A Broadcaster’s Guide To Washington Issues

TVNewsCheck's quarterly quick briefing on the legal and regulatory proceedings affecting broadcasters from communications attorneys David Oxenford and David O'Connor.


Summer’s here, and the incentive auction is hot. Broadcasters now know the reverse auction total: more than $86 billion will be needed in the forward auction in order to pay for Stage 1 auction costs. Read our summary below. Meanwhile the FCC’s strict anti-collusion rules remain in effect — it’s not over until the FCC says it is.


The FCC is active on a number of other media fronts, with a controversial decision on multiple ownership rules circulating among commissioners. A revision of the foreign ownership rules could also be in the works, along with potential changes to the retransmission consent rules. And, now that we are approaching the general election, stations need to be sure they are complying with online political file obligations and other political broadcasting rules, as well as sponsorship identification rules.


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 digital conversion. There is growing momentum to replace those standards and adopt ATSC 3.0, aka Next Generation TV, a new Internet Protocol-based standard for over-the-air digital television transmissions, with 4K capabilities, high efficiency video coding, significant improvements for mobile reception and data transmission and other major advances.

The issue is now squarely before the FCC — on April 13, a group of broadcasters and manufacturers filed a joint petition for rulemaking formally asking the FCC to adopt the physical layer of the new TV transmission standard. The filing, by the NAB, the Consumer Technology Association, America’s Public Television Stations, and the Advanced Warning and Response Network (AWARN) Alliance, requests that the FCC adopt the standards set forth in ATSC A/321 as an alternative to, but not a replacement for, the current DTV transmission standard.

The FCC quickly sought comment on the proposal, and those comments were due May 26 and replies were filed June 27. The next step will be for the FCC to issue a formal Notice of Proposed Rulemaking to adopt the standard.

Under the proposal, stations that elect to operate with this Next Generation TV 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 that continues to operate with the current DTV transmission standard to carry the free-to-air signal 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 A/321 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.

All of this activity at the FCC comes amid ATSC’s efforts to finalize the ATSC 3.0 standard. In March, ATSC approved the “Bootstrap” mechanism as the Final Standard for the physical layer of 3.0. Experimental tests in Raleigh, N.C.; Baltimore; and Washington are underway. More ATSC announcements can be expected as plans unfold for a complete Final Standard of the new transmission system.

ATSC has previously announced that it anticipates having the new standard adopted and in place perhaps by early 2017 so that at least some stations can roll the conversion into 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. Reply comments were due April 20, 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. So stay tuned for possible enforcement actions related to the CALM Act.

Children’s Programming

The FCC continues to actively enforce its children’s programming rules. In July 2015, a station group agreed with the FCC to pay $90,000 to the federal government and enter into a compliance program in order to resolve claims that the stations were using multiple reruns 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 that has all but concluded, the FCC has been issuing 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, for example, the FCC decision here. Obviously, TV broadcasters need to carefully observe all aspects of the children’s television rules, as the FCC is carefully monitoring compliance in this area.

Stations must use the FCC’s Licensing and Management System to file their quarterly FCC Form 398 reports.

Closed Captioning

TV Closed Captioning — In 2015, important 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, 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. These new rules will become effective 30 days after they are published in the Federal Register, except for the rules that required prior approval 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 on Oct. 28, 2015, and a copy is available here.

IP Captioning — In 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), 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 30, 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) have been exempt from online captioning obligations, unless “substantially all” of a full-length program is available via IP video in multiple segments. However, in 2014 the FCC decided to remove this exemption, adopting a phased-in transition to IP captioning for clips used on a station’s website or in its mobile app.

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 Jan. 1, with “montages” of multiple clips from captioned TV programs due to be captioned online by Jan. 1, 2017, and clips from live and near-live programming to be captioned by July 1, 2017.

The FCC is also considering the comments it received in response to a Further Notice of Proposed Rulemaking as to how to deal with clips of captioned TV programs that are contained in a “mash-up” with other content that has not been broadcast on TV, whether the grace period provided for live and near-live clips should be phased out over time, and whether to extend the captioning rules to clips that run on third-party websites or apps. For background, see our summaries here and here.

These requirements govern cable systems, TV stations, broadcast and cable networks and virtually every other professional video program producer who is now, or will be in the future, making programming available online, to the extent that the programming is also exhibited on TV.

For further information, see our blog entry here.


In September 2015, the FCC adopted new rules to allow broadcasters to have greater flexibility in their disclosure of the material terms of contests which they conduct. The new rules became effective on February 12, 2016. 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.

EEO Rules

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, 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 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, focusing on 58 radio stations. 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. See our summary of broadcasters’ EEO obligations, here.

FCC Commissioner Michael O’Rielly has proposed allowing broadcasters to meet their EEO wide dissemination obligations solely through Internet sources. See our summary here. While updating the EEO rules to the modern era makes sense, it remains to be seen whether this proposal gains any traction.

Emergency Information (EAS)

A nationwide EAS test is scheduled for Sept. 28. Broadcasters and others will need to file test result data electronically through the new Electronic Test Report System. EAS participants must complete Form One on or before Aug. 26, and if necessary file any updates or corrections by Sept. 26. Form Two “day of test” data regarding the station’s national test results will need to be submitted within 24 hours of the nationwide test, followed up by detailed post-test data on Form Three within 45 days of the nationwide test.

On April 11, 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.

As of July 30, EAS participants must have acquired and installed EAS equipment capable of processing: 1) a national location code which must consist of “six zeroes” (000000) pertaining to every state and county in the United States; and 2) a National Periodic Test (NPT) event code for use in future nationwide EAS tests, including the Sept. 28 test.

On March 30, the FCC adopted a requirement that EAS Participants provide information to their State Emergency Communications Committees (SECCs) on 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.

The obligation for EAS participants to report such information to SECCs is still undergoing Paperwork Reduction Act review. PRA comments are due July 18. Upon OMB approval of these information collection requirements, EAS participants will have one year 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.

As of Jan. 30, TV stations must comply with new minimum requirements for EAS messages to ensure that they 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, the EAS message 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.

As of Nov. 30, 2015, 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. 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).

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.

In January 2016, the FCC adopted a Notice of Proposed Rulemaking soliciting comment on proposed rules to strengthen the EAS. Proposals include improving the utility of state EAS plans, including a requirement that such plans be submitted to the FCC online, whether the current cable “forced tune” and selective EAS override provisions should be retained, and methods to improve state and local usage of EAS. Comments in this proceeding were due July 8. For more information, click here.

The FCC is also seeking comments on updating the EAS Operating Handbook, which has not been updated in many years. Comments are due July 20. See our update here.

On April 8, the FCC sought comment on ways to improve earthquake-related emergency alerts, including “Earthquake Early Warnings” to the entire public in fewer than three seconds. Comments were due June 8. The FCC must submit a report on its findings to Congress by Sept. 18.

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 (and the Sony hack in 2014 only highlights that vulnerability). 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 May 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.

FCC Application Forms

The FCC is rolling out a replacement electronic filing system for broadcasters. The Consolidated Database System, 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, via FCC Form 2100 which has a number of different schedules with information specific to particular types of applications. As noted above, quarterly children’s programming reports must be filed via LMS as of January 2016.

FCC Process and Communications Act Reform

Although time is now running short for any major legislative initiatives before the next election, there are several FCC procedural reform bills pending. This idea is not new — it has been kicking around the House of Representatives for several years, but it has been blocked by Democratic control of the Senate. In February 2015, Sen. Dean Heller (R-Nev.) introduced the Federal Communications Commission Process Reform Act, which closely mirrors legislation introduced and passed in the House each of the last two Congresses.

A companion bill (H. 2583) was introduced in the House on May 29, 2015. More information about the bill is available here. There is also legislation pending to reauthorize the FCC for the first time in more than 25 years, with a number of related issues included. It is possible that some of these measures may be included in an FCC appropriations bill.

There has also been talk of further overhaul of the Communications Act, as the last significant rewrite was in 1996 before the internet had any substantial impact on the communications industry. But the parameters of any such rewrite are vague, and vaguer still are the impact any revisions would have on broadcasters. Much of the legislative agenda may be driven by House and Senate Republicans upset with the FCC’s approach to net neutrality issues which do not directly affect the broadcasting industry.

Field Office Closures

In April 2015, it appeared that the FCC was moving forward with the apparent cost-saving measure of shutting down all but eight of the FCC’s field offices located throughout the United States. These field offices serve an important role in assessing interference complaints. In June 2015, following pressure from Capitol Hill and from broadcasters, the FCC revised its plan and announced that it would keep 15 of the 24 offices open. These changes are being implemented by the FCC, and are scheduled to take effect this year.

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 Broadcast Law Blog article here.

The Media Bureau is processing modification filed since the freeze went into effect in 2013; 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.

On June 11, 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.

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 licensees to exceed those caps. Parties seeking to exceed the 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 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.

In the first filing under this new policy, Pandora filed a petition for declaratory ruling that its ownership does not violate the alien ownership prohibitions. See our summary here. In May 2015, commission staff granted a waiver to Pandora allowing it to have foreign equity and voting interests of up to 49.99%, subject to certain reporting and other requirements.

In October 2015, the FCC initiated a rulemaking proceeding proposing to harmonize the foreign ownership approach to broadcasters with foreign ownership of common carriers. Under this proposal, a broadcaster would still need to file Petition for Declaratory Ruling for approval of a foreign ownership structure above 25% of a parent company of a broadcast licensee (foreign ownership of the licensee itself is flatly prohibited if it exceeds 20%).

But the FCC has proposed to adopt the non-broadcast presumptions that, when the FCC approves a foreign owner of more than 5% of a corporation, that approved owner can go up to 49% ownership without further FCC approval. Similarly, if a foreign owner is approved in a control position, that owner would be able go to 100% without further approval. See our summary here. The deadline for reply comments in this proceeding was Jan. 20, so the matter is now ripe for FCC action.

Incentive Auction/Repacking

The FCC completed Stage 1 of the Reverse Auction on June 29, and the announced clearing cost for 126 MHz of broadcast spectrum came in at more than $86 billion. The next step is for the FCC to conduct the Forward Auction in which wireless companies will bid to acquire the spectrum being relinquished by broadcasters. It remains to be seen whether the Forward Auction can raise enough funds to cover the Reverse Auction costs, plus $1.75 billion for repacking costs and the FCC’s auction administrative costs. If not, Stage 2 will be required, with a spectrum clearing target below 126 MHz.

Broadcasters who participated in the auction, even if they decided to drop out of the auction, 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. See the public notice here. And our summary of these rules here.

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 more information about how the auctions will work, see our article here which contains a link to slides from a presentation we did on the incentive auction process.

Following the reverse and forward auctions, TV stations will be subject to a repacking in light of the new band plan. The repacking will make reasonable efforts to preserve a TV station’s viewers, and will not allow a station to cause more than 0.5% new interference to another; however, the FCC has not imposed any caps on aggregate interference caused to stations.

In addition, interference protection applies only to station facilities in operation as of Feb. 22, 2012, although some exceptions apply. The FCC anticipates completing the repacking of non-participating broadcasters quickly — within 39 months of completing the auction, but some stations may have even less time. The 39-month timeline remains controversial, with some calling for an extension and at least one bill pending in Congress that would provide such relief.

The FCC will compensate TV stations for a portion of the costs of repacking, up to $1.75 billion. This number has also been controversial with some expecting Congressional action to raise the pool of money available for the reimbursement of broadcasters who need to lay out funds as a result of the repacking. In September 2014, the FCC released a public notice seeking comment on a draft “TV Broadcaster Relocation Fund Reimbursement Form.” Comments on the form were due Nov. 26, 2015. See our summary here and here.

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.


The FCC has continued its strict enforcement of indecency matters. On March 23, 2015, the full commission issued a notice of apparent liability for forfeiture 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.

In a news release, the FCC’s Enforcement Bureau chief noted that the FCC’s action sends a clear signal that there are “severe consequences” for broadcasting sexually explicit material when children are likely to be in the audience. More information on this decision is available here.

Meanwhile, a 2013 proceeding on whether to make changes to the FCC’s indecency policies remains pending. In that proceeding, the FCC asked for comments on whether it should continue to apply the hard-line enforcement standard against fleeting expletives that was adopted by the FCC a decade ago, or whether it should go back to the old standard that required a more conscious and sustained use of expletives to warrant FCC action. For a description of some of the issues involved in this proceeding, see our Blog articles here, here, here and here.

Joint Sales Agreements

In 2014, the FCC initiated a new 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).

Under the rule (after initial congressional intervention), existing non-compliant JSAs had to be amended or terminated by Dec. 19, 2015. However, Congress went further with the omnibus appropriations bill by including a provision that grandfathers all JSAs that were in existence prior to March 31, 2014 (the date the FCC voted to restrict them) 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 as described in more detail in the Ownership Limits/Shared Services Agreements section below, the FCC appears to be planning to reinstate the TV JSA attribution rule.

In January 2016, the FCC released a Public Notice acknowledging that Congress has suspended through Sept. 30, 2025, the compliance deadline for making such TV JSAs attributable and requiring that they be filed with the commission. In connection with recent sales of television stations, the FCC has determined that this suspension of the JSA compliance deadline ends when there is a station sale and the parties to the JSA change — requiring the termination of JSAs before a sale can occur. Some in Congress have disagreed with the FCC’s interpretation, and congressional clarification of this issue is possible.

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 ch. 6 may continue transmitting, post-digital transition, an analog audio channel so that “Franken FMs” (“radio stations” received on FM radio receivers on 87.7 MHz that really are the audio portion of the LPTV’s programming). See our summary of the proposals here.

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. There are two pending appeals of the FCC’s decision to omit LPTV from interference protection under the incentive auction rules, so stay tuned for any decisions by the DC Circuit on those issues. Already the court has determined that a stay of the auction is not justified. 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 has prompted renewed questions about what it means to be an MVPD, and whether the definition of MVPD should include over-the-top providers like HBO, Sling, and the now-defunct Aereo. 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.” Reply comments in this proceeding were due April 1, 2015. Click here for more on this item.

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 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. In the interim, the FCC’s MVPD definition proceeding, according to recent trade press reports, has stalled, though efforts to attempt to revive it may be made as the year progresses.

Network Nonduplication/Syndicated Exclusivity

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

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 but was ultimately abandoned in 2013. In its place, the FCC announced a new review in 2014.

The 2014 item essentially folded in most of the 2009-2013 issues, and also adopted new restrictions on joint sales agreements and the joint negotiation of retransmission consent agreements, as discussed above in the JSA section and below in the Retransmission Consent discussion. Congress subsequently intervened to scale back the JSA restrictions, which only highlights the political sensitivities of these media ownership issues.

In May, 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 the past 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 JSAs were attributable interests. A summary of the court’s decision is available here.

In response to the court’s decision, FCC Chairman Tom Wheeler in June circulated a “Fact Sheet” summarizing the proposed ownership modifications that are now on circulation among all 5 FCC Commissioners. With one exception, the proposed changes seem to make the multiple ownership rules more restrictive – not less restrictive. See our summary of the proposals here. It remains to be seen whether Wheeler has enough support to move forward with these proposals. Ultimately, this case appears to be heading back to the Third Circuit, where it has been under review in one form or another for the past 14 years.

In response to the Fact Sheet, the NAB filed a Freedom of Information Act request seeking all background documents in the ownership proceeding. The FCC has not yet responded to this request.

In the meantime, the Media Bureau has 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. See our summary of the issues here and here.

The FCC also has on circulation a decision that may eliminate the so-called “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 next set of Biennial Ownership Reports for commercial broadcasters will be due Dec. 1, 2017. These reports will provide a snapshot of the ownership of broadcasters, accurate as of Oct. 1, 2017. 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.

The FCC also streamlined all ownership reports, both commercial and noncommercial, and announced that they will all be due by Dec. 1 in odd-numbered years. For more information on this issue, click here. The new rules and ownership report forms, which require OMB approval, are likely to be in place before the 2017 Biennial Ownership Reports are filed.

A number of noncommercial broadcasters have challenged the rule, 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.

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

As the primaries conclude and we move towards the general election, stations should be well prepared for political advertising issues that arise. For more information on the political broadcasting rules, see our updated Guide to Political Broadcasting here. In addition, the NAB has released the 18th edition of its Political Broadcast Catechism which answers a number of political advertising questions. While we can’t summarize all of the political advertising rules here, there are a few key concepts, including:

Once you have a legally qualified candidate for federal office, the reasonable access obligations are triggered. Reasonable access requires that broadcasters sell reasonable amounts of commercial airtime, during all classes and dayparts, to federal candidates. While reasonable access only applies to federal candidates, almost all of the other political rules apply to all candidates — including those for state and local offices, once the station decides to make time available for those races.

So, while you don’t have to sell advertising time to candidates for state and local candidates like those running for governor or mayor, once you do, equal opportunities, no censorship and lowest unit charges apply in the same way that they do to federal candidates. See our refresher on reasonable access here.

Stations also need to be careful about on-air employees who decide to run for an elective office, as their on-air appearances will trigger Equal Opportunities rights for their opponents. See our story about a radio sportscaster who decided to run for mayor and the issue that it raised under the political broadcasting rules, here.

In many contentious races, you may see third-party ads from SuperPACs and other non-candidate organizations. These organizations may also be buying ads on other controversial issues before Congress or in local areas, and may raise many of the same issues that are raised when they advertise in political races.

Because third-party advertising does not provide the same liability protections that candidate ads provide, stations need to be concerned with such ads. While stations are generally immune from any liability for statements made in candidate ads, there is potential liability if the station is put on notice of defamatory content or other illegal material in non-candidate ads. See our article about these issues, here. Such a claim was made to a station by at least one Republican presidential candidate so far this 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 2014 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.

Last year, 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. 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, complaints have been filed by the Sunlight Foundation against 11 large market stations alleging that their online political files were incomplete. See our summary of the complaints here. Those complaints remain pending.

Sunlight also filed complaints against two other stations alleging that they did not adequately disclose the true sponsor of PAC ads. The complaints alleged that the sponsorship identification of the PAC that sponsored ads attacking political candidates was insufficient when the PAC was essentially financed by a single individual.

In September 2015, the Media Bureau dismissed the complaints. However, the bureau did not specifically find the allegations to be incorrect. Instead, the complaints were dismissed because petitioners never went to the stations to ask that they change the sponsorship identification on the PAC spots during the course of the election.

The bureau stated that it was using its prosecutorial discretion not to pursue these complaints, going so far as to say that the ruling might have been different had the request for a proper identification been made to the stations during the course of the election. Thus, broadcasters should be on the alert for complaints alleging that they have not properly identified the true sponsor of a PAC ad, and treat such ads seriously. See our summary here.

After the elections in November 2014, another complaint was filed by the same groups against a Chicago TV station claiming that the station should have identified former New York City mayor Michael Bloomberg as the true sponsor of an ad run by a PAC. In this case, the station apparently was given written notice of the claim that the sponsorship identification should have included Bloomberg, which may distinguish it from prior cases. That issue remains pending. See our summary here.

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. Comments in that proceeding are due July 22 and replies are due Aug. 22. 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 with certain exceptions. See our articles here and here for our summary of the FCC’s decision.

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. The FCC could propose specifics for such a form in a Notice of Proposed Rulemaking, or the commission could decide to not further pursue this proposal. A summary of the FCC’s proposals is here.

Retransmission Consent/Must Carry/STELAR

In September 2015, as required under the STELA Reauthorization Act of 2014 (STELAR), the FCC issued a Notice of Proposed Rulemaking to examine the requirement that broadcasters and MVPDs engage in “good faith” retransmission consent negotiations. The NPRM discusses specific negotiating practices, such as failing to negotiate based on actual local market conditions, and asks whether such practices should be deemed per se violations of the good faith negotiating requirement. Reply comments were due Jan. 14 and lobbying on both sides continues. Our analysis of this hotly contested proceeding is available here.

As required by STELAR, the FCC adopted a new rule prohibiting the joint negotiation of retransmission consent agreements by two stations in the same market that are not “directly or indirectly under common de jure control,” regardless of whether those stations are among the top 4 stations in the market.

STELAR 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 also 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 September 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.

According to trade press, the matter has proved very controversial, with broadcasters and members of Congress expressing displeasure with the proposal outside of a comprehensive review of both the FCC and copyright regime dealing with the retransmission of broadcast programming, while some MVPDs lobbying in favor of the changes. At this point, it is unclear whether a decision will be made.

In July 2015, the FCC issued a public notice seeking comment on a Petition for Rulemaking filed by cable operator Mediacom asking for the FCC to require TV stations, in their license renewal applications, to certify that the licensee will not block any MVPD from carrying the station at the end of a retransmission consent agreement term unless the station is accessible over-the-air or by internet streams to at least 90% of the homes in the market served by the MVPD. Comments on this petition were due Aug. 14, 2015. See our summary here.

Sponsorship Identification

The FCC continues to enforce its sponsorship ID rules vigorously. In early January, 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.

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.


See Retransmission Consent section above.


The Telephone Consumer Protection Act (TCPA) is a law that restricts businesses and organizations from making calls and texts to consumers’ residential and wireless phones without having first received very specific permission from the recipient. Sending texts to broadcast station viewers or listeners who are contained in a station’s loyal listener or loyal viewer clubs can lead to liability if the proper releases are not obtained, and collecting text addresses from contest participants and adding them to station databases can similarly be problematic.

Because violations of the TCPA can result in civil liability of $500 to $1,500 per call or text plus FCC fines, and as there have been a number of law firms around the country that have been active in filing class action suits against businesses to collect those potentially very high per-call damages, broadcasters need to ensure that their practices comply with the TCPA and the FCC’s rules which implement the Act. Recently a major radio group, iHeart Media, settled a TCPA lawsuit for $8.5 million. Read more about this issue here.

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 and here.

In December 2015, the FAA announced new standards for tower lighting. See our summary here.

UHF Discount

Since 1985, in an effort to encourage further TV use of the UHF band (chs. 14-51) over traditional VHF chs. (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 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 FCC Commissioner Ajit Pai dissenting from the proposal to grandfather only existing station combinations and proposed combinations that were pending as of Sept. 26, 2013, and objecting to the failure to analyze the 39% nationwide cap in tandem with the review of the UHF discount.

In conjunction with the ownership proceeding described above, the FCC may be preparing to move forward with eliminating the UHF discount. A draft order is currently on circulation among the Commissioners for their consideration and possible approval. For a more detailed summary, see 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 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. Reply comments in that proceeding are due July 26.

White Spaces/Unlicensed Devices/Wireless Microphones

The FCC has proposed that in each TV market, one UHF TV channel (above ch. 21) that is not assigned to a TV station following the repacking will be designated for use by TV white space (TVWS) and wireless microphones. In certain markets, where TV stations are placed into the wireless 600 MHz band, the FCC 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, in response to a petition filed by the NAB, the FCC released a Notice of Proposed Rulemaking and Order, proposing to amend its rules to improve the quality of the geographic location and other data submitted for fixed TVWS devices operating on unused frequencies in the TV bands and the new 600 MHz 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. Comments were due June 6. 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.

Comments (1)

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Ellen Samrock says:

July 11, 2016 at 10:44 am

If O’Rielly really wants to reform the FCC he can start by reducing this cargo ship load of regulation that the agency has anchored to the broadcasting industry. Supposedly there is a mechanism in place to review these regulations and it made a good start by eliminating the Fairness Doctrine. But let’s not stop there.