FCC Proposes to Eliminate Main Studio Rule for Broadcasters

On May 18, 2017, the Federal Communications Commission proposed to eliminate the rule requiring radio and television broadcasters to maintain a main studio located at or near a station’s community of license.  The Commission proposed the repeal of the rule on the grounds that the ubiquity of electronic communications eliminated the necessity of a studio’s physical presence to ensure adequate communication and cooperation between a broadcaster and the community it represents.  While all three Commissioners agreed to adopt the Notice of Proposed Rulemaking (NPRM) proposing the elimination of the main studio rule, Commissioner Clyburn expressed serious reservations about the effects of eliminating the rule on relations between broadcasters and the communities they serve.

The Commission also proposed the elimination of several regulations ancillary to the main studio rule itself, including:  (1) the requirement that a main studio have a “meaningful management and staff presence” to fulfill the main studio’s function; (2) the requirement that a broadcaster ensure that its main studio has “continuous program transmission capability”; (3) informal application requirements for relocating a main studio; (4) FM station studio location requirements within a station’s principal community contours; and (5) permissive changes to a studio’s location.  The Commission justified the elimination of these regulations on the grounds that they would be rendered meaningless by the absence of the main studio rule.  However, the Commission proposed to retain the requirement that broadcasters maintain either a local or toll-free telephone number for their stations in order to ensure that community members continue to have access to their local broadcast stations.

By issuing a NPRM, the Commission has invited public comment on its proposal to eliminate the main studio rule and its associated regulations.  The Commission is particularly concerned with the costs faced by broadcasters in compliance with the rules, and whether the purpose and effect of Section 307(b) of the Communications Act – which requires that the FCC distribute broadcast stations and licenses in a manner that is “fair, efficient, and equitable” – could still be fulfilled following the elimination of the rules.  Finally, the Commission has requested comment on whether physical access to a station’s public inspection file (for stations that continue to maintain parts of their files in physical form) must be ensured through other means – such as placing the file in a local library – following the repeal of the rules.

Comments and Reply Comments on the proposed elimination of the main studio rule and its associated regulations will be due thirty and forty-five days, respectively, after the NPRM is published in the Federal Register.

Please contact Dan Kirkpatrick at (703) 812-0432 or Keenan Adamchak at (703) 812-0415 if you would like to submit a comment in the main studio rule elimination proceeding, or have any questions regarding the potential changes to your station’s compliance obligations as a result of the proceeding.

FCC Temporarily Waives International Traffic Reporting Requirements

The Federal Communications Commission recently issued a temporary waiver of its international traffic and revenue reporting requirements while it contemplates a more permanent scaling-back of regulatory burdens associated with international telecommunications services.

Long-time readers of our blog may recall that we reported on FCC “reductions” to international reporting obligations a few years ago – but that endeavor ended with new reporting obligations that appeared to keep the overall regulatory burden at a constant.  This time around the FCC appears geared towards a more significant reduction or elimination of these burdens. Continue Reading

FCC Opens Broad Review of Wireless Siting Impediments

 

(Commission is looking for ways to streamline the site permitting process)

tower-4At its April 2017 meeting, the FCC finally adopted a long awaited Notice of Proposed Rulemaking and Notice of Inquiry addressing the many frustrations faced by tower builders, wireless carriers, and others who have run the painful and often lengthy gauntlet of getting a local building permit for a communications station.   The Commission had been hearing a chorus of complaints from the tower and wireless industries that local permitting authorities and Native American tribes were seriously slowing down the permit process and often charging excessive “fees” for reviewing the applications.  With the prospect of hundreds of thousands of microcells being needed in connection with the imminent arrival of the Internet of Things, these costs and delays threatened to cripple not only the nation’s ability to roll out microcell technology but also the construction of the macrocells needed to serve rural areas that continue to suffer from a lack of high speed broadband.  The FCC heard the cries of its people and has proposed a number of actions to address these issues. Continue Reading

FCC v. Colbert – A Controversy Based on Truth or Truthiness?

Last Monday, during his monologue on the Late Show, Stephen Colbert made a number of jokes at President Donald Trump’s expense, including lobbing a series of insults at the President.  (The full monologue is available here; check around 11:15 for the portion that has gotten folks talking).   One of these insults, which included a joking reference to oral sex involving President Trump and Russian President Vladimir Putin, has created quite a stir.  While such a joke could certainly be expected to draw attention, some of the reaction to it, and in particular the reaction to the FCC’s reaction, is probably overblown in light of the governing legal principles involved.

Not surprisingly, Colbert’s joke led to at least some complaints being filed with the FCC.  This is not in any way uncommon, as perhaps most programming with even a hint of sexual content will draw a complaint from somewhere.  (The joke also got a large response on Twitter and in the media generally, including calls for boycotts and Colbert’s firing, but our focus here is on the FCC).   While most such complaints are ultimately resolved with little or no publicity, it seems inevitable that that was never to be the case here.  With a President who has been highly critical of the press, a late-night host who has in turn been highly critical of the President, an FCC Chairman who has been recently appointed by that President, and the polarized political climate of the moment, this was certainly not a spat that could fly under the radar.

During a couple of press interviews shortly after the Colbert monologue, FCC Chairman Ajit Pai was asked about the incident, and confirmed that the Commission has received “a number” of complaints.  Chairman Pai went on to say (in a May 4 interview with Philadelphia radio station WPHT), that “[the FCC was] going to take the facts that we find and we are going to apply the law as it’s been set out by the Supreme Court and other courts and we’ll take the appropriate action,” which he indicated would typically involve a fine in the event a violation was found.

The Chairman’s response has itself created something of a firestorm, leading to a number of articles suggesting that the FCC is “going after” Colbert, presumably with some political motivation.  Some commentary has characterized the FCC investigation as censorship, and the Writers Guild of America has argued that the Chairman’s comments indicated a “willful disregard for the First Amendment.”  At least at this point, this rhetoric seems a bit overblown.  While the Commission could, of course, take action in this proceeding that would cause legitimate controversy, it seems that so far, all the Chairman has done is to admit that the FCC has received complaints, confirm that it will do its job in resolving them, and acknowledge the limits on the Commission’s authority.

Under the Commission’s rules and precedents, when it receives a complaint regarding allegedly indecent or obscene programming, it is required to look into that complaint.  In doing so, and in imposing any type of penalty based on its findings, the Commission is bound to follow, as Chairman Pai acknowledged, “the law as its’s been set out by the Supreme Court and other courts.”  That law in this case is quite clear, and would, in my opinion, make it extraordinarily unlikely that the Commission will impose any sanction on Colbert.

As the Chairman noted in his public comments, Colbert’s monologue aired after 10:00 pm and, as such, would need to be “obscene” to warrant a sanction, rather than simply “indecent.”  For programming airing between 6:00 am and 10:00 pm, the Commission can impose fines or other sanctions for programming that it finds to be “indecent” or “profane.”  The standards for indecency and profanity have historically been very difficult for the Commission to define, and almost every time the Commission imposes fines for such programming, they are controversial.  Nonetheless, such fines are not terribly uncommon.

The standard for “obscene” programming, however, has been pretty clearly defined by the Supreme Court.  The Court has established a three-prong test for “obscene” programming, which must 1) applying contemporary community standards, appeal to an average person’s prurient interest, 2) depict or describe sexual content in a “patently offensive” way, and 3) taken as a whole, lack serious literary, artistic, political or scientific value.  If content is deemed obscene (whether it is broadcast content or otherwise), it no longer is protected by the First Amendment and can therefore be regulated.  As a practical matter, it is extraordinarily difficult to satisfy this test, as can readily be demonstrated by the continuing legality of the pornography industry (or any site you could find within three clicks on the Internet).  Indeed, while the FCC in recent years has addressed numerous indecency claims, and imposed often stiff penalties for indecent broadcasts, it has not done so for allegedly obscene programming.  In light of the inclusion of Colbert’s statement in a clearly political monologue, and the fact that it was almost certainly not intended to appeal to prurient interests (i.e., it was not intended to be arousing), it would be clearly contrary to precedent for the FCC to find obscenity here.

Because the FCC has received complaints regarding Colbert’s monologue, it must at least review them, as well as the underlying programming.  Consistent with precedent, however, there is simply no violation deserving of punishment.  While some may have preferred that Chairman Pai say this explicitly, such a statement would open an entirely separate set of concerns in the form of an FCC Chairman prejudging an ongoing proceeding.   Based on the law, however, and at least as regards the FCC, it seems that all the sound and fury regarding Colbert’s joke really will signify nothing.

FCC Public Notice Seeks 411 on Broadband for Health IT

medical-telemetry-1Imagine if all Americans had seamless remote access to doctors and hospitals throughout the country, if an individual in Angle Inlet, MN (total population of 60) could consult with a doctor in Minneapolis without ever having to leave the comfort of his own home, or if a surgeon in Washington, DC, could perform an operation on an individual located in Charlotte, NC via robotics.

As the FCC notes, “the future of modern health care appears to be fundamentally premised on the widespread availability and accessibility of high-speed connectivity. By some estimates, broadband-enabled health information technology can help to improve the quality of health care and significantly lower health care costs by hundreds of billions of dollars in the coming decades.” Unfortunately, the U.S. remains behind some advanced countries in the adoption of such technology.

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FCC’s EEO Policies Subject of Re-examination and Update

help-wanted-ads-1The FCC’s policies with regard to diversity generally have taken center stage over the past few days.  First up, on Friday, April 21, the Commission released a Declaratory Ruling which updated its policy as to whether the use by broadcasters and multichannel video programming distributors (MVPD’s) of only Internet-based recruitment sources provides sufficiently wide dissemination of news about full-time job openings.  In a ruling some might describe as an overdue recognition of reality, the Commission determined that use of non-Internet sources is no longer necessary.  Then, on Monday, April 24, FCC Chairman Pai announced that he intends to establish a new Advisory Committee on Diversity and Digital Empowerment.  The stated mission of the Advisory Committee is to provide recommendations to the FCC with regard to providing opportunities for all Americans to participate in the communications marketplace, without regard to race, creed, gender, ethnicity, or sexual orientation.  Both moves were generally praised in the industry.

The Declaratory Ruling represents a significant change in the policy established when the Commission adopted its current EEO rules in 2002.  At that time, the Commission considered the possibility of recruiting applicants for full-time openings through use of the Internet.  It stated that the purpose of the EEO rules is to ensure that all applicants are afforded equal opportunity and non-discrimination, and not just to bring about the proportional representation of certain groups.  In order to achieve that goal, it would be necessary to make sure that all segments of the population heard about job openings, and none were inadvertently excluded just because they did not know to apply.  Accordingly, the FCC’s EEO rules and policies emphasize wide dissemination of recruitment information.

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The More Things Change, the More They Stay the Same – UHF Discount Restored

fcc building-1The Commission has acted to restore the UHF discount used to calculate audience reach in connection with determining compliance with television ownership limits.  The national ownership cap currently limits the number of stations one owner may control to those which reach no more than 39 percent of national television households (with reach defined as the number of households in a station’s DMA).  In adding up the number of households reached nationwide by a particular owner’s TV stations, for a station which operates on a UHF channel, half of the households in its DMA are not included in the total count.

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The FCC Announces Two Rules of Interest to NCE Stations

fcc building-1On April 20, 2017, the FCC announced two new developments for NCE stations. First, the FCC stated that it will no longer require the officers and board members of NCE stations to obtain FCC registration numbers (“FRNs”), a process which requires individuals to disclose personal information such as social security numbers. NCE station officers and board members may instead opt to use “special use” FRNs (which do not require disclosing personal information to the Commission) when filing their ownership reports. The Commission will continue to require NCE stations to submit the gender, race, and ethnicity of their officers and board members. Continue Reading

Upcoming FCC Broadcast, Telecom Filing Deadlines

Do you know what FCC filing deadlines are coming up in early May through early June?  We do.  Note our list is not comprehensive, and other proceedings may apply to you.  Please do not hesitate to contact FHH if you have any questions.  Continue Reading

What Happens in Vegas in April…We’ll Tell You About in May

MTC logoRegular readers of our “Memorandum to Clients” publication are an astute and well-read bunch (probably because they read the “MTC”). So we’re guessing that  you are generally aware of our usual publication schedule and plan your lives accordingly.  That’s why we want to get ahead of any potential concern this month by telling you that our May edition will be coming out a few days late.

We are using those few extra days to ensure that the May edition of MTC includes a rundown of what happens at the NAB Show in Las Vegas (running April 22-27), in addition to the usual monthly news and insight you have come to expect.  You should expect to receive your Memo to Clients around the week of May 8.

If any of our readers are going to the NAB Show, look for these FHH attorneys, who will be there as well:

Karyn Ablin
Kevin Goldberg
Frank Jazzo
Scott Johnson
Dan Kirkpatrick
Michelle McClure
Frank Montero
Davina Sashkin
Peter Tannenwald
Kathleen Victory

And remember: always split Aces and Eights and insurance is for suckers…

 

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