A Broadcaster’s Guide To Washington Issues

Elections have consequences, and those consequences will play out at numerous federal agencies this month, including the FCC. We’d expect a more deregulatory approach from the incoming administration, including potential reconsideration of media ownership restrictions, EEO policies, and many other regulations affecting broadcasters. With the elevation of Commissioner Pai to Chairman, based on his past statements, this deregulatory nature of the Commission seems all but assured.

For TV broadcasters, change is likely to happen on many fronts, not least of which is in connection with spectrum issues. The incentive auction continues, but there is an end in sight as the current Stage 4 will be the last one. After the auction, stations will be repacked into the new, smaller TV band. 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

The Advanced Television Systems Committee (ATSC) develops standards for digital television. The current standards were adopted in the 1990s for the conversion of television stations from analog to digital. ATSC 3.0, aka Next Generation TV, is a standard for over-the-air digital television transmissions, incorporating Internet-protocol digital encoding which will allow for many other major advances including 4K capabilities, high efficiency video coding, and significant improvements for both mobile reception and data transmission.

The standards approval process for 3.0 is nearing an end: all but three of the 23 standards have been approved as final standards or are nearing that status. The ATSC 3.0 System (A/300), Physical Layer Uplink/Downlink (A/323), and Application Signaling (A/337) standards are now draft standards that ATSC anticipates will be finalized this spring.

In April 2016, 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. The FCC quickly sought comment on the initial proposal. However, to date, the FCC has not issued a formal Notice of Proposed Rulemaking setting out proposed rules for the adoption of the new standard and asking for public comment, as required before the system can be adopted, despite the urging of broadcasters to quickly move through the regulatory process.

Under the joint petition’s proposal, stations that elect to operate with the 3.0 standard would be required to have at least one free-to-air next-gen TV signal. But they would also be required to arrange for another TV station in the market to continue to operate with the current DTV transmission standard and carry the converted station’s primary programming channel on the second station’s regular multicast stream, which would be viewable on current TV receivers.

That multicast signal (and it would need to be a simulcast of whatever programming is on the free next-gen signal) would need to substantially cover the next-gen station’s community of license. The agreement between the two stations would need to be filed with the FCC, and such arrangements would be in effect for an unspecified period, “consistent with local market conditions.”

Next-gen stations would be required to give MVPDs at least 60 days’ written notice before switching to ATSC 3.0 transmissions. Next-gen tuners in television receivers would not be required under the proposal; instead, manufacturers would voluntarily include them in new receivers while continuing to include the mandatory tuners capable of receiving current DTV standard transmissions.

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.

Auxiliary Facilities 

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 Advanced Television Standards Committee (ATSC), a standard that has been in place since June 2015. See our summary of CALM Act requirements here and here.

The FCC has advised Congress 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. Stay tuned to see how the new administration deals with CALM Act issues.

Children’s Programming

The FCC continues to actively enforce its children’s programming rules. In July 2015, a station group agreed to pay $90,000 to the federal government and enter into a compliance program 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.

Also, fines have been 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. Recent 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. Obviously, TV broadcasters need to carefully observe all aspects of the children’s television rules, as the FCC has been carefully monitoring compliance in this area.

Closed Captioning

TV Closed Captioning — In 2015, new closed captioning obligations for TV broadcasters became effective. These new “quality” standards for captioning include 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. 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 September 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.

So far 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).

As of March 2016, 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. As of January 1, 2017, “montages” of multiple clips from captioned TV programs must also be captioned if they are displayed online. Beginning July 1, 2017, 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.

Contests

In February 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.

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 the new Congress, so look for these proposals to be considered in the future. See our update here.

Drones

The Federal Aviation Administration recently finalized rules to permit the broad commercial use of small unmanned aircraft systems (“sUAS”) — or drones — provided certain requirements are met. The new rules, which became effective in August 2016, are in many cases more permissive than the old regulatory framework, but some potential pitfalls remain. See our summary here and here.

EAS — Emergency Information

A nationwide Emergency Alert System (EAS) test was held on Sept. 28, 2016. Last month, FCC staff reported that initial test data indicate that the vast majority of EAS Participants successfully received and retransmitted the National Periodic Test (NPT) code that was used for the nationwide test.

This will not be the last nationwide EAS test — in April 2016, President Obama signed into law the IPAWS Modernization Act (Pub. L. No. 114-143) which, among other things, requires a nationwide EAS test at least once every three years going forward.

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 (or 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 (NPRM) 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 August 2016, the FCC released a new EAS Operating Handbook, which had not been updated in many years. Copies of the Handbook are available here.

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.

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.

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 2015, the FCC fined iHeart Media $1 million over the use of EAS tones in a non-emergency. See our article here. In 2014 alone, the FCC proposed more than $2.2 million in fines for false EAS alerts embedded in movie trailers and other commercials. See our summary here and here.

EEO Rules

Last month, the FCC’s Media Bureau asked for comments on a proposal by two broadcasters to make online EEO recruiting easier. The proposal would allow broadcasters to rely on Internet recruitment sources, coupled with their on-air advertising, when seeking candidates for new job openings. Comments in this proceeding are due Jan. 30, with replies due Feb. 14. See here for further details.

It is possible that, with the change in administration later this month, a Republican-led FCC will look favorably on this proposal. Republican FCC Commissioner Michael O’Rielly previously has supported allowing broadcasters to meet their EEO wide dissemination obligations solely through Internet sources. See our summary here.

Under former Chairman Tom Wheeler, the FCC’s Media Bureau issued fines to stations that did not widely disseminate information about job openings beyond broadcasting announcements on the station’s airwaves, posting the opening on the station website, and using online sources. In doing so, the FCC has 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. In July 2016, a cable company was fined $11,000 for recruiting solely through online sources – see here for further details.

The FCC also has fined stations that did not regularly send notices of job openings to community groups that had requested such notices, as required by the rules. See our summary of broadcasters’ EEO obligations, here. It remains to be seen whether the Republican-led FCC will adopt a less enforcement-oriented approach to these issues.

Meanwhile, TV broadcasters will be 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. A new round of random EEO audits was announced in June 2016, focusing on 58 radio stations. Read our summary here.

FCC Application Forms

The FCC is rolling out a replacement electronic filing system for broadcasters. The Consolidated Database System (CDBS), which has been around since the 1990s, is being gradually replaced by the Licensing and Management System (LMS). Nearly all TV forms have migrated to LMS at this point.

FCC Commissioners

With the change in administration, at least temporarily, the FCC will flip to a 2-1 Republican majority, with two vacancies to be filled by the president and Congress. Commissioner Ajit Pai (R) has been named as the permanent chairman of the commission. Commissioner Michael O’Rielly (R) continues to serve. The term for Commissioner Jessica Rosenworcel (D) expired on Jan. 3 when the 114^th Congress adjourned, so she is no longer a commissioner. President Obama re-nominated her on Jan. 4, but it is unclear whether that nomination will be acted on by the Senate. Chairman Tom Wheeler (D) left the agency on January 20, leaving Commissioner Mignon Clyburn (D) as the only Democratic Commissioner.

FCC Process And Communications Act Reform

In September 2016, before leaving Washington to hit the campaign trail, members of the House of Representatives passed the Communications Act Update Act of 2016. The bill rolled a number of FCC-related bills into one, including provisions that would require the FCC to change various agency procedures, such as setting a minimum comment period for rulemaking proceedings, requiring the FCC to publish the text of proposed rules in advance of a vote, giving the public more time to comment on rulemaking proceedings, and setting a “shot clock” for certain types of FCC proceedings.

The bill also contained provisions to eliminate unnecessary FCC reports to Congress. Congress adjourned without taking further action, but expect to see similar bills introduced in the 115^th Congress, with the potential for legislation passing given the Republican-led Executive and Legislative branches.

Field Office Closures

The FCC will be closing its field offices in Anchorage, Buffalo, Detroit, Houston, Kansas City, Norfolk, Philadelphia, San Diego, San Juan, Seattle, and Tampa. The FCC announced that the Detroit office was to have closed as of Jan. 7.

Field offices in Atlanta, Boston, Chicago, Columbia (Maryland), Dallas, Denver, Honolulu, Los Angeles, Miami, New Orleans, New York, Portland (Oregon), and San Francisco will remain open.

The FCC will “maintain a presence” in Alaska and Puerto Rico, and will “periodically” rotate staffers through Kansas City despite closing its office there. And it will maintain “Tiger Teams” in Columbia, Maryland and Denver to assist other offices. Stay tuned for whether the Republican-led FCC will alter or reverse course on these closures.

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.” For more on the freeze, see our article here.

The Media Bureau is processing modifications filed since the freeze went into effect in nearly four years ago; however, the facilities authorized in any resulting construction permits will not be protected in any repacking of broadcasters. The freeze otherwise remains in place and will likely continue until after the auction.

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.

Foreign Ownership and 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. Under this approach, and with a few broadcaster-specific changes, broadcasters will be 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 recent order to U.S. broadcasters that may have incidental foreign ownership. Specifically, the order will require 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.

Although the rules adopted in September 2016 have not yet taken effect because they have not been approved by OMB, the FCC is nonetheless continuing to take a relaxed approach to foreign ownership issues. This month, the FCC’s Media Bureau approved up to 49% foreign ownership of Univision. See our summary here.

Incentive Auction/Repacking

We are now in Stage 4 of the long and dragged out incentive auction, which officially began in March 2016 and is now the longest FCC auction in history. Stage 4 of the Reverse Auction, with a lower clearing target of 84 MHz, closed on Jan. 13. The Forward Auction is now in progress. As the “clearing target” (the money necessary to buy out the broadcasters surrendering their frequencies and the associated costs of the auction) having been met, the auction will end in this Stage 4 following the completion of the Forward Auction.

Attention is increasingly turning to the aftermath of the auction and the repacking of remaining TV channels into the smaller TV band. In September 2016, the FCC released a proposed Post-Incentive Auction Repacking plan for TV stations. Reply comments on the FCC’s proposal for conducting the repacking in 10 different transition phases over 39 months were due in November. The FCC also released a public notice asking for beta testing of its post-auction system to be used by TV stations applying for reimbursements of expenses they incur after being repacked following the incentive auction. Comments were due in November. See here for more details.

The 39-month timeline remains controversial, with some calling for an extension. Last week, the FCC released a request for comments on a new form on which television broadcasters will be required to make quarterly progress reports on the status of their repacking efforts. The request for comments is available here. Such reports will be a pre-condition to receiving reimbursement for the repacking costs. Comments on the form are due on Jan. 25, and replies on Feb. 6.

Meanwhile, broadcasters who participated in the auction, even if they decided to drop out of the auction, continue to have strict limits on information that they can disclose until the entire auction has ended. The FCC offered guidance to broadcasters about these anti-collusion rules, which have been in place for a year now and have severely dampened the TV transactional market. See the public notice here, and our summary of these rules here. Last week, the FCC did waive the rules to permit the Nexstar/Media General merger to proceed (the order is here), and other relaxations of the rules may be in the works now that the clearing target has been met.

The FCC will withhold the identity of bidders (except winning bidders in the reverse auction) for two years following the announcement of the results of the reverse auction and the repacking process.

For further background on the 2012 statute that authorizes the FCC to conduct an incentive auction to clear parts of the UHF band for mobile broadband uses, see our summary here.

Indecency

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. Former Chairman Wheeler did not take further action in this proceeding, and it remains to be seen whether his Republican successor, Ajit Pai, will take up the matter. For a description of some of the issues involved in this proceeding, see our Blog articles here, here, here and here.

Joint Sales 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 August 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 September 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 are due Jan. 24 and replies to such oppositions on Feb. 3. See here and here for further information.

License Renewals

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 occur 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 and TV Translators

The FCC adopted a decision requiring all analog LPTV and translator stations to convert to digital operations by Sept. 1, 2015. However, in October 2014 the FCC issued a proposal to extend that deadline indefinitely. At the same time, the FCC suspended the expiration dates and construction deadlines for all outstanding unexpired construction permits for new digital LPTV and TV translator facilities until the October 2014 rulemaking is finalized. 

In December 2015, the FCC set a new digital LPTV/TV translator transition date of 12 months after the 39-month post-incentive auction transition final deadline for full power and Class A stations — essentially agreeing to a 51-month extension after the incentive auction is completed. In addition, the decision confirmed that LPTV and TV translators can channel share among themselves.

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 the Incentive Auction order discussed above, the FCC concluded 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.

The details of that special filing window were announced in December 2015. After the incentive auction, the FCC will schedule a window for LPTV and translator stations to file for displacement channels if their current operations are no longer possible after the repacking of the TV band. The FCC will make software available for those stations to identify available channels for displaced stations.

It remains an open issue whether LPTVs on channel 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 January 19, 2017 (here) to protect opportunities for displaced LPTV stations to seek new channels in the special filing window.

In October 2015, the FCC announced 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.

Despite FCC overtures to help the LPTV service post-auction, the future of LPTV remains uncertain given the intended repacking of full power TV stations into a smaller swath of spectrum, although with each new stage of the incentive auction, more channels have become available for LPTV operations post-auction. Whether there will be sufficient spectrum for LPTV after the repacking remains one of the great unknowns about the incentive auction.

Market Modifications

See Retransmission Consent section below.

Over-The-Top Video As A Multichannel Video Programming Distributor (MVPD)

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 last year, 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, DC 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 conflict between the court in California and the other courts will likely be resolved by appellate courts.

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 August 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 cross-ownership 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 cross-ownership prohibition but added a waiver exception for failed and failing broadcast stations and newspapers.

Appeals and petitions for reconsideration have been filed. It is possible that a new FCC will look favorably on the reconsideration petitions. Oppositions to the petitions for reconsideration are due Jan. 24 and replies to such oppositions on Feb. 3. See here and here for further information. 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.

After the initiation of the 2014 review, the Media Bureau imposed a 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. See our summary of the issues here and here.

In a separate decision, the FCC eliminated the so-called “UHF discount” in connection with the national television ownership caps. See the UHF Discount section below.

Ownership Reporting

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.

In January 2016, the FCC adopted a new Restricted Use FRN (or a RUFRN, replacing the previous Special Use FRN or SUFRN) that could be obtained for anyone with an attributable interest in a broadcast station requiring that the owner be listed on ownership reports. The RUFRN would be available without the need for supplying a complete Social Security Number; instead only the last four digits of the SSN will be needed along with other information to be used for specifically identifying the attributable owner. For more information on this issue, click here.

The new ownership report forms (to be called FCC Form 2100, Schedules 323 and 323-E), are not yet available online, but the FCC staff has indicated that OMB approved the forms. Other aspects of the new rules are still undergoing Paperwork Reduction Act (PRA) review, with PRA comments regarding the revised FCC Forms 160 and 161, and the incorporation of RUFRNs into those forms, due February 13.

A number of noncommercial broadcasters challenged the obligation to provide SSNs, arguing among other things that the required disclosure of SSNs or other identifiable information is a disincentive to serve on a noncommercial board of trustees. On Jan. 4, the FCC’s Media Bureau issued a controversial decision denying reconsideration of the full Commission’s decision to require SSNs. The two Republican Commissioners, who will likely represent the majority on the commission as of Jan. 20, objected to the way the matter was handled, allegedly without providing them any input or even notice that it was to be released.

They also suggested that the SSN requirement was “pointless,” seemingly alluding to their previous statements that noncommercial broadcasters are not subject to FCC ownership limits, and that the interests of noncommercial board members are seldom relevant to tracking ownership trends across the broadcasting industry generally. The Republican statement went so far as to explicitly urge the petitioners to file an application for review of the Media Bureau’s decision. See our full summary here.

Since then, a bill has been introduced in Congress to roll back these information collection requirements for noncommercial broadcasters. Commissioner O’Rielly issued a statement applauding the bill and indicating his hope that, either through the legislation or by FCC action, the rules would be overturned before the December 1 Biennial Report filing deadline. See our article here for more on these recent actions.

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. In the January 2016 decision noted above, the FCC announced that it would address these issues in a subsequent decision.

Political Broadcasting

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. 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.

For more information on the political broadcasting rules, see our updated Guide to Political Broadcasting here. In addition, the NAB has released the 18^th 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, 2017, the FCC staff issued two decisions, summarized here, which made clear 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.

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 Mr. Bloomberg, which may distinguish it from prior cases. That issue remains pending. See our summary here.

Stay tuned for whether a Republican-led FCC takes any 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. Letters and emails from the public should not be posted online for privacy reasons. However, the FCC has proposed eliminating the requirement that commercial broadcasters retain copies of letters and emails from the public in a paper file at their main studios. The pleading cycle in that proceeding has closed, and the issue is supposed to be addressed at the FCC’s meeting on Jan. 31 (see our article here). Read more about this proposal here.

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 June 24, 2016, with certain exceptions. See our articles here and here for our summary of the FCC’s decision.

Retransmission Consent/Must Carry/STELAR

In July 2016, Chairman Wheeler announced in a blog post that the FCC was ending its inquiry into the retransmission consent rules without the adoption of any new rules. The Chairman 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 remains nominally on circulation among the commissioners, however.

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 four stations in the market. In September 2016, the FCC’s Media Bureau entered into a consent decree with Sinclair 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 move forward with this proposal.

Retransmission consent/must carry election letters must be mailed by TV stations and received by MVPDs no later than Oct. 1, 2017, 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.

Sponsorship Identification

The FCC has been vigorously enforcing 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.

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.

STELAR

See Retransmission Consent section above.

TCPA

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 $1500 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.

Tower and Antenna Issues

Under legislation enacted by Congress in July 2016, rural towers that are less than 200 feet in height 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.

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 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.

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 September 2016, the commission voted 3-2 to eliminate the UHF discount. See our analysis here and here. The decision has been challenged in court, and a petition for reconsideration is also pending. Oppositions to the petition for reconsideration were due January 10, and replies were due Jan. 23. See our summary here.

Video Description

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.

At its March 31 open meeting, the FCC adopted a Notice of Proposed Rulemaking seeking comment on proposals to expand the amount of, and access to, video described programming. The FCC was scheduled to vote on a Report and Order in this proceeding at its November 2016 open meeting, but the item was pulled from the agenda, apparently because one or more Commissioners deemed the item controversial following the November election. The item remains nominally on circulation among the Commissioners.

White Spaces/Unlicensed Devices/Wireless Microphones

The FCC has proposed that in each TV market, one UHF TV channel (above channel 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 is proposing 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. The FCC also proposes 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 (NPRM) 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 band in the future (following the incentive auction). 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.

Separately, the FCC determined that companies that use 50 or more wireless microphones will have the same interference protection as low power wireless audio devices. But wireless microphones are otherwise being phased out of the 600 MHz band, with a hard date of 39 months after the incentive auction concludes to be completely transitioned out of the 600 MHz band that is now reserved for mobile broadband uses.