Articles Posted in FCC Administration

Published on:

By and

March 2012

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local public inspection files by April 10, 2012, reflecting programming aired during the months of January, February, and March 2012.

On Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 and the FCC Rules adopted under the Act, full power and Class A television stations are required, among other things, to: (1) limit the amount of commercial matter aired during programs originally produced and broadcast for an audience of children 12 years of age and younger, and (2) air programming responsive to the educational and informational needs of children 16 years of age and younger.

These two obligations, in turn, require broadcasters to comply with two paperwork requirements Specifically, stations must: (1) place in their public inspection file one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television, and (2) complete FCC Form 398, which requests information regarding the educational and informational programming the station has aired for children 16 years of age and under. Form 398 must be filed electronically with the FCC and placed in the public inspection file. The base forfeiture for noncompliance with the requirements of the FCC’s Children’s Television Programming Rule is $10,000.

Article continues . . .

Published on:

By and

March 2012

The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ local inspection files by April 10, 2012, reflecting information for the months of January, February, and March 2012.

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. Article continues . . .

Published on:

By

For those of you who remember the sense of relief you felt as a kid when you forgot to study for a test and later found out that class was cancelled, the FCC is giving you a chance to enjoy that feeling again. Despite the fact that annual regulatory fees were due yesterday, September 14, 2011, the FCC announced late today that the filing deadline is being extended until 11:59 pm ET tomorrow, September 16, 2011.

That may be a relief to many, as this year the FCC did not send out individual notices of the fee filing deadline to licensees, meaning that the number of licensees who forgot to file is likely higher this year than is typically the case. However, that is not the reason for the extension. Those who waited until the last minute to file their fees discovered that the FCC’s electronic filing system was struggling under the load. Because of this, the FCC decided to grant the extension to make sure no one can complain that they tried to file on time but were prevented by the system from meeting the filing deadline. In other words, there’s no excuse for missing the filing deadline now!

Because regulatory fees paid by check must reach the FCC’s lockbox in St. Louis by the deadline, the more practical way of meeting the new deadline is through the use of a credit card for payment. Fees received after the deadline are subject to the automatic 25% late fee.

Published on:

By

In the past few days, details have emerged from the White House regarding the funding sources being proposed to cover the cost of the American Jobs Act. In the government’s search for cash, it should surprise no one that in addition to broadcast spectrum auction language (which seems to be in every new funding bill these days), spectrum fees are also being proposed. While there is some good news for television broadcasters, who are exempt from the fees in the current draft of the bill, you can never tell if that exemption will survive the rough and tumble legislative process. Radio broadcasters aren’t so lucky–no exemption for them.

One trend is clear–the government’s growing reliance on fees from broadcasters and other FCC license holders. When I started practicing in the 1980s, the FCC did not generally charge fees. Congress later instructed the FCC to collect a fee for each application or report filed, and to set the size of the fee at an amount that would cover the cost of processing that particular application/report. While there was some grumbling about having to pay the FCC to process reports that the FCC had required be filed in the first place, most understood that the government was not going to surrender this newly-found revenue source.

However, when Congress later required the FCC to also collect annual regulatory fees from spectrum users in amounts sufficient to cover the FCC’s total operating budget, spectrum users cried foul. They were already paying a filing fee to have the FCC process their applications, and now were expected to pay a separate annual fee to cover all of the FCC’s operating costs (including application processing). This meant that the government was double-dipping–collecting fees under the guise of “covering costs” that in fact exceeded those costs. To his credit, Commissioner McDowell acknowledged this strange situation in 2009, when he urged the FCC to “take another look at why we continue to levy a tax of sorts of allegedly $25 million or so per year on industry, after the Commission has fully funded its operations through regulatory fees. That money goes straight to the Treasury and is not used to fund the agency.” Despite the protests, the FCC continues to be required by Congress to collect those fees, which increase every year.

So broadcasters and other spectrum users can be forgiven if they are skeptical of calls for yet one more government fee on their existence. Even if the exemption for television broadcasters stays in the bill, that is limited comfort for TV licensees, since any spectrum fee adopted will almost inevitably creep over to television as Congress continues its search for revenue sources that can be called “fees” rather than “taxes.”

Sensitive to these complaints, the White House attempted to bolster its case in a summary of the bill, stating that “it is expected that fees would encourage efficient allocation and use of the radio spectrum, as the opportunity cost of spectrum resources would be reflected to commercial license holders that did not receive authorizations through competitive bidding.” This perennial argument, that broadcasters shouldn’t complain about any governmentally-imposed burden because “they got their spectrum for free,” remains one of the urban legends of Washington. Like most urban legends, however, it has no basis in fact.

Very few current broadcasters “got their spectrum for free.” The FCC has been auctioning off broadcast spectrum for over a decade, and broadcast stations that were licensed before that time have typically been sold and resold at “fair market value” many times over the years. As a result, it is a rare broadcaster that currently holds a broadcast license obtained directly from the FCC “for free”. Most broadcasters have paid dearly for that license, both in terms of the station purchase price and the public service obligations that come with the license.

Still, fee proponents argue that because the original license holder didn’t have to pay the government for the spectrum, the “free” argument still applies, no matter how many times the station has changed hands since then. That argument is eviscerated, however, by a simple analogy. When the United States was settled, the government issued land grants to settlers who “staked a claim” to virgin territory by promising to make productive use of that land (the “Sooners” being one of the better-known examples). Other than the promise to use the land, these settlers did not pay the government for their land grants. The land then passed from generation to generation and from seller to buyer many times in the years since the original grant. However, despite the fact that the original owners “got their land for free”, I would wager there are few homeowners among us who would agree that we received “our” land for free, much less accept a governmental fee premised on that assertion.

How spectrum/licenses were originally assigned by the FCC (or its predecessor agency) many years ago bears no more relevance to today’s broadcaster than 19th century land grants relate to the modern homeowner. In both cases, the original owner lived up to its commitment to the government to make productive use of the asset, and was therefore permitted to eventually sell its claim to others. To assert that these buyers are somehow suspect beneficiaries of land or spectrum ignores reality. Today’s broadcasters are merely the spiritual descendants of a different kind of settler–the pioneers of the airwaves.

Published on:

By

The FCC this morning announced a “temporary” freeze on the filing and processing of applications for full power and low power television stations on Channel 51. The freeze was announced in response to a petition filed in March by CTIA – the Wireless Association and the Rural Cellular Association asking the FCC to take steps to “prevent further interference caused by TV broadcast stations on channel 51” to wireless broadband services in the Lower 700 MHz A Block. More specifically, the petition urged the FCC to “(1) revise its rules to prohibit future licensing of TV broadcast stations on channel 51, (2) implement freezes, effective immediately, on the acceptance, processing and grant of applications for new or modified broadcast facilities seeking to operate on channel 51, and (3) accelerate clearance of channel 51 where incumbent channel 51 broadcasters reach voluntary agreements to relocate to an alternate channel.”

What is odd about the FCC’s announcement, however, is that freezes are normally implemented to “lock down” the engineering database to permit the FCC to analyze various engineering solutions using a stable database. For example, during the DTV transition, the FCC issued numerous freezes as it attempted to engineer a DTV channel plan that would allow each full power station both a digital and an analog channel to operate during the transition. That task would have been much harder if the database had kept changing during that time.

Here, however, the FCC is not freezing Channel 51 applications to give it time to resolve a Channel 51 engineering issue. Instead, it is freezing Channel 51 applications to ostensibly give it time to determine whether to freeze Channel 51 applications. That is a novel use for a freeze, and seems to prejudge the ultimate question of whether the FCC should grant the underlying petition.

Of particular interest is the fact that today’s notice goes farther than just a freeze, as it “(1) announces a general freeze, effectively [sic] immediately, on the filing of new applications on channel 51 and the processing of pending applications on channel 51; (2) lifts the existing freeze as applied to, and will accept, petitions for rulemaking filed by full power television stations seeking to relocate from channel 51 pursuant to a voluntary relocation agreement; and (3) opens a 60-day window for parties with pending low power television station applications on channel 51 to amend their applications to request a voluntary channel assignment.”

Typically, when the FCC issues a freeze, it is only on the filing of new applications. As a matter of fairness, the FCC will normally process applications already on file when a freeze is announced since such an applicant has already expended its resources to file an application that was fully grantable before the freeze was announced. That makes this freeze unusual, as it freezes even pending applications, and in doing so, pretty much “temporarily” grants the wireless industry’s petition.

That last aspect is particularly odd. In contrast to a freeze designed to “lock in” the current engineering situation while options are assessed, the freeze notice does the opposite, specifically encouraging Channel 51 applicants and licensees to amend their applications and modify their facilities to change the current Channel 51 engineering terrain. In other words, it is a freeze that is not designed to lock in the current situation, but to actively change the current situation.

If it wasn’t already clear where the FCC is heading, establishing a 60-day “window” for low power applicants to clear off of Channel 51 in response to only a “temporary” freeze would make no sense if the FCC didn’t intend the freeze to be permanent. A low power station that fails to file a displacement application during those 60 days could well be deprived of a subsequent opportunity to amend when the FCC adopts a permanent Channel 51 freeze. Otherwise, there would be no point in limiting such applications to a 60-day window. In that regard, the assertion in the freeze notice that the FCC’s action is purely procedural and therefore “not subject to the notice and comment and effective date requirements of the Administrative Procedure Act” will be of little comfort to the low power applicant who waits to see what “permanent” action the FCC takes in this proceeding.

While the freeze does leave the FCC staff some wiggle room to grant waivers for modification applications by existing Channel 51 stations where necessary to maintain service to the public (thank you Media Bureau!), it is apparent that the FCC has decided to begin winding down use of Channel 51, even though the wireless entities that bid on the adjacent spectrum knew that they were subject to interference from Channel 51 stations when they bought it.

Broadcasters not affected by this freeze should derive little comfort from that fact. The FCC has made clear its desire to recover 120 MHz of contiguous broadcast spectrum, which means that all channels higher than 30 would disappear. This Channel 51 freeze merely establishes the template for those future FCC actions, and soon the bell could be tolling for far more than just Channel 51.

Published on:

By

The FCC today announced a freeze on the acceptance of any petitions for rulemaking seeking to change a station’s assigned channel in the Post-Transition Table of DTV Allotments. While application freezes were once relatively rare at the FCC, they became quite common as a planning mechanism during the years when the FCC was creating a new Table of Allotments to initiate and complete the transition to digital television.

Given the FCC’s announced intent to begin reclaiming broadcast television spectrum for wireless broadband as part of the National Broadband Plan, and to then repack the remaining television stations into a smaller chunk of spectrum, today’s announcement was not a surprise. The Commission’s brief announcement stated that the freeze is necessary to “permit the Commission to evaluate its reallocation and repacking proposals and their impact on the Post-Transition Table of DTV Allotments….”

The freeze will put a stop to the steady migration of stations from the VHF to the UHF band, where reception is generally better and the opportunities for successful mobile DTV operations greater. While not discussed in the FCC’s announcement, proponents of transferring broadcast spectrum to wireless broadband have no interest in VHF spectrum, so each station that moves from the VHF band to the UHF band makes the FCC’s efforts to clear UHF spectrum for broadband that much more difficult. The FCC noted in its announcement that since the lifting of the last freeze in 2008, it has processed nearly 100 television channel changes, and that it therefore believes most stations interested in making a channel change have had sufficient time to do so. The FCC indicated that it would continue to process channel change requests filed before the new freeze commenced.

And so it begins. While the prospects for legislation to implement the National Broadband Plan’s broadcast spectrum incentive auctions remain murky, the FCC does not need the blessing of Congress in order to commence the process of spectrum repacking. Now well over a year old, the National Broadband Plan remains mostly that–a plan. Today’s freeze marks one of the first concrete steps by the FCC to implement at least some aspects of that plan. Setting aside the issue of whom the ultimate winners and losers in the spectrum debate will be, the painful and expensive process of implementing a new Table of Allotments for digital television is still far too fresh a memory for many broadcasters to want to be subjected to a similar process now.

At least with the transition to digital, broadcasters could see the benefits of enduring the difficult process in order to be able to garner the benefits of high definition programming, multicasting, and datacasting. Unfortunately, for broadcasters not interested in selling spectrum in an incentive auction, repacking means all pain and no gain. The best case scenario for a television broadcaster in a repacking is just to survive the disruption and distraction without losing signal coverage of viewers and cable headends. That doesn’t leave broadcasters with much light at the end of the tunnel to guide them through the difficult days ahead.

Published on:

By

During the last license renewal cycle, the FCC handed out an unprecedented number of fines to broadcasters who failed to file their license renewal applications on time. In some cases, a station only learned of its failure to file because the FCC sent it a letter notifying it that the FCC had deleted the station’s call sign from the official records and that the station’s operating authority had been terminated. For a broadcaster, that can ruin your whole day.

Such letters usually lead to an immediate call to the station’s counsel to try and fix the problem before the station’s business, goodwill, and call sign are lost permanently. The associated fines and legal costs to try to resuscitate the station’s license provide further incentive to avoid placing yourself in this situation. Because of this, it is no wonder that some broadcasters are anxious to get their license renewal applications on file well in advance of their filing deadline.

There is, however, such as thing as being too early. The FCC has already returned at least four license renewal applications because they were filed too early. Some were radio broadcasters whose stations are licensed to communities in DC, Maryland, Virginia or West Virginia. They are required to file their applications by June 1st, and are the first to use the new version of the renewal form, which the FCC announced it would begin accepting on May 2. At least one of these stations has already refiled its application, this time waiting for the May 2nd official opening of renewal season.

These stations are not alone, however, with numerous other broadcasters also having filed prematurely. Among these early filers are low power television stations whose renewal applications are not due for a year or more from now. Because many FCC compliance obligations are connected to a station’s license renewal cycle, a station that is off on its renewal filing date by such a margin that its application is filed in the wrong year likely has numerous other FCC issues that need to be examined and addressed.

Compounding the danger is the FCC database’s admonition that it does not generate an automatic dismissal letter notifying the applicant that its renewal application has been dismissed. As a result, these early filers may believe they have discharged their license renewal filing obligations only to later find out that their authority to operate has been terminated.

The window within which a station can file a compliant license renewal application is actually quite small. For most stations in the full power services, as well as LPFM stations, the FCC’s rules require that four pre-filing announcements be aired on specific dates and in specific time periods alerting the public that the station will be filing a license renewal application. Once the application is filed, six more announcements must air noting that the application has been filed, again on a prescribed time schedule. Because the last of the pre-filing announcements must air on the 16th (with the license renewal application due on the 1st of the following month), stations that file before that date will be airing an inaccurate public notice. In addition, the EEO portion of the license renewal application, which is submitted separately using FCC Form 396, requires that all but the smallest stations attach their two most recent annual EEO Public Inspection File reports to the filing. However, the FCC’s EEO rule requires that each annual report cover a time period ending no earlier than 10 days before the anniversary of that station’s license renewal filing deadline. A station can’t comply with that requirement if it files its renewal materials before that 10 day period commences.

Therefore, while May 2nd, 2011 has now passed and renewal season has officially begun, stations filing more than a week or two before their license renewal application deadline are likely creating a potential problem for themselves. This goes double for the 396 EEO form. So far in 2011, more than 70 of these forms have been filed at the FCC by stations whose licenses are nowhere near ready for a license renewal review. To avoid this, stations need to familiarize themselves with the license renewal filing and notice dates applicable to them, and not simply mimic what stations in other states or services are doing.

To give that effort a little boost, you can look at our latest post regarding license renewals, which addresses the upcoming license renewal compliance deadlines (beginning June 1) for radio stations in North Carolina and South Carolina. If you are not a radio station licensee in North or South Carolina, don’t worry, your time is coming. When it does, make sure you are ready early; just not too early.

Published on:

By

FCC Commissioner Meredith Attwell Baker made the surprise announcement yesterday that she will leave the FCC on June 3 to become Senior Vice President of Government Affairs at NBC-Universal. Baker’s departure will leave Commissioner Robert McDowell as the only Republican Commissioner at the FCC for the time being. It is unlikely that President Obama will be in any hurry to name a replacement, leaving Democrats with a 3-1 political advantage at the FCC once Baker leaves. Her departure comes as a surprise because, although her current term at the FCC is up in June, she was expected to be nominated for another term.

It certainly appears to have caught her colleagues at the Commission by surprise, all of whom quickly released very brief statements of congratulations. Despite the warm wishes from her colleagues, the brevity of those statements makes clear that they didn’t have much time to prepare them.

This being Washington, DC, the Commissioner’s move did not come without controversy. The trade press reported that many found it disconcerting that the Commissioner was joining NBC-Universal just a few months after voting in favor of Comcast’s contested multi-billion dollar purchase of that company. For example, Free Press’s website reports that Free Press President and CEO Craig Aaron has stated that “Less than four months after Commissioner Baker voted to approve Comcast’s takeover of NBC Universal, she’s reportedly departing the FCC to lobby for Comcast-NBC. This is just the latest — though perhaps most blatant — example of a so-called public servant cashing in at a company she is supposed to be regulating.”

Others, including National Association of Broadcasters President and CEO Gordon Smith, publicly supported the Commissioner’s move, stating in a news release that “With a winning combination of integrity, intellect and experience, Meredith Baker will be a key player for NBCUniversal, and I know that her in-depth knowledge of broadcast issues, deep understanding of the D.C. landscape and strong leadership abilities will make her an important resource for the entire broadcast industry.” Indeed, Commissioner Baker’s excellent reputation in Washington, earned at both the NTIA and the FCC, will do much to deflect, although certainly not silence, criticism regarding the timing of the move.

The eventual appointment of the Commissioner’s replacement is likely to be a hotly debated issue, with such big ticket items as net neutrality, spectrum auctions, the potential repacking of broadcast spectrum, and retransmission consent battles on the FCC’s plate. Unlike Commissioner Baker’s surprise announcement yesterday, however, it is a surprise to no one that the political maneuvering in Washington over the future composition of the FCC has already begun in earnest.

By
Posted in: FCC Administration
Published on:
Updated:
Published on:

By

Earlier today, the FCC wrapped up a seminar on complying with its new ex parte rules, which govern the public disclosures that must be made following a meeting with FCC personnel. The new rules are designed to increase the transparency of the FCC’s decision-making process, and go into effect in a few short weeks (June 1, 2011). Unfortunately, the price of increased transparency is more paperwork and the risk of being assessed fines by the Enforcement Bureau, which has been granted authority to police the new rules and issue fines to those who run afoul of them.

Fortunately, the FCC’s General Counsel, Austin Schlick, indicated at the seminar that while the Enforcement Bureau now has the authority to levy fines for ex parte violations, the FCC will not use its new ex parte rules as an administrative “speed trap” to generate revenue from fines. While his statement is not binding on the FCC, it does provide some comfort to those unfamiliar with the process and requirements for conducting meetings with the FCC that inadvertent errors won’t necessarily be costly ones.

A complete copy of the order establishing the new rules can be found here, but some of the more noteworthy changes include:

  1. Under the new rules, all ex parte notice letters must be filed electronically with the FCC in machine-readable format (e.g., DOC, PPT or searchable-PDF files). There are a number of exceptions to this rule, including for hardship and documents containing confidential information.
  2. All presentations will require ex parte filings, even those in which parties merely reiterate arguments or data already in the record. Such ex parte filings must provide details regarding the facts that were discussed, the arguments made, and the support offered for those arguments during the presentation. Alternatively, parties may provide detailed citations to prior filings containing that information.
  3. Because of these added complexities, the filing deadline for submitting an ex parte notice will now be two full business days after the presentation (rather than one). However, during the “Sunshine Period” prior to an FCC vote, the notice must be filed on the same business day in which the presentation is made.

On a related note, the FCC this week published in the Federal Register a request for comments establishing the comment deadlines for those wishing to provide input on when and how real parties-in-interest must be disclosed in ex parte filings. A copy of the request for comments can be found here.

In particular, the FCC is interested in whether disclosure requirements should apply to other types of filings in addition to ex parte notices, whether disclosures should be made in only some or all types of FCC proceedings, whether different disclosure requirements should be applicable to different types of entities (such as trade associations or non-profit groups), and whether a party should be deemed to have made adequate disclosure if its filing references information appearing on the Internet or available from the FCC’s databases. Comments are due by June 16, 2011 and Reply Comments are due by July 18, 2011.

By
Posted in: FCC Administration
Published on:
Updated:
Published on:

By

Blair Levin, who headed the FCC’s Omnibus Broadband Initiative (OBI) for the past year and who was the principle architect of the National Broadband Plan, announced yesterday that he’s leaving the FCC on May 7 to join the Aspen Institute, a large and prestigious think tank.

Levin created the OBI from scratch. He moved in to the FCC, but he hired many new staff. He adopted new procedures for gathering public input, including blogging, “staff workshops”, and what amounted to frequent cold calls to people in business and academia to solicit views and information. The OBI was not your father’s FCC proceeding!

Levin also drew a dauntingly broad scope for the effort, and the OBI staff continued to expand that scope almost until the last minute. The proceeding, and the Plan, addressed broadband technology, deployment, services, adoption, financing, and usage. It asked how broadband affects other institutions and industries, from broadcasting, cable, wireless, and voice services to education, politics, energy and the environment, to name just a few.

Levin’s efforts drew enthusiastic support from some quarters and criticism from others. Some disliked his unorthodox procedural approach and others welcomed it. Some who agreed with his positions questioned his procedures, and vice versa. Whatever one thinks of the procedure or the recommendations, the National Broadband Plan is a remarkable document – comprehensive, polished and beautifully written and presented.

The most polarizing issue was a proposal to reallocate broadcast spectrum for wireless broadband use. I’ve questioned some aspects of the broadband plan, especially whether proponents of more broadband spectrum have really made their case. But I’ve been awed by Levin’s ability to “shake things up” in a town where the status quo can last for decades.

Reactions to Levin’s announcement have been as mixed as views of the National Broadband Plan. I’m disappointed to see him go. Levin is one of the smartest, hardest working, most effective, and best-intentioned people to work at the FCC (and that’s a big club). I disagree with some of his views, but I’ve never doubted his sincerity or the honesty of his motives.

Levin didn’t start the debate over broadcast spectrum – that began in the 1980s – and it won’t end on May 7. But he focused the issue and gave it legs. The country is now having a debate about the future of broadcasting that would have seemed unthinkable a year ago.

I’m an optimist — perhaps a delusional optimist. But if downsizing the nation’s broadcasting service is suddenly thinkable today, maybe real deregulation of broadcasting, including much-needed ownership reform, is also thinkable. The FCC’s Future of Media proceeding essentially asks that question.

I’ve harbored hope that ongoing engagement on “the spectrum issue” will eventually lead to grounds-up rethinking of the broadcast ownership rules. Broadcast regulation needs some serious shaking up, and the constituencies around many of those regulations are honed in the art of the status quo. Levin demonstrated an uncanny ability to reset people’s conceptions about what is and isn’t achievable. Broadcasters could use some of that energy focused on ownership rules which artificially limit their participation in a digital broadband future. He’s leaving, but perhaps someone will learn from Levin how to pull off something as ambitious as repealing anachronistic broadcast regulations. I hope so. And I hope the Aspen Institute knows what it’s getting into!