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

FCC Consent Decree Requires $1,130,000 Payment to Settle Issues About Monitoring Tower Lights – Are You Doing What’s Required?

Delivered... David Oxenford | Scene | Thu 16 Jan 2020 4:52 pm

Earlier this week, the FCC’s Enforcement Bureau released an Order approving a consent decree with Scripps Broadcasting where Scripps agreed to pay a penalty of $1,130,000 for perceived violations of the FCC’s rules requiring tower light monitoring for towers used by a number of TV stations that it had recently purchased.  The company also agreed to adopt numerous procedures to insure continuing compliance, including notification to the FCC of future issues.  The FCC began the investigation when a plane crashed into one station’s tower.  While the FCC specifically states that it did not find any evidence that any of the “irregularities” in the tower monitoring process contributed to the plane crash, the crash opened the door to the FCC’s investigation of the company’s tower light monitoring process at all of its stations, leading to this fine.  Are you ready for such an investigation?

In the consent decree, the Commission cites various tower-related FCC rules that must be observed by tower owners.  The rules include Section 17.47(a), which requires antenna structure owners to monitor the status of a structure’s lighting system by either (1) making “an observation of the antenna structure’s lights at least once each 24 hours either visually or by observing an automatic properly maintained indicator designed to register any failure of such lights” or (2) by “provid[ing] and properly maintain[ing] an automatic alarm system designed to detect any failure of such lights and to provide indication of such failure to the owner.”  That rule also requires that the tower owner inspect any automatic monitoring system at least once every 3 months to make sure that it is working correctly, unless the owner is using a system certified as reliable and not requiring such inspection by the Wireless Bureau of the FCC. 

The rules also require that the tower owner keep records of the required monitoring, including any instances where any required lighting is not operating (noting when the outage occurred and when it was repaired, and when FAA notice was provided).  The FCC rules also require prompt notification to the FAA when certain lights have stopped operating – obviously so that the FAA can notify aircraft operating in the vicinity of the tower.

Part 17 of the rules also sets out painting requirements for towers, and requirements that many towers be registered with the FCC.  In fact, in the Scripps case, part of the fine was based on Scripps’ failure to notify the FCC of the ownership change of some of the towers as required by the FCC tower registration rules (see our posts here and here about other fines for this violation).

One article like this cannot possibly set out all the tower lighting, painting, and monitoring rules.  But the severity of the sanctions in this case demonstrates the obvious importance of these rules – and the need for each broadcaster to carefully review these rules and make sure that they are strictly complying with all of the requirements.  Because of the safety risks, the FCC takes tower maintenance requirements very seriously (see our post here where we wrote about a notification from the FCC to tower owners that paying penalties was “not just a cost of doing business” but much more serious).  Even companies that are merely leasing tower space have responsibilities to notify the FCC and FAA if their lessor is not performing its responsibilities to maintain the tower (see our post here).  The risk of non-compliance is not only penalties like the one assessed in this case, but also potential civil liability in cases where there are incidents like the situation that started the investigation.  Take your responsibilities seriously.

Keeley Forsyth: how the Happy Valley actor became the new Scott Walker

Delivered... Jude Rogers | Scene | Thu 9 Jan 2020 5:00 pm

She was enjoying a successful if gruelling film and TV career when serious illness struck. But Forsyth has channelled that experience into a bleakly beautiful avant-garde album

Yorkshire is the backdrop to many disquieting works of art, such as David Peace’s Red Riding Quartet, Bram Stoker’s Dracula and the Brontës’ explorations of the soul. The newest is Debris, an album made by a 40-year-old actor with a familiar, pale-eyed, haunting face, whom we have seen in recent years playing a sex worker in Sally Wainwright’s Happy Valley and heroin addicts in The Casual Vacancy and Waterloo Road.

Keeley Forsyth’s debut as a musician is an avant-garde proposition, however: a shivery descendent of Scott Walker’s Tilt, a more unsettling older sister of Aldous Harding’s Designer. Forsyth’s voice marries Peggy Lee’s bluesy vibrato with Nico’s thunderous terror, and delivers lyrics that invert nature, as a way of exploring despair. Large oaks descend and grow roots. Salt hills move. Madness unfurls.

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While You Were on Vacation….Looking at FCC Regulatory Actions over the Holidays and Deadlines for January

Delivered... David Oxenford | Scene | Mon 6 Jan 2020 5:45 pm

While many of us were trying to enjoy the holidays, the world of regulation kept right on moving, seemingly never taking time off.  So we thought that we ought to highlight some of the actions taken by the FCC in the last couple weeks and to also remind you of some of the upcoming January regulatory deadlines.

Before Christmas, we highlighted some of the regulatory dates for January – including the Quarterly Issues Programs Lists due to be placed in the online public file of all full-power stations by January 10.  Also on the list of dates in our post on January deadlines are the minimum SoundExchange fees due in January for most radio stations and other webcasters streaming programming on the Internet.  January also brings the deadline for Biennial Ownership Reports (postponed from their normal November 1 filing deadline).

In that summary of January regulatory dates, we had mentioned that the initial filing of the new Annual Children’s Television Programming Report would be due this month.  But, over the holiday week, the FCC extended that filing deadline for that report until March 30 to give broadcasters time to familiarize themselves with the new forms.  The FCC will be doing a webinar on the new form on January 23.  In addition, the FCC announced that many of the other changes in the children’s television rules that were awaiting review under the Paperwork Reduction Act had been approved and are now effective.  See our article here for more details.

Our summary of the January regulatory dates also mentioned the filing window that opens on January 29 for the April auction of new FM channels.  The deadline for applications to participate in the auction is February 11 at 6 PM EST (see our article here).  We did not mention another filing window falling in January, including one for amendments to pending applications for new LPTV stations or TV translators that had their proposals blocked by changes made during the repacking of the television band following the incentive auction.  These applicants can amend their applications to remove these conflicts with repacked channels by January 31.  See the FCC Public Notice of this filing window here.

New comment dates in rulemaking proceedings were also recently announced for January.  Comments are due on January 22 on the FCC’s proposal to change the rules that preclude radio stations in one service (AM or FM) from duplicating programming on another station in that same service if the two stations serve substantially the same area.  See our article here on the FCC’s questions about possible changes in this rule.  Comments are also due on the FCC’s inquiry as to whether to allow “Franken FMs” – LPTV stations on Channel 6 providing analog audio programming that can be received on FM 87.7 – to continue to generate an analog audio signal to continue the FM services after the otherwise mandatory end of analog television broadcasting on July 13, 2021.  See our article here on some of the issues raised by the FCC, and the Federal Register publication of this notice here setting the comment dates.

Also announced over the holidays was the FCC’s procedural reaction to the Third Circuit decision overturning its 2017 changes in the ownership rules – including the repeal of the broadcast-newspaper cross-ownership rules and the rules that allowed TV duopolies even in markets with fewer than 8 independent voices from those owning or programming stations in that market.  With these and other rules back in effect after the Court’s decision, the FCC now requires applicants for a renewal of license or for the acquisition of a station through an assignment or transfer to demonstrate that they meet the ownership restrictions that were in effect prior to the 2017 changes.  For more details on what is now required, see our post here.

It is also worth reminding stations that they should have updated their EAS certifications that expired back in November to authenticate EAS alerts transmitted through the IPAWs online alert system.  The updated certification to authenticate these alerts was late in coming out, so the FCC gave stations until January 7 to have their systems updated.  If you can’t meet that deadline, an STA is required.  See our article here on this issue.

Finally, stations need to remember that we are in political season.  Lowest unit rate windows are already open for ads targeting voters in Iowa and New Hampshire.  These rates kick in on January 8 for the Democratic caucuses in Nevada, and on January 15 for the South Carolina primary.  Only 3 days later, lowest unit rates for Presidential primaries or caucuses begin in Super Tuesday states including Alabama, American Samoa (D), Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia.  Later this month, lowest unit charge windows for these presidential contests open in Puerto Rico, Hawaii, Idaho, Michigan, Mississippi, Missouri, North Dakota (D), Washington, US Virgin Islands, West Virginia, Guam (R), N. Mariana Islands (D) and Wyoming.  Watch for the exact dates in your state – as well as the lowest unit rate windows for Congressional, state and local races in your communities.  See our article here on the opening of the lowest unit rate windows.

Obviously, there are plenty of deadlines and other regulatory obligations coming up early this year.  This is but a summary of some of the obligations we see as generally significant to broadcasters – but check with your own counsel to see if there are other deadlines that apply to your own station.  Happy New Year – and good luck navigating the regulatory landscape of 2020.

FCC Postpones Filing Deadline for First Annual Children’s Television Programming Report and Announces Effectiveness of Other Changes in Children’s Television Rules

Delivered... David Oxenford | Scene | Mon 30 Dec 2019 5:23 am

The FCC gave a present to TV broadcasters at the end of the week before Christmas by issuing a Public Notice announcing the effective date of the remaining changes to the children’s television rules, and postponing the filing date for the initial Children’s Television Programming Report, which was to be filed by January 30, to March 30.  This will give broadcasters more time to become familiar with the new report.  The annual Children’s Programming Report takes the place of the Quarterly Children’s Television Programming Reports, and are designed to report on the educational and informationalcore programming” broadcast by a television station to meet its obligations for such programming.  Also announced in the Public Notice is an FCC webinar on January 23 from 1:30 to 2:30 pm ET to review the new form.

Other provisions of the rule that became effective following the pre-Christmas publication in the Federal Register of the approval of the rule changes by the Office of Management and Budget (following the required review under the Paperwork Reduction Act of the changes in the paperwork burdens imposed by the modifications of the rules) include the following:

  • The elimination of the requirement for noncommercial stations to display the E/I symbol during core programming (retaining the requirement for commercial TV stations);
  • The elimination of the requirement to provide publishers of program guides the age group for which each core program is intended;
  • The revision of the rescheduling and viewer notification rules for core programming that is preempted;
  • The adoption of revised reporting periods for children’s TV commercial limit certifications from quarterly to annually (the last quarterly certification being due in stations’ public files by January 10 for the last quarter of 2019 – with the first annual certification for 2020 being due by January 30, 2021).
  • The elimination of the requirement to publicize the existence and location of a station’s Children’s Television Programming Report.

These changes follow the FCC order this summer adopting the new rules, and prior public notice on the effective date of the Annual Children’s Programming Report.  See our posts here and here.  Be sure to note these changes in your operations.

January Regulatory Dates for Broadcasters – Quarterly Issues/Programs Lists, Children’s Television Annual Report, EEO, License Renewal, Political Rate Windows, FM Auction Dates and More

Delivered... David Oxenford | Scene | Thu 19 Dec 2019 5:24 pm

With many Americans using the holiday season to rest and recharge, broadcasters should do the same but not forget that January is a busy month for complying with several important regulatory deadlines for broadcast stations.  These include dates that regularly occur for broadcasters, as well as some unique to this month.  In fact, with the start of the lowest unit rate windows for primaries and caucuses in many states, January is a very busy regulatory month.  So don’t head off to Grandma’s house without making sure that you have all of your regulatory obligations under control.

One date applicable to all full-power stations is the requirement that, by Friday, January 10, 2020, all commercial and noncommercial radio and television stations must upload to their online public file their quarterly issues/programs list for the period covering October 1 – December 31, 2019.  The issues/programs list demonstrates the station’s “most significant treatment of community issues” during the three-month period covered by each quarterly report.  We wrote about the importance of these reports many times (see, for instance, our posts here and here).  With all public files now online, FCC staff, viewers or listeners, or anyone with an internet connection can easily look at your public file, see when you uploaded your Quarterly Report, and review the contents of it.  In the current renewal cycle, the FCC has issued two fines of $15,000 each to stations that did not bother with the preparation of these lists (see our posts here and here on those fines).  In past years, the FCC has shown a willingness to fine stations or hold up their license renewals or both (see here and here) over public file issues where there was some but not complete compliance with the obligations to retain these issues/programs lists for the entire renewal term.  For a short video on the basics of the quarterly issues/programs list and the online public inspection file, see here.

On January 1, 2020 and January 16, 2020, radio stations in Arkansas, Louisiana and Mississippi must air pre-filing announcements tied to their license renewal filing date of February 3, 2020.  Radio stations in Alabama and Georgia must air post-filing announcements about their license renewals that were due by December 2, 2019.  Stations are required to air pre-filing announcements in the two months prior to the month in which their license renewal application is due, and to air post-filing announcements in the three months after their renewal application is due.

One of the biggest changes of the last year to the broadcast regulatory landscape is the modification of the programming and reporting requirements for children’s television programming.  Stations are no longer required to submit quarterly reports documenting their compliance with the children’s TV rules.  Instead, reporting will now be done annually, and stations must file their first annual report—FCC Form 2100, Schedule H—electronically through LMS by Thursday, January 30, 2020.  For a deeper look at how to comply with the new programming and reporting changes, see our posts here, here, here, and here.  We are still waiting for further guidance from the FCC about the quarterly certifications regarding compliance with commercial limits and websites during children’s programming.  Unless the FCC staff issues guidance to the contrary, stations should probably plan on uploading those certifications by January 10, 2020.

By Friday, January 31, 2020, commercial and noncommercial stations must complete and submit through LMS their Biennial Ownership Report (Form 323 for commercial stations; Form 323-E for noncommercial stations).  The reports were originally due by December 1, 2019, but the FCC extended the deadline to the end of January to update LMS.  The information in the report needs to reflect the licensee’s ownership as of October 1, 2019.  Don’t wait until the last minute to file these reports, as there can be technical slowdowns in the LMS system when there are major filing dates.  The January 31 deadline is already an extended one and unlikely to be further extended, so make sure that you meet the FCC’s deadline.

The repacking of the broadcast TV band, made necessary by the FCC’s broadcast incentive auction, continues across the country.  Stations assigned to Phase 7 must complete the transition to their new channels by January 17, 2020.  One day later, on January 18, 2020, stations assigned to Phase 8 of the repack may begin testing and operating on their new channels.

As we wrote earlier this week, Presidential primaries and caucuses are right around the corner, including the election-heavy day in March often dubbed Super Tuesday.  This means stations in more than two dozen states will soon find themselves within the 45-day primary/caucus political window, which brings with it special obligations like lowest unit rates for candidates.  With lowest unit charge windows opening on December 20, 2019 (Iowa), December 28, 2019 (New Hampshire), January 8, 2020 (Nevada), January 15, 2020 (South Carolina), January 18, 2020 (Alabama, American Samoa, Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia), January 23, 2020 (Puerto Rico), January 25, 2020 (Hawaii, Idaho, Michigan, Mississippi, Missouri, North Dakota, and Washington State), January 27, 2020 (U.S. Virgin Islands and West Virginia), and January 29, 2020 (Guam, N. Mariana Islands and Wyoming), stations should plan ahead to be sure station employees understand the requirements that go along with political advertising, including lowest unit charge and the expanded public file disclosure obligations issued by the FCC in mid-October.  For more guidance on navigating election season, see our Political Broadcasting Guide for Broadcasters.

Speaking of the expanded public file disclosures, earlier this month, we wrote about the FCC seeking comment on a petition for reconsideration of those new requirements filed by the National Association of Broadcasters and a group of TV station owners.  The petition asks the FCC to reconsider imposing the political issue ad disclosure rules that it clarified following complaints against 11 TV stations by two public interest groups.  The clarified rules require broadcasters who accept ads on federal issues of national importance to disclose in their public file each and every federal issue and federal candidate mentioned in the ad, many times requiring the identification of multiple candidates and issues for each ad.  Additionally, broadcasters must now specifically reach out to the organization sponsoring an issue ad or the agency who placed the ad for the names of any additional officers or directors, if the organization only submitted one name as constituting the entire board in its initial disclosure.  Comments in this proceeding are due by Monday, December 30, 2019, with the FCC just yesterday issuing an order extending the reply comments deadline to January 28, 2020.

Those looking to file for one of the 130 new FM channels due to be auctioned off by the FCC in April 2020 can begin to file the “short-form” applications needed to participate in the auction in the window opening on January 29 and closing at 6 PM Eastern Time on February 11.  We wrote about the upcoming auction here and here.  The FCC will impose a filing freeze on all FM minor changes during this short-form window, so plan accordingly if you need to file a minor change application in the near future.

Commercial and noncommercial (note that special rules apply to public radio) stations that stream music programming must pay the minimum fee to SoundExchange by Friday, January 31, 2020.  For commercial stations, the minimum fee is $500 per station/channel, not to exceed $50,000.  For noncommercial stations, the minimum fee is $500 per station/channel, which covers the first 159,140 aggregate tuning hours per month.  For more information on the minimum fee, including how to pay it, and other 2020 rate information, visit the SoundExchange website here.

Looking ahead on the calendar to early February, we mentioned above the February 3 license renewal filing deadline for radio stations (including LPFMs) in Arkansas, Louisiana and Mississippi.  Station employment units (a station employment unit is a station or group of commonly owned stations in the same market that share at least one employee) with five or more full-time employees in several states have EEO reports due Saturday, February 1, 2020.  Stations must place their EEO report in their public file on the anniversary of their license renewal filing deadline.  So stations in Kansas, Nebraska, New Jersey, New York, Arkansas, Louisiana, Mississippi and Oklahoma must have the reports in their files by Saturday, February 1, 2020.

As always, we have just highlighted some of the upcoming regulatory deadlines for January.  Check with your own station’s counsel for more information about deadlines that may apply to your operation.

FCC Announces Schedule for Transition to Annual Children’s Television Reports

Delivered... David Oxenford | Scene | Wed 20 Nov 2019 5:38 pm

Earlier this week, the FCC released a Public Notice announcing its plans for the initiation of new annual reporting requirements for TV stations under the revised Children’s Television Rules. As we wrote here, the FCC this summer adopted changes in the rules governing the broadcast of educational and informational programming directed to children. These changes included the abolition of the Quarterly Children’s Television Reports and their replacement with an annual Children’s Report to detail a station’s performance in meeting the new educational and informational programming requirements. Earlier this fall, the FCC released guidance on the reporting of information from the third quarter of this year, as the new rules became effective on September 16 (see our article here). The Public Notice released this week covers the full transition to the annual reports.

The FCC anticipates the revised annual report will be ready for use in the FCC’s LMS database by January 1, 2020.  Children’s television programming aired on or after the September 16, 2019 effective date of the new rules will be reported by commercial full power and Class A television stations on a broadcaster’s first annual Children’s Report, which will be due no later than January 30, 2020. The FCC’s Media Bureau will issue another public notice announcing the actual effective date of the revised form.    

To facilitate the filing of the new annual Children’s Report, after December 17, 2019, LMS will no longer be able to accept new quarterly reports or allow broadcasters to amend previously filed quarterly reports. So any missing reports or amendments to already-filed reports should be made by then. Review your files now, because if you discover the need to amend a report after that date, all you can do is place an explanatory note in your online public file in the Children’s Report section explaining why the FCC filings are incomplete or inaccurate. Of course, that will also necessitate an exhibit in a TV station’s upcoming license renewal application highlighting the mistake.

The Commission also notes that, to the extent necessary, it waives the requirement that broadcasters file a quarterly Children’s Report by January 10, 2020.  So be prepared for the transition to the new reporting system for children’s television reports – and be ready to file your annual Children’s Report by the January 30 deadline.

Extension of Comment Dates on VHF TV Reg Fees and on Incubated Stations

Delivered... David Oxenford | Scene | Wed 20 Nov 2019 5:36 pm

The FCC last week announced an extension of the deadline for initial comments in its proceeding to examine the regulatory fees that are paid by VHF television stations. We wrote here about this Further Notice of Proposed Rulemaking, which asked questions including whether VHF television stations and stations in the FCC’s incubator program should pay lower fees than currently scheduled. Those comments were originally due on November 22, but at the request of a satellite trade association whose members have fees that are also addressed in the proceeding, the deadline was extended until December 6, with reply comments now due on January 6.

Comment Dates Set on FCC Proposal to Abolish Rule Prohibiting Exclusive Use of Unique Tower Sites

Delivered... David Oxenford | Scene | Wed 6 Nov 2019 6:06 pm

At its October open meeting, the FCC adopted a Notice of Proposed Rulemaking looking to abolish its rule that bars a broadcast licensee from prohibiting a competitor from using a “unique” transmitter site that it controls. The rule was adopted decades ago and never used. It provides that a license renewal would not be granted to a broadcast licensee who controls a transmitter site that is the only site that could be used by a potential competitor and prohibits that competitor from using the unique site. Given that this rule has never been used, and that there are many more communications towers now than at any time in the past (as well as more broadcast stations), the FCC suggested that the rule was no longer needed to insure that new broadcast services could be provided to the public.

That NPRM has now been published in the Federal Register. Comments are due December 6, with reply comments due on December 23. Given the limited utility of this rule, we would expect few broadcasters will be rushing in to provide their comments on this FCC proposal. But, if this potentially affects your business plans going forward, you now know when you can file your comments in this proceeding.

November Regulatory Dates for Broadcasters – Ownership Reports, Comment Deadlines, LPTV Reimbursement Filing Deadline, a Forum to Examine the Future of the Broadcast Industry, and More

Delivered... David Oxenford | Scene | Wed 30 Oct 2019 5:21 pm

November is not one of those months with due dates for renewal filings, EEO public file reports or quarterly issues programs reports. Some of those obligations wait until December, when renewal filings for radio stations in Georgia and Alabama are due by December 2 (as December 1 falls on a weekend). Due for uploading on or before December 1 are EEO public file reports for station employment units with 5 or more full-time employees for radio or television stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont.

November 1 does signal the first day on which radio and TV stations can file their Biennial Ownership Reports. As we wrote here, the FCC has extended the deadline date for those filings until January 31, 2020 as the FCC is making refinements in its forms in the LMS filing system. Reports are to reflect the licensee’s ownership as of October 1, 2019 so stations have the information that they need and can start filing their reports later this week.

While there are no license renewal filing deadlines in November, post-filing license renewal notices must continue to be broadcast on radio stations that filed their renewals on or before November 1 in Florida, Puerto Rico and the Virgin Islands. Pre-filing announcements must also be run by the radio stations in Alabama and Georgia that will be filing their renewal applications by December 2. These pre- and post-filing announcements are to be run on the 1st and the 16th of November. And pre-filing announcements for radio stations in Arkansas, Louisiana, and Mississippi must begin on December 1.

Comments are due on the procedures for the upcoming auction for new commercial FM allotments on November 6, though the auction itself will not be held until April 2020 (see our article here). The FCC’s Further Notice of Proposed Rulemaking dealing with the annual regulatory fees paid by VHF television stations and stations involved in an FCC incubator program are due on November 22 (see our article here).

Comments are also due in November on a proposal to adopt more flexible rules for distributed transmission service by television stations that adopt the new NextGen (ATSC 3.0) television transmission standard. Initial comments on that proposal are due on November 12, with reply comments due November 27. See our article here for more information.

Reply Comments on the FCC’s review of its broadcast EEO rules are due November 4 (see our article here on the proceeding). Comments on the FCC’s proceeding to look at whether to change the requirements for providing local public notice of broadcast applications are due on November 18, with reply comments due December 2. See our article here on that proceeding.

LPTV stations and TV translators have until November 14 to file applications for reimbursement of the expenses that they incurred due to repacking issues following the TV incentive auction. See our articles here on the FCC’s extension of the filing deadline to November 14, and here and here on the reimbursement process.

The FCC will also be conducting a Forum on November 21 to review the state of the broadcast industry – looking at radio in the morning and TV in the afternoon. We’ll write more about that Forum tomorrow. For more information about the event, see the FCC’s Public Notice here.

The monthly FCC open meeting, to be held on November 19, will examine two broadcast issues. First, it will look at a Notice of Proposed Rulemaking that proposes to allow AM radio broadcasters to operate in an all-digital mode. The FCC’s draft NPRM is available here. The second item is a Notice of Proposed Rulemaking proposing to eliminate or modify the rule that prohibits simulcast programing on two stations in the same service (AM or FM) if they serve substantially the same area. The draft NPRM is available here.

As always, these are just highlights of the regulatory issues for broadcasters this coming month. Always check with your own counsel and advisors to determine what dates and deadlines might affect your station’s obligations.

Comments Due November 22 on Regulatory Fee Issues for 2020 – Including Whether to Reduce Fees for VHF Stations and Incubated Stations

Delivered... David Oxenford | Scene | Fri 25 Oct 2019 4:12 pm

The FCC’s Further Notice of Proposed Rulemaking on annual regulatory fees was published in the Federal Register this week, setting the comment date in that proceeding as November 22, with reply comments due December 23. As we wrote when the FCC’s fee decision for 2019 fees was released, this Further Notice is examining a number of issues. For broadcasters, there are two directly relevant issues. First, there is a question as to whether there should be some reduction of the regulatory fees for VHF television stations and, if so, what that reduction should be. The FCC this year moved to basing regulatory fees for a TV station on its estimated population coverage. Some VHF station owners have argued that, because VHF stations are subject to much more interference and have worse building penetration than do UHF stations, their predicted coverage does not accurately reflect their potential audience as it may for UHF stations, and thus the do not receive the same benefits from their license and the associated regulation as does a UHF station. The Further Notice seeks comment on this issue.

The second issue is whether stations involved in the FCC’s incubator program (about which we wrote here) should receive pay lower fees in order to promote the economic success of these stations owned by new broadcast owners. The hope is that this program will encourage broadcast ownership diversity. While organizations advocating for broadcast diversity have supported this idea, the recent 3rd Circuit decision overturning the FCC’s recent ownership rules and remanding them to the FCC for further consideration (see our article here) has put the incubator program on hold for the time being. Nevertheless, interested parties can file on this question and on the issue of a reduction in fees for VHF stations, by the November 22 deadline.

NAB and APTS Seek Changes in Rules to Allow Greater Use of Distributed Transmission Systems by TV Stations – FCC Seeks Initial Comments on Proposal

Delivered... David Oxenford | Scene | Mon 14 Oct 2019 4:01 pm

The National Association of Broadcasters and APTS (America’s Public Television Stations – the associations of public television stations) have filed a Petition for Rulemaking seeking to expand the area in which licensees can locate distributed transmission system transmitters (also known as single frequency networks), in connection with ATSC 3.0 operations. With the new ATSC 3.0 transmission system soon to be rolled out commercially by some TV stations, multiple transmitters on the same frequency can amplify a station’s signal, rather than causing destructive interference to it. Thus, rather than operating with single big transmitter in the center of a station’s service area, with signal strength decreasing as one moves away from that transmitter, a station could instead construct multiple transmitter sites throughout its service area, providing more uniform coverage and filling in what might otherwise be service gaps within its market in areas blocked by terrain obstructions, or otherwise remote, from the station’s main transmitter site.  NAB and APTS claim that current rules need to be amended to allow stations to best take advantage of the potential for DTS technology.

Under the current rules, TV stations cannot use a distributed transmission site to extend their signals beyond the interference-free contour of the full-power station. Under their proposal, APTS and NAB suggest that these distributed transmission sites could be located anywhere in the market as long as they do not extend the interference contour of the station – for UHF stations, the DTS transmitter’s 36 dBu would not be able to exceed the 36 dBu of the reference station.   The proponents of this idea suggest that it would allow stations to improve service to remote portions of their service areas.

The FCC has put this petition for rulemaking out for public comment. Comments are due by November 12, and reply comments are due by November 27, 2019. This is just a request for preliminary comments as to whether or not the FCC should proceed on this proposal. After receiving comments, the FCC will review them and if they conclude that the proposal has merit and support, the FCC will issue a Notice of Proposed Rulemaking seeking additional comments on a more specific FCC proposal for amending the rules. If you are interested in the NAB/APTS proposal, send in your comments by the November deadline.

FCC Extends Deadline for LPTV and TV Translators to File for Reimbursement for Repacking Expenses – FM Filing Deadline Not Extended

Delivered... David Oxenford | Scene | Wed 9 Oct 2019 4:17 pm

Yesterday, the FCC extended the deadline for LPTV stations and TV translators to file for reimbursement for their expenses incurred in changing channels because of the repacking of the TV band following the TV incentive auction.  These stations were given an extra month until November 15 to file these requests.  See our articles here and here for more information about the reimbursement program.  It is important to note that FM stations, which also can file for reimbursement of expenses incurred from having to change their facilities co-located on TV towers as a result of the repacking, have not been granted any extension.  FM stations still need to seek reimbursement by October 15, the original filing deadline.  FM stations seeking reimbursement need to be working now to meet next week’s deadline.

October Regulatory Dates for Broadcasters – EEO, License Renewal, Quarterly Issues Programs Lists, the Last Children’s Television Quarterly Report, Repacking Deadlines and More

Delivered... David Oxenford | Scene | Mon 30 Sep 2019 3:09 pm

October is one of the busiest months on the broadcaster’s regulatory calendar. On October 1, EEO Public Inspection file reports are due in the online public file of stations that are part of an Employment Unit with 5 or more full-time employees in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands. An employment unit is one or more commonly controlled stations in the same geographic area that share at least one employee.

October 1 is also the deadline for license renewal filings by radio stations (including FM translators and LPFM stations) in Florida, Puerto Rico and the Virgin Islands. On the 1st and 16th of the month, stations in those states, and in North and South Carolina, need to run post-filing announcements on the air informing listeners about the filing of their license renewal applications. Pre-filing announcements about the upcoming filing of license renewal applications by radio stations in Alabama and Georgia also are to run on the 1st and 16th. See our post here on the FCC’s reminder about the pre- and post-filing announcements.

October 10 is the deadline for Quarterly Issues Programs Lists to be uploaded into the FCC-hosted online public inspection file of each full-power radio and television station. As we wrote here, the FCC takes these reports very seriously as they are the only legally-mandated documents showing how a station has served the needs and interests of its service area. With a $15,000 fine and short-term license renewal recently proposed as a penalty for a station in Virginia that had ignored this obligation (see our article here), the FCC has made clear that it continues to emphasize the importance of these reports.

October 10 is also the date for the FCC filing of Quarterly Children’s Television Reports though, as we reported here, this will be the last such report as the Commission is transitioning to a yearly filing reporting on the compliance of TV stations with the children’s television rules. As that article reflects, TV station have the option, as of mid-September, to transition to the new standards for evaluating compliance with these rules.

October 15 is the date for repacked TV stations to file their Transition Status Report. On the 18th, Phase 6 of the repacking ends, and the next day, testing for Phase 7 begins.

October 15 is also the deadline for the filing of reimbursement requests by LPTV stations displaced by the repacking of the TV band and by FM stations that were otherwise affected by the repacking activities of TV stations. We wrote more about the reimbursement process here and here.

October 21 is the deadline for initial comments on the FCC’s proposals for changes in LPFM rules – including proposals for expanded use of directional antennas and booster stations. In that same proceeding, the FCC is taking comments on whether educational band FM stations still need to protect Channel 6 TV stations (or whether the conversion to digital TV operations has eliminated that need). The future of “Franken FMs” (LPTV stations on Channel 6 that use analog audio to broadcast a signal that can be received at 88.7 FM) is also part of this proceeding. See our articles here and here for more about this proceeding.

October 1 is also the snapshot date for the reporting of broadcast station ownership on the Biennial Ownership Reports that will be due by the end of January. Stations will need to report on their ownership as of October 1, even if that ownership changes between now and the deadline for the filing of the reports. The new forms for the reports will not be available until November 1, so stations cannot yet file the reports – but they can begin to prepare for that filing by noting their ownership as of October 1. See our article here on the FCC’s notice of the extension of the filing dates for these reports.

Plenty of deadlines to keep a broadcaster busy. As always, check with your own counsel to make sure that we have not omitted any deadlines that might affect your station.

Court of Appeals Rejects FCC Ownership Decision – Putting All Ownership Reform on Hold

Delivered... David Oxenford | Scene | Tue 24 Sep 2019 4:12 pm

Yesterday, a panel of judges from the US Court of Appeals for the Third Circuit decided by a 2 to 1 vote to overturn the FCC’s 2017 decision that made significant changes to its ownership rules (see the decision here).  The Court sent the case back to the FCC for further consideration.  The 2017 decision (see our article here) was the one which ended the ban on the cross ownership of broadcast stations and daily newspapers in the same market and the limits on radio-television cross-ownership.  The 2017 decision also allowed television broadcasters to own two TV stations in markets with fewer than 8 independent owners and made other changes to the radio and TV ownership rules.  Yesterday’s decision also put on hold the FCC’s incubator program meant to assist new owners to acquire radio stations (see our summary of the incubator program here).  All of this was done without any analysis whatsoever as to whether marketplace changes justified the changes to the ownership rules or of the impact that the undoing these rule changes would have on broadcasters and other media companies – including on radio companies hoping for changes in the radio ownership rules in current proceeding to review those rules (see our articles here and here).

What led the Court to overturn the decision if it was not the Court’s disagreement with the FCC’s determination that change in the ownership rules was needed?  This Court, in fact these same three judges, has overturned the FCC three times in the last 15 years, stymieing ownership changes because the Court concluded that the FCC had not sufficiently taken into account the impact that rule changes would have on diversity in the ranks of broadcast owners.  Here, again, the Court determined that the FCC did not have sufficient information on the impact of the rule changes on ownership diversity to conclude that the rule changes were in the public interest – and thus sent the case back to the FCC to obtain that information before making any ownership rule changes.  What led the Court to that conclusion, and what can be done about this decision?

In reviewing the FCC’s decision, which had paid significant attention to minority ownership issues, the Court made several criticisms of the FCC’s methodology, finding that the FCC did not have accurate information about the actual minority ownership of broadcast stations and how it has changed over time.  The Court concluded that without that information, the FCC could not make proper assessments about the impact of the rule changes on diversity in ownership.  The Court also faulted the FCC for not making determinations as to the ownership of broadcast stations by women.  Finally, the Court said that the FCC decision in adopting its incubator program to make small businesses the beneficiaries of the incubation process, rather than making minority or female owners the beneficiaries, did not sufficiently analyze the impact that using the small business definition would have on ownership diversity.  The FCC had found that it could not use racial or gender distinctions to determine the beneficiaries of the incubation process as that would be constitutionally suspect – but the Court concluded that, even so, the FCC needed to assess the impact on diversity of the rules it decided to use.

Note that Court did not decide that any of the rule changes made in 2017 were necessarily problematic.  In fact, the Court said that, even if the FCC determines the rules that it adopts adversely impact minority ownership, those rule changes may still be permissible if the FCC decides that the public interest requires changes in the rules despite their impact on diversity.  So, at the end of the day, the gathering of the required information could lead to the exact same result that the FCC reached in 2017.  The potential for that result seems to be reflected in the opinion of the dissenting judge, who notes that the world has changed in terms of media competition, that the 2017 rule changes were justified based on that change,  and that the needed changes in the rules should not be held up while the FCC is sent on what may be an impossible task of trying to document in a manner satisfactory to the Court’s majority how its rule changes will affect minority ownership.

What happens next?  The Court sent the case back to the FCC for further consideration, where the 2017 decisions would probably be added to those issues already under consideration in the current Quadrennial Review (see our article here on those issues).  However, instead of immediately taking up the Court’s remand, an appeal of this decision is possible.  In fact, Chairman Pai, in his statement after the decision, seems to suggest that the FCC will appeal the decision.  The first step may be to ask the other judges on the Third Circuit to rehear the case to determine if the three-judge panel was correct in its assessment.  An appeal to the Supreme Court is also possible, though that is a much lengthier process that could take longer to resolve than if the FCC considers the matter on its own.  We should see in the next month or so where the FCC decides to go on this matter – and how it affects pending applications that rely on the 2017 rule changes as well as future changes in the ownership rules.

Comment Dates Set on FCC Rulemaking to Review LPFM Rules and FM/TV Channel 6 Issues

Delivered... David Oxenford | Scene | Thu 19 Sep 2019 3:53 pm

The FCC’s Notice of Proposed Rulemaking on LPFM and Channel 6 TV issues, which we wrote about here, was published in the Federal Register today. This sets the deadline for comments in this proceeding as October 21, 2019, with reply comments due by November 4. This proceeding looks at issues including whether to remove all restrictions on LPFM stations’ use of directional antennas as well as whether such stations can use on-channel boosters to fill in gaps in their service areas. The rulemaking will also seek to resolve whether limitations should be lifted on locating FM educational stations near to TV channel 6 stations when the FM station is operating in the reserved band at the low end of the FM dial. The protections of these channel 6 TV stations from reserved-band FMs are based on the performance of analog TV receivers – which have not been a real concern for almost a decade since the TV digital transition. The rulemaking also seeks comments on whether LPTV stations operating on channel 6 can continue, after their digital conversion, to broadcast an analog audio signal capable of being received on most FM receivers (allowing these stations, sometimes referred to as “Franken FMs,” to operate as FM stations). If you are interested in any of these topics, be prepared to submit your comments to the FCC by October 21.

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