Interference From Lilliputian FMs Gets Senate Thumbs Up

Posted on November 20, 2009 by Lee Petro

Bill to remove third adjacent LPFM protection moves ahead

On November 19 the Senate Commerce Committee approved S. 592 (“the Local Community Radio Act of 2009”), a bill that would repeal the LPFM third adjacent channel protection requirement contained in Section 73.807 of the Commission’s rules.  The bill is now teed up for consideration by the full Senate. Meanwhile, over on the House side, a corresponding bill (H.R. 1147, going by the same catchy moniker) already made it out of Committee in mid-October. We wrote about both the House and the Senate bills when they first floated to the surface some months ago.  As a result of the Committees’ recent actions, Congressional approval of the proposed legislation is just a couple of votes from reality. And, with no sign of objection from the White House, the smart money figures that this will become the law of the land sooner rather than later.

While the bills (which are, with minor exceptions, identical) focus on the LPFM service, full-power FM stations should be sure to take a close look at the full impact of this likely-soon-to-be law. 

As we have reported previously, the Commission modified its rules in 2007 to relax considerably the extent to which LPFM stations have to protect second adjacent full service stations. That rule change was upheld in 2008 by the U.S. Court of Appeals for the D.C. Circuit. So second adjacent protection has already been seriously weakened. The Local Community Radio Act would toss third adjacent protection from LPFMs out the window – leaving full service stations fully guarded against only co- and first-adjacent LPFM interference, with only partial protection from second adjacent. (And it would not be too much of a stretch to imagine that, with Congressional elimination of third adjacent protection and the Court’s blessing of the reduction in second adjacent protection, the Commission might try to eliminate all protection from second adjacent LPFMs.)

While the Local Community Radio Act seems geared primarily toward the paring back of protection, it ironically would create a new species of protection which could give the Commission enforcement headaches galore. The Act mandates that third adjacent protection from LPFM interference is to be retained with respect to full-service noncommercial educational FM’s “that broadcast radio reading services via a subcarrier frequency”. That’s swell, except that SCA operation is largely unregulated and unmonitored by the Commission. In other words, the FCC currently has no way of knowing, from one day to the next, which stations happen to be using one or both SCAs for radio reading services. Since providing such a service will, under the new Act, afford a full service NCE station some greater measure of interference protection, it would not be surprising to see an upsurge in such services in the foreseeable future. It will be most interesting to see whether – and if so, how – the Commission will react to this particular piece of legislative handiwork.

The Local Community Radio Act promises to have continuing effect on the FM industry for some time to come. We will keep you updated on further developments as they arise.

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FCC Invites Comments On MMTC Radio Rescue Petition

Posted on September 23, 2009 by Davina Sashkin

The FCC has formally invited comment on the 17-point “Radio Rescue Petition” filed by the Minority Media and Telecommunications Council (MMTC) last July. You can download a copy of the Petition from MMTC’s website here. Comments are due by October 23.

The Petition presents an extraordinarily wide range of suggested steps intended (a) to jump-start the flagging radio industry and, in so doing, (b) to promote increased participation by minorities and women in the industry as well. We described the Petition in considerable detail in Fletcher Heald’s Memorandum to Clients last month. Here are some of the Petition’s more prominent – and potentially controversial – features.

Re-purposing of TV Channels 5 and 6 for audio use– Picking up on proposals previously filed with the Commission (by, e.g., the “Broadcast Maximization Committee” in its comments in MB Docket 07-294), MMTC suggests that TV Channels 5 and 6 could be converted to audio use. That chunk of the spectrum, largely freed from television operation following the DTV transition, could serve as a new home for AM licensees interested in improving the quality of their service. Additionally, the Channel 5/6 spectrum could accommodate noncommercial FM and low-power FM stations, affording those services considerable space while, ideally, removing some interference-producing clutter from the existing FM band. MMTC proposes the establishment of a high-profile committee (patterned after the Advisory Committee on Advanced Television Services, the folks who ultimately brought us DTV) to work out the details of all this.

Revised community coverage and main studio rules for commercial stations – MMTC would have the FCC reduce, from 80% to 50%, the required coverage of each commercial station’s community of license. As MMTC sees it, this change would still provide a majority of the community with a listenable signal while making it easier for incumbent stations to make improvements or move tower sites, thereby increasing flexibility in tower siting and facilitating a more targeted approach to some audiences. 

With respect to AM stations, MMTC urges that all nighttime coverage requirements be eliminated (or at least “relaxed”). 

And it also proposes that the main studio rule be eased considerably. That rule currently requires that studios be maintained either (a) in the community of license, or (b) within 25 miles of the transmitter site, or (c) within the city-grade contour of any station (of any service) licensed to the community. In MMTC’s view, licensees should be permitted to establish their studios pretty much anywhere as long as stations not meeting the current rules: (a) maintain its public file and a direct telephone tie line at the library nearest to the community of license and (b) host three town hall meetings a year in the community of license to hear from local citizens.

Creation of a new local “L” class of LPFM stations – MMTC proposes that LPFM development be promoted through the creation of a new local “L” Class entitling some LPFMs to primary service status upon the completion of two years of operation as a “significantly local service”.

Extended construction periods for ALL new station construction permits – According to MMTC, in light of the economic crisis, the Commission should adopt a blanket one-year extension of the three-year construction period for all original permits for new stations. Concerns about warehousing spectrum, says MMTC, are vastly outweighed by the hardships and barriers to entry faced by broadcasters – especially small-market broadcasters – in obtaining financing and tower siting.

MMTC’s proposals are ambitious and far-reaching. Apparently designed to attract the broadest amount of support throughout the radio industry, they offer a little something for just about everybody. In doing so, however, they appear in a number of respects to transgress aspects of the “localism” orthodoxy developed in recent years under the watchful eye of, in particular, Commissioner (and, for a time, Acting Chairman) Copps. For example, the one-two punch of liberalized main studio rules and reduced community coverage requirements flies in the face of the agency’s previously-expressed interest in tying stations even more tightly to their communities.

This puts the Commission in a difficult position. On the one hand, it has – at least tentatively – embraced the concept of more intense regulation designed to insure greater localism. On the other, it has expressed concern about the paucity of minority/female-oriented stations. MMTC, an established representative of minority and female interests, appears to be suggesting to the Commission that the tension between localism and minority/female interests should be resolved in favor of the latter, even if that would benefit non-minority/female interests as well. 

It will be very interesting to monitor the Genachowski Commission’s response to that approach. It has been observed that the 2007 localism proposals were in many respects grossly unrealistic and likely to inflict extensive harm on a radio industry which was already suffering. The intervening economic meltdown of 2008 has exacerbated those problems. Will the Commission now back off some (or all) of its localism proposals in the face of MMTC’s petition?

Of course, not all of MMTC’s proposals run counter to localism. Some are not at all inconsistent with the Commission’s previously announced localism approach. But those proposals are still controversial. The Channel 5/6 suggestion would theoretically promote localism by assuring ample spectrum for new (and transplanted) LPFM stations. But re-purposing Channels 5/6 from video to audio would require the Commission to jump back into the potential quicksand of major league service migrations just months after the Commission had managed, at long last, to get itself out of similar quicksand on the TV side with the completion of the DTV transition. There is bound to be considerable resistance to that proposal, even though its proponents promise a far more efficient and equitable mechanism for distributing radio spectrum for the coming decades.

In any event, the Commission has invited public comment on the MMTC Petition and its various component proposals. Let the public debate begin.
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Send In The Clones!

Posted on March 19, 2009 by Lee Petro

Senate bill for third-adjacent protection relief for LPFMs mimics House version

Late last month we reported on a bill introduced in the House that would eliminate the third-adjacent channel protections which full power FMs have enjoyed vis-à-vis LPFM stations since 2000.  The House bill (H.R. 1147) now has a little friend over on the Senate side: on March 12, 2009, Senators Cantwell, McCain, Leahy, Durbin, Feingold, and Schumer introduced their own bill (S. 592) that would do the very same thing. 

It wouldn’t be a stretch to call these two bills “companion pieces” . . . or even identical twins. Other than minor changes in the “Findings” portion of the Senate bill, there is no difference in the way both bills would implement the changes in the interference protection standards. Just like the House version – indeed, using the same language as the House – the Senate bill would repeal the 2000 law imposing the third-adjacent channel protection (except when radio reading services are involved) and would require the Commission to consider the needs of the local community in determining whether to license LPFM or FM translator stations. 

Interestingly, the Senate’s version of the bill eliminates a pejorative reference to the consolidation of the media industry which the House had thrown in. The House alluded to testimony that there had been “too much consolidation” in some local radio markets and that consolidation had created pernicious “strong financial incentives for companies to reduce local programming”. The Senate bill retains the reference to “too much consolidation”, but drops the suggestion that consolidation is to blame for any reduction in local programming. The Senate version also corrects the House’s math with respect to the number of LPFM stations that were processed with the third-adjacent channel protections in place (the House said the number was 800; the Senate says 500).

With essentially identical measures pending before both Houses, the skids may now be greased for prompt Congressional action. Whether that will actually happen depends on the political process, and who knows how, or when, that will happen? Still, it is clear that, given the right push, Congress could move swiftly to lift the third-adjacent channel protections. Stay tuned.

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Third-Adjacent Protection From LPFM's On The Chopping Block

Posted on February 27, 2009 by Lee Petro

House proposal would boost Lilliputians’ status in FM hierarchy

This week a bill (H.R. 1147) was introduced in the House that may lead to a wave of new Low Power FM stations – possibly as many as 3,000. The bill would statutorily eliminate the third-adjacent channel protection to full-power FM stations. It has garnered the support of 22 Congressman (from both sides of the aisle) thus far.

In addition to adding one more back (or maybe it’s one more forth) to the long-running back-and-forth struggle over third adjacent protections, the bill – if ultimately passed – is also likely to fan the FCC’s ardor for “localism”.

The issue of third-adjacent protection has been around since the LPFM service’s creation in 2000. As originally conceived by the FCC, LPFM stations were not subject to any third-adjacent protection vis-à-vis their full-service siblings. But because of concern that a gazillion LPFM stations peppered across the landscape would cause erosive interference to existing full-power stations, Congress promptly stepped in and overruled the Commission by amending the Communications Act to insure that third-adjacent protections would be retained. Still, acknowledging some doubt as to the extent that such interference really does pose any threat, Congress directed that the FCC study the issue further.

That in turn led to the 2003 Mitre Report, prepared for the Commission by the Mitre Corporation (at a cost of more than $2,000,000). Mitre concluded that third-adjacent interference should not be much of a problem. (Mitre’s conclusions have been questioned by some, including most notably the NAB.)

Buoyed by the Mitre Report, in 2004 the FCC asked Congress to re-amend the Act to delete the third-adjacent provision which had been added in 2000, but it remains on the books to date. As reported in our December, 2007, Memo to Clients in late 2007 the FCC adopted interim processing rules that would permit LPFM stations to seek waivers of the second-adjacent channel protections. (A rulemaking to make such procedures permanent is still pending.) The 2007 action also boosted the status of the LPFM service in a number of respects.

The bill dropped into the hopper this week would further elevate the status of LPFM stations.  Interestingly, though, the bill identifies one broadcast service which will still trump LPFM. The bill provides that third-adjacent protections must be maintained for full-service noncommercial FM stations which provide radio reading services (RRS) on their SCA’s. But if third-adjacent interference is such a problem that RRS need statutory protection, why should such interference be permitted for everybody else? (The RRS carve-out gives rise to other conceptual problems as well: what if a commercial station puts an RRS on its SCA – shouldn’t it be entitled to protection? And is this carve-out constitutionally permissible, since it appears to impose different regulatory standards based on the content of one’s transmissions?)

Perhaps more significantly, the bill would also bolster the Commission’s quixotic efforts to promote “localism” in broadcasting generally. The bill is critical of broadcasters, suggesting that there has been “too much [media] consolidation” and that, as a result, “there have been strong financial incentives . . . to reduce local programming.” The bill calls for a “renewal of commitment to localism”. The bill also suggests that increasing the number of LPFM stations will increase minority and female ownership in broadcasting and will enhance communications during “local or national emergencies”. 

The Commission (whether under Acting Chairman Copps or under his permanent successor) is likely to read that Congressional language as a direction to charge full speed ahead with the localism proposals which largely languished over the last year. While the Commission’s continued obsession with the DTV transition is likely to distract it from “localism” for another couple of months, we can anticipate a return of the “localism” juggernaut before too long.

If the bill passes and third-adjacent protections (except for NCE stations with RSS on their SCAs) are eliminated, and if the FCC then were to pick up where it left off back in 2007 and adopt final rules eliminating the second-adjacent channel protections, full-power FM stations will be protected only from co-channel and first-adjacent interference (whether the source is LPFM, FM Translator or FM Booster operations). Given the NAB’s opposition to LPFM in the past, this should shape up to be a good fight. Stay tuned.
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Form 355 and Website Public File Posting: Soon in the Crosshairs at OMB

Posted on March 13, 2008 by Anne G. Crump

Last November, the FCC announced that it had adopted a new "enhanced" programming report for TV licensees, and also that it would require TV licensees to post pretty much all of the local public files on their respective websites.  From March 13 until May 12, we all have an opportunity to send comments on the resulting paperwork to the FCC, which will then pass the comments on to the Office of Management and Budget (OMB) to let them how we feel about these new burdens.

OMB gets involved because the new reporting and website posting requirements are what the Federal government calls "information collection" activities.  Under the Paperwork Reduction Act, before an agency like the FCC can impose new information collection activities, it has to get OMB to bless them.  So the FCC has now had a notice published in the Federal Register to solicit comments related to the Paperwork Reduction Act, which then will be added to its own presentation and forwarded to OMB for its consideration.

We strongly encourage everyone to take advantage of this opportunity.  It is at least possible that a compelling showing of the extreme burdens imposed by the new FCC requirements could force the government to re-think them.

Technically, comments should address the need for the information to be collected, the accuracy of the Commission's estimate of the burden of the collection, ways to improve the information collection requirement, and ways to reduce the burden on respondents.  Any comments are due to be filed by May 12, 2008.

It seems to us that the Commission has grossly underestimated the burdens imposed by the new rules and overestimated the utility of the information to be collected and/or posted.  For example, the FCC's estimate of the time which would be required to complete Form 355 is rather fuzzy and shows significant costs to each station, costs which will be repeated quarterly - a fact which the FCC does not readily admit.  According to the Commission, filling out the form may take anywhere from 2.5 to 52 hours, a rather broad range to say the least.  The Commission has not explained how this new requirement will generate any more interest from the public, or otherwise promote the Commission's localism goals, any better than similar requirements in the past have done.  Taking the Commission's own estimate, the imposition of a new filing that could require more than a work week's time to complete should require some justification - and that's EVERY QUARTER!

If there are multiple comments from affected parties (i.e., television licensees) pointing out these flaws, the FCC might be forced to come up with some justification for its rules and to explain how the new burdens comport with the Paperwork Reduction Act.  The entertainment value alone of watching the FCC make this effort could be substantial, and a serious inquiry could even force some re-thinking.

For those inclined to try to get the FCC to reconsider outside of the OMB process, the March 13 Federal Register publication also establishes the deadline for filing petitions for reconsideration, and that deadline is now April 14, 2008.

 

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Deadline For Localism Comments Extended To April 28

Posted on March 6, 2008 by FHH Law

If you are thinking about filing comments in response to the FCC's Localism Report and Notice of Proposed Rulemaking (MB Docket No.04-233), be advised that the deadline for those comments has been extended by the Commission to April 28, 2008.  The extended date for reply comments is June 11.  As we have observed in previous postings here and in the FHH Memo to Clients, this proceeding is extremely important and could end up imposing very substantial new burdens on all broadcasters.  We urge all broadcasters to take a close look at the FCC's proposals and to make their feelings about those proposals known as clearly and forcefully as possible.  FHH will be preparing comments on behalf of a number of clients - if you would like to join in that effort, please give us a call.

 

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Localism NPRM Published in Federal Register; Comment Deadline Set

Posted on February 13, 2008 by Ron Whitworth

With the publication of the Commission's Notice of Proposed Rulemaking on localism in the February 13, 2008 Federal Register, the deadline to submit Comments in the proceeding has been set for March 14, 2008.  Reply Comments will be due on April 14, 2008.

As discussed previously on this blog, the NPRM presents a laundry list of tentative conclusions and proposed rules that would turn the clock back nearly three decades, forcing broadcasters to comply with costly and burdensome requirements, including a return to ascertainment requirements similar to those required of licensees through the early-1980's.

The Commission is expected to receive a barrage of opposition from the broadcast community, including a challenge by the National Association of Broadcasters and many of FHH's broadcast clients.

If you have questions or wish to participate in the proceeding, you should contact your FHH attorney immediately.

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FCC's Localism Proposed Rules/Tentative Conclusions Present Significant Burden for Broadcasters

Posted on February 8, 2008 by Ron Whitworth

The release of the Commission's January 24, 2008 Notice of Proposed Rulemaking ("NPRM") announcing a laundry list of tentative conclusions and proposed rules concerning localism sent immediate shockwaves throughout the broadcast industry.  Reaction was particularly strong in view of the recently released Television Standardized and Enhanced Disclosure Requirement ("Enhanced Disclosure Order") Report & Order (see our coverage of this R&O here, and more in depth coverage in the January edition of Memorandum to Clients).  Many observers have suggested that if the NPRM's proposed rules/tentative conclusions are adopted, the FCC will be turning back the clock nearly three decades, when licensees were forced to comply with burdensome ascertainment requirements.

According to the Commission, the proposed rules are designed to address the perception that broadcasters may not be addressing the needs and interests of their communities sufficiently.  Over the past several years, the Commission has solicited comments from the public and engaged in localism hearings at venues all over the country.  From comments received through that process, the Commission has determined that "many stations do not engage in the necessary public dialogue as to community needs and interests and that members of the public are not fully aware of the local issue-responsive programming that their local stations have aired."

(Note that, while the Commission refers to some "necessary public dialogue," there is no requirement for any such dialogue in the Commission's rules, nor has there been for more than 25 years.  Also, while members of the public may not be "fully aware" of available programming, that would appear to be more the fault of the "unaware" pubic than of broadcasters.  After all, broadcast programming is, well, broadcast -- meaning that it's available for one and all to receive, at no cost).

Many feel the Commission has gone overboard with the tentative conclusions presented in the NPRM (adopted on December 18, 2007).

  We can look for considerable resistance to the proposals from a variety of sources, including the

National Association of Broadcasters, once comments start to roll in. 

Comments will be due 30 days following publication in the Federal Register, with reply comments due 30 days following the initial comment deadline. 

Check back on this blog for updates.

The following is a summary of the nitty-gritty of the NPRM.  Broadcasters in particular should recognize that, if the FCC's proposals are adopted, the broadcast industry will be subject to very substantial new paperwork and recordkeeping obligations.  Moreover, those obligations will almost certainly give rise to an increase in public involvement -- both pre-broadcast and post-broadcast -- in each broadcasters' programming decisions.  While such involvement is not necessarily a bad thing, the potential for mischief and worse is substantial.

  • The Commission has tentatively concluded that each licensee should be required to convene a permanent advisory board consisting of community leaders and officials.  Regular, quarterly licensee meetings with this board would be mandatory.  These meetings would assist each licensee in ascertaining the issues of primary interest in its community, leading to more localism and diversity-focused programming.

The Commission is also considering the adoption of additional rules/guidelines to foster improved communication between licensees and their communities, including the following:

i.    Ad hoc viewer surveys via telephone or Internet

ii.    Focus sessions or "town hall" meetings with viewers to help prioritize issues to be covered through news, public affairs, public service, and special programming

iii.   Participation by station managers/personnel on community boards, councils and commissions

iv.   Dedicated telephone numbers, websites and email addresses, publicized during programming, to facilitate community dialogue

  • The Commission referenced the Enhanced Disclosure Order released simultaneously (see above for links to further coverage), which among other things, introduced a brand-new comprehensive disclosure form (Form 355) and implemented a requirement that stations post the majority of their public files on their websites.  While the rules adopted in the Enhanced Disclosure Order apply solely to television, the NPRM suggests that the same rules might soon apply to radio.  The NPRM repeatedly cites to the Commission's Digital Audio proceeding (in which the Commission adopted the IBOC standard for digital broadcasting by AM and FM stations).  In that proceeding, the Commission sought comment on similar enhanced disclosure requirements for radio.  But the window to participate in that proceeding is now closed.  One might fairly conclude that the Commission may intend to impose similar or identical enhanced disclosure requirements on radio broadcasters with no further opportunity for those broadcasters to object.
  • Stations may be required to have personnel staffing their facilities during all hours of operation, thereby eliminating remote control operations currently permitted.
  • The Commission has tentatively concluded that it will reintroduce renewal application processing guidelines incorporating a specified minimum percentage of programming aimed at addressing local issues.  Licensees meeting the requisite percentages would have their renewals processed by the Media Bureau on delegated authority, while those falling short would have their renewals considered by the full Commission.  The Commission is seeking comments on the content of these guidelines and how they would be measured.
  • The Commission is considering a reversion to its pre-1987 main studio rule, which required each station's main studio to be located within its community of license.  As a result of repeated relaxations of that rule over the last 20 years, under the current rule a station's main studio may be located within either (a) the principal community contour of any station, of any service, licensed to its community of license or (b) 25 miles from the reference coordinates of the center of its community of license.  Either way, the current rules plainly permit stations to locate their main studios at considerable distance from their communities of license.
  • The Commission is seeking comment on whether it should require website posting of the requisite on-air announcements concerning soon-to-be-filed and pending license renewal applications.
  • The Commission is seeking comment on whether it would be helpful for the Commission to introduce rules designed to allow stations to review network programming sufficiently in advance of airtime to determine whether the programming is unsatisfactory, unsuitable or contrary to the public interest.
  • The Commission is seeking comment on the prevalence of voice-tracking (i.e. customizing the content of programs featuring popular out-of-town personalities to make it appear as though the personalities are actually local to the station's area when, in fact, the programming is produced elsewhere) and whether anything can and/or should be done to limit its practice.
  • While rejecting the prohibition of national music playlists by licensees (and a corresponding requirement that stations give airplay to local artists), the Commission is seeking comment on whether it should require licensees to maintain and make available data regarding the airing of local music.  This disclosure would also include descriptions of how their playlists are compiled.  Their information would be used in consideration of renewal applications.
  • The Commission has tentatively concluded that it should allow additional qualified low power television ("LPTV") stations to be granted Class A status.  The Commission is seeking comment on its conclusion, how to define eligibility, and its statutory authority to take the action.
  • The Commission noted that it intends to commence a proceeding to propose rules promoting access by cable and satellite subscribers to the programming of television broadcast stations licensed to communities in the state in which they live.
  • The Commission directed its Media Bureau to develop a new computer program to assist potential radio applicants in identifying suitable available commercial FM spectrum in the location in which they want to operate.  This will alleviate the need to hire consulting engineers, which the Commission hopes will trigger increased localism in broadcasting, and diversity in radio ownership and programming.
  • The Commission also observed that it is important that broadcasters provide timely and accurate emergency information, which it will tackle in the pending Emergency Alert System Further Notice of Proposed Rulemaking, which the Commission stated it will take action on soon.
  • The Commission referenced its Further Notice of Proposed Rulemaking concerning LPTV stations and a number of potential rule changes which would promote localism, such as providing the stations additional protection from interference from full-power stations.
  • The NPRM referenced the Commission's December 18, 2007 Report and Order which introduced efforts and sought comment on actions to assist new entrants and small businesses (including minority- and women-owned businesses) to gain access to financing and spectrum opportunities, including station construction deadline extensions, while cracking down on race or gender discrimination in broadcast transactions and ownership representations.
  • The Commission is investigating violations of its sponsorship identification rules in numerous proceedings, and may soon launch a proceeding to tackle the issue of embedded advertising - i.e. product placement.

As always, we encourage anyone with questions regarding this proceeding to contact us via telephone or email. 

We also encourage discussion on the blog, as it's important for the broadcast community to discuss and sort out these issues in preparation for the comment/reply comment period, which will play a vital role in how these rules/proposed rules evolve.
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TV Rereg Order Released

Posted on January 27, 2008 by Ron Whitworth

On January 24, 2008, the Commission finally released the Report & Order (R&O) containing the standardized and enhanced disclosure requirements which it had decided to impose on the television broadcast industry last November.  In our November Memo to Clients we described the FCC's action based on the public notice issued by the Commission then. The release of the R&O provides us with the detailed nitty-gritty of what the FCC is imposing on the industry.  Among the new burdens are a new quarterly programming report and significantly greater public inspection file obligations.

Among the new public inspection file requirements are the following:

  • Stations with websites must post their public inspection files on their websites or on the website of their State Broadcast Association.
  • Stations must give notice twice daily (including at least once between 6 p.m. and midnight) that the station's public inspection file is available for inspection at the station's main studio and on its website.
  • While political files are not required to be posted, emails from the public are, and documents available on the Commission's site but not posted on the station's site must be linked to the station's site.  Stations must also retain hard copies of all letters and emails from the public in their public inspection files.
  • Stations must make the public inspection file portion of their websites accessible to the disabled, requiring compliance with specific Web Content Accessibility guidelines

Among the new reporting requirements are the following:

  • The current issues/programs lists required by TV licensees will be replaced by the all-new FCC Form 355 (available at Pg. 31 of the attached Report & Order), which will have to be filed with the Commission (electronically) each quarter on the 30th day of the succeeding calendar quarter - that is, the reports will have to be filed by April 30, July 30, October 30, and January 30 of each year.
  • In the quarterly reports, which cover not only the main broadcast channel but also all additional programming stream(s), each TV licensee is required to describe its programming in a laundry list of categories including national news, local news, local civic affairs, local electoral affairs, local programming, public service announcements, paid public service announcements, underserved communities programming, religious programming and independent produced programming.
  • Broadcasters must report information on closed captioning (including which programs were not closed captioned due to exemptions and the basis for each exemption), voluntary video description efforts, efforts to make emergency information available and access of the information to the disabled.
  • Broadcasters must certify that they have undertaken ascertainment efforts to assess the needs of their community, and must specify whether they have designed programming to address those needs.  The new rules do not mandate specific ascertainment efforts, although the new Form 355 does require the reporting licensee to describe (a) any ascertainment efforts it did take and (b) any programming designed to address any needs identified through such efforts.

The new rules will not go into effect until 60 days after notice of their approval by the Office of Management and Budget is published in the Federal Register.  Stations with existent websites must have their public inspection files posted online at that time.  Any websites later created must comply with the rules within 30 days after the sites are made available to the public.

We will have more on the new rules and potential challenges to their validity in the next edition of Memorandum to Clients.  In the meantime, if you have any questions please do not hesitate to contact your FHH attorney.
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Update: Three Items Deleted from Open Meeting Agenda

Posted on December 18, 2007 by Ron Whitworth

On the morning of a very controversial Open Meeting at the FCC, three items were deleted from the agenda. But the deleted items were not the ones at the source of the controversy.

The Commission removed items concerning competitive market conditions for commercial mobile services, an NPRM addressing sponsorship identification rules and embedded advertising, and an item considering two NPRMs addressing satellite digital audio radio service (SDARS) and Wireless Communications Service licenses. The latter was adopted by the Commission prior to the Meeting.

What remained ominously on the agenda, however, were the items concerning media ownership and localism which have generated a considerable amount of heat within the media industry and on Capitol Hill. As detailed in blog postings on Dec. 18 and Dec. 13, Chairman Kevin Martin has been under fire for failing to afford the public a sufficient amount of time to comment on the proposed media ownership rule he introduced in a press release on November 13.

Click here to to read the Commission's release on the deletion of the agenda items

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Martin Facing Onslaught of Criticism

Posted on December 13, 2007 by Ron Whitworth

Just five days before the final FCC Open Meeting of 2007, the controversy surrounding Chairman Kevin Martin's media ownership proposal has reached a fever pitch. Martin's fellow Commissioners, many Congressmen and commenters on both sides of the issue have barraged Martin with an onslaught of criticism for the manner by which he released his proposal and his inclusion of the item on the Dec. 18 agenda. The proposal was announced on Nov. 13 in what a group of commenters including Common Cause, the National Organization for Women, and United Church of Christ labeled an "unusual and vaguely worded" news release that was not published in the Federal Register or voted on by the Commission.

Martin's proposal would amend the restriction on newspaper/broadcast cross-ownership to allow such cross-ownership in the top 20 markets, with built-in protections introduced to ensure editorial independence. Martin has been lambasted for what some deem a violation of the Administrative Procedure Act and other principles of administrative law for failing to afford sufficient time for public comment and review by his colleagues on the Commission.

When the December 12 "Sunshine Act" notice indicatedthat the item would be included on the Dec. 18 agenda - despite pleas from Congress, other Commissioners and members of the industry to postpone the vote - Commissioners Michael Copps and Jonathan Adelstein released a scathing joint statement expressing their deep disappointment at what they deem a "huge mistake."

"We have been engaged in internal discussions to try to get our processes back on track," Copps and Adelstein wrote. "We wish those discussions had led to better results. At this point, given the lateness of the hour, we hope that either we can turn this around internally, or that Congress can save the FCC from itself."

 

Congress might seek to do exactly that, as the Senate Commerce Committee summoned Martin and the other four Commissioners to the Hill to appear before the Committee on December 13. The Committee has already unanimously approved a bill introduced by Sen. Byron Dorgan (D-N.D.) that would require the Commission to open a 90-day comment period on a proposed rule and complete a study on localism. After publishing the result of the study, the Commission would then have to publish the final rules and allow 90 days for public comment. Members of the Committee have stated that they expect the bill to pass.

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Public File Online, Main Studio Off-Line?

Posted on November 28, 2007 by Jeff Gee

In addition to the new program reporting requirements the FCC is imposing on TV licensees, the FCC is introducing a new requirement that TV licensees post their public files on their websites (if they have websites). This raises an intriguing question: if a station's public file is readily accessible online, should the station be required to maintain a "main studio"?

Once upon a time, a station's main studio was a focus of its identity, serving as the place where programming was originated and where the public could find the station's local public inspection file. The program origination requirement went away decades ago (the FCC still requires main studios have the ability to originate programming, but the rules no longer require stations to use that ability). Nevertheless, the FCC held onto the public file requirement - possibly because the existence of the public file rule appeared to convince a skeptical appeals court to uphold the FCC's deregulation of radio and TV in the 1980s. The idea was that the local availability of a public file would provide members of the local audience important information that would empower them to act as "private attorneys-general" - bringing sub-par performance to the Commission's attention at renewal time.

But now that TV public files will be available online, what regulatory purpose is served by a "main studio"? After all, members of the public will be able to access all of that important information in the comfort of their homes - or in the comfort of their workplaces, public libraries, iPhones, etc. Indeed, because the FCC liberalized the main studio location rules to allow stations to locate their main studios 25 miles away from their communities of license, the nearest Internet access is almost certain to be closer than any given station's main studio. Why, then, should licensees be required to maintain an entire bricks-and-mortar facility that may not otherwise be necessary to their operation?

Eliminating the main studio rule probably isn't what the FCC had in mind when it created the new public file online requirement for TV stations, but it isn't that much of a leap. To the contrary, it seems like the next logical step. Under the current rules, stations must maintain a local or toll-free telephone number for communication with the public. If the public file is online and the station locally publicizes an email address for electronic correspondence and a physical address for correspondence by regular mail, the public would have all of the purported benefits of a locally-maintained main studio without requiring the station to have a potentially unnecessary office in any particular location. At the very least, the FCC could eliminate the main studio location rules, allowing stations to put their facilities wherever business requirements dictate, freeing stations from unnecessary expense and freeing the FCC from the need to police main studio locations. We would hope that the FCC would consider a move that would ease burdens on both licensees and the FCC's staff without compromising service to the public. Then again, we may be uncommonly hopeful people.
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BACK TO THE FUTURE!!

Posted on November 28, 2007 by Harry Cole

Back to the future is where the Commission appears to be taking the television industry. The FCC has announced a major overhaul of the quarterly issues/programs list requirement for TV licensees. Instead of the quarterly report which stations have been required to compile (and place in their public inspection files) for a couple of decades, the Commission will now require the completion - and submission to the FCC - of a quarterly, FCC-designed form listing "various types of programming", including: local civic programming, local electoral affairs programming, public service announcements and "independently produced programming".

But wait, there's more.

The new form will also require "information about efforts that have been made to ascertain the programming needs of various segments of the community", as well as information "regarding closed captioning and video described content".

Over and above that new quarterly filing, the FCC is also requiring TV licensees to make their local inspection files ("with the exception of their political file") available online if they have Internet websites.

And finally, TV licensees will have to notify their audiences about the location of their public files twice daily.

And did we mention that these new rules are supposed to take effect within 60 days of their publication in the Federal Register?

The full text of the Commission's decision has not yet been released as of this writing, so it's impossible to know just now precisely how far the rules will drag the TV industry back in the direction of content regulation. (The FCC's news release describing the action may be found here. But the available signs are ominous. In separate concurring statements, both Commissioners Copps and Adelstein rattled the regulatory saber (Copps: "no public interest performance, no license"), suggesting that the new reporting requirements may just be a first step in the direction of more extensive programming review by the agency.

Of course, before that could occur, the Commission would presumably have to impose more specific record keeping requirements - like, f'rinstance, detailed program logging, so that licensees would have a common source from which to compile their reports. But before the Commission could impose a logging requirement, it would also have to define the various types of programming that would have to be separately logged. (From the available accounts of the new TV reporting requirements, that would include, at a minimum, "local civic programming", "local electoral affairs programming", and "independently produced programming".) And, if the Commission were going to be truly serious about threatening non-renewal based on programming performance, it would also have to announce reasonably specific quantitative and qualitative standards that would apply in such an analysis.

All of which would take the Commission perilously close to content regulation contrary to the First Amendment (and Section 326 of the Communications Act).

If it's any comfort, history strongly suggests that, despite its various fulminations and bloviations, in the end the Commission will stop short of involving itself with any depth in program content. In fact, the new rules are just the latest manifestation of a regulatory cycle that can be seen running its course since broadcast regulation began in the 1920s. (That cycle is describing in some detail in a law review article by FHH attorneys Harry Cole and Patrick Murck. But the fact that the Commission is starting down that road again means that the television industry - and, more than likely, the radio industry as well, although it has momentarily dodged the bullet - can expect increased regulatory noise about programming for the foreseeable future.

We will provide more detailed information about the new rules when the full text of the FCC's action is released. Until then, hold onto your flux capacitor.
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Broadcast localism hearing - trick or treat?

Posted on October 30, 2007 by Harry Cole

The Commission has announced a "localism hearing" to be held on Halloween - October 31 - in the Commission Meeting Room in Washington.  The stated purpose of the meeting is to "gather information from consumers, industry, civic organizations, and others on broadcasters' role in their local communities and proposed changes to our rules."  It may be interesting to attend just to find out what "proposed changes" the Commission might have in mind, because to date we are not aware of any specific proposals from the FCC on the "localism" front.

Anyone with more than a passing interest in the notion of "localism" as a factor in broadcast regulation might want to take a look at a law review article titled "The Myth of the Localism Mandate" by FHH's Harry Cole and Patrick Murck.  It appeared in the Commlaw Conspectus, a journal of communications law and policy published by the Columbus School of Law at the Catholic University of America.  The article examines the history of "localism" from the Radio Act of 1927 to current times.  The conclusion is that, while the FCC (as well as the Federal Radio Commission before it) has historically talked the talk about "localism", it has never walked the walk: the authors conclude that it is "idle for the Commission to believe that, just because the Commission raises its regulatory eyebrows and huffs and puffs about some localism obligation, there exists any such obligation which the Commission is able to articulate, much less enforce.  That has not been the case since the Federal Radio Commission eighty years ago, and it is not the case today."  You can find the article here.

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