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

Delia Derbyshire: The Myths and the Legendary Tapes review – playful paean to a musical pioneer

Delivered... Rebecca Nicholson | Scene | Sun 16 May 2021 10:30 pm

Experimental and inventive, Caroline Catz’s film paints a fond, intimate and arty portrait of the influential electronic musician

I hope films like Delia Derbyshire: The Myths and the Legendary Tapes (BBC Four) will still have a home at the BBC after BBC Four becomes an archive-only channel, as is planned. I cannot imagine anything so wilfully arty sitting on a more mainstream channel. This is a wonderfully inventive piece of storytelling that celebrates the strange brilliance of a mysterious pioneer of electronic music. Even if it is not likely to bring in record audiences, it would be a crying shame if it were not on television.

Knowing only a little about Derbyshire’s life before, and feeling much more illuminated afterwards, I think it makes sense that her story is told in this experimental style. It was originally a short film, written and directed by Caroline Catz, who has extended it to feature length. The result feels like several ideas spliced together, surprisingly effectively.

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

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This Week in Broadcast Regulation: May 1, 2021 to May 7, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 9 May 2021 3:01 pm

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

  • The FCC released a Notice of Proposed Rulemaking that sets out its tentative plan for assessing broadcast regulatory fees to be collected before October 1 of this year to pay for FCC operations for the current fiscal year. The notice proposes sticking with last year’s decision to assess television fees based on the population served by a station.  The proposed fees to be paid by each TV station are included in an Appendix to the Notice.  While proposing to use these unique fees for each station for this year, the FCC proposes for next year to group TV station fees within tiers, and it seeks comments on the tiers to be used.  While the total fees to be paid this by the radio industry are the same as last year, each station is proposed to pay more, apparently based on the FCC’s estimates that there will be fewer total stations paying fees.  The FCC also asks if it should again provide some relief to companies that, because of COVID-related financial difficulties, cannot pay their fees or cannot pay them on time.  Comments on the FCC’s proposal are due by June 3 and reply comments are due by June 18.  (Notice of Proposed Rulemaking)
  • As we noted a few weeks ago, FEMA has now officially chosen August 11, 2021 as the date for the next national EAS test (with August 25 as a backup date). The test will originate through Primary Entry Point facilities (i.e., principally through broadcast transmissions) rather than through internet dissemination via the Integrated Public Alert & Warning System (IPAWS) to test how well alerts are distributed if internet delivery is unavailable.  (FEMA Letter)
  • The C-band Relocation Payment Clearinghouse (RPC) posted its Draft C-band Handbook and will accept comments on the draft before 6:00 p.m. Eastern on May 14. The handbook covers, among other things, how funds will be distributed from the money received from entities that purchased C-band spectrum rights to those entities, like broadcasters, eligible for reimbursement for clearing the spectrum. In the past week or two, many broadcasters who are eligible for reimbursement, either through lump-sum payments or through the actual reimbursement of out-of-pocket expenses, have heard directly from the companies coordinating the reimbursement process asking questions about the details for such reimbursement.  Stations should be sure to quickly respond to these inquiries to avoid delays or other problems with those payments.

This Week in Regulation for Broadcasters:  April 24, 2021 to April 30, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 2 May 2021 3:48 pm

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

  • The FCC’s new rules that permit AM broadcasters to convert to all-digital operations became effective April 29.  The new rules require the filing of the FCC’s Digital Notification Form (Form 335-AM) within 10 days of the start of all-digital AM operations. A station converting to all-digital operations must run on-air notices for 30 days before converting to alert analog listeners of their plans.  See our blog post, here, for more on all-digital AM.  (Public Notice)
  • The FCC released a guide summarizing TV closed captioning quality standards (accuracy, synchronicity, completeness, and placement). The guide includes best practices and discusses how TV stations must monitor and maintain their equipment and signal transmissions associated with closed captioning, perform technical equipment checks, take any corrective measures necessary to ensure that captioning is passed through to viewers intact, and keep records of these activities for a minimum of two years.  The guide serves as a good reminder to TV stations of their closed captioning obligations.  (Closed Captioning Compliance Guide)
  • The application window is now open for parties interested in participating in the FCC’s upcoming auction of construction permits authorizing the construction of 136 new FM stations and 4 AMs (Auction 109). The application window will close on May 11 at 6:00 p.m. Eastern Time.  (FCC Auction 109 Page)
    • Following the Supreme Court decision reinstating the FCC’s 2017 changes in its ownership rules, which also reinstated the FCC’s incubator program (see our article here), the FCC noted that the broadcast interests of certain investors in auction applicants classified as “eligible entities” under that program may not need to be counted against the applicant if it is seeking bidding credits in the auction for having three or fewer other broadcast interests. The application of these rules is very fact dependent so consult your attorney for advice on how this change might affect your status in the auction.  (Public Notice)
  • New radiofrequency (RF) exposure rules, adopted in 2019, will go into effect on May 3, 2021, requiring that all new facilities must comply with the new rules beginning May 3, 2021 and providing a two-year compliance transition period for existing facilities. The new rules include updated signage requirements for areas of high RF radiation.  They also make changes to the “categorical exemption” or “categorical exclusion” rules by which some facilities were exempted from demonstrating compliance with RF exposure limits.  (Public Notice)
  • The FCC cleaned up its retransmission consent rules to make them consistent with certain statutory changes, making clear that the requirement for parties to negotiate retransmission consent agreements in good faith and the prohibition on exclusive agreements will continue indefinitely. The language of the FCC rules, which was based on prior statutory language, suggested that these provisions terminated on January 1, 2020.  This week, the FCC made clear that they have no expiration date and thus remain in effect.  (Order)

For more on upcoming regulatory dates and deadlines coming up in May and early June, read this article.  These dates include the close of the application window for Auction 109, the effective date for new distributed transmission systems rules, and upcoming license renewal and EEO deadlines.

May Regulatory Dates: Auction Applications for AM and FM Construction Permits for New Radio Stations, New DTS Rules, License Renewals and More

Delivered... David Oxenford | Scene | Thu 29 Apr 2021 5:00 pm

May is somewhat lighter on broadcast regulatory dates and deadlines than some recent months, but there are still dates to note.  Among other things, the FCC will begin the process of auctioning 140 construction permits for new AM and FM radio stations across the country.  Also, broadcasters in several states, with an eye on the June 1 deadline, should be preparing now to file applications for license renewal or to prepare and upload to their public inspection file EEO public file reports, demonstrating their compliance with the FCC’s equal employment opportunity requirements.  So let’s take a look at some of the important dates for May (and early June).  As always, be sure to consult with your communications counsel on the dates and deadlines applicable to your operation.

The Auction 109 window for “short-form” applications to participate in the auction of 136 FM construction permits and 4 AM construction permits began at 12:00 p.m. Eastern Time on April 28 and will close at 6:00 p.m. Eastern Time on May 11.  By that deadline, interested parties must file with the FCC their short-form applications (FCC Form 175) setting out information including their ownership and the channels on which they are interested in bidding.    The auction is scheduled to begin on July 27.  A freeze on the filing of FM minor modification applications remains in effect until the end of the auction filing window.  This freeze was imposed to ensure that Commission staff and auction bidders have a stable database to work with during the auction.  Read more about the auction and freeze, here and here.

On May 24, new rules for distributed transmission systems (DTS, also known as single frequency networks) will go into effect.  These new rules are designed to give broadcast TV stations greater flexibility in the placement of multiple transmitters throughout their protected service area to provide a stronger, more uniform signal throughout their markets.  This is seen as important to facilitate the provision of the additional services that can be offered through the new ATSC 3.0 transmission standard (NextGen TV).  Note that, although the rules for full-power stations go into effect on May 24, the rules that apply to Class A, low power TV, and TV translator stations have to undergo additional review by the executive branch and will become effective sometime after May 24.  For more information, see our article here.

Looking ahead to early next month, by June 1, radio stations in Arizona, Idaho, Nevada, New Mexico, Utah, and Wyoming and television stations in Michigan and Ohio must submit applications for renewal of their license.  See our article, here, about preparing for license renewal.  These stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396) and, if they are part of a station employment unit (a station or a group of commonly owned stations in the same market that share at least one employee) with 5 or more full-time employees, upload to their public file and post on their station website a link to their Annual EEO Public Inspection File report covering their hiring and employment outreach activities for the twelve months from June 1, 2020 to May 31, 2021.

In addition to the stations noted above filing for license renewal, radio stations in Michigan and Ohio, TV stations in Arizona, Idaho, Nevada, New Mexico, Utah, and Wyoming, and radio and TV stations in the District of Columbia, Maryland, Virginia, and West Virginia must, if they are part of a station employment unit with 5 or more full-time employees, upload to their public file and post on their station website a link to their Annual EEO Public Inspection File report covering their hiring and employment outreach activities for June 1, 2020 through May 31, 2021.

By June 3, comments are due in the FCC’s new proceeding looking at the Commercial Advertisement Loudness Mitigation Act (“CALM Act”), which is meant to regulate the volume of commercials on broadcast TV and radio.  After inquiries from a Member of Congress, the FCC is asking the public and industry to weigh in on the current rules and whether changes need to be made.  Reply comments are due by July 9.  We wrote more about the CALM Act, here.

Be sure to watch our blog, FCC releases, trade press, and advisories from your legal counsel throughout the month for updates on these dates and other regulatory developments of importance to broadcasters.

Effective Date Set for New Rules on TV Distributed Transmission Systems (Single Frequency Networks) – An Assist in the Roll-Out of Next Gen TV 

Delivered... David Oxenford | Scene | Tue 27 Apr 2021 4:17 pm

In January, the FCC adopted new rules for Distributed Transmission Systems (DTS) for TV broadcasters (the FCC’s order is available here).  Last week, the rules were published in the Federal Register, setting the effective dates of these new rules as May 24, 2021 (except as they apply to Class A TV, LPTV and TV translators, where new rules are subject to further review by the Office of Management and Budget under the Paperwork Reduction Act before they become effective).  The FCC yesterday released a Public Notice confirming that effective date.  The new rules for DTS will allow over-the-air TV broadcasters to provide stronger, more uniform coverage throughout their service areas, rather than having coverage strongest near to a station’s transmitter site and decreasing as the distance to the viewer increases (or as terrain obstacles intervene).

DTS, also referred to as Single Frequency Networks, allow TV stations to, instead of having one large transmitter in the center of its market area, use multiple transmitters throughout the service area to provide more consistent coverage throughout the market.  The new ATSC 3.0, Next Gen television transmission standard that is being rolled out throughout the country was designed for this kind of operation. This transmission model is more akin to the operation of cellular telephone networks than to the old broadcast model.  ATSC 3.0 uses a transmission system in which multiple signals on the same channel that are receivable at the same location reinforce each other.  Older broadcast transmission systems face issues when trying to operate multiple transmitters on the same channel, as these transmitters can cause destructive interference in areas where their coverage overlaps, making coverage worse, not better  (see, for instance, the concerns about the proposals for the use of “zonecasting” for FM stations, where arguments have been raised that multiple FM same-channel boosters rebroadcasting a primary FM station will create pockets of interference within a station’s market – see our references to such comments in articles here, here, and here).  The new DTS rules allow TV broadcasters to take advantage of the new ATSC 3.0 transmission characteristics to provide uniform, strong signals throughout a station’s market, without the destructive interference.

Currently broadcasters can operate with DTS, but the signals from DTS transmitters must be restricted to the station’s existing protected contours.  DTS coverage outside the protected service contour, even if within the TV station’s designated Nielsen market, cannot be provided.  The new rules, however, provide broadcasters with a bright-line rule that will expand the permissible range of “spillover” by DTS facilities to areas outside of their current protected contours.  Specifically, the new rule will permit DTS transmitters to be located in any location so long as, for UHF stations, the 41 dBu F(50,50) contour for each DTS transmitter does not exceed the primary station’s current 41 dBu F(50,50) contour.  The relevant contours are 28 dBu for Low VHF stations and 36 dBu for High VHF stations.

The promise of ATSC 3.0 includes not only linear television programming but also enhanced data transmission capabilities.  Since   Next Gen TV allows for the transmission of data using standard Internet Protocols, the information transmitted can interact with all sorts of devices if the devices are designed to receive the new transmissions.  Stations using ATSC 3.0 will theoretically provide to smart devices everything from audio services to updates throughout a station’s service area.  The ability to provide such services to large areas through these Single Frequency Networks that reach entire markets is seen by the technology’s proponents as being far more efficient for many of these uses than the one-to-one Internet transmissions provided by other transmission systems.

While these rules will become effective in May, there still is a period for the filing of reconsideration petitions, and the Democratic commissioners still on the Commission expressed doubts in January about the adoption of this order and its potential impact on other spectrum users in these areas where greater coverage by television stations will be permitted (questions about that impact were raised in the Notice of Proposed Rulemaking that led to the rule changes – see our article here).  So, while the rules will become effective, it will be important to watch if there are future developments on this issue when all of the new Commissioners are in place.

This Week in Regulation for Broadcasters: April 17, 2021 to April 23, 2021

Delivered... David Oxenford | Scene | Sun 25 Apr 2021 1:57 pm

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

  • At the FCC’s regular monthly Open Meeting, the Commissioners voted to adopt new rules mandating sponsorship identification of foreign government-provided broadcast programming. The new rules require on-air and public file disclosures when programming is supplied by a foreign governmental entity.  Even though many broadcast groups argued for rules requiring broadcasters to take specific steps to warn programmers about these requirements and to research the foreign-government connections of programmers only when they had reasons to suspect a programmer of having such connections, the FCC required that these steps be taken whenever they enter into any agreement to lease airtime.  (Report and Order)
  • As we noted last week, Congresswoman Anna Eshoo (D-CA) wrote to Acting FCC Chairwoman Jessica Rosenworcel requesting that the agency look at the reported increase in complaints tied to the loudness of TV commercials and, if necessary, take enforcement action under the CALM Act. The FCC wasted no time acting on this letter and is now seeking comment on whether updates are needed to the FCC’s rules that implemented the CALM Act.  The FCC wants to hear from consumers about their television-watching experience as it relates to the loudness of commercials and from the industry about whether the rules are serving their intended purpose.  Comments are due by June 3 and reply comments are due by July 9.  We wrote more about this issue and the request for comments, here.  (Public Notice)
  • The FCC adopted a ten-application limit for the upcoming filing window for noncommercial FM radio stations to operate in the reserved band below 92 MHz on the FM band. (Public Notice).  The Media Bureau also set the dates for the filing of applications for these new noncommercial stations – requiring that they be submitted during a filing window running from 12:01 Eastern Time on Tuesday, November 2, 2021 through 6:00 pm Eastern Time on Tuesday, November 9, 2021.  More details about these applications will be released by the Commission at some point in the future.  Read more about this upcoming window on our blog, here.  (Public Notice)
  • New rules for distributed transmission systems (DTS, also known as single frequency networks) will go into effect May 24, 2021. The new rules are designed to give broadcast TV stations greater flexibility in the placement of multiple transmitters throughout their protected service area to provide a stronger, more uniform signal throughout their markets.  This is seen as important to facilitate the provision of the additional services that can be offered through the new ATSC 3.0 transmission standard (NextGen television).  The new rules provide broadcasters with a bright-line rule that will expand the permissible range of “spillover” by DTS facilities beyond current protected service areas.  The rules for full-power stations go into effect on May 24, but rules that apply to Class A, low power TV, and TV translator stations will not be effective until some later date following approval by the Office of Management and Budget.  (Federal Register)

In the week ahead, parties interested in participating in the FCC’s upcoming auction of 136 FM and 4 AM construction permits (Auction 109) can begin submitting their short-form applications (Form 175) on April 28 at 12:00 p.m. Eastern Time.  The application window will close on May 11 at 6:00 p.m. Eastern Time.  (FCC Auction 109 Page)

FCC Being Anything but CALM About Congressional Letter – Asks for Public Comments on CALM Act Enforcement

Delivered... David Oxenford | Scene | Wed 21 Apr 2021 4:53 pm

Earlier this week, we highlighted a letter sent last week from Congresswoman Anna Eshoo asking the FCC to review CALM Act complianceThe letter noted that the FCC has received thousands of complaints about loud commercials in the decade that the law has been in effect without having taken any enforcement action.  The FCC wasted no time in reacting, with Media Bureau issuing a request late Monday for comments on the current rules which implement the law and whether changes to those rules are needed.  Comments are due June 3, 2021, with reply comments due by July 9.

The CALM Act (the Commercial Advertisement Loudness Mitigation Act) was passed in 2011 due to the perception of many in Congress that the volume of commercials on broadcast, cable and satellite television was far higher than that in the programming that surrounded the commercials.  After the legislation was passed, the FCC adopted rules to implement the Act (which we described here).  Those rules were principally based on compliance with a set of ATSC (Advanced Television Systems Committee) recommended practices, to be enforced through a complaint-driven system. The FCC has updated those rules once (when ATSC updated its recommended practices – see our article here).  The FCC now asks if those rules should be revisited to make them more effective in combatting the perceived problem of loud commercials.

In this week’s request, the Media Bureau asks for consumers to let the FCC know about their experiences in watching programming carried by TV stations and MVPDs and the commercials carried in such programs.  Without setting out any specific proposals, the FCC also asks the industry to comment as to whether the CALM Act rules are still effective in combatting loud commercials or if they need to be changed to better reflect current industry practices and technologies.

This is just a request for public comment.  No specific changes in the current rules are proposed, and thus none could be adopted by the FCC unless and until they were proposed through a formal Notice of Proposed Rulemaking on which the industry and other interested parties could comment.  But the speed with which this request was generated suggests, as we noted on Monday, that this could be an area where the FCC could become active in enforcing the current rules.  TV broadcasters should be reviewing their CALM Act compliance now.  They should also offer in the comments due later this year and in any subsequent related proceeding any proposals they may have on how to make the system work better.

A New TV Station in Your Future?  Lifting of TV Freeze Brings Proposals for New Allotments

Delivered... David Oxenford | Scene | Tue 20 Apr 2021 3:41 pm

While the pandemic has focused much attention on streaming television services, at least some companies believe that over-the-air television still has a future, as evidenced by recent proposals to allocate new TV channels which, if adopted, could result in brand new TV stations.  As we wrote here, last year the FCC  lifted the freeze on applications for new TV allotments and for changes in existing stations, as the repacking of the TV band following the incentive auction has finally ended.  The lifting of the freeze, which had existed in some form for about 17 years, resulted in many requests for changes in the facilities of existing TV stations. As we wrote here in one of our weekly updates on regulatory matters, most were proposals for changes in the channels of existing stations from VHF to UHF channels.  Almost weekly since we first noted those requests, we have seen the FCC ask for comments on other proposals for channel swaps by existing stations.  UHF channels are, of course, seen to have better reception in a digital environment and are especially suitable for the transmission of the new ATSC 3.0 Next Gen television signals, so stations with VHF operations are looking to move.  But, recently, we have also seen requests for allocations for new TV stations being put out for public comment.

The two proposals that we have seen thus far (here and here), both filed by the same company that owns many TV stations across the country (including many in smaller markets), are for stations outside of major markets.  Given the compacting of the television band over the last two decades, first by the conversion to digital and then as part of the incentive auction process, there simply is not much spectrum for TV operations in most major markets.  But the number of proposals for stations to change from VHF to UHF operations shows that in some smaller markets there are still UHF channels available for application, and there are likely VHF opportunities in many other markets (one of the two recent proposals for new channels being for a VHF channel).  These proposals for new TV allocations show that there is still interest in over-the-air TV even in more rural areas.  Certainly, as ATSC 3.0 is built out offering a variety of non-television services (from data transmission to audio services), there will be a desire to make these services available nationwide, perhaps giving some glimpses of the future use of these new channels.  Watch as more proposals are filed at the Commission and, if you are interested in a new TV station, perhaps your opportunity is coming.  If these proposals are adopted, the channels will be auctioned by the FCC at some point in the future.

Congressional Letter to FCC on CALM Act Violations Puts Focus on FCC Enforcement Issues

Delivered... David Oxenford | Scene | Mon 19 Apr 2021 3:51 pm

As we highlighted yesterday in our weekly summary of regulatory issues for broadcasters, last week saw a letter from Congresswoman Anna Eshoo to the FCC asking for the FCC to review the enforcement of the rules established by the CALM Act, which prohibits loud commercials on TV stations.  The letter cites news reports of thousands of complaints annually to the FCC since the rule’s adoption in 2012 without there ever having been an enforcement action against a station for any violation.  When the CALM Act was passed by Congress, there were many industry questions about how that law could be enforced, as there are many subjective judgments in assessing whether a commercial is louder than the program into which it is inserted (see our article here).  But, ultimately, the FCC adopted rules that were based on industry standards and most parties seemed to believe that they were workable (see our article here about the adoption of those rules).  Like many FCC rules, the CALM Act rules are complaint-driven, and even the article cited by Congresswoman Eshoo recognized the difficulty in assessing the merits of any complaint.

Nevertheless, with this letter and the publicity that it has received in the broadcast trade press, TV stations should carefully review their compliance with the CALM Act rules, as this publicity could signal that the FCC will turn its attention to this issue in the coming months.  In fact, with a Commission that is currently evenly divided between Democrats and Republicans until the vacant seat on the Commission is filled, enforcement of existing FCC rules may well be one place where the current Commission will turn its attention while more controversial (and potentially partisan) rule changes await FCC action.

We have obviously seen some more attention being paid to enforcement issues in recent months.  In addition to the consent decrees signed by hundreds of radio broadcasters for political file violations (see our articles here and here), there have been a recent spate of consent decrees entered into by broadcasters both noncommercial (see our article here) and commercial (see our mention here in one of our weekly updates) based on more general failures to maintain a complete and current online public inspection file.  We have also noted an uptick in questions about EEO performance raised in connection with license renewal application filings.  There have been enforcement inquiry letters sent by the FCC on other issues too, including EAS compliance.  We also noted the recent enforcement updates issued by the FCC reminding broadcasters of their obligations under FCC rules, including the one on sponsorship identification about which we wrote here.  Maybe it is just a perception, but enforcement issues seem to be a priority for the FCC.

Obviously, compliance with FCC rules should always be the highest of priorities among any participants in a heavily regulated industry like broadcasting.  But every now and then, the FCC seems to take steps to remind broadcasters of their obligations.  This seems to be one of those times – so broadcasters, take note.

This Week in Regulation for Broadcasters: April 10, 2021 to April 16, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 18 Apr 2021 1:22 pm

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

  • According to press reports, broadcasters should pencil in August 11, 2021 on their calendars for the next national test of the Emergency Alert System (EAS). Following the test, broadcasters will need to report to the FCC how their EAS equipment functioned and what, if any, problems were encountered relaying the test message.  This information will be used by the FCC in a report on the readiness of EAS in the event of an activation.
  • The FCC posted an online tutorial for parties interested in participating in Auction 109, the upcoming auction of 136 FM construction permits and 4 AM construction permits which will allow winning bidders to construct new radio stations. The tutorial is available for on-demand viewing on the “Education” tab of the Auction 109 website at http://www.fcc.gov/auction/109.  The window to apply for a construction permit is from 12:00 p.m. Eastern on April 28 to 6:00 p.m. Eastern on May 11.  We wrote about the auction, here.
  • Congresswoman Anna Eshoo (D-CA) wrote to Acting FCC Chairwoman Jessica Rosenworcel requesting that the agency look at the reported increase in complaints tied to the loudness of TV commercials and, if necessary, take enforcement action under the CALM Act. The letter cites press reports of thousands of consumer complaints to the FCC which never resulted in any enforcement action.  Eshoo sits on the House Energy and Commerce Committee, which has jurisdiction over the FCC, so stations should review CALM Act compliance as this may be an area of FCC review in coming months.  (Eshoo Letter)
  • We reminded broadcasters that, even outside of political windows, they must upload appropriate information to the political files folder in their FCC-hosted online public inspection file reporting on ads that run on their stations addressing controversial issues of public importance. (Broadcast Law Blog article).

Looking ahead to next week, earth stations operating in the C-Band that have been reported as no longer operational or that have not responded to communications from the C-Band Relocation Coordinator must act by April 19 and file with the FCC confirming their continuing operational status or their authorizations will be deleted from the FCC’s database and no longer protected.  While this deadline has been the subject of many trade press reports and some widely distributed memos from law firms, it actually affects only a handful of broadcasters.  Earth station operators that have filed for lump sum reimbursement or have otherwise been in contact with the Relocation Coordinator should not appear on the lists and have no April 19 filing obligation.  We posted the lists and wrote more, here, about the deadline.

Also next week, the FCC will hold its required monthly Open Meeting.  Broadcasters will be watching two agenda items in particular: the vote to adopt new rules for identification of programming that is sponsored by a foreign governmental entity and the vote to adopt a ten-application limit in the upcoming noncommercial, reserved band FM construction permit filing window.  We wrote briefly about these items, here.

This Week in Regulation for Broadcasters: April 3, 2021 to April 9, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 11 Apr 2021 2:26 pm

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

  • The National Association of Broadcasters this week announced that its CEO, Gordon Smith, will be stepping down at the end of the year to be replaced by COO, and former head of Government Relations at the NAB, Curtis LeGeyt. We wrote here about some of the many legal and policy issues likely to be facing the NAB in the coming years.
  • The FCC continues to scrutinize public file compliance in connection with the filing of a license renewal application. After several noncommercial stations entered into consent decrees over non-compliance, commercial stations have started to receive consent decrees, as well.  In the latest example, a Tennessee station had not filed an ownership report since 2012 and had not uploaded any quarterly issues/programs lists to its public file.  The consent decree comes with the requirements to name a compliance officer, adopt a written plan that includes a compliance manual and mandatory training for employees, quickly report future public file violations to the FCC when they are discovered, and file periodic compliance reports with the Commission. (Consent Decree)  As all full-power stations, commercial and noncommercial, should have uploaded Quarterly Issues Programs Lists to their online public file by April 10, this reminder that the FCC is watching stations’ public files is very timely.
  • The FCC reminded full-power TV stations, Class A TV stations, LPTV and TV translator stations, FM radio stations, and multichannel video programming distributors (MVPDs) that filing deadlines begin in six months for the submission of all remaining invoices for reimbursement for the costs they incurred from the repacking of the TV band following the Incentive Auction. Full-power TV and Class A TV stations that were assigned to repack phases 1-5 have a final invoice submission deadline of October 8, 2021.  Full-power TV and Class A stations assigned to repack phases 6-10 have a deadline of March 22, 2022.  Low power TV stations, TV translators, FM radio stations, and MVPDs have a filing deadline of September 5, 2022.  See the Public Notice for more details on the close-out procedures.  We wrote more about this, here.
  • The FCC issued a Public Notice asking interested parties for comment on whether updates are necessary for the rules that are required to implement the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). The CVAA is responsible for such agency rules as audio description, accessible emergency information, and closed captioning of video delivered over Internet Protocol.  Comments are due by May 24 and reply comments are due by June 21.  (Public Notice)

Looking ahead to next week, the FCC by Wednesday, April 14 will post an online tutorial to help parties interested in participating in Auction 109, the upcoming auction of 136 FM construction permits and 4 AM construction permits that we wrote about here.  The tutorial will provide information about all aspects of the upcoming auction for the opportunity to construct new radio stations. There will also be a way to ask FCC staff questions about the auction.  Once posted, the tutorial will be accessible on the “Education” tab of the Auction 109 website at http://www.fcc.gov/auction/109 for on-demand viewing.

Closing Out the Incentive Auction and TV Repack – FCC Reminds Broadcasters of End Dates for Submitting Invoices for Repacking Expenses

Delivered... David Oxenford | Scene | Fri 9 Apr 2021 3:49 pm

The Commission’s staff this week issued a Public Notice reminding broadcasters that  the reimbursement program for those broadcasters displaced by the repacking of the television band after the incentive auction is coming to an end.  The FCC reminded broadcasters eligible for reimbursement (including certain FM stations and LPTV licensees – see our article here ) that deadlines to submit invoices for reimbursement will start in six months.  By those deadlines, all remaining invoices for reimbursement from the TV Broadcaster Relocation Fund must be submitted to qualify for reimbursement.

While different deadlines apply to different categories of broadcasters eligible for reimbursement, the Commission “strongly encouraged” all broadcasters to submit all remaining invoices and initiate close-out procedures as early as possible.  The FCC notes in the Public Notice that payments up to the total amount of each entity’s allocation are available upon processing of documents reflecting reasonably incurred costs.  However, the FCC will not be able to make a final allocation up to the full amount of costs incurred until all or virtually all invoices for incurred costs are submitted, or at such time as the FCC can reasonably extrapolate that the total amounts available in the Relocation Fund will be sufficient to meet all of the costs that have to be covered under that program.

The final invoice filing deadlines are:

  • October 8, 2021 for Full power and Class A TV stations assigned transition completion dates in phases 1-5 of the Repack;
  • March 22, 2022 for Full power and Class A TV stations assigned transition completion dates in phases 6-10 of the Repack; and,
  • September 5, 2022 for Low Power TV and TV translator (LPTV/translator) stations, FM stations, and multichannel video programming distributors (MVPDs) who were eligible for reimbursement.

Look for more details about the process in the FCC’s Public Notice as well as in a prior Public Notice about these deadlines that was released on October 7, 2020.  These notices also remind broadcasters that submitting the invoices and receiving the reimbursement is not the end of the line – they must retain documents supporting the claimed expenses for a period ending 10 years after the date they receive their final payments from the Reimbursement Fund – just in case questions come up about the reimbursement claimed.  So if you have not made claims for reimbursement for repacking expenses, now is the time to do so.


With a Change at the Top at the NAB as CEO Gordon Smith Plans His Departure – What are the Regulatory Issues That are Facing Broadcasters?

Delivered... David Oxenford | Scene | Thu 8 Apr 2021 4:21 am

The broadcast trade press is full today with the news that NAB CEO Gordon Smith will be stepping back from that position at the end of the year, to be replaced by current COO (and former head of Government Relations) Curtis LeGeyt.  As many will remember, Smith took over the organization over a decade ago during a turbulent time for the industry.  At the time, TV stations faced increasing calls for other uses of the broadcast spectrum, and radio stations faced a possible performance royalty on their over-the-air broadcasts of sound recordings.  Since then, through all sorts of issues, there has been a general consensus in the industry that its leadership was in capable hands and meeting the issues as they arose.

But many issues remain for broadcasters – some of them ones that have never gone away completely.  The sound recording performance royalty for over-the-air broadcasting remains an issue, as do other music licensing issues calling for changes to the way that songwriters and composers are compensated, generally calling for higher payments or different compensation systems (see our articles here on the GMR controversy and here on the review of music industry antitrust consent decrees).  TV stations, while having gone through the incentive auction giving up significant parts of the TV broadcast spectrum, still face demands by wireless operators and others hungry for more spectrum to provide the many in-demand services necessary to meet the need for faster mobile services (see our articles here on C-Band redeployment and here on requests for a set aside of TV spectrum for unlicensed wireless users).  But competition from digital services may well be the biggest current issue facing broadcasters.

Digital services compete directly with broadcasters for both audience and advertising dollars.  The FCC’s 2017 changes in the ownership rules upheld by the Supreme Court last week (see our article here) were premised on changes brought about by digital competition.  Certainly, the abolition of the newspaper-broadcast cross-ownership restrictions was directly tied to the newspaper industry being fundamentally weakened by digital competition.  Forty-five years ago, when the prohibition was initially approved, newspapers had the largest share of the local advertising market.  As much of their readership and advertising is gone, many papers are struggling to stay alive. Thus, the newspaper has gone from a competitor whose combination with a broadcaster threatened the competitive balance in a market to one where that combination can be a lifeline to the paper.

The TV rules were also relaxed by the Court’s decision.  In light of competition from streaming services and online content, the FCC decided to allow TV owners in small and medium markets to own up to two TV stations, so that those owners can continue to provide the local services and free entertainment for which they have been known.  While there have been some calls to revisit those decisions, one can only imagine that the pandemic has accelerated trends toward more reliance on streaming services.  Moving away from the modest 2017 relaxation in local TV ownership rules in today’s environment would only set the stage for a weakened TV industry in the future.

Radio too faces these threats (see our articles here and here).  As radio audiences are eroded by streaming and podcasting, and over-the-air radios are becoming harder and harder to find in stores and even in homes, one cannot help but see the impact of digital competition on the health of the industry.  In 2019 when the FCC took comments on the radio ownership rules, economic studies showed that the big tech companies are now taking more than 50% of local advertising dollars in virtually every market in the country.  This has reduced the revenue that formerly supported local media like radio (which has always received the bulk of its advertising sales from local advertising, not national ads).  Allowing local radio stations to combine to battle the digital media giants will be another battle that will have to be faced by the NAB in the near term.

Regulation of the online platforms themselves is certainly going to be another issue on which the NAB will have to weigh in.  We recently wrote about the proposals for changes to the antitrust laws to allow broadcasters and other traditional media companies to jointly negotiate for fair compensation and other rules of the road with online service providers who distribute their content.  The NAB already has endorsed that call.  That issue will no doubt be just one of the many issues about digital regulation that will arise.  There have been some calls for creating a must-carry/retransmission consent regime for the virtual MVPDs that are now competing with traditional cable and satellite TV providers.  And there are a whole host of other proposed regulations on these digital platforms that the NAB will no doubt need to consider (see our article here for a summary of some of these issues).

These big picture items are just some of the many regulatory issues facing broadcasters.  There are always tax issues (like advertising sales taxes and ad tax deductibility) that could cause problems for broadcasters.  Other advertising issues regularly arise.  In the past few months, we have seen more and more calls for limitations on press freedoms and First Amendment protections that should trouble broadcasters.  And the FCC is always doing something that could affect broadcasters in some way, requiring industry vigilance.

The broadcaster’s regulatory plate is full.  We look forward to seeing Senator Smith at industry events during the remainder of his term to wish him well and thank him for his service.  And we extend our congratulations to Curtis LeGeyt and look forward to working with him, as he will now be charged with tackling all of the issues that face the industry in the coming years.

This Week in Broadcast Regulation – March 27, 2021 to April 2, 2021

Delivered... David Oxenford | Scene | Sun 4 Apr 2021 4:57 am

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

  • The Supreme Court this week announced its decision in Federal Communications Commission v. Prometheus Radio Project, the broadcast ownership case that was argued before the Court in January. In a unanimous opinion, the Court sided with the FCC and with broadcasters and upheld the FCC’s 2017 ownership rule changes which eliminated the newspaper-broadcast cross ownership rule, the radio-television cross ownership rule, and the television “8-voices test” allowing combinations of two TV stations in any market where at least one of the stations is not one of the top-4 ranked stations.  Also gone is the blanket prohibition on combinations involving two top-4 TV stations in a market, which is replaced with a case-by-case analysis by the FCC.  Our discussion of the opinion is here and the full opinion is available here.
  • Comment and reply comment deadlines were set for the FCC’s proposal to update its Emergency Alert System (EAS) and Wireless Emergency Alerts system (WEA) rules, including enhancing the reporting requirements for false EAS alerts, and its inquiry into whether emergency alerts can be delivered through the internet, including through streaming services. Comments on the EAS/WEA proposal are due by April 20, 2021, and reply comments are due by May 4, 2021.  Comments on the delivery of alerts by internet are due by May 14, 2021, and reply comments are due by June 14, 2021.  We wrote about the proposal and inquiry, here.  (Federal Register)
  • The FCC released more details for its upcoming Auction 109, which will auction the rights to 136 FM construction permits and 4 AM construction permits, allowing winning bidders to start new radio stations in the listed communities. The auction itself is scheduled to begin on July 27, 2021 (a list of the permits to be auction is here, with opening bid amounts).  Interested applicants must submit “short-form” applications to participate in the auction during a window that runs between 12:00 p.m. Eastern on April 28 through 6:00 p.m. Eastern on May 11.  For more details, review the Public Notice and our article here.  A freeze on FM minor change applications will be in place during the filing window.
  • The Copyright Royalty Board was given another two months to complete its work setting the royalty rates to be paid in 2021-2025 to SoundExchangefor the public performance of sound recordings by webcasters, including broadcasters who simulcast their programming on the internet.  Instead of a decision in the next two weeks (which we anticipated in our summary of April regulatory dates for broadcasters), the CRB decision can now be expected by June 14.  We wrote about the extension and the ongoing proceeding, here.  (News Release)
  • There are two items of interest to broadcasters on the agenda announced this week for the FCC’s April 22 required monthly Open Meeting. Scheduled to be voted on are:
    • New rules for standardizing and formalizing sponsorship identification requirements for broadcast stations that accept foreign government-provided programming. (Draft Report and Order)
    • Adoption of a ten-application limit per applicant in the upcoming 2021 noncommercial educational radio filing window where nonprofit educational broadcasters will be able to file for construction permits to build new noncommercial stations in the reserved band (below 92 FM). (Public Notice)
  • Two items we covered on the blog this week are also worth noting, one of which is regulatory and one of which is legislative. We wrote about the recent spate of noncommercial educational stations entering into consent decrees with the FCC over public file noncompliance tied to their license renewal applications.  On the legislative side, we wrote about a congressional effort to provide an antitrust exemption for creators of news content to get together to negotiate collectively with tech companies for payments for the use of that content on social media and other digital platforms.


Supreme Court Reinstates 2017 FCC Changes to Broadcast Ownership Rules Including the End to Newspaper-Broadcast Cross-Ownership Ban – But Radio Changes Yet to Come

Delivered... David Oxenford | Scene | Fri 2 Apr 2021 12:10 pm

The United States Supreme Court yesterday released its decision upholding the FCC’s 2017 changes to its ownership rules in the FCC v Prometheus Radio Project case (see our summary here).  Those rules had been put on hold in 2019 by a decision by the Third Circuit Court of Appeals which held that the FCC had to develop a more detailed record on the impact of rule changes on minority ownership before making any such changes (see our summary of that decision here).  The Supreme Court did not issue a sweeping decision evaluating the competitive landscape for the broadcast industry, nor was it expected to.  Instead, the Court decision was a narrow legal one, looking at whether the decision of the FCC was entitled to traditional judicial deference to expert administrative agencies.

The Supreme Court was reviewing the legal question of whether the FCC’s 2017 review of diversity was adequately justified.  In 2017, the FCC determined that that no substantial impact on diversity was proven by any party who filed comments in the media ownership proceeding and, to the extent that there was an impact, the benefits of making broadcast companies stronger competitors in today’s media marketplace outweighed that impact.  The Third Circuit would have had the FCC conduct a sweeping historical analysis of the impact of past instances where the ownership rules were relaxed to see the impact on minority ownership so that the FCC could judge the likely impact of new changes to the rules.  The Supreme Court found that the FCC had no obligation to conduct its own studies into that issue and, based on the evidence before the FCC, its decision to relax the rules was not an arbitrary one.  Thus, it was entitled to the deference given to decisions of expert regulatory agencies (see our article here on the deference given to administrative agency decisions).  In essence, this was a narrow decision based on principles of administrative law to which all nine Justices, liberal and conservative, could agree.

The practical result of this decision is that the newspaper-broadcast cross-ownership prohibition will end.  We have speculated before that the ban might well outlive the daily newspaper, but it appears that this will not be the case.  We certainly do not think that any future FCC would try to reinstate the cross-ownership ban given the current state of the newspaper industry.  Also abolished in 2017 and now formally ended are the radio-television cross-ownership restrictions.  The 2017 decision also did away with the requirement that, to combine two TV stations in the same market, there had to be 8 independently owned and operated stations in that market.  It also ended the strict prohibition on combining two of the top 4 TV stations in any market (substituting a case-by-case review by the FCC of proposed top 4 combinations).  These 2017 decisions were also upheld by the Court’s decision.

The decision does not directly affect the local radio ownership rules, which were left unchanged in the 2017 decision (except for a very narrow change concerning embedded markets – see our article here).  Changes to the radio rules were under consideration in a new ownership review started in late 2018, with comments filed in 2019 (see our summary here of the questions asked in that proceeding).  Consideration of any changes to the radio rules, such as the significant changes proposed by the NAB, were delayed after the Third Circuit’s decision because, under that court’s reasoning, before any such changes to the rules were made, there would need to be that detailed review of the potential impact on minority ownership.

Now that the Third Circuit’s reasoning has been rejected, that still does not mean that the FCC, particularly a Democratic-controlled FCC, will automatically look to relax the radio rule.  Instead, we think it likely that the Commission will ask for more comments on the issues raised in the 2018 proceeding.  This will likely include a request to discuss the impact of the Supreme Court decision on the Commission’s evaluation of proposed changes to its rules.  It would not be surprising for the FCC to also ask for an update of the comments filed in 2019 to reflect the state of current marketplace.  In other words, any change in the radio ownership rules will not come quickly.

The FCC may also ask for other comments on other ownership rules in light of the Court’s decision – including potentially revisiting some of the issues decided in 2017 (particularly the combinations of top 4 TV stations as, in the 2019 ownership proceeding, the FCC had asked for comments on when such combinations should be allowed).  With a new Commission that will in the not-too-distant future have a third Democratic Commissioner, the attitudes toward relaxation of the ownership rules may well be far different than they were in 2017.  In fact, Acting Chairwoman Rosenworcel issued a statement expressing her disappointment in the Court’s decision.  In contrast, Commissioner Carr, one of the Republican holdovers, stated his wholehearted approval of the Court’s decision.

So this decision, while reinstating the changes made in 2017, sets the stage for more ownership debates to come.  Watch for developments on these issues in the coming months.



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