A Broadcaster’s Guide To Washington Issues

With so many new regulations and challenges facing television broadcasters, it’s hard to keep track of all the changes. So how can stations, while tending to their own businesses, keep up with it all? With FCC Watch, an exclusive briefing on some of the major issues at the agency 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:

Aereo

Although not technically an FCC issue, the Aereo litigation should be closely monitored by all TV licensees because of its potential impact on the retransmission consent process. Like other forms of over-the-top video distribution systems, Aereo uses the Internet to provide broadcast signals to subscribers. But Aereo has designed a system using thousands of individual over-the-air antenna receivers and a digital system to record and distribute via the Internet the television programming supposedly received by these antennas, at the direction of users. The system was designed in an effort to avoid copyright issues, and thus retransmission consent fee payments that would otherwise attach to any retransmission of a television program.

While the Second Circuit Court in New York has denied broadcasters’ efforts to stop Aereo’s service, a Utah district court has issued an injunction to stop Aereo’s service in the Tenth Circuit. In addition, district courts in California and Washington, D.C., have taken enjoined a copycat service, resulting in a near-nationwide injunction against that service (a ban being challenged on appeal).  

The action now turns to the Supreme Court, where oral arguments in the broadcasters’ case against Aereo, on appeal from the Second Circuit, were heard on April 22. The broadcasters’ case may have been aided by the Solicitor General’s decision to intervene on the side of broadcasters. A decision from the court is expected by June. See our summary of the issues discussed at the oral argument, here.

Depending on the outcome in court, Congress could be called upon to resolve the issue. Given the potential importance to station income from retransmission consent fees, stations should continue to monitor this important issue.

For more on this issue, see our Broadcast Law Blog articles here, here and here.

CALM Act/Loud Commercials

The CALM Act, meant to end the dreaded “loud commercial” on TV, went into effect in December 2012. TV stations with more than $14 million in revenue in 2011 were to have completed their first annual “spot checks” of embedded advertisements in uncertified programming by Dec. 13, 2013. See our summary of CALM Act requirements here.

Last summer, Acting Chairwoman Mignon Clyburn advised Congress that the FCC 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 stay tuned for possible enforcement actions related to the CALM Act.

Class A TV

Class A TV stations continue to be the focus of FCC attention, particularly during the renewal cycle, with stations being fined for failing to file children’s programming reports and other required filings. The FCC staff has even asked whether certain Class A TV stations should be reclassified as LPTVs for failing to produce and air the amount of local programming required for Class A stations, or otherwise failing to comply with the rules applicable to full-power TV stations.

Being reclassified as an LPTV station has even been offered by the FCC staff as a way to avoid some of the fines imposed for these violations. Class A stations that do not meet these obligations and are reclassified by the FCC as LPTV stations would be in jeopardy of losing their interference protections and being displaced in the FCC’s spectrum repacking in preparation for selling some of the TV spectrum to wireless broadband users in the incentive auctions.

And because LPTV stations are ineligible to participate in the incentive auction, a loss of Class A status could have a significant financial impact on the station. Some Class A TV stations have already been reclassified as LPTVs in light of their failure to respond to these requests from the FCC.

For more on this issue, see our Broadcast Law Blog article here.

Closed Captioning

TV Closed Captioning

In February, the FCC adopted significant new closed captioning obligations for broadcasters, which will be phased in over time. To begin with, the FCC clarified that the closed captioning rules apply to mixed English-Spanish programming, to on-demand programming, and to low-power TV stations. The FCC also clarified that snippets of English or Spanish on programs that are otherwise in a different language do not need to be captioned.

Of more significant impact, the FCC has imposed new “quality” standards for captioning, in four distinct areas: 1) accuracy; 2) synchronicity with the words being captioned; 3) caption completeness from the beginning of a program to its ending; and 4) caption placement so that the caption text does not obscure other important on-screen information. These quality standards will take effect no earlier than Jan. 1, 2015, but may be delayed depending on the OMB approval schedule.

In addition, broadcasters using the Electronic Newsroom Technique (ENT) will need to ensure that most news programming is scripted for the teleprompter (and therefore captioned), and to utilize crawls and other visuals to provide visual access when ENT is not used. The new ENT requirements will take effect on June 30. In the Further Notice portion, the FCC asks a number of questions about methods to assess compliance with the new requirements, among other issues.

At the same time, the FCC has been restricting the waiver process for closed captioning. In late 2011, the FCC overturned nearly 300 waivers previously issued to providers of television programming exempting them from compliance with the television closed captioning rules on the basis that compliance would constitute an undue economic burden. Finding that the earlier waivers had been granted in error, the FCC reversed the waivers and clarified the proper standard that will apply to undue economic burden waivers.

That standard is significantly higher than the review initially applied to these particular programming providers. Parties whose waivers were rescinded had 90 days to seek new waivers and many such waiver requests were filed in 2012. The FCC has begun reviewing the captioning waivers and issuing public notices soliciting comments.

Consumer groups have actively opposed the waiver requests. So far the commission has dismissed some requests as deficient, and sought additional information from others, but to date it has not issued any substantive decisions on these waiver requests.

IP Captioning

In January 2012, the FCC adopted rules that require closed captioning of certain full-length 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) federal law designed to improve the accessibility of media and communications services and devices.

The IP captioning rules became effective in 2012 and have been phased in over time, with the final requirement taking effect in December 2013. All nonexempt full-length prerecorded video programming that is not edited for Internet distribution and is delivered using Internet protocol, and all live or “near live” programming, must be provided with closed captions if the programming was published or exhibited on television in the United States with captions on or after Sept. 30, 2012. All prerecorded programming that is substantially edited for the Internet must be captioned if it is shown on TV with captions on or after Sept. 30, 2013.

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.

Currently, brief video clips and outtakes (including excerpts of full-length programming) are also exempt, unless “substantially all” of a full-length program is available via IP video in multiple segments. In a reconsideration order released in June, the FCC directed the Media Bureau to issue a Public Notice seeking updated information on this topic within six months.

The reconsideration order states that the FCC may reconsider its decision with respect to video clips if the record developed in response to the Public Notice demonstrates that consumers are denied access to critical areas of video programming due to lack of captioning of IP-delivered video clips.

In December, the FCC issued a Public Notice asking whether it should require that clips be captioned. FCC Chairman Wheeler and Commissioner Rosenworcel have indicated in recent weeks that they support a captioning requirement for video clips, making it more likely that this proposal will proceed. See our summary here, and the Public Notice is available here.

The rules also impose new requirements on manufacturers of equipment (such as set-top boxes, PCs, smartphones DVD players, Blu-ray and tablets) designed to receive or play back video programming transmitted simultaneously with sound and integrated software. Consumer-generated media — defined as content created and made available by consumers to websites and services on the Internet, including video, audio and multimedia content — are exempt from the captioning rules.

For further information, see our blog entry here.

EEO Rules

The FCC 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. More than 280 radio and TV licensees were subject to a new round of random EEO audits in February. Read our summary here.

The FCC has issued fines to stations that did not widely disseminate information about job openings beyond broadcasting announcements on the station’s airwaves and posting the opening on the station website, and using online sources. In doing so, the FCC held that other non-station, non-Internet recruiting sources (such as newspaper publication or notices to community organizations) must also be used to announce job openings. The FCC has also recently fined stations that did not regularly send notices of job openings to community groups that had requested such notices, as required by the rules.

For more information about EEO enforcement, see our Broadcast Law Blog articles here and here.

Emergency Information

In March, the FCC released a proposal to mandate multilingual emergency alerts by broadcast stations. All primary EAS stations would be required to broadcast national alerts in both English and Spanish, and state EAS plans would be encouraged to designate stations to provide emergency information in other languages where there are significant populations that have a primary language other than English or Spanish.

English-language stations in these areas would also be required to play a back-up role, ready to step in and provide emergency information in one of these languages should the primary station serving a particular non-English speaking population be forced off the air. Comments on this proposal are due on May 28, and replies by June 12 (the FCC extended the comment period by a month). See our summary here.

Separately, the FCC last year released the results of the November 2011 national EAS test. The report noted that the approximately 17% of broadcasters that failed to file a report after the test could face enforcement action. That report was followed up with a Public Notice seeking comments on a number of technical issues uncovered during the national EAS test. Comments on the Public Notice were due Nov. 4.

In April 2013, the FCC released an order requiring that emergency information provided in video programming be made accessible to individuals who are blind or visually impaired. The order requires the use of the secondary audio 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). These requirements will take effect on May 26, 2015.

For more on Emergency Alert Service issues, see our Broadcast Law Blog article here, here, and here.

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, reminding stations of their obligation to provide visual as well as audio information about imminent threats to assist the hearing-impaired during emergencies.

You may also have heard about broadcast EAS systems being hacked, producing so-called “zombie alerts.” The hacking of station EAS systems showed that the new EAS CAP system, which relies on Internet connections, may be vulnerable to such attacks. The FCC issued reminders to stations to ensure that the password settings on CAP equipment are changed from their default factory settings, and that EAS messages are monitored carefully. See our article here for more information.

Finally, 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 2014 alone, the FCC has proposed more than $2.2 million in fines for false EAS alerts embedded in movie trailers and other commercials. See our summary here.

FCC Commissioners

As of Monday, Nov. 4, 2013, there was a full complement of five FCC commissioners for the first time since May: newly confirmed Chairman Tom Wheeler (Dem.), Commissioner (and former Acting Chair) Mignon Clyburn (Dem.), Jessica Rosenworcel (Dem.), Ajit Pai (Rep.), and newly confirmed Commissioner Michael O’Rielly (Rep.). The Wheeler FCC is expected to tackle a number of substantive issues, including the incentive auction (see “Incentive Auction/Repacking” below). For more on this discussion, see our article here.

Filing Freeze

On April 5, 2013, the FCC imposed an immediate freeze on most full-power and Class A television modification applications, including many of those that were already pending as of April 5, in order to “facilitate analysis of repacking methodologies and to assure that the objectives of the broadcast television incentive auction are not frustrated.” The FCC staff will entertain waivers of the freeze on a case-by-case basis. The NAB has on several occasions asked the FCC to lift the freeze, citing the adverse impact on the television industry and the unknown timeline for the incentive auction. To date, however, the freeze remains in place. For more on the freeze, see our Broadcast Law Blog article here.

Foreign Investment in Broadcasting

For many years, Section 310(b)(4) of the Communications Act has limited 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. In response to a pleading filed by the Coalition for Broadcast Investment, the FCC sought comment on these foreign ownership restrictions. See our summary here.

In November 2013, the FCC issued a Declaratory Ruling clarifying policies and procedures under which it would allow broadcast licensee to exceed those caps. An applicant needs to file a petition for declaratory ruling, asking for FCC consent to an increased level of foreign ownership.

Parties seeking to exceed the cap must file a petition for declaratory ruling that 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 for public comment on the petition, and review by Executive Branch agencies for national security implications prior to any grant. See our summary of the Declaratory Ruling here.

Incentive Auction/Repacking

In 2012, a new federal law was enacted to permit the FCC to conduct an incentive auction to clear parts of the TV band for wireless broadband uses. A summary of the statutory provisions governing the incentive auction process is available here.

Given the complexity of all of these issues, and the need for the FCC to develop systems to deal with all of these complicated auctions, the FCC has pushed back the incentive auction to mid-2015. The FCC is expected to adopt an initial report and order at its May 15 meeting. However, many of the more complicated issues may be delegated to the various FCC bureaus for further decisionmaking later this year.

The most recent information to trickle out of the FCC came in an April 18 blog post by FCC Chairman Wheeler, and a fact sheet released later that day. While not terribly detailed, the documents at least show that the commission is planning a quick transition — looking for the repacking to be complete within 39 months from the end of the incentive auction — and perhaps sooner for some stations. Read more here

The many issues surrounding the incentive auction and the repacking of the television band that need to be resolved are summarized below.

The incentive auction is actually two auctions: in the “reverse auction,” TV stations may voluntarily participate in one of three ways, and share in auction revenues: a) by agreeing to give up all 6 MHz of spectrum and exiting the business; b) by channel sharing with another station in the market, giving up one 6 MHz channel but retaining must-carry rights for both program streams carried on the shared channel; and c) by agreeing to give up its 6 MHz of UHF spectrum in exchange for 6 MHz of VHF spectrum. The second auction will be the “forward auction” that will take the spectrum relinquished by broadcasters in the reverse auction and sell it to mobile broadband licensees.

The law requires that the FCC attempt to replicate the current service of any stations that are forced to change channels in order to “repack” the band to make it available for wireless users. The law also authorizes the FCC to compensate TV stations for the costs of repacking, up to $1.75 billion.

In September 2012, the FCC began a rulemaking to implement the law, seeking comment on reverse auction and forward auction procedures, and on the specifics of TV band repacking. The FCC is looking at a number of issues, including reverse auction eligibility and whether to expand eligibility beyond the three options identified in the Spectrum Act, such as by agreeing to accept additional interference.

On repacking, the FCC indicates that remaining TV stations post-auction will occupy a smaller portion of the UHF band, even while the FCC works within the statutory mandate to make “all reasonable efforts” to preserve broadcasters’ coverage. The NPRM also sought comment on how to address the possible displacement of low-power stations, but it appears that this issue may be pushed into a Further Notice.

In September, the FCC requested additional comment on cost reimbursement issues associated with repacking, including what expenses will likely be incurred by TV stations forced to change channels as part of the repacking process. See our article here for additional information. More recently, the Media Bureau released a report by Widelity cataloging potential repacking expenses and estimated costs. Comments on the Widelity report were due April 21, with replies due on May 6.

The concept of channel sharing by broadcasters post-auction has been heavily touted by Chairman Wheeler. In March, the FCC released a report on the efforts of two Los Angeles TV stations to share one 6 MHz channel. Consistent with broadcasters’ long-established use of multicast signals, the report confirmed that channel sharing can be done if each station is willing to give up 3 MHz of spectrum at auction. The study built in a number of assumptions, including the use of 720p streams by each station rather than the 1080i format favored by some networks. A copy of the report is available here.

Much of the recent focus has been on determining an acceptable band plan for the 600 MHz band, with a number of industry groups (including NAB and CTIA) uniting to recommend a “down from ch. 51” band plan that would reduce the potential for broadcast-wireless interference. Meanwhile, the FCC must conduct significant international coordination efforts with Canada and Mexico, although it remains unclear whether these coordination efforts must be concluded before the auction can proceed.

Among the post-auction band plan proposals is a proposal to create 5 MHz blocks for flexible use licenses, with the uplink band beginning at ch. 51 (698 MHz) and expanding downward toward ch. 37 based on the amount of reclaimed spectrum. The downlink band would begin at ch. 36 (608 MHz) and likewise expand downward. Guard bands would be created between mobile broadband use and broadcast use, and the guard bands would be available for unlicensed use. (See “White Spaces,” below).

The FCC’s proposed use of various updates to its OET-69 TVStudy software has also been controversial. This software will be instrumental in analyzing the interference protection contours of repacked stations. Many broadcasters opposed the changes as being inconsistent with the Spectrum Act, with other groups such as CEA filing in support. At the NAB Show recently, Chairman Wheeler touted the use of the updated software, stating that it relies on 2010 census data instead of the 2000 census data used by the software in place at the time the Spectrum Act was enacted.

Much about the incentive auction remains unknown at this point, but more details should be revealed in the coming weeks. The FCC is expected to adopt a Report and Order on the incentive auction rules at its May 15 open meeting.

Indecency

In 2012, the Supreme Court ruled that the FCC had not given adequate notice of a change in its indecency rules before issuing fines for fleeting expletives. While that decision threw out the fines issued to two networks and their affiliates for the Billboard Music Awards and an episode of NYPD Blue, it did little to clarify the FCC’s indecency enforcement regime. Nonetheless, the FCC has been quietly disposing of thousands of complaints in an effort to reduce the backlog.

According to an April 1, 2013, FCC Public Notice, the commission has reduced the backlog of complaints by dismissing 70% of all complaints — more than a million. While this leaves hundreds of thousands of complaints to be resolved, the FCC has asked for comments as to whether it should continue to apply the hard-line enforcement standard against fleeting expletives that was adopted by the FCC nearly 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. Reply comments in this proceeding were due Aug. 2, 2013.

For a description of some of the issues involved in this proceeding, see our Blog articles here, here and here.

Joint Sales Agreements

On April 14, the FCC released its 2014 rulemaking proceeding on broadcast multiple ownership issues. Among the most controversial aspects in the docket was a decision 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).

Existing non-compliant JSAs will need to be amended or terminated within 2 years. The FCC has adopted a waiver process which would allow JSAs to continue on a non-attributable basis under certain circumstances. See the Ownership Limits section below for additional information about this proceeding.

License Renewals

Television stations (including LPTV stations, TV translators and Class A stations) began the renewal process in 2012. The next set of TV license renewals that are due to be filed are for TV stations in Wyoming, Nevada, Arizona, Utah, New Mexico and Idaho which must file their renewal applications by June 1.

In reviewing license renewals, the FCC is continuing to focus 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. See our article here about some of those fines.

This renewal cycle also introduced a few new certifications, including whether a station has been off the air for any significant period of time during the last license term, and whether stations have complied with the policy regarding nondiscrimination in the sale of advertising time.

The FCC no longer mails reminders to licensees, so it is incumbent upon stations to know when their license expires and file their renewal applications on time. Without a timely filed renewal application, stations are not authorized to operate and face the potential of fines or license cancellation.

LPTV Stations and TV Translators

All LPTV stations and TV translators operating out-of-core (on channels above ch. 51) were to have ceased operations by the end of 2011. All analog LPTV and translator stations must convert to digital operations by Sept. 1, 2015.

In September 2013, the FCC denied reconsideration of these hard deadlines. The FCC also noted that LPTV and TV translator stations moving to VHF ch. 6 for digital operations will be required to protect noncommercial FM stations that would be operating on adjacent frequencies.

The future of LPTV remains uncertain as the FCC weighs the incentive auction and eventual repacking of full-power TV stations into a smaller swath of spectrum. Whether there will be sufficient spectrum for LPTV after the repacking remains one of the great unknowns about the incentive auction.

See our summary of these requirements here and here.

Network Nonduplication/Syndicated Exclusivity

See the Retransmission Consent discussion, below for a description of the commission’s new proceeding asking if it should abolish network nonduplication and syndicated exclusivity protections.

Online Public Inspection File

Since February 2013, all TV stations have been required to place their entire public inspection file online using an FCC-hosted website, with two exceptions: 1) Letters and e-mails from the public, which should not be posted online for privacy reasons; and 2) Political file materials for any station that is not in a top-50 market and/or are not affiliated with ABC, CBS, Fox or NBC. These non-top4/top 50 stations will need to upload their political file materials to the online public file beginning on July 1, 2014. Even for top-4, top-50 market stations, any political file material generated prior to Aug. 2, 2012, can also remain in the paper file.

In April, the FCC issued a public notice reminding stations of the July 1 deadline. See our article here. The notice was issued despite a pending rulemaking which sought comment on the burdens of maintaining a political file online. Last year, the FCC Media Bureau released a Public Notice seeking comment on the impact of the online political file requirements applicable to broadcast television stations. The bureau also sought comment on the ability of stations to comply with the upcoming July 1 deadline, and whether any changes should be made to facilitate compliance.

Finally, the bureau sought comment on a petition which argued that the disclosure of spot-by-spot political rate information is not in the public interest, and that the disclosure of this sensitive price information is anti-competitive, disrupts markets, and is not required by campaign finance laws. The most recent public notice reminding small-market stations of their upcoming political file obligations referenced last year’s rulemaking, but indicated that stations needed to be ready to comply with the current rules on July 1. From this statement, it appears that the FCC is not inclined to offer relief to small-market broadcasters on this issue, so the July 1 deadline looks real.

See a summary of the online public file obligations and here and the June public notice here.

Ownership Limits/Shared Service Agreements

Every four years, the FCC is required by Congress to review and possibly update its broadcast multiple ownership rules. The last review was initiated in 2009 and essentially scrapped by new FCC Chairman Wheeler late last year. In its place, the FCC announced the 2014 review at its March 31 meeting. The new item essentially folds in much of the 2009-13 issues, and also adopted new restrictions on joint sales agreements and the joint negotiation of retransmission consent agreements, as discussed above in the Joint Sales Agreement section and below in the Retransmission Consent discussion.

Unlike joints sales agreements, the FCC indicated that there was insufficient information in the record to regulate shared services agreements (SSAs), which are frequently used by stations to share various facilities and equipment. However, the FCC is proposing a new requirement that broadcasters disclose any SSAs to which they are a party. It has also imposed a new processing policy requiring disclosure and review of all new SSAs that are to begin following any sale of a station. A copy of the processing policy can be found here.

There are numerous other proposals and tentative conclusions reached in the new 236-page decision. Of relevance to TV stations are the proposal to retain the local TV ownership rule, the newspaper/broadcast cross-ownership ban (with the possibility of case-by-case waivers), and the dual network rule. The only items up for possible relaxation are the newspaper/radio cross-ownership rule and the TV/radio cross-ownership rule.

See our summary of the issues here and here.

The FCC has also begun a proceeding to examine the UHF discount as applicable to the national television ownership caps. That proceeding is described in more detail below.

Ownership Reporting

The FCC currently requires all commercial broadcasters, including all television stations and LPTV licensees, to file a biennial ownership report on an established date once every two years. The last set of commercial ownership reports were filed in December 2013.

While the next set of Biennial Reports will not be due until 2015, the FCC has issued a Notice of Proposed Rulemaking asking several questions about these reports. Among the issues raised is whether it should require that every individual with an attributable interest in any station (and perhaps certain non-attributable owners) to get a unique FRN — a unique identifier for the FCC’s electronic systems. This would require that the attributable owner provide to the FCC its Taxpayer Identification Number (for an entity) or his or her Social Security Number (for an individual).

The FCC also 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 this proceeding were due March 1, 2013. See our summary here.

Political Broadcasting

2014 is a federal election year, with the House of Representatives and one-third of the U.S. Senate seats to be filled. It will also be a big year for state and local elections in many jurisdictions, and already we are seeing significant inflows of third party cash. The Supreme Court’s recent decision in McCutcheon v. FEC struck down the aggregate donation limits by individuals, based on First Amendment grounds. As a result, we could see increased expenditures in this mid-term election cycle. Primaries are set to begin in many states soon, so broadcasters need to brush up on their political broadcasting rules if they have not done so already. See our guide to political broadcasting here.

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 some local office, as their on-air appearances will trigger equal opportunities rights for their opponents. See our story about a recent case of 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. The Supreme Court this term is also considering a case that may relax individual campaign contributions even further.

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.

Stations also need to be aware that some members of Congress want to expand various disclosure requirements for issue advertisers. For example, it has been suggested that the FCC should require stations to collect more information on the sponsors of these ads — including not only the identification of the governing board of these groups, but also the source of funding for the organizations. See our article on the issues that came up in the recent hearing, here.

This issue also came up during Tom Wheeler’s Senate confirmation hearing for his nomination as new FCC chairman last year, and required a follow-up meeting with Sen. Cruz before the senator lifted his hold on Wheeler’s nomination. Stay tuned for more possible Hill activity on these issues.

Public Interest Programming Disclosure

In 2012, the FCC received comments on a Notice of Inquiry, looking for a standardized disclosure form that would replace the previous FCC Form 355, a form adopted by the commission in 2007, but which was never approved by the Office of Management and Budget under the Paperwork Reduction Act. Such a form would replace the current issues/programs lists, to detail the public service programming provided by TV stations.

The NOI asked for comment about the burden that would be imposed on broadcasters if they were required to report detailed information about the amount of local news, public affairs and electoral programming, as well as information about local emergencies, that they broadcast on specified days selected at random by the FCC.

Parties were also to comment on the public interest benefits of such reporting. Any collected information would go into the online public file which the FCC recently required for TV stations. Now that the pleading cycle has ended, the FCC could take action on this item at any time.

A summary of the FCC’s proposals is here.

Retransmission Consent/Must Carry

In 2011, the FCC issued a Notice of Proposed Rulemaking seeking comments on whether its must carry-retransmission consent regime should be modified. The NPRM was driven in part by complaints by certain members of Congress expressing concern when channels are blacked out on MVPDs (multichannel video programming distributors) during the course of retransmission consent negotiations.

In April, the FCC issued an order which declined to adopt most of the proposals set forth in the NPRM; however, it did adopt a new rule prohibiting the joint negotiation of retransmission consent agreements by two stations in the same market that are not commonly owned, if both of the stations are among the top 4 stations in the market. See our summary here.

The 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 multichannel video programming distributors (MVPDs – cable and satellite TV) 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.

The commission just extended the deadline for comments in this proceeding at the request of the NAB, who needed more time to gather expert testimony on the impact of these proposed rule changes. Comments are now due June 26, and replies are due July 24. See our discussion here for more details of the proceeding, and the FCC Order here extending the comment deadline.

Congress has also been considering these issues, as it evaluates a possible reauthorization of the Satellite Television Extension and Localism Act of 2010 (STELA). STELA, which is viewed by many in Congress as must-pass legislation prior to its expiration this December 2014, could potentially be used as a vehicle for significant reform of the video marketplace. Watch for this debate to play out this year.

Sponsorship Identification

The FCC continues to enforce its sponsorship ID rules vigorously. In February, a Chicago radio station was fined $44,000 for 11 missing sponsorship ID tags. See our summary here.

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.

Other Sponsorship ID Issues

The FCC issued an NPRM in 2008, proposing, among other things, to require the sponsorship identification of embedded content and product placement at the time that the product is shown on the TV screen. That proceeding is still unresolved.

A summary of the FCC’s proposals is available here.

Sports Blackout Rules

In December, the FCC issued a Notice of Proposed Rulemaking proposing to eliminate the nearly 40-year-old sports blackout rules. Reply comments were due March 25.

Tower and Antenna Issues

The FCC continues its aggressive enforcement of 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.

UHF Discount

Since 1985, in an effort to encourage further TV use of the UHF band (chs. 14-51) over traditional VHF channels (2-13), 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 a Sept. 26, 2013 Notice of Proposed Rulemaking, the FCC proposed abolishing the UHF discount in light of the DTV transition and the perceived superiority of UHF frequencies for digital operations.

The proposal is not without controversy, with Commissioner Pai dissenting to the proposal to grandfather only existing station combinations and proposed combinations that were pending as of Sept. 26, and objecting to the failure to analyze the 39% nationwide cap in tandem with the review of the UHF discount. Reply comments in this proceeding were due Jan. 13. For a more detailed summary, see here.

Video Descriptions

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-four affiliates in the top 25 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.

Beginning in by July 1, 2015, ABC, CBS, Fox, and NBC affiliates located in the top 60 markets must begin providing 50 hours a quarter of video described programming.

In June, the FCC issued a public notice seeking comment on video description of video programming that is delivered via either television (broadcast and MVPD) or the Internet. The notice seeks comment on a number of issues related to the availability, use, benefits, and costs of video description in television and IP programming, as well as the technical and creative issues associated with providing such video description. Comments were due on Sept. 4, 2013, and replies were due Oct. 22, 2013.

White Spaces/Unlicensed Devices

On March 1, 2013, the FCC announced it had authorized all white space database administrators to provide service to unlicensed devices operating nationwide on the spectrum between TV stations. This announcement followed the launch of the FCC’s on-line registration system for unlicensed wireless microphones and other low power auxiliary devices.

In order to identify suitable vacant channels on which to operate without causing harmful interference to incumbent licensed television stations and other users, the unlicensed devices must include geo-location capability and the ability to access a database via the Internet. The FCC has authorized several database managers to manage those interference databases.

The incentive auction has created some uncertainty in the potentially white spaces device market. As part of the Spectrum Act rulemaking (see “Incentive Auction/Repacking” above), the FCC is proposing to repack TV stations into a tighter band of spectrum, thereby potentially reducing the amount of white spaces available.

At the same time, the FCC is proposing dedicated unlicensed bands to separate mobile broadband uses from the post-auction TV bands. The rulemaking indicates that TV white space uses will still be permitted in the TV bands after the incentive auction, subject to the effects of repacking. The rulemaking also for the first time would allow unlicensed use on ch. 37, which has traditionally been reserved for radio astronomy and medical telemetry devices, and on two channels used by wireless microphone operators. Stay tuned for action soon on these issues.