FCC Watch: 18 Topics In 244 Words Or Less

With so many regulatory issues to follow, how are TV broadasters to keep up with it all? With FCC Watch, an exclusive briefing on the major (and some minor) issues at the agency prepared by David Oxenford and Brendon Hollard, attorneys in the Washington law offices of Davis Wright Tremaine and contributors to the firm’s Broadcast Law Blog, which tracks FCC developments as they happen. You can reach Oxenford at [email protected] or 202-973-4256 and Holland at [email protected] or 202-973-4244.

In alphabetical order:

CALM Act Implementation

In December 2011, the FCC adopted rules for the implementation of the CALM Act, requiring TV stations and MVPDs to keep the volume of commercials at the same level as their accompanying programming. The commission has essentially allowed stations to comply by adopting a protocol set out by the Advanced Television Standards Committee. Stations and MVPDs must be in compliance with this standard by December 2012, absent waivers.

Read a summary of the FCC’s order here.

Class A LPTV      

In a series of recent actions, the FCC has asked whether certain Class A TV stations should be reclassified as LPTVs, as they had not filed their required Children’s Television Programming Reports. The number of stations involved suggests that the commission is targeting Class A stations that do not meet their obligations to provide local programming and to observe all rules applicable to full-power TV stations, so as to remove their protections from being displaced in a spectrum repacking in preparation for selling some of the TV spectrum to wireless broadband users.

Read a summary of some of these recent decisions here.

Closed Captioning

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

That standard is significantly higher than the review initially applied to these particular programming providers. Parties whose waivers were rescinded had 90 days to seek new waivers and many such waiver requests have been filed thus far in 2012. The FCC has begun reviewing the captioning waivers and issuing public notices soliciting comments. So far the Commission has dismissed some requests as deficient, and sought additional information from others. The FCC’s review of these waivers will continue throughout the year.

Read about more details about the recent TV closed captioning decision here.

 IP Captioning — This January, the FCC adopted rules that require closed captioning of full length video programming delivered via Internet protocol (i.e., IP video) that is published or exhibited with captions on TV after the effective date of such regulations. The rules are a result of the 21st Century Video and Communications Accessibility Act (CVAA), which was adopted in 2010 to improve the accessibility of media and communications services and devices.

The IP captioning rules are expected to become effective in the second quarter of 2012 and 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.

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

Read further details about the FCC’s new IP captioning rules here.

EEO Rules

The FCC continues to enforce its EEO rules by randomly auditing 5% of all broadcast stations annually, as well as through the review of Form 396, which summarizes a station’s EEO performance in the two years prior to when a station seeks to renew its license.

The FCC issued fines earlier this year 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. The FCC held that other non-station, non-Internet recruiting sources must also be used to announce job openings.

Read a summary of the recent fine here. For more details about the FCC’s EEO rules, see our summary of issue raised in a recent FCC webcast on the EEO rules here, and our advisory on the FCC’s EEO requirements here.

Emergency Alert System

The FCC recently adopted standards for equipment to be used by broadcast stations for compliance with the Common Alert Protocol, an IP-based system for the delivery of emergency alerts. Stations must be CAP compliant by June 30. The CAP conversion order goes into effect in April, and petitions for reconsideration of the order have already been filed, particularly affecting whether stations can use text-to-voice technologies to broadcast alerts.

Also, the FCC conducted its first national test of the EAS system in November 2011, and stations were to have filed reports on their experiences with the test by late December. Commission sources have indicated that reporting by stations was less than complete, so additional requests for information may go out soon. A report on the test is expected later this year, and additional national tests are also expected.

Read more details of the FCC order on the technical standards for CAP-compliant equipment  here.

License Renewals

Radio license renewals continue this year with numerous stations in the South and Midwest moving through the process, including Michigan, Illinois, and Colorado. In addition, television stations begin the renewal process this year starting with TV stations in Maryland, Virginia, West Virginia and the District of Columbia on June 1.

In reviewing license renewals, the FCC is continuing to focus on issues that have been important in previous cycles, such as RF radiation compliance and public inspection file issues.This renewal cycle also introduced a few new certifications, including whether a station has been off the air for any significant period of time during the last license term and whether stations have complied with the policy regarding nondiscrimination in the sale of advertising time.

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

For further information about the license renewal process, see this advisory.

LPTV Stations and TV Translators

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

Read a summary of the FCC’s order on the digital conversion deadlines here.

Must Carry and Retransmission Consent

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

While cable and satellite companies felt that the FCC should establish more rules about the process and take a more active role in overseeing negotiations, broadcasters contended that blackouts were rare and the system was working properly in allowing business negotiations to set retransmission fees. Rumors are that a decision in this proceeding could be issued in the near term.

Read a more complete summary of the issues raised in the NPRM here.

Online Public Inspection File

Early this year, the FCC received comments on its proposals to mandate an online public inspection file for TV stations. The online file would be maintained by the FCC on its computer servers, but is proposed to require all of the information currently in a station’s paper file with the exception of the letters from the public, which are not proposed to be posted for privacy reasons.

In addition, the proposal calls for increased disclosure of information about program sponsors. Broadcasters have been particularly concerned about the proposal to put the entire political file online, as they would have to convert all necessary information about candidate inquiries and purchases into the FCC-mandated format, and post it promptly. Concerns have been raised that this will provide competitively sensitive information and information that competing media outlets are not required disclosure electronically.

Suggestions have been made by broadcasters to require a summary of political information — not the detailed information now required. The FCC is reportedly looking to resolve this proceeding quickly, so look for an order this spring, though implementation will be delayed until an electronic system for hosting the station files can be created by the FCC.

Read a more complete summary of the issues raised in the NPRM here.

Ownership Limits-Shared Service Agreements

In March, comments were filed on the FCC’s Notice of Proposed Rulemaking, looking to revise and update its broadcast multiple ownership rules. Reply comments are due April 3. The issues set out in the FCC’s NPRM include proposed liberalization of the restrictions on broadcast-newspaper crossownership, and the elimination of rules restricting the ownership of radio and TV stations in the same market.

The FCC has also proposed the attribution of TV shared services agreements (i.e., potentially making a shared  services agreement count as if it were an ownership interest in a multiple ownership analysis). The FCC did not propose to change its local TV ownership limitations (which currently prohibit combinations of any of the top four stations in a market, and limit an owner to only two TV stations in a market, but only where there are at least eight marketplace TV station owners after the combination).

However, the FCC did ask whether waivers of these rules should be allowed in any particular circumstances. The commission is also looking for suggestions on how these rules can be used to promote the minority ownership of broadcast stations.

Read a more complete summary of the issues raised in the NPRM here.

Political Advertising

Political season is underway in anticipation of this November’s election. Many stations have already faced political issues, including the computation of the lowest unit rates that will apply in the periods 45 days before a primary or caucus and 60 days before a general election. The FCC has informally cautioned stations that, while Internet-only advertising is not subject to the FCC rules, when the sale of such advertising is coupled with the sale of on-air ads, the on-air ads cannot be excluded from political rate computations.

Stations have also had to evaluate the truth of third-party advertising from super PACs. While stations are generally immune from liability for statements made in candidate ads, there is potential liability if they are put on notice of defamatory content or other material in non-candidate ads that could subject stations to civil liability.

In the Presidential primaries, stations have also had to deal with graphic anti-abortion ads, run by Randall Terry, who claims to be a candidate for the Democratic nomination. The Democratic Party has disavowed his candidacy, and the FCC ruled earlier this year that his ads did not need to run during the Super Bowl. But the FCC has not yet ruled officially as to whether his ads can be rejected based on the party’s disavowal of his candidacy, even where he qualified for a place on a primary ballot.

For more complete information about the FCC’s political broadcasting rules, see our Guide to Political Broadcasting, here.

Public Interest Programming Disclosure

In February, 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 FCC 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 proposed online public file. Look for an NPRM on this proposal later this year.

Read a more complete summary of the issues raised in the NOI here.

Regulatory Fees

The annual FCC regulatory fees charged for broadcast stations have generally held steady in the past few years, and it is not anticipated that this year’s fees will depart significantly from the recent amounts. The annual regulatory fees, which are typically due sometime between mid-August and mid-September, are apportioned by the FCC every year and are imposed on a sliding scale with large market VHF TV stations at the high end of the scale and small market radio stations at the low end.

Look for proposals as to the amount of these fees for this year very soon, with a possible reduction in charges for VHF stations given their lesser value in a digital world. The commission has also proposed the notion of spectrum usage fees, both in the 2010 National Broadband Plan and in its most recent budget to Congress.

The fees, which would require FCC licensees to pay annually for the right to use their spectrum, have not gained traction thus far and have been strongly opposed by NAB, CTIA and others.

Spectrum Reallocation

In February, Congress adopted an act to permit the FCC to conduct incentive auctions to clear parts of the TV band for wireless broadband uses. The act required that the FCC attempt to replicate the current service of any stations that were forced to change channels to “repack” the band to make it available for wireless users, and to compensate TV stations for the costs of repacking. The FCC will have to conduct further proceedings to implement the legislation, designing auction procedures and specific repacking plans.

Read a more in-depth summary of the provisions of the act here.

Sponsorship Identification

Video News Releases —  The FCC has recently issued fines to television stations for airing video news releases without identifying the party who provided the VNR, or 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.

Read a summary of one of the recent fines issued for this type of violation 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. In the proposal to require an online public file, the FCC is also proposing that TV stations include in this online file information about sponsors of programs, including those paying for product placement in entertainment programs.

Read a summary of the 2008 NPRM here.

Tower and Antenna Issues

Following several years of consideration, in December 2011, the FCC adopted new rules governing the review and registration of broadcast and communications towers. The new rules, which provide for greater opportunity for public comment, are an outgrowth of a decision from the Court of Appeals in 2008 in which the court found the FCC’s tower registration procedures to be deficient. The recent order also adopted interim procedures to address concerns about the effect of tall towers on migratory birds.

The FCC will issue a further public notice, likely this spring, to announce the implementation of the new rules and to detail the changes to the commission’s Antenna Structure Registration database.

Read further details about the tower rules here.

Video Descriptions 

In addition to the new IP closed-captioning rules mentioned above, the FCC recently reinstated its video description rules as required by the Accessibility Act. The FCC had adopted similar rules a decade ago, but they were struck down by the U.S. Court of Appeals for the D.C. Circuit.

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, and are carried on the secondary audio program (SAP) channel. The rules require the provision of specified quantities of video-described programming by broadcast television stations in the top 25 markets affiliated with the top four national networks, and by multichannel video programming distributor systems (MVPDs), such as cable operators and DBS systems, with more than 50,000 subscribers.

The rules also require that all television stations and MVPDs, regardless of market or system size, “pass through” any such video-described programming. Most of the new rules are currently in effect, and full compliance with video description will be required beginning July 1, 2012.

Read further details about the FCC’s video description rules here.

White Spaces

Last year, the FCC affirmed its rules allowing the deployment of unlicensed devices on unoccupied frequencies within the television spectrum bands, also known as the “TV white spaces.” It is generally anticipated that unlicensed devices operating in the TV white spaces will be used to provide services for consumers and businesses including broadband communications. The unlicensed devices, which may operate on either a fixed or mobile basis, will seek to take advantage of the television spectrum’s superior propagation characteristics.

In order to identify suitable vacant channels on which to operate without causing harmful interference to incumbent licensed television stations and other users, the unlicensed devices must include geo-location capability and the ability to access a database via the Internet. The FCC has started the process of reviewing and authorizing third-parties to manage such interference databases, and that process will continue in 2012.

The first white spaces devices are now starting to be introduced to the market, with more likely to follow this year as new equipment becomes certified and more database managers are approved by the Commission.

Find more information about the TV white spaces here.