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


FCC Gives Notice of C-Band Earth Stations Eligible for Reimbursement Before Repurposing Part of that Spectrum – Broadcasters Need to Review and File Corrections By July 16

Delivered... David Oxenford | Scene | Thu 9 Jul 2020 5:04 pm

The FCC’s International Bureau released a preliminary list of C-Band earth stations (those that operate in the 3.7-4.2 GHz band) in the contiguous U.S. that the Bureau has reviewed and said appear to qualify as “incumbent earth stations” which will be eligible for reimbursement for reasonable costs of changes to their facilities caused by the upcoming repacking of the C-Band.  The C-Band will be partially reallocated for use by wireless carriers, requiring changes in many existing earth stations.  The FCC’s notice about the preliminary list is available here, the preliminary list of incumbent C-band earth stations with explanatory notes in PDF format is available here, and the preliminary list of incumbent C-band earth stations as an Excel chart is available here.  It is important that all broadcasters who have registered earth stations immediately review this list – as corrections need to be submitted to the FCC in just a week – by July 16, 2020.

The Bureau reviewed the status of all earth stations with active or pending licenses or registrations in the C-band.  The incumbent licensees were those who were operating in 2018 and filed FCC registrations by that year and updated those registrations in 2019 (see our articles here and here).  The list includes earth stations whose timely-filed applications are still pending, though they may ultimately not be eligible for reimbursement if the applications are not granted.  The Bureau did not include earth stations whose applications it has dismissed as not meeting the criteria for incumbent status, even if the dismissal is not yet final under the Commission’s rules.

Corrections to the list need to be submitted to the FCC in writing by July 16, 2020, as well as any comments on the list and the FCC’s notice.  If your earth station was left off the list, or the information is inaccurate, corrections need to be made.  The FCC notice sets out very particular procedural requirements for the filings, which need to include the FCC file numbers of authorizations and reference to the Docket number of the FCC’s proceeding in which this notice was issued. No new earth stations or changes in the location of such stations will be accepted.  The FCC is allowing minor corrections to site addresses and/or GPS coordinates of an existing earth station location or minor changes in operations (e.g., change in an emission designator or, importantly, an antenna no longer in use, or other information that would help inform the satellite operators’ transition plans).

The comments and corrections must be filed electronically in an FCC database and need to follow the specifics set out in the notice.  Stations should consult with their engineers and lawyers to make sure that any required filings are made following the procedures set out in the Notice, by the July 16 deadline.

July Regulatory Dates for Broadcasters: End of the TV Repacking, Quarterly Issues/Programs Lists, Children’s Television Reporting, EEO, Carriage Election Public File Information Deadline, LPTV Settlement Window, Rulemaking Comments and More

Delivered... David Oxenford and Adam Sandler | Scene | Mon 29 Jun 2020 4:58 pm

July is usually a month of family vacations and patriotic celebrations.  While the pandemic has seen to it that those activities, if they happen at all, will look different than they have in years past, there are plenty of regulatory obligations to fill a broadcaster’s long, summer days.  Here are a few of the dates and deadlines to watch for in July, and a quick reminder of some of the significant filings due right at the beginning of August.

On or before July 10, all TV and radio stations must upload to their public file their Quarterly Issues/Programs Lists for the 2nd quarter (April, May and June).  Stations that took advantage of the FCC’s extension of time to file their 1st quarter (January, February and March) list must also by July 10 upload that list to their public file.  As a reminder, the Quarterly Issues/Programs Lists are a station’s evidence of how it operated in the public interest, demonstrating its treatment of its community’s most significant issues.  The FCC has shown (see here and here) that it takes this requirement seriously and will fine stations, hold up license renewals, or both if it finds problems with a station’s compliance.  For a short video on complying with the Quarterly Issues/Programs List requirement, see here.

Also, on or before July 10, television stations must file their first annual Children’s Television Programming (also known as KidVid) Report.  The report was initially due in January, but the due date was pushed back to March 30 to allow licensees to become familiar with the new forms and then the Commission announced a blanket extension to July 10 due to coronavirus.  The report to be filed in July covers September 16, 2019 through December 31, 2019.  The next report, likely due in January 2021, will cover all of 2020.  For a deeper look at how to comply with the new programming and reporting changes, see our posts hereherehere, and here.

By July 3, TV stations assigned to Phase 10 of the incentive auction repack must have completed their transition to their post-auction facilities.  This group includes stations originally assigned to Phase 10 and Phase 9 stations that, due to the COVID-19 pandemic and associated delays with tower and construction crews and station personnel compliance with stay-at-home orders, were granted a waiver to move to Phase 10 (we wrote about the waiver process here).  The FCC recently granted one station an extension until September to complete its channel change due to delays from the pandemic and directed the Media Bureau to review requests from any other stations that may need a little more time.  See the FCC’s Order here for more details.  The July 3 transition deadline marks the end of a ten-year process to reallocate TV band spectrum that began in 2010 with the release of the National Broadband Plan.

There is another important date in July dealing with cable and satellite carriage elections for all television stations.  Broadcast TV stations and multichannel video programming distributors (e.g., cable and satellite providers) have until July 31 to upload to their public file or the Cable Operations and Licensing System a phone number and email address to be used for receiving signal carriage notices and questions.  This information must be kept current and will be used in the must-carry and retransmission consent carriage election statements that must be uploaded by stations to their online public files by October 1 of this year for the 2021-2023 cycle.  Under new FCC rules adopted last year, stations now upload their elections to their public file every three years on the normal election cycle and notify MVPDs of their must carry/retransmission consent election only if that election changed from the prior cycle (see our article here).

By July 24, the 35 stations randomly selected by the FCC’s Enforcement Bureau to be audited for their compliance with the EEO rules must upload their responses to their public file.  Among the items requested as part of the audit are copies of EEO annual reports, copies of advertisements, bulletins, emails, and other documents used to disseminate information about open positions, data supporting interviewee referral sources, and documentation about the station’s recruitment efforts.  See our article here about the audit and EEO compliance.

Applicants for new LPTV and TV translator stations filed back in 2009 who filed earlier this year to move their operations because of the TV spectrum repacking, and ended up mutually exclusive with another applicant filing to move because of the repack in the same window, have until July 31 to reach a settlement with any mutually exclusive applicant or to make technical changes in their facilities to resolve the conflict.  Also, LPTV and TV translator stations on channels 38, 44, 45 or 46 must vacate their channels by July 13 to allow for new wireless uses.  For more about these deadlines, see our article here.

The FCC will hold its next Open Meeting on July 16 though, in contrast to recent months, no broadcast-specific items made it on the agenda.  The FCC will, however, review its rules on cable leased access obligations.  The agenda and draft items can be viewed here.

Parties in opposition to the federal government’s petition to the U.S. Supreme Court for a writ of certiorari in Federal Communications Commission, et al. v. Prometheus Radio Project, et al. have until July 21 to submit an opposition brief.  The original due date of May 20 was pushed back to allow new counsel for Prometheus and its co-parties to get up to speed and in acknowledgement of the difficulty of organizing a response during COVID-19.  This is the appeal by broadcasters of the Third Circuit decision throwing out the FCC’s 2017 order changing many broadcast ownership rules – including the abolition of the newspaper-broadcast cross-ownership rule.  You can catch up on this issues in this appeal here.

Finally, there are lots of comments in rulemaking proceedings.  Reply comments in the FCC’s video description proceeding are due by July 6.  Video description refers to the insertion in TV programming of spoken narration of what is happening on the screen to aid blind or visually impaired persons.  As we wrote here, the Commission’s Notice of Proposed Rulemaking seeks comment on expanding the video description rules to require more stations— beginning with ABC, CBS, NBC and Fox stations in markets 61-100 and later expanding by an additional 10 TV markets each year for the next four years—to provide described programming. In the first round of commenting, the National Association of Broadcasters urged the Commission to delay by 9 months (from January 1, 2021 to October 1, 2021) the imposition of this new obligation.  NAB cites the difficulty for stations that are already deep into budgeting for 2021 to accommodate this new financial outlay, especially as many stations are trying to recover from the economic downturn brought on by the pandemic.

By July 13, reply comments are due in the FCC’s proposal to expand the use of Distributed Transmission Systems (DTS) by television stations operating with the new ATSC 3.0 transmission system.  In short, use of a distributed transmission system by a TV station allows the station to extend—within its noise-limited service contour—the strength of its signal, to serve viewers who were unable to receive a clear signal.  Parties interested in submitting reply comments can read the first round of comments that were submitted here and read our post from May with more detail about DTS and about the questions being asked in the Notice of Proposed Rulemaking.

On or before July 23, interested parties can share with the FCC their comments on a proposal to allow broadcast licensees to originate programming on FM translators.  A group of broadcast licensees has asked the FCC think bigger than the proposals put forth in the recent FM boosters zonecasting proceeding and to allow translators to originate up to 40 hours of original programming per week.  The proposal also suggests allowing translators to locate within the primary station’s 45 dbu contour, rather than within the 60 dbu contour of an FM primary station as now required.  See our post here for more details about the proposal and expected next steps.

As a preview of what is to come in early August, full-power TV, Class A TV, TV Translator and LPTV stations in North Carolina and South Carolina and full-power AM, FM, noncommercial educational FM, FM Translator, and LPFM radio stations in Illinois and Wisconsin must file an application for license renewal by August 3 (the actual filing deadline date is August 1, a Saturday, so the deadline shifts to the next business day).  Stations are no longer required to air pre-filing announcements but should already be working on their renewal applications with an eye toward the August 3 deadline.

Full-power TV, Class A TV, LPTV, full-power AM, FM, and noncommercial educational FM stations with August 1 (and, as noted above, August 3) license renewal dates in any year are also required to post to their public file and on their website an Equal Employment Opportunity (EEO) Report, detailing the station’s compliance with the FCC’s EEO rules over the preceding year.  Those August 3 renewal stations in North Carolina, South Carolina, Illinois, and Wisconsin must also file a Broadcast Equal Employment Opportunity Program Report (FCC Form 396).  The license renewal application requires the Form 396 file number, so that form must be filed before you can finalize your renewal application.

As you can see, we have highlighted many important dates upcoming in July, so be sure you are in touch with your station’s attorney and staying on top of not only these dates, but also any other dates and deadlines that apply to your operation.

This Week at the FCC for Broadcasters: June 20, 2020 to June 26, 2020

Delivered... David Oxenford and Adam Sandler | Scene | Sat 27 Jun 2020 8:43 pm

Here are some of the regulatory actions of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations:

  • FEMA announced that it has canceled the 2020 test of the Integrated Public Alert and Warning System (IPAWS), which is the technical infrastructure that delivers EAS messages to radio and TV stations. FEMA noted the “unusual circumstances and working conditions” brought on by the pandemic and acknowledged that post-test reporting would place additional burdens on station personnel already stretched thin to keep their operations on the air.  (Broadcast Law Blog)  (News Release)
  • Through a Public Notice, the FCC announced July 13 as the effective date for certain technical rules for LPFM stations. Though some of the new rules, like changes to the waiver process regarding interference between Channel 6 TV stations and noncommercial FM stations operating on the reserved band and use by LPFM stations of FM boosters become effective next month, other rules, like changes regarding the use of directional antennas and a revision to the definition of a minor change will not be effective until a later date, as yet unannounced.  See the Broadcast Law Blog post here for more detail.  (Public Notice)  (Report and Order)
  • The FCC announced in April that, in light of the shifting economic situation facing many broadcast advertisers, it would allow stations to air certain PSAs, using time donated by commercial entities to organizations involved in the pandemic relief effort, without identifying the commercial entities paying for the time as would otherwise be required by the sponsorship identification rules (see our Broadcast Law Blog article on that decision).  The waiver was to expire on June 30, but this week it was extended through August 31, 2020. (Order)
  • The FCC denied an Application for Review submitted by a West Virginia LPTV operator making clear that the Communications Act and FCC rules do not require mandatory carriage of LPTV stations on satellite television systems. (Memorandum Opinion and Order)
  • In a reminder that stations must file an application whenever there is a change in control of a broadcast station, even one caused by the death of a controlling shareholder, the Commission upheld the Media Bureau’s decision to dismiss an application for license renewal of a Mississippi FM station because it failed to do so, which effectively terminated its right to operate. (Order on Reconsideration)
  • Comments were due this week in the FCC’s video description proceeding. Video description refers to the provision on a subchannel of spoken narration describing what is happening on screen in TV programming to aid blind or visually impaired persons.  The Commission sought comment on expanding the video description rules to require more TV stations to provide this service. In the first round of comments filed this week, the National Association of Broadcasters urged the Commission to delay the effective date of the proposed expansion of the video description requirements by 9 months (from January 1, 2021 to October 1, 2021).  NAB cites the difficulty for stations that are already deep into budgeting for 2021 to accommodate this new financial outlay, especially as many stations are trying to recover from the economic downturn brought on by the pandemic.  (MB Docket 11-43)  (Broadcast Law Blog)
  • The FCC dismissed an application to deliver Chinese programming from a studio in the US to a Mexican station which places a signal back into the United States. Federal law (Section 325(c) of the Communications Act) requires FCC approval for US-produced programming to be exported to a foreign station with significant US coverage.  This procedural decision suggests that all parties producing the programming need to be co-applicants.  (News Release)  (Order)
  • The five FCC Commissioners visited Capitol Hill to participate in a Senate Commerce Committee oversight hearing. The statements, questions and answers focused mostly on non-broadcast matters, but the Commissioners reiterated their support for press freedom, discussed Broadcast Internet services, the C4 radio station class and the minority tax certificate.  (Commissioner Prepared Statements and Archived Video)

This Week at the FCC for Broadcasters: June 13, 2020 to June 19, 2020

Delivered... David Oxenford | Scene | Sun 21 Jun 2020 4:07 am

Here are some of the legal and regulatory actions of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released a Second Report and Order and Order on Reconsideration regarding Next Gen TV (ATSC 3.0). The Report and Order provides guidance on how the Commission will evaluate petitions for waiver of the local simulcasting rules for broadcasters deploying ATSC 3.0 who cannot find a partner station to broadcast its signal in the current transmission standard, declines to allow broadcasters to use vacant in-band channels for voluntary ATSC 3.0 deployment, and clarifies that the “significantly viewed” status of an ATSC 3.0 station will not change when that station moves its ATSC 1.0 simulcast channel to a host facility.  The Order on Reconsideration denied petitions challenging aspects of the Commission’s 2017 Next Gen TV order, including issues dealing with the local simulcast requirement, the application of retransmission consent rules, patent licensing issues, and sunset of the obligation to use the current transmission standard for ATSC 3.0 (that sunset allowing the new transmission mode to evolve over time without the need for FCC action).  (Second Report and Order and Order on Reconsideration)
  • The Commission granted a waiver to a Jacksonville, Florida TV station, allowing it to complete its post-incentive auction move to a new channel by September 8, beyond the current July 3 end of Phase 10 of the repacking of the television band when all TV stations were to have moved to their post-transition facilities. Because of issues related to COVID-19 and other technical matters, the Commission granted this extension and authorized its Media Bureau to grant similar relief to other stations suffering from similar delays (Order)
  • Two members of Congress wrote a letter to FCC Chairman Ajit Pai urging the Commission to “halt any increases to annual regulatory fees due in 2020 for broadcast licensees.” Ann McLane Kuster (D-NH) and Chris Stewart (R-UT) wrote in their letter that this action requires no congressional action and would help alleviate some of the economic hardship suffered by stations due to the COVID-19 pandemic.  The Members noted that broadcasters are a critical component of the pandemic response by, among other things, informing and educating Americans about public health guidance.  (Letter).  The NAB, as well as a group of state broadcast associations, also filed comments at the FCC opposing the FCC’s proposal to increase broadcast regulatory fees, arguing that broadcasters’ fees should not increase in relation to the fees paid by other industries regulated by the FCC, particularly as broadcasters have been so hard hit by the economic fallout of the pandemic. (NAB Comments and State Association Comments)
  • Last Monday, the reply comment period closed in the FCC’s Significant Viewing proceeding. Designation as a significantly viewed station has implications for determining whether a cable or satellite TV system will carry a TV station in an area that is not part of its home market.  For an in-depth look at what the FCC seeks to resolve through this proceeding, see this post at the Broadcast Law Blog.  (Reply Comments)
  • On Tuesday, the Senate Commerce Committee held a hearing considering the re-nomination of FCC Commissioner Michael O’Rielly to a new five-year term. The Commissioner, in response to a question, noted that he believes the FCC’s and DOJ’s current media competition rules are “problematic,” and that he hopes to work with DOJ to shift its narrow view of the competitive marketplace where it does not recognize that broadcasters  don’t just compete with other broadcasters, but instead directly compete with a wide range of other media companies, including digital media outlets.  (Opening Statement and Archived Video)(see Broadcast Law Blog articles here and here on the competition between broadcasters and other media and how the assessment of the definition of the marketplace is important to the evaluation of broadcast ownership limits)
  • The Enforcement Bureau acted last week against two pirate radio operations, one in Pennsylvania and one in Arkansas. These actions are reminders that broadcast operators must hold a valid license to operate and that the FCC will pursue illegal operations.
    • In the first case, the Enforcement Bureau shut down a station that was broadcasting on 90.7 MHz and 91.5 MHz from Stroudsburg, Pennsylvania. The operator, as part of a consent decree, admitted to the unauthorized operation of the station, agreed to pay a $1,500 civil penalty, and agreed to not operate an unauthorized station in the future.  The PIRATE Act, signed into law in early 2020, gives the FCC authority to fine pirate radio operators up to $100,000 per violation (with a $2 million cap), but, in this case, the operator claimed an economic hardship, which persuaded the FCC to lower the fine to $1,500.  (Order and Consent Decree)
    • In the second case, the Enforcement Bureau issued a $10,000 fine to an operator for the unauthorized operation of a radio station on 103.1 MHz in Alma, Arkansas. (Forfeiture Order)
  • The US Court of Appeals upheld a lower court order throwing out a rule adopted by the Department of Health and Human Services that would have required all TV advertising for prescription drugs to state the wholesale price of the drug. Based on these court decisions, this additional information will not need to be added to the disclaimers that these ads already contain. (Court Decision)(Broadcast Law Blog article on the decision)

We’ll be watching the following hearing next week to assess its significance to broadcasters:

  • The Senate Commerce Committee will hold an FCC oversight hearing on June 24 at 10 AM. All five FCC Commissioners are expected to attend and testify about past FCC actions and issues that it is currently considering.  (Hearing Details and Livestream)

No Wholesale Pricing Disclosures to be Required in Drug Advertising – Appeals Court Upholds Lower Court Rejection of HHS Requirement

Delivered... David Oxenford | Scene | Thu 18 Jun 2020 4:57 pm

It appears that there will be no requirement imposed on television and cable ads to include disclosures revealing the wholesale prices of prescription drugs in any advertising for those drugs.  We wrote about the decision from the US Department of Health and Human Service to impose such a requirement on television ads here, and we wrote here about last year’s determination of a federal District Court throwing out the requirement, finding that HHS had no statutory authority to impose that requirement.  This week, the US Court of Appeals rejected an HHS appeal of the District Court decision.  The decision found that it was not reasonable for HHS to determine that Congress had given HHS authority, based simply on the authority to administer Medicare and Medicaid programs, to impose such an obligation on the commercial speech of advertisers in advertising their prescription drugs.  As HHS could not show how this ban was necessary for the administration of these programs, or would even necessarily lead to the cost savings given as the justification for the requirement, the appeals court upheld the lower court decision striking down the price disclosure obligation.

NAB and NCTA, on behalf of the broadcast and cable industries, filed briefs supporting this outcome.  Based on this decision, television advertisers will not be obligated to disclosure any wholesale pricing information absent some future intervention by Congress.

This Week at the FCC for Broadcasters: June 6, 2020 to June 12, 2020

Delivered... David Oxenford and Adam Sandler | Scene | Sat 13 Jun 2020 11:36 pm

Here are some of the FCC regulatory and legal actions of the last week—and a congressional action in the week ahead—of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC on June 9 held an Open Meeting where it unanimously adopted a Declaratory Ruling and Notice of Proposed Rulemaking regarding Broadcast Internet services. The Commission defines Broadcast Internet broadly as IP-based services delivered over broadcast TV spectrum.  The Declaratory Ruling clarifies that the lease by a party of ATSC 3.0 spectrum on multiple local TV stations for Broadcast Internet services does not count as an attributable interest under the current TV ownership rules as would an LMA or similar programming agreement on multiple stations.  The Notice of Proposed Rulemaking seeks comment on how industry foresees using Broadcast Internet services and what FCC rule change could encourage innovation and use of these services.  Comments and reply comments on the Commission’s proposals will be due 30 days and 45 days, respectively, after publication in the Federal Register.  (News Release) (Declaratory Ruling and Notice of Proposed Rulemaking) (Broadcast Law Blog)
  • Thirty-five radio stations received the news last week that they were randomly selected by the Enforcement Bureau for an audit of their compliance with the Equal Employment Opportunity rules. These periodic audits are good reminders to broadcasters that the Enforcement Bureau sees EEO compliance as a priority and that the Bureau can sanction stations for non-compliance.  Even if your station was not selected to be audited, you can still use the publicly-released audit letter as a checklist to make sure your station is complying with all applicable EEO rules.  The FCC audits about 5% of stations each year, so your time may come soon.  (Public Notice) (Broadcast Law Blog)
  • New technical rules for low power FM stations and the relation between reserved-band noncommercial FM stations and TV channel 6 were published last week in the Federal Register, setting the effective date for many of the new rules. New rules, including permission for LPFM stations to use boosters and the waiver process for NCE stations seeking a change in facilities near a Channel 6 TV station, become effective July 13.  Other new rules, including the broadening of the definition “minor change” and the expansion of the permissible use of directional antennas by LPFMs, require additional government action and likely will not be effective for several months.  (Federal Register) (Broadcast Law Blog)

Looking ahead to next week, watch for this DC event which may be of importance to broadcasters:

  • On Tuesday, June 16, the Senate Commerce Committee will consider President Trump’s nomination of current FCC Commissioner Michael O’Rielly for a new five-year term (though his current five-year term expired in June 2019, federal law allows him to serve until the end of the current session of Congress, which is January 3, 2021). If the panel clears his re-nomination, it will be sent to the full Senate for a confirmation vote.  (Hearing Details and Live Video)

 

Facebook Defends Not Censoring Political Ads – Looking at the Differences In Regulation of Political Speech on Different Communications Platforms

Delivered... David Oxenford | Scene | Fri 12 Jun 2020 5:25 pm

The question about what to do with the protections offered by Section 230 of the Communications Decency Act took another turn this week, when Joe Biden suggested that online platforms needed to take responsibility for the content posted on them and correct misinformation in those ads.  That position is seemingly the opposite of the President’s Executive Order about which we wrote here and here, which seemingly suggests that no censorship should be applied against political speech on these platforms – or certainly no censorship against certain kinds of speech that is not applied against speech from all other parties on that platform.  Facebook almost immediately posted this response, defending its position not to censor candidate’s speech and analogizing it to the position that television and radio broadcasters are forced by Congress to take – where by law they are not allowed to refuse to run a political ad from a candidate because of its content and they are shielded from liability because of their inability to censor these candidate ads.  Facebook took the position that, if Congress wants to regulate political speech, it should pass laws to do so, but that Facebook would not itself be a censor.  That position reminded us of an article that we wrote back in January when there were calls to make Facebook stop running political ads comparing the regulatory schemes that apply to political ads on different platforms.  Given its new relevance in light of the sudden prominence of the debate over Section 230, we thought that we would rerun our earlier article.  Here it is – and we note how we seemingly anticipated the current debate in our last paragraph:

[In January], the New York Times ran an article seemingly critical of Facebook for not rejecting ads  from political candidates that contained false statements of fact.  We have already written that this policy of Facebook matches the policy that Congress has imposed on broadcast stations and local cable franchisees who sell time to political candidates – they cannot refuse an ad from a candidate’s authorized campaign committee based on its content – even if it is false or even defamatory (see our posts here and here for more on the FCC’s “no censorship” rule that applies to broadcasting and local cable systems).  As this Times article again raises this issue, we thought that we should again provide a brief recap of the rules that apply to broadcast and local cable political ad sales, and contrast these rules to those that currently apply to online advertising.

As stated above, broadcast stations and local cable systems cannot censor candidate ads – meaning that they cannot reject these ads based on their content.  Commercial broadcast stations cannot even adopt a policy that says that they will not accept ads from federal candidates, as there is a right of “reasonable access” (see our article here, and as applied here to fringe candidates) that compels broadcast stations to sell reasonable amounts of time to federal candidates who request it.  Contrast this to, for instance, Twitter, which decided to ban all candidate advertising on its platform (see our article here).  There is no right of reasonable access to broadcast stations for state and local candidates, though once a station decides to sell advertising time in a particular race, all other rules, including the “no censorship” rule, apply to these ads (see our article here).  Local cable systems are not required to sell ads to any political candidates but, like broadcasters with respect to state and local candidates, once a local cable system sells advertising time to candidates in a particular race, all other FCC political rules apply.  National cable networks (in contrast to the local systems themselves) have never been brought under the FCC’s political advertising rules for access, censorship or any other requirements – although from time to time there have been questions as to whether those rules should apply.  So cable networks, at the present time, are more like online advertising, where the FCC rules do not apply.

Disclosure is another place where the government-imposed rules are different depending on the platform.  Broadcast and local cable systems have extensive disclosure obligations, in online public files, that detail advertising purchases by candidates and other issue advertisers.  We recently wrote (here and here) about the new enhanced disclosure rules for federal issue advertising (including ads supporting or attacking federal political candidates purchased by groups other than the candidate’s own campaign committee).  Cable networks and online platforms do not have federal disclosure obligations.  Some have voluntarily adopted their own disclosure policies.  In addition, some states have imposed obligations on these platforms (see, for instance, our article here), but as we wrote last month, at least one appellate court has determined, in connection with Maryland’s online political advertising disclosure obligations, that such rules are unconstitutional when imposed on platforms rather than on advertisers.

Certainly, it can be argued that there are technical differences in the platforms that justify different regulation and different actions by the platforms themselves.  Online platforms clearly have the potential to target advertising messages to a much more granular audience.  The purpose of this article is not to argue one way or the other – just to point out that these differences exist.  As we are already well into the political season with advertising running for the 2020 election, we are unlikely to see significant changes in these rules for this election – but watch for more discussions on these differences in the future in terms of how various platforms treat political advertising, and whether this differing treatment should continue.

 

Rule Changes on LPFM and Interference Protections for Channel 6 TV from Reserved Band FM to Become Effective on July 13

Delivered... David Oxenford | Scene | Thu 11 Jun 2020 4:50 pm

In April, the FCC modified a number of its rules regarding LPFM stations, and also modified its processing policies as to considerations of interference between Channel 6 TV stations and noncommercial FM stations operating on the reserved band (the low end of the FM dial).  We wrote about those changes here and here.  The changes were published in the Federal Register today, meaning that many of the changes – including those dealing with the Channel 6 interference policy and the use of boosters by LPFM stations – will become effective on July 13.  Other issues, including the use of directional antennas and the change in the definition of a minor change in the facilities of LPFM stations, involve changes in FCC forms and thus will not become effective until they have been approved by the Office of Management and Budget following a review under the Paperwork Reduction Act.  The effective dates for those changes will be announced when that approval is obtained, likely several months from now.

FCC Adopts Declaratory Ruling and Starts Rulemaking on ATSC 3.0 TV Datacasting Issues – the Broadcast Internet

Delivered... David Oxenford | Scene | Thu 11 Jun 2020 4:43 pm

The FCC at its open meeting this week adopted the Declaratory Ruling and Notice of Proposed Rulemaking that we wrote about here when the draft order was released.  The Declaratory Ruling makes clear that the leasing of television spectrum for datacasting uses does not trigger FCC multiple ownership issues (in other words, one entity can lease capacity of several TV stations for datacasting purposes, and those leases are not considered attributable ownership interests subject to the FCC’s limitations on the number of stations in a single market in which one party can have an interest).  The only significant change from the draft order was the addition of a sentence making clear that a TV station moving to ATSC 3.0 does not have an attributable ownership interest in another station in the market whose spectrum it leases for its required “lighthouse” signal continuing to make its programming available to viewers in the current ATSC 1.0 transmission standard.

The substantive portions of the Notice of Proposed Rulemaking also were generally unchanged from the draft order.  The NPRM asks about issues that the FCC needs to address to advance the opportunities offered by ATSC 3.0 datacasting (or the “Broadcast Internet” as it was referred to in this proceeding).  One additional question added to the draft of the NPRM was whether the statutory prohibition of the use of the TV spectrum for datacasting in a way that degrades current over-the-air service could be read to prohibit a station from reducing its current HD service to standard definition programming to free more spectrum.  The FCC notes that it now only requires a station to broadcast one Standard Definition signal and that it can change from HD to SD when it wants – but it nevertheless asks the question.  Comment dates for all of the questions raised in the NPRM will be announced at a later date when the NPRM is published in the Federal Register.

This Week at the FCC for Broadcasters: May 30, 2020 to June 5, 2020

Delivered... David Oxenford | Scene | Sun 7 Jun 2020 2:36 pm

Here are some of the FCC regulatory and legal actions of the last week of significance to broadcasters — with a quick look at the week ahead— with links to where you can go to find more information as to how these actions may affect your operations.

  • As protests and civil unrest over George Floyd’s killing roiled cities across the country, FCC Chairman Ajit Pai commended local broadcasters for their coverage of the events and their willingness to put themselves at personal risk to share these stories with America (News Release). Commissioner Starks called for more diversity in media ownership (News Release). We explained the minority tax certificate on our blog here.  The tax certificate has historically been one of the most effective means of promoting diversity in broadcast ownership.
  • The FCC issued a Public Notice setting out proposed lump sum payments for reimbursement of the costs for the relocation of authorized C-Band satellite earth stations following the repurposing of some of that band for 5-G wireless uses. The notice is scheduled to be published in the Federal Register on Monday, setting a June 15 comment deadline on the proposed payments.
  • The Media Bureau reminded LPTV and TV translator stations operating on channels 38, 44, 45 and 46 that they must cease operations no later than 11:59 pm local time on July 13, 2020. The July 13, 2020 date for cessation of operations is a hard deadline, tied to the end of the post-Incentive Auction transition period.  (Public Notice)
  • The Media Bureau opened a settlement window running through July 31 for applicants for new or modified LPTV stations or TV translators, originally filed in 2009, that had filed for new channels or new technical facilities because use of their old channels was preempted by the incentive auction repack.  Where more than one applicant applied for the same new channel in the same area, those applicants can file to make engineering changes to their applications (including, if no other solutions are possible, changing channels yet again) or to reach other settlements (including channel sharing) to resolve their conflicts by the July 31 deadline.  (Public Notice)(see our summary of both LPTV items on the Broadcast Law Blog).
  • The FCC released a list of 515 open proceedings from across its bureaus that it plans to close due to dormancy. A proceeding makes the proposed closure list when it requires no more action, no more action is planned, or no filings in the docket have been made for several years.  Interested parties can review the list and submit comments urging the Commission to either keep open or close permanently items that appear on the list.  (Public Notice)
  • The Media Bureau issued a decision reviewing Section 312(g) of the Communications Act which automatically cancels a station’s license if it has been silent for 12 months, absent special circumstances. The decision is particularly useful in explaining the special circumstances that can justify the preservation of a license, and the way that the FCC assesses the period that a station was silent.  (Letter)
  • Two Notices of Apparent Liability that came out of the Commission this week serve as good reminders during this license renewal cycle that you do, in fact, have to file an application to renew your license.
    • In one case, a Virginia AM station was hit with a $7,000 fine for failing to file for license renewal and then operating the station after its FCC authorization had expired. In the end, the Commission levied the fine, but also found that the station’s license should be renewed for a “short-term” two-year license term instead of the typical eight-year term.  (Notice of Apparent Liability)
    • In a second case, a Florida low power FM failed file an application for license renewal on January 27, 2020 that was due on or before October 1, 2019, without providing an explanation for the late filing. The Commission levied a $1,500 fine against the station and will consider the license renewal application at a later time.  (Notice of Apparently Liability)

Looking ahead to next week, here is one broadcast item to be watching:

  • This coming Tuesday, June 9, the FCC will hold an Open Meeting. Of interest to television broadcasters that have adopted or are planning to adopt the ATSC 3.0 (Next Gen TV) standard will be a proposal clarifying that TV station ownership rules do not apply to the lease of spectrum to provide “Broadcast Internet” services.  Also up for consideration is a Notice of Proposed Rulemaking that seeks comment on how broadcasters intend to use IP-based Broadcast Internet services and how the Commission can shape its rules to encourage more use.  (Declaratory Ruling and NPRM) (Broadcast Law Blog)

Understanding the Minority Tax Certificate and its Potential for Promoting Diversity in Broadcast Ownership

Delivered... David Oxenford | Scene | Thu 4 Jun 2020 4:14 pm

An intense national conversation on racial justice and equity has been thrust upon the country by the events of the last week.  While our focus here on this blog is narrow, it is certainly worth looking at some of the issues that are within our broadcast world that are relevant to this conversation.  In recent days, for instance, FCC Commissioner Geoffrey Starks promoted more diversity in broadcast ownership, and an article in Radio Ink by the President of the National Association of Black Owned Broadcasters called for a revival of the minority tax certificate – a program ended decades ago over concerns about its cost to the government.  The tax certificate offers perhaps the most meaningful route to the goals sought by the Commissioner and is worth examination as, since its abolition so many years ago, its revival has been discussed so many times that it has become almost a cliché, with many not really understanding what it did and why it was effective.

The minority tax certificate was a program designed to provide broadcasters with an economic incentive to sell their stations to minority owners.  Rather than directly subsidizing the potential owners, the certificate instead gave a tax break to sellers that incentivized them to sell to the minority-owned business even if there were multiple bidders for their properties.  If the seller sold to a minority-owned business, the seller could take the proceeds from the sale and roll those proceeds over into a new media property without recognizing the taxable gain from the sale.  Unlike the typical like-kind exchange where the roll-over into a new property has to proceed within a few months of the sale, the tax certificate treated the sale as an involuntary sale (like the sale of a property because of a government’s exercise of eminent domain) under Section 1033 of the tax code, giving the seller several years to roll the proceeds over into a new purchase.  At that point, the new property would have the same tax basis as the old – meaning that no gain would be recognized until the sale of the new property.  This spurred many sales to minority companies by broadcasters looking not to get out of the business, but instead looking to realign their holdings or to move up into larger markets.  Several hundred radio and TV stations were purchased under this program in the last 20 years of the program’s existence.  Why was this seemingly successful program abandoned?

The program always had some critics who objected to the constitutionality of racial set asides or expressed fears of the “gaming” of the program by non-minority companies using minority “fronts” to exploit the tax benefits.  But the straw that appeared to break the camel’s back was the proposed mid-1990s sale of a major cable company to a minority-controlled buyer, where taxes of hundreds of millions of dollars would have been deferred upon the sale.  The prevalent attitude in Congress at the time seemed to be that companies that can make such a large acquisition were not the economically-disadvantaged companies that the program was meant to promote – and that the government would be giving up too much money by allowing this use of the certificate program.

Even though repealed, the idea of the tax certificate never went away – simply because it was likely the single most successful program that the FCC ever had at its disposal to promote meaningful diversity in the ownership of broadcast stations.  Suggestions for the revival of the program have been floated almost ever since.

There is currently a proposal pending in Congress by Congressman G.K. Butterfield and Senator Gary Peters to revive the program.  The pending bill establishes limits on the program to overcome some of the objections that existed to the program in the last century.  To overcome some of the constitutional objections, the bill apples to all “socially-disadvantaged individuals” – not just to businesses that are minority-owned.  To overcome the concerns about this program being exploited by big businesses that don’t need government assistance, the program proposes to cap the size of the sale that could take advantage of the certificate – a cap somewhere between $10 million and $50 million, as decided by the FCC after a rulemaking.  The bill also requires that socially-disadvantaged individuals be involved in the management of the stations acquired, and that the properties be held for at least three years to avoid the purchased stations quickly being turned over to non-qualifying businesses.

There does not seem to be any significant opposition to this bill.  Both minority organizations and the NAB have voiced their support.  But, as with so many other proposals for legislation when there are so many conflicting legislative priorities in Congress, it has not been moved to a fast track to passage.  Perhaps given today’s heightened attention to inclusion and diversity, this will be a time to move this legislation forward.

LPTV and TV Translators – Settlement Window for Mutually Exclusive Applications and Reminder on Deadline for Vacating Certain Channels

Delivered... David Oxenford | Scene | Tue 2 Jun 2020 5:18 pm

LPTV and TV translator licensees and applicants saw two notices from the FCC yesterday dealing with fall-out from the FCC’s incentive auction and the subsequent repacking of TV stations into a smaller part of the broadcast spectrum.  The first notice announced a settlement window that runs through July 31 for applicants for new or modified LPTV stations or translators that had filed for new channels or new technical facilities because use of their old channels were preempted by the repacking – either because those channels were no longer part of the TV band or because the channels were to be used by some full-power station that was itself repacked.  These applications have been pending since an LPTV/TV translator filing window in 2009, and were allowed to amend their applications to address issues caused by the repacking earlier this year.  As, in some cases, more than one applicant applied for the same new channel in the same area, those applicants whose displacement applications ended up being mutually exclusive can file to make engineering changes to their applications (including, if no other solutions are possible, changing channels yet again) or to reach other settlements (including channel sharing) to resolve their conflicts.  So if your displacement application was on the list of mutually exclusive applications, look to see if you can resolve your issues and file for the necessary FCC approvals by the July 31 deadline.

In addition, LPTV stations and TV translators using channels 38, 44, 45 and 46 were reminded by the FCC in another Public Notice that they need to vacate these channels by July 13.  The FCC notes that this is a hard deadline that cannot be waived – so stations operating on these channels must either move to a new channel (getting FCC approval for such a move if they have not already received such approval) or cease operations (and ask for authority to remain silent until they have been able to move to another channel) by the July 31 deadline so that the spectrum is freed up as part of its being repurposed for wireless uses.

As a final matter, these notices came out on the same day that the LPTV community was made aware of the passing of Mike Gravino, who had advocated on its behalf for many years (and often republished our articles on his newsletter).  See a press report on his passing here.  He was a fixture on the DC regulatory scene for years and will be missed.

This Week at the FCC for Broadcasters: May 23, 2020 to May 29, 2020

Delivered... David Oxenford and Adam Sandler | Scene | Sun 31 May 2020 3:35 pm

Here are some of the regulatory and legal actions of the last week—and some obligations for the week ahead—of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The comment cycle was set in the FCC’s annual regulatory fee proceeding. On or before June 12, the Commission wants to hear from interested parties about the fees that it proposes to impose on the companies that it regulates – including broadcasters.  The FCC proposes to complete the implementation of its change to computing fees for television stations based on population served rather than on the market in which they operate, a move it began last year (see our Broadcast Law Blog article here on the FCC decision last year to initiate the change in the way TV fees are allocated).  The FCC also asks for ideas about how the Commission can extend fee relief to stations suffering COVID-19-related financial hardship.  Reply comments are due on or before June 29.  (Notice of Proposed Rulemaking)
  • FCC Chairman Ajit Pai and Chris Krebs, director of the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, wrote to the nation’s governors asking them to, among other things, declare radio and TV broadcasters as essential to COVID-19 response efforts and to afford broadcasters all appropriate resources and access. (News Release)
  • In a good reminder to broadcasters that transactions involving the sale or transfer of control of a broadcast station must be authorized in advance by the FCC, the Media Bureau entered into a consent decree with two companies that sold an FM station and FM translator without getting approval from the Commission. The parties mistakenly believed filing license renewal applications that reflected the assignment was sufficient approval.  The consent decree includes an $8,000 penalty.  (Consent Decree).  See this article on past cases where the FCC has warned that even transactions among related companies that change the legal form of ownership of a broadcast station without changing the ultimate control need prior FCC approval.
  • The Commission granted approval to Cumulus Media, Inc. to exceed the Commission’s twenty-five percent foreign ownership threshold. The Commission will allow Cumulus to have up to 100 percent aggregate foreign investment in the company, although additional approvals will be needed if any previously unnamed foreign entity acquires 5% or more of the company or if any foreign entity desires to acquire control.  (Declaratory Ruling).  This decision shows the process that the FCC must go through to approve foreign ownership above the 25% threshold and the analysis needed to issue such approvals.  See our articles here and here about the evolving FCC policy in this area.
  • President Trump signed an executive order that seeks to, among other things, address online censorship and rollback certain protections afforded to online platforms, which include social media sites like Twitter, Facebook, Instagram, and YouTube, but which also protect any site that hosts content created by users – which could include the Internet platforms of many broadcasters. Under federal law, Section 230 of the Communications Decency Act, these online platforms generally enjoy legal immunity for what users post on their platforms.  The President directed the Department of Commerce to ask the FCC to open a rulemaking to review this immunity and asked the FTC to review whether platforms were adhering to their terms of use when commenting on or limiting third-party content.  Other government entities, including state attorneys general and the Department of Justice, were also asked to review online platforms.  For his part, FCC Chairman Ajit Pai said “This debate is an important one. The Federal Communications Commission will carefully review any petition for rulemaking filed by the Department of Commerce.”  (Executive Order).  Watch for an article on the Broadcast Law Blog this coming week on implications of this order for broadcasters and other media companies.
  • Anyone looking to hand deliver documents to the FCC needs to learn a new address, and it is not, as you might expect, the address of the FCC’s future headquarters. Deliveries by hand must now be brought to 9050 Junction Drive, Annapolis Junction, MD 20701.  The address change is to enhance security screening and is part of winding down operations at the current 12th Street headquarters.  (Order)

Looking at the week ahead, here are some dates broadcasters need to be considering:

  • On or before Monday, June 1, all radio and TV stations in Arizona, DC, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming that have five or more full-time employees in their station employment unit (i.e., commonly owned stations serving the same area that share at least one employee) must upload to their online public file, and post a link to that report on the homepage of their station’s website, an Equal Employment Opportunity (EEO) report documenting their hiring from June 1, 2019 to May 31, 2020.  (EEO Rules and Policies)
  • On or before Monday, June 1, full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia and full-power AM and FM stations and LPFM and FM translators in Michigan and Ohio must file their license renewal applications.  On Monday, June 1 and again on Tuesday, June 16, stations filing renewals need to broadcast their post-filing announcements informing their audiences of the filing of the renewal application.  (Broadcast Law Blog on Newly-Revised TV License Renewal Procedures) (FCC Radio License Renewal Information) (FCC TV License Renewal Information)
    • The stations filing for license renewal by June 1 have an additional EEO requirement. Full-power radio stations in Michigan and Ohio and full-power TV, Class A TV, and LPTV stations in DC, Maryland, Virginia, and West Virginia must file with the FCC a Form 396, the Broadcast EEO Program Report.  As a reminder, the license renewal application cross-references the file number of the EEO report, so the EEO report must be filed first.  Form 396 is completed in and submitted through the FCC’s Licensing and Management System.
  • For other regulatory dates of importance to broadcasters coming up in the month of June, see our summary of those dates which we published last week.

June 2020 Regulatory Dates for Broadcasters: License Renewals, EEO Reports, Broadcast Internet Consideration, and Comments on Significant Viewing, DTS, White Spaces, Regulatory Fees, and Video Description

Delivered... David Oxenford | Scene | Thu 28 May 2020 4:54 pm

With many people now entering their third month of complying with stay-at-home orders and social distancing and summer being right around the corner, it would be easy for broadcasters to look past their regulatory obligations to focus on the day when they can ramp up operations and profits.  As you can read below, however, June is a busy month with important obligations for many stations.

June brings the start of summer and the start of the license renewal cycle for television stations.  By June 1, full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia and full-power AM and FM stations and LPFM and FM translators in Michigan and Ohio must file their license renewal applications. Those stations should already be close to completing their renewal applications, looking to file them on or before the June 1 deadline.  See our article here on the FCC’s announcement of the newly-revised procedures for filing TV license renewal applications.  On June 1 and again on June 16, stations filing renewals need to broadcast their post-filing announcements informing their audiences of the filing of the renewal application.

All radio and TV stations in Arizona, DC, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming that have five or more full-time employees in their station employment unit (i.e., commonly owned stations serving the same area that share at least one employee) must upload to their online public file, and post a link to that report on the homepage of their station’s website, an Equal Employment Opportunity (EEO) report documenting their hiring from June 1, 2019 to May 31, 2020.  Additionally, the full-power radio and TV stations, Class A TV, and LPTV stations that are filing for license renewal by June 1 must also file with the FCC a Form 396, the Broadcast EEO Program Report.  As a reminder, the license renewal application cross-references the file number of the EEO report, so the EEO report must be filed first.

The next set of license renewals will be filed by August 3 (as the 1st is on a Saturday).   On or before that date, full-power AM, FM, LPFM, and FM translator stations in Illinois and Wisconsin and full-power TV, Class A, TV translator, and LPTV stations in North Carolina and South Carolina, will file their license renewal applications.  Until recently, stations filing renewals would have had to begin airing pre-filing announcements on two months before their filing deadline – thus stations with an August 3 filing date would have had to start those announcements on June 1.  But that obligation has been abolished.    This requirement was temporarily waived in April and subsequently eliminated in May as part of the FCC’s broadcast local public notice proceeding, which we wrote about here.  Stations must still, as noted above, air post-filing announcements.  Note that the new rules on local public notice will change the timing and content of post-filing announcements.  But, until the new rules become effective, stations should continue following the current post-filing announcement requirements.

The FCC will hold its Open Meeting on June 9 and there is one item in particular that will interest TV stations that have adopted or plan to adopt the ATSC 3.0 (Next Gen TV) standard.  Acknowledging that the surplus spectrum unlocked by 3.0 transmission is often not used to its full potential, the Commission will consider an item that, if adopted, should ease TV stations’ worries about teaming with other stations in their market to offer so-called Broadcast Internet” services This ruling would clarify that stations that partner to lease their spectrum for IP-based data delivery are not subject to the Commission’s attribution and ownership rules (the FCC envisions one scenario where a non-broadcaster leases spectrum from a consortium of broadcasters in one or more markets to create a local, regional, or national data delivery footprint).  Also up for consideration is a Notice of Proposed Rulemaking that seeks comment generally on other ways the Commission can change its rules to promote Broadcast Internet services and, more specifically, on how broadcasters might use Broadcast Internet services and the rule changes needed to make those ideas reality.  We took a deeper look at Broadcast Internet and the FCC’s proposals in our article here.

Notwithstanding the virus’s disruption of much of daily life, the FCC is still moving forward with many proposed rule changes and accepting comments in ongoing proceedings—and June has six dates to watch.  First, reply comments in the FCC’s TV White Spaces proceeding are due June 2.  That proceeding looks to potentially increase the coverage of unlicensed “white spaces devices” offering wireless services in unused portions of the television band.  See our article here for a summary of the FCC proposals.

Comments are due by June 12 in the FCC’s Distributed Transmission System (DTS) proceeding.  The Notice of Proposed Rulemaking seeks input on technical changes to the DTS rules that could give TV broadcasters more flexibility as they deploy the ATSC 3.0 standard.  We wrote here about some of the specific questions being asked in the NPRM.  Interested parties can submit comments in MB docket number 20-74.

On or before June 12, comments are due in the FCC’s annual regulatory fee proceeding.  The Commission is seeking comment on its proposed fees for all of its regulated entities including broadcasters.  It also asks for ideas for relief the FCC can extend to licensees that are suffering COVID-19-related financial hardship.  We wrote briefly here about the questions asked in the NPRM.  Reply comments are due on or before June 29.

Reply comments are due by June 15 in the FCC’s Significant Viewing proceeding.  As we wrote about here, the Notice of Proposed Rulemaking looks at updating the methodology for determining whether a station is “significantly viewed” in a community outside of its local market, and thus may be treated as a local station in that community for certain broadcast carriage purposes.  You can read the comments that were submitted in the first round of commenting and submit replies here.

Finally, on June 22, comments are due in the FCC’s video description proceeding (for those unfamiliar, video description refers to the insertion in TV programming of spoken narration of what is happening on the screen to aid blind or visually impaired persons).  This proceeding seeks comment on expanding the video description rules to require more stations to provide described programming.  Under the current rules, ABC, CBS, Fox, and NBC stations in the top 60 TV markets have to deliver 50 hours of video-described programming per quarter during prime time or children’s programming and an additional 37.5 hours of video-described programming per quarter between 6 a.m. and midnight.  The FCC is looking to expand these requirements to television markets 61 through 100 starting January 1, 2021, followed by an additional 10 TV markets each year for the next four years.  See our summary of the FCC’s proposals, here.  Comments can be submitted in MB docket number 11-43.

Stay tuned to the blog throughout the month for highlights of what else is happening in the world of broadcast law and regulation.  And, as always, be sure to talk to your own counsel and advisors about these issues and about any other dates that might be of importance to your operations.

 

 

This Week at the FCC: May 16, 2020 to May 22, 2020

Delivered... David Oxenford | Scene | Sun 24 May 2020 5:00 pm

Here are some of the FCC regulatory and legal actions of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released the agenda for its June 9 Open Meeting announcing that it will consider an item of interest to TV broadcasters planning to transition to ATSC 3.0, the next generation television transmission standard. The item deals with what the FCC is calling “Broadcast Internet services,” new IP based services compatible with other Internet devices that will allow TV broadcasters to monetize their ATSC 3.0 spectrum in new ways.  If adopted at the June meeting, the item, which we summarized in this article on the Broadcast Law Blog, would do two things:
    • It would allow a broadcaster to enter into spectrum lease agreements with other companies who offer Broadcast Internet services on the spectrum of several television stations in the same market without triggering the Commission’s attribution or multiple ownership rules.
    • It would seek comment on ideas for changing the FCC’s rules to further promote the deployment of Broadcast Internet services as part of ATSC 3.0. (draft of the Declaratory Ruling and Notice of Proposed Rulemaking)
  • The FCC last week announced that comments are due by June 22 in the review of its video description rules. Video description refers to an audio channel provided to accompany TV programming giving a narration of what is happening on the screen to aid blind or visually impaired persons.  Currently, ABC, CBS, Fox, and NBC stations in the top 60 markets must supply video described programming, but under the FCC’s proposed new rules, those requirements would extend to markets 61 through 100 by January 1, 2021, with ten markets being added in the following four years.  For more on the proposed rule changes, see our post at the Broadcast Law Blog.  (Public Notice)
  • After announcing the settlement terms earlier this month, the FCC released the details of its consent decree with Sinclair Broadcast Group. The consent decree dealt with (i) disclosure issues around Sinclair’s failed takeover of Tribune Media Company; (ii) the accuracy and completeness of certain Sinclair applications; (iii) complaints of Sinclair’s noncompliance with the good-faith rules for retransmission consent negotiations; and (iv) on-air sponsor identification lapses.  Though the Commission ultimately found that Sinclair structured the Tribune deal and made disclosures about its plans according to a good faith interpretation of the Commission’s rules, Sinclair nevertheless agreed to a $48 million penalty and four-year compliance plan to resolve all issues about these matters.  (Order)  See Broadcast Law Blog articles on the sponsorship identification issue when it was first raised  in a 2017 Notice of Apparent Liability (here) and a prior Sinclair issue with retransmission consent negotiations (here).
  • FCC staff last week clarified, albeit informally as part of a webcast (as part of the NAB Show Express, available on demand here), that stations in states where the primary election date has been pushed back due to public health concerns may be subject to longer lowest unit charge (LUC) periods. In states where the 45-day window opened and then the primary election date was pushed back, a new window begins 45 days before the new date of the primary election.  This could potentially result in a nearly 90-day LUC window tied to one election.  See our article here from the Broadcast Law Blog where we explained how the postponed primaries would extend LUC windows.
    • As part of that same webcast, FCC staff reminded stations running special COVID-related public service announcements that featuring a candidate standing for election this year can trigger equal opportunities and public file obligations. If the candidate appearance is on a paid spot, the equal opportunities rights of opposing candidates would be to buy an equal number of paid spots.  If the PSAs were run for free, then the candidate’s opponents are entitled, upon request, to the equivalent amount of free airtime.  Look for more on this issue in the Broadcast Law Blog this week.
  • The FCC acted last week in two TV market modification proceedings that are good illustrations of the necessary elements of a petition for a change in the television market to which a county or other geographical subdivision is assigned for determining which stations are local for cable of satellite television carriage purposes. In the first, it rejected a petition submitted by Montezuma County, Colorado to modify the county’s DMA, so the county’s DISH Network customers could receive Denver’s KUSA.  The Commission found that the county did not submit enough evidence to prove the need for market modification.  In the second, the Commission upheld its Media Bureau’s decision to modify the markets of three Georgia counties, so that DISH and DIRECTV customers in those counties could receive four Atlanta TV stations.  The Commission denied the appeal of the Greenville-Spartanburg-Asheville-Anderson DMA TV stations carefully analyzing the factors necessary to support the modification of the market and finding no reason to change the Bureau’s ruling.  (Montezuma Market Modification) (Atlanta Market Modification)
  • The FCC declined to review its decision to cancel the license of KCPM(TV), Fargo, ND. The Media Bureau found that the station failed to transmit a signal for twelve consecutive months, which resulted in an automatic expiration of the license.  This is a good reminder for station operators, and especially important for stations that may have gone silent during the current pandemic, to notify the FCC when a station goes silent and to re-commence operations within a year to avoid automatic cancellation  of the station’s license. (FCC Letter) See this article from the Broadcast Law Blog about the FCC requirements for notice when a station goes silent, the article here about actions that the FCC can take against stations that fail to operate regularly during a license renewal term, and the article here about the strict interpretation that the FCC gives to Section 312(g) of the Communications Act which provides for the automatic cancellation of a license if a station has been silent for a year unless the FCC finds that preserving the license is necessary for reasons of equity and fairness, a finding rarely made.
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