CommLawBlog : Broadcast & Communications Lawyers & Attorneys : Fletcher Heald & Hildreth Law Firm : Telecommunications, FCC Regulation, Communications Act

Announcement of OMB approval expected soon

If you’re planning on building a new tower, or significantly modifying an existing tower, in the foreseeable future, listen up. The Commission’s Wireless Telecommunications Bureau has issued a public notice laying out the new registration procedures that have been adopted (but not yet implemented) to provide pre-registration notice-and-comment opportunities relative to environmental considerations. We have previously reported on the new procedures; the public notice puts a little more meat on the procedural bones we have already described.

Who needs to worry about this? You do, if you’re:

planning to build any new tower that would have to registered through the FCC’s Antenna Structure Registration (ASR) system. The only exceptions are for (a) towers to be built on sites for which some other federal agency has responsibility for environmental review or (b) cases in which an emergency waiver has been granted.

modifying an existing registered tower by (a) increasing its overall height by more than 10% or 20 feet, or (b) adding lighting to a previously unlit structure, or (c) modifying existing lighting from a more preferred configuration to a less preferred configuration. (Helpful tip: the “most preferred” configuration is no lights at all; the least preferred is red steady lights. Anything else falls in the middle.)

amending a pending application involving either of the foregoing situations and the amendment would (a) change the type of structure, or (b) change the structure’s coordinates, or (c) increase the overall height of the structure or (d) change from a more preferred to a less preferred lighting configuration or (e) an Environmental Assessment is required.

If you’re in one of those categories, here’s what the Bureau will expect you to do once the new process takes effect.

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Court tosses long-time ban on political/issue-oriented spots in NCE band; Prohibition against standard “commercials” left in place.

Just as the political advertising season is about to shift into overdrive, the U.S. Court of Appeals for the Ninth Circuit has opened the competition for candidates’ cash to a universe of broadcasters previously excluded from that potential revenue stream. According to the court, the longstanding prohibition against the sale of paid political advertising by noncommercial educational broadcast stations – a/k/a “NCE” or “public” broadcasters – is unconstitutional.

Since the earliest days of broadcasting, the Communications Act has prohibited noncommercial stations from broadcasting “advertising”. The Act currently defines “advertising” in this context to include any broadcast content, aired in exchange for consideration of any kind, that either:

1. promotes some for-profit activity; or
2. expresses the views of any person with respect to any matter of public importance or interest; or
3. supports or opposes any political candidate.

(Yes, yes, we know that most, if not all, NCE stations do broadcast items that look a lot like standard ads. Those are technically referred to as “enhanced underwriting announcements”. They are theoretically subject to considerably greater constraints that normal “ads” – and the FCC does occasionally fine stations for exceeding the permissible limits.)

The theory underlying the ban on ads is clear (if not entirely convincing to many): if public stations were allowed to accept advertising, so the thinking goes, they’d be inclined to replace niche educational programming with programming designed to attract a much broader audience, or maybe they’d feel pressure to alter the content of their programming to please their advertisers – the goal, in either event, being to attract more advertising dollars. (Note: whether or not that theory is valid is far from clear, but it’s the theory that Congress relied on.)

So how did much of the ban just get tossed?

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Minor changes may signal an end to almost a decade of rulemaking.

The FCC has released yet another decision in its long-running effort to implement rules allowing unlicensed “white space” devices in the television bands. The latest revision does not represent any wholesale changes, but will make it easier for some devices to operate.

White space devices (TV Band Devices or TVBDs, in the FCC’s nomenclature) rely on the fact that every location has some TV spectrum not being used. Those vacant frequencies typically show up as white spaces on a map of spectrum occupancy – hence the name. Technical studies show that properly controlled unlicensed devices can use these channels without causing interference to TV operation and other authorized users, including wireless microphones.

Following a Notice of Inquiry late in 2002, and a 2004 Notice of Proposed Rulemaking, the FCC first adopted rules allowing white space devices in 2006, but left the technical specifics for a later date. Those came in 2008, and then in 2010 the FCC responded to petitions for reconsideration with a number of revisions. Now the FCC has addressed petitions for reconsideration of the 2010 order.

The rules categorize each white space device as either fixed or mobile. A fixed device must have its location either professionally programmed in or determined by an on-board GPS device, and is subject to limits on operating power, antenna height, and antenna gain limits. Before operating, it must query a database of available spectrum for its location. A mobile device may similarly use GPS to determine its location and then query a database (Mode II devices); alternatively, it can contact another white space device that will in turn query the database (Mode I devices). The FCC has so far approved ten private companies to administer the databases, of which two have completed testing to the FCC’s satisfaction.

In its recent order disposing of the petitions for reconsiderations, the Commission provided the following changes and clarifications:

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Texas court decision moves LUC dates, may expand eligible candidate list.

We all know that the 2012 election season is in full swing, and has been for some time. But that doesn’t mean that the playing field for political advertising is static. To the contrary, a federal court in Texas has provided a reminder of why it is very important for all broadcasters to pay attention to developments that may affect elections in their service areas.

As a result of the 2010 Census, a number of states are still dancing at the Redistricting Disco, redrawing the boundaries of their Congressional districts. In Texas, this has led to a lengthy court battle. The latest development: a federal court in San Antonio has rescheduled the state’s primary elections, moving them back nearly two months, from April 3 to May 29, with runoff elections, if necessary, on July 31.  (The elections had already been pushed back from their original date of March 6.)  The court also re-opened the candidate filing window, which will now run from March 2 through March 9.

Under the FCC’s political broadcasting rules, candidates for federal office are entitled to lowest-unit-charge (LUC) rates during a window of 45 days before a primary or primary runoff. So Texas broadcasters who might have thought that their LUC period had already been set have another think coming. The court’s decision establishes a new 45-day window (starting April 14) in which the LUC requirements will apply, and it terminates the LUC window that had been started based on the April 3 date). So not only will broadcasters have to extend LUC rates for several weeks beyond their original expectation, but they will also to deal with political advertising contracts entered into for the previous LUC period. And for a further potential complication, the re-opening of the candidate filing window could also change the pool of qualified candidates.

While the Texas developments will obviously be felt most directly by stations in Texas, those developments still serve as a strong reminder to stations everywhere to stay on top of their local and national political scenes. As long as the political landscape remains unsettled, changes in that landscape can have a significant impact on broadcasters’ obligations under the political advertising rules.

[Blogmeister's note: Many thanks to our friends at the Texas Association of Broadcasters for alerting us to this late-breaking development.]

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FCC adopts changes in ASR processes for the birds; OMB approval still needed

It looks like new bird-friendly procedures for proposed tower construction could be with us by summer. If you’re thinking about building a tower 200 feet tall (or taller) – and especially if you’re planning to build something taller than 450 feet – you might want to get that proposal on file sooner rather than later. The longer you wait, the more likely it is that you’ll end up subject to considerably more burdensome processes.

The new procedures have been years in the making. (We previewed them last April, shortly after the Wireless Bureau solicited comments on a preliminary version.) They arise from concerns raised by a number of conservation groups (e.g., the American Bird Conservancy, the National Audubon Society) who urged that the Commission should afford more opportunity for public comment about proposed tower construction. According to the conservation groups, towers pose risks to birds (particularly migratory birds).

Accordingly, the groups (with a boost from a 2008 decision of the U.S. Court of Appeals for the D.C. Circuit) have pressed the Commission to modify its Antenna Structure Registration (ASR) program. Those chickens will soon be coming home to roost.

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Agency denies effort by self-proclaimed candidate (and anti-abortion activist) Randall Terry to buy Super Bowl® ad time.

With time on the clock winding down, the FCC threw the flag on self-proclaimed presidential candidate Randall Terry. Ruling him ineligible (on a couple of counts), the Commission rejected Terry’s effort to force Chicago’s WMAQ-TV to sell him advertising time during its carriage of the Super Bowl®.

Terry’s attempted time-buy in support of his supposed candidacy raised again an issue that has popped up in recent political campaign seasons: how are broadcasters supposed to deal with self-proclaimed candidates for federal office looking to buy advertising time during which they can address controversial content – in Terry’s case, abortion – free from any editorial control by the station. In its decision released barely 48 hours before kick-off in the Big Game, the FCC provided a little guidance on this matter, and a reprieve for stations faced with a difficult decision about airing such advertising during the Super Bowl®.

Disputes regarding the broadcast of controversial political advertisements arise almost every election year as a result of longstanding statutory and regulatory requirements that stations provide “reasonable access” (i.e., sell advertising time) to “legally qualified candidates” for federal office. Under these rules, if a bona fide federal candidate wants to buy time on a station, the station must sell the candidate some ad time. And importantly, the broadcaster cannot edit or censor the content of the advertising that candidate chooses to air. 

In the current election cycle, anti-abortion advocate Randall Terry has attempted to take advantage of these rules. Claiming that he is federal candidate, he invokes the “reasonable access” requirement in demanding time to broadcast his political advertisements, which include graphic images of aborted fetuses. Most notably, presumably to garner the maximum number of eyes, he tried to buy time during the Super Bowl®. 

While a number of stations agreed to sell him spot time, WMAQ-TV, Chicago’s NBC affiliate (and, therefore, the local Super Bowl® outlet this year), refused. Terry filed a complaint with the FCC on Monday, January 30. He asked the Commission to force the station to carry his advertisements. The FCC, in something approaching record time, released a decision on Friday, February 3, denying the complaint on two grounds.

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FCC lays out new (or old) media ownership proposals in latest phase of quadrennial review process

Three days before Christmas, the FCC delivered a little present for broadcasters: a Notice of Proposed Rulemaking (NPRM) proposing changes to its media ownership rules. The NPRM followed up on a Notice of Inquiry (NOI) issued 18 months ago. While some might be thrilled with this gift, for most it’s probably more like a lump of coal.   

Under the 1996 Telecom Act, the Commission is required to review its media ownership rules every four years to determine if they remain “necessary in the public interest as a result of competition.” These quadrennial reviews tend to be controversial – the 2002 and 2006 reviews both ended up in appeals (before the Third Circuit) that essentially left the ownership rules the same as they were before the beginning of the 2002 review.

With this history in mind, in June, 2010, the Commission opened the latest round of media ownership review with the NOI. The FCC requested comment on not only the existing rules, but also “fundamental questions” related to media ownership. Big Questions like what public interest goals the Commission should be advancing and how those goals should be defined and measured. In the intervening 18 months, much has happened: vast numbers of comments and reply comments have been filed, studies have been released, and the Third Circuit has weighed in again, overturning portions of earlier FCC ownership rulings. 

Given all that, you might have expected some pretty significant changes to be proposed in the NPRM. If so, you’ll probably be disappointed, since the Commission seems to gravitate back to the status quo. However, from the multitude of questions the NPRM poses, it’s at least possible that the Commission may be positioning itself to make considerably broader changes than the surface of the NPRM suggests.

The NPRM rambles on for nearly 100 pages. We’ll take a more detailed look at the high points below. Here’s a quick-hit glimpse at those points. 

The FCC proposes to:

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Tip our hat to the new (or old) constitution? Apparently not . . .

Hot on the heels of its formal abandonment of the “enhanced disclosure” reporting form (the ill-fated Form 355), the Commission has made good on its promise to come up with a replacement. Ladies and gentlemen, please put your hands together for the 2011 edition of “Standardized Television Disclosure Form 355”.

Actually, all we have at this point is a proposed Form 355 and a Notice of Inquiry posing numerous questions about that proposal. But it’s a good bet that the proposed form is pretty much already a done deal destined for prompt adoption. Implementation may be a different story, as we all learned from the 2007 Form 355 that never quite got off the ground. While the new version suffers from many of the problems that presumably stalled out the old version, the Commission is try, trying, again.

That process has now begun, with the release of a Notice of Inquiry requesting comment on a new and “improved” version of the Form 355.

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Commission proposes to host all TV public files on its servers; Form 355 is now dead – but possibly not for long.

We have some good news and some bad news. 

First the good news: in an “Order on Reconsideration and Further Notice of Proposed Rulemaking” (FNPRM),  the Commission has abandoned the dreaded “enhanced disclosure” Form 355, its 2007 attempt to bulk up the quarterly issues and programs lists for TV licensees.

Now the bad news: the Commission is still looking to impose significantly increased program reporting obligations on the television broadcasting industry (and, possibly at some time down the line, on their radio sibs as well). And the number of items required to be routinely submitted to the Commission could be increased dramatically. Oh yeah, and the notion of an “enhanced disclosure” hasn’t been tossed entirely; it’s merely on the backburner, apparently awaiting a notice of inquiry that is expected to be circulated in the near future.

Of course, in its FNPRM the Commission does not characterize its proposal as increasing any burdens. Au contraire, its goal here is supposedly to “modernize the way television broadcasters inform the public about how they are serving their communities.” And how does it plan to do that? The FNPRM proposes that TV stations would no longer have to maintain all of the hard-copy local public inspection files that have been obligatory for decades.

 So no more public file? 

Not quite.

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“Permanent” exemptions granted in 2006 prove to be less than advertised, as FCC reverses grants and announces new, more stringent exemption standards

What a difference five years make. Back in 2006, over the course of about a month, more than 300 video programmers were granted permanent exemptions to the closed captioning rules. But now the Commission has taken another look and – bad news for 298 of those lucky programmers – has decided that the wrong standard was applied in 2006. Good-bye “permanent” exemptions (although the Commission has invited those programmers to ask for new exemptions, which could be granted if a newly-revised standard is satisfied) – and hello to a new set of standards for determining when captioning may be deemed “economically burdensome”.

The problem dates back to the 1996 Telecommunications Act, which allowed the Commission to grant two separate types of exemption to the captioning requirements. One type would exempt entire categories of programming; the other involved individual programs or program providers, assessed on a case-by-case basis. To obtain an individual exemption, a program provider had to demonstrate that providing captions would impose an “undue burden” (the language of the statute has since been revised to require a demonstration that captioning would be “economically burdensome.”)

In late 2005 the Commission’s rules requiring captioning of 100% of non-exempt English and Spanish-language programming were about to go into effect. Since that would impose a significantly heavier burden on program providers, a large number of providers sought individual exemptions. Two of those providers were Anglers for Christ Ministries and New Beginning Ministries. 

In September, 2006, the Consumer and Governmental Affairs Bureau (CGB) granted permanent exemptions to Anglers for Christ and New Beginning.

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