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At last Tuesday’s FCC meeting, the Commission adopted a controversial order, over the objection of two Commissioners, that could limit the processing of some applications for improvements by some full power FM stations, and would restrict translator applications, all in the name of encouraging Low Power FM (LPFM) stations to provide outlets for expression by groups that cannot get access to full-power radio stations (see our summary of that action here).  In recent weeks, two ideas have received some publicity providing an alternative outlet for these prospective local broadcasters – and both provide a simple solution (one more immediate and ad hoc than that other), but both leading to the same result – why not just extend the FM band by using TV channel 6?

The current FM band begins at 88.1 MHz, a channel that is actually immediately adjacent to TV Channel 6.  The FCC has for years restricted operations of noncommercial FM stations (which operate from 88.1 to 91.9 on the FM dial) in areas where there are Channel 6 TV stations in order to prevent the radio stations from creating interference to the reception of the TV stations.  That’s while you will often find fewer noncommercial stations, or ones with weaker coverage, in communities that have TV Channel 6 licensees.  TV stations use an FM transmission system for their audio.  Thus, you will also find that most FM receivers (especially ones without digital tuners) will pick up the audio from TV channel 6 if tuned all the way to the left of the dial.  The short-term solution to expanding the FM band came from one broadcaster who noted that fact.Continue Reading Who Needs LPFM? – Why Not Just Expand the FM Dial?

The New York Times recently published an article about NBC’s owned and operated station in New York City acceptance of advertising for liquor.  While ads for beer and wine have been a staple on broadcast stations (though see our discussion of the limits on that advertising, here), ads for other alcoholic beverages ads have been less frequent.  Many broadcasters have for years believed that such ads were prohibited by the FCC or some other government agency.  In fact, alcohol ads have not been prohibited by law, but instead by voluntary actions of trade associations representing broadcasters and the alcoholic beverage industry .

Until the early 1980s, the National Association of Broadcasters had a voluntary code of conduct for broadcasters, suggesting good standards and practices for broadcasters: limiting some broadcast content while encouraging broadcasters to air other programming perceived to be in the public interest.  Among the conduct that the Code prohibited was the advertising of hard liquor. While the NAB Code was not mandatory for broadcasters, in filing many routine applications for new stations and for the acquisition of existing stations, the FCC in the past had requirements that the potential broadcasters explain how their programming would serve the public interest.  Most applicants would shorthand their compliance plans by simply promising to abide by the NAB code, in effect binding themselves to the code through those representations made to the FCC.  The Code was in place until the early 1980s, when the Department of Justice became concerned that code provisions suggesting maximum commercial loads and similar matters functioned as a restraint of trade in violation of the antitrust laws, and the NAB Code was abandoned.Continue Reading Will You Drink to That? – Advertising Liquor on Broadcast Stations

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

Yesterday’s unique Public Notice outlining Chairman Martin’s proposals for reform of the multiple ownership rules (which we summarized here) is a surprisingly restrained and limited approach to relaxation of the ownership rules – proposing to relax only the newspaper-broadcast cross-ownership prohibitions, and only in the Top 20 TV markets.  Moreover, the reform would only allow the combination of a daily newspaper and a single radio or TV station, and the newspaper-TV combination would only be allowed if the TV station is not one of the Top 4 ranked stations in the market.  While the extremely limited nature of the proposed relief has not stopped critics of big media from immediately condemning the proposal (see the joint statement of Commissioners Copps and Adelstein, here), much less attention has been paid to those multiple ownership issues that the Chairman’s proposal does not seem to address – including TV duopoly relief in small markets and clarifications to the radio ownership rules requested by a number of broadcasters who sought reconsideration of the changes that arose from the 2003 ownership reforms. 

The Chairman’s Public Notice is itself a new approach to regulation – putting out for public comment (due by December 11) an action of the Commission just before that action is to be taken.  Usually, the Commission proposes a set of rule changes in a Notice of Proposed Rulemaking, and the Notice provides time for interested parties to comment and then reply to each other’s comments.  Once all the written comments are submitted to the Commission, parties and their representative often make informal visits to the FCC to argue about the suggestions that have been made, and eventually, after much consideration, the Commission’s staff writes up a decision which is vetted by the Commissioners and their staff, and voted on by the full FCC.  Usually, these final decisions are shrouded in secrecy – though outlines of the proposals are often the subject of informed gossip and rumor, rarely does anyone see the full set of rules that the Commission is considering until after the decision is made. 

Continue Reading What Chairman Martin’s Multiple Ownership Proposals Omit – No Relief for Radio and TV

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

Two weeks ago, we wrote about the FCC’s proposal for the auction of the 700 MHz band – the portions of the spectrum that will be reclaimed from television operators after the digital transition.  These channels will be used to provide some form of wireless broadband service. The Commission made its decision on the use of this spectrum last week, reserving at least some of the spectrum for “open access” uses – where the provider will not be able to restrict the devices that can access the network, nor limit or block services that run on the network, as long as the devices and services do not cause damage to the network.  In theory, this will encourage the creation of numerous new devices and services to capitalize on the open wireless network being provided.  While the Commission has not released the full test of this decision yet, a memo from our firm, describing some of the decisions announced at the FCC open meeting and in the subsequent public notice, can be found here.

Whether the provisions that the Commission adopted will be sufficient to entice some of the Internet “content” companies, like Google, to bid, remains to be seen. But this “beachfront spectrum” will no doubt introduce some exciting new uses as it begins to come into operation in the next few years – providing more people more wireless access to mobile content – and more competition to those traditional wireless industries that many consumers have forgotten are both wireless and mobile – those provided by traditional broadcasters.  Continue Reading 700 MHz Reclaimed TV Spectrum Auction Rules Adopted – A Preview

The FCC today announced another round of EEO audits of broadcast stations throughout the country.  The FCC’s Public Notice of the audits, and the list of the stations that are affected, can be found here.  Broadcasters should review this list carefully, both by call letter and licensee name, as we have noted situations where the…

On Thursday, the FCC issued its Report on violent programming on television, finding that such programming has a negative impact on the well being of children, and suggesting that Congressional action to restrict and regulate such programming would be appropriate.  A summary of the findings of the Commission can be found in our firm’s bulletin on the Report, here.  As we point out in our bulletin, the Commission did not adopt this report with a united voice, as both Commissioner Adelstein and McDowell expressed concerns about the thoroughness of the report, the practicality and constitutionality of drawing lines between permitted and prohibited violence in programming, and even whether the government is the proper forum for restricting access to such programming or whether this isn’t fundamentally an issue of family and parental control. 

The Report suggests that legislative action to restrict violent programming  or to channel it to certain time periods might be appropriate as parents are often not home when children watch television, and technological controls, like the V-Chip, are ineffective as parents don’t know that they exist or, if they are aware of the existence of the controls, they don’t know how to activate them.  The Commission also suggests that the ratings given to programs are not always accurate.  An interesting alternate take can be found in an article in Slate, here, citing a study not mentioned by the FCC finding that parents, even when carefully educated about the V-Chip and its uses, do not use it.  This seems to indicate that parents are not as concerned about the issue as is the FCC, and suggests that the real motivation is not restricting what is presented to children, but instead what is available to adults.

Continue Reading Violence on Television – FCC Issues Report Suggesting That Congressional Action Is Appropriate