When just-confirmed Robert McDowell takes his place at the FCC, he’ll be dealing with some long-standing broadcast issues.
Now that the Senate has given its blessing to Robert McDowell, the FCC will have a full complement of commissioners for the first time in over a year. And as McDowell is a Republican, FCC Chairman Kevin Martin will lead a three-member Republican majority—the first since the departure of Chairman Michael Powell in March of 2005.
The majority may finally allow resolution of broadcast-related items that may have been delayed because of differences between the Republican and Democratic commissioners and the 2-2 partisan split.
Here are some of the of issues affecting broadcasters that are pending at FCC and that may now see some action in the coming months.
Ownership. Last July, the agenda for the FCC meeting included an item that would have reopened the examination of the multiple ownership rules as required by the Third Circuit’s remand of the FCC’s 2003 ownership order. That item was pulled without explanation, and no further word on ownership has been heard since. Open issues include changes in the local television ownership limitations (when should duopolies and triopolies be permitted); cross-ownership limitations (newspaper-broadcast as well as radio-television); and even the attribution of television joint sales agreements. Even the radio ownership rules, which the court allowed to go into effect in September 2004, are subject to reexamination, as the court ordered the commission to determine if it was rational to treat all broadcast stations as equal in enforcing its numerical caps on the local ownership of stations.
Equal Employment Opportunity (EEO). There are several proceedings on EEO that have been outstanding for almost three years. The FCC has not decided whether information reported on FCC Form 395 will be treated as public or confidential, thus these reports breaking down every station’s workforce by race and gender have not been filed for years. The FCC is also considering whether to require mandatory outreach for part-time as well as full-time employees, and still has not resolved petitions for reconsideration of the EEO rules that were adopted in 2002, and which are currently being enforced.
Children’s Television. While the FCC adopted expanded children’s television obligations over two years ago—rules which imposed a three-hour educational and informational programming obligation on each stream that a station broadcasts in analog or digital, and which placed restrictions on commercial tie-ins including on Web sites associated with children’s programs—these rules have been challenged by a consortium of television companies. While the companies have reached an accommodation with the FCC on their differences, these matters will need to be approved by the FCC and made applicable to all stations.
Indecency. While we saw a series of decisions dealing with TV indecency issues in mid-March, there remains hundreds of pending complaints. Rulings on pending radio indecency case may well be among the first to face the new commissioner, though appeals of some of the TV decisions are reportedly moving quickly toward resolution as well. In the recent TV decisions, we saw some disagreements among the commissioners as to just how far the indecency crack down should go. The new commissioner may well have to enter those debates in the near term.
Program Taping. Tied into the indecency issue is the long-pending FCC proposal to require that broadcast stations tape their programs, and retain the tapes for some period of time so that the FCC can review the tapes if there are complaints of indecency or other rule violations. There have been rumors that the proceeding would be resolved soon for over a year. The addition of the fifth commissioner may finally make it happen.
Localism. The FCC has long had an open proceeding on localism, investigating whether the FCC should impose local public interest obligations on broadcasters. This proceeding suggested that the FCC look at everything from requirements for PSAs and new programs, to mandates that radio stations play some music from local artists. Despite field hearings conducted in numerous cities well over two years ago, the proceeding remains open and ready for the commission to propose specific actions gleaned from the voluminous record.
This list does not even include the plethora of routine broadcast issues that reach the commissioners for review every day, nor does it address the issues that are sure to arise in the final years of the DTV transition. And there are bound to be issues in other services—dealing, for instance, with satellite radio, cable television and wireless carriers—that will impact the broadcast industry.
Looking at the array of issues facing the new commissioner, you can be sure that his days will not be empty ones. The broadcast community anxiously awaits seeing how he fills each and every one.
David D. Oxenford is a partner with the law firm of Davis Wright Tremaine. He can be contacted by phone (202-508-6656) or by e-mail ([email protected])