At its October meeting, the FCC proposed to clear away further regulatory underbrush by eliminating, or drastically modifying, two rules. The first is the requirement that all TV stations engaged in digital broadcasting file annual reports concerning Ancillary/Supplementary services that might have been offered. Second is the requirement that licensees filing certain applications publish and/or broadcast local public notice of each filing. The first of these proposals promises to be much less controversial than the second, but the Commission sought comment on both in one Notice of Proposed Rulemaking.
The Ancillary/Supplementary Services Report originated during the transition from analog to digital television broadcasting. Leading up to the transition, many believe that broadcasters were using their additional channels to offer new services in addition to broadcast programming. Such services might include data transmissions, teletext, paging services, aural messages, subscription video, or others. Partly as payback for being granted the privilege of participating in the digital transition, Congress decided that if broadcasters did provide such services, and if they charged fees for them, the broadcaster would need to pay five percent of the gross revenues from the fees to the FCC. Congress also required that the FCC prepare a report about its implementation of this requirement and annual reports on the amounts it has collected.
From this statutory requirement arose the Ancillary/Supplementary Services Report, which was due by Dec.1 of each year. As it turned out, however, most broadcasters chose to engage in multicasting of traditional video programming, which had been defined out of Ancillary/Supplementary services, instead of offering the services previously anticipated by Congress. As of 2016, only 0.2 percent of stations were required to pay anything to the Commission, and even those stations remitted, on average, less than $1,000 each.
Still, each and every year, television stations (and, as they converted to digital broadcasting, Class A TV stations, LPTV stations, and TV translators) have had to file reports to state that they had not offered Ancillary/Supplementary services during the prior year, nor had they derived any revenues from such services. Granted, the report has been one that is easy to complete, as it mostly consists of checking two boxes and affixing an officer’s digital signature, but it is still something to remember and takes time for the filing and printing for a station’s records.
In a move that will bring almost universal joy, the Commission has now proposed to require that only stations with payments due will need to file the annual report. Even more of a relief is the fact that the Commission has ordered the Media Bureau to consider waiving the requirement to file the FY 2017 report. Let’s hope that the Bureau gives this matter priority and takes action soon enough to allow all to enjoy Thanksgiving festivities with nothing hanging over them.
The Commission’s other proposed change is with regard to the rule that requires broadcast stations to broadcast and/or publish in a local newspaper a public notice of certain types of applications. The more common types covered by the rules are an assignment and transfer applications, community change applications, and license renewal applications, but new station and major modification applications also fall within its requirements. To say that the exceptions to the newspaper publication requirement, the determination of which newspaper to use, and how often to run the notice are Byzantine would not be an exaggeration. Moreover, the requirements for both the method of giving notice and its content vary depending on the type of station.
The Commission has proposed either to update these requirements or to scrap them altogether. It offered several examples of possible approaches that could be taken and requested comment on each. For instance, the Commission suggested that, instead of newspaper publication, broadcasters might post a notice on an internet website. Likewise, for notices that must be broadcast, some of which can be quite lengthy, the station might instead be able to broadcast a shorter announcement along with directions to view a portion of the announcement on the station website. This, in turn, would be linked to the online public file, where the application can be viewed. The recent revision of the disclosure requirements for station contest rules was held up as a possible model. The Commission also is looking to determine what content should be in notices for the various different types of applications and is questioning whether the requirements really should not be standardized across broadcast services.
As another possible approach, the Commission suggested that all such local notice requirements be eliminated altogether. The theory is that the public notices that the Commission releases itself, plus the availability of the FCC’s RSS feed to those interested, make additional notices redundant. Not surprisingly, this suggestion drew the vehement opposition of Commissioner Mignon Clyburn. She stressed her concerns about (1) making sure stations’ local audiences still know of proposed license renewals and changes and (2) not leaving out those without online access. Of course, one might question how likely a local resident is to ever see a notice about a local station that is published in the legal notices section of a city newspaper when there is no paper actually published in the nearby small town community of license. A cynical observer might also question the utility of the notices when, over a period of decades, the number of instances in which a local resident filed any comment with the Commission after learning of an application through a public notice hovers near zero. Competitors, those with other disputes with the station, and activists are the more typical filers, but they generally learn of the application through the other means that the NPRM pointed out.
In any event, this proposed rule modification is likely to elicit considerable comment, both pro and con. The deadline for filing such comments has not yet been set, but will be 30 days after publication of the NPRM in the Federal Register. Reply comments will be due 45 days after this Federal Register publication.
Check back here for updates as to both the comment deadlines and news about a possible suspension of the ancillary/supplementary services report filing requirement.