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April 2012
Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • The FCC’s $10,000 fines for items missing from the public inspection file continue
  • License cancellation no obstacle to FCC proposing $18,000 fine against former broadcaster

FCC Again Issues $10,000 Fines for Public Inspection File Violations

As we have reported on numerous occasions, $10,000 has become the standard fine for even minor public inspection file violations. That proved true again this month, with the FCC issuing a number of $10,000 fines for failure to include all Quarterly Issues/Programs Lists in a station’s public inspection file.

The FCC’s public inspection file requirements are found at Sections 73.3526 (commercial stations) and 73.3527 (noncommercial stations) of the FCC’s Rules. They require broadcast licensees to maintain particular information in their files, including the Quarterly Issues/Programs Lists, and to update the material in the file regularly throughout the license term.

In one decision, the FCC assessed a $10,000 fine against a noncommercial radio station in Louisiana for excluding twenty-four Quarterly Issues/Programs Lists (six years’ worth) from its file over a seven-year period. The licensee had disclosed the problem in its license renewal application. In a second decision, the FCC fined a South Carolina commercial radio station $10,000 for ten absent Quarterly Issues/Programs Lists over a four-year period. Like the first case, the fact that the documents were missing from the file was disclosed in the station’s license renewal application. The station belatedly placed the missing documents in the file when it filed its license renewal application.

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To follow up on my post from last week regarding the FCC’s open meeting on implementing its proposals to require online posting of TV station public inspection files, including the political file, the FCC today voted to require television broadcasters to post their entire public inspection files online. FCC Commissioner McDowell dissented regarding the requirement that TV stations’ political files be included online.

According to statements made in the FCC’s meeting today, all TV stations will have six months to move their public inspection files online. The FCC has agreed to host TV public inspection files on its own website. With respect to the political file, online posting will be a “phased in” process. Stations affiliated with the top-four national networks in the top-50 Nielsen markets will be required to begin placing their political files online, with all other TV stations to follow on July 1, 2014. The FCC also indicated that it plans to issue a Public Notice in a year to evaluate the effectiveness of the process.

In adopting its Order, the FCC rejected a compromise proposal advanced last Friday by the National Association of Broadcasters, the ABC, CBS, NBC, Fox, and Univision networks, State Broadcasters Associations, as well as various television station groups. The compromise proposal would have permitted TV stations to provide summary information online, including the total amount of an advertising buy and the total amount of money a candidate has spent at that station on ads during a particular election window. The compromise proposal would have kept commercially-sensitive per unit rate information out of the online public file, while still including this information in the hard copy of the political file for candidates to inspect regarding lowest unit rate and other political advertising requirements.

Much more on these issues to follow, including further specifics on the details of the FCC’s Order in this proceeding.

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As many of you know by now, very few topics were hotter during the NAB Show in Las Vegas this week than the FCC’s looming April 27 public meeting vote to decide how to implement its proposals to require online posting of TV station public inspection files. As Laurie Lynch Flick reported previously here, the FCC is proposing to require television broadcasters to replace their existing locally-maintained public inspection files with digital public inspection files to be maintained online, including stations’ political records. The online public file has broadcasters concerned because creating and maintaining a centralized online public file substantially increases their public inspection file burdens, while the political portion of the file contains sensitive competitive and pricing information that broadcasters would prefer not be made available to competitors online on a near real-time basis.

The proposals have proven to be so controversial that earlier today the National Association of Broadcasters (NAB) filed a request with the FCC to grant a two business day delay of the commencement of the “sunshine period” in the FCC’s online public file proceeding. For those who are not familiar with the “sunshine period” requirement, the term refers to the week before one of the Commission’s monthly public business meetings (known as “open meetings”) during which time all contacts with Commission staff concerning the matters to be decided at the meeting are prohibited, until such time as the text of the Commission’s decision is publicly released. The sunshine period for the online file proceeding is scheduled to commence today, and the NAB is asking the FCC to delay the effective date until next Tuesday, April 24, in order to allow interested parties to continue to discuss the FCC’s proposals with FCC staff members.

To make matters even more interesting, yesterday a media placement company asked the FCC to refrain from going forward at the April 27 meeting with any requirements regarding placing political files online.

The precise details of the FCC’s online public file requirements, including those for the political file, aren’t likely to be released until the FCC’s April 27 monthly meeting. However, during discussions at the NAB Show, FCC staff informed broadcasters that the FCC’s Order is expected to, at a minimum, require online posting of public inspection files by all television stations this year, with the posting of the online political file portion of the public file to be phased in, initially applying to network-affiliated stations in the top 50 markets. All other television stations would be required to move their political files online within the next two years.

Regardless of the precise approach taken by the FCC for putting political file information online, stations would be wise to ensure that their current political file is complete and that their political sales practices comply with the numerous legal requirements. Moving a poorly kept political file online is an invitation to trouble.

A good place to start for ensuring your political file compliance is with our Political Broadcasting Advisory, which is regularly updated and is a comprehensive guide for broadcasters to use to help them comply with the FCC’s political broadcasting rules, including the political file requirements. The time to fix any public file/political file and political sales problems is now, before the data has to be posted on the Internet.

As the details of the Order the FCC is expected to release on April 27 leak out, the FCC continues to revise its positions and there may be a few more twists and turns before we are done. The FCC has moved this item to the front burner of its agenda about as fast as any in recent memory. What makes it more of an immediate concern for TV broadcasters is that the item will be released just prior to the time TV stations are preparing for what is expected to be the most expensive presidential campaign advertising blitz on record.

As the online public file/political file debate rages on, there can be no doubt we will have plenty more to discuss regarding these issues in the coming days and weeks ahead.

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It’s that time of year. Broadcasters, brokers, bankers, and broadcast lawyers hop on the proverbial bus and head to Las Vegas to seek their fortunes. In contrast to the last few recessionary years, during which the crowds were thinner and many attendees had the glassy-eyed look of disaster survivors, indications are that 2012 will mark the return of the dealmaking, equipment buying, and venture launching that animate the industry. More broadly, cautious optimism about the state of the industry and the economy seems to be giving way to genuine enthusiasm about moving forward. It is a welcome sight.

Attending the show this year to help that process along are eight of our communications attorneys, including myself, Dick Zaragoza, Cliff Harrington, Lauren Lynch Flick, Miles Mason, Paul Cicelski, Lauren Birzon, and our newest addition, partner Lew Paper.

If you see us at the show, say hello, or better yet, buy us a drink and we’ll regale you with tales of great legal battles (buy us two drinks, and we promise not to talk about law at all!). You can reach us by email at the Show by clicking on the name links above. They will take you to our respective bios at Pillsbury where you can find our email addresses.

For those of you headed to the Show, we look forward to seeing you there. For those who aren’t going, we hope to see you there next year.

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A panel of the United States Court of Appeals for the Ninth Circuit in San Francisco today ruled, in a 2 – 1 decision, that the long-standing prohibition on the carriage of paid political and issue advertising by noncommercial television and radio stations is unconstitutional and may no longer be enforced by the FCC.

The majority opinion in Minority Television Project Inc v. FCC was authored by Judge Carlos Bea, a George W. Bush appointee, and joined in by Judge John Noonen, a Reagan appointee; Judge Richard Paez, a Clinton appointee, wrote a dissenting opinion. The case arose when Minority Television Project, licensee of noncommercial television station KMTP-TV was fined $10,000 by the FCC for violating the prohibition in Section 399B of the Communications Act against noncommercial stations carrying paid advertising for commercial entities. According to the FCC, KMTP-TV had carried over 1,900 advertisements for entities such as State Farm, Chevrolet and Asiana Airlines in the period from 1999-2002. Minority Television Project paid the fine, but filed suit in District Court for reimbursement of the fine and declaratory relief. After its arguments were rejected by the District Court, Minority Television Project brought this appeal.

The Court of Appeals focused on whether the statutory prohibitions on paid advertising in Section 399B are consistent with the U.S. Constitution. It concluded that the statute contains content-related restrictions that must be reviewed under the standard of “intermediate scrutiny,” which provides that the government must show that the statute “promotes a substantial governmental interest” and “does not burden substantially more speech than necessary to further that interest.”

The Court found that the prohibition on broadcasting paid commercial advertising on behalf of for-profit entities, the primary focus of Minority Television Project’s appeal, was narrowly tailored and promotes the substantial governmental goal of preventing the commercialization of educational television. As a result, the fine imposed on Minority Television Project was upheld. However, the Court went on to address the prohibition on carriage of paid candidate and paid issue advertising by noncommercial stations. It found no legitimate governmental goal underlying that prohibition. The Court reviewed the Congressional record developed when the prohibition on political and issue advertising was adopted, and failed to find any evidence to support the provision. It therefore held that aspect of the law to be unconstitutional.

The decision leaves open many important questions as to how to implement it. For example, the questions of whether or how the lowest unit charge provision of Section 315 of the Communications Act will apply to noncommercial stations are not addressed. Similarly, the Decision does not consider whether federal candidates will be entitled to
“reasonable access” rights on noncommercial stations, permitting federal candidates to buy advertising on noncommercial stations that do not want to accept political advertising. While the reasonable access provision of the Communications Act appears to exempt noncommercial educational stations from that requirement, it is a content-related law, and therefore raises questions as to whether the disparate treatment of commercial and noncommercial stations for this purpose is constitutional. Other practical questions, such as the application of equal opportunities rights, political file obligations, and the like will also have to be resolved if this decision is implemented. More broadly, if the decision stands, it could have a fundamental impact on the nature and funding of noncommercial broadcasting.

The Ninth Circuit’s decision only applies to states located within the jurisdiction of that Court (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington). The FCC and the Justice Department may seek review by the entire Ninth Circuit, sitting en banc, or seek review by the U.S. Supreme Court. As that drama plays out during an active political season, a lot of noncommercial stations will be scratching their heads trying to figure out what they can, can’t, and must do in light of the decision. Conversely, a lot of commercial stations aren’t going to be happy if they find that their political advertising revenues are being diverted to noncommercial stations. One thing is certain–if upheld, the implications of this decision for both noncommercial and commercial stations will be far reaching.

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Late last month I wrote about a strange occurrence at a number of TV stations that were visited by FCC inspectors demanding that the station make a copy of its entire public inspection file in 24-48 hours and provide that copy to the FCC.

I commented at the time that this highly unusual event was more likely connected to the FCC’s pending proceeding to move the public inspection file online than to any enforcement action, noting that “while this would seem bizarre any place outside of Washington (well, it’s bizarre here too, but you get used to that after a while), the FCC has been on the receiving end of numerous comments and declarations from broadcasters noting how large the public inspection file has become, and how burdensome and time-consuming it would be to require stations to scan the entire contents of it for the sake of posting it online.” It therefore seemed likely that the FCC was not so much interested in the substance of each station’s public file as in determining the sheer size of those files. Regardless, stations with the misfortune of being on the receiving end of these requests had to absorb the overtime and copying costs involved to comply.

Since that time, the FCC has scheduled a vote at its April 27 meeting to require that the public file, including the political file portion of it, be posted online. The timing of the planned vote is not a good sign for broadcasters, as it is a long-standing FCC tradition to schedule votes on orders that are favorable to broadcasters so that they can be released just before the NAB Show, ensuring that FCC commissioners speaking at the NAB Show will receive a warm reception. Conversely, FCC orders that broadcasters are not going to be happy about tend to be delayed until after the NAB Show concludes. With the FCC’s scheduled vote coming the week after the NAB Show, it should surprise no one that the FCC appears ready to adopt an order requiring that public files (including the political file) be moved online.

On the good news side, the FCC appears to be dropping its proposals to require that certain inter-station agreements and sponsorship identification lists be added to the file, either because broadcasters’ complaints about those proposals were heard, or because the FCC saw them as unnecessary judicial baggage in an order that it would like to see implemented quickly.

Returning, however, to the mystery of why the FCC was demanding copies of stations’ public files, the last document placed in the FCC’s record in the online public file proceeding this past Friday (just before the holiday weekend) is illuminating. It is a one-page “Submission for the Record” from the Media Bureau noting that “[t]he Commission requested a copy of the public file from all broadcast stations in the Baltimore DMA in March of 2012, received the documents either on paper or electronically, and subsequently reviewed each file, counting the total number of pages in the following categories….” The Submission then notes the total number of pages in each file (with the award for the largest file going to WJZ-TV, at 8,222 pages), and breaks out the number of pages in the categories of Political File, letters/emails from the public, documents currently available online at the FCC, and documents the FCC found extraneous to the file. This certainly appears to confirm that the FCC’s goal in demanding that stations rapidly provide a copy of their entire public file was merely to determine the quantity, and not the quality, of those files. By placing that information in the public record, the FCC can now rely on it in its decision to implement an online public file requirement (although how it supports that result is still unclear).

While one can question the burden placed on individual stations merely to determine the number of pages in a public inspection file (which is information that is already in the record, having been submitted in numerous broadcasters’ comments), once that information has been gathered, it is fair for the FCC to make use of it by placing it in the record. What is curious, however, is the effort the FCC appears to have expended to do so as quietly as possible. In addition to it being dropped into the record right before the holiday weekend, the Submission itself is an unusual document. It is not on letterhead, it is not dated, and it is not signed. If it were not for the fact that the FCC’s filing system indicates it was submitted by the Media Bureau, you might well wonder where it came from. There may, however, be a reason for this.

When the FCC moved its public comment system online, the FCC and communications lawyers quickly found that the number of one-page submissions from the public stating a position but providing no supporting rationale exploded exponentially. The result was that it became difficult to locate the more substantive comments filed in a proceeding, as they were lost among hundreds or thousands of short “me too” submissions. To the FCC’s eternal credit, it modified its comment search filter so that you can exclude “Brief Comments” from your search, allowing you to focus on the more substantial comments filed. Parties actively following a proceeding therefore tend to use this option and exclude “Brief Comments” when checking the record.

By eliminating all extraneous information, the FCC was able to keep its Submission down to one page in length, and as it turns out, the system’s definition of a Brief Comment is one that is one page long, meaning that those using the search filter will not see it. That may well be nothing more than a coincidence, but it would at least explain the unusually brief and cryptic nature of the FCC’s Submission. But if that is the case, we have just traded one mystery for another–having gone to such lengths to gather this information, why is the FCC being so shy about having found it?

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The clock is ticking away the minutes until December 13, the effective date of the FCC’s new Commercial Advertisement Loudness Mitigation Act (CALM Act) rules. TV broadcasters and multichannel video programming distributors (MVPDs) attending the upcoming NAB Show in Las Vegas will be looking for the equipment necessary to meet the CALM Act requirements, and they will have plenty to see and do. According to the NAB’s agenda for the Vegas Show, there will be seminars led by equipment manufacturers discussing the CALM Act and dozens of vendors and manufacturers on hand to showcase their CALM Act monitoring, processing, and verification equipment at the Las Vegas Convention Center during the event.

The reason CALM Act compliance and equipment are likely to be “big in Vegas” this year is because, as you may recall, last December the FCC adopted rules for the implementation of the CALM Act which require TV stations and MVPDs to keep the volume of commercials at the same level as the accompanying programming. The FCC’s new rules incorporate the Advanced Television Systems Committee’s (ATSC) Recommended Practice (RP), which essentially allows broadcast stations and MVPDs to comply with the rules by meeting the requirements of the ATSC protocol (known as the A/85 RP). Stations and MVPDs must be in compliance with the A/85 RP and the FCC’s rules by December 13, 2012.

The CALM Act arises from decades of complaints to the FCC and Congress regarding excessively loud commercials. In fact, according to the FCC’s Notice of Proposed Rulemaking in the CALM Act proceeding, loud commercials “have been a leading source of complaints to the Commission since the FCC Consumer Call Center began reporting the top consumer complaints in 2002.” The subsequent rules adopted by the FCC are therefore designed to limit the volume of commercials transmitted to consumers and apply to advertisements locally inserted by television stations and MVPDs as well as to advertisements embedded in programs from third-party suppliers.

For locally inserted commercials, TV stations and MVPDs will be required to demonstrate that they have installed the necessary equipment to ensure compliance. The FCC will assume that a broadcast station or MVPD is in compliance if it has installed, uses, and maintains equipment that complies with the A/85 RP. For advertisements already embedded in programming received from third parties, networks and other program suppliers must certify that their programming is in compliance with the CALM Act.

The FCC’s rules establish a “safe harbor” for embedded advertisements received from suppliers. To use the safe harbor, TV stations and MVPDs are allowed to rely on certifications of compliance from their program supplier which certify that the programming is A/85 RP-compliant. For programming that has not been certified, “large” TV stations (i.e., those stations with more than $14 million in annual revenue) and “very large” MVPDs (i.e., those with over 10 million subscribers) may still transmit the third-party programming, but will be required to perform annual “spot checks” of 100 percent of the third-party programming they transmit. “Large” MVPDs (i.e., those with at least 400,000 subscribers nationally) will need to annually spot check 50 percent (chosen at random) of the noncertified channels carried by any system operated by the MVPD. The spot check requirements will phase out after two years. Small stations and cable systems do not need to conduct any spot checks to be in the safe harbor.
While many broadcasters and MVPDs won’t be at the NAB Show to attend “loudness legislation” seminars or to acquire the hardware and software tools needed to comply with the FCC’s CALM Act rules, all TV broadcasters and MVPDs need to make sure that they are familiar with the rules and understand their CALM Act obligations. Even though the CALM Act has been passed by Congress and is being implemented by the FCC, there is little doubt that the FCC will continue to hear complaints from consumers regarding loud commercials for the foreseeable future. The difference is that the FCC now has an enforcement mechanism to address those complaints.

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