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.