and can’t watch the Today Show or Good Morning America. And while that is a legitimate concern, one wonders if it will ever be possible to prepare everyone for the transition deadline. Sure, if the deadline is postpone 4 or 5 months, there will be a marginal increase in people who are ready, but there will still be stragglers. Catching up to them all may never happen until they are hit with the reality of their analog sets not working on the day after the transition, whenever that day may be. If so, shouldn’t someone at least consider the costs that a delay will impose on broadcasters?
2009 – a new year, and a whole new cycle of regulatory requirements. We wrote last week about the potential for changes in regulations that may be forthcoming but, like death and taxes, there are certain regulatory dates each year that broadcasters need to note and certain deadlines that must be met. Those dates…