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


Court Overturns Requirement that Prescription Drug Advertisers Include Price Information in TV Ads

Delivered... David Oxenford | Scene | Tue 16 Jul 2019 10:08 pm

Last week, a federal District Court ruled that the US Department of Health and Human Services did not have the authority to require that drug manufacturers include pricing information on their television commercialsWe wrote about that requirement, here – a requirement that was supposed to go into effect this summer.  However, the District Court judge found that there was no statutory authority on which HHS could rely for the adoption of this rule.  HHS argued that its authority to adopt rules to administer the Social Security program was sufficient to adopt the advertising requirement as that requirement would lead to lower prices for drugs purchased by those using Social Security.  But, the Court found, Congress did not include any specific language giving HHS authority to regulate advertising on prescription drugs, nor did the Court believe that the required disclosure of pricing information was necessary to “administer” the Social Security program, even if it did have the effect of lowering prices as HHS hoped.  Given this decision, the rules will not go into effect.  Barring an appeal by HHS, it would appear that Congress will have to take action before these rules could be adopted.  So, for now, TV broadcasters will not be seeing mandatory disclosures of drug prices on the ads that they run.

Actions Taken at July Meeting – FCC Adopts Changes to Children’s Television Rules and to TV MVPD Carriage Election Notices Procedures

Delivered... David Oxenford | Scene | Mon 15 Jul 2019 8:44 am

The FCC at its open meeting last week took two actions important to TV broadcasters – modifying its children’s television rules and changing the process by which TV stations give notice to MVPDs of their must carry or retransmission consent elections.  On the children’s television rules, the FCC largely adopted the proposals in their draft order, which we summarized here.  The major additions to the final version of the Order (here) were the individual statements of the Commissioners, where the Republicans supported the decision as a common-sense reaction to changing market conditions (including an increase in the number of over-the-air stations since the rules were initially adopted, as well as all sorts of new media competition), while the Democrats worried that moving some long-form educational and informational programming addressed to children off the broadcaster’s primary program streams, and the replacement of some of that programming with short-form programming, would have an adverse impact on children – particularly children in lower-income households with less access to digital alternatives.  The new rules will become effective after their publication in the Federal Register.  Comment dates on the Further Notice of Proposed Rulemaking to consider whether TV broadcasters can be relieved of some children’s television obligations by supporting the development of educational and informational programming on other TV stations will also be determined after Federal Register publication.

Also adopted at the meeting was a Report and Order setting out new rules allowing TV broadcasters to give notice of their next set of must-carry or retransmission consent notifications electronically rather than by certified mail, as is currently required.  The Order sets out a process where, before the next election deadline in October 2020, broadcasters need to include in their online public files a statement as to whether they have elected must-carry or retransmission consent on MVPDs in their market (and, if the station has elected one carriage option for all systems, the notice can be as simple as “Station WXYZ has elected must-carry on all cable systems in the Anytown DMA”).  If the station decides to change that election for any MVPD, they notify the MVPD of the change by email.  MVPDs must register a contact person for the receipt of such notices in their public files and in the FCC’s COALS database, so that broadcasters know who to contact if they are planning to change their election.  The broadcaster emails its notice of a changed election to the cable system (with a copy to a new FCC email address) and puts a copy of the election in its online public file.  The cable system is supposed to electronically acknowledge the receipt of the notice (if it does not, the broadcaster is supposed to call the COALS-registered person at the registered phone number to make sure that the notice has been received – but if there is no response, the FCC and public file notices will suffice.  Of course, not having this information in a TV station’s public file would be a violation of the public file rules.

The rules also will apply to noncommercial stations and satellite carriers. Read the full order to capture other intricacies of the new system – but it should make these notices much less costly for all involved.  The Commission also adopted a Notice of Proposed Rulemaking looking to adopt similar rules to allow cable operators to give required notices to broadcasters about issues such as a channel repositioning or a change in a system’s headend electronically.  Look for comment dates in that proceeding soon.  All in all, an eventful FCC meeting for TV broadcasters.

July Regulatory Dates for Broadcasters – Quarterly Issues Programs and Children’s Television Reports, Renewal Announcements, Copyright Filings, EAS, EEO and More

Delivered... David Oxenford | Scene | Sun 30 Jun 2019 5:18 pm

July is an important month for regulatory filings – even though it is one of those months with no FCC submissions tied to any license renewal dates. Instead, quarterly obligations arise this month, the most important of which will have an impact in the ongoing license renewal cycle that began in June (see last month’s update on regulatory dates, here).  Even though there are no renewal filing deadlines this month, radio stations in Maryland, Virginia, West Virginia and DC must continue their on-air post-filing announcements on the 1st and 16th of the month.  On these same days, pre-filing announcements must be run by radio stations in North and South Carolina, who file their renewals by August 1.  Stations in Florida and Puerto Rico, who file on October 1, should be prepared to start their pre-filing announcements on August 1.  See our article here on pre-filing announcements.

Perhaps the most important date this month is July 10, when all full power AM, FM, Class A TV and full power TV stations must place their quarterly issues/programs lists in their online public inspection files.  The issues/programs list should include details of important issues affecting a station’s community, and the station’s programming aired during April, May, and June that addressed those issues.  The list should include the time, date, duration and title of each program, along with a brief description of each program and how that program relates to a relevant community issue.  We have written many times about the importance of these lists and the fact that the FCC will likely be reviewing online public files for their existence and completeness during the license renewal cycle – and imposing fines on stations that do not have a complete set of these lists for the entire license renewal period (see, for instance, our articles here, here and here).  So be sure to get these important documents – the only official documents that the FCC requires to show how a station has met its overall obligation to serve the public interest – into your online public file by July 10. 

July 10 is also the deadline for TV stations to electronically file with the FCC their quarterly FCC Form 398 children’s programming reports using the FCC’s Licensing and Management System (LMS).  A copy of the form, once filed, should be automatically uploaded by the FCC to the station’s online public inspection file, although station personnel should confirm this step was completed by the FCC as stations retain ultimate responsibility for the contents of their online public files.  TV stations must also complete a certification of compliance with the FCC’s commercial limits during children’s programming aired in the Second Quarter, and that certification must be manually uploaded to the station’s online public file.  TV stations also must complete a certification of compliance with the requirements concerning the display of website addresses during children’s programming.  While the FCC is planning at its July 10 meeting to change these reporting requirements to yearly ones if it adopts the draft order reforming its children’s television rules (we wrote here about that draft order), these revisions will not be effective for many months, so stations should continue to observe this requirement.

Another July 10 deadline is that for TV stations that are being repacked who must submit an FCC Form 2100, Schedule 387 transition progress report.  Quarterly reports are due the 10th of the month following the end of each calendar quarter, and additional reports are due closer to the station’s phase completion date and after completing the transition.  Phase 5 stations do not need to file this quarter because they recently submitted their 10-week Schedule 387 filings.

An annual copyright deadline also falls in July.  Before July 31, all television stations that were carried as a “distant signal” by a cable system during 2018 and that aired a program that they produced for which they own the copyright that was retransmitted by a cable system, should file a copyright royalty claim form in order to make a claim to share in the 2018 cable royalty distribution.

July 10 is also the date by which comments are to be filed with the Department of Justice’s Antitrust Division on the possibility of changes to the ASCAP and BMI consent decrees.  These decrees, most fundamentally, require that these two performing rights organizations treat all similarly-situated users of copyrighted music in the same way (no special deals for certain favored users), and give users the right to bring a court action if they believe that the rates proposed for the use of music are not reasonable.  Any fundamental change in these consent decrees could significantly affect the costs of the use of music by broadcasters and other audio companies – so this is a very important proceeding.  See our article here for more information about the current review of these decrees.

All EAS participants need to file updated ETRS Form I by July 3 – updating the basic information for virtually all broadcast stations.  This is in anticipation of the announced August 7 nationwide EAS test.  See our article here for more information.

EEO audit responses from those radio stations covered by the last EEO audit are due July 31 (see our article here about that audit).  The FCC also recently adopted a Notice of Proposed Rulemaking looking for information about the effectiveness of its current EEO rules.  While comments will not be due until 30 days after this Notice in published in the Federal Register, stations should be considering their comments in this proceeding.

Also coming in August will likely be the FCC decision on regulatory fees which will likely be paid in September.  There are significant questions for broadcasters about those fees – as radio fees are proposed to increase substantially, and TV fees are proposed to move to a system where stations pay on predicted coverage, rather than DMA size.  Watch for the FCC’s decision in this proceeding in August.

While we are in the heart of the summer – and everyone’s mind may be on vacation plans – don’t overlook these important regulatory dates coming up this month.  As always, check with your own counsel or legal adviser to make sure that we have not omitted any important dates that apply to your station this month.

FCC Releases Draft Order on Changes to Children’s Television Rules – Action Expected July 10

Delivered... David Oxenford | Scene | Mon 24 Jun 2019 3:00 pm

In anticipation of its July 10 open meeting, the FCC last week released its draft Order making changes to its rules requiring television stations to broadcast specific amounts of educational and informational programming directed to children.  The current rules require that stations air an average of three hours of such programming every week for every channel of programming they broadcast.  The current rules also impose all sorts of restrictions on programming for it to be considered “Core Programming” that can be counted toward meeting the three-hour per channel obligation.  The draft Order, if adopted at the July meeting, would ease some of the restrictions and, perhaps most importantly, eliminate the requirement that, for each multicast channel, three hours of unique educational programming directed to children be broadcast.

The Commission surveyed the current TV marketplace and found that, in the 15 years since it adopted the requirement that there be 3 hours of programming per multicast channel, much more educational and informational programming for children has become available – through public broadcasting and through new programming sources, including those delivered online.  Providing those three extra hours of educational and informational programming imposed significant cost burdens on broadcasters (even a weather radar channel carried with it a three-hour children’s programming obligation) for seemingly little benefit given the availability of so much other kids’ programming elsewhere.  The FCC draft Order also would change some of the specific requirements for station’s primary video channel.

Some of the significant changes for the three-hour obligation for the primary channel include the following:

  • Obligations would be reviewed based on quarterly and yearly hours goals, rather than average weekly requirements
  • To avoid heightened scrutiny at license renewal time (which would require a station to show that all of its other efforts directed to children were so important that it excused the station’s noncompliance with these processing guidelines – a showing rarely attempted because of the uncertainty that it creates), a station would need to meet one of the following two criteria:
    1. It broadcast 156 annual hours of regularly scheduled Core Programming consisting of programs that were at least 30 minutes in length (consistent with the current policy); or
    2. It broadcasts 156 annual hours of Core Programing of which at least 26 hours per quarter (essentially 2 hours per week) were regularly scheduled programs of at least 30 minutes in length, but the remaining 13 hours per quarter could be some combination of either special educational and informational programming for children of at least 30 minutes duration or short-form programming meeting those needs (including PSAs and interstitial short-form educational programs).
  • Up to 13 hours per quarter of a station’s required educational programming directed to children could be broadcast on a multicast channel of the station rather than on its primary video channel
  • Core programming could be aired between 6 AM and 10 PM, rather than 7 AM to 10 PM as currently allowed.
  • Changes are also set out providing more flexibility in the requirements for dealing with children’s programs that are preempted in their normal time slots.
  • Children’s programming reports (FCC Form 398) would be filed on a yearly basis instead of quarterly, and public file documentation of compliance with the limits on advertising in children’s programming would also be placed into a station’s online public file annually – by the 30th day of the end of each calendar year. And stations would no longer be obligated to publicize the existence and location of the Form 398 filings.

The draft Order contains many other changes – and is worth careful review by all television operators.

The draft Order also contains a Further Notice of Proposed Rulemaking asking for comments on other potential future changes in the rules.  One intriguing proposal would allow broadcasters to be relieved of their children’s television obligations if they financially support another station which runs more children’s programming than otherwise required – the idea being advanced that concentrating that educational programming on a single station would make it easier to find for children and their parents.

If adopted at the FCC meeting in July, the Order will become effective after Federal Register publication and review under the Paperwork Reduction Act – so it will probably be several months in the future before many of these changes become effective.  Comments on the Further Notice will be due after Federal Register publication.  I’m sure that many TV operators will be watching the July 10 meeting to see if the FCC adopts this proposed Order without significant changes.

FCC Incubator Order Becomes Effective Just as Third Circuit Hears Arguments on 2017 Order Relaxing FCC Broadcast Ownership Rules

Delivered... David Oxenford | Scene | Wed 12 Jun 2019 4:49 pm

The Office of Management and Budget, acting pursuant to the Paperwork Reduction Act, has just approved the FCC’s broadcast incubator program, about which we wrote here.   That approval makes the program effective.  The program permits an established broadcaster to provide assistance to a new broadcaster (generally, a qualified small business) to enter the radio broadcast industry.  If, over a 3-year period, the assistance provided by the existing broadcaster (usually either financial assistance or management training) is deemed a success, the established broadcaster can receive a credit allowing it to purchase a station in excess of the radio ownership limits allowed for broadcasters in a market of similar size to the one in which the incubation occurred.  It is interesting that this rule became effective just as the US Court of Appeals heard oral argument on the question of whether that program does enough to encourage new entrants into broadcast ownership to meet court-imposed obligations to address these issues.

The oral argument is on the appeal of the FCC’s 2017 ownership decision which, among other things, did away with the prohibition on newspaper-broadcast cross-ownership and the rule that required that there be 8 independently owned TV stations in a market before one owner could own two stations in that market.  The appeal, as we wrote here, essentially argues that the FCC has not done enough to promote minorities and other new entrants to get into broadcast ownership.  Reports are that the judges asked the FCC many questions at yesterday’s argument as to whether the FCC had enough data to conclude that the changes that were made in 2017 were in the public interest and would not unduly burden new entrants who want to get into media ownership.

There is rarely any ability to determine from an oral argument in front of an appeals court how the ultimate decision will come up – but many will be watching.  Not only could the court theoretically order the 2017 decision undone (though the same court in the US Third Circuit has previously questioned whether the newspaper-broadcast cross-ownership rule made any sense in today’s modern media landscape – see our article here) but, were the court to determine that more study was needed before rules could be changed, the current media ownership review, concentrating principally on radio issues (see our article here), could be put on hold while the FCC conducts whatever additional review is required by the court’s decision.  A court decision usually takes at least several months to be considered, written and released to the public.  Until then, many interested parties will be anxiously awaiting the news.

 

June Regulatory Dates for Broadcasters – License Renewal, EEO Reports, Reg Fee Comments, Ownership Appeal Argument and More

Delivered... David Oxenford | Scene | Thu 30 May 2019 4:51 pm

The license renewal cycle, about which we have been warning broadcasters for at least the last year (see, for instance, our posts here, here and here), is now upon us. June 3 is the filing deadline for license renewals for radio stations in Maryland, DC, Virginia and West Virginia. Radio stations (including FM translators and LPFMs) licensed to any community in any of those states should be filing their renewal applications in the FCC’s Licensing and Management System (LMS) by Monday’s deadline. The new FCC forms, as we wrote here, have been available since early May, so the renewal and the accompanying EEO program report should either be on file or ready to be filed in LMS by the June 3 filing deadline. These stations should also be running their postfiling license renewal announcements on the 1st and 16th of June, July and August. Radio stations in the next renewal group, in North and South Carolina, should begin their license renewal pre-filing announcements on June 1st and 16th as well, informing the public about the upcoming filing of their renewals due on August 1. See this article on pre-filing announcements for more information.

In addition, broadcasters in Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia that are part of an Employment Unit with 5 or more full-time employees should also be preparing to add to their online public inspection file their Annual EEO Public File Report. This report is due to be added to their online public files by June 1. A link to this report should also be placed on the station’s website, if it has a website.

There are also comment deadlines in an FCC proceeding of interest. The FCC has asked for comments on its proposed regulatory fees for 2019, which will be paid before October 1 at a time that will be set by the FCC after considering the comments on the proposed fees.   October 1 is when the government’s new fiscal year begins. The fee proposal, available here, would set radio fees about 20% higher than in previous years, with little apparent explanation as to why the fees have increased. The FCC also proposes to go to a new methodology for computing TV regulatory fees. Eventually, the fees are to be based entirely on the population of the service area of each individual station. This year, however, the fees are proposed to be a blend of last year’s DMA-based methodology and the new population-based determination. For many TV stations, fees would decline or stay relatively flat. However, some TV stations may see very significant increases – especially VHF stations in the northeast that have increased power beyond the normal limits for such stations, in an effort to make up for the inferiority of coverage for these stations when operating digitally. Comments on these proposals are due June 7.

June 11 is the date on which the Court of Appeals will hear oral arguments on the appeal of the FCC’s ownership decision from late 2017 in which the FCC, among other actions, abolished the newspaper-broadcast and radio-television cross-ownership rules and the rules requiring that there be 8 independent owners in a television market before a company could hold two TV licenses in that market. The rules are being challenged by a number of public interest groups who believe that the FCC has not done enough to foster the entry of minorities and other new entrants into broadcast ownership, and that, until an effective plan is implemented to bring about this ownership diversity, the FCC is precluded from changing any ownership rules (these groups argue that the FCC’s incubator program, about which we wrote here, is inadequate). The court will likely take several months after the argument to finally resolve these issues. This resolution is important as, if the court sides with those appealing the 2017 decision, the decision could effectively put on hold the current Quadrennial Review of the FCC’s ownership rules (which, as we wrote here, is targeted principally at radio ownership deregulation) until a more effective diversity plan is devised.

The FCC’s June meeting is light on broadcast matters. The one media issue on the agenda is the FCC’s proposal to review its leased access rules – the rules requiring that cable companies provide some portion of their channel capacity to independent parties who want to lease that capacity to provide their own programming. The FCC is expected to adopt a Notice of Proposed Rulemaking to review these requirements. The draft NPRM is available here. The FCC’s monthly meeting will be held on June 6.

June 21 brings to an end Phase 3 of the television repacking process following the incentive auction, when stations in that window are supposed to have completed their transition to a new channel. Phase 4 begins the next day, when stations in the next stage can begin testing on their new channel for operations.

On June 28, the FCC will host a workshop designed to promote the use of multilingual emergency alerting. The workshop will include presentations covering the multilingual capabilities of the Emergency Alert System (EAS) and Wireless Emergency Alerts (WEA), and alternative methods for delivering emergency information to non-English speakers. The workshop will be held from 9:00 a.m. – 2:30 p.m. EDT and will be webcast. Check the FCC’s website for further information. See the FCC Public Notice about the workshop, here.

Looking ahead to July, July 10 will bring the due date for the next round of Quarterly Issues Programs Lists and the Quarterly Children’s Television Reports. With the renewal cycle having now started, as we have written many times (here, here and here), these quarterly filings take on added significance as the failure to make timely filings will likely lead to FCC fines. So be prepared for the July 10 deadline. July 10 is also the deadline for repacked stations to file their quarterly Form 387 transition status reports (unless the station has already transitioned to its new channel).

As always, these are just the regulatory deadlines on which we happen to be focused. Consult with your own counsel for information about any deadlines we may have missed and any deadlines of particular importance to your own station. To look ahead at some of the other upcoming deadlines, see our Broadcaster’s Calendar, here.

FCC Starts Accepting ATSC 3.0 Applications – The Next Generation of TV Transmission

Delivered... David Oxenford | Scene | Wed 29 May 2019 3:28 pm

Effective yesterday, May 28, the FCC is accepting applications for television stations to begin to convert to the next generation TV transmission standardATSC 3.0 or “NexGen TV.” Last week, the Commission issued a Public Notice announcing that the form (FCC Form 2100) necessary for stations to apply to transition to the new standard is now available for both full-power (Schedule B to Form 2100), low power (Schedule D) and Class A TV stations (Schedule F). Only stations currently sharing channels as part of a Commission-approved channel sharing agreement following the FCC’s incentive auction are not able to apply for the transition at this point, as the FCC Form needs further revisions to its forms to accommodate applications for the transition by these stations. Those forms are expected later this year. In the interim, sharing stations can move forward with 3.0 operations by seeking Special Temporary Authority.

ATSC 3.0 promises to allow broadcasters to transmit more information through their 6 MHz channel – allowing for additional subchannels of programming or more data transmission capabilities that could be sold to those needing to transmit digital information to the wide areas served by TV stations. The transmission standard is far more mobile-friendly than the current standard and also allows for transmissions in an IP format compatible with so many other digital devices receiving information from Internet sources. But the standard is not backward compatible – meaning that to receive the new television signals consumers will need new TV sets with ATSC 3.0 receivers, or converters to provide the signal to existing TV sets. Thus, to ensure that consumers will not lose access to the over-the-air television signals they now receive, the FCC requires that stations converting to the new standard must also simulcast their primary video signal on a station in their market that continues to operate in the current ATSC 1.0 standard. Low power TV stations do not have this simulcasting obligation, meaning they can convert to 3.0 operations and leave the 1.0 standard behind.

The new form will be filed by stations seeking to convert to ATSC 3.0. It will require that the full power or Class A TV station identify a host for its ATSC 1.0 “lighthouse” signal. Eventually, once a station has converted to ATSC 3.0, the form will also be used to seek approval for changes in the ATSC 1.0 host station, or changes in the ATSC 3.0 channel on which the station’s programming is transmitted. If, for any reason, the station wants to convert back to ATSC 1.0, the form is also required for that purpose. Other than to permanently discontinue the ATSC 1.0 transmissions at some point in the future, the ATSC 1.0 host station will not need to file anything with the FCC as long as its technical facilities do not need to change as a result of hosting the programming of a station that has converted to the NexGen TV standard.

We have heard that the FCC plans to move quickly on applications for ATSC 3.0 operations, but the Public Notice states that stations currently operating with experimental authorizations should allow at least 30 days to get permanent approval to operate with their ATSC 3.0 facilities. If the Commission does indeed move quickly, and if the NexGen coalitions follow through on recent promises that they are ready to roll out the new television transmission standard in the largest TV markets, consumers may soon be seeing the deployment of these signals in many markets. And stay tuned for the rollout of ATSC 3.0 television receivers in the big box stores, perhaps by the end of this year.

What Do New Drug Ad Price Disclosures Mean for TV?

Delivered... David Oxenford | Scene | Wed 15 May 2019 4:26 pm

Last week, the US Department of Health and Human Services (HHS) adopted a new rule mandating, at some point later this year after Paperwork Reduction Act approval, that prescription drug advertising on TV contain certain price information. Specifically, HHS will require TV ads for prescription drugs covered by Medicare or Medicaid to include the list price for a month’s supply or for the usual course of therapy, if that price is $35 or more. While some advertising groups argue that this requirement is an unconstitutional infringement on free speech (see this article from the ANA – the Association of National Advertisers), assuming that the rule goes into effect as planned, what effect will the rule have on TV?

Most importantly, the new rules do not impose obligations on TV stations themselves. Instead, the rule looks to the Lanham Act for enforcement. As noted in the HHS rulemaking order, that means that the primary means of enforcement will be by one drug manufacturer suing another for failing to meet the new guidelines under Lanham Act provisions governing false and misleading advertising. Thus, it appears that TV stations themselves will not be principally in the line of regulatory fire on this issue. But, as with any other government-mandated advertising disclosure, broadcasters should be aware of their clients’ obligations to make sure that clients are not putting themselves at risk, and be sure that in any production done for an advertiser, the ads are placed appropriately and presented against a contrasting background for sufficient duration, and in a size and font style that allows the information to be read easily. So far, the rules have not been extended to radio or online, but HHS says that they will monitor advertising to see if future additions are warranted. Obviously, check with your own counsel for more details on this new requirement – and be prepared when one more disclosure likely comes your way later this year.

 

FCC to Hold Public Forum on ENT Captioning of Live TV Programming Tomorrow, May 10

Delivered... David Oxenford | Scene | Thu 9 May 2019 4:52 pm

The FCC tomorrow will hold a public forum on Electronic Newsroom Technique (ENT) of captioning live TV programming tomorrow from 1 PM to 4:45 PM Eastern Time (see the agenda here). The forum will be available for viewing online (go to the FCC webpage here for information about connecting). This forum may provide a good refresher for stations still using ENT to caption live programming to make sure that they are providing the quality captioning that the FCC expects as outlined in its orders on captioning quality that went into effect on June 30, 2014.

We wrote about some of the goals of the captioning quality proceeding here. The FCC itself has released a good compliance guide, which reminds broadcasters that TV stations that are not Top 25 market affiliates of the Top 4 TV networks can still rely on ENT, but they must be sure that the captions accurately convey what is being said by those speaking during on-air live or near live programing. Specifically, the compliance guide notes these FCC requirements to insure that the ENT captions reflect what is being said on the air:

  • In-studio produced news, sports, weather, and entertainment programming will be scripted.
  • For weather interstitials where there may be multiple segments within a news program, weather information explaining the visual information on the screen and conveying forecast information will be scripted, although the scripts may not precisely track the words used on air.
  • Pre-produced programming shall be scripted (to the extent technically feasible).
  • If live interviews , live on-the scene, or breaking news segments are not scripted, stations will supplement them with crawls, textual information, or other means (to the extent technically feasible).
  • The station will provide training to all news staff on scripting for improving ENT.
  • The station will appoint an “ENT Coordinator” accountable for compliance.

Stations still relying on ENT to meet their captioning responsibilities should review tomorrow’s discussion either live or when it is archived to assure that they are meeting all their responsibilities in following these FCC rules.

May Regulatory Dates for Broadcasters – License Renewal Activities and Lots of Comment Dates

Delivered... David Oxenford | Scene | Thu 25 Apr 2019 5:25 pm

With the June 3 filing deadline fast approaching for license renewals for radio stations in Maryland, DC, Virginia and West Virginia, stations (including FM translators and LPFMs) licensed to any community in any of those states should be beginning to prepare their applications. As we wrote here, the FCC forms should be available next week, so once May 1 rolls around, early birds in those states can start to file their renewal applications and the accompanying EEO program report. These stations should also be running their pre-filing license renewal announcements on the 1st and 16th of May. Radio stations in the next renewal group, stations in North and South Carolina, should be prepared to begin their license renewal pre-filing announcements in June – so in May they should be recording and scheduling that announcement to run for the first time on June 1 (see this article on pre-filing announcements for more information).

While May is one of those months with no other regularly scheduled regulatory filing deadlines, it is full of other FCC deadlines including comment dates in several proceedings of importance to broadcasters. In addition, broadcasters in Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia that are part of an Employment Unit with 5 or more full-time employees should also be preparing to add to their online public inspection file their Annual EEO Public File Report – due to be added to their files by June 1.

One of the FCC proceedings with comment dates in May is the proposal to allow AM broadcasters to, at their option, convert to full-time digital operations. We wrote about that proposal here and here. Comments on the initial Petition for Rulemaking are due on May 13. While the FCC is now just seeking preliminary comments on this proposal (they have not yet issued a formal Notice of Proposed Rulemaking with specifics on proposed actions), filings on or before May 13 are important to let the FCC know whether there really are broadcasters interested in converting their AM stations to all-digital operations. So if you have an interest, file your comments in the proceeding by the upcoming deadline.

As we wrote yesterday, the FCC is also looking for updated information from operators of C Band earth stations as to the uses they are making of the 3.7 to 4.2 GHz band. Those updates are due on May 28.

Reply comments on the FCC’s latest Quadrennial Review of its ownership rules are also due in May. Comments in this proceeding, about which we wrote here, deal primarily with the possibility of changes in the local radio ownership rules. The FCC is also considering providing more definition as to when they will allow the common ownership of two of the top 4 TV stations in any market, and also at whether one party could own 2 of the top 4 broadcast TV networks. Comments on various ownership diversity proposals are also out for comment. Comments in the proceeding are due by April 29, with replies due on May 29.

Comments in the proceeding looking at changes to the rules governing the applications for and processing of new noncommercial FM and LPFM stations are due on May 20. The FCC is looking at changes in the information noncommercial applicants need to supply when filing for new stations, and other changes in dealing with NCE and LPFM construction permits once granted. For more information on this proceeding, see our article here.

At the May 9 FCC open meeting, the Commission will be considering its proposal on how to resolve interference complaints about new FM translator facilities by full-power FM stations. We wrote about the FCC’s draft order in this proceeding here. The FCC will also be considering a Notice of Proposed Rulemaking (here) on this year’s regulatory fees – likely to be paid in August or September. Under this proposal, some broadcast fees, particularly for radio, will be going up. Comments will be due at a later date after the NPRM is adopted.

We should also be on the lookout for dates for the commencement of filing of reimbursement requests by LPTV, TV translators and FM radio stations affected by the incentive auction. We wrote about the FCC’s order adopting rules for this reimbursement here.

All in all, it is a very busy month for broadcast regulatory activities. As always, these are just the regulatory dates that we have thought to highlight for the month. Check with your own advisors for other dates that may affect your station operations. And check out our Broadcasters Regulatory Calendar for dates that will be coming up in future months.

FCC Makes Available TV Incentive Auction Information for Non-Winning Bidders

Delivered... David Oxenford | Scene | Wed 24 Apr 2019 2:57 pm

The FCC this week released a Public Notice announcing that it was making available information about all bidders in the TV incentive auction – including information about TV stations who had bid to surrender their licenses in the auction and were unsuccessful in those bids. The FCC had promised to keep that information confidential for two years after the conclusion of the auction. Proving how time really does fly, that two year period has now run its course since the FCC released its Incentive Auction closing notice. So if you are interested in the stations willing to surrender their licenses who were not selected in the auction, that information is available on the Auctions section of the FCC website, here.

Regulatory Issues from the NAB Convention: License Renewals, ATSC 3.0, Translator Interference, Ownership Rules, and Children’s TV

Delivered... David Oxenford | Scene | Thu 11 Apr 2019 3:47 pm

Questions about regulations from Washington don’t disappear just because you are spending time in Las Vegas, and this week’s NAB Convention brought discussion of many such issues. We’ll write about the discussion of antitrust issues that occurred during several sessions at the Convention in another post. But, today, we will report on news about more imminent actions on other issues pending before the FCC.

In his address to broadcasters at the conference, FCC Chairman Pai announced that the order on resolving translator interference complaints has been written and is now circulating among the Commissioners for review. The order is likely to be adopted at the FCC’s May meeting. We wrote here about the many suggestions on how to resolve complaints from full-power stations about interference from FM translators. While the Chairman did not go into detail on how the matter will be resolved, he did indicate that one proposal was likely to be adopted – that which would allow a translator that is allegedly causing interference to the regularly used signal of a full-power broadcast station to move to any open FM channel to resolve the interference. While that ability to change channels may not resolve all issues, particularly in urban areas where there is little available spectrum, it should be helpful in many other locations.

At another session, FCC Audio Division officials talked about the upcoming license renewal cycle. They announced that the renewal forms will be filed in the FCC’s LMS database, which was first used by radio broadcasters in connection with their Biennial Ownership Reports filed last year. The forms themselves will likely be available for completion on or before May 1 for the June 3 filing deadline for radio stations in Maryland, Virginia, West Virginia and the District of Columbia. Watch for an FCC public notice next week providing more details on the forms and filing requirements. And, in the interim, make sure that your online public file is complete and up-to-date (including the Quarterly Issues Programs lists – which, for the first quarter of 2019, should have been uploaded to the online public file no later than yesterday), as the online file will likely be reviewed by the FCC during the license renewal process. See our articles here and here on these issues.

On the TV side, the FCC said that the forms for filing for ATSC 3.0 facilities should be available shortly, so that applications can be accepted before the end of the quarter. At the conference, a consortium of stations pushing the ATSC 3.0 standard announced that they will be rolling out the new standard in 60 markets early in 2020.

Revisions to the children’s television rules relating to the amount of required educational and informational programming for children are also being considered. However, no time frame for the exact date by which any changes will be adopted was given. See our article here about the FCC’s pending review of the Children’s television rules.

The FCC Commissioners also discussed the current Quadrennial Review of the ownership rules – the proposed changes to the local radio ownership rules were a particular topic of conversation. See our post here on what changes to those rules are being discussed. All three Republican Commissioners made statements that the ownership rules need to reflect current marketplace realities. But it was also pointed out, particularly by the newest FCC Commissioner, Commissioner Starks, that the FCC principles of localism, competition and diversity need to be considered in any analysis of the ownership rules. Deadline for initial comments in the new Quadrennial Review is April 29.

These were but some of the legal issues discussed at the Convention. Clearly, no one wants to gamble on their regulatory future – so pay attention to the FCC decisions on these important upcoming matters.

April Regulatory Dates for Broadcasters – Radio License Renewal, Quarterly Issues Programs Lists and Children’s Television Reports, Repacking and EEO Dates, and Comments on the Quadrennial Review

Delivered... David Oxenford | Scene | Fri 29 Mar 2019 4:58 pm

April, as we wrote last month, begins the start of the radio license renewal process, with stations in Maryland, Virginia, West Virginia and the District of Columbia having to run on the 1st and 16th of the month public notices of the planned filing of their license renewals at the beginning of June.  As we also noted last month, April also brings a requirement that, by the 10th of the month, stations add to their online public file Quarterly Issues Programs Lists for the prior quarter, setting out the most important issues facing their communities in the prior quarter, and the programming that they aired to address those issues.  We have written about the importance of these quarterly reports to the FCC to show how you served the public interest and the fines that can be imposed at renewal time if the lists are not properly prepared and uploaded to the online public file.  So don’t forget the obligation this obligation that applies to all full-power stations (and Class A TV stations).  We expect that the FCC will be watching (and in fact already is, as evident from some of their recent warnings to stations)!

In addition, April 1 brings the obligation for radio and television stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas that are part of an Employment Unit with 5 or more full-time employees, to add to their online public inspection file their Annual EEO Public Inspection File Report.  This report documents the full-time employment openings at the station in the prior year, the recruitment sources used to fill those positions, and the non-vacancy specific outreach efforts (the menu options) that stations use to inform their community about broadcast job openings and the efforts they make to train their staffs to assume more involved roles at their stations.  TV stations in Pennsylvania and Delaware will also file with the FCC their Form 397 EEO Mid-Term Reports – likely the last mid-term reports to be filed as the FCC’s order abolishing these reports should become effective before the next such reports are due to be submitted (see our articles here and here on the FCC’s abolition of the Mid-Term Report and its continued enforcement of the EEO rules through EEO audits).

Quarterly Children’s Television Reports are also due by the 10th of the month, reporting on the educational and informational programming directed to children broadcast on each stream that a TV station broadcasts (the obligations of TV stations to broadcast educational children’s TV programming is under review – see our post here – but that does not affect this upcoming filing obligation).  The 10th is also the date for TV stations affected by the repacking to give the FCC a status report on their repacking efforts, though the FCC just agreed to waive that requirement for TV stations in repacking Stage 3 as they have an April 12 deadline for their “10 Week Report” – due 10 weeks before the date on which their transition should be complete – and these reports are seen as essentially duplicative.

On April 29, comments are due in the FCC’s Quadrennial Review of its ownership rules.  This review will principally look at radio ownership rules (see our article here).  But the FCC will also be looking at trying to provide more definition as to when they will allow the common ownership of two of the top 4 TV stations in any market, and also at whether one party could own 2 of the top 4 broadcast TV networks.

Thus, as always, April will be a busy regulatory month.  Consult with your own counsel about dates we may not have highlighted here, and for dates that may apply specifically to your station.  For more information about upcoming regulatory dates, see our Broadcaster’s Regulatory Calendar, here.

FCC Adopts New Rules on Satellite TV Stations, Removing Order from March Meeting Agenda

Delivered... David Oxenford | Scene | Thu 14 Mar 2019 5:13 pm

Earlier this week, the FCC released an order adopting new rules governing the sale of TV stations serving as “satellites” of other stations in their markets – either rebroadcasting the primary station or otherwise operating in conjunction with that parent station, usually serving rural areas where an independent full-service station cannot economically operate. The new rules allow for the sale of these stations, together with the parent station, without an expensive economic showing that the same conditions that originally justified the satellite status still exist. The applicant just needs to certify that the same conditions exist and, absent challenge, the FCC will presume that the parent and satellite can be sold together. We summarized this proceeding here and here. This is one more action under the FCC’s Modernization of Media Regulation initiative to simplify some of the rules by which broadcasters are governed. The new policies will be effective 30 days after they are published in the Federal Register, following review under the Paperwork Reduction Act.

Do TV Program Ratings Do a Good Job Telling Families Which Programs are Appropriate for Kids to Watch? Congress Wants to Know, So the FCC is Asking

Delivered... David Oxenford | Scene | Fri 1 Mar 2019 5:44 pm

The FCC this week launched an inquiry into whether the TV Parental Guidelines and the organization that oversees these ratings provide accurate information to viewers as to which TV programs are appropriate for children. The FCC released a Public Notice to initiate the inquiry at the direction of Congress in the recently passed Consolidated Appropriations Bill – the Bill which ended the threat of a second government shutdown. That Bill contained a number of provisions directing various government agencies to take specific actions, including a direction to the FCC to provide a report to Congress in 90 days on the “extent to which the rating system matches the video content that is being shown” and whether the TV Parental Guidelines Oversight Monitoring Board (which oversees the ratings system) has the ability to address public concerns about the ratings. With the report due to be submitted to Congress by May 15, the FCC has asked for public comment on an expedited basis, with comments due March 12, and replies due just a week later on March 19.

The Board was established by a voluntary industry initiative approved by the FCC following a Congressional mandate for V-Chip technology in the Telecommunications Act of 1996. For the V-Chip to work, programs have to be rated. The ratings that resulted are familiar to most TV viewers and range from TV-Y programming appropriate for all children to TV-MA, appropriate only for mature audiences. Programs are also rated for Violence (“V”), Fantasy Violence in programming for older children (“FV”), Sexual Content (“S”), Suggestive Dialogue (“D”) and Strong Language (“L”). These ratings are applied to most TV and cable programming except news, sports, and ads. Based on the claims by interest groups that the ratings do not accurately describe the programming, Congress issued this directive to the FCC. What questions does the FCC ask in its request for comments from the public?

The FCC seeks comment on numerous questions, including:

  • Whether the Board has done a good job responding to public input;
  • Whether the Board has improved the accuracy of the ratings over time;
  • Whether all of the programming that the industry committed to rate is in fact being rated;
  • Has the Board taken steps to enforce the ratings commitments from the industry;
  • Are programs being accurately rated and the standards for content ratings correctly applied;
  • Are the ratings being applied consistently; and
  • Are there any particular types of content that are more likely to be rated inaccurately.

While this Public Notice does not propose any specific action, in theory, were the Report to conclude that there were problems with the current system, follow up proceedings by the FCC or action by Congress to remedy perceived issues could follow. If you have comments on the system, follow the directions in the Public Notice to contribute to the discussion – and watch for the report generated based on these comments which is expected in May.

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