TVNewsCheck‘s quarterly quick briefing on the legal and regulatory proceedings affecting broadcasters from communications attorneys David Oxenford and David O’Connor.
Summertime did not slow down the FCC’s deregulatory efforts. Numerous broadcast rules are under review as new FCC Chairman Ajit Pai advances his agenda of reducing the regulatory burden on broadcast stations. Meanwhile, broadcasters and MVPDs have submitted their cost estimates for the repacking, and the current estimate — more than $2.13 billion — is hundreds of millions more than Congress authorized. Broadcasters now look to relief from Congress to cover the shortfall.
At the same time, broadcasters look at the possible adoption of ATSC 3.0 and a flexible approach from the new FCC, as many stations hope to be able to implement 3.0 in connection with the construction of new facilities required by the repacking of the TV band.
Keep up to date with these and other legal and policy issues affecting television broadcasters by reading FCC Watch, an exclusive briefing on some of the major issues currently being considered in Washington prepared by David Oxenford and David O’Connor, attorneys in the Washington law offices of Wilkinson Barker Knauer LLP. You can reach Oxenford at [email protected] or 202-383-3337 and O’Connor at [email protected] or 202-383-3429.
In alphabetical order:
ATSC 3.0, aka Next Generation TV, is likely to become an authorized new standard for over-the-air digital television transmissions. The Advanced Television Systems Committee (ATSC) has been developing the standard for several years now. It will incorporate Internet-protocol digital encoding and will allow for many other major advances, including 4K capabilities, high-efficiency video coding, enhanced compression and significant improvements for both mobile reception and data transmission.
The standards approval process for 3.0 is nearing an end: each component is either a finalized, approved standard or is in the latter stages of the candidate standard and proposed standard process.
Last year, broadcasters and manufacturers filed a joint petition for rulemaking formally asking the FCC to adopt the “bootstrap” portion (A/321) of the Physical Layer Protocol of the new TV transmission standard. The petition requests that the FCC adopt the discovery and signaling and the features enabled within the Physical Layer as an alternative to, but not a replacement for, the current DTV transmission standard.
Although the petition languished under former Chairman Tom Wheeler, Chairman Pai quickly issued a Notice of Proposed Rulemaking (NPRM) setting out proposed rules for the adoption of the 3.0 standard and asking for public comment. That pleading cycle has now ended, and the Chairman has targeted adoption of new rules by the end of the year.
Consistent with the joint petition’s proposal, the NPRM proposes that broadcasters may use the 3.0 standard on a voluntary, market-driven basis, while they continue to deliver current-generation DTV service using the ATSC 1.0 standard. Under this approach, 3.0 stations would be required to arrange for another TV station in the market to continue to operate with the 1.0 standard and carry the 3.0 station’s primary programming channel on the other station’s regular multicast stream, which would be viewable on current TV receivers.
This host/tenant relationship, which utilizes channel sharing arrangements, permits deployment of the new standard without the government allocating transitional spectrum. The NPRM proposes that the 1.0 simulcast signal must substantially replicate the 3.0 station’s noise-limited service contour. The NPRM asks whether agreements between 1.0 and 3.0 stations should be filed with the FCC.
The FCC tentatively concludes that 3.0 tuners in television receivers would not be required; instead, manufacturers would voluntarily include them in new receivers while continuing to include the mandatory tuners capable of receiving current 1.0 signals.
The FCC has raised other issues in the NPRM, including addressing MVPD carriage issues related to 3.0 licensing.
Experimental tests of the new system continue around the country, as the remaining aspects of 3.0 are moved to final standards. With ATSC indicating that all aspects of the new standard will be adopted and in place this spring, many stations are hopeful that they will be permitted to incorporate the 3.0 standard as part of any repacking they need to do as a result of the incentive auction.
In February 2015, the FCC issued a Notice of Proposed Rulemaking proposing to eliminate outdated rules in order to promote the conversion of analog remote pickup facilities to digital. The NPRM is available here. The pleading cycle in this proceeding closed in 2015.
CALM Act | Loud Commercials
In 2011, Congress enacted the CALM Act with the aim of ending loud commercials on TV, and the FCC’s rules implementing the CALM Act went into effect in 2012. To comply, TV stations must use equipment that adheres to the A/85:2013 standards adopted by the ATSC, a standard that has been in place since June 2015. See our summary of CALM Act requirements here and here.
The FCC advised Congress last year that it is monitoring complaints related to loud commercials, and suggested that if a particular station receives a sufficient number of complaints, the FCC will issue a Letter of Inquiry regarding the station’s CALM Act compliance. So far, there have been no public actions by the FCC for CALM Act violations. Stay tuned to see if anything changes with the administration’s enforcement of CALM Act issues.
The FCC continues to actively enforce its children’s programming rules. Most recently, last month, the FCC entered into a consent decree with a TV station that had not been identifying educational and informational programming addressed to children with the on-air “E/I” symbol. For this and other related violations, the station agreed to make a $17,500 payment to the government, showing that the new administration is still enforcing the rules on its books. See our description of this decision here.
This recent enforcement is similar to past cases under the previous administration where fines were issued for not including the “E/I” symbol on educational and informational programs, and for broadcasting the URL of a commercial website in the body of a program directed to children ages 12 and under. See our summaries of some of these cases here and here.
In the past, fines have also been issued for stations that failed to publicize that educational and informational programming in local program guides. See, e.g., the FCC decision here. TV broadcasters need to carefully observe all aspects of the children’s television rules, as the FCC has been monitoring compliance in this area.
There are numerous other aspects of the children’s television rules to which stations must pay close attention. In July 2015, a station group agreed to pay $90,000 to the federal government and enter into a compliance program in order to resolve claims that the stations were using multiple re-runs of one-time programs to meet their obligations to provide three hours of weekly educational and informational children’s programming. The FCC asserted that to meet their “core” programming obligation, stations must run regularly scheduled episodes of eligible programs, and not just repeats of one-off programs. See our summary of this case here.
In another 2015 decision, the FCC warned stations to carefully assess the educational and informational aspects of such programs to make sure that there can be no reasonable question as to whether the programs have, as a “significant purpose” the positive development of children’s cognitive and social skills.
The FCC has warned stations about taking too broad an interpretation of “children’s programming,” noting that the FCC “does not automatically accept” a licensee’s claim that its programming adequately meets the standards for children’s programming, but will instead “require the licensee to present credible evidence to support its position in such a situation.” See our summary here.
Throughout the most recent license renewal cycle, the FCC issued significant fines to TV stations for late-filed FCC Form 398 children’s programming reports. In fact, the FCC has been reviewing station’s online public files to more easily locate late filings. See our article here. Stations need to be diligent in timely filing those reports, and keeping records of when those reports were filed, in preparation for the next round of renewals that will begin in 2020.
In the meantime, some parties have advocated loosening the children’s programming requirements for multicast channels, and for removing the E/I requirement for noncommercial stations. It remains to be seen whether Chairman Pai will take up comprehensive children’s programming reforms.
TV Closed Captioning — In 2015, new closed captioning obligations for TV broadcasters became effective. These new “quality” standards for captioning include four distinct areas: Accuracy, synchronicity with the words being captioned, caption completeness from the beginning of a program to its ending, and caption placement so that the caption text does not obscure other important on-screen information.
TV stations are required to use “best efforts” to obtain compliance certifications from their programming providers. For more on the new obligations for quality captioning, see our article here.
In February 2016, the FCC adopted a Second Report and Order which reallocates responsibility for compliance with the closed captioning rules between video programming distributors (VPDs) and video programmers (VPs). The new rules also include methods for measuring closed captioning compliance and responding to consumer complaints. New certifications by VPs to the FCC will also be required. Although some of these rules took effect Sept. 22, 2016, most of these new rules will not take effect until they have been reviewed and approved by the Office of Management and Budget.
At the same time, the FCC has been restricting the waiver process for closed captioning under the “undue economic burden” standard. That standard is significantly higher than in previous years. The FCC has been reviewing the captioning waivers and issuing public notices soliciting comments. Consumer groups have actively opposed the waiver requests.
The Media Bureau has denied a number of closed captioning waiver requests filed by various churches and other organizations. In doing so, the bureau has conducted a detailed analysis of the financial status of the requesting party, and frequently has concluded that the organization had adequate finances to pay for captioning, and thus a waiver was not warranted. The bureau has also concluded that there are no religious freedom constitutional issues presented by these cases. See our commentary here.
From these cases, it is clear that waivers will be granted only when they would put a burden on the overall financial health of a program producer, and not simply because the cost of captioning would cause the producer to lose money on the program itself.
Top 4 network stations in the top 25 markets have long been prohibited from using the Electronic Newsroom Technique (ENT) to caption their news and other live programming. While other stations can still rely on that technique, the FCC now requires stations to take additional actions with their ENT, including scripting in-studio produced programming, weather information and pre-produced programming (to the extent technically feasible).
Live interviews and breaking news segments need to include crawls or other textual information (to the extent technically feasible). Stations must train news staff on ENT scripting and appoint an “ENT coordinator” accountable for compliance. See this article here for further information.
The FCC required the broadcasting community to submit a report detailing their experiences with the new ENT rules and the extent to which the new ENT rules have been successful in providing full and equal access to live programming on television. The NAB submitted a report on behalf of the TV industry in 2015, and a copy is available here.
IP Captioning — FCC rules require the closed captioning of certain video programming delivered via Internet protocol (i.e., IP video). The rules are a result of the 21st Century Communications and Video Accessibility Act (CVAA), a federal law designed to improve the accessibility of media and communications services and devices.
Under the rules, if programming is delivered using Internet protocol, whether it is prerecorded video programming, live or “near live” programming, it must be provided with closed captions if the programming was shown on television in the United States with captions. However, if the programming aired on TV before certain dates in 2012 and 2013, it may be exempt until it is shown again on TV (the dates will depend on the type of programming — e.g., live programming had a later phase-in date).
TV stations and other video programming distributors (VPDs) are required to make captions available for “archival” IP-delivered video programming within 15 days of the date that an archived program aired on television with captions.
Brief video clips and outtakes (including excerpts of full-length programming) initially were exempt from online captioning obligations, unless “substantially all” of a full-length program was available via IP video in multiple segments. However, the FCC has been phasing out that exemption. Clips taken directly from captioned TV programming and run on a station’s website or through their mobile app must now be captioned.
“Montages” of multiple clips from captioned TV programs must be captioned if they are displayed online. As of July 1, clips from live and “near-live” TV programming must also be captioned if they are displayed online. However, such clips may be posted online initially without captions as long as captions are added to clips of live programming within 12 hours, and to clips of “near-live” programming within eight hours, after the conclusion of the television showing of the full-length programming.
The FCC has an open proceeding about how to deal with clips of captioned TV programs that are contained in a “mash-up” with other content that has not been shown on TV with captions. This proceeding also asks whether the grace period provided for live and near-live clips should be phased out over time, and whether the captioning rules should be extended to clips that run on third-party websites or apps. For background, see our summaries here and here.
These requirements govern cable systems, TV stations, broadcast and cable networks and virtually every other professional video program producer who is now, or will be in the future, making programming available online, to the extent that the programming is also exhibited on TV.
For further information, see our blog entry here.
In 2016, new FCC rules became effective which give broadcasters greater flexibility in their disclosure of the material terms of contests which they conduct. Under the new rules, broadcasters may disclose material contest information online in lieu of making on-air announcements, subject to certain requirements. Click here for further information, and click here for our discussion of potential pitfalls when running station contests.
Copyright Infringement Lawsuits For Unauthorized Uses Of Internet Photos And Videos
There have been almost daily reports in the broadcast trade press of new lawsuits filed against broadcasters for using photos on their websites and even in their social media accounts without permission of the photographer. In most cases, these photographs were found by station employees on the internet, and used to illustrate articles on station websites without obtaining permission of the copyright holder.
Similar complaints have been leveled against TV stations for taking Internet photos or video and using them in their on-air programming. Simply because material has been posted on the Internet does not mean that the material is in the public domain and can be reused without permission of the creator. See our articles here, here and here for more information about these issues.
In 2015, the Copyright Office began a proceeding to study how to best protect the rights of photographers and others who produce digital images, while making it possible for users to get the rights to use such photos. See our summary of the initiation of the proceeding here.
A bill was introduced in Congress in August 2016 seeking to establish a copyright small claims court that would allow photographers and others to more easily enforce their rights. See our analysis of that bill here. Congress adjourned without action on these items, but a review of the Copyright Act has been promised in this Congress, so look for these proposals to be considered in the future. See our update here.
Congress is considering bipartisan bills to reauthorize the FAA for at least five years, which contain provisions that aim to speed the integration of drones into the national airspace system but also criminalize reckless drone behavior around manned aircraft and runways. For further information about these bills, see here and here.
At the same time, Senator Diane Feinstein introduced the Drone Federalism Act of 2017 which would give states, localities, and private property owners more authority over drones. Among other things, the bill would effectively prohibit drone operations below 200 feet over private property without the consent of the property owner and would reserve for state, local, and Tribal governments the ability to adopt “reasonable” regulations governing drone operations below 200 feet, potentially greatly restricting newsgathering operations.
The FAA’s Unmanned Aircraft Systems Identification and Tracking Aviation Rulemaking Committee (ARC) held its first meeting on June 21 and is expected to hold two additional meetings over the summer. The purpose of this ARC is to develop and provide recommendations to the FAA regarding remote identification and tracking of Unmanned Aircraft Systems (UAS), including how to address security and public safety concerns. The ARC’s charter and membership list are now publicly available.
EAS — Emergency Information
The FCC and FEMA announced that the next nationwide Emergency Alert System (EAS) test will be held at 2:20 p.m. ET on Sept. 27. As with the 2016 nationwide test, stations will need to receive and process the national periodic test code and the “six zeroes” national location code during the test.
All EAS Participants were required to complete the 2017 ETRS Form One on or before Aug. 28. By the end of the day on Sept. 27, EAS participants must submit any updates or corrections to their 2017 Form One filings and must file their “day of test” information on ETRS Form Two. Finally, on or before Nov. 13, EAS participants must file ETRS Form Three with detailed post-test data.
This will not be the last nationwide EAS test — in April 2016, the IPAWS Modernization Act (Pub. L. No. 114-143) was enacted which, among other things, requires a nationwide EAS test at least once every three years going forward.
In July 2017, the FCC released a new EAS Operating Handbook, which supersedes all other EAS handbooks and must be in place in time for the 2017 nationwide EAS test. Copies of the Handbook are available here.
In March 2016, the FCC adopted a requirement that EAS participants provide information to their State Emergency Communications Committees (SECCs) as to the ways in which the EAS Participant makes EAS information available to non-English speakers. These reporting requirements will require SECCs to include such information in the State EAS Plans submitted to the FCC for approval.
The FCC specifically declined to mandate multilingual emergency alerts by EAS participants, although that issue is now on appeal before the DC Circuit in a lawsuit brought by MMTC and opposed by the NAB. EAS Participants have until Nov. 3 to submit the required information to SECCs. An SECC will then have six months to report such information as an amendment to its State EAS Plan on file with the FCC.
FCC rules require TV stations to ensure that their EAS messages are accessible to members of the public, including those with disabilities. Specifically, EAS messages must appear at the top of the TV screen or elsewhere on the screen where they will not interfere with other visual messages.
In addition, EAS messages must be displayed in a manner that is readily readable and understandable, and in a manner that does not contain overlapping lines of EAS text or extend beyond the viewable display (except for video crawls that intentionally scroll on and off of the screen). Finally, the entire text of the EAS message must be displayed at least once.
Broadcasters must comply with an FCC requirement that emergency information provided in non-news programming be made accessible to individuals who are blind or visually impaired. In doing so, broadcasters must use the secondary audio (SAP) stream to convey televised emergency information aurally, when such information is conveyed visually during programming other than newscasts (e.g., in an on-screen crawl run during entertainment programming). This obligation does not cover EAS alerts, but applies to other information about emergency situations that are conveyed by stations over the air in written form (such as crawls). See our summary here for information about these obligations.
The obligation to convert visually-presented emergency information into speech on the SAP channel has been on hold in one instance — where the information is provided graphically, e.g., by broadcasting a weather map or similar non-textual display. In November 2016, the FCC agreed that this requirement will not take effect until May 2018, subject to the filing of an industry status report by Nov. 22. See our summary here.
In January 2016, the FCC adopted a Notice of Proposed Rulemaking soliciting comment on proposed rules to strengthen the EAS. Proposals include improving the utility of state EAS plans, including a requirement that such plans be submitted to the FCC online, whether the current cable “forced tune” and selective EAS override provisions should be retained, and methods to improve state and local usage of EAS. Comments in this proceeding were due July 8. For more information on those proposals, click here.
The EAS item had been slated for a vote at the December 2016 FCC open meeting; however, it was pulled from the agenda along with a number of other items, apparently because one or more Commissioners deemed them controversial following the November election. The EAS item remains nominally on circulation among commissioners.
In April 2016, the FCC sought comment on ways to improve earthquake-related emergency alerts, including “Earthquake Early Warnings” to the entire public in fewer than 3 seconds. The FCC was supposed to submit a report on its findings to Congress in September 2016.
In June 2017, the FCC proposed revising its EAS rules to incorporate a new event code, “BLU”, for Blue Alerts. Adding this event code would allow alert originators to issue an alert whenever a law enforcement officer is injured or killed, missing in connection with their official duties, or if there is an imminent and credible threat to cause death or serious injury to law enforcement officers. Comments in this proceeding were due July 31, and reply comments were due Aug. 29.
For information about other concerns for stations delivering emergency information, see our article here where we talked about these issues in connection with the approach of Hurricane Sandy, and more recently our article here where similar issues were raised in connection with the approach of Hurricane Matthew, reminding stations of their obligation to provide visual as well as audio information about imminent threats to assist the hearing-impaired during emergencies.
The FCC has essentially adopted a strict liability standard for the use of EAS tones (or even EAS tone simulations) in non-emergency situations. In 2015, the FCC fined iHeart Media $1 million over the use of EAS tones in a non-emergency. See our article here. In May 2017, a broadcaster agreed to pay a $55,000 penalty and enter into to a three-year compliance plan with reporting obligations, in connection with a television commercial which incorporated a simulated EAS tone.
On April 21, the FCC issued a declaratory ruling determining that broadcasters can rely solely on Internet recruitment sources to meet their requirement to widely disseminate information about their job openings. If a broadcaster, in its good faith judgement, determines that an online source will reach members of all of the significant groups in its community, it can rely solely on this online source when seeking candidates for new job openings.
The FCC suggested that stations should still reach out to community groups and educational institutions when recruiting for job openings, and still use its own airwaves for such recruiting. However, these additional outreach efforts are not mandatory if the online source being used reaches members of all significant groups within a broadcaster’s recruitment area. See our summary of the decision here.
While this new ruling significantly lessens the wide dissemination burdens on broadcasters, and is a significant departure from past precedent where stations that relied solely on online sources were fined, other broadcast EEO obligations remain intact. Broadcasters still need to notify specific community groups about job openings if those community groups specifically ask the station to receive such notices, and broadcasters still must conduct non-vacancy specific outreach efforts to educate the community about broadcast employment.
These include the EEO menu options such as attending job fairs, hosting interns, conducting broadcast scholarship programs and speaking at community groups and educational institutions about what jobs there are at broadcast stations, how to train for them and how to find them. For more on the remaining obligations, see our article here.
Meanwhile, TV broadcasters are obligated to file FCC Form 397 mid-term EEO reports on a rolling basis. This obligation began with stations in Washington, D.C.; Maryland; Virginia; and West Virginia in June 2016, and stations in other states will file as the obligations arise every other month. TV stations with five or more full-time employees will need to file this report by the fourth anniversary of the due date for their last license renewal application. See our summary of this obligation here.
The FCC also continues to enforce its EEO rules by randomly auditing 5% of all broadcast stations annually, as well as through the review of Form 396, which summarizes a station’s EEO performance in the two years prior to the filing of a station’s license renewal filing. New rounds of random EEO audits were announced in February, focusing on nearly 80 TV stations and more than 200 radio stations, and again in June, targeting nearly 80 radio stations. Read our summary here and here.
In comments filed in its proceeding to modernize media regulation, described in more detail below, a number of parties suggested changes in the current EEO policies. It remains to be seen if the FCC will move further than it already has done in changing these rules.
The commissioner seats on the FCC are now full for the first time since the beginning of 2017. Ajit Pai (R) was named as the permanent chair, and has been re-nominated for another five-year term. Former Commissioner Jessica Rosenworcel (D) and former FCC General Counsel Brendan Carr (R) were confirmed by the Senate in August and are now serving as commissioners. See our article here. Mignon Clyburn (D) and Michael O’Rielly (R) serve as the other two commissioners. Clyburn’s term technically expired in June, but she can remain a commissioner until the current Congress ends at the end of 2018.
FCC Process | Communications Act Reform
With Republicans controlling the White House and both chambers of Congress, expect to see efforts focusing on FCC deregulation and process reform. Already Congress has passed a number of Congressional Review Act measures overturning rules adopted by the previous administration, including one focused on broadband privacy.
Chairman Pai has already adopted a number of process reforms aimed at improving transparency, including the release of draft items before they are voted on at commission meetings. The chairman is expected to continue these process reform efforts that have been pushed by Republicans in Congress for many years, and to focus on additional deregulatory measures.
Field Office Closures
Following a field office reorganization which closed numerous offices, the FCC’s Enforcement Bureau now indicates that it has three field office “regions.”
- Region One covers the Northeastern United States. The office is in Columbia, Md.
- Region Two covers the Central and Southern United States and the Commonwealth of Puerto Rico. The office is near Atlanta.
- Region Three covers the Western United States including Hawaii and the Pacific island territories. The office is in Los Angeles.
The FCC also has offices in Anchorage, Alaska; Boston; Buffalo, N.Y.; Chicago; Dallas; Denver; Detroit; Honolulu; Houston; Kansas City, Mo.; Miami; New Orleans; New York; Norfolk, Va.; Philadelphia; Portland, Ore.; San Diego; San Francisco; San Juan, P.R.; Seattle; and Tampa, Fla.
On April 5, 2013, the FCC imposed an immediate freeze on most full-power and Class A television modification applications, in connection with the incentive auction. For more on the freeze, see our article here. The freeze remains largely in place and will likely continue until after all repacking-related applications have been filed.
In June 2015, the FCC also imposed a freeze on the filing of replacement translator applications and displacement applications for Class A, LPTV and TV translator stations. See our summary here. A new freeze on applications for digital companion channels for LPTV stations was issued on Jan. 19 (here) to protect opportunities for LPTV stations to seek new channels if they are displaced from their current channel in the repacking following the end of the incentive auction.
In June, the FCC announced that displaced LPTV-TV translator stations will be eligible to file for new channels in a Special Displacement Window, which will most likely open in the first quarter of 2018. In the meantime, an LPTV-TV translator station that receives a 120-day notice from a 600 MHz licensee may operate on a temporary channel. Specifically, it may submit a displacement application together with a request for waiver of the Displacement Freeze and request Special Temporary Authority (STA) to operate on a temporary channel.
Applications filed with a request for waiver of the Displacement Freeze will be treated as if filed on the last day of the Special Displacement Window and will be processed in accordance with the rules for the window.
Foreign Ownership | Investment In Broadcasting
For many years, Section 310(b)(4) of the Communications Act has been viewed as limiting foreign ownership in a broadcast licensee to 20% of the company’s stock, and no more than 25% of a licensee’s parent company stock. Until just a few years ago, proposals to exceed those caps were viewed as having little chance. That has certainly changed, as the commission has taken several steps to emphasize that the 25% limit is not a hard cap on foreign ownership of broadcast stations, but instead is simply a point at which specific FCC approval is needed for additional foreign ownership.
In September 2016, the FCC released an Order extending the same foreign ownership flexibility currently applicable to common carriers, and those rules became effective April 20. Under this approach, and with a few broadcaster-specific changes, broadcasters are now able to file petitions for declaratory ruling with the FCC to seek authority:
- To have up to 100% foreign ownership.
- For any controlling foreign entity to obtain an additional ownership interest of up to 100% without further FCC approval.
- For a disclosed, non-controlling foreign interest holder to obtain an additional ownership interest of up to 49.9% without further FCC approval.
In addition, any grant of authority by the FCC pursuant to a Section 310(b)(4) petition filed by a broadcaster automatically will extend to all after-acquired broadcast licenses acquired by the broadcaster. See our summary of the Order here.
Parties seeking to exceed the 25% indirect foreign ownership cap must file a petition for declaratory ruling which details the foreign ownership being proposed. The petition needs to set forth the public interest benefits of the transaction, and demonstrate why the alien ownership would not jeopardize any of the security interests of the United States.
The FCC will allow the public to comment on the petition, and Executive Branch agencies (aka Team Telecom) will be permitted to review the proposal for any national security implications prior to any grant. Numerous petitions for approval of foreign ownership in excess of 25% are currently pending before the commission. See our articles here and here for examples.
Even more regulatory relief was granted in the September 2016 Order to U.S. broadcasters that may have incidental foreign ownership. Specifically, the order requires broadcasters to consider the citizenship of shareholders only if the shareholder is known or reasonably should be known to the broadcaster in the ordinary course of business exercising due diligence.
This approach focuses on only those shareholders that have a reasonable likelihood of influencing the operations of a broadcaster. The FCC will no longer require the use of random shareholder surveys or require broadcasters to assume that unidentifiable shareholders are foreign.
In January, the FCC’s Media Bureau approved up to 49% foreign ownership of Univision. See our summary here. And in February, the FCC approved, for the first time, 100% foreign ownership of a U.S. broadcast station when it allowed an Australian couple to acquire various broadcast licenses in Alaska, Arkansas and Texas. See our article here. Now that the new broadcast foreign ownership rules are fully in effect, we would expect to see more acquisitions of broadcast stations by entities with significant foreign ownership.
Incentive Auction | Repacking
The incentive auction officially began in March 2016 and officially ended in March 2017, the longest FCC auction in history. Total auction proceeds were about $19.7 billion with 84 MHz of TV spectrum to be cleared.
Most repacked stations filed for construction permits for their new channels by the July 12 deadline, along with their FCC Form 399 cost reimbursements. The combined cost estimates for the repacking for broadcasters and MPVDs is more than $2.13 billion. This figure is hundreds of millions more than the $1.75 billion that Congress authorized. Broadcasters and others will now look to Congress to cover the shortfall.
A bill has been introduced in Congress that would provide additional funding, and would also fund costs incurred by FM stations as a result of the repacking, and potentially LPTV and TV translator repacking costs. See our summary of that proposal here.
The commission recently opened a window for certain repacked stations that could not build on the new channels that they were assigned, or which suffered significant new interference on those channels, to file for construction permits to move to new channels. That window, about which we wrote here, ends on Sept. 8. Soon thereafter, the FCC will open another window when repacked stations can seek facility increases that may be available on their new channels. Following the completion of that window, probably in early 2018, there will be a window for the filing of applications for new channels by displaced TV translators and LPTV stations (see further discussion of translators and LPTV stations below).
As currently scheduled, TV stations will be assigned to one of 10 different transition phases over 39 months. The 39-month timeline remains controversial, and NAB has filed a petition for reconsideration seeking changes including potential changes in the phase assignments based on the information in the construction permits that were filed in July. Oppositions to the petition were filed by certain wireless companies on April 26, and replies were submitted May 8. We are awaiting word on the FCC’s disposition of the NAB request. Any legislation addressing the financial shortfall could potentially revisit the 39-month timeline as well.
Stations will be required to submit quarterly progress reports throughout the transition, with the first report due by Oct. 10. Such reports will be available in stations’ online public inspection files.
The FCC continues to enforce its indecency rules. In March 2015, the full commission issued a notice of apparent liability proposing the statutory maximum fine of $325,000 for a television station that “aired graphic and sexually explicit material” during a 3-second video clip on the 6 p.m. newscast.
The licensee argued that the image had not been visible on the monitors in the station’s editing bay, and therefore the station’s management who had reviewed the story did not see the offending material prior to broadcast. The bipartisan nature of this decision suggests that the FCC may not change course on indecency regulation under a Republican-led FCC.
In a news release, the FCC’s Enforcement Bureau chief noted that the FCC’s action sends a clear signal that there are “severe consequences” for broadcasting sexually explicit material when children are likely to be in the audience. More information on this decision is available here.
Meanwhile, a 2013 proceeding on whether to make changes to the FCC’s indecency policies remains pending. In that proceeding, the FCC asked for comments on whether it should continue to apply the hard-line enforcement standard against fleeting expletives that was adopted by the FCC a decade ago, or whether it should go back to the old standard that required a more conscious and sustained use of expletives to warrant FCC action. For a description of some of the issues involved in this proceeding, see our Blog articles here, here, here and here.
It remains to be seen whether Chairman Pai will act on the open proceeding on fleeting expletives. His only statement on the substance of indecency policy so far was that “the law that is on the books today requires that broadcasters keep it clean so to speak.”
There was much press coverage earlier this year of a supposed FCC investigation into a remark by Stephen Colbert on CBS’s The Late Show suggesting that President Trump had committed a sex act with Vladimir Putin. It appears that this was nothing more than a review of the complaints that were filed about that incident, and the FCC has now terminated its review without further action. See our article on the incident here, and another on the termination of the investigation here. Nonetheless, indecency enforcement continues, with a New York broadcaster recently entering into a $10,000 consent decree to resolve indecency allegations.
Joint Sales Agreements | Shared Services Agreements
In 2014, the FCC decided to make joint sales agreements attributable where one TV broadcaster sells more than 15% of the ad time on another station in its market (meaning that such JSAs are only permissible if the stations can be commonly owned). Under the rule adopted in 2014 (after an initial congressional intervention), existing non-compliant JSAs had to be amended or terminated by Dec. 19, 2015. However, Congress went further by requiring all JSAs that were in existence prior to March 31, 2014 (the date the FCC voted to restrict them) to be grandfathered until 2025. See our discussion here.
In May 2016, the Third Circuit Court of Appeals threw out the TV JSA attribution rule. See our article here. But on Aug. 24, 2016, as part of its multiple ownership decision, the FCC decided to reinstate the TV JSA attribution rule, but grandfather agreements in existence as of March 31, 2014, and extended the compliance period through Sept. 30, 2025, consistent with congressional mandate.
Until 2025, such grandfathered TV JSAs will not be counted as attributable, and parties will be permitted to transfer or assign these agreements to other parties without terminating the grandfathering relief. New JSAs, however, will only be permitted where the stations engaged in the arrangement can be commonly owned under the TV ownership rules.
Appeals and petitions for reconsideration of the JSA attribution rule are pending. Oppositions to the petitions for reconsideration were due Jan. 24 and replies on Feb. 3. See here and here for further information. The commission is currently considering how to deal with these petitions.
Meanwhile, the Media Bureau in February 2017 rescinded its 2014 “processing standards” for television acquisitions that included stations involved in any sort of sharing agreement with other local stations, including any form of shared service agreement. These processing standards had the effect of prohibiting certain shared services agreements, even though FCC commissioners themselves had not determined what was permitted and what was forbidden. See our assessment here.
The renewal application cycle for television stations (including LPTV stations, TV translators and Class A stations) ended in 2015, with only the processing of pending applications left for the FCC to complete. The next regular renewal filing deadline for TV stations will not begin until 2020.
In reviewing license renewals, the FCC has focused on issues that have been important in previous cycles, such as public inspection file issues. The failure to timely file FCC Form 398 reports on children’s television programming has been a source of many fines to TV stations during the renewal process. In addition, the online nature of public files now makes it very easy for FCC staff to verify the timeliness (or untimeliness) of station uploads to the public file. See our article here about some of those fines.
While this renewal cycle is essentially over, many of the fines discussed above were based on conduct early in the last renewal cycle. Thus, conduct now can lead to fines in the renewal cycle that will begin in 2020, so do not relax on regulatory compliance merely because the next license renewals seem a long way away.
LPTV Stations | TV Translators
All LPTV stations and TV translators will be required to operate digitally by the end of the repacking process — July 13, 2021 — unless they receive specific extensions or tolling of their construction permit based on unique circumstances. See the FCC’s Public Notice here, and our summary here.
The FCC decided during the incentive auction process that LPTV and TV translator stations, including digital replacement translators (DRTs), will not be protected in the repacking process. However, once primary stations relocating to new channels have submitted construction permit applications and have had an opportunity to request alternate channels or expanded facilities, the Media Bureau will open a special filing window to offer displaced LPTV, TV translator and DRT stations an opportunity to select a new channel. This window seems likely to open sometime in early 2018. The FCC will make software available for those stations to identify available channels for displaced stations. See our article here.
In October 2015, the FCC decided that LPTV operations may continue on new wireless band frequencies until the wireless companies have “commenced operations,” which the FCC defines as the date the wireless company conducts “site commissioning tests.” In other words, the wireless operator needs to buy and test equipment before it fully starts operations, and once it starts the process through testing on the new spectrum, the LPTV operators need to cease operations. See our article here for further details.
Some newly licensed 600 MHz band wireless operators have announced their intention to commence operations before the window for LPTV/TV translator displacement applications opens early next year. To assist LPTV facilities that receive “commence operations” notices from these companies before the special filing window is announced, the FCC announced procedures for these LPTV facilities to file for temporary channels on a Special Temporary Authority basis. See our article here.
The FCC also announced that LPTV stations and TV translators can share channels, or can even share channels with full-power stations. While channel sharing with a full-power station would not confer any must-carry rights on the low-power station, it could significantly increase their over-the-air coverage, and would confer some degree of protection against their channel being bumped by future full-power TV facilities changes, as long as the channel sharing arrangement is in place. See our article here.
It remains an open issue whether LPTVs on ch. 6 may continue transmitting, post-digital transition, an analog audio channel so that “Franken FMs” (radio stations received on FM radio receivers on 87.7 MHz that really are the audio portion of the LPTV’s programming). See our summary of the proposals here.
A new freeze on applications for digital companion channels for LPTV stations was issued on Jan. 19 (here) to protect opportunities for displaced LPTV stations to seek new channels in the special filing window. In June 2014, the FCC announced an immediate freeze on the filing of displacement applications for LPTV and TV translator stations, as well as displacement applications for Class A TV stations. See our summary here. In a Public Notice, the FCC said that these freezes will be lifted at a later date.
Main Studio Rule
On May 18, the FCC commenced a proceeding looking to abolish the main studio rule, including the requirement that a station maintain a minimum staff presence and program origination requirements. The rulemaking asks for information about how, if the rule is abolished, stations should be required to maintain contact with residents in their service areas. See our summary of the proceeding here. Reply comments were due July 17, and FCC Chairman Pai has indicated a desire to act on this issue before the end of the year.
See Retransmission Consent section below.
Modernizing Media Regulation Inquiry
At its May 18 meeting, the commission initiated a comprehensive review of its broadcasting and MVPD regulations, through its Modernization of Media inquiry. The FCC has asked for comments on rules for broadcasters and other media companies that no longer make sense in today’s media marketplace, or which impose an undue burden on regulated companies. See our summaries of this proceeding here and here. Reply comments were filed on Aug. 4.
Proposals advanced many ideas for reforming FCC regulatory requirements — everything from changing EEO and children’s television requirements, to relaxing station identification rules, to modifying the FCC’s ownership reporting requirements. We expect the FCC to weed through these proposals, and gradually begin formal proceedings to implement some of these proposals.
Over-The-Top Video As A Multichannel Video Programming Distributor
The Aereo case prompted renewed questions about what it means to be an MVPD, and whether the definition of MVPD should include over-the-top (OTT) providers like Hulu and Sling. In 2014, the FCC released a Notice of Proposed Rulemaking proposing to modernize its interpretation of the term “MVPD” to include “services that make available for purchase, by subscribers or customers, multiple linear streams of video programming, regardless of the technology used to distribute the programming.”
The comment cycle in this proceeding has closed, and the matter remains under consideration by the FCC. Click here for more on this item. Resolution of the proceeding stalled in 2016 under Chairman Wheeler, according to trade press reports, and whether the new commission will address it remains unknown.
Copyright issues about OTT systems continue to be litigated in the courts. A 2015 court case in California determined that, under the Copyright Act, OTT providers qualified as “cable systems” that could rely on the statutory license to retransmit the signals of local television stations. See our summary here.
However, in December 2015, a District Court in Washington, D.C., reached the opposite conclusion (see our summary here), and in March 2016, another court in Illinois agreed with the DC court’s decision (see our summary here).
The Ninth Circuit Court of Appeals then overturned the California decision, concluding in March that FilmOn X, an Aereo-type service, is not a “cable system” for Copyright Act purposes. See our summary of that decision here. Following the defeat in the Court of Appeals, FilmOn reached a settlement of its disputes with broadcasters and dismissed all further appeals, so these cases may be over for now.
Network Nonduplication | Syndicated Exclusivity
See the Retransmission Consent discussion below.
Ownership Limits | Shared Service Agreements
Every four years, the FCC is required by Congress to review and possibly update its broadcast multiple ownership rules. A review initiated in 2009 was ultimately abandoned in 2013. In its place, the FCC announced a new review in 2014.
In May 2016, the Third Circuit Court of Appeals in Philadelphia issued an opinion faulting the FCC for not completing any required review of its broadcast ownership rules in nine years. The court ordered the FCC to meet with certain parties who brought the appeal to finalize a timetable for FCC review of the rules designed to promote minority ownership of broadcast stations. At the same time, the court threw out the FCC’s 2014 decision determining that television joint sales agreements were attributable interests. A summary of the court’s decision is available here.
On Aug. 25, 2016, the FCC released a Second Report and Order to complete the review begun in 2014 and respond to the court’s decision. The FCC retained the local TV ownership restrictions, the dual network restriction, and the radio/TV crossownership restrictions. The FCC also decided to adopt a new obligation for commercial TV stations to disclose any shared services agreement by placing a copy of the agreement in their online public inspection file (but the FCC did not make SSAs attributable at this time). The FCC retained the newspaper/broadcast crossownership prohibition but added a waiver exception for failed and failing broadcast stations and newspapers.
Appeals and petitions for reconsideration have been filed. See here and here for further information on the challenges to the decision. FCC Chairman Pai has made comments to suggest that the FCC may look favorably on various aspects of the reconsideration petitions, and may do so as early as an open meeting this fall. No matter how the FCC rules on the reconsideration petitions, this case may end up back in the Third Circuit, where it essentially has been under review in one form or another for the past 14 years.
In a separate decision, the FCC last year eliminated the so-called “UHF discount” in connection with the national television ownership caps, a decision that has been reversed by the new FCC. See our article here. The U.S. Court of Appeals for the District of Columbia Circuit refused to stay the effect of the reinstatement in response to a request by public interest groups, so the reinstatement is now in effect pending the resolution of the appeal by these groups. See the UHF Discount section below.
All commercial and noncommercial broadcasters will be required to file a biennial ownership report by Dec. 1. These reports will provide a snapshot of the ownership of broadcasters, accurate as of Oct. 1. See our summary of this obligation, here. The NAB recently filed a request for an indefinite delay in filing these reports. It remains to be seen whether the FCC will agree to delay the deadline.
At its April 20, 2017 open meeting, the Republican-led FCC adopted an item eliminating the need for board members of noncommercial stations to provide their Social Security Numbers. See our summary here.
In the meantime, on Dec. 20, 2016, the FCC’s Media Bureau suspended the obligation for noncommercial broadcasters to file biennial ownership reports until the new biennial ownership reports are due on Dec. 1. See our summary here.
The FCC long ago sought comment on whether biennial ownership reporting requirements should include interests, entities and individuals that are not attributable because of (a) the “single majority shareholder” exemption and (b) the exemption for interests held in eligible entities pursuant to the higher “equity debt plus” threshold. Reply comments in that proceeding were due in 2013. See our summary here. The FCC announced in 2016 that it would address these issues in a subsequent decision. It remains to be seen whether a Republican FCC will address these issues.
While 2017 is not a big political year, there are off-year elections for governor in Virginia and New Jersey, as well as for a number of big city mayors and a handful of congressional seats. Elsewhere, there are likely to be local elections and the occasional special election to fill vacated seats in various elective bodies. Watch for those deadlines locally — remembering that lowest unit charges must be extended to any political candidate (federal, state or local) 45 days before any primary and 60 days before any general election.
While stations do not have an obligation to sell time to candidates for state and local races, once they decide to do so, all other political obligations arise. See our article here for more on this reminder.
For more information on the political broadcasting rules, see our Guide to Political Broadcasting here. In addition, the NAB has released the 18th edition of its Political Broadcast Catechism which answers a number of political advertising questions. While we can’t summarize all of the political advertising rules here, there are a few key concepts, including:
Once you have a legally qualified candidate for federal office, the reasonable access obligations are triggered. Reasonable access requires that broadcasters sell reasonable amounts of commercial airtime, during all classes and dayparts, to federal candidates. While reasonable access only applies to federal candidates, almost all of the other political rules apply to all candidates — including those for state and local offices, once the station decides to make time available for those races.
So, while you don’t have to sell advertising time to candidates for state and local candidates like those running for governor or mayor, once you do, equal opportunities, no censorship and lowest unit charges apply in the same way that they do to federal candidates. See our refresher on reasonable access here.
Stations also need to be careful about on-air employees who decide to run for an elective office, as their on-air appearances will trigger Equal Opportunities rights for their opponents. See our story about a radio sportscaster who decided to run for mayor and the issue that it raised under the political broadcasting rules, here.
In many contentious races, you may see third-party ads from SuperPACs and other non-candidate organizations. These organizations may also be buying ads on other controversial issues before Congress or in local areas, and may raise many of the same issues that are raised when they advertise in political races.
Because third-party advertising does not provide the same liability protections that candidate ads provide, stations need to be concerned with such ads. While stations are generally immune from any liability for statements made in candidate ads, there is potential liability if the station is put on notice of defamatory content or other illegal material in non-candidate ads. See our article about these issues, here. Such a claim was made to a station by at least one Republican presidential candidate last year. See our article here.
As noted above, candidate ads are covered by the “no censorship” provisions of the Communications Act. Thus, as long as the ad is a “use” by the candidate (i.e., it is sponsored by the candidate’s official campaign committee, and features the candidates “recognizable voice or image,” the spot cannot be rejected based on its content, and the stations cannot (except in very limited circumstances not relevant here) take it down at the request of a complaining opponent.
Numerous requests for take-downs of candidate ads occurred in races across the country in the 2016 elections, so stations need to be aware that they usually cannot honor those requests, even if the broadcaster does not like the content of the candidate’s ad. We wrote more about the no-censorship rule here.
In 2015, the FCC sought public comment on a complaint filed by Canal Partners Media during the 2014 election cycle, in which Canal claimed that two television stations were violating Section 315(b) of the Communications Act, as amended, by prioritizing commercial advertisers over political candidates when making preemption determinations.
Specifically, Canal claimed that the stations’ Last-In-First-Out (LIFO) policy preempted candidates’ advertisements in favor of commercial advertisers purchased earlier in time. Canal’s complaint requested that “if broadcast stations are using LIFO as a method to determine preemption priorities, they must treat political candidates as being the First-In advertiser regardless of when the candidate purchased its airtime in order to be in compliance with Section 315(b) of the [Act].” That proceeding remains pending. See our summary of the issues here.
Separately, the Sunlight Foundation and Campaign Legal Center filed complaints against 11 large market stations alleging that their online political files were incomplete. See our summary of the complaints here. On Jan. 6, the FCC staff issued two decisions, summarized here, which stated that broadcasters need to assess and include in their public file all of the issues of national importance addressed in political ads, and also need to inquire of issue ad sponsors about the identity of all of their executive officers or members of their board of directors, especially if the sponsoring group list only one person’s name on the disclosure forms submitted to the station.
In February 2017, the Media Bureau, under a new administration, rescinded the Jan. 6 guidance and decided that such issues need to be addressed by the full commission and not at the bureau level. See our article here. However, in August, two new complaints raising similar issues were filed at the FCC (see our article here) so these matters may be addressed by the commission in the not too distant future.
Sunlight also filed complaints against two other stations alleging that they did not adequately disclose the true sponsor of PAC ads. The complaints alleged that the sponsorship identification of the PAC that sponsored ads attacking political candidates was insufficient when the PAC was essentially financed by a single individual.
In September 2015, the Media Bureau dismissed the complaints. However, the bureau did not specifically find the allegations to be incorrect. Instead, the complaints were dismissed because petitioners never went to the stations to ask that they change the sponsorship identification on the PAC spots during the course of the election.
The bureau stated that it was using its prosecutorial discretion not to pursue these complaints, going so far as to say that the ruling might have been different had the request for a proper identification been made to the stations during the course of the election. Thus, broadcasters should be on the alert for complaints alleging that they have not properly identified the true sponsor of a PAC ad, and treat such ads seriously. See our summary here.
After the elections in November 2014, another complaint was filed by the same groups against a Chicago TV station claiming that the station should have identified former New York City Mayor Michael Bloomberg as the true sponsor of an ad run by a PAC. In this case, the station apparently was given written notice of the claim that the sponsorship identification should have included Bloomberg, which may distinguish it from prior cases. That issue remains pending. See our summary here.
Stay tuned for whether the Republican-led FCC takes further action on these issues.
Public Inspection File
TV stations are required to place the majority of their public inspection files online using an FCC-hosted website. As of June 29, broadcasters are no longer required to retain copies of letters and emails from the public in their public inspection files. The elimination of this rule essentially removes any responsibility for broadcasters to maintain a paper public file that is accessible to the public at their main studios. See our article here.. On a related note, the FCC decided that it would change TV renewal applications and the requirement that TV stations identify any letters from the public about violent programming.
For a summary of the general online public file obligations, see our summary here.
Meanwhile, the FCC has extended the online public file requirements to cable and satellite television systems, as well as broadcast radio licensees. Those rules took effect in June 2016 with certain exceptions. See our articles here and here for our summary of the FCC’s decision.
Retransmission Consent | Must Carry | STELAR
The previous FCC chairman announced in a blog post that the FCC was ending its inquiry into the retransmission consent rules without the adoption of any new rules. He stated that, after an extensive review of the record, “it is clear that more rules in this area are not what we need at this point.”
He noted that the FCC’s existing “totality of circumstances” standard for weighing complaints about violations of the good faith requirements was sufficiently inclusive to give the FCC scope to take enforcement action. “To start picking and choosing, in part, could limit future inquiries.” See our analysis here and here. The item was formally removed from circulation by Chairman Pai.
As required by the STELA Reauthorization Act of 2014 (STELAR), the FCC adopted a new rule prohibiting the joint negotiation of retransmission consent agreements by two stations in the same market that are not “directly or indirectly under common de jure control,” regardless of whether those stations are among the top 4 stations in the market.
In September 2016, the FCC’s Media Bureau entered into a consent decree with Sinclair Broadcast Group regarding this prohibition. While the company did not admit liability, the consent decree includes a finding that the company engaged in such negotiations on behalf of 36 non-owned stations. The company agreed to make a $9.495 million settlement payment and to implement a compliance plan. See our summary here.
STELAR also provides satellite television companies (essentially Dish Network and DirecTV, now owned by AT&T) with renewed eligibility, until the end of 2019, to rebroadcast the signals of over-the-air television stations without authorization from every copyright holder of the programming broadcast on those stations, through a so-called blanket compulsory license. Our summary of STELAR is available here.
STELAR required significant changes to the FCC’s market modification rules. Prior to STELAR, the FCC’s market modification rules did not apply to satellite companies. STELAR now puts those MVPDs on essentially the same footing as cable MVPDs in terms of market modifications.
In 2015, following a rulemaking proceeding to address these proposals, the FCC adopted new rules permitting the modification of satellite television markets. Under the new rules, the FCC may, upon the request of a television station, satellite operator or county government, modify a particular commercial TV broadcast station’s local television market to add or delete communities from the market.
A related Further Notice of Proposed Rulemaking proposes getting rid of the network nonduplication protection rules and the syndicated exclusivity rules. The abolition of these rules could affect the retransmission consent negotiation process, by allowing MVPDs to replace the programming of a television station that does not agree to proposed retransmission consent fees with the signal of another distant television station carrying the same programming. See our discussion here for more details of the proceeding. It is unclear whether a Republican-led commission will take any action on this proposal.
Retransmission consent/must carry election letters must be mailed by TV stations and received by MVPDs no later than Oct. 1 in order to be effective. These elections will cover the period from Jan. 1, 2018, to Dec. 31, 2020. Elections letters should be sent to all MVPDs in the market, even to those with whom a station has an agreement that goes beyond Jan. 1, 2018. Copies of the letters must be included in the station’s online public inspection file on or before the Oct. 1, 2017, deadline.
The FCC under the previous administration vigorously enforced its sponsorship ID rules. In January 2016, the FCC’s Enforcement Bureau announced a consent decree with Cumulus Radio to settle a matter in which full sponsorship identification announcements were not made on issue ads promoting an electric company’s construction project in New Hampshire. In the consent decree, Cumulus agreed to pay a $540,000 civil penalty to the FCC for the violations of the rules — plus it agreed to institute a company-wide compliance program to make sure that similar violations did not occur in the future. See our article here.
In December 2014, the Enforcement Bureau entered into a consent decree with a television licensee for broadcasting “Special Reports” formatted in the style of a news report and featuring a station employee without disclosing that they were actually commercials paid for by local car dealerships, as required by the sponsorship identification rules. The licensee admitted liability and agreed to pay a $115,000 civil penalty.
The accompanying order described the rules not only as protecting consumers by “ensuring they know who is trying to persuade them,” but also as protecting competition by “providing a level playing field for advertisers who follow the rules.” See our summary here.
In February 2014, a Chicago radio station was fined $44,000 for 11 missing sponsorship ID tags. See our summary here. As set forth above in the Political Broadcasting discussion, the FCC recently acted on a complaint against two TV stations over the identification of the sponsor of ads attacking political candidates, alleging that the identification of the PAC that sponsored the ad was insufficient when the PAC was essentially financed by a single individual. It is unclear whether a Republican FCC will focus on these issues.
While a proposal was filed in 2015 suggesting that many sponsorship identification obligations be moved online, similar to the disclosure obligations for contest rules (see our summary of the proposal here), that proceeding has not progressed further. It is unclear if the new commission will revive that proposal.
Video News Releases — The FCC has issued fines to television stations for airing freely-distributed video news releases without identifying the party who provided the VNR, and for broadcasting other programming for which the station or program host received consideration that was not disclosed.
For political matter or other programming on controversial issues, the station must announce who provided any tape or script used by the station.
For commercial programming, if the station airs content provided by a commercial company, and that use features the product of the company in more than a transient or fleeting manner, the party who provided the content must be disclosed.
A summary of some of the FCC cases where stations were fined for VNRs is available here.
Sponsorship Identification Online and In Social Media — In addition to FCC rules, the FTC requires that parties that have received any compensation in exchange for posting any materials online, disclose that the online material was sponsored. The extent of the sponsorship varies by the technological capabilities of the medium — with a “#ad” being the likely disclosure on Twitter, with more extensive disclosures on other platforms.
As broadcasters incorporate website content and social media mentions with on-air advertising campaigns, they should be aware of these obligations. See our summary of the FTC rules here, and an article here about the recent letters from the FTC to more than 90 online “influencers” reminding them to abide by this policy.
See Retransmission Consent section above.
The Telephone Consumer Protection Act (TCPA) is a law that restricts businesses and organizations from making calls and texts to consumers’ residential and wireless phones without having first received very specific permission from the recipient. Sending texts to broadcast station viewers or listeners who are contained in a station’s loyal listener or loyal viewer clubs can lead to liability if the proper releases are not obtained, and collecting text addresses from contest participants and adding them to station databases can similarly be problematic.
Even where proper permission has been obtained, there can be liability for calls and texts to wireless numbers that have been reassigned, as well as to viewers or listeners who have revoked their consent.
Because violations of the TCPA can result in civil liability of $500 to $1,500 per call or text plus FCC fines, and as there have been a number of law firms around the country that have been active in filing class action suits against businesses to collect those potentially very high per-call damages, broadcasters need to ensure that their practices comply with the TCPA and the FCC’s rules which implement the Act. In June 2016 a major radio group, iHeart Media, settled a TCPA lawsuit for $8.5 million. Read more about this issue here. Many parties are pushing the new FCC to reform its TCPA policies.
Tower & Antenna Issues
Under new legislation enacted by Congress in July 2016, rural towers that are less than 200 feet tall may need to have tower lights installed. The FAA is to conduct a rulemaking to adopt rules to implement this requirement. See more about this issue here. Many in the communications industry have expressed concern that the costs of implementing this rule outweighed any potential benefits of the rule.
In a blog post in March, FCC Commissioner Michael O’Rielly raised questions about whether the facts about communications towers had been fully considered when the legislation was adopted. He questioned why communications towers have been singled out, while wind turbines and electric towers are not covered, and he asked whether this disparate treatment was really justified. See our article here. The new Congress or the FAA may be revisting this legislation in the near future.
The FCC has aggressively enforced tower lighting and other tower-related violations, in one case seeking a fine of $25,000. Tower owners have been penalized for failing to have the required tower lights operating after sunset, failing to notify the FAA of any outages in a timely manner (so that the FAA can send out a NOTAM — a notice to “airmen” notifying them to beware of the unlit tower), and failing to update tower registration information, particularly when the tower is acquired by a new owner.
Failing to notify the FAA of tower light failures, as required by the rules, can lead not only to FCC fines but also to huge liability issues if the worst case happens and an aircraft should hit the unlit tower. We discuss many of these issues here and here.
In December 2015, the FAA announced new standards for tower lighting. See our summary here. The FAA’s guidance on tower lighting is now effective and will apply to any modified towers.
Since 1985, in an effort to encourage further TV use of the UHF band over traditional VHF channels, TV licensees have received a one-half discount for UHF stations when analyzing the FCC’s 39% cap on the nationwide audience that can be reached by any one owner. In September 2016, the commission voted 3-2 to eliminate the UHF discount. See our analysis here and here. That decision was challenged in court, and a petition for reconsideration was also filed with the FCC.
At its April 20 meeting, the FCC voted 2-1 to reinstate the UHF discount. See our summaries here and here. While this decision is not yet final, it has already triggered announcements of combinations of TV companies permissible only in reliance on the UHF discount.
On June 15, the U.S. Court of Appeals in the District of Columbia denied a request by public interest groups to block the reinstatement of the UHF discount. See our article here. However, while the rule is now in effect, the public interest groups’ underlying appeal remains pending.
The video description rules are intended to assist individuals with visual impairments by requiring the insertion of audio narrations into the natural pauses in programming to describe what is happening on-screen. These narrations are carried on the secondary audio program (SAP) channel.
Under the video description rules, Top-4 affiliates (ABC, CBS, Fox and NBC) in the top 60 markets, and multichannel video programming distributor systems (MVPDs) with more than 50,000 subscribers, must provide approximately four hours per week (for a total of 50 hours per quarter) of video-described primetime and/or children’s programming.
The rules also require that all television stations and MVPDs, regardless of market or system size, “pass through” any such video-described programming. All of these requirements are now in effect.
In a decision released in July, the FCC announced that, beginning July 1, 2018, each broadcast station affiliated with a Top-4 network in the top 60 markets, and each of the top five non-broadcast networks (currently Disney Channel, History, TBS, TNT and USA) must provide 87.5 hours of qualifying video-described programming per quarter on each stream or channel on which it carries an included network. This is an increase from the current obligation to carry 50 hours of qualifying video-described programming per quarter.
The FCC provided flexibility to allow some non-primetime, non-children’s video-described programming to count towards the additional 37.5 hours per quarter. The FCC left unchanged the rule that a particular video-described program/episode can be counted toward the benchmark no more than a total of two times on each channel on which the program is shown.
White Spaces | Unlicensed Devices | Wireless Microphones
The FCC has proposed that in each TV market, one UHF TV channel (above ch. 21) that is not assigned to a TV station following the repacking will be designated for use by TV white space (TVWS) and wireless microphones. In certain markets, where TV stations are placed into the wireless 600 MHz band, the FCC proposed a second open TV channel for shared use by TVWS devices and wireless microphones, in addition to the other channel it is already proposing to reserve.
Microsoft has been pushing unlicensed TV white spaces as a rural broadband solution, and it has no doubt gained some political traction. The NAB is pushing back, particularly on Microsoft’s effort to set aside one 6 MHz channel in each market for unlicensed devices. Notably, Commissioner (now Chairman) Pai dissented on this issue, as did Commissioner O’Rielly. So it remains to be seen whether this proposal goes anywhere under the new Republican-led commission.
Microsoft was not an incentive auction participant, and is arguably trying to get access to unlicensed airwaves without paying for them. There are numerous technological hurdles for Microsoft and other white space operators, and there is of course the potential for harmful interference to over the air broadcasting.
The FCC also proposed to require applicants for LPTV, TV translator and Broadcast Auxiliary Service facilities to demonstrate that any proposed facilities would not eliminate the last available vacant UHF television channel for use by TVWS devices and wireless microphones in the market. The pleading cycle has ended for this proceeding, but questions have been raised about whether these proposed spectrum reservations would unlawfully prioritize unlicensed facilities over licensed ones.
In February 2016, in response to a petition filed by the NAB, the FCC released a Notice of Proposed Rulemaking and Order, proposing to amend its rules to improve the quality of the geographic location and other data submitted for fixed TVWS devices operating on unused frequencies in the TV bands and the new 600 MHz wireless band.
According to the NPRM, the proposals are designed to improve the integrity of the white space database system and to increase the confidence of all users of these frequency bands that the white space geolocation/database spectrum management scheme fully protects licensees and other authorized users.
In November 2016, the NAB asked the FCC to either adopt and enforce geolocation requirements that allow TVWS devices to coexist with licensed operations, or eliminate or suspend TVWS operations. NAB also suggested that TVWS database managers are not complying with push-notification requirements about updated channel availabilities because there are no industry standards for implementing push notifications, and TVWS manufacturers have not taken steps to implement the requirements. More information is available here.
The use of wireless microphone devices in the 700 MHz band was prohibited by the FCC in 2010. However, the current 600 MHz band and other frequencies remain used by broadcasters and others for wireless microphones. In July 2017, the FCC announced new point-of-sale disclosure requirements for 600 MHz licensed wireless microphones. Once the new rules are published in the Federal Register, the required disclosure language will read as follows:
“This particular wireless microphone device operates in portions of the 617-652 MHz or 663-698 MHz frequencies. Beginning in 2017, these frequencies are being transitioned by the [FCC] to the 600 MHz service to meet increasing demand for wireless broadband services. Users of this device must cease operating on these frequencies no later than July 13, 2020. In addition, users of this device may be required to cease operations earlier than that date if their operations could cause harmful interference to a 600 MHz service licensee’s wireless operations on these frequencies.”
In July 2017, the FCC refused to permit wireless microphone users that operate on an unlicensed basis in the TV bands, the 600 MHz duplex guard band and duplex gap to register their operations in the TV white spaces databases to obtain interference protection from white space devices. However, the FCC issued a Further Notice proceeding in which it proposes to permit certain qualifying professional theaters, music, and performing arts organizations to obtain a Part 74 license that would allow them, as licensees, to obtain interference protection in the TV bands and, when needed, also to operate in other spectrum bands authorized for licensed wireless microphone operations. The pleading cycle for this proceeding has not been announced yet.
Separately, the Further Notice will revisit the FCC’s previous decision that companies that use 50 or more wireless microphones will have the same interference protection as low power wireless audio devices. The Further Notice proposes expanding this group to include (a) wireless microphone users that routinely use 50 or more wireless microphones where the use is an integral part of major events or productions (as provided under existing rules) and (b) wireless microphone users that otherwise can demonstrate a particular need for, and the capability to provide, professional, high-quality audio that is integral to their events or productions.
In addition, the FCC clarified various rules for licensed wireless microphone use in the 169-172 MHz band, the 941.5-944 MHz band and the 1435-1525 MHz band.