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

FCC April Meeting to Consider LPFM and Video Captioning – Looking at the LPFM Proposed Order (Including Interference Protections for TV Channel 6)

Delivered... David Oxenford | Scene | Tue 7 Apr 2020 4:06 pm

The FCC last week released its tentative agenda for its April 23 open meeting.  For broadcasters, that meeting will include consideration of the adoption of a Notice of Proposed Rulemaking (draft NPRM here) looking to broaden obligations for the audio description of television programming (referred to as the Video Description proceeding) – which we will write about in more detail later.  The agenda also includes a Report and Order modifying rules relating to Low Power FM stations, which also addresses the protection of TV channel 6 stations by FM stations (full-power or LPFM) operating in the portion of the FM band reserved for use by noncommercial stations.  The FCC’s draft order in this proceeding is here.  We initially wrote here about these FCC’s proposals when the Notice of Proposed Rulemaking in the proceeding was adopted last year. Today, we will look at how the FCC has tentatively decided to resolve some of the issues.

One of the most controversial issues was the proposal to allow LPFM stations to operate with a directional antenna.  While some directional operations had been approved by waiver in the past, there was some fear that allowing these antennas more broadly could create the potential for more interference to full-power stations.  As a directional antenna requires greater care in installation and maintenance to ensure that it works as designed, some feared that LPFM operators, usually community groups often without a broadcast background or substantial resources, would not be able to properly operate such facilities.  The FCC has tentatively decided to allow use of directional antenna by LPFM stations. However, it will require LPFM stations installing such antennas to conduct proof of performance measurements to assure that the antenna is operating as designed.  The cost of such antennas, the limited situations in which such antennas will be needed (principally when protecting translators and in border areas), and the additional cost of the proof of performance should, in the FCC’s opinion, help to limit their use to entities that can afford to maintain them properly.

Also, the FCC has tentatively decided to allow LPFM stations to operate FM boosters.  As with any other FM station, the booster cannot extend the signal of the primary LPFM station.  Boosters will be helpful principally in areas with irregular terrain that shields part of an LPFM’s service area from receiving the main station’s signal.  As these stations operate on the same channel as the LPFM itself, if not properly shielded, they can create interference to the primary station.  The FCC will allow any LPFM station to operate up to two boosters (or two translators) or one translator and one booster.

The definition of a minor change in the transmission facilities of an LPFM would be broadened if the FCC adopts the draft Order.  Instead of limiting a minor change to moves of 5.6 kilometers, the FCC is now doubling that limitation – allowing moves of up to 11.2 kilometers or to any location where the present and proposed 60 dBu contour of the LPFM station would overlap.  This change is important to LPFM advocates as it significantly increases the area in which a station can be moved without waiting for the infrequent filing windows for new stations and major changes.  Minor changes can be filed at any time.

The FCC declined to allow LPFMs to increase maximum power from 100 to 250 watts.  The FCC has previously rejected similar proposals and decided that there was no reason to change that decision now.  The FCC felt that there would be too many potential interference issues, including issues that have already been raised by some full-power stations about LPFMs in “foothills” areas – where their height above average terrain is low and can put a vast signal over a metropolitan area.  That can occur if the LPFM is in an area that is high relative to the metropolitan area in one direction, but the height of the proposed antenna above average terrain is lowered because there are mountains behind the transmitter site, thus lowering the average terrain height (which is computed on the average of the heights along 12 radials extending from the proposed transmitter site).  A higher antenna can dramatically increase coverage over the lower metropolitan area far beyond what the FCC predicted when it adopted the required mileage separation requirements that apply to LPFM stations.

The one issue in the order with ramifications beyond LPFMs is the decision not to decide to lift all restrictions on the location of FM stations – full-power or low power – operating in the reserved portion of the FM band from locating too close to Channel 6 TV (or LPTV) stations.  Prior to the digital television transition, as the FM band is adjacent to Channel 6 and the analog TV transmission system involved FM-like transmission of audio signals, there was the potential for interference between analog FM stations operating low on the FM band and analog TV stations on Channel 6.  While the conversion to digital television has removed many of these issues, some TV operators argued that the potential for interference to digital signals has not been fully analyzed.  They also pointed to the fact that certain LPTV stations may still be operating in analog until July 2021.  Thus, the FCC declined to abolish the interference protections entirely at this point in time.  However, the FCC will permit noncommercial operators in the reserved band (full power or LPFM) to seek a waiver of Channel 6 protection requirements if they can show that the proposed operations would not create interference to any nearby Channel 6 TV station.  That showing would be made using the FM translator criteria in Section 74.1205(c) which establishes an interfering contour for the FM station depending on the frequency on which it operates and a protected Grade B contour for the Channel 6 TV station.  Where those contours don’t overlap, an FM in the reserved band can be located.

The FCC proposes to make other changes regarding LPFM operations in this Order – so review the order to see how they may affect your operations and watch for action at the April 23 meeting to see if these draft rule changes are adopted.

A Webinar on FCC Issues for Broadcasters During the Current Crisis – And One More FCC Action on Sponsorship Identification on Paid PSAs

Delivered... David Oxenford | Scene | Mon 6 Apr 2020 3:24 pm

In the last three weeks, we have written about actions that the FCC has taken to help broadcasters through the current crisis caused by the COVID-19 virus.  The FCC appears to realize that the business of broadcasting in the current crisis is vastly different than it was just a month ago.  The FCC has provided relief on TV newsgathering and news sharing arrangements,  issued a determination that no charge spots unrelated to an existing advertising schedule do not affect lowest unit rates, granted liberal extensions to stations in Phase 9 of the TV repacking, deferred the filing of Quarterly Issues Programs Lists and the Annual Children’s Television Reports to July 10, and recognized that college-owned stations that are silent when students are no longer on campus do not need an STA to remain silent.  In a webinar I conducted for a number of state broadcast associations last Thursday, I summarized these developments and talked about other FCC rules and policies that broadcasters need to continue to observe during the current crisis.  That webinar is available on the website of the Indiana Broadcasters Association which hosted the session and can be viewed here.

On Friday, the FCC added to the actions that it has taken to assist broadcasters – issuing a Public Notice adopting a policy that, through June 30, commercial advertisers can donate ad time to government agencies or charities to run PSAs dealing with issues relating to COVID-19 without the station having to identify the companies donating the spots as sponsors of the PSA.  Even though the commercial sponsors paid for the time, they don’t need to associate themselves with the virus spots.  This was at the request of the Ad Council, which suggested that some advertisers had ad time that they no longer needed but were reluctant to donate it to COVID PSAs as they feared that, if they were identified as sponsors, their businesses would somehow be associated with the virus.  While it may be the unusual situation where an advertiser cancels its ad schedule and is willing to donate the advertising time for charitable uses without acknowledgement, in some cases it may give broadcasters one more way to try to convince advertisers not to totally cancel their schedules.  And it shows that the FCC is continuing to do its best to assist advertisers in this trying time.  Watch for more developments in the coming weeks.

FCC Announces Extensions of Deadlines to Upload Quarterly Issues Programs List and to File Annual Children’s Television Report

Delivered... David Oxenford | Scene | Sun 29 Mar 2020 5:24 pm

The FCC on  Friday released a Public Notice announcing that they are giving stations more time in which to upload their Quarterly Issues Programs lists to their online public file and to file their first Annual Children’s Television Report.  In our list of April regulatory dates for broadcasters last week, we had highlighted both of those filings.  Because of the disruption of the schedules of so many people, and the lack of access to many broadcast stations, the FCC appears to have decided that broadcasters should get more time to meet these regulatory obligations.

Quarterly Issues Programs lists are required to be uploaded to the online public inspection file of all full-power stations every quarter – and would normally be required to be in the public file by April 10.  While urging stations to upload those lists as soon as possible, the Commission has given stations until July 10 (when the next quarter’s lists will be due) to upload this quarter’s report.  So the two reports could be uploaded at the same time.

The first-ever Annual Children’s Television Report was to be filed with the FCC by March 30, reporting on educational and informational programming directed to children since the effective date of the new children’s television rules (see our blog article here about the revised rules).  The report would normally be due in January, but was delayed until March 30 to give broadcasters time to become familiar with the new forms (see our article here).  Now, those reports must be filed by July 10, 2020.

In the Public Notice, the FCC notes that other public file and FCC filing obligations remain in place.  For instance, the FCC has not extended the date for filing license renewal applications by radio stations in Tennessee, Kentucky and Indiana, due on April 1.  The Commission has expressed its willingness to be lenient in granting extensions of these filings and others upon request, but the deadlines remain unless specifically extended.  Similarly, other public file obligations (including the requirement to upload information about political ad sales and other candidate uses) remain in effect.

The two extensions granted on Friday are additional indications that the FCC recognizes the disruption caused by the COVID-19 pandemic.  These follow other actions we’ve written about, including relief for stations in Phase 9 of the television repacking, guidance on the impact of special flights of free advertising spots on lowest unit rates, and relief for newsgathering activities exempting temporary pooling arrangements from public file requirements under shared services agreement rules and liberalized waivers of attribution rules for TV news sharing agreements that exceed 15% of a station’s programming time.  The FCC is doing its best to assist broadcasters in coping with the sudden realities of today’s business in these most unusual times.


FCC Issues Guidance on No-Charge Advertising and Lowest Unit Charges, and News Sharing Agreements and LMA Rules During COVID-19 Crisis

Delivered... David Oxenford | Scene | Thu 26 Mar 2020 3:09 pm

Yesterday, the FCC released two public notices reflecting its attempts to assist broadcasters coping with the COVID-19 crisis.  The first public notice deals with the attempts of several broadcasters to support their advertisers while at the same time filling advertising inventory holes that have been created by the cancellation of other advertising schedules.  Broadcasters who we represented requested that they be permitted to schedule no-charge advertising for some of their clients where those spots were not part of negotiated advertising packages, without those spots affecting lowest unit charges in the political windows (likely to be opening in many states in the coming weeks).  The FCC agreed that free spots provided to merchants that are not part of an existing commercial contract or otherwise are not provided as a bonus tied to any contract would not affect lowest unit rates.  This is a limited ruling for broadcasters to use to build up good will with advertisers, and to provide them with assistance in this time of crisis.  It is a limited, nuanced ruling that you should discuss with your counsel – but it does provide broadcasters with the opportunity to be creative in helping support their advertisers in this most unusual time.

In addition to the lowest unit rate issue, the FCC issued another public notice about TV Local Marketing Agreements and similar agreements.  In TV (as in radio), if one broadcaster programs more than 15% of the programming time of another station in their market, the station to which they provide programming becomes “attributable” for multiple ownership purposes, i.e., it counts in determining compliance with the ownership rules.  In markets where one owner cannot own an additional station, news-sharing agreements where one station provides news to another are permissible, as long as those agreements do not constitute more than 15% of the programming time of the second station.  The notice released yesterday indicated that, if the brokering station wants to expand news coverage on the brokered station during this crisis time, the FCC will be liberal in granting waivers to permit the agreement to exceed 15% of the airtime of the brokered station – though prior FCC approval is required.  The waiver will be limited to the period of time that the COVID-19 outbreak remains a national emergency.  The public notice provides email addresses to which such requests should be sent.  These two decisions provide more evidence of the welcome flexibility and relief that the FCC is providing broadcasters in helping to deal with this current crisis.


FCC Activity in the Time of COVID-19 – Commission Meeting to be Held Virtually, Commissioner O’Rielly Nominated for New Term

Delivered... David Oxenford | Scene | Wed 25 Mar 2020 4:51 pm

FCC business marches on in this time of social distancing and mandatory lockdowns, though with modifications caused by the circumstances in which we find ourselves.  The FCC released a Public Notice yesterday announcing that its monthly open meeting scheduled for March 31 will be held by teleconference rather than live in the FCC meeting room.  It can be viewed on the FCC’s website and on its YouTube channel.  Most of the action items will have already been voted on by the Commissioners through the “circulation” process.  This means that the votes will be taken on the written orders without any formal presentations by FCC staff members explaining the actions, and without orally-delivered statements by any of the Commissioners – though the Commissioners can certainly make their feelings known in written statements on the items on which they will have voted.  The meeting itself is likely to consist of Commission announcements and statements by the Commissioners on the current state of affairs.

Issues that were to be considered at the meeting of interest to broadcasters include the adoption of a Notice of Proposed Rulemaking on Distributed Transmission System technology for TV stations – making it easier for TV stations to fill in their market coverage with multiple transmitters spread throughout the market, rather than a single big transmitter in the center of the market – a technology made easier as stations transition to the new ATSC 3.0 transmission system (see the draft NPRM here).  FCC Notices of Proposed Rulemaking on significantly viewed TV stations (draft NPRM here) and cable carriage disputes (draft Further Notice of Proposed Rulemaking here) are also on the agenda.

Speaking of Commission meetings, it appears that Commissioner O’Rielly will continue to be a fixture of these meetings in the future.  Last week, it was announced that the President had nominated the Commissioner to serve another term on the FCC.  Of course, that nomination needs to be approved by the Senate when they have a moment’s break from considering coronavirus relief packages.  Commissioner O’Rielly has taken the lead on several broadcast initiatives, notably including crackdowns on pirate radio (see our articles here and here) and on the revision of the children’s television rules (see our articles here and here).  Look for this familiar face to remain at the FCC for the foreseeable future.

Watch for more from the FCC on these matters in coming days as it continues to function in these trying times.

April Regulatory Dates for Broadcasters: The FCC May Be Teleworking, But Regulation Goes On

Delivered... David Oxenford | Scene | Tue 24 Mar 2020 4:20 pm

Life has been upended for most Americans due to the spread of the coronavirus and that tumult is, of course, reaching broadcasters as it reaches others throughout the country.  As we wrote here, like many agencies and businesses, as part of its COVID-19 response, the FCC has moved most of its workforce to teleworking in an attempt to keep FCC staff and their families safe.  With most FCC forms and filings being submitted electronically, and remote work already being routine for many FCC employees, there should be minimal disruption to broadcasters’ routine daily dealings with the Commission.  Broadcasters should continue to comply with all FCC rules, including meeting filing deadlines, though it does appear that the FCC is willing to be flexible with some deadlines, especially when a broadcaster can point to virus-related reasons that the deadline cannot be met.  Check with your attorney on specific deadlines.  And check our article from yesterday highlighting some issues to consider while preparing for whatever comes next.

While there is much disruption to normal routines, the routines of regulatory life largely carry on.  For instance, before moving on to April deadlines, we should remind TV broadcasters that, if they have not already done so, their first Annual Children’s Television Report is due to be submitted to the Commission by March 30.  See our articles here and here on that new report.

Other routine FCC filings appear to be continuing without interruption, and the operation of the online public file remains generally unaffected.  That means that all full-power stations need to upload to their online public inspection file, by April 10, their Quarterly Issues Programs lists.  As we have written many times (see for example, our articles here and here), these lists are the only official Commission documents that show how a station has met its public interest obligations to its community.  Incomplete or missing quarterly lists have led to many fines in recent years.  The lists should identify the most important issues facing the station’s community and the programming broadcast by the station to address those issues.  With COVID-19 on everyone’s mind, stations should have at least one issue that they know was important to their community that can be addressed in these Quarterly Issue Programs lists.  Make sure that they are uploaded by April 10.

AM, FM, LPFM, and FM translator stations licensed to communities in Indiana, Kentucky, and Tennessee must file their license renewal application by April 1, 2020.  Beginning on April 1, 2020, stations that filed their renewals by that date must begin airing a series of six post-filing announcements (one announcement each on April 1April 16May 1May 16June 1, and June 16).

Full-power AM, FM, LPFM, and FM translator stations in Michigan and Ohio and full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia (the first TV window in the current license renewal cycle) are due to file license renewal applications by June 1.  Before that, those stations must air a series of announcements alerting listeners to their upcoming license renewal filing.  The first of four of these pre-filing announcements begins on April 1, with further required pre-filing announcements to air on April 16May 1, and May 16.  For more on pre-filing announcements, including the timing of the announcements and sample text to use, visit the FCC’s radio license renewal page here and the TV license renewal page here.

April 1 also brings the obligation for full-power radio and television stations in DelawareIndianaKentuckyPennsylvaniaTennessee, and Texas with five or more full-time employees in their station employment unit to place in their online public file and on their station website their Annual EEO Public Inspection File Report documenting their hiring from April 1, 2019 to March 31, 2020.

We have written several times before (see, for example, here, here, and here) about efforts, as part of the FCC’s media modernization initiative, to allow AM broadcasters to transition voluntarily to all-digital transmission.  Comments in this proceeding (MB Docket No. 19-311) were due March 9, and about two dozen comments were filed by interested parties.  Should you wish to file reply comments, they are due by April 6.

An auction for new FM channels is supposed to begin on April 28.  See our articles here and here on that auction.  While upfront payments in that auction were made last week, we will see if the FCC actually proceeds with the auction as scheduled in light of the current situation.  Watch for more information about the auction in coming days.

The FCC in late February released a Public Notice seeking public comment on the State of Competition in the Communications marketplace.  We wrote about the Public Notice here.  The FCC will use public comments to craft the report that it must submit to Congress every even-numbered year.  That report is then used to inform the FCC’s and Congress’s views on the communications marketplace when writing legislation and rules and regulations, including rules on broadcast ownership (see our article here).  Comments on the report are due April 13, with reply comments due by May 13.

The National Association of Broadcasters, in coordination with various other broadcast groups, and the Solicitor General of the United States, on behalf of the FCC, each filed applications in March with the U.S. Supreme Court requesting more time in which to ask the Supreme Court to review the judgment of the U.S. Court of Appeals for the Third Circuit in Prometheus Radio Project v. FCC.  Readers of this blog recognize this case as the one in which the Third Circuit’s decision forced the FCC to abandon its 2017 media ownership reforms and return to its prior rules.  We wrote about the different stages of this case here, here, and here.  The time extension for both parties was granted in mid-March, so NAB and the solicitor general have until April 18, 2020 to decide on whether to seek this review by the Supreme Court.  As of the publishing of this post, the Supreme Court building is closed to the public, but official business is still being conducted.

Many of us will miss one routine April event as the NAB announced that April’s NAB Show in Las Vegas is canceled.  The NAB Show has been held annually since 1923 (with one postponement in 1945 due to World War II).  In an effort to provide an avenue for exhibitors to showcase their products and services and connect virtually with industry members, the NAB will launch NAB Show Express in April.  This online-only experience will include educational content that NAB Show attendees have come to expect from the in-person gathering.  Additionally, NAB Show New York, which takes place in the fall, will be expanded.  NAB’s press release says more details will be announced in the near future.

These are just a few of the upcoming important dates broadcasters should be aware of.  Be sure to watch this blog and other industry sources and consult with your own counsel on deadlines  that may affect your operations.


Essential Planning for Broadcasters Facing Coronavirus Restrictions on Access to Facilities and News Events

Delivered... David Oxenford | Scene | Mon 23 Mar 2020 4:59 pm

With more and more states, municipalities, and other authorities issuing shelter-in-place warnings or other restrictions on travel, and with more station facilities likely to be closed temporarily because of exposure to the COVID-19 virus, broadcasters need to be planning on how to continue to operate their facilities in the new world we are all facing.  I participated in an online conference last week with over 100 college broadcasters who are perhaps on the front lines of this problem, as so many operate from campus buildings that were closed early after (and in some cases before) the declaration of the pandemic.  We’ve had calls from many other broadcasters about the issues that they are facing in their operations, as communities take actions to enforce the personal distancing urged by medical organizations.  Many commercial broadcasters may be seeing in the upcoming days greater restrictions on unnecessary travel, perhaps impacting access to their facilities and studios.  Planning and coordination among broadcasters – and with broadcasters and local officials – is already underway in many cities and with many state broadcast associations.  But it also needs to be considered by individual broadcasters everywhere.

One of the most basic questions is one of access.  Questions are arising every day as to whether local officials can block access to broadcast stations or to the coverage of news events during the emergency.  Will broadcasters be shut down like so many other businesses?  There has been much written in the trade press and elsewhere about broadcasters being “essential services” that should be allowed access to their facilities and to news events during any crisis.  There is in fact statutory language in the US code to that effect (see, for instance, this section that tells federal officials not to limit access or facilities to radio and TV broadcasters in an emergency).  But that statute restricts the actions of federal officials to block broadcaster access and is silent as to actions by state and local officials.  Even if state laws have similar provisions, those provisions are only helpful if someone in a position of authority has the time and inclination to look at the legal niceties that apply to a given situation.  Coordination with state and local officials is paramount in a situation like the current one that affects everyone, everywhere.  Stations should already be in touch with state and local authorities to see how they can help in the current crisis.  At the same time, they should also be discussing and planning with these officials to ensure access to studios and transmitter sites, and exemptions from travel restrictions for news coverage, so that they can continue to provide their important services to the public.

Stations should also be planning for the worst-case scenario where access to their studios becomes problematic because of infections among their staffs.  We’ve already seen disruptions to major broadcast networks as the infections spread.  Smaller stations should be making plans for remote operations.  These days, with audio and video available anywhere there is an Internet connection, getting programming together may be the least of a station’s issues.  Being able to remotely control the station’s technical facilities is possible for many stations who can already monitor and control their stations remotely to operate without on-site staffing during late-night or weekend hours.  Stations can also operate with an “unattended operation” where automatic facilities can cease station operations within 3 hours if the station begins to operate outside its licensed parameters and cannot be repaired (or three minutes if notified of interference to broadcast or other non-broadcast communications facilities).  Also, remember to make provisions for EAS monitoring and activation.  And, of course, monitor tower lights if approved automatic monitoring systems are not in place.

We’ve had numerous questions about whether a station can lock its studio doors to the public – and last week we wrote this article reminding broadcasters that a staffed main studio is no longer an FCC requirement, as the Commission two years ago essentially eliminated its main studio and studio staffing requirements.  So prohibiting public access to the studio is not an issue.  The FCC has also already been relaxing some other requirements – working with TV stations permitting pooling arrangements to cover virus-related events without the need for public file documentation (see our article here) and postponing deadlines for TV stations in Phase 9 of the post-incentive auction repacking (see our article here).

No matter how much planning is done, there may well be situations where stations have to be taken silent during this crisis.  Some college stations have already gone off the air as students are barred from campus locations. The FCC has agreed that college stations do not need to meet their minimum operating schedules when on-campus classes are not meeting (see our post here).  Commercial stations that go off the air need to notify the FCC within 10 days of the fact that they are off the air and ask for Special Temporary Authority to remain silent if they stay off the air for 30 days or more.  Don’t forget that any station that remains off the air for one year or more will have its license automatically cancelled unless the FCC makes an affirmative determination that the public interest supports its continued operation (see our articles here and here).  In addition, long periods of silence interrupted only by brief periods of operation may have an adverse effect on a station’s license renewal (see our articles here and here). The FCC has not yet indicated that the virus will result in any exceptions to these rules, so keep them in mind when making operational decisions.

At this point, other regulatory deadlines continue, particularly those that involve uploading material to the public inspection file.  Tomorrow, we plan to post our regular update on next month’s regulatory deadlines, which will include Quarterly Issues Programs lists for stations nationwide, due in the public file by April 10.  While the FCC building is shut down for normal business, the FCC itself is open and continuing to function with its employees teleworking.  I have had several calls and messages from various FCC employees in the last week, so I know that they are continuing to do their jobs while coping with the same disruption to normal routines that the rest of us face.  So watch these and other regulatory deadlines – and consult your own station attorney about issues for unmanned operations that we may not have considered here.

FCC Issues Guidance on TV News Sharing Agreements During the Pandemic

Delivered... David Oxenford | Scene | Fri 20 Mar 2020 5:25 pm

The FCC yesterday issued a Public Notice addressing news sharing or “pooling” agreements between television stations that are coming together as a result of the COVID-19 pandemic.  Stations may be faced with fewer crews to cover local events as infections and self-quarantines take place, and because of the general obligation to maintain physical distancing from other people, no one wants a crowd of camera crews and reporters at every news event.  The FCC’s notice yesterday states that such agreements entered into during the crisis for news sharing do not need to be in writing and do not need to be in the public file – an exemption to the normal obligation to reduce any sharing agreement between TV stations to writing and add it to the online public file.  That obligation exempts “on-the-fly” arrangements during breaking news events and those precipitated by unforeseen or rapidly developing events.  The FCC concluded that pandemic-related agreements fit into that category.

Ordinarily, the obligation to include sharing agreements between TV stations in the public file is a very broad one.  We wrote about that obligation here.  The rule grew out of concerns by the FCC that stations could be using sharing agreements to skirt the FCC’s ownership rule limitations and wanted such agreements to be public so that it, and the public, could review their provisions to determine if any FCC action was necessary.

Obviously, that concern has nothing to do with the current agreements that are being set up to facilitate news coverage during the pandemic.  But stations need to note that the exemption described in the Public Notice yesterday was limited to temporary shared news-gathering efforts related to COVID-19 news coverage.  If agreements are meant to last beyond the current emergency, or are otherwise unrelated to the current pandemic circumstances, they should be in writing and included in the public file.  As the dividing line may not be clear, talk to your own counsel for guidance as to when these news-sharing agreements need to be evidenced by a written document and included in your public file.

We also note that there may be other considerations not involving the FCC that can arise from these agreements.  For instance, there may be copyright implications if stations agree to share content that they did not create.  Similarly, there may be questions about how long shared content can be used and re-used.  For instance, there may be questions about whether it can be used in a retrospective on the crisis once it is over.  Thus, stations may well want to put these agreements into writing to make sure that everyone understands the extent of the permissible sharing.  Again, talk to your own attorneys about these issues.

FCC Offers Extensions of Time for TV Stations in Phase 9 of Repacking Because of Pandemic

Delivered... David Oxenford | Scene | Wed 18 Mar 2020 2:48 pm

The repacking of the TV band following the incentive auction is reaching its end – but perhaps not as quickly as anticipated.  Yesterday, the FCC issued “Guidance” to stations in Phase 9 of the repacking indicating that they can request extensions so that their deadline for implementing any repacking obligation would be the same as that for stations in Phase 10 – the final stage of the repacking.  Phase 9 of the transition began on March 14, 2020 and is scheduled to end on May 1, 2020. Because of the inherent delays in deliveries and construction because of the COVID-19 pandemic, and because station staff members who may be restricting themselves to their homes may not be available to help implement changes, any station scheduled to complete its transition in phase 9 that believes it may be unable to meet the May 1, 2020 deadline will be granted a waiver of the phase 9 deadline and reassignment to phase 10, which begins on May 2, 2020, and ends on July 3, 2020.

Any station needing such an extension must file that request as an STA in the FCC’s LMS database and send a copy to two FCC staff members who will be processing such requests (their email addresses are in the Guidance document).  Stations able to complete the transition in the original time frame can do so, but they must not cause issues for any station requesting a delay until Phase 10.  We’ll watch to see if there will be further disruptions to the process as the coronavirus issues play out over the next few months.

FCC’s 2018 Abolition of Main Studio Rules Means Broadcast Studios Do Not Need to Be Open to the Public During Coronavirus Outbreak

Delivered... David Oxenford | Scene | Tue 17 Mar 2020 5:11 pm

We’ve heard that some broadcasters are worried about staffing their main studios and allowing the public to visit the studios in this period where the government and health authorities have called for social distancing.  With the elimination of the main studio and studio staffing rules back in 2018 (see our articles here and here), this should not be an issue.  Broadcast stations are no longer required to maintain any physical studio facilities in their service areas.  If they do decide to have a local studio, they are no longer required to maintain any level of studio staffing.  So, just as long as the station can monitor their technical operations, originate and pass through EAS, and respond to anyone who calls the local telephone number maintained by the station, the station need not be open to the public during the current health crisis.  Obviously, stations must maintain the public file which is now online – as the public can view it from anywhere.  No physical access to the public file is necessary (except in limited instances when the FCC online platform is down, when the political file must still be made available).

We covered some considerations about other issues that may be of concern if a broadcaster does not maintain local studios in our 2018 article here.  There may be other staffing requirements associated with special situations so always consult your counsel for more details.  So pay attention to the little details, but do not worry if you plan to close your front door to the public during this time of social distancing as the FCC no longer requires that the door be opened during normal business hours as had been required prior to 2018.

Must-Carry and Retransmission Consent Notices Going Electronic – TV and MVPDs Required to Update Public File Contact Information by July 31

Delivered... David Oxenford | Scene | Fri 6 Mar 2020 6:12 pm

Notifications about cable carriage have now gone electronic – and contact people at stations and MVPDs for notices about carriage issues are now to be provided in the FCC-hosted online public inspection file and in the Cable Operations and Licensing System (COALS).  According to an FCC Public Notice released last week, in those databases there is now a Carriage Election Notification Point of Contact – a place in online public file where full power TV stations and DBS providers are required to upload both an email address and phone number for purposes of carriage-related inquiries.  Cable operators are required to upload the same information to COALS.   This contact information must be uploaded no later than July 31, 2020 and must be kept up-to-date thereafter.  In fact, when logging into the online public file system to upload information to the public file, TV licensees are now seeing a reminder to provide this information.  These contacts 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 an FCC Report and Order adopted last year, stations upload their elections to their public file and notify MVPDs of their must carry/retransmission consent election only if that election changed from the prior cycle (see our article here).

Thus far, the Commission has not created any online public file requirement for qualified low-power (certain rural LPTV stations that qualify for must-carry on local cable systems) and non-commercial educational translator stations. Instead, carriage-related inquiries will be directed to the “contact e-mail” address and phone number these stations should have already provided under the “facilities tab” in the Commission’s Licensing and Management System (LMS) database.  Last week, the FCC issued a Report and Order clarifying those obligations for qualified LPTV stations and non-commercial educational translators requiring that they provide current contact information in LMS by July 31, 2020, update that information when it changes, and use email to make their carriage elections by the October 1, 2020 election deadline date.

Be aware of these new requirements, upload the required information by the July 31 deadline, and use electronic notices for the elections due by October 1.

FCC Adopts Notice of Proposed Rulemaking Looking to Allow Higher Power and Greater Height for Unlicensed White Space Devices Operating in the TV Bands

Delivered... David Oxenford | Scene | Tue 3 Mar 2020 5:47 pm

A Notice of Proposed Rulemaking proposing greater coverage areas for unlicensed “white space” devices operating in the TV bands was adopted at the FCC’s open meeting last week and released earlier this week.   We have written about these white space devices before (see, for instance, our articles here and here).  These devices operate at relatively low powers in unused portions of the TV bands.  They are designed to offer wireless services, including broadband.  Advocates of these operations see them as an inexpensive way to offer broadband services to underserved areas, including parts of rural America.

The concern of course with these devices is that if their use is not managed correctly, their operations could interfere with existing TV operators (including LPTVs, TV translators, broadcast auxiliary services, and wireless microphones).  Thus far, operations have been limited to power levels of 10 watts or less from antenna heights that did not exceed 250 meters height above average terrain.  The advocates for these devices, including Microsoft, have argued that these low power levels make it difficult to serve rural areas given their small coverage area.  NAB, on behalf of broadcasters, and advocates for wireless microphone operators, have urged caution in any increase in the coverage of these operations if they could possibly cause interference to existing users of the spectrum.  After significant discussion and compromise between the NAB and Microsoft, the NPRM adopted last week tries to strike a balance between these positions.

Among the proposals advanced in the rulemaking are the following:

  • Increasing the maximum permissible power for fixed white space devices operating in “less congested” (e.g., rural) areas in the TV bands from 10 watts to 16 watts.
  • Increasing the maximum permissible antenna height above average terrain (HAAT) for fixed white space devices from 250 meters to 500 meters.
  • Establishing minimum required separation distances from protected services in the TV bands for white space devices operating with higher power and HAAT.
  • Setting up a notification process for white space operators to let TV stations know when they plan to operate using the higher powers and heights set out in the rulemaking.
  • Allowing higher power mobile operations within defined “geo-fenced” areas.
  • Establishing rules for narrowband white space devices used in Internet of Things applications.
  • Whether to allow white space devices to operate with higher power levels than currently allowed when located inside an adjacent TV channel’s service contour.


On each of these topics, the FCC asks numerous questions to determine the service benefits that would be obtained from a change in the rules and the potential for interference to TV stations and other existing users in the TV band.  The FCC poses numerous ideas on how to mitigate interference – including the required separations from other spectrum users necessary to insure interference-free operations.  Comments on these many questions will be due 30 days after this notice is published in the Federal Register.  Reply comments are due 60 days after that publication.

FCC Seeks Comments on the State of the Communications Marketplace – Including for Audio and Video

Delivered... David Oxenford | Scene | Fri 28 Feb 2020 5:51 pm

The FCC yesterday released a Public Notice calling for public comment on the state of the communications marketplace so that it can prepare a report to Congress – a report that is required every even-numbered year.  The Notice calls for comments on the state of competition in various sectors of the communications industry – including for audio and video.  The inclusion of audio in this report is relatively new – being included for the first time two years ago (see our article here).  Comments in this proceeding are due on April 13, with replies due May 13.

The Audio Competition Report prepared two years ago was very important in informing the FCC as to the state of competition in that segment of the market.  Comments filed with the Commission on the report were incorporated in the record of the FCC’s Quadrennial Review Notice of Proposed Rulemaking which entertained the possibility of changes in the ownership rules for broadcast radio in light of the substantial competition that comes from digital audio sources (see our article here on the Quadrennial Review NPRM).  Whether this year’s report will be as crucial is unknown, as the Third Circuit Court of Appeals decision on the FCC’s 2017 ownership rule changes have, for now, put all broadcast ownership changes on hold while the FCC (and the Department of Justice) decide whether to appeal that case to the Supreme Court or to attempt to answer the Third Circuit’s concerns that the FCC had not sufficiently addressed the impact of changes in its ownership rules on minority ownership (see our articles here and here).  While these decisions are being made, it appears that all ownership changes are on hold.

Nevertheless, comments in this proceeding will provide the FCC and Congress with an updated view of where the marketplace in audio and video stand so that, when either decides to look at changes in regulations that affect radio or TV, they will have current information on the state of competition.  Thus, even though there may not be imminent changes in the ownership rules that result from the report that the FCC will generate from the responses to this Notice, comments are still important.

In video, the FCC is looking for information about the competition between broadcast television, MVPDs (cable and satellite TV) and online video providers – including comments on the difference in the regulatory environment that may affect competition between these players.  Specific issues on which the FCC seeks comments include:

  • Competition in the provision of video programming services
  • Vertical integration
  • Technological developments
  • Recent entry and exit in the marketplace
  • Trends (e.g., declining MVPD subscriptions, increasing virtual MVPD (vMVPD) prices, fragmentation of Video on Demand (VOD) content, household subscription to multiple video services)
  • Service features (e.g., live vs VOD content, pricing, commercials, device compatibility, leased equipment) that lead some video programming services to be viewed as substitutes for one another and others as supplements
  • Operating and financial statistics including subscriptions, subscription revenue, advertising revenue, retransmission consent fee revenue, and any other sources of revenue
  • Data and comment that will help the Commission analyze how the ongoing evolution in the video programming market affects competition in the related market for set-top boxes and devices, including how it affects the extent to which consumer choice for devices to access MVPD content remains a relevant aspect of the competitive environment

Similar information is requested about the audio marketplace.  The FCC is looking at competition between over-the-air radio, satellite radio and online audio services.  It asks about regulatory constraints on the competition between players in this marketplace.  Specific areas on which the FCC seeks information include:

  • Industry participants in the provision of audio programming services
  • Trends in service offerings, pricing, and consumer behavior
  • The extent of competition among audio marketplace participants, including intramodal competition (i.e., competition among providers of the same type, such as terrestrial radio broadcast stations) and intermodal competition (i.e., competition among providers of different types, such as terrestrial radio broadcast stations and satellite radio providers)
  • Ratings, subscribership, and revenue information, for the marketplace as a whole and for individual industry participants
  • Capital investment, innovation, and the deployment of advanced technology
  • Requirements for entry into the marketplace
  • Recent entry into and exit from the marketplace

As we noted above, comments are due April 13 in this proceeding that will help the FCC establish the competitive framework that will inform its regulatory actions, as well as those of Congress, in the coming years. The FCC needs to know about the fundamental changes that have taken place in the marketplace, so that its regulation reflects today’s competitive environment, not that of some point in the distant past.

March Regulatory Dates for Broadcasters—Children’s Television Reports, Lowest Unit Rate Windows, EEO Audit Responses, AM Revitalization Comments, License Renewal Preparation and More

Delivered... David Oxenford | Scene | Mon 24 Feb 2020 6:06 pm

As the calendar flips to March, many of us have put our trust in Punxsutawney Phil’s weather forecasting expertise that an early spring is coming.  A surer place to put our trust, however, is in the guarantee that there are always some regulatory dates about which broadcasters should be aware.  While March is a month without with many of the regularly scheduled deadlines for renewals, EEO public file reports or Quarterly Issues Programs lists, there are still plenty of regulatory dates about which you should take notice.

The closest we come in March to a broadly applicable FCC filing deadline is the requirement that, by March 30, 2020 television broadcasters must complete and submit through LMS the FCC’s new Form 2100, Schedule H documenting their compliance with the requirements under the children’s television (KidVid) rules to broadcast educational and informational programming directed to children.  This report will document that programming from September 16, 2019 (when the new KidVid rules went into effect) to December 31, 2019.  The March 30 date is a transitional date as the FCC moves away from the old quarterly children’s television reports to ones that will be filed annually – in future years by the end of January.  This year, however, the FCC took time to develop the form for the new annual report and to explain how it should be used, thus the extra time to file.  Once filed, TV broadcasters won’t file another children’s television report until early 2021 reporting on compliance for all of 2020.  For more on the transition to the new KidVid obligations, read our articles here, here, and here.  To learn how to work with the new form, watch the FCC’s archived instructional webinar here.

Other dates affecting many broadcasters are the political windows during which broadcasters must offer lowest unit rate to candidates in upcoming primary elections.  In the 45 days before a primary and the 60 days before a general election, stations (and cable systems) must offer candidates running in those elections the lowest unit rate that they charge any commercial advertiser for a comparable advertisement.  Many of the windows are already open, including those for stations which are among primaries happening on Super Tuesday (March 3).  For later primaries, the window opens on March 14 for the primaries in Connecticut, Delaware, Maryland, New York, Pennsylvania, and Rhode Island.  Later windows open on March 18 for Guam (D) and Kansas (D), March 21 (Indiana), and March 28 (Nebraska).  See our article here for thoughts on some of the issues that broadcasters should be considering for primary season survival.  Learn more about navigating the range of political broadcasting issues by reading our Political Broadcasting Guide and for more guidance on how to compute lowest unit rates, see our articles here, here, and here (this last article dealing with the issues of package plans and how best to determine the rates applicable to spots in such plans).

In early February, about 320 broadcast stations received an unwelcome letter in their mailbox notifying them that they had been randomly selected by the FCC’s Enforcement Bureau to participate in an audit of their compliance with the FCC’s equal employment opportunity (EEO) rules.  Each year, approximately 5% of broadcast stations are selected for auditing and, if you are one of the unlucky 320 who recently received an audit notice, you will want to begin preparing immediately to respond by uploading to the station’s online public file the responsive documents by March 23, 2020.  To see the stations that made the audit list and to read the letter sent to them detailing the matters that the must be covered in the response, visit the FCC’s website here. For more on this first round of 2020 EEO audits, see our article here.

The FCC in March takes another step in its plan to revitalize AM radio.  As we noted in earlier posts here and here, the FCC adopted a Notice of Proposed Rulemaking (NPRM) that proposes allowing AM radio broadcasters to voluntarily transition to an all-digital signal.  Currently, most AM operations are analog, though some operate in a hybrid analog-digital mode.  Among the questions asked in the NPRM are whether all-digital operations would provide a better listening experience with less interference, whether AM broadcasters could use the digital signal to transmit artist and song data to listeners, and how AM broadcasters should be required to notify the FCC if they begin digital operations or revert to analog operations. The NPRM asks many technical questions, so you may want to put on your broadcast engineer hat when writing your comments.  The FCC is accepting comments on its proposal through March 9Reply comments are due by April 6.

The National Association of Broadcasters (NAB) together with Xperi Corporation and National Public Radio (NPR) petitioned the FCC in December 2019 to revive a currently-dormant issue dealing with HD radio technology.  The petition asks the FCC to begin a rulemaking that would amend the Commission’s rules to allow FM stations to use asymmetric sideband power levels without special authorization which could enable stations to maximize their digital coverage area and match their analog coverage to the greatest extent possible, within existing digital power limits while minimizing interference to adjacent channel stations.  If you are interested in supporting or opposing a potential rulemaking, you have until March 6 to submit comments.  You can read the petition for rulemaking here.

The repacking of the broadcast TV band, made necessary by the FCC’s broadcast incentive auction, continues across the country.  Stations assigned to Phase 8 must complete the transition to their new channels by March 13, 2020.  One day later, on March 14, 2020, stations assigned to Phase 9 of the repack may begin testing and operating on their new channels.

Looking ahead to early April, all AM, FM, LPFM, and FM translator stations licensed to Indiana, Kentucky, and Tennessee must file their license renewal application by April 1, 2020. Beginning on April 1, 2020, stations filing renewals by that date must begin airing a series of six post-filing announcements (one announcement each on April 1April 16May 1May 16June 1, and June 16).

Full-power AM, FM, LPFM, and FM translator stations in Michigan and Ohio and full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia (the first TV window in the current license renewal cycle) are due to file license renewal applications by June 1, but, before that, those stations must air a series of announcements alerting listeners to their upcoming license renewal filing.  The first of four of these pre-filing announcements begin on April 1, with further required pre-filing announcements to air on April 16May 1, and May 16.  For more on pre-filing announcements, including the timing of the announcements and sample text to use, visit the FCC’s radio license renewal page here and the TV license renewal page here.

April 1 also brings the obligation for full-power radio and television stations in DelawareIndianaKentuckyPennsylvaniaTennessee, and Texas with five or more full-time employees in their station employment unit to place in their online public file and on their station website their Annual EEO Public Inspection File Report documenting their hiring from April 1, 2019 to March 31, 2020.

Be sure to bookmark our blog to read updates throughout the month or, better yet, sign-up in the box on the right side of your screen (or at the bottom of your screen if you’re visiting on a mobile device) to receive email alerts every time we publish a new article.  And check with your own counsel for details about these obligations and for other dates we have not highlighted here, including any dates that may be uniquely applicable to your own station.

FCC Adopts Strict Processing Policies on Requests for Modification of TV Markets for Cable and Satellite Carriage

Delivered... David Oxenford | Scene | Fri 21 Feb 2020 5:45 pm

In a decision released this week, the FCC reiterated a policy of being very tough on petitions to add communities to television markets to change the stations that are considered to be part of the market for cable and satellite carriage purposes.  This strict compliance policy was set out in another case decided last year.  The Commission will dismiss a request for a market modification if all the evidentiary requirements set out by the FCC are not met in the initial filing.  While these requests can be refiled at a later date with the missing information, such a dismissal will delay the processing of any request.

Cable market modifications of the type addressed in this filing have become more common in recent years, at least partially because of a change in the Communications Act enacted by Congress in 2014 (see our article here). In that change, Congress said that , among the statutory factors that must be considered in defining television markets, the FCC must examine whether the communities that are proposed to be added would promote access to in-state television stations.  Prior to the adoption of the revised statute, Congress was concerned that there were too many communities that were included in Nielsen markets where the programming originated from stations located in another state, at one point asking that the FCC study the issue (see our article here).  In these instances, some in Congress believed that residents were deprived of public service and news information as to events and issues in their own state.

Congress set out the following factors to be considered in any analysis of a market modification:

  • whether the station, or other stations located in the same area—(a) have been historically carried on the cable system or systems within such community; and (b) have been historically carried on the satellite carrier or carriers serving such community;
  • whether the television station provides coverage or other local service to such community;
  • whether modifying the local market of the television station would promote consumers’ access to television broadcast station signals that originate in their State of residence;
  • whether any other television station that is eligible to be carried by a satellite carrier in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and
  • evidence of viewing patterns in households that subscribe and do not subscribe to the services offered by multichannel video programming distributors within the areas served by such multichannel video programming distributors in such community.

To address these factors, the FCC requires very specific evidence, set out in seven categories.  Unless evidence is provided as to each of the following matters (or a waiver is sought with a showing as to why it is not possible to provide such evidence), under these recent precedents, the request will be denied.  The evidentiary showings required are:

  • A map or maps illustrating the relevant community locations and geographic features, station transmitter sites, cable system headend or satellite carrier local receive facility locations, terrain features that would affect station reception, mileage between the community and the television station transmitter site, transportation routes and any other evidence contributing to the scope of the market;
  • Noise-limited service contour maps delineating the station’s technical service area and showing the location of the cable system headends or satellite carrier local receive facilities and communities in relation to the service areas;
  • Available data on shopping and labor patterns in the local market;
  • Television station programming information derived from station logs or the local edition of the television guide;
  • Cable system or satellite carrier channel line-up cards or other exhibits establishing historic carriage, such as television guide listings;
  • Published audience data for the relevant station showing its average all day audience (i.e., the reported audience averaged over Sunday-Saturday, 7 a.m.-1 a.m., or an equivalent time period) for both multichannel video programming distributor (MVPD) and non-MVPD households or other specific audience information, such as station advertising and sales data or viewer contribution records; and
  • If applicable, a statement that the station is licensed to a community within the same state as the relevant community.

While the request in this case was filed by a county government, requests can also come from stations that want to be carried on MVPDs in communities that are now considered to be outside of their markets, or by cable or satellite providers who want a station to be considered local so that they need not pay distant-signal copyright fees.  No matter who files the market modification request, these cases make clear that the request must be very detailed for the Commission to process it.

Some of the requested information – such as information about non-MVPD household viewing patterns – can be difficult to obtain, especially in counties where there is little over-the-air viewing.  Other information may require an archival dig into historical records to find the history of TV carriage in a market.  These cases make clear that the effort must be made, or the request will be denied.

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