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7/16/2009
As the sources of content available to the public proliferate, attracting and retaining an audience grows more challenging. A common strategy is to use provocative or “attention-getting” on-air elements to increase station awareness among media-saturated listeners and viewers. However, stations must be mindful of the numerous legal restrictions on content, particularly given that illegal on-air content can garner fines as high as $325,000 per violation. In addition, certain types of illegal on-air content can subject a broadcaster to civil and criminal liability, as well as loss of its license.

Introduction
Familiarity with the FCC’s rules regarding on-air content is not optional for on-air talent, station programmers or station management. In most cases, editorial judgments made in advance, especially in the case of syndicated or pre-recorded programming, can prevent illegal content from reaching the air. It is therefore important that those involved in airing broadcast programming be up-to-date on the boundary lines that the FCC and the courts have drawn to distinguish legal from illegal on-air content.

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July 2009
This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: California, Illinois, North Carolina, South Carolina and Wisconsin, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Introduction
August 1, 2009 is the deadline for certain broadcast stations licensed to communities in the States/Territories referenced above to place their Annual EEO Public File Report in their public inspection files and post the report on their website, if applicable.

Under the FCC’s rule that became effective as of March 10, 2003, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal employment opportunity to all qualified persons and practice nondiscrimination in employment.

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7/1/2009
This week, the FCC issued a Public Notice announcing that it is finally lifting the freeze on the filing of new low power television (“LPTV”) and television translator stations. First, on August 25, 2009, the FCC will begin accepting applications for stations in “rural areas” for: (1) new digital-only LPTV and TV translator stations; (2) major changes to existing analog and digital LPTV and TV translator facilities; (3) and, in the case of current analog stations, for digital companion channels. “Rural areas” are defined as areas with antenna site coordinates that are located more than 75 miles from the reference coordinates of the largest 100 cities as defined by Nielsen Media Research and are listed in Appendix A of the Public Notice. Second, the Public Notice also announces that on January 25, 2010, the FCC will begin accepting the above-referenced three types of LPTV and television translator applications nationwide, without any geographic restrictions.

In all cases, applications will be considered on a first-come, first-served basis with a daily “cut off” policy, and if the FCC receives mutually exclusive (i.e., incompatible) applications, it will award the license by auction. Additionally, the Public Notice emphasizes that applications for new analog facilities will absolutely not be accepted and that applications for new digital LPTV and television translator stations and for replacement digital translators may only be filed specifying in-core channels 2-51. Applicants for digital companion stations may apply for channels 52-59, but only after certifying that a suitable in-core channel is unavailable.

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6/30/2009
In respond to the National Association of Broadcasters’ July 14, 2006 Petition for Rule Making, and after a Notice of Proposed Rule Making Proceeding released on August 15, 2007, the FCC today released a Report and Order adopting the NAB’s proposal that AM stations be allowed to use FM translators to retransmit their AM service within their AM stations’ current coverage areas. The action was taken to “permit AM broadcasters to better serve their local communities and thus promote the Commission’s bedrock goals of localism, competition and diversity in the broadcast media.”

In response to the National Association of Broadcasters’ July 14, 2006 Petition for Rule Making, and after a Notice of Proposed Rule Making Proceeding released on August 15, 2007, the FCC today released a Report and Order adopting the NAB’s proposal that AM station be allowed to use FM translators to retransmit their AM service within their AM stations’ current coverage areas. The action was taken to “permit AM broadcasters to better serve their local communities and thus promote the Commission’s bedrock goals of localism, competition and diversity in the broadcast media.”

According to the Report and Order, “AM broadcast stations will be allowed to use currently authorized FM translator stations (i.e., those now licensed or authorized in construction permits that have not expired) to rebroadcast their AM signals, provided that no portion of the 60 dBu contour of any such FM translator signal extends beyond the smaller of: (a) a 25-mile radius from the AM transmitter site; or (b) the 2 mV/m daytime contour of the AM station. In addition, AM broadcast stations with Class D facilities…will be allowed to originate programming on such FM translators during the periods when their AM station is not operating.”

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6/25/2009
Through the vehicle of a Notice of Proposed Rule Making (“NPRM”), Acting Chairman Michael J. Copps, and Commissioners Jonathan Adelstein and Robert McDowell are looking to change the way the FCC decides what communities and areas deserve new or modified commercial and noncommercial, full-power AM and FM radio stations.

Because the decisions the FCC makes as a result of the NPRM may well determine whether existing, as well as newly proposed, free, over-the-air radio stations thrive or perish, the rule making is likely to have a very significant effect on the radio broadcast industry, including its ownership and program diversity, going forward. If adopted, the FCC’s proposals would substantially reduce or eliminate the flexibility broadcasters currently have to locate or move small community and rural stations to areas where they can serve more listeners and/or listeners with different programming needs. Another effect of the NPRM could be to move more competing applications into an auction process which, in turn, may discourage filings altogether.

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On March 13, 2009, and in response to the Congressional extension of the digital transition deadline from February 17 to June 12, 2009, the FCC released an R&O which, among other things, revised the rules associated with its requirements for DTV Consumer Education Initiatives. Those significant revisions, which became effective on April 1, 2009, included additional viewer notifications regarding antennas, help/walk-in centers, rescanning activities, and service loss.

The FCC has released a draft version of its most recent FCC Form 388 which includes the rule changes. A copy of the revised FCC Form 388, which has not yet received OMB approval, is available for review on the FCC’s website at https://www.fcc.gov/Forms/Form388/388.pdf.

By July 10, 2009, all television stations are required to report on the DTV Education Initiatives undertaken in the months of April, May and June by electronically filing the revised FCC Form 388. The FCC Form 388 is also required to be placed in the station’s public inspection file by July 10, 2009 and posted by that date to the station’s website, if it has one. Details of the FCC’s DTV Consumer Education requirements can be found in our Advisory posted on our website by clicking the link below.

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6/19/2009
The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by July 10, 2009, reflecting programming aired during the months of April, May and June 2009.

A PDF version of this entire article can be found at 2009 Second Quarter Children’s Television Programming Documentation Advisory.

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6/17/2009
The FCC issued a Public Notice recommending that viewers having difficulty receiving any of the over-the-air digital television signals of stations in their area should “double rescan” their digital converter boxes or digital television sets.

The Public Notice can be found on the Commission’s website at the following link: FCC Home Page. Specifically, the FCC recommends that viewers should use the following five steps if they are having difficulty receiving certain local stations:

  1. Disconnect their antennas from the converter box or digital TV;
  2. Rescan the converter box or digital TV without the antenna connected;
  3. Unplug the converter box or digital TV from the electrical outlet for at least one minute;
  4. Reconnect the antenna to the converter box or digital TV and plug the unit back into the electrical outlet; and
  5. Rescan the converter box or digital TV a second time to ensure that a “double rescan” takes place.

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6/11/2009
In its Public Notice released earlier today, the FCC reminded stations of the requirement that television stations that have not yet made the transition to all-digital broadcasting must be prepared to answer calls about the transition immediately after they make the switch from analog to digital. The FCC noted its specific concern that stations have the appropriate staff available to answer calls after business hours and reminded stations that they should be prepared to handle the expected increase in calls, including calls forwarded directly to stations from the FCC’s National Call Center, which will be staffed 24 hours a day. The Public Notice specifically requests that stations not transitioning to digital-only until June 12 should not only staff their customer referral locations the evening of June 12, but should also ensure that the phones are staffed over the following weekend, June 13 and 14.

According to the Commission, the customer referral telephone number can be staffed by individual station employees, by a group of stations in a market, or by a third party such as a state broadcasters association. In addition, the customer referral telephone number should be staffed with personnel “prepared to answer complex questions from viewers, particularly regarding necessary actions to take to get reception in specific locations, and other engineering issues.”

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5/19/2009
The FCC’s Notice of Inquiry seeks answers to the controversial question raised by “broadcasters, media organizations and others” whether Arbitron is undercounting the audience for stations that air programming targeted to minority audiences, potentially harming the financial viability of those stations. At issue is Arbitron’s commercial use of equipment called the Portable People Meter (“PPM”), a mobile-phone-sized device that consumers wear throughout the day to track their radio listening. Arbitron has replaced the audience-based rating systems with PPM in certain markets and intends to replace audience-based diaries with PPM in the top 50 radio markets next year.

According to the FCC, while it has “a strong interest in encouraging innovative advancements that lead to improved information and data,” it nonetheless wants to know “whether and how the PPM technological changes adversely affect diversity on the airwaves as well as the integrity and reliability of the Commission’s processes that rely on Arbitron ratings data.”

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