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Indian E-music – The right mix of Indian Vibes… » Television

What is a Cable System – The Copyright Office Wants to Know

Delivered... David Oxenford | Scene | Thu 14 Dec 2017 6:25 pm

Early this month, the Copyright Office released a Notice of Proposed Rulemaking dealing with two separate but related issues. First, it asks for comments on certain changes in the reporting that cable systems and satellite TV operators provide to the Copyright Office on the programming that they carry – information that is used to provide baseline information for the Copyright Royalty Board to use in its determinations on how the royalties paid by cable systems for the carriage of television stations are distributed to the programmers and content owners that provide programming to the stations.   While certainly the reporting of information used to distribute the royalties paid by cable and satellite for their compulsory license to carry the programming broadcast by TV stations is important, perhaps the more interesting portion of the Notice was the questions that it asked about the definition of a cable system – proposing to adopt the definition of cable systems that exclude Internet-based systems that has been reflected in recent court cases.

We have written about the issue of whether online platforms qualify for the compulsory license to carry television stations many times (see for instance our article here when the issue was first raised by Aereo), when services such as Aereo and FilmOn argued that they could carry television stations on their online platforms without specific consent from the stations as they qualified as cable systems.  These arguments have been consistently rejected by the Courts (see, for instance, our articles here and here) , most recently in the Spring when the 9th Circuit Court of Appeals overturned the one District Court decision that had found that the argument advanced by FilmOn had merit (see our summary of the Ninth Circuit decision here).  The Copyright Office proposes to adopt that definition.

The discussion of the adoption of that definition is rather limited, essentially pointing to the statutory definitions of a cable system that use phrase such as service to “contiguous communities”, “headends”, and other location-specific terminology. In addition, the Notice recaps precedent, both from prior Copyright Office pronouncements on the issue, from the fact that satellite television was not covered by the Section 111 compulsory license that applies to cable (and was given its own compulsory license in other sections of the Copyright Act), and the recent Court decisions that found that Internet services were not within the definition of a “cable system.”

The Notice also proposes to eliminate residual use of the phrase “Grade B contour,” which had previously been used to determine whether cable systems were carrying local television stations or “distant signals” for which they had to pay a higher royalty.  Given the transition to digital, that nomenclature is no longer relevant, as the corresponding digital service is now the “noise limited contour.”  Comments on numerous other proposed changes in the reports filed by cable systems are also proposed.  These comments are due on January 16, with reply comments due by January 30 (see the Notice here establishing the Reply Comment date and allowing for meetings with the Copyright Office staff by interested parties both before and after the comments are filed, as long as “ex parte” statements summarizing the substance of the meetings are filed in the record of the proceeding).

A Deeper Dive on The FCC’s Ownership Order

Delivered... David Oxenford | Scene | Wed 13 Dec 2017 5:57 pm

With the FCC about to propose changes in its national ownership cap for television at its meeting tomorrow (see our article here), we thought that we would take a look back to the week before Thanksgiving, when the FCC made some important decisions for the broadcast industry – including the approval of the Next Generation TV transmission standard and the change in numerous broadcast ownership rules.  We promised to take a deeper look at these decisions when the texts of the orders were released, and here is a look at some of the interesting items in the ownership decision.  We will only lightly touch on radio issues here, concentrating primarily on TV matters, as the FCC made few changes that directly affected radio, pushing most to the next Quadrennial Review of the ownership rules, likely to begin next year.  We’ll post some thoughts on radio issues at some point in the future.

Certainly, there was plenty of legal discussion about the standards for reconsidering an FCC decision (this reconsideration being a review of the FCC’s ownership order adopted under the last administration in August 2016).  While the FCC ultimately concluded that it could review the 2016 decision where it believed that there were substantial errors in the Commission’s initial decision, the legal wrangling over the process for the review is perhaps less interesting to most in the broadcast industry than is some of the other discussion contained in the order and what that may portend for further ownership review by this administration.  So let’s look at the FCC’s discussion of the various issues that it faced in the reconsideration order.

Newspaper broadcast cross-ownership – While perhaps the most extensive discussion in the document centered around the abolition of the newspaper broadcast cross-ownership rules, the discussion was pretty straightforward, perhaps as so many people recognize the current state of the newspaper industry and how injurious new technology has been to its business. Even the August 2016 decision recognized that fact, though it allowed new combinations of broadcast stations and daily newspapers serving the same area only when it could be shown that the newspaper had failed or was failing.  Now, the Commission’s majority stated that there was no reason to wait for the newspaper to be on its last legs before consolidation would be allowed.  It looked at the benefits from more consolidation (better local news coverage and other economies that could be realized from consolidation), determined that the state of the industry and the abundance of new media that was reaching the public allowed for the abolition of the prohibition against newspapers and broadcast stations combining in the same market without any recognizable harm to the public, and perhaps allowing for many public interest benefits from greater resources to cover local news and events.

I had often suggested that the newspaper broadcast cross-ownership rule might outlast the newspaper (see for instance, the article here), but the Commission’s decision proved me wrong.  The Commission’s willingness to step in and deregulate ownership before old media is totally decimated by its new media competitors may indicate that the Commission would be willing to take these same steps in other areas where the competitive trends are evident.  For instance, radio ownership rules were essentially untouched by the Commission’s actions (as mentioned above), so we could see this logic applied to radio in the Quadrennial Review of the ownership rules that will begin next year.

Radio-TV cross-ownership – The FCC also abolished the rule that had limited combinations of radio and television stations in the same market.  The rule had been relaxed in prior years so, as the Commission noted, the question was not a question of whether to eliminate a prohibition on the combination of radio and TV stations as in most markets some degree of cross-ownership was already permitted.  Instead, the real question was one of how many stations one company could own in a market.  The Commission decided that there was no reason to limit a company from owning up to the maximum allowed for both radio and TV in same market.

Here again there was an interesting analysis of competition in the broadcast marketplace.  After concluding that local cable and Internet sources provide much new competition in the marketplace, the Commission noted that radio was contributing less to viewpoint diversity in most markets, as these outlets have less of a role in providing news and information than in the past.  The Commission found that the public increasingly looks to other sources for local news coverage, and that the increase in new sources of information about local events more than makes up for any loss of diversity that will occur by allowing more combinations of radio and TV stations.

Local TV ownership – On local television ownership, the Commission decided to abolish the rule that permitted combinations of television stations (without a waiver) only in markets where there were 8 independently owned and programmed stations in the market after the combination.  The Commission’s determination that there needed to be eight independent voices in a market, the four networks and four other stations, had been questioned by the Courts in the past, and the Commission said they could find no record evidence that there was anything magic about that number.  In fact, the Commission noted that, especially in smaller markets, combinations of stations were in many case necessary for stations to be able to offer any local news and information programming at all.

But, the Commission determined that the local, over-the-air television market was still a unique market in providing local news and information, where competition produced better results.   Thus, they were not willing to abolish all local ownership limits.  The Commission decided to retain its rule prohibiting the combination of any two of the Top 4 stations in a market for the current time, to develop a better long-term record as to whether further changes to the local ownership rules were appropriate.  The prohibition would, however, be subject to waivers on a case-by-case review. In deciding if a particular combination of stations in a market should be permitted, the Commission would look at factors including the following:

  • Ratings data – the Commission would be concerned if any combination would result in one party having a significant ratings advantage over the other stations in the market
  • Revenue share (including from both advertising and other sources, including retransmission consent fees) – presumably to assess if one party would end up with an unduly large segment of the revenue in the market
  • Market characteristics, including the number of other television station competitors – if there were strong competitors outside of the Top 4 stations, a waiver to allow some combination might be in order. One could see this factor becoming important where a Spanish or other specialized station had a significant audience share in a market
  • The effect that any combination would have on programs meeting needs of local residents – perhaps if more local programming was created, that might argue in favor of a combination
  • Any special circumstances that might exist in a given market (perhaps a combination might be allowed where a competitor had significant newspaper and/or radio holdings in a market)

The Commission promised to further review this rule in the future, including in the next Quadrennial Review, looking at factors including whether the incentive auction had any significant impact on diversity in local television markets.

TV Joint Sales Agreements – The decision overturned prior decisions to make Joint Sales Agreements attributable, finding that there was insufficient proof that these agreements harmed the public interest, and in fact there was significant record evidence to show that many JSAs contributed to more programming choices in the marketplace. The Commission contrasted JSAs in television to those in radio, where they are prohibited if they do not comply with ownership limits, because TV JSAs are not based on fixed fees for the right to sell time on a station, but instead, by a percentage of sales revenue, giving the licensee more incentive to insure the success of their own stations.  The Commission also suggested that the television ownership limits were more restrictive than those in radio, so that any further concentration allowed by these JSAs would help TV licensees obtain the necessary scale to compete in the media marketplace.  Also, the Commission noted that, in television much of the ad time is sold nationally or provided as part of the network’s programming, so not as much advertising will be controlled by local sales representatives, unlike in radio where a greater portion of the ad time is sold on a local basis.

Many of the arguments against JSAs seemed to be premised on the potential for abuse – either because licensees of stations whose time was being sold by another stations would not be controlling their own programming or because their retransmission consent negotiations would be controlled by the sales agent.  The Commission dismissed both as reasons for making JSAs attributable interests – warning broadcasters whose stations are subject to a JSA to make sure that they control their own programming and retransmission consent negotiations.

Shared Services Agreements – the Commission decided to retain the requirement that parties file their shared services agreement with the FCC for review, so that the Commission would better understand what these agreements provide.  However, the Commission clarified that these agreements would not require the filing of “ad-hoc” agreements like news sharing of a particular event, or clearly non-broadcast issues like the sharing of the costs of the upkeep of a building or of janitorial services.  But agreements dealing with broadcast operations must be submitted, and will be reviewed by the FCC.  The decision stated that the filing was not for purposes of regulation, but instead for purposes of understanding the marketplace.


The Commission also agreed to adopt an incubator program to encourage minority ownership, but issued a Notice of Proposed Rulemaking as to what that program would entail.  We will write about that program when the comment dates on this NPRM are set.

We will also write on radio issues in the near future as, other than allowing for some waivers in embedded markets, all other radio ownership issues were deferred to the next Quadrennial Review.  All in all this was a very interesting order that could have profound implications for the media marketplace in many markets.

Elimination of the Main Studio Rule Scheduled to Be Effective in Early January

Delivered... David Oxenford | Scene | Thu 7 Dec 2017 5:25 pm

The FCC’s decision to abolish the main studio rule, about which we wrote here and here, is to be effective 30 days after the publication of the decision in the Federal Register. That publication is tentatively scheduled, according to the Federal Register documents here, for tomorrow. That would make the rule change effective on January 7, 2018, although we understand that the FCC may consider it to be effective on January 8th, as the 7th is a Sunday. Obviously, things can change and the publication can be delayed, but if all goes as scheduled as it routinely does, those stations looking to eliminate their main studio can do so on or after January 8.

Note that there has been some concern that the Federal government could close if no funding extension is in place by tomorrow, and the closing of the Federal government would mean that the Federal Register would not be published. But funding is in place through tomorrow, so tomorrow’s publication should not be interrupted by any shutdown.

Thus, broadcasters who are ready to take advantage of this rule change can prepare to do so early in the new year. Remember, the abolition of the rule does not eliminate your obligation to serve your local community. It also does not change EAS requirements. And, unless your public file is totally online, you may still need to maintain a public file in the city of license accessible during normal business hours until the file is totally online. Also, note that appeals of this decision are possible but such appeals would not stop the effective date unless a court was to issue a stay of that date – a rare occurrence (see our articles on stay standards here and here). But, assuming all goes into effect as planned, the elimination will provide flexibility to many broadcasters, and it looks like that flexibility will come very soon.

December Regulatory Dates for Broadcasters – EEO, TV and Translator Filing Windows, Ancillary Revenue Reports, Main Studio Rule Effective Date, Copyright Office Take-Down Notice Registration and More

Delivered... David Oxenford | Scene | Wed 29 Nov 2017 3:46 pm

While the end of the year is just about upon us, that does not mean that broadcasters can ignore the regulatory world and celebrate the holidays all through December. In fact, this will be a busy regulatory month, as witnessed by the list of issues that we wrote about yesterday to be considered at the FCC meeting on December 14. But, in addition to those issues, there are plenty of other deadlines to keep any broadcaster busy.

December 1 is the due date for all sorts of EEO obligations. By that date, Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont that are part of an Employment Unit with 5 or more full-time employees need to place their Annual EEO Public File Reports into the public file (their online public file for TV stations and large-market radio and for those other radio stations that have already converted to the online public file). In addition, EEO Mid-Term Reports on FCC Form 397 are due to be filed at the FCC on December 1 by Radio Station Employment Units with 11 or more full-time employees in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont; and Television Employment Units with five or more full-time employees in Colorado, Minnesota, Montana, North Dakota, and South Dakota.  We wrote more about the Mid-Term EEO Report here.

Biennial Ownership Reports were at one time scheduled to be filed on December 1 but, as we wrote here, that deadline has now been pushed back until March 2. The new FCC Forms for filing those reports will be available for use on December 1, so stations wanting to get this obligation out of the way can go ahead and file this month.

Both radio and TV stations interested in facilities improvements also have filing deadlines this month. The FCC has temporarily lifted the freeze on TV stations that were not repacked in the incentive auction, allowing them to file minor change applications to improve their facilities. See our article here. The opportunity for these stations to file for improvements in their facilities opened yesterday, and will remain open through December 7. TV stations contemplating improvements in their facilities should take this opportunity to file, as the freeze will be reimposed after the window ends, while TV translators and LPTV stations that were displaced by the incentive auction have their opportunity to file for displacement channels  (see our article here on that displacement window) .

For radio, those AM stations that filed for new FM translators this summer and have been declared to be “singletons,” can file long-form applications specifying the exact facilities that they plan to construct. Those long-form applications can be filed in a window from December 1 through December 21. See our article here. As the FCC’s Audio Division is usually very quick to process translator applications, it is even possible that those who file early in the window will get construction permits granted by the end of the year.

December 1 is also traditionally the deadline for TV stations to file with the FCC their reports on Ancillary and Supplementary Revenues – those nonbroadcast revenues that they received in the past year, on which they must pay a 5% payment to the FCC. As we wrote here, the FCC is considering making these reports mandatory only for the few TV stations that actually have such revenue. Thus, while the FCC considers the rule change, they have suspended the filing requirement for all stations that have no such revenue (see our article here).

Broadcasters are also expecting to see the Order abolishing the main studio rule published in the Federal Register almost any day now. See our articles here and here on the abolition of the main studio rule. If the FCC decision is published this week, as the rule goes into effect 30 days after publication, there is still a chance that some broadcasters can implement the change this year, and not have to renew leases for studio space in January.

We have also reminded media companies that allow third-parties to post material on their websites that the Copyright Office has adopted a new electronic system for registering the names of designated agents who can be served with take-down notices from copyright owners demanding that content that infringes on intellectual property rights be removed from the website. For that registration to be valid, helping to insulate the website owner from liability under the “safe harbor” of Section 512 of the Copyright Act for copyright infringement contained in third-party content, registration of the agent for take-down notices must be completed by December 31. For more information, see our articles here and here.

These are but some of the important regulatory dates facing broadcasters and other media companies this month. As always, consult with your own attorney about the details of these items, and to make sure that there are not other dates that may apply to your stations that we have not highlighted in this list.  So enjoy the holiday season, but stay vigilant about your regulatory obligations and opportunities.

December FCC Meeting to be an Important One for Broadcasters and Other Media Companies

Delivered... David Oxenford | Scene | Tue 28 Nov 2017 5:26 pm

Last week, just before Thanksgiving, the FCC released the tentative agenda for its December meeting. From that agenda, it appears that the meeting will be an important one for broadcasters and other media companies. Already, the press has spent incredible amounts of time focusing on one item, referred to as “Restoring Internet Freedom” by the FCC, and “net neutrality” by many other observers. The FCC’s draft of the Order that they will be considering at their December meeting is available here.

The one pure broadcast item on the agenda is the Notice of Proposed Rulemaking, looking to determine if the FCC should amend the cap limiting one TV station owner to stations reaching no more than 39% of the national audience. The FCC asks a series of questions in its draft notice of proposed rulemaking, available here, including whether it has the power to change the cap, or if the power is exclusively that of Congress. The FCC promised to initiate this proceeding when it reinstated the UHF discount (see our articles here and here). In that proceeding, the FCC determined that the UHF discount should not have been abolished without a thorough examination of the national ownership cap – an examination that will be undertaken in this new proceeding if the NPRM is adopted at the December meeting.

Also on the agenda is a proposal in the FCC’s proceeding for the Modernization of Media Regulation, looking at whether the FCC should change some of the requirements on cable operators and other MVPDs for giving written notice to customers about changes in their operations. The FCC is examining whether other forms of notice, including electronic notice, might be a better option. The draft of the FCC’s proposal is here. As some of the required notices include notices of changes in TV stations carriage, broadcasters should take note of this proceeding.

The FCC is also looking to adopt a new event code for its EAS system – a Blue Alert to notify the public of an imminent threat to law enforcement personnel. This, of course, would affect broadcasters and their EAS obligations. The draft order is available here.

Finally, the FCC is looking at the process that wireless companies need to go through to locate antennas on “twilight towers,” those towers built during the period from 2001 to 2006 when the FCC had not adopted the full environmental and historical review process that proponents of new towers now need to go through. As broadcasters may own some of these towers, this item may be of interest to some. The draft of the FCC’s proposal to be considered at the December meeting is here.

All of these matters will be considered at the FCC’s December meeting, to be held on December 14. FCC Chairman Pai wrote a blog article here describing some of these matters to be considered at the meeting. Follow the action closely as the meeting is certain to be a lively one, and one deciding issues that are very important to many media companies.


Full Texts of Last Week’s FCC Decisions on Ownership and Next Generation Television Now Available

Delivered... David Oxenford | Scene | Tue 21 Nov 2017 4:59 pm

The FCC late yesterday released full texts of the decisions adopted last week to revise the broadcast ownership rules and approve the next generation television standard (ATSC 3.0). We summarized last week’s decisions, based on the press releases released after the meetings, in our article here. The full text of the ownership decision, available here, granted reconsideration of last year’s decision on the 2014 Quadrennial Review of the FCC’s rules setting out the local ownership restrictions on media companies. The full decision sets out the Commission’s reasoning for, among other things, revisiting last year’s decision by deciding to abolish the newspaper-broadcast cross-ownership rules and the radio-TV cross-ownership rules, and by loosening the restrictions on the markets where television stations can be co-owned. We can expect court challenges to this decision, and the matter may end up back before the Third Circuit Court of Appeals.

The Order approving the use of ATSC 3.0 as the next generation television transmission standard, available here, details the process for stations to voluntarily convert to the new standard while requiring that, through a form of channel sharing, they provide their primary video programming stream in the current transmission standard (ATSC 1.0) on another station in their market so that they can continue to provide service to their viewers who have not yet converted their televisions to make them capable of receiving transmissions in the new 3.0 standard.

Over the long holiday weekend, while digesting our Thanksgiving dinner, we will try to digest these orders as well to provide a more complete summary next week.

Current Version of FCC Form 323 Ownership Report to Be Retired November 27 In Anticipation of New Report for Broadcaster’s Biennial Ownership Filings

Delivered... David Oxenford | Scene | Mon 20 Nov 2017 6:07 pm

The FCC on Thursday issued a Public Notice announcing that, at the end of the day on November 27, 2017, the current versions of FCC Forms 323 and 323E will be retired. These forms will be replaced in the near future by a new version of the ownership report in the FCC’s LMS database. If you are currently working on an ownership report following the completion of a purchase of a station or other event triggering the need for such a report, you must file it on the old form by 11:59 Eastern Time on November 27, or wait until the new form is available (if that will allow you to comply with the filing deadline for your report).

As we wrote here and as highlighted in the Public Notice released on Thursday, the FCC will be conducting a workshop on November 28, available online, to review the new form. For live attendees, registration is requested by November 22. No pre-registration is required for online viewing. The new form will be available on December 1 to be used for all broadcast licensees, commercial and noncommercial, to prepare an ownership report for the Biennial Ownership Report filing deadline of March 2 (extended from December 1, see our article here).

Doctor Who theme’s co-creator honoured with posthumous PhD

Delivered... Helen Pidd North of England editor | Scene | Mon 20 Nov 2017 3:04 pm

Career of Delia Derbyshire, an under-appreciated electronic music pioneer, recognised by hometown university

The under-appreciated electronic music pioneer behind the Doctor Who theme is to be honoured posthumously with a doctorate from her hometown university as the programme gears up for the debut of its first female lead.

Largely ignored in life and barred from working in studios because she was a woman, Delia Derbyshire, will be awarded an honorary PhD from Coventry University on Monday.

Related: Delia Derbyshire and the BBC's Radiophonic Workshop: From the archive, 3 September 1970

Related: Obituary: Delia Derbyshire

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FCC Approves Ownership Rule Changes and Next-Gen TV ATSC 3.0 Standard

Delivered... David Oxenford | Scene | Fri 17 Nov 2017 6:06 pm

At its meeting yesterday, as expected, the FCC approved significant changes to its broadcast ownership rules and also approved the roll out of ATSC 3.0 – the next generation television transmission standard. While any change in ownership rules is always a contentious issue, and thus the 3-2 strict party-line vote approving the ownership changes might not have been surprising, the television technology change adopted yesterday proved to be controversial as well, also being approved by a 3-2 vote.

As of the writing of this article on Friday morning, the final texts of these decisions have not been released, so the details of these actions are not available. We will write further about the decisions next week when we have had a chance to digest the final orders. But summaries of both decisions, and the texts of the Commissioner’s statements on the issues, were released late yesterday.

On ownership, the summary of the FCC decision says that the FCC made several changes to its rules, reconsidering the FCC ownership decision made in August of 2016 when Chairman Wheeler left most of the existing ownership rules in place. The changes adopted include:

  • Eliminating the newspaper-broadcast cross-ownership rule
  • Eliminating the radio-television cross-ownership rule
  • Allowing the combination of two TV stations in a market even if there are not 8 independent owners and operators of full-power TV stations in the market after the combination
  • Permitting case-by-case consideration of combinations of two of the Top 4 TV stations in a market. Any such combination is prohibited under current FCC rules
  • Giving a presumptive waiver to owners of radio stations in “embedded markets” allowing them to acquire stations in other embedded markets in the same metropolitan area without evaluating the ownership combination in the parent market (for more details about this issue, see our article here).
  • Eliminating the attribution for ownership purposes of TV Joint Sales Agreements (meaning that JSAs between 2 TV stations will be allowed even if the party selling advertising time on another TV station could not own that station under the local TV ownership rules)
  • Providing for the filing with the FCC of Shared Services Agreements – agreements between TV stations that provide for some sort of joint operations less than a JSA or Time Brokerage Agreement.

The initial draft of the FCC Order (see our article here) said that these rule changes would be effective 30 days after they are published in the Federal Register. We will see if that timing is also adopted in the final order. It also must be noted that many of these changes may well be subject to appeal – perhaps back to the US Court of Appeals for the Third Circuit which has questioned FCC decision making on these issues in the past (see, for instance, our articles here and here). And, while this may mark the end of the 2014 Quadrennial Review of the FCC’s Ownership Rules, the Chairman noted that the 2018 review of the rules will begin soon, perhaps bringing more review of the radio ownership rules, including a potential review of radio subcaps (called for by Commissioner O’Rielly in his statement on the rule changes).

On ATSC 3.0, the FCC press release stated that the following rules have been adopted for the transition to the new transmission standard:

  • Requires broadcasters that use Next Generation TV to partner with another local station in their market to simulcast their programming in the current DTV standard, called ATSC 1.0, so that viewers can continue to receive their existing broadcast service without having to purchase new equipment;
  • Subjects Next Gen TV signals to the public interest obligations that currently apply to television broadcasters; and
  • Requires broadcasters to provide advance on-air notifications to educate consumers about Next Generation TV service deployment and simulcasting.

There are many more detailed obligations that are imposed on the transition which we will address when the FCC’s final order is released.

The Democratic Commissioners objected to this transition based on concerns for consumers – believing that the transition will impose costs on consumers to transition to the new television standard (which will require a new TV or converter to be received) which will not be reimbursed, that the transition has not been approved by Congress, and that there are no privacy protections for consumers given that the new TV standard will allow targeted advertising and programming. See the dissenting statements of Commissioner’s Rosenworcel here and Commissioner Clyburn here. Of course, mobile phone technology has upgrades all the time which often require new equipment with little regulatory concern for consumers, but there has always been greater concern about the protection of consumer’s access to television, as reflected in these dissenting statements.

Despite the controversy, the FCC meeting yesterday marked significant changes for broadcasters that will no doubt cause important changes in the industry in the short term. We will be watching as these changes play out in the coming months.

FCC Waives December 1 Filing Requirement for TV Stations Ancillary and Supplementary Revenue Report for Stations with No Such Revenue

Delivered... David Oxenford | Scene | Thu 16 Nov 2017 5:21 pm

The FCC’s Media Bureau, as a result of an FCC vote at its meeting last month to look at doing away with the requirement that all TV stations file a report by December 1 of each year detailing their revenue from ancillary and supplementary services – i.e. data and other non-broadcast services offered by the TV station through their digital transmissions – issued an Order suspending the December 1 filing requirement this year for all TV stations that have no such revenue. TV stations that have such revenue must file the report and pay to the government 5% of all of the revenue they receive from offering these non-broadcast services. As we wrote here, the FCC voted last month to start a rulemaking proceeding, as part of its proceeding to look at the Modernization of Media Regulation, to limit the filing requirement to only those stations that actually have ancillary and supplementary revenues – approximately 15 TV stations nationwide.

This FCC Form, Form 2100, Schedule G (formerly Form 317), based on this Media Bureau action, will not be required this year by stations with no ancillary and supplementary revenue while the FCC determines whether to abolish the requirement permanently. Of course, today the FCC will be acting on the proposal to adopt ATSC 3.0, a new TV transmission system which, among other benefits, will allow TV stations to increase their data transmission capabilities. So, even though initially stations that take advantage of this waiver will not have to file the report on ancillary and supplementary revenues this year, that obligation may well arise in the future if they recognize the benefits of ATSC 3.0 by offering non-broadcast services using their TV spectrum.

FCC Announces Window for TV Stations to File Minor Change Applications – Between November 27 and December 7

Delivered... David Oxenford | Scene | Tue 7 Nov 2017 4:01 pm

The FCC yesterday released a Public Notice announcing the opening of its window for full-power and Class A TV stations not repacked during the incentive auction to improve their facilities – the first opportunity to do so since the FCC froze TV minor change applications in 2013 in anticipation of the incentive auction. We wrote about the coming of this window in our article here. The window will be open from November 27 through December 7.

The idea with the opening of this window is for full-power TV stations to get an opportunity to do upgrades now, to essentially get them out of the system before the window for LPTV stations to file for displacement channels takes place (see our article here on the LPTV displacement window). The fear was that, if this window did not give full-power stations an opportunity to file, LPTV stations displaced by the auction and repacking of the TV spectrum could end up being displaced after their displacement window on any new channels that they obtain by full-power stations seeking new facilities. While, certainly, LPTV stations can be displaced in the future, the hope is that this window will drain some of the demand out of the marketplace to hopefully limit LPTV displacements in the future.

November Regulatory Dates for Broadcasters – Including Broadcast Ownership, ATSC, Main Studio, EAS, TV Improvements and FM Translator Settlements

Delivered... David Oxenford | Scene | Wed 1 Nov 2017 4:35 pm

While November is an odd numbered month in which there are no deadlines for EEO Public File or Mid-term Reports, and it is not the beginning of a new calendar quarter when Quarterly Issues Programs Reports are added to a station’s public file and Quarterly Children’s Television Reports are filed with the FCC, that does not mean that there are no dates of interest to broadcasters this month. In fact, there are numerous policy issues that will be decided this month, and filing dates both for television broadcasters and AM broadcasters seeking FM translators for their stations.

The biggest policy dates will be November 16, when the FCC holds its monthly meeting, with two major broadcast items on the agenda. As we wrote here, the FCC will be considering both the adoption of ATSC 3.0, the new television transmission system promising better mobile reception and more data transmission capabilities for TV stations, and the reconsideration of last year’s decision on the ownership rules, where the FCC is expected to repeal the broadcast-newspaper and radio television cross-ownership rules and loosen the restrictions on TV duopolies in markets where such duopolies cannot now be formed.

Last month’s decision by the FCC to abolish the main studio rule is likely to be published in the Federal Register this month. That decision (see our articles here and here) becomes effective 30 days after its publication in the Federal Register so, while it will not take effect this month, we can expect some broadcasters to initiate their plans to immediately take advantage of this significant rule change when the effective date arrives.

There are also filing deadlines this month for stations looking to improve their technical coverage of their markets. TV stations that were repacked following the incentive auction have until tomorrow, November 2, to file minor change applications to increase power on the new channels to which they were assigned by the Commission (see our article here). Soon thereafter, the FCC will open a first-come, first serve window for other television stations not repacked by the FCC to file minor change applications (see our article here).

For AM stations that filed FM translator applications that ended up being in conflict with other applications filed in the window that was opened this summer for such filings, November 29 is the deadline for submitting technical solutions or other settlements that resolve these mutual exclusive situations. See our article here for more information.

Also in November is the date for comments on the FCC’s proposal to abolish the requirement that some licensees maintain paper copies of the FCC rulebook. This is one of the FCC’s first proposals stemming from its Modernization of Media Initiative. Comments are due on November 13, with replies due November 27. See our article here.

Finally, November 3 is the date by which broadcasters are supposed to report to their State Emergency Coordinating Committees on whether they broadcast multilingual EAS messages on their stations and whether they plan to do so in the future. See our article here. This process is being implemented in different ways in different states – so you should check with your state SECC to see how it is being handled where your stations are located.

As in any other month, there are other deadlines, including station specific ones, which you should be aware of and discuss with your own counsel.

FCC Announces Information Session on Revised Biennial Ownership Reports

Delivered... David Oxenford | Scene | Tue 31 Oct 2017 4:24 pm

The FCC yesterday released a Public Notice announcing that it will be holding an information session on November 28, 2017 at 1 PM Eastern Time to familiarize broadcasters with the new Biennial Ownership Report forms. This information session can be viewed live online and will also be archived for viewing after the session (archive to be available here). As we wrote here, the FCC has extended to March 2, 2018 the due date for filing Biennial Ownership Reports, as it is in the process of developing a new form that will, hopefully, make it easier for broadcasters to complete the Form 323 and 323E Ownership Reports that must be filed by licensees once every two years. This information, which will present an overview of the new form, appears to be its official unveiling.

Note that this will be the first time that noncommercial broadcasters will be filing at the same time as commercial broadcasters (see our article here). Also, while commercial broadcasters will need to obtain an FCC Registration Number (FRN) for each person who has an attributable interest in a station, the FCC recently decided that noncommercial licensees need not get an FRN for each member of its governing board (as it would entail getting each member’s social security number). But noncommercial broadcasters still will need to get a Special Use FRN for all officers and directors reported on their ownership reports (see our article here).

November FCC Meeting to be an Important One for Broadcasters – FCC Releases Draft Orders on ATSC 3.0 and Ownership Rule Revisions

Delivered... David Oxenford | Scene | Fri 27 Oct 2017 3:15 pm

Yesterday, we previewed the FCC’s likely decision to significantly change its ownership rules for television owners – proposing to take actions including allowing TV duopolies in markets with fewer than 8 independent TV voices after the combination, allowing some combination of the Top 4 TV stations in certain markets, repealing the radio-TV cross-ownership rules, and repealing the newspaper-broadcast cross-ownership prohibitions. The FCC has now released the draft of the order to be considered at its meeting next month. It is available here.

Also on the tentative agenda (here) for the November meeting is the approval of the new standard for broadcast television – ATSC 3.0. The draft order would allow a voluntary transition to the new standard, with those TV stations that decide to convert being required to find a partner station in most cases so that viewers will be able to see the 3.0 station’s primary programming in the current ATSC 1.0 standard for at least 5 years. LPTV and TV translators would be exempt from this partnering obligation. The draft order is available here. We will provide more details on that draft order in the near future.

These items will be voted on by the Commission on November 16. They are controversial, so expect to see much debate on these items between now and the November meeting, and probably at the meeting itself.

Stay Tuned: Big Broadcast Ownership Rule Changes to be Unveiled Later Today

Delivered... David Oxenford | Scene | Thu 26 Oct 2017 5:17 pm

According to the testimony given yesterday by FCC Chairman Pai at an oversight hearing before the House of Representatives Communications and Technology Subcommittee, the FCC is likely to release today a draft of its order on reconsideration of last year’s FCC decision on its Quadrennial Review of its broadcast ownership rules (the rules restricting the number of media outlets that one company can own in any geographic market). See our article here on the issues pending on reconsideration. According to Commissioner Pai’s testimony, the draft order will include provisions:

  • Eliminating the newspaper/broadcast cross-ownership rule
  • Eliminating the radio/television cross-ownership rule
  • Eliminating the 8-voices test of the local television ownership rules that limits TV duopolies to markets where there will be 8 remaining independently owned and programmed TV stations after the combination
  • Allows consideration on a case-by-case basis of combinations of TV stations that are ranked among the Top 4 stations in their market (combinations which are now prohibited)
  • Eliminating the attribution rule for television Joint Sales Agreements (JSA), meaning that stations could combine sales operations without those combinations being considered the same as common ownership
  • Establishing an incubator program to encourage minority ownership

This draft order will be considered at the FCC’s next open meeting on November 16. Watch for more details after the draft order is released.

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