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I wrote last week about the FCC’s announcement that broadcasters must certify in their license renewal applications that their advertising contracts have, since March 14, 2011, had a nondiscrimination clause in them. Specifically, broadcasters must certify that their “advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.” The good news from last week’s announcement was that the FCC chose to apply the advertising nondiscrimination certification (which was originally announced in 2008), prospectively, rather than announcing that stations would have to certify their contracts included such language since 2008 or 2009.

That was the good news, and what government giveth with one hand, it can taketh away with the other. Today the FCC released an FCC Enforcement Advisory and News Release emphasizing how seriously it intends to treat that certification. The FCC’s Advisory states that broadcasters unable to make that certification will need to “attach an exhibit identifying the persons and matters involved and explaining why the noncompliance is not an impediment to a grant of the station’s license renewal application.”

The Advisory goes on to state that “Licensees must have a good faith basis for an affirmative certification” and notes that “a licensee that uses a third party to arrange advertising sales is responsible for exercising due diligence to ensure that the advertising agreement contains the nondiscrimination clause and does not discriminate on the basis of race or ethnicity.”

Lawyers are perhaps unique in their ability to acknowledge the validity of a legal requirement while still questioning the logic of it. Make no mistake–this new certification is the law and broadcasters need to make sure that they can truthfully make this certification at license renewal time. The goal itself is admirable. Indeed, as Univision’s Washington counsel during the time that it grew from only seven TV stations to 162 TV and radio stations, I saw first hand the challenges of persuading advertisers (and others) that Spanish-language viewers and listeners are an important group of consumers worthy of advertisers’ dollars.

However, as I noted in last week’s post, trying to use the FCC’s authority over broadcasters as a method to modify the conduct of advertisers (who are generally beyond the FCC’s authority) is a futile approach. Advertisers aren’t too worried about a broadcaster’s license renewal. As a result, the only one to be hurt here is the broadcaster, not the discriminatory advertiser.

The FCC can counter that preventing broadcasters from accepting ads of discriminatory advertisers ensures such advertisers will cease their discriminatory ad practices if they want air time. This assertion suffers, however, from two debilitating flaws. First, if the current FCC’s view is accurate that broadband,and not broadcasting, is the way of the future, then there will be plenty of non-broadcast venues for advertisers wishing to engage in discriminatory ad buys. Indeed, the FCC’s certification will not even prevent the same advertiser from making discriminatory ad buys in non-broadcast media while avoiding such discrimination on the broadcast side.

That brings us, however, to the bigger flaw in this approach, and that is the simple fact that clauses in a contract can generally only be enforced by the parties to that contract. As a result, a broadcaster can place the required nondiscrimination clause in its contract, and if the advertiser proceeds to purchase ads in a discriminatory manner (e.g., splitting its ad buying money among all of the broadcaster’s local radio stations except the one with the Spanish-language format), the FCC can’t really do anything about it. The only party in a position to enforce the nondiscrimination clause in the contract is the broadcaster, who will understandably be hesitant to spend precious resources suing an advertiser. There is no financial incentive to spend money on litigation, and there is obviously a huge disincentive for the broadcaster to sue a revenue source that can readily take its advertising dollars elsewhere (and who won’t care what happens to the broadcaster’s license renewal application).

Even today’s FCC Enforcement Advisory seems to overlook this, asserting that “a broadcaster that learns of a violation of a nondiscrimination clause while its license renewal application is pending should update its license renewal application so that it continues to be accurate.” However, whether an advertiser has proceeded to engage in discriminatory ad buying practices in violation of the contractual nondiscrimination clause would not necessarily affect the accuracy of the broadcaster’s certification that its “advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.” The broadcaster could certainly volunteer to the FCC that it had discovered an advertiser discriminating, but the FCC has no authority to punish the advertiser, and punishing the broadcaster who uncovered the advertiser’s discriminatory efforts doesn’t make much sense. As a result, the new certification adds to the regulatory thicket surrounding broadcasters, but leaves discriminatory advertisers free to roam.

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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:

  • Florida FM Translator Fined $13,000 for Unauthorized Operations
  • Latest Public Inspection File Violation Nets Upwardly Adjusted Fine
  • Failure to Monitor Inactive Tower Results in $6,000 Penalty

Failure to Operate as Authorized Costs Florida Broadcaster an Additional $4,000

A recent FCC Notice of Apparent Liability (“NAL”) for $13,000 against a Florida broadcaster serves as a costly reminder that stations must operate in accordance with the FCC’s Rules, and more notably, as specifically authorized in their station license. According to the NAL, the Florida broadcaster failed to heed a verbal warning from Tampa field agents that its station was operating beyond the technical parameters of its authorization. The NAL stated that the Tampa field agents, pursuant to an investigation and following two complaints, took field strength measurements on five separate occasions and visited the station’s transmitter site on two separate occasions over approximately 11 months between October 2009 and September 2010. Field measurements undertaken in October 2009 and early February 2010 indicated that the station was operating with a power level well in excess of its authorization in violation of Section 74.1235(e) of the FCC’s Rules, which states, “[i]n no event shall a station authorized under this subpart be operated with a transmitter power output (TPO) in excess of the transmitter certificated rating and the TPO shall not be more than 105 percent of the authorized TPO.”

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ local public inspection files by April 10, 2011, reflecting information for the months of January, February and March, 2011.

Content of the Quarterly List

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station. The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.

To demonstrate a station’s compliance with this public interest obligation, the FCC requires a station to maintain, and place in the public inspection file, a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.

Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations. The lists also provide important support for the certification of Class A station compliance discussed below.

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Pity the post office. Even its federal brethren have abandoned it. Today the FCC announced that, with the beginning of the broadcast license renewal cycle fast approaching, it will not be sending its traditional postcard reminders to broadcast licensees. It did say, however, that it would email reminders to broadcasters for which it has email addresses in an effort to minimize the number of enforcement actions it will need to take against those failing to file on time. The base fine for a late-filed renewal is $3,000, but because most stations that miss the filing deadline have their license expire before they realize their mistake, an additional $4,000 fine for unauthorized operation (for a total of $7,000 per station) is nearly automatic.

While those of us following the FCC’s enforcement actions have noticed a fairly dramatic upward trend in the size of FCC fines (noted in an earlier post), the Media Bureau is to be commended for taking steps to assist broadcasters in meeting their filing obligations rather than just fining those that don’t.

To accomplish this, the FCC today released a Public Notice announcing the availability of its new license renewal form, discussing the changes found in it, and providing a link to the state-by-state schedule of license renewal deadlines. The idea is to make the information readily available to broadcasters, though not by way of their mailboxes. Make no mistake, however, as the Public Notice reminds us, that broadcasters are responsible for meeting their own filing deadlines, and cannot defend a failure to timely file by claiming that the FCC didn’t remind them.

More importantly, the Public Notice is not just a procedural announcement. The FCC took the opportunity to address a critical question regarding its new requirement that license renewal applicants certify that their “advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.” This new certification was adopted as a way of preventing advertisers and ad agencies from engaging in “no urban/no Spanish” ad placement practices. In creating the certification requirement, the FCC once again used its authority over broadcasters to force a change in the conduct of those for which the FCC lacks jurisdiction (in this case, advertisers).

In an early February post, our own Dick Zaragoza raised a number of issues that broadcast license renewal applicants need to consider before making this new certification. An additional source of concern is that the FCC had not made clear how far back the certification must reach. The FCC adopted the requirement in 2008, but didn’t provide a specific date by which nondiscrimination clauses had to be incorporated into broadcasters’ advertising contracts. Many communications lawyers told their clients that the requirement had gone into effect in mid-2008, while others, including myself, noted that it could not go into effect until the FCC had taken some additional procedural steps to effectuate it, but when those steps would be completed was impossible to predict.

Thankfully, today’s Public Notice answers that three year old question, stating that the certifications must cover a period starting today, March 14, 2011, to the date a station files its license renewal application. Stations that successfully implemented this change anytime between 2008 and now will be able to make the necessary certification, and stations that were frozen by uncertainty need to implement it immediately or face the consequences at renewal time. While the license renewal process can be a stressful one, particularly for those who barely remember filing their last renewal application eight years ago, the Media Bureau today helped broadcasters by eliminating at least some of the uncertainty that can make it so stressful.

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While it has taken nearly two years to get there, the FCC today announced the release of its new broadcast ownership data in a format that can be searched and manipulated for media and public policy research. For broadcasters, however, the more interesting part of this Public Notice is what it says about broadcasters that failed to timely file their ownership reports.

In April of 2009, the FCC announced it was revamping the biennial ownership report filing requirement for commercial broadcast stations. Prior to that time, broadcast stations had filed their ownership reports every other year on the anniversary date of their license renewal filing deadline. However, because that deadline varied depending upon the state in which a station was located, and because a licensee with stations in multiple states could elect to file a consolidated set of reports on the license renewal deadline for any of those states, locating all of a particular broadcast station’s ownership reports at the FCC could be challenging. Even determining whether a broadcaster had timely filed its reports was not easy.

Because of that, and because the FCC had long received complaints from advocacy groups that the ownership data collected was hard to access and not particularly useful in assessing broader media ownership issues, the FCC established a uniform filing date for all commercial stations on November 1 of odd-numbered years. The FCC also revamped the report form itself, required LPTV owners to begin filing ownership reports, and eliminated prior filing exemptions for sole proprietors and general partnerships composed of natural persons. The FCC’s stated goal in making these changes was to gather ownership information from the full universe of broadcast license holders, allowing the FCC to populate a database which could be used to electronically aggregate or dissect ownership information from all commercial broadcast station owners.

The FCC (and broadcast station owners) quickly found out that this was a task easier said than done. The sheer amount of information that had to be submitted to the FCC, particularly for broadcast groups with complex ownership structures, was daunting. As we detailed in an earlier post, the FCC had to postpone the filing deadline a number of times to address issues both technical and substantive. Ultimately, the November 1, 2009 deadline slid to July 8, 2010 as these various issues were addressed. The filings were further complicated by the FCC’s instruction that, despite the reports being filed in July 2010, the ownership information in them had to be as it existed on November 1, 2009, even if that information was no longer accurate. Stations that changed hands or were newly-built during that period were unsure of what, or if, they were to report to the FCC.

One by one, these issues were resolved, and while the FCC’s filing system struggled from time to time with the immense number of filings made during those last few weeks before the deadline, the process ultimately went fairly smoothly in comparison to the process leading up to it. With today’s announcement that the ownership database is available, and that media researchers can now gather and process ownership information in a far more efficient manner, it is inevitable that we will be seeing a lot more rulemaking comments and requests for rulemaking based upon the information in this database.

However, as the Public Notice itself points out, there are limitations to the utility of the data collected. Specifically, despite a broad outreach by the FCC, lots of law firm advisories (I count at least a half dozen over that time from Pillsbury alone), and the successive filing deadline extensions, a surprising number of licensees still failed to file ownership reports. The FCC attributes this to the failure of many who were previously exempt from filing to understand that they now need to be filing ownership reports with the FCC.

Based upon the FCC’s figures, there is an obvious correlation between the type of station involved and the likelihood that it filed the required reports. Among full power commercial TV stations, only 1.7% failed to file. Among full power commercial radio stations, 4.5% failed to file. However, among LPTV stations (including Class A stations), over 39% failed to file.

Earlier this month, the FCC began sending out letters to licensees demanding that they file the required ownership reports immediately, noting that “your failure to file could result in potential fines or forfeitures.” It appears that these letters are going both to stations that didn’t file at all, and to stations that did file, but had a defect in their reports (for example, providing ownership data accurate as of July 2010 rather than November 2009). The FCC’s Public Notice does not make clear whether stations that filed a defective report were counted as not filing, but the language in these recent letters suggest that may be the case, which would help to explain the surprisingly high “failure to file” statistics.

Regardless, the new database system makes it extraordinarily easy for the FCC to generate a list of stations that failed to timely file their biennial ownership reports. It also makes it easy for the FCC to automate the process of pursuing enforcement actions against such stations. Fortunately, the initial batch of letters from the FCC appears to indicate a desire to obtain missing filings to make the ownership database complete. However, the next batch of letters could begin the process of issuing fines against stations for failure to file, particularly those that failed to do so after being warned by the FCC. If your station is one of those that did not file by the July 2010 deadline, now would be an excellent time to address that oversight before you receive an unwelcome piece of correspondence from the FCC in your mailbox.

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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:

  • FCC Levies $10,000 Fine for Noncommercial Station’s Public Inspection File Security Protocols
  • Louisiana AM Daytimer Fined for Operations After Sunset
  • $7,000 Fine for Late-Filed License Renewal Cancelled

California Broadcaster Fined $10,000 for Delaying Access to Its Public Inspection File

The FCC has repeatedly held that stations may not require members of the public to make prior appointments to inspect the public inspection file, or otherwise delay or deny access to the public inspection file during normal business hours. In a 2001 decision, the FCC stated that “a delay of ten minutes to satisfy legitimate security concerns may be reasonable,” but has never established a precise threshold as to how long the security process can take before it becomes too burdensome for the public file visitor. Historically, the FCC has imposed its full base forfeiture of $10,000 for such violations.

According to a recently released Notice of Apparent Liability (“NAL”), the FCC fined a California noncommercial broadcaster $10,000 for violating Section 73.3527(c) of the Commission’s Rules, which requires broadcasters to provide unfettered access to a station’s public inspection file during regular business hours.

The NAL indicated that on three separate occasions in August 2010, an Enforcement Bureau field agent from the Los Angeles office was denied access to the main studio, the station personnel, and the public inspection file. During the three separate visits to the station, the field agent chose not to disclose his connection to the FCC, and instead presented himself as a member of the general public. On each visit, the field agent was denied access to the station by security personnel because the field agent did not have a prior appointment. On his fourth attempt to access the station’s public inspection file, the field agent informed the security personnel of his relationship to the FCC, provided formal identification, and requested access to the public inspection file, the main studio, and the station’s staff.

At that point, the field agent was allowed to enter the station. During the resulting inspection, the field agent determined that the station had a general policy of requiring members of the public to request an appointment to view the public inspection file in violation of the unfettered access provision of Section 73.3527(c) of the Commission’s Rules. Upon finally being permitted to look at the file, the agent determined that the public inspection file was complete. However, because of the obstacles placed in the path of those seeking to view the file, the FCC presented the station with a $10,000 fine.

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Late today, the FCC released an Order laying the groundwork for the first national test of the Emergency Alert System. As we noted in an earlier post, the FCC began this process nearly a year ago, when it released a Notice of Proposed Rulemaking seeking public comment on the implementation of regular national EAS tests. Today’s order modifies the FCC’s Rules to authorize such tests as well as to establish the ground rules for conducting them.

Specifically, the Order:

  • Requires all EAS participants to participate in national EAS tests scheduled by the FCC in consultation with the Federal Emergency Management Agency;
  • Requires that the first national test use the Emergency Alert Notification code, the live event code used for nationwide Presidential alerts;
  • Provides that the national test replaces the monthly and weekly EAS tests in the month and week it is held;
  • Requires the Public Safety and Homeland Security Bureau of the FCC provide at least two months’ public notice prior to a national test;
  • Requires EAS participants to submit test-related data within 45 days of the test;
  • Requires that test data received from EAS participants be treated as presumptively confidential, but allows it to be shared on a confidential basis with other federal agencies and state emergency management agencies that have confidentiality protection at least equal to that provided by the Freedom of Information Act; and
  • Delegates authority to the Public Safety and Homeland Security Bureau, in consultation with FEMA and other EAS stakeholders, to establish various administrative procedures for national tests, including the location codes to be used in the alerts and the pre-test outreach to be conducted.

While many following this proceeding had anticipated that the FCC might hold off on a national test until it had modified its rules to incorporate Common Alerting Protocol and the deadline for EAS participants to install CAP-compliant equipment had passed, it appears the first national test could occur as early as this Fall. The order specifically notes that the first “national EAS test is strictly of the legacy EAS system and is independent of the transition to CAP.”

The Order notes the need for significant public outreach prior to the test (to avoid public panic), and acknowledges that, at least for the first test, EAS participants will likely get more than the minimum two months’ warning to accomplish that public education objective.

Of particular note to EAS participants is the requirement that they record and submit to the FCC within 45 days of the test a fair amount of detail regarding that participant’s performance during the test (e.g., was the alert received and passed on successfully, what equipment was used, what was the cause of any problems that occurred, etc.). In order to facilitate the submission of that data, the FCC also announced that it will be creating an electronic filing system that EAS participants may elect to use to comply with the reporting requirement.

Because the FCC wishes to encourage EAS participants to be honest in reporting failures that occur during national tests, it did note that it would treat the required submissions as a “voluntary disclosure”. In the past, the FCC has considered a licensee’s voluntary disclosure of a rule violation to be a mitigating factor that can merit a reduction in the fine or other sanction imposed. Notably, however, the FCC did not foreclose itself from issuing fines or taking other action against an EAS participant reporting a failure of its equipment/performance in the national test, particularly where the violation is “repeated, egregious, or not promptly remedied.”

As a result of today’s Order, and the wheels it puts in motion, broadcasters, cable providers, and other EAS participants will need to make sure they and their EAS equipment are ready to participate in a national EAS test as early as this Fall. The FCC, FEMA and other governmental agencies also have much to do before a national test can occur. However, today’s action clears the initial obstacles away, and will allow the FCC to achieve its goal of assessing “for the first time, the readiness and effectiveness of the EAS from top-to-bottom, i.e., from origination of an alert by the President and transmission through the entire EAS daisy chain, to reception by the American public.” That assessment has been a long time coming, and while it does present some regulatory risks for EAS participants, most will be pleased to have confirmation that the EAS equipment they have maintained day in and day out, year after year, will serve its intended purpose should a national emergency require it.

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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:

  • Antenna Structure Owner’s Failure to Act Results in $25,000 Fine
  • FCC Fines Microwave Licensee $15,000 for Late-Filed Renewal
  • AM Broadcaster Receives Reduced Fine for EAS Violation


FCC Fines Texas Antenna Structure Owner for Multiple Ongoing Antenna Structure Violations

In January 2010, a Houston Field Office agent responding to a complaint inspected a 253 foot antenna structure located in Yorktown, Texas. According to the Notice of Apparent Liability (“NAL”) issued by the Federal Communications Commission (“FCC”), the antenna structure was unlit and unidentifiable at the time of inspection, in violation of Section 17.51 and Section 17.4 of the FCC’s Rules. The field agent later determined that the antenna structure owner had failed to notify (1) the Federal Aviation Administration (“FAA”) of the lack of tower lighting, thereby violating Section 17.48 of the FCC’s Rules, and (2) the FCC of a change in ownership of the antenna structure, which violated Section 17.57 of the FCC’s Rules.

Following the initial inspection, in an effort to maintain public safety and avoid hazards to aircraft, the field agent requested that the FAA issue a Notice to Airman (“NOTAM”) about the tower’s lack of lighting. The field agent also contacted the antenna structure owner to discuss the violations discovered during the inspection. In a subsequent inspection, some eight months later, the field agent determined that none of the violations had been cured by the antenna structure owner. Again, the field agent contacted the FAA with a request to reissue another NOTAM regarding the unlit antenna structure.

Section 17.51 establishes that obstruction lighting must be functioning between sunset and sunrise. Section 17.4 requires antenna structure owners to display the ASR number in a “conspicuous place so that it is readily visible near the base of the antenna structure.” Section 17.48 requires antenna structure owners to notify the FAA in the event that a structure’s lights are malfunctioning or inoperable for more than 30 minutes. Section 17.57 establishes, among other things, that an antenna owner must immediately notify the FCC of any change in the ownership of the structure.

The base fines for the violations discussed above are $10,000 (lighting and FAA notification), $2,000 (displaying ASR) and $3,000 (failure to notify FCC of ownership change). Based on the antenna owner’s lack of responsiveness, the FCC upwardly adjusted the fines to $15,000, $4,000 and $6,000, for a total forfeiture of $25,000.

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Earlier this month we posted our 2011 Broadcasters Calendar on CommLawCenter as well as on our Pillsbury web page. We have been annually publishing the Broadcasters Calendar, which contains much information regarding broadcast station deadlines and legal requirements, for as long as I can recall. It has always been one of our most popular publications, and I usually get calls beginning in early November asking when next year’s calendar will be available. The “easy to read” pdf version of the Calendar can be found here, and a text-searchable version is available here.

Even a brief review of the 2011 Broadcasters Calendar reminds us that 2011 will be a busy year for not just broadcasters, but for cable and satellite operators as well. October 1, 2011 is the deadline by which broadcasters qualifying for must-carry need to notify cable and satellite operators of their election between must-carry status and retransmission consent. Recent retransmission disputes once again remind us that retransmission negotiations and their associated revenue are critical to the future of broadcast television. However, the sheer volume of negotiations and carriage disputes likely to occur following the October 1 election deadline will almost certainly make this holiday season look tranquil by comparison.

Adding to the action will be continued efforts by the cable and satellite industries to draw Congress and the FCC into the fray, introducing legislative and regulatory uncertainties into an already complex negotiation process. Their chances for success will depend greatly upon how much disruption in carriage of broadcast programming occurs in 2011, and the public’s perception of who is at fault for that disruption. Regardless of the outcome of this particular Washington confrontation, look for 2011 to be the year where economics force cable and satellite providers to more tightly link the number of viewers a program service attracts with the amount they agree to pay for that service. Overpaying for niche cable networks that don’t pull in large numbers of viewers is so “last decade”.

2011 also marks the beginning of the FCC’s next eight-year license renewal cycle, with radio stations in DC, Maryland, Virginia, and West Virginia starting pre-filing announcements in April for their upcoming license renewal applications. The filing cycle will continue state by state until it concludes with television stations in Delaware and Pennsylvania running their last post-filing announcements on June 16, 2015.

However, many stations haven’t had their last license renewal application granted because of indecency complaints still pending against them. The FCC has pretty much ceased processing indecency complaints while it awaits guidance from the courts as to whether it can legally enforce the prohibition on broadcast indecency, and if so, how it will be allowed to do that. I have been told that there are literally hundreds of thousands of indecency complaints now pending at the FCC, so unless the courts do the FCC the favor of finding the prohibition on indecency completely unconstitutional, it will take the FCC years to sift through these complaints in an effort to apply any refined indecency standard announced by the Supreme Court.

It is therefore reasonable to predict that indecency complaints will continue to play a large role in the processing of upcoming license renewal applications. 2011 will hopefully be the year when the courts tell us exactly how large (or small) that role will be. If the prohibition on indecency survives this latest round of judicial scrutiny, broadcasters and the FCC can expect a lot of complaint investigations and litigation as both struggle with where the line on content is being drawn.

Of course there are numerous other events that will contribute to 2011 being one of the busiest years in memory for broadcasters. A rebounding economy is slowly lifting most boats in the broadcast industry, with the obvious exception being those that burned their critical assets for fuel during the lean times, and don’t have much boat left.

With a growing amount of money to fight over, the fights will begin in earnest (see “Retrans” above). Negotiations between the NAB and the recording industry over performance royalties will continue, and “performance tax” legislation will again rise in Congress with the same certainty that the slasher in a horror film returns for unending sequels.

Broadcasters and the FCC will also be implementing the latest generation of the Emergency Alert System in 2011, and the FCC will continue its efforts to repurpose broadcast spectrum for mobile broadband use, leading to new rules permitting multiple broadcasters to share a single channel, and potentially to legislation allowing participating broadcasters to share in the proceeds of broadband spectrum auctions. As with most of the items discussed above, there is both opportunity and peril for broadcasters here, and those that are inattentive risk missing the former and being battered by the latter.

Yes, 2011 will be a very busy year.

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While we await release of the text of today’s Net Neutrality order from the FCC, it strikes me as useful to take a step back and apply a broader perspective to what can be learned from the debate that led to it. While lawyers get a rush when they think they have come up with the perfect legal argument to support their client’s cause (and we’re fun at parties too!), those of us working in Washington have to concede that legal arguments are often secondary to the politics involved. Certainly, the FCC’s order will not be the last word in the Net Neutrality debate, with a number of prominent members of Congress already promising a legislative rebuke, and the near certainty of the courts being called upon to assess the FCC’s authority to adopt such rules.

In spite of the millions spent on lawyers and lobbyists on both sides of this issue, the result was in many ways preordained by the real champion in this debate, linguistics. Much of the battle was won when proponents summarized their position as being in favor of “Net Neutrality”, a term that is sufficiently innocuous yet catchy enough to crystallize the debate as being between those who want a neutral/fair apportionment of the Internet’s capabilities, and those who, well, don’t. Opponents were put instantly on the defensive, trying to explain why a neutral Internet wouldn’t be a good thing.

While other terms were also bandied about in the early days of the debate (like “broadband discrimination” or “traffic prioritization”), none had the simple positive ring (and alliteration) of Net Neutrality. “Internet Indifference” might have been a good candidate as well, but no one seems to have thought of it at the time.

Added to this linguistic head start is the fact that the concept itself is simply easier to explain in positive terms than in negative ones. Stories on the Washington Post’s website today described Net Neutrality as a regulation that “ensures unimpeded access to any legal Web content for home Internet users” and which marks “the government’s strongest move yet to ensure that Facebook updates, Google searches and Skype calls reach consumers’ homes unimpeded.” Based on that description, readers would be hard pressed to conclude that Net Neutrality is a bad thing, and much of the mainstream press used terms similar to the Post’s in describing today’s action by the FCC.

Taking the contrary position, there are two big problems with arguing that Net Neutrality is “an intrusive government interference into the management of broadband networks that will impede the evolution of new models of business on the Internet while requiring Internet innovators to first consider and navigate government regulations before implementing new Internet services.” First, it doesn’t exactly roll off the tongue like the Post’s description of Net Neutrality. Second, it requires several additional explanations of exactly how Net Neutrality regulations would have that effect. It isn’t necessarily obvious from the statement alone.

The point of this is not to debate the merits of Net Neutrality itself, but to note that taking the time to carefully craft and package a proposal before presenting it (to the FCC or any other part of the government, including Congress) frames the debate in your favor. It is not an irrefutable advantage, but claiming the linguistic high ground forces opponents to expend far more of their resources fighting their way uphill, while the proponent conserves its legal and political resources waiting at the top. Many opponents will falter before they reach the top, and those that do make it will be exhausted from the climb.

In the case of Net Neutrality, vast resources were arrayed on both sides of the debate, but the political and public popularity engendered by the phrase “Net Neutrality” and the easily understood arguments on its behalf proved to be insurmountable today. It is safe to say, however, that opponents of Net Neutrality regulations are already regrouping for their next charge in Congress and in the courts, and that today’s skirmish was merely the first of many to come.