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

The Commission took action last week  against seven major television stations which had copped to exceeding at one time or another the FCC's rules limiting commercial matter in children's television programming to  10.5 minutes an hour on weekends and 12 minutes an hour on weekdays.  (Anyone interested in either (a) seeing precisely what the FCC had to say or (b) seeking the thrill of schadenfreude can read the decisions here, here, here, here, here, here and here.)

In admitting to these infractions in their license renewal applications, some stations plead innocence, claiming that the overages were attributable to inadvertent staff errors, the departure of key employees, misunderstandings by staff, failure to review programming and scheduling errors. Others tried to highlight their general dedication to children's programming and a good track record at the FCC. The fact that "everyone was doing it" (not, to our knowledge, raised as a defense) didn't help either. Though the overages were often very slight -- seconds in duration -- the FCC noted a cumulative effect that required strong, deterrent action. Citing anywhere from 86 to 164 violations per station, the FCC decided that the problem was speeding wildly out of control.

The FCC concluded that the substantial increase in violations could only have resulted from a lack of oversight by licensees who weren't sufficiently deterred by previous forfeitures.   Thinking something stronger than "go to your room and think about what you've done" was in order, the Commission assessed forfeitures ranging from $25,000 to $70,000 against each station.

The FCC is sending a clear message to broadcasters, one they should be hearing loud and clear: "We don't care if you're generally a good licensee, you have to pay attention to the rules. When we say 'no more than 10.5/12 minutes', by golly, we mean no more than 10.5/12 minutes. And we don't care what that TV station across town is doing. If it said it was going to jump off a bridge, would you jump off a bridge too? Of course not, so just because they may be violating Children's TV rules doesn't mean you can."

Another possible ripple effect of Comcast on the broadcasting terrain: let’s not forget that Comcast, the folks who landed the knock-out punch on the FCC in the eponymous Comcast case, are also the folks who are currently trying to get the FCC to approve a massive merger with NBC Universal. Now that Comcast’s ability to restrict, legally, Internet traffic contrary to the FCC’s preference has been established (thanks to the D.C. Circuit), the FCC (and other governmental authorities) may not be especially gung-ho about giving Comcast even greater control of more media than it already holds. If Comcast’s practice of jiggering with its subscribers’ Internet access is deemed potentially anti-competitive, the Feds might be expected to be reluctant to increase any perceived competitive advantages for Comcast.

Of course, in light of such concerns, the Powers That Be (whether that might be the FCC, DOJ or Congress) might attempt to extract “voluntary” commitments from Comcast and NBC, much as they did in connection with the Sirius/XM merger. Could the Commission then impose conditions that look remarkably like net neutrality requirements – even though the FCC might not have the authority to impose such requirements industry-wide? Conceivably, since the FCC’s clear authority to act on the merger request would arguably provide it the related authority to impose conditions on any grant of that request. Such conditions could have an impact on competition in both the online media and the cable industries, not to mention the broadcast business – in all of which Comcast plays a major role.

On the other hand, even if the Commission were to offer grant of the merger in return for concessions or commitments from Comcast, who’s to say that Comcast would accept the deal? Presumably, Comcast would not do so unless the deal made good business sense.

Another possible impact zone from Comcast: retransmission consent. As has been widely reported, the cable industry has filed a petition for rulemaking seeking overhaul of the current retransmission consent process. Thus far the FCC has appeared to be receptive to the idea. But a large number of fixed broadband service providers are cable companies, and those companies can now restrict internet traffic (thanks to Comcast), giving them a potential competitive advantage. How eager will (or should) the Commission be to give the cable industry a further leg up over competitors in the retrans consent process?

At this point we can only guess about how any or all of this will shake out.  But it is important to recognize that the impact of Comcast is not likely to be limited to issues of net neutrality.  In any event, television broadcasters should keep a wary eye on their own situation.  They may still be looking at a decidedly unattractive future: packed tighter than ever in the broadcast band, stiffed by the FCC on any kick-back payments from spectrum auctions, and losing a steady source of revenue to the network, which just merged with the largest cable company.

visit to Anchorage and Fairbanks is set for August, while the trip to Phoenix is scheduled for the end of December.  Details of the visits will be released by the FCC later.

Meanwhile, the Commission has announced that the Wilmington, NC DTV test will commence on September 8 at noon, at which point the local commercial network affiliates and the local Trinity Broadcasting low-power station will broadcast their standard programming on digital channels only.  BUT the Commission has carved out an exception that will permit the participating to broadcast emergency information in analog should the need arise – for example, if a hurricane should threaten the area.  (Note that, when the transition does finally arrive in February, 2009, stations will not be permitted to broadcast anything – emergency or not – on their analog channels.) In addition, during the Wilmington test period the participating stations will be broadcasting, in analog, a message advising viewers of the test and alerting them that, if they are seeing the message, they need to upgrade to digital.

And one more thing – the Commission has established a Speakers Bureau which will arrange DTV-related presentations, free of charge, to any group anywhere in the country requesting one. Just go to www.fcc.gov and click on the “Request A Speaker” button.

To be sure, the April, 2008, public notice included the following tip: 

The Media Bureau will periodically update “The Public and Broadcasting” to reflect pertinent developments in the law, providing the date of the update on the front cover of the publication. Licensees should check the Commission's website for the current version (at http://www.fcc.gov/mb/audio/decdoc/public_and_broadcasting.html) when they undertake regular updates of their public files. 

So the Bureau may now be expecting each licensee with a public file, as a part of the routine maintenance of that file, to check the FCC’s website for updates. Of course, the Commission hasn’t incorporated any such requirement into its rules, but that doesn’t appear to faze the Bureau. 

Despite the fact that the size of the PDF file currently comprising the July, 2008, version is nearly 100 times bigger than the PDF of the April, 2008, edition (an incredibly whopping 14 MB compared to the far more reasonable 190 kB), it does not appear that there are any major substantive changes in the new version. In fact, the only truly substantive addition appears to be a reference to the new Form 388 which full-service TV licensees are required to file to report on their efforts to educate the public about the DTV transition. (The new version also updates a couple of addresses for FCC contact people and makes a couple of very slight language changes which do not affect the overall substance of the information.) 

We suppose that we might applaud the FCC for being diligent about updating its own materials. But we can’t shake the notion that, when the Commission tinkers (and tinkering probably overstates what the FCC had done in this revision) with a document which EVERY FULL SERVICE LICENSEE is required to have in its public file, the Commission might want to think twice. At a minimum, the Commission should alert broadcasters of the availability of the revised edition. That alert should delineate the particular revisions being made, and might also advise affected licensees whether any earlier version will do the trick or, alternatively, whether it is absolutely essential to download the revised version. (Absent any contrary indication, the safest course will always be to download the latest and greatest, even if the new version does not materially differ from the older version.) And the Commission might also want to give thought to precisely what changes will warrant a whole new edition. 

Unfortunately, this may just be harbinger of what life will be like as the Commission wades deeper into the “localism” thicket: substanceless messing around with “localism”-oriented documents which have very little actual significance at the local level, but messing around which imposes a significant burden throughout the broadcast industry. 

We can only hope that, at a minimum, somebody at the Commission will eventually figure out how to reduce the file size of The Public and Broadcasting PDF so that it doesn’t clog up too many Internet connections during the download.

Roberts and his pals get their crack at it.  It would seem more likely that the Commission might try to bring the CBS case up to the Supremes, to be heard at the same time as the Second Circuit/Fox case which is already there.  There is, of course, no guarantee that the Supremes would take the CBS case, but the FCC might think that the image of Ms. Jackson’s anatomy broadcast out to gazillions of football fans presents a stronger case for heavy-handed enforcement than does the situation in Fox (which, you will recall, involves ad lib remarks by Cher and Nicole Richie).  Another theory is that the FCC will just sit tight and do nothing with the CBS/Jackson case until the Supremes have issued their decision in Fox, which will probably occur sometime in the first half of 2009.

Whatever happens, the Third Circuit’s decision provides further confirmation that the Commission’s indecency policy in the wake of the 2004 Super Bowl has been a dramatic, and unjustified, over-reaction.

In addition, the Third Circuit found that the FCC improperly held the CBS stations liable for the actions of Ms. Jackson and fellow performer Justin Timberlake. CBS argued (the Third Circuit agreed) that Ms. Jackson and Mr. Timberlake were independent contractors and not employees for the purposes of that broadcast. Thus, CBS argued, the CBS stations should not have been held responsible for actions of individuals that were not its employees.
The FCC argued that, regardless of whether or not Ms. Jackson and Mr. Timberlake were employees, a broadcast licensee is in and of itself responsible for what is broadcast on its station. Although the Third Circuit found that such "strict liability" was appropriate in some circumstances, cases involving the First Amendment require the FCC to prove some degree of "scienter". "Scienter" roughly means "prior knowledge" or "prior intent", although the Third Circuit acknowledged that it is possible to find scienter even without actual prior knowledge if the party in question acts recklessly with regard what is being broadcast. For instance, according to the Third Circuit, a broadcaster's failure to use available preventative technology, such as a delay for live programming, might be reckless and the broadcaster might have sufficient scienter to be held liable for anything contained in the live broadcast. With respect to CBS, the Third Circuit found that the evidence was insufficient for the court to make a determination.

The Third Circuit vacated the FCC's order imposing the forfeiture on CBS and sent the case back to the FCC for further consideration. However, as the Supreme Court agreed to hear the FCC's appeal on the substantially similar "Golden Globes" case from the Second Circuit, it seems likely that the FCC would want to consolidate that case with the Third Circuit's decision and seek review of both at the same time.

The NOI/NPRM also specifically mentions the possibility of "concurrent" sponsorship ID's, by which it presumably means some disclosure to be made to the audience simultaneously with the embedded product reference.  How such concurrent mentions might work for radio programming (and yes, the NOI/NPRM is directed to both TV and radio) is not at all clear.  And while concurrent mentions might strike one as obviously intrusive and distracting on television, the Commission notes the "apparently common existing practice of superimposing unrelated promotional material at the bottom of the screen during a running program", and suggests that that practice undercuts any claim that concurrent announcements would infringe on the program's artistic integrity.

The Commission has demonstrated an overheated interest in "sponsorship identification" for the last several years - recall the multiple VNR inquiries, as the most obvious example.  The NOI/NPRM is in line with that interest, but it extends it in a way which could have a serious adverse impact on broadcast operations.  Having to determine which products happen to be identifiable by commercial design, and then having to announce each of those products concurrently with their on-air appearance, would likely create a substantial impediment to the development and broadcast of programming.  Imagine, for example, what a TV screen would look like during an NFL or MLB game, when every piece of logo-identifiable athletic gear (helmets, shoes, bats, balls, gloves, shirts, etc., etc.) and every off-field amenity (Gatorade, Motorola, etc.) would presumably be subject to the sponsorship ID requirement.  And let's not even start to talk about a NASCAR race.

One might also legitimately ask what purpose would be served by such a requirement?  While the NOI/NPRM invokes the "public's right to know who is paying", the NOI/NPRM does not dwell on the questions of whether the public is perhaps smart enough to realize that the Coke cups in front of Paula, Simon and Randy aren't there by accident, or that there is a reason that Nike has chosen to put its logo where it does.  At bottom, the Commission appears to assume that there is in fact some overriding public interest in requiring sponsorship identification - but the Commission fails to explore exactly what that public interest might be. Increased regulation of embedded advertising will inevitably draw the Commission even more deeply into content regulation than it has previously ventured - and, as a result, the Commission will be drawn even closer to obvious First Amendment issues that should not, cannot, be resolved by broad platitudinous references to "the public's right to know".

Ideally, the Commission will in the end seek to avoid the treacherous constitutional waters toward which it has set sail.  But if it does not, the substantial burdens on broadcasters which would likely flow from increased sponsorship ID requirements, combined with the substantial content-regulation that would necessarily accompany such requirements, will ultimately require far greater justification than the Commission has thus far demonstrated.

The comment and reply comment deadlines for the NOI/NPRM have not yet been established.  Check back to our blog for updated information which will be posted when available.

The Commission has fumbled and stumbled in trying to develop some coherent indecency policy over the last 35 years or so, ever since Carlin fantasized that there might be some such policy and then proceeded to skewer that imagined policy in his monologue.   While the Supreme Court tried to do the FCC a favor in 1978 by interpreting the Commission's initial decision narrowly, the Commission has, over the years, largely ignored that narrowing.  The result is, among other things, the current Golden Globes policy that flatly criminalizes the broadcast utterance of "fuck" or "shit" - unless, of course, those words occur in Saving Private Ryan. 

Carlin got it right in his monologue.  Not that there was an FCC policy, or that there should be an FCC policy, but rather that such a policy would be pointless and meaningless and contrary to our ability to communicate with one another.  While Carlin probably did not approve of the path the FCC has taken in response to his monologue, Carlin must certainly have appreciated the rich irony of that path and the effectiveness with which it underscored his essential point.

While the lifting of the freeze is a welcome sight, potential applicants run the risk that they will submit an application that conflicts with those licensees with February, 2009 construction deadlines - some of whom may wait until June 19, 2008, to submit their construction permit applications to implement their post-transition facilities.  While the Commission's

Public Notice

is not entirely clear on this point, it is possible (if not likely) that applicants filing in this window will need to protect those initial construction permit applications submitted on June 19, 2008, and there is also a risk that a minor change application submitted on June 19th will conflict with a maximization application submitted during the window.  Therefore, applicants submitting maximization applications and freeze waivers should be sure to protect the Appendix B facilities (as opposed to the already-authorized facilities) of all stations.

On the MVPD side, the Commission will require that notices be placed in the monthly consumer bills, providing notice of the DTV Transition, and referring the consumer to other sources of information, including www.DTV.org.  The Commission will require telecommunications carriers that provide Lifeline/Link-Up services to also include similar notices with their monthly bills.  As for equipment manufacturers, each television receiver or other device intended to work with television receivers (i.e., converter boxes) shipped after the effective date of the rules must include information relating to the DTV transition, including how the transition will affect the use of the purchased device.  Finally, the Commission committed to work with NTIA on making sure that their consumer help desks are staffed with persons knowledgeable about the transition. 
  
The rules adopted in the order will become effective as soon as they are published in the Federal Register.  The forms that are required to be filed will not become effective until after OMB approves them.

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.

Stations which are already operating on their final DTV channel but which still need a CP to enable them to build out to their Appendix B facilities must file for such a CP by March 17, 2008.

All other full-service TV stations which still need a construction permit in order to build out to their Appendix B facilities can and should file for such a permit as soon as possible.  The FCC has indicated that Form 301 (for commercial stations) and Form 340 (for NCE's) applications filed by such DTV stations by March 17, 2008 will be given expedited consideration and may be granted as quickly as within 10 days of filing.

Any station which is already operating on its final DTV channel and has at least a construction permit for its Appendix B facilities must complete construction by May 18, 2008.  If any such station will not be able to meet that deadline, it must file an extension application (FCC Form 337) no later than March 19, 2008.

Compliance with the new Program System and Information Protocol (PSIP) rules kicks in on May 29, 2008.

Stations which are not currently operating on their final DTV channels and which need permits authorizing construction of their Appendix B facilities must file applications for such permits no later than June 19, 2008.

If you are a full-service TV licensee or permittee, you should familiarize yourself with the upcoming schedule and confer with your communications counsel and consulting engineers to assure that you meet all necessary deadlines.

• 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 30^th 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.

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.

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.

According to Communications Daily, Martin wanted his fellow commissioners to vote on a public notice which would have been issued on Tuesday, launching a comment period that would extend until December 11.  When his colleagues refused to sign on, Martin decided to issue the notice himself, which has led to immediate, widespread criticism.

"The Martin rules are clearly not ready for prime time," Copps and Adelstein wrote. "Under the Chairman's timetable, we count 19 working days for public comment. That is grossly insufficient. The American people should have a minimum of 90 days to comment, just as many Members of Congress have requested."

Copps and Adelstein added that it is improper for Martin to be holding the proposed Tribune buyout "hostage" in order to press the issue of a media ownership vote.  "We are prepared to vote on the Tribune waiver requests within three working days after the Chairman circulates a draft decision," Copps and Adelstein said. "There is simply no excuse for using Tribune as a human shield."

The full Copps and Adelstein joint statement can be read here.

According to the news release, Martin invites public comment on "his" proposals, but cautions that comments should be filed by December 11, 2007. The release does not mention reply comments.

No other aspects of the ownership rules would be changed, according to Martin's proposal.

It has been widely reported that the Chairman hopes to wrap up the ownership proceeding before the end of the year (December 18 has been mentioned as D-Day). By announcing, through this unusual press release, his own proposal for reaching a bottomline, Martin is presumably hoping to gain support from folks who might otherwise raise a ruckus (such as the ruckus that was raised back in 2003, when then-Chairman Powell forced the initial version of the new rules through the process, only to have it reversed in part by the courts). While his proposal would relax to some degree the newspaper/broadcast cross-ownership limitation, the relaxation would be considerably more modest than was originally proposed. Moreover, that would be the only change - in other words, the other multiple ownership limits would remain in place, unrelaxed.

If nothing else, it appears that the post-Thanksgiving/pre-Christmas period will be most interesting on the ownership front.

It's hard to say. Instead of outlining any specific proposals, the NPRM merely whips Congress's one-sentence vague suggestion into an impressive series of thirteen vague questions (see the NPRM excerpt quoted verbatim below) and directs the downhill flow to broadcasters. And then, recognizing that, notwithstanding the salutary effects anticipated from the sure-to-be-mandated "on-air consumer education efforts", many viewers will likely still need "additional assistance in preparing themselves" for the DTV transition, the NPRM asks for more suggestions on steps the Commission and industry might take to assure that consumers "have access to the information and assistance they need."

But wait, there's more. The Congressional letter also suggested that it might be a good idea for the FCC to impose a reporting requirement on broadcasters relative to their consumer education efforts - you know, maybe a report to be filed every 90 days, listing the "time, frequency and content" of all transition-related PSA's broadcast. Oh yeah, and Congress also suggested "civil penalties for noncompliance".

Needless to say, the Commission has included that suggestion in the stream of "proposals" set out in the NPRM. Again, the NPRM offers little of substance, relying instead on a series of vague questions. (See the aforementioned NPRM excerpt below.) The FCC also proposes similar informational obligations for multichannel video programming providers and consumer equipment manufacturers.

Of course, the TV industry has a horse in this race. The last thing anyone in the TV biz wants is to lose the eyeballs of consumers caught unaware by the coming DTV transition. There's money to be made - and potentially lost - from any transition failures.

But the crux of the rulemaking is to codify what the industry must do, by government fiat - and, consequently, what resources stations must cough up for public education, resources over and above of the millions of dollars already invested in new equipment and spent on maintaining duplicative digital transmissions long before DTV receivers were widespread. A number of smaller market operators, in particular, have struggled to meet these expensive technical demands given the smaller ratio between ad revenues and DTV equipment investments.

While it's true that digital multicasting may improve over-the-air TV's competitive position, many smaller operators have had to mortgage the farm in order to seed a not-yet-sure DTV harvest - a harvest which is particularly unsure as new digital technology increasingly makes video entertainment and information available from sources other than licensed stations.

On the other hand, it is in the broadcast industry's interests to make D-Day as painless as possible. In a world of 500 channels and virtually limitless Internet content choices, customer retention is not just a good idea, it is mandated by the unyielding laws of survival. So the industry should be taking steps. But whether FCC-mandated requirements will help out is another story entirely.

The FCC is seeking public comment on its "proposals" - i.e., the questions set out in the sidebars elsewhere on this page. If you would like to chip in your two cents' worth, the docket is open for comments until September 17, 2007. Replies to those comments are due by October 1, 2007.

PSA proposal:

We propose to require television broadcast licensees to conduct on-air consumer education efforts. Such on-air efforts, we believe, are the most effective and efficient way to reach over-the-air television viewers about the coming digital switch-over. What should these announcements include, and when and how often should they run? Should we impose similar requirements on all television broadcast licensees or should there be distinctions made among licensees? Should the Commission produce an announcement or group of announcements to be used by all broadcasters, or simply provide a list of points that must be conveyed in any compliant announcement? What text or images should the rolling scroll include? Would it be constant or intermittent? On what date would it begin to run, and during which hours would it be required? Would the on-air education requirements increase as the transition date approaches? How would we track the effectiveness of the outreach efforts? Should broadcasters be required to formally assess and report on consumer awareness and preparedness, particularly in certain communities? If so, which communities warrant special attention? Should there be some mechanism for making adjustments in our requirements to reflect these ongoing assessments? Should we adopt certification requirements to ensure that broadcasters are complying? Would forfeitures for noncompliance be appropriate in this area? If so, how would they be calculated?

Reporting proposal:

What level of detail should reports to the Commission on consumer education efforts contain? What additional burdens would preparing, submitting, and retaining such reports place on licensees and permittees? Could these burdens be met by small broadcasters and NCE stations? Is there an alternative to requiring the filing of such reports with the Commission? For example, could broadcasters publicly summarize and describe their consumer outreach efforts via web pages, press releases, in their public file, or otherwise? How would this approach be monitored and enforced by the Commission? What benefits would these reports create for the government and public? How should any forfeitures for noncompliance be calculated?

Most stations have licensed their BAS equipment with the FCC to ensure primary operations.  However, FCC rules allow full-power broadcasters to operate BAS equipment on a short-term basis of up to 720 hours per year without obtaining a BAS license.  Based upon a recent FCC ruling, Sprint has announced that it will reimburse stations with unlicensed BAS equipment that was purchased before November 22, 2004.

While the CAP requirement may entail costs for EAS participants needing to upgrade their facilities, there is not likely to be any immediate hurry on that front.  The FCC's requirement will not kick in until 180 days after FEMA announces its adoption of standards.  So even if FEMA were to adopt such standards as of June 1, compliance with the FCC CAP requirement would not be necessary until late this year.
 
In addition to the CAP requirement the new rules require EAS participants to transmit state and locally targeted EAS alerts originated by governors or their designees.  (The Commission is also considering whether that requirement should be extended to alerts issued by local, county, tribal or other state governmental entities.)
 
The FCC is also looking at other EAS enhancements to improve the provision of emergency notifications to the disabled and to non-English speakers.  And to make sure that the whole system is working as designed, the Commission may require additional equipment testing, station certification and/or post hoc assessments of EAS effectiveness following alerts.  The Commission's decision included a second notice of proposed rule making addressing these various proposals.