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After months of speculation, Chairman Wheeler today announced that he will step down from the FCC on Inauguration Day. Together with the Senate not confirming the renomination of Commissioner Rosenworcel (as the Senate is effectively on recess and not expected to return before the end of the term, her renomination will almost certainly not be approved in this session of Congress, meaning that she must step down when the Congress adjourns on January 3), that leaves three Commissioners on the FCC. Two are the current Republican commissioners – Pai and O’Rielly – and Democratic Commissioner Mignon Clyburn. What will that mean for broadcasters?

First, it is expected that one of the two Republicans will be named as Acting Chairman to set the agenda for the first few months of the Trump administration, until a permanent Chair is announced (and confirmed by the Senate, if that Chair is not one of the two current Republicans). These commissioners have been vocal in their dissents on several big issues for broadcasters – including the repeal of the UHF discount (about which we wrote earlier this week) and on other issues dealing with the ownership of television stations – including the decision to not repeal the newspaper-broadcast cross-ownership rules, and the decision to reinstate the FCC’s ban on Joint Sales Agreements in TV unless they are done between stations that can be co-owned. We already speculated about these issues being on the Republican agenda soon after the election. What other issues are likely to be considered?
Continue Reading And Then There Were Three – Chairman Wheeler to Step Down on Inauguration Day Leaving a Republican-Controlled FCC – What’s It Mean for Broadcasters?

While several parties went to Court to challenge the FCC’s decision ending the UHF discount, one broadcaster decided instead to ask for reconsideration. That petition for reconsideration has now been published in the Federal Register, giving interested parties until December 27 to comment, and other parties until January 6 to reply to any comments that are filed. This reconsideration petition may give a new Republican-led FCC its first opportunity to revisit the FCC’s multiple ownership rules which have been the subject of several petitions for reconsideration, as we suggested might happen in our review (here) of the impact on communications law of the election of Donald Trump as the new President.

The UHF discount counted only half the audience reached by UHF stations in assessing an owner’s compliance with the 39% national cap on audience. The FCC ended that discount in September (see our summary here), finding that in a digital world, UHF channels were no longer inferior to VHF ones. Given that most TV stations are operating on the UHF band after the digital conversion, the FCC determined that the discount was not justified in the current television marketplace. A number of TV groups argued with that determination, contending that, in today’s media market, there was no reason to impose what was in effect a tightening of the national ownership cap. The elimination of the discount capped acquisitions by several TV groups, and actually put a few over the 39% limit. In addition, broadcasters have argued that the discount was in effect when Congress adopted the 39% cap, so any change would need to be authorized by Congress. While other parties have filed an appeal with the US Court of Appeals, it is likely that the Court will defer to the FCC and allow it to reconsider the abolition of the UHF discount (which the two Republican Commissioners opposed when it was adopted).
Continue Reading Reconsideration of FCC Order on UHF Discount Published in the Federal Register – Starts Clock on Comments and Consideration of the Multiple Ownership Rules by a Republican-Led FCC

Last week, the FCC released its order eliminating the UHF discount. Under this discount, a TV broadcaster, in determining its compliance with the national ownership limit prohibiting any owner from having attributable interests in stations serving more than 39% of the nationwide television audience, would include in its count only one-half of the audience of any market served by a UHF station. This discount originated in the analog world, when UHF stations tended to have smaller audiences as their signals were harder to receive, and yet their operational costs were higher. Three years ago, the FCC proposed to eliminate the discount, as the technical inferiority of UHF stations no longer exists in the digital world (see our post here describing the FCC’s proposed action). This decision, reached in a 3 to 2 vote of the Commissioners, will put several broadcast groups over the national cap, while others will come close to it, limiting their ability to expand into new markets. Did the video distribution marketplace demand this action?

In fact, the Commission’s majority decision really did not examine in any detail the public interest factors justifying this action. Instead, the FCC focused almost totally on the fact that, in the digital world, UHF stations were no longer technically inferior. That was essentially stipulated by all parties, and the Commission viewed the decision as simply being one that was necessary to keep up with technology – as UHF stations were no longer inferior to VHF stations, there was no reason to give owners of these stations a discount in computing compliance with the national ownership limits. The Commission also pointed to the fact that, in the days before the digital transition, it had warned TV broadcasters that an end to the UHF discount was coming. But changes in the media marketplace in the 15 years since many of these statements were made, with the rise of multichannel video program providers and over-the-top television services like Netflix that were not even imagined 15 years ago, are given only a passing reference, as pointed out by the dissenting Republican commissioners.
Continue Reading Eliminating the UHF Discount and Limiting the National Ownership Reach of Television Groups Without Reviewing the Media Marketplace

While the trade press has been full of reports that the FCC has voted on an order addressing the issues raised in its Quadrennial Review of its multiple ownership rules, and that the decision largely left those rules unchanged (including the broad ban on the cross-ownership of daily newspapers and broadcast stations), no final decision on the review has yet been released. However, we did see on Friday that, in the FCC’s list of matters pending before the Commission for approval “on circulation” (i.e. to be voted on without being considered at an FCC open meeting) the ownership item was removed from the list of pending items, seemingly confirming that the decision has in fact been voted on and is thus no longer circulating for approval. If the press reports are to be believed, there has been no major change in the rules despite much last minute hope for some relaxation of the newspaper cross-interest rule. The rules are thus likely to be those indicated by the Chairman in his blog post in late June, which we summarized here. Even if the most significant rules (e.g. local ownership rules for radio and TV – the “duopoly” rules, and the newspaper-broadcast cross-ownership rules) remain unchanged, that does not mean that the broadcast community should ignore the upcoming decision, as there are bound to be other issues addressed in the order that may be of significance.

In connection with the newspaper cross-ownership rules, while the press reports indicate that the rules will remain in place, there are reports that there will be some sort of waiver allowed, seemingly where economics justify the combination. If this is akin to the “failing station” waiver used to justify the ownership of 2 TV stations in markets where such ownership would normally not be allowed, some have wondered, given the economic state of the newspaper industry, if such a waiver would ever be used as it will be a rare case where a last-minute broadcast combination will rescue a failing newspaper. But we will need to see what the details are of the waiver standard to be applied.
Continue Reading Preparing for the FCC’s Soon to be Released Decision on Changes to its Multiple Ownership Rules

It’s that time of the year when we need to dust off the crystal ball and make predictions about the legal issues that will impact the business of broadcasters in 2016.  While we try to look ahead to identify the issues that are on the agenda of the FCC and other government agencies, there are always surprises as the regulators come up with issues that we did not anticipate. With this being an election year, issues may arise as regulators look to make a political point, or as Commissioners look to establish a legacy before the end of their terms in office.  And you can count on there being issues that arise that were unanticipated at the beginning of the year.

But, we’ll nevertheless give it a try – trying to guess the issues that we will likely be covering this year.  We’ll start today with issues likely to be considered by the FCC, and we’ll write later about issues that may arise on Capitol Hill and elsewhere in the maze of government agencies and courts who deal with broadcast issues.  In addition, watch these pages for our calendar of regulatory deadlines for broadcasters in the next few days.

So here are some issues that are on the table at the FCC.  While the TV incentive auction may well suck up much of the attention, especially in the first half of the year, there are many other issues to consider.  We’ll start below with issues affecting all stations, and then move on to TV and radio issues in separate sections below. …
Continue Reading What Washington Has in Store for Broadcasters in 2016 – Looking at the Legal Issues that the FCC Will Be Considering in the New Year

Each year, at about this time, we pull out the crystal ball and make predictions of the issues affecting broadcasters that will likely bubble up to the top of the FCC’s agenda in the coming year.  While we try each year to throw in a mention of the issues that come to our mind, there are always surprises, and new issues that we did not anticipate. Sometimes policy decisions will come from individual cases, and sometimes they will be driven by a particular FCC Commissioner who finds a specific issue that is of specific interest to him or her.  But here is our try at listing at least some of the issues that broadcasters should expect from Washington in the coming year.  With so many issues on the table, we’ll divide the issues into two parts – talking about FCC issues today, and issues from Capitol Hill and elsewhere in the maze of government agencies and courts who deal with broadcast issues.  In addition, watch these pages for our calendar of regulatory deadlines for broadcasters in the next few days.

So here are some issues that are on the table at the FCC – starting first with issues affecting all stations, then on to TV and radio issues in separate sections below. 

General Broadcast Issues

There are numerous issues before the FCC that affect both radio and television broadcasters, some of which have been pending for many years and are ripe for resolution, while others are raised in proceedings that are just beginning. These include:

Multiple Ownership Rules Review: In April, the FCC finally addressed its long outstanding Quadrennial Review of the broadcast multiple ownership rules – essentially by punting most of them into the next Quadrennial Review, which probably won’t be resolved until 2016.  Issues deferred include any revisions to the local ownership limits for radio or TV (such as loosening the ownership caps for TV stations in smaller markets, which the FCC tentatively suggested that they would not do), any revision to the newspaper-broadcast cross-ownership rule (which the FCC tentatively suggested that they would consider – perhaps so that this rule can be changed before the newspaper becomes extinct), and questions about the attribution of TV Shared Services Agreements (which the FCC is already scrutinizing under an Interim Policy adopted by the Media Bureau).
Continue Reading What Washington Has in Store for Broadcasters in 2015 – Part 1, What’s Up at the FCC

Last week brought a number of Washington developments that we’ll write about in more detail soon, including the FCC’s decision to relax the limitations on foreign ownership of broadcast stations.  But there were also a number of other actions that bear mention – including the decision released late Friday to extend the deadline for the filing of Biennial Ownership reports that are to be filed by all commercial broadcasters – including AM, FM, TV. LPTV and Class A TV station owners.  These more complicated versions of FCC Form 323 are filed every other year to assess diversity in the ownership of broadcast stations.  These reports were originally to be filed on November 1, but the filing date was extended to December 2 earlier this year (see our article here), due to the recognized complexity of the completion and electronic filing of these forms.  Now, after the FCC shutdown deprived broadcasters of several weeks’ preparation time in which the electronic forms were available for use, the deadline has been extended to December 20.  The FCC Public Notice warns filers to try to submit their reports before the deadline to avoid potential slowdowns in the electronic system due to an expected heavy volume of users as the deadline approaches.

In fact, the effect that heavy demands on FCC’s electronic filing system was made evident by the FCC’s last-minute decision to extend by one day the last day for filing LPFM applications.  That extended deadline passed on Friday, after being extended from the originally announced extended deadline (due to the government shutdown) of Thursday, because glitches in the FCC’s electronic filing system delayed last-minute filings before that Thursday deadline.  There has not yet been any announcement of the number of LPFM applications filed in the window, but many think that the number will rival if not exceed the thousands of applications filed in the 2003 FM translator window – applications that the FCC is still processing over 10 years after their filing.
Continue Reading Odds and Ends: Extension of Biennial Ownership Report Deadline, $110,000 Penalty for Indecency, Deadline for UHF Discount Comments, and Closing of the LPFM Window

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?

On September 26, the FCC will hold its next open meeting and, according to a Public Notice released Friday, will consider several issues important to different parts of the broadcast industry. For television broadcasters, there will be concerns about the proposal to do away with the “UHF discount,” which gives UHF stations a 50% discount in determining the number of households they reach when determining an owner’s compliance with the limitation that prevents any one company from owning television stations that reach more than 39% of the US television households. For radio, the FCC will be getting a report on the preparations for the upcoming LPFM window, allowing applications nationwide for new LPFM stations. That window, as we have written before, is to open from October 15-29. Finally, the FCC will be looking at modifications to its Antenna Structure Registration process – which could be important to all tower owners.

As the UHF discount issue is to be considered by the adoption of a Notice of Proposed Rulemaking, it is no doubt the more controversial of the broadcast issues to be discussed at the meeting. The discount was adopted by the FCC in analog days, when UHF broadcasters faced significant disadvantages. Analog UHF signals (TV channels 14 and above) simply did not travel as far as VHF signals, were less likely to penetrate buildings (especially as many over-the-air antennas were designed for VHF reception), and were far more costly than VHF operations (as VHF transmitters operated at far lower power levels than do transmitters for UHF operations). But, in the digital world, broadcasters found that the world had been turned on its end – with UHF signals being far preferable, as the VHF digital signal was found to be far more susceptible to interference, especially in urban areas. In the less forgiving digital environment (where a signal is either there or not, instead of the degraded "snowy" picture that you could get in the analog world), the UHF signal is generally preferred – despite the higher power costs and the fact that the signals still don’t travel as far.…

Continue Reading FCC Meeting to Consider UHF Discount on National TV Multiple Ownership Rules, LPFM Window, and Tower Registration Issues

September is one of the few months without a due date for the standard regulatory filings – no renewals, EEO public file reports, and no Quarterly Issues Programs Lists or Children’s Television Reports. Instead, the big filing this month is one that applies to all commercial broadcasters (and most entities regulated by the FCC in other services as well) – the annual regulatory fees due on September 20. We wrote about the deadline here (with links to the FCC webpage on which you can look up your fees), and the amounts of the fees by category of broadcaster, here. But just because there are no other regular filings due at the FCC does not mean that those in charge of regulatory compliance at your stations can take the month off once they have paid the fees.

No, there are plenty of other deadlines to which broadcasters should pay attention. Those who filed license renewal applications for radio stations in California and for TV stations in Illinois and Wisconsin should be running their post-filing license renewal announcements on the 1st and the 16th of the month. The next round of license renewals will be filed on October 1, and stations in the states where those renewals are due should be running the third and fourth of their pre-filing renewal announcements on the 1st and 16th. That would be TV stations in Iowa and Missouri, and radio stations in Alaska, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, and Saipan.…

Continue Reading September Regulatory Deadlines for Broadcasters – “Reg” Fees and Renewal Notices, With More Action to Come In October