What’s Happening In Washington

With so many regulatory issues to follow, how are TV broadcasters 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 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:

CALM Act Implementation

As of Dec. 13, 2012, absent a waiver all TV stations and MVPDs must be in compliance with FCC CALM Act rules designed to keep the volume of commercials at the same level as their accompanying programming. The FCC has essentially allowed stations to comply by adopting a protocol set out by the Advanced Television Standards Committee.

A summary of CALM Act obligations can be found on the Broadcast Law Blog, here.

Class A TV

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, produced and aired the amount of local programming required for Class A stations, or otherwise complied with the rules applicable to full-power TV stations. Class A stations that do not meet these obligations and are reclassified by the FCC as LPTV stations may be in jeopardy of losing their interference protections and being displaced in the FCC’s likely spectrum repacking in preparation for selling some of the TV spectrum to wireless broadband users.

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

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

Closed Captioning

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

That standard is significantly higher than the review initially applied to these particular programming providers. Parties whose waivers were rescinded had 90 days to seek new waivers and many such waiver requests were filed in 2012. The FCC has begun reviewing the captioning waivers and issuing public notices soliciting comments. Consumer groups have actively opposed the waiver requests. So far the commission has dismissed some requests as deficient, and sought additional information from others. The FCC’s review of these waiver requests will continue into 2013.

IP Captioning — In January 2012, 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 enacted by Congress and signed into law by the president in 2010 to improve the accessibility of media and communications services and devices.

The IP captioning rules became effective in 2012 and will be phased in over time. Currently, all nonexempt full-length prerecorded video programming that is not edited for Internet distribution and is delivered using Internet protocol must be provided with closed captions, if the programming was published or exhibited on television in the United States with captions on or after Sept. 30, 2012. This requirement governs 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.

Similar requirements for live and “near-live” programming apply beginning March 30, 2013. (Near-live is defined as any programming performed and recorded less than 24 hours before being shown on TV for the first time). Finally, recorded programming that is substantially edited for the Internet must be captioned if it is shown on TV with captions on or after Sept. 30, 2013.

The rules also impose new requirements on manufacturers of equipment (such as set-top boxes, PCs, smartphones DVD players, Blu-ray and tablets) designed to receive or play back video programming transmitted simultaneously with sound and integrated software. Consumer-generated media — defined as content created and made available by consumers to websites and services on the Internet, including video, audio and multimedia content — are exempt from the captioning rules. Similarly, brief video clips and outtakes (including excerpts of full-length programming) are also exempt, unless “substantially all” of a full-length program is available via IP in multiple segments.

EEO Rules

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

The FCC issued fines in 2012 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 (such as newspaper publication or notices to community organizations) must also be used to announce job openings.

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

Emergency Information

On Nov. 19, 2012, the FCC released a Notice of Proposed Rulemaking (NPRM) proposing to implement the requirements of the 21st Century Communications and Video Accessibility Act (“CVAA”) that emergency information be made accessible to individuals who are blind or visually impaired.  One proposal includes requiring the use of a secondary audio stream to provide emergency information aurally that is conveyed visually during programming other than newscasts.  In addition, the FCC is examining how to ensure that TVs and other screens are able to make available video description and emergency information accessible to individuals who are blind or visually impaired.  The FCC has until April 9, 2013 to complete the proceeding on access to emergency information, and until Oct. 9, 2013, to complete receiver requirements.

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

For information about other concerns for stations delivering emergency information, see our article here about FCC warnings to TV stations in the path of Hurricane Isaac, reminding them of their obligation to provide visual as well as audio information about imminent threats to assist the hearing-impaired during emergencies.

Indecency

Last June, the Supreme Court ruled that the FCC had not given adequate notice of a change in its indecency rules before issuing fines for fleeting expletives.  While that decision threw out the fines issued to two networks and their affiliates for the Billboard Music Awards and an episode of NYPD Blue, it did little to clarify the FCC’s indecency enforcement regime. With hundreds of radio and television station renewals held up because of indecency complaints, and many sales delayed by these complaints, and with more likely to be put into limbo as the renewal process described below continues, the commission needs to address the uncertainty that exists in the enforcement of its indecency policy. Nothing specific seems to be on the commission’s calendar for the first part of this year, but look for some action later in 2013. 

License Renewals

Television stations (including LPTV stations, TV translators and Class A stations) began the renewal process in 2012. Renewal applications for TV stations in Arkansas, Louisiana and Mississippi are due on Feb. 1 and in Tennessee, Kentucky and Indiana on June 1.

Radio license renewals continue with stations in the Midwest moving through the process, including radio stations in Kansas, Oklahoma and Nebraska, which have renewal applications due on Feb. 1. Radio stations in Texas are next with renewal applications due on June 1.

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

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

LPTV Stations and TV Translators

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

See our summary of these requirements here.

Must Carry and Retransmission Consent

In 2011, the FCC issued a Notice of Proposed Rulemaking seeking comments on whether its must carry-retransmission consent regime should be modified. The NPRM was driven in part by complaints by certain members of Congress expressing concern when channels are blacked out on MVPDs (multichannel video programming distributors) during the course of retransmission consent negotiations. Both Congress and the FCC may be considering these issues further in 2013.

Online Public Inspection File

Effective Aug. 2, 2012, all TV stations are required to maintain an online public inspection file on an FCC-hosted website. The FCC is responsible for adding electronically-filed forms to the online public files, but licensees are required to upload many new public file materials as of Aug. 2, 2012. For example, TV stations in Arkansas, Louisiana and Mississippi must manually upload their annual EEO public inspection file reports to their online public files by Feb. 1. Similarly, all TV stations must uploaded their quarterly issues/programs lists and children’s commercial limit certifications by Jan. 10 (the FCC will be responsible for adding the FCC Form 398 filings to each TV station’s online public file).

By Feb. 4, all pre-Aug. 2, 2012, materials in a TV station’s paper public inspection must be uploaded to the station’s online public file, with two exceptions:

• Letters and e-mails from the public should not be posted online for privacy reasons.
• Political file materials for stations that are not in a top-50 market and/or are not affiliated with ABC, CBS, Fox or NBC do not need to be uploaded, but instead can remain in the station’s paper public file until July 1, 2014.  For top-4, top-50 market stations, all pre-Aug. 2, 2012, political file material can also remain in the paper file.

Although much of the political season is now behind us, affiliates of those four networks in the top 50 markets should continue uploading any new political file documents to the online public file for their station.

See a summary of the online public file obligations 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. The issues set out in the FCC’s NPRM include proposed liberalization of the restrictions on the crossownership of broadcast stations and newspapers, 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 one TV station in a market unless there are at least eight independent marketplace TV station owners after any proposed combination.

In its NPRM, the FCC did ask whether waivers of any 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. To that end, in December, the FCC gave interested parties a limited window of time to specifically address how any of the proposed changes in the rules would affect minority ownership of broadcast properties.  The deadline for reply comments on that question was January 4.  See our summary of the request for comments, here. 

A decision had been expected in late 2012, but the call for comments on minority ownership has pushed that decision back.  It may well be released in the first quarter of 2013, but if history is any guide, most of these issues will end up again in court.

See our summary of the issues raised in the NPRM here.

Ownership Reports

The FCC currently requires all commercial broadcasters, including all television stations and LPTV licensees, to file a biennial ownership report on an established date once every two years.  The last set of ownership reports were filed in late 2011, with the next set due by Nov. 1, 2013, reporting on all licensees’ ownership as of Oct. 1. The FCC last week issued a Notice of Proposed Rulemaking asking several questions about these reports.

Among the issues raised is whether it should require that every individual with an attributable interest in any station (and perhaps certain nonattributable owners) to get a unique FRN — a unique identifier for the FCC’s electronic systems. This would require that the attributable owner provide to the FCC its Taxpayer Identification Number (for an entity) or his or her Social Security Number (for an individual).

The proposal also suggests changing the due date for the report to Dec. 1 (while retaining the Oct. 1 date as the “snapshot” date for the information contained in the reports). Comments on these proposals will be due 30 days after this NPRM is published in the Federal Register, which should be very soon. 

Political Broadcasting

While many stations may be breathing a sigh of relief that last November’s election has come and gone, for stations in many states 2013 will again trigger political obligations. There are governor’s races in Virginia and New Jersey, mayoral races in a number of major cities including New York and Los Angeles, and vacant seats in a number of congressional districts — including several Senate seats — where special elections will be necessary. Many other jurisdictions have elections for local offices.

In these off-year elections, broadcasters need to remember that, 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 you don’t have to sell to candidates for governor or mayor, but once you do, equal opportunities, no censorship and lowest unit charges apply in the same way that they do to federal candidates. 

With state and local races in the forefront, stations also need to be careful about on-air employees who decide to run for some local office, as their on-air appearances will trigger Equal Opportunities rights for their opponents. See our story about a recent case of a radio sportscaster who decided to run for mayor and the issue that it raised under the political broadcasting rules, here. 

In some of the races to fill congressional vacancies, and perhaps in connection with some of the more contentious state and local 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 refresher on reasonable access here: 

An article on the issues of potential liability for third party ads can be found here.

Public Interest Programming Disclosure

Last year, 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.

A summary of the FCC’s proposals is here.

Spectrum Reallocation/Repacking

In 2012, a new federal law was enacted to permit the FCC to conduct an incentive auction to clear parts of the TV band for wireless broadband uses. The incentive auction is actually two auctions: in the “reverse auction,” TV stations may voluntarily participate in one of three ways, and share in auction revenues:

• By agreeing to give up all 6 MHz of spectrum and exiting the business.By channel sharing with another station in the market, giving up one 6 MHz channel but retaining must-carry rights for both program streams carried on the shared channel.
• By agreeing to give up its 6 MHz of UHF spectrum in exchange for 6 MHz of VHF spectrum. The second auction will be the “forward auction” which will take the spectrum relinquished by broadcasters in the reverse auction and sell it off to mobile broadband licensees.

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

In September 2012, the FCC began a rulemaking to implement the law, seeking comment on reverse auction and forward auction procedures, and on the specifics of TV band repacking. The FCC is seeking comment on a number of issues, including reverse auction eligibility and whether to expand eligibility beyond the three options identified in the Spectrum Act, such as by agreeing to accept additional interference. Initial comments are due Jan. 25 with reply comments due March 12.

On repacking, the FCC indicates that remaining TV stations post-auction will occupy a smaller portion of the UHF band, and the FCC is asking for public input on how it can do so while also implementing the statutory mandate to make “all reasonable efforts” to preserve broadcasters’ coverage. The NPRM also seeks comment on how to address the possible displacement of low-power stations.

Because broadcaster participation in the reverse auction is unknown, the FCC will not know in advance the specific frequencies that will be available in the forward auction, and perhaps also will not know the geographic location of those frequencies. As a result, the FCC is seeking comments on how to make the forward auction framework flexible enough to account for these variables.

The FCC proposes the following post-auction band plan, and seeks comment on it as well as alternative band plans and license block sizes: 5 MHz blocks for flexible use licenses, with the uplink band beginning at ch. 51 (698 MHz) and expanding downward toward ch. 37 based on the amount of reclaimed spectrum. The downlink band would begin at ch. 36 (608 MHz) and likewise expand downward. Guard bands of 6 MHz would be created between mobile broadband use and broadcast use, and the guard bands would be available for unlicensed use. (See “White Spaces,” below).

The release of this NPRM will initiate a lengthy proceeding to examine the complex details and procedures for this first-of-its-kind incentive auction. The FCC has indicated that it anticipates having auction rules in place in 2013, with a view to holding the incentive auction in 2014.

A summary of the statutory provisions governing the incentive auction process is available 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.

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.

Tower and Antenna Issues

Following several years of consideration, in December 2011, the FCC adopted interim Environmental Assessment (EA) rules governing the review and registration of broadcast and communications towers, with a view to protecting migratory birds. Under the interim procedure, an EA will be required along with the Antenna Study Registration for any proposed new tower over 450 feet in height above ground level; for replacement or modification of an existing tower over 450 feet in height that involves a substantial increase in size; or for certain delineated changes in lighting to a tower over 450 feet tall. This new process went into effect on June 18,  2012.

In March, the Wireless Telecommunications Bureau (WTB) released a Final Programmatic Environmental Assessment (PEA) that evaluates the potential environmental effects of the FCC’s Antenna Structure Registration (ASR) program. The Final PEA contains several proposed procedural alternatives for addressing environmental effects, and considers whether a more extensive analysis, in the form of a programmatic Environmental Impact Statement, may be required under the National Environmental Policy Act (NEPA).

The PEA stated that the next step will be for the FCC to institute a further notice of proposed rulemaking (FNPRM) to invite comment on what actions the FCC should take to comply with NEPA in light of the analysis in the Final PEA.  Ultimately the full Commission must decide whether to keep the Interim ASR Rules intact or whether one of the alternative proposals (or some other proposal) would be more appropriate.  At the conclusion of the rulemaking, based on the record that is developed, the commission will either issue a Finding of No Significant Impact (FONSI) or implement additional environmental processing. The timing of the FNPRM is uncertain and in the meantime the regulatory environment for the construction and modification of towers remains challenging

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.

Under the reinstated rules, top-four affiliates in the top 25 markets, and multichannel video programming distributor systems (MVPDs) with more than 50,000 subscribers, must provide approximately four hours per week (for a total of 50 hours per quarter) of video-described primetime and/or children’s programming. The 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 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.

White Spaces/Unlicensed Devices

In December 2012, the FCC announced that it has authorized approved TV white space database systems to provide service in New York, New Jersey, Pennsylvania, Delaware, Maryland, Washington DC, Virginia, and North Carolina. This announcement followed the launch of the FCC’s on-line registration system in those jurisdictions for unlicensed wireless microphones and other low power auxiliary devices.  The FCC anticipates authorizing nationwide operations of TV white space databases by mid-January 2013. 

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

As part of the spectrum act rulemaking (see above), the FCC is proposing dedicated unlicensed bands of 6 MHz each to separate mobile broadband uses from the post-auction TV bands. The rulemaking indicates that TV white space uses will still be permitted in the TV bands after the incentive auction, subject to the effects of repacking which likely means more limited white spaces between TV stations. The rulemaking also for the first time to allow unlicensed use on ch. 37, which has traditionally been reserved for radio astronomy and medical telemetry devices, and on two channels used by wireless microphone operators.