FCC Issues Its Largest Lump of Coal to Sinclair Broadcasting

A Proposed Fine of $13.4M for Undisclosed Sponsored Content Serves as a Warning to Other Broadcast Stations

As we closed the books on 2017, the FCC announced that it plans to fine Sinclair Broadcast Group Inc. a record $13.4M, for having not adequately disclosed sponsored content in its programming. The fine was calculated by the FCC based on over 1,700 instances – across 64 of Sinclair stations – where the FCC found Sinclair to be in violation of Section 317(a)(1) of the Communications Act, which requires identification of anyone who has paid for broadcast programming. That adds up to roughly $7,700 per violation. Guess someone was on the FCC’s naughty list.

While many might be inclined to gloss over this decision as a one-off that is only notable for the size of the fine, it can also be viewed as a clear signal that the FCC is getting tough on sponsorship identification generally and possibly elevating it higher in the Commission’s list of enforcement priorities.

With this Notice of Apparent Liability (NAL), the Commission has forcefully underscored the continued importance of the statutory requirement that all broadcast stations are transparent about who are attempting to persuade their listeners or viewers. This longstanding requirement applies to all broadcasts of any length where any compensation, in cash or in kind, has been provided to a station in exchange for a broadcast. While the amount in question is higher than prior cases, that alone shows that the FCC is taking this issue seriously.

The FCC began to look into the matter of potential undisclosed, paid content on Sinclair stations in April 2016 when it received an anonymous complaint which alleged that the cancer foundation Huntsman Cancer Institute (HC) was paying for favorable news coverage and programming on Sinclair and other stations. The content that got Sinclair in trouble was varied in length. Some ran as short news of approximately one minute in length, but Sinclair also broadcast as many as 71 full-length programs. Sinclair did not include a clear identification of any of them as being sponsored, even though Sinclair had an arrangement whereby it would receive compensation for these broadcasts. The problem is that programming that appeared to be chosen by the station on its own was not. Continue Reading

FCC Begins Process for Permitting Collocations on Twilight Towers

On Dec.14, the FCC released a Public Notice unveiling a draft Program Comment that will supposedly resolve the longstanding issues surrounding collocating equipment on so-called “Twilight Towers.”

Twilight Towers have been stuck in limbo as a result of an ambiguity in the Commission’s rules. Since 2001, the Commission has had rules in place that require licensees to evaluate whether proposed facilities would affect historic properties. However, those rules were not specifically tied to Section 106 of the National Historic Preservation Act, which governs the historic preservation review process, until 2005.

As a result of this ambiguity, Twilight Towers either lack documentation demonstrating successful completion of Section 106 review upon construction or have not undergone Section 106 review at all. Tower collocations are exempt from an individual historic review process only if the underlying tower itself underwent Section 106 review. Thus, Twilight Towers have been unable to take advantage of this historic review exemption for collocations. The FCC is also eager to make more towers available for broadband deployment, one of the larger items on Chairman Pai’s agenda.

According to the FCC, routine historic preservation review for Twilight Towers would be inept. It claims that no adverse effects have been brought to its attention in the towers’ 12 to 16 years of existence, and thus routine historic preservation review would be of little value.

While industry had urged the FCC to exempt Twilight Towers from any historic preservation review, other commenters, such as the Tribal Nations and State Historic Preservation Officers, argued that collocations may increase the adverse effects of towers and urged the FCC to implement some sort of review process. While the FCC was unwilling to provide a blanket exemption to historic preservation review, it did meet industry halfway by making clear it would not take enforcement action relating to the good faith construction and deployment of Twilight Towers, and by providing an alternative path to Section 106 exemption. Continue Reading

Mark Your Calendars: Political Broadcasting Webinar Set for Jan. 18 Hosted by Colorado Broadcasters Association and Fletcher, Heald & Hildreth

Join us on Thursday, Jan. 18, 2018 from 2 p.m. – 3:30 p.m. EST for a political broadcasting rules refresher webinar! Presented in collaboration with the Colorado Broadcasters Association and Fletcher, Heald & Hildreth, the webinar will be hosted by FHH’s all-star attorneys Frank Montero, Scott Johnson, and Dan Kirkpatrick. And, as an added bonus, the webinar will feature Bobby Baker a long-time head of the FCC’s political programming staff.

The webinar will cover:

  • Lowest Unit Rate calculation
  • What are equal opportunities (also called equal time) requirements and what programs are exempt from this?
  • Impact on streamed political ads online
  • Handling “issue” ads from PACs
  • Record keeping
  • and more!

To register, all you need to do is click here.

The webinar will be available for download, along with corresponding presentation slides. Attendees will also be able to ask questions during the webinar’s broadcast.

We hope you join us!

FCC Welcomes Blue to the EAS Family

Last week the FCC unanimously adopted a new member to the Emergency Alert Systems (EAS) family: the “Blue Alert.” Transmitted through the broadcast EAS and Wireless Emergency Alert (WEA) systems, the Blue Alert is a voluntary alert code that can be used by state and local authorities to alert the public of credible “threats to law enforcement and to help apprehend dangerous suspects.” See it as an Amber Alert for law enforcement.

The Report and Order was approved after an emotional testimony by the family members of Rafael Ramos and Wenjian Liu from the New York Police Department, who were gunned down while on duty and whose deaths lead to the 2015 Blue Alert Act. This FCC approval will allow for more states to adopt the new EAS code.

This new alert can be disseminated through television, radio, satellite, and wireless phones using the three character code BLU. On a voluntary basis, all EAS Participants can upgrade their software to include the BLU event code. However, those wishing to upgrade will have to bear the cost for installation, downloading the software updates, and any other clerical work necessary.

For those wishing to welcome Blue Alert into their EAS system, the FCC has provided a 12-month implementation period for broadcast EAS and an 18-month implementation period for WEA via people’s phones. These timelines are designed to ensure that those choosing to deliver EAS Blue Alert can have the sufficient training, resources, and time available to address any technical issues that arise to ensure the successful delivery of Blue Alerts. The Commission also believes that by upgrading the EAS with Blue Alert on a rolling, voluntary basis that it will cut down on significant costs to EAS Participants.

The FCC, along with the National Broadcasters Association, believes that this Order will now allow the public for an “opportunity to protect themselves and their families and to report relevant information to law enforcement, thus facilitating the apprehension of suspects who are alleged to pose an imminent threat to law enforcement officers.”

Commissioner Carr heralded the measure saying, “This action should facilitate the delivery of Blue Alerts in a uniform and consistent manner nationwide and, in the process, increase the reach and effectiveness of these potentially life-saving warnings.” Commissioner Clyburn added that a, “three-character Blue Alert event code is the most effective means to share vital information in critical situations.”

If your arms are wide open to welcome Blue Alert into your EAS system, contact us about how we can help you.

CMRS Rules Get an FCC Facelift – Say Goodbye to Sections 20.7 and 20.9

Chairman Pai and the FCC last week continued their campaign of revamping FCC rules, this time by adopting a Report and Order tackling the Commission’s Commercial Mobile Radio Services (CMRS). The Order deletes Sections 20.7 and 20.9 of the Commission’s rules and is intended to generally eliminate an “outdated and incomplete list of certain services” and streamline rules across all spectrum bands by removing regulations that unnecessarily apply to some mobile service providers.

Photo by Derick Anies on Unsplash via the Creative Commons Licsense

Section 20.7 of the rules specified some, but not all, examples of services that meet the definition of “mobile services.” Section 20.9 of the rules provided a list of services that were presumed to be commercial mobile radio services. It also required applicants or licensees in those services to file a petition for waiver of that CMRS status in order to be classified instead as providers of Private Mobile Radio Service (“PMRS”). Under Section 332 of the Communications Act, and numerous other FCC rules, CMRS providers have significantly more regulatory obligations than PMRS providers, and CMRS providers are in many ways treated as “common carriers.”

The Order notes that while “Section 20.9’s regulatory treatment of certain service bands may well have been a reasonable tool when it was adopted, it was based on assumptions that no longer apply—namely that a licensee would offer a service restricted either to CMRS or PMRS use rather than seek to have the flexibility to operate as both.”

Furthermore, the Order goes on to note that in recent years, “the Commission’s spectrum regulation has turned toward a flexible use model that no longer supports this particular treatment embedded in our rules.” The Commission points out that because of Section 20.9 of the rules, some applicants that might otherwise have their applications granted very quickly instead have to file waivers or similar pleadings to be regulated as PMRS providers, which adds unnecessary cost and delay to the application process. Continue Reading

Rural Health Care Providers Could Find Relief in FCC Proposal

Photo by rawpixel.com on Unsplash using the Creative Commons License

Last week, the Federal Communications Commission took steps to review and update its Rural Health Care Program (RHCP) via a Notice of Proposed Rule Making and Order. The item seeks comment on how to improve RHCP, including extending a waiver to allow for the rollover of RHCP funds from Fiscal Year 2017 into mid-2018.

The goal of RHCP has been to improve the quality of health care to patients in rural communities where, according to the National Rural Health Association, only nine percent of the country’s physicians practice. Thus, citizens often face difficulties in getting access to quality health care due to a lack of available professionals.

To help, RHCP covers the costs of broadband service for rural health care providers so that they can communicate with patients miles away, rural clinics can send X-rays to a radiologist in an urban area, provide psychiatric counseling through video conferencing, or even help a woman via video who is struggling with a difficult pregnancy. These types of services need a broadband connection, which may not be available in a particular community.

The RHCP Program was established by the 1996 Telecommunications Act to “facilitate health care delivery in rural and remote parts of America.” The Telecom Program, the Health Care Fund Program, the Internet Access Program, and the Rural Health Care Pilot Program all fall under the umbrella of the RHCP Program

Health care providers in rural America use RHCP in order to, according to the FCC, “provide telemedicine, transmit health records, and conduct other telehealth activities, thereby improving patient care and reducing health care costs.” The program provides eligible health care providers with a 65 percent discount on broadband services in rural America.

The NPRM aims to, “ensure that all communities have access to advanced telehealth services” and “curtail waste, fraud, and abuse” within the program. Chairman Pai said that the FCC will begin working toward that goal by trying to identify the ideal size for RHCP in the future and ways in which the program can function better. Continue Reading

The FCC’s Open Internet Order – Which Freedom?  

By Fabio Lanari (Modified by Rock1997 via the Creative Commons License)

The fight over the Open Internet (better known as net neutrality) continued Thursday with the Federal Communications Commission voting to reverse the 2015 Title II Order, which reclassified broadband Internet access as a “telecommunications service.” This decision means that the Internet will return to its pre-2015 Title I “information service” classification (For a history of how we got to this point, read our past CommLaw posts here). Furthermore, the Commission’s Order removes much of the FCC’s oversight over the Internet, and reinstates shared jurisdiction with the Federal Trade Commission.

However, it is obvious for anyone that has been following this fight that this battle is far from over.

While Commissioners on both sides of the aisle said they were in favor of Internet freedom, they each had different definitions of what that means. In particular, the Republican and Democratic Commissioners expressed fundamental differences in defining the nature of that freedom and the Commission’s role in protecting such freedom.
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New European Privacy Laws Going Into Effect Mean ALL Companies Need to Review their Data Collection

Our websites are global, our e-commerce offerings reach customers around the world, our Internet radio broadcasts elicit responses from listeners around the globe and our consultants often hail from London to New Delhi.

Whether people pay us, whether we pay them, or whether we just correspond with people interested in our products, services and programs, we often exchange personal data that includes email addresses, phone numbers, and physical addresses. This personal data is increasingly protected by regulations around the world, especially when it is collected online. Nowhere is this regulation more stringent than in Europe.

In just six months, new European privacy regulations, called the General Data Protection Rules (GDPR) will take effect, with large new fines and a strong European Union (EU) commitment to enforcement. This new law fundamentally increases protection of personal data and its reach extends far beyond the borders of the EU. Companies all over the world are preparing for the change. Are you?

This blog post provides an overview of the new GDPR, suggests steps which companies might take to better understand and stay on the right side of these rules (including by “self-certifying” your company’s compliance) and provides some U.S.-based resources in the form of the websites of the Department of Commerce and U.S. Better Business Bureau. For those who collect personal data from citizens in EU countries, the time to act is now.

EU Data Protection Law in a Nutshell

Europe has a different type of protection for personal data then the U.S. For instance, U.S.-based data privacy laws are sectoral: we protect an individual’s health data, financial data and even individual movie rentals. Due to the abusive use of personal data collected before and during WWII, European countries have taken a much harder line than the U.S. when it comes to private collection of personal data. As one of the first laws of the then-new European Union, the Data Protection Directive was passed in 1995 and created a comprehensive data protection law for Europe. All personal data of European individuals is broadly protected and controlled over that data, which rests with the individual and includes: (1) a right to review the data, and correct as appropriate, and (2) a right to consent to “secondary uses” of the data, including whether or not the data may be shared or sold to third parties for purposes unrelated to the original purchase or service.

In 2016, European lawmakers went one giant step further. The EU created a stronger set of data privacy laws designed to further harmonize the data protection laws of the region and better correlate them to 21st century technologies. Now this law, the GDPR, is shaking up the way companies around the world collect, process, retain, share and delete personal data collected from European citizens. Every company working with data flows from Europe should be closely reviewing their data policies, procedures and processing to see if their compliance is required.

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Effective Date of Main Studio Rule Elimination Announced

Photo by John Hult via the Creative Commons License

Effective Jan. 8, 2018, AM, FM, and television broadcast stations will no longer be required to maintain a main studio. The Commission voted back in October to eliminate the Main Studio Rule based on findings that the cost of maintaining a main studio outweighed the benefits. The Order was published in the Federal Register on Dec. 8, and will take effect 30 days after publication (since that date would fall on a Sunday, the revision is effective Monday, Jan. 8, 2018).

We wrote about the implications of the repeal of the main studio rule back in October, following that month’s FCC Open Meeting.

As outlined in the Order adopted by the Commission and published in the Federal Register, “We affirm the tentative conclusion … that technological innovations have rendered local studios unnecessary as a means for viewers and listeners to communicate with or access their local stations and to carry out the other traditional functions that they have served.”

The main studio rule repeal also encompasses staffing requirements associated with the main studio. Previously, it was required that main studios be staffed with a “meaningful management and staff presence” in order to execute the station’s operations.

Now, as of Jan. 8, 2018 broadcast stations will no longer be required to staff or maintain a main studio.  As a reminder, however, they will need to maintain a local or toll-free telephone number and, until their local public inspection file is entirely moved online, must maintain a hard-copy file at an accessible location in their community of license.