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

New Media Bureau policy opens door for reduced fines for first-time violators of some paperwork rules.

The FCC’s enforcement actions often leave us shaking our heads wondering if the bureaucracy recognizes the challenges faced in real life by those it regulates. But occasionally there are rays of hope.  Case in point: the Media Bureau has revised its policy for enforcing certain paperwork obligations against student-staffed noncommercial educational (NCE) radio broadcast stations. The revised policy provides an opportunity for such stations to avoid crushing forfeitures which could end up shutting the stations down.

Last July, we blogged about the stifling impact of the FCC’s forfeitures on student-operated stations. Because of frequent student staff turnover, such stations can be prone to rule violations, which in turn result in steep forfeitures often amounting to a substantial portion of -- indeed, sometimes even more than -- the station’s annual budget. That happens when the fine is based on the Commission’s schedule of “standard” forfeitures even without any upward adjustments.

While some stations hit with fines have argued to the Commission that their budgets can’t sustain the forfeiture amount, the FCC has historically ignored such claims. Instead, it has looked to the resources of the entire educational institution, rather than just the station itself, presumably (but unrealistically) assuming that the institution would pay up.  Unfortunately, as we reported in our earlier post here,even though many institutions do pay up, the threat of further severe regulatory enforcement has apparently led some institutions to sell their stations, thereby eliminating opportunities for entry and training of young people in the art of broadcasting.

But now the Bureau has a new policy.

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New rules impose new obligations, hefty potential penalties, on politicians and non-profits (including NCE broadcasters) who use automatic phone dialing gear for public outreach.

Unwanted marketing telephone calls are merely annoying for most of us, but in some cases they’re actually dangerous. A marketing call that goes to a number in a 911 service center can block capacity needed for an emergency call – basically, it ties up a line that could and should otherwise be open for real emergency calls, not commercial come-ons or requests for contributions – and the results can be disastrous. 

Simply blocking “911” from automatic dialing equipment won’t do the trick. That’s because the well-known “911” is just an expedient device making it easy for the public to reach help in case of an emergency. In fact, when you dial “911,” your call is directed to a conventional 10-digit phone number at a Public Safety Answering Point, or “PSAP”. The full 10-digit numbers associated with PSAP’s aren’t generally publicized, but that makes no difference to automatic equipment that initiates marketing calls. That equipment simply dials random or sequential numbers; the odds are that such calls will hit some PSAP numbers sooner or later.

The FCC has now adopted rules establishing a new and separate “do-not-call” registry designed specifically to protect PSAP numbers from non-emergency calls. Why? Because Congress told them to do it in the Middle Class Tax Relief and Job Creation Act of 2012 – the same sweeping law that brought us, among other things, the reverse and forward auctions aimed at TV spectrum repacking. The new rules apply to both voice and text messaging calls to PSAP numbers. Congress wasn’t fooling around, and neither is the FCC. The statute mandates fines of at least $100,000 and up to $1 million per call for automatically dialed calls (“robocalls”) directed to PSAP numbers. Telemarketers must check the FCC’s database at least once every 31 days.

We hope that most, if not all, of you are familiar with the “Do Not Call” list created several years ago by the FCC and Federal Trade Commission (FTC). You can put your home number on the list at www.donotcall.gov (some 209 million numbers have been registered). Telemarketers (at least those who observe the law) are not allowed to call numbers on that list.

But the FTC’s “Do Not Call” list doesn’t stop all uninvited – and possibly unwanted – calls.

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NPRM to implement additional mandates of the Twenty-First Century Communications and Video Accessibility Act is on the fast track

As our readers know, in the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA), Congress aimed to ensure that folks with disabilities have “better access to video programming”.  In the two years since the CVAA was enacted, the Commission has taken multiple steps to comply with that statutory direction.

But one important component of “video programming” remains to be addressed: emergency information during non-news programs.  Existing rules already provide that all pertinent emergency information broadcast during regular or special newscasts must include an aural component for visually impaired persons.  But what about announcements broadcast outside of newscasts? 

We all know that emergencies don’t occur strictly at 6:00 p.m. or 11:00 p.m. (or even at the new trendy 4:00 or 5:00 a.m. hour), conveniently timed for scheduled newscasts.  It’s not unusual for broadcasters to interrupt non-news programming to air emergency information short of devastating disaster coverage – such as weather warnings or alerts about dangerous circumstances (flooding, chemical spills, wildfires, etc.).  Such information is often displayed on a visual crawl or some similar visual method, without accompanying audio.  In such situations, the FCC requires only that the broadcaster include an aural tone that alerts visually impaired viewers so that they can turn on a radio or ask someone else to read the screen for them. 

But that might place the visually impaired at a disadvantage by making the emergency information available too late for proper responsive action.  In keeping with its CVAA mandate, the FCC has issued a Notice of Proposed Rulemaking (NPRM) looking to expand the existing rules to require that emergency information be provided aurally using the same secondary audio stream that is now used for various purposes.  (Those purposes include video description and, sometimes, Spanish or other foreign language soundtracks.)  And in a related proposal, the Commission is also inviting comments on how it should implement the statutory requirement to prescribe regulations requiring receiving apparatus to have the capability to decode and make emergency information available.

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Bureau rejects station’s reliance on Longley-Rice study to show that its service area does not reach the state where pro-life presidential candidate Randall Terry is on the ballot.

With less than a week to go before Election Day, the Media Bureau has ordered Station WUSA(TV), the CBS affiliate here in Washington, to sell time to pro-life presidential candidate Randall Terry. But Terry’s not on the ballot in Washington. Nor is he on the ballot in adjacent Maryland or Virginia.  No problem, said the Bureau, because he is on the ballot in West Virginia. And despite WUSA’s claims to the contrary, the Bureau concluded that WUSA’s predicted signal contour covers enough of West Virginia to subject the station to the statutory requirement to provide “reasonable access” to any qualified candidate for federal office.

This decision is of particular importance to stations whose predicted signals may extend into multiple states, because it could result in “reasonable access” burdens beyond what such stations might otherwise expect. Just ask WUSA.

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Commission puts the kibosh on hybrid digital/analog transmission system that would have allowed Channel 6 licensees to provide additional audio-only service.

Video-less TV, an idea embraced by a number of Channel 6 LPTV stations, has suffered a set-back. In August the FCC rejected a proposal by two Channel 6 LPTV licensees to use a digital transmission system that would have permitted them to transmit – in addition to their digital TV service – a separate audio signal receivable by analog FM radio receivers.

Spectrum-wise, TV Channel 6 sits immediately below the FM radio band. In pre-DTV NTSC analog technology, the video and audio components of the TV signal were separately generated (sometimes even through separate transmitters), with the audio located near the top of the band and using FM modulation. That meant that the audio of an analog Channel 6 station could be heard easily on most FM radios (which can normally tune down to 87.7 MHz). 

Analog Channel 6 TV stations, both full and low power, reportedly enjoyed a boost in their audience size thanks to drivers tuning in on their car radios and joggers listening on their arm band radios. In fact, some Channel 6 LPTV operators found the FM radio audience so attractive that they programmed primarily to that audience, paying little attention to video. How little? We suspect that some didn’t even have working video transmitters. (Cautionary note: It’s not at all clear that audio-only transmission –  or even audio with only a dribble of a video signal – complied with FCC requirements.) The Channel 6 audio business prospered in a few major markets, with a few stations reaching reportable Arbitron ratings levels.

The audio-only TV business has foundered in recent times, presumably because it was based on analog technology and could not co-exist with digital video. (That’s because: (a) under the ATSC digital standard, the analog signal is no longer separate from the video; and (b) digital TV audio can’t be received on FM radios – not even digital “HD” FM radios.) With virtually all full-power TV stations converted to DTV operation since 2009, and with a fast-approaching end-date for analog LPTV broadcasting, future prospects for video-less Channel 6 operations are not good.   LPTV licensees recognize that it’s difficult, if not impossible, to make a viable business plan when you ‘re likely to hit a brick wall in only three years.

But where there’s a will, there’s often a way.

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Tenth Circuit lets FCC “move the goalpost” in on-going development of forbearance policy.

Despite its obvious concern about the fact that the FCC had “moved the goalposts” with little notice, the U.S. Court of Appeals for the Tenth Circuit has cut the Commission some slack. The court has upheld the FCC’s denial of a request by Qwest Corporation for forbearance from the application of certain dominant common carrier obligations for its local exchange operations in the Phoenix market. Qwest is the former U.S. West Bell Operating Company, later acquired by and now doing business as CenturyLink. Its request, which it framed to fit within analytical requirements the FCC had previously used, fell short when the FCC shifted the regulatory goalposts for such matters.

Two general principles are at work here. First, thanks to the 1996 Telecom Act, incumbent local exchange telephone carriers (ILECs) that are considered “dominant” in their market must, in effect, “share” their networks with competitors by providing those competitors with access to their networks, and on top of that providing access existing network elements on an unbundled basis (i.e., you don’t have to buy packages that include services or facilities you don’t want) at “just” and “reasonable” rates. For ILECs, that’s the bad news.

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By beating up on college stations, the FCC creates a threat to the viability of college radio that could have unfortunate long-term effects.

The FCC has been slapping forfeitures left and right on college-owned, student-run radio stations. Three recent examples: $6,500 to a station operated by students at Bethany College in Bethany, West Virginia, $10,000 to a Rollins College station, and another $10K to a Toccoa Falls College station.

The misconduct underlying those fines was not especially earth-shattering: a late-filed renewal, some missing issues/programs lists, occasional failures to notify the FCC when the station is off the air for more than 10 days, that sort of thing. Nothing really to write home about.

We at Commlawblog.com can understand the FCC’s position. Rules are rules, and when rules get broken, there are (or should be) consequences. 

But there’s a bigger picture here that the FCC may be missing. By imposing such fines on student-run stations that are probably already money-losers for their parent educational institutions, the Commission may be hastening the demise of such stations.

And that would be a serious loss to the broadcast industry and the listening public.

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Initial reviews are cautiously positive following FCC demonstration.

Astute readers will recall that today was the day that the FCC was to debut its new online public file system for TV stations. You know, the system that the TV industry, en masse, will be expected to be tapping into as of August 2.

We dropped by the FCC this morning to take a first-hand look at what the Feds have cooked up. 

We were favorably impressed. 

As cumbersome as some of the FCC’s online systems have been and still are, this one seems reasonably approachable and usable by people who don’t live and breathe FCC air every day.  The interfaces are pretty intuitive, both for stations that upload and for people who want to look up any item on the laundry list of materials required to kept in the public file. If you can master the system for filing Children’s Television Reports, the public file upload should be a breeze.

The Commission told us that the system is just about ready to go live, and that it should be available for stations to start uploading by the August 2 target date.  There is, however, at least one issue remaining to be ironed out.

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Interruption of regular programming might be permitted without prior waiver; reporting, certification requirements also in play

The Commission is asking whether noncommercial educational (NCE) radio and TV stations should be routinely permitted to interrupt their regular programming for fundraising activities for the benefit of any non-profit entity other than the station itself. The proposal is in response to a study published last June by the FCC’s Working Group on Information Needs of Communities.

Historically, because of their noncommercial nature, NCE stations have been prohibited from breaking into their regular programming for extended third-party fundraising even when the entity to be benefited was itself non-profit. (PSA’s and brief paid-for underwriting announcements are OK.) While sometimes an extraordinary need for such fundraising might arise – relief efforts in the wake of Hurricane Katrina, for example, or the Japanese earthquake/tsunami, or the Haitian earthquake – in such circumstances the Commission has been willing to waive the rule (which, technically, appears in Section 73.503(d) (for radio stations) and 73.621(e) (for TV stations). But such waivers have been limited to “a specific fundraising program or programs, or for sustained station appeals for periods which generally do not exceed several days.”  And waivers are not invariably granted.  (Case in point: Back in the 1970s a proposal to run an on-air auction to benefit a financially-distressed local symphony orchestra was nixed by the Commission.)

Lurking in the background of the latest proposal is the FCC’s apparent discomfort with the amount of air time already being devoted by NCE stations to begging for bucks. That factor is a primary reason for the existing limitation on third-party fundraising efforts. (One question the Commission poses in its Notice of Proposed Rulemaking (NPRM): Just how much airtime do NCE stations actually spend on fundraising?)

Any relaxation of constraints on third party fundraising would likely be limited.

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Broke licensee who can’t pay $8K fine gets extra $25K fine for not paying first fine.

The FCC has demanded $25,000 from a licensee who failed to make a “voluntary contribution” which it had committed to pay as part of a consent decree (i.e., a settlement agreement in an enforcement proceeding). That earlier payment wasn’t made because the licensee said it didn’t have the $8,000 which it had promised to pay. Tough, says the FCC – mere financial distress will not justify relief if you break your promise.

An AM licensee in Puerto Rico was fined $15K in 2005 for various violations. After several years of back and forth, the licensee and the FCC entered into a Consent Decree, which included an $8K “voluntary contribution” to the U.S. Treasury (we love the way the government uses the term “voluntary” – it reminds us of the things we “volunteered” to do for Uncle Sam in basic training).

Things weren’t going so well business-wise for the licensee (more on that below), and it never paid the eight grand. Wow, the FCC said – short changing the government is no-go in spades. So last year the FCC proposed an additional $25,000 forfeiture for failure to pay the $8,000. 

“Can’t pay,” the licensee responded. How come? According to the licensee, all but two of its owner’s companies are in bankruptcy, and it’s facing “overwhelming debt and almost nonexistent cash”. But the FCC didn’t have to take the licensee’s word for all this – the licensee gave the Commission a number of financial documents. The Commission grudgingly acknowledged that those documents “may arguably support [the licensee’s] asserted inability to pay”.

But so what?

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