Articles Posted in Low Power & Class A Television

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At its October Open Meeting, the FCC announced that it was moving ahead on two proposals to “standardize” and “enhance” television stations’ public reporting regarding the programming they air, and their business and operational practices. The first of those items to be released related to the Online Public Inspection File, which we report on in detail here and here. The Further Notice of Proposed Rulemaking in that proceeding has already been published in the Federal Register and the first round of comments in that proceeding are due on December 22, 2011.

The second item, which deals with the new disclosure form to replace television stations’ current Quarterly Issues Programs Lists and the FCC’s prior failed attempt to standardize and enhance station disclosures on FCC Form 355, has now appeared in the Federal Register. We discuss this proposed form in detail here. The publication of this item establishes the deadline for comments on the new form, which are due on January 17, 2012, with Reply Comments due on January 30, 2012.

The FCC has moved swiftly in getting these items published, thereby commencing the public input process on these proposals, and has indicated that they are a high priority at the Commission. Broadcasters’ best opportunity to influence how these proposals take shape is now. As a result, stations should review the proposed form and our analysis of both it and the related Online Public File to understand the impact these new requirements could have on their operations.

We previously noted that the proposed form is highly duplicative of portions of the Online Public File proposal. Regardless of what information is collected, having to disclose it twice, in two different formats, is a burden on broadcasters that the FCC appears to have not acknowledged. In addition, the new form being put forth by the FCC for comment, far from merely standardizing the way programming information is disclosed, could well end up standardizing what programming is actually aired, intruding on licensee programming discretion.

Broadcasters that fail to participate in these proceedings do so at their own peril, as the resulting regulatory requirements could well be the proverbial lump of coal that TV broadcasters find in their stocking this year.

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The FCC has announced the comment and reply comment deadlines for its recently-announced Further Notice of Proposed Rulemaking (FNPRM), which proposes to replace nearly all of a television station’s paper public inspection file with a more expansive online file hosted by the FCC. Comments are due at the FCC by December 22, 2011, with Reply Comments due by January 6, 2012. In addition, the public can also submit comments to the Office of Management and Budget regarding the proposal’s impact under the Paperwork Reduction Act by January 23, 2012.

This is an important proceeding as it involves far more than simply moving public files online. The goal of this proceeding, and the separate proceeding also commenced recently to replace television station Quarterly Issues Programs Lists with a new form (which we discussed here) is to create fully searchable databases of uniform information about broadcast stations and their programming that researchers, advocates and policy makers can cite in support of a particular regulatory theory, proposal, or complaint. Beyond the burden on TV stations in populating this database, broadcasters are justifiably leery of the long term impact on licensee discretion.

Historically, there has been a strong correlation between the FCC gathering information on the amount of programming being aired of a particular type, and demanding that more (or sometimes less) of it be aired in the future. Based upon this history, broadcasters can be forgiven if they feel a First Amendment chill down their collective spine when the FCC seeks more information about their programming decisions, and worse yet, declares that such information should be instantly available to anyone with an Internet connection.

As we have seen in the indecency context where the FCC has been buried by email complaints, some against stations that never actually aired the program at issue but which were incorrectly reported on the Internet as having aired it, making station information available by Internet risks drowning out the voices of local viewers and listeners with the shrill cries of distant agitators.

More to the point, given the power of the FCC over broadcasters’ license renewals, and the stress and expense of defending against even baseless complaints at the FCC, the path of least resistance for a broadcaster is to succumb to the pressure and program in a way that makes the government happy. The government may try to exert this pressure subtly (usually not), but like water passing over a stone, it inexorably wears the broadcaster down. The details of the FNPRM provide an indication of how much regulatory water the FCC is proposing to send broadcasters’ way.

In adopting these proposals as mere disclosure requirements, the FCC can implicitly denote what it considers to be a suspect program or practice without having to adopt a rule specifically prohibiting that particular program/practice and facing judicial scrutiny of the prohibition. Taken together, the online public file and program reporting proposals appear to be an exercise in “regulation by raised eyebrow,” with the modern twist of enlisting the Internet community to crowdsource station monitoring and complaints to ensure adequate pressure on broadcasters to get with the program.

Broadcasters as a whole recognize, and are dedicated to, meeting the needs of their local community. The FNPRM’s suggestion that they should also meet the needs of the global Internet community merely distracts from that fundamental mission. The reason public inspection files are so rarely visited by the public is that local viewers and listeners are already very knowledgeable about their local stations’ service to their community. All they have to do is turn on their TV or radio to find out more. They have traditionally shown little need for, or interest in, the public file.

Contributing to that disinterest is the anachronistic nature of the file itself. For example, what is the utility of a contour map to the average viewer/listener when TV stations are carried throughout the DMA by cable, satellite, translators and boosters, and radio stations are streamed throughout their market and beyond? While a good case could be made for scaling back the public file rule, the FNPRM’s effort to sprint in the opposite direction is difficult to fathom, particularly given how strained station resources already are in the current economy.

All television broadcasters (and frankly, radio broadcasters with an eye to the future) should carefully consider how the changes proposed in the FNPRM would affect their ability to function and serve their communities, and ensure that they let the FCC know just what that impact would be.

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All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 by December 1, 2011.

The FCC requires all digital television stations, including all commercial and noncommercial educational full power television stations, digital low power television stations, digital translator television stations, and digital Class A television stations, to submit FCC Form 317 each year. The report details whether stations provided ancillary or supplemental services at any time during the twelve-month period ending on the preceding September 30. It is important to note that the FCC Form 317 must be submitted regardless of whether stations offered any such services. FCC Form 317 must be filed electronically, absent a waiver, and is due on December 1, 2011.

Ancillary or supplementary services are all services provided on the portion of a station’s digital spectrum that is not necessary to provide the required single free, over-the-air signal to viewers. Any video broadcast service that is provided with no direct charge to viewers is exempt. According to the FCC, examples of services that are considered ancillary or supplementary include, but are not limited to, “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, subscription video, and the like.”

If a station provided ancillary or supplementary services during the 12-month time period ending on September 30, 2011, it must pay the FCC 5% of the gross revenues derived from the provision of those services. This payment can be forwarded to the FCC’s lockbox at the U.S. Bank in St. Louis, Missouri and must be accompanied by FCC Form 159, the Remittance Advice. Alternatively, the fee can be paid electronically using a credit card on the FCC’s website. The fee amount must also be submitted by the December 1, 2011 due date.

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As promised at its last Open Meeting, the FCC has released a Notice of Inquiry focused on replacing television stations’ Quarterly Issues/Programs Lists with an online, standardized and searchable programming disclosure form. The effort seeks, depending on your point of view, to reform or to reinstate the failed FCC Form 355 that the FCC adopted in 2007, but which never went into use because of numerous legal challenges attacking the form’s onerous reporting requirements and overt programming mandates.

While the FCC claims that it is starting anew, as opposed to merely revising the old Form 355, it is not starting from scratch. Instead, the FCC punts on crafting a new form and asks whether the form that the Public Interest, Public Airwaves Coalition (“PIPAC”) has presented to the FCC will do the trick. That form would collect information regarding a television station’s programming in the following categories:

  • Local News: “programming that is locally produced and reports on issues about, or pertaining to, a licensee’s community of license”;
  • Local Civic/Governmental Affairs: “broadcasts of interviews with or statements by elected or appointed officials and relevant policy experts on issues of importance to the community, government meetings, legislative sessions, conferences featuring elected officials, and substantive discussions of civic issues of interest to local communities or groups”;
  • Local Electoral Affairs: “candidate-centered discourse focusing on the local, state and United States Congressional races for offices to be elected by a constituency within the licensee’s broadcast area”;
  • Closed Captioning and Video Description: whether programming reported on the form is captioned and what type of captioning is used, as well as ALL programming that is not captioned and the basis for its exemption; and
  • Emergency Accessibility Complaints: the number of complaints a station receives during the reporting period that its emergency programming is not accessible to those with disabilities.

The FCC asks for comment on a wide range of issues relating to these categories, such as whether broadcasters should report on individual segments within programs or only on entire programs, what constitutes a segment, and whether any additional categories should be added. The FCC also asks “what is an issue?,” which of course goes to the very heart of a licensee’s First Amendment discretion to determine what qualifies as suitable programming for its audience. It was the government’s concern about stepping on broadcasters’ First Amendment rights in the first place that led to the adoption of the more flexible Quarterly Issues/Programs List the FCC now seeks to replace.

As a replacement for the Quarterly Issues/Programs List, PIPAC is urging the FCC to randomly select dates during each quarter, and then require broadcasters to compile information regarding the programming aired in the above categories on those dates. As a practical matter, however, this would encourage broadcasters to focus their resources on small and numerous news stories over major investigative efforts, since a station that airs fewer but more complex and thoroughly investigated news stories runs the risk of getting no FCC credit if such stories don’t happen to fall on one of the “sample” days chosen by the FCC.

With respect to local election coverage, PIPAC proposes that broadcasters report all such programming aired during the lowest unit rate window (45 days before a primary and 60 days before a general election). Alternatively, the FCC asks whether it should use a composite week or two actual weeks as the appropriate reporting period and how it should give notice to broadcasters of its random selections. One proposal — that the FCC notify broadcasters within a day or two of the date it randomly chooses — would have the FCC perpetually announcing dates for which broadcasters must preserve information about election programming aired.

Despite the FCC proposing that the online disclosure form be kept as part of a television station’s new online public inspection file, the PIPAC form requests a great deal of information that would be entirely duplicative of that public file. This includes having a link to the online public inspection file (in which the reporting form would be found in the first place), as well as links to the station’s most recent ownership report and children’s television programming report (each of which the FCC has proposed to include as part of the online public file), station contact information (which the FCC has already proposed be kept as part of the online public file), information about whether reported programs aired as part of a local marketing or other agreement or required sponsorship identification information (which information is already included in the online public file proposal), as well as such basic information as whether the station is commercial or noncommercial, the DMA in which it is located, and its network affiliation.

PIPAC created its form before the FCC released the proposal for a new online public file, and it is readily apparent that the PIPAC form is in many ways redundant with the FCC’s proposal. Oddly, however, the FCC seems to be considering the PIPAC form as a complement to an online public file, rather than as merely a duplicative addition to that file. As we noted earlier, there is a worrisome undercurrent in these proceedings that the FCC’s focus is on facilitating the efforts of distant policy advocates and academicians to hold a broadcaster “accountable” for its programming choices rather than on ensuring that stations serve the needs of their local audiences.

Organizations that have to be told online what a station’s affiliation or television market is, or whether it operates commercially or noncommercially, obviously are in a poor position to know the needs and interests of that station’s local community, much less whether the station is meeting those needs and interests. Instead, these proposed requirements seem aimed at merely providing a mechanism for pressuring stations to air more of a particular type of programming favored by the government or by a distant advocacy group. As Commissioner McDowell pointed out today in his concurring statement, it appears that stations’ local communities will benefit little from these proposed new requirements.

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In 2009, the FCC adopted an Order which expanded the types of commercial broadcast licensees required to file ownership reports on FCC Form 323 biennially. The FCC also established November 1 (of odd-numbered years) as the single national ownership report filing date for all commercial broadcast stations. As a result, all commercial full-power AM, FM, TV, and Class A and LPTV stations, as well as entities with attributable interests in those stations, were due to file their next biennial ownership reports on November 1 of this year. However, the Media Bureau issued an Order yesterday which moves the November 1, 2011 filing deadline to December 1, 2011. The FCC indicates that despite the change in filing date, the ownership reports should still include a snapshot of station ownership as it existed on October 1, 2011.

Keep in mind that the ownership report filing requirement does not apply to TV translators, FM translators, or low power FM stations. The FCC’s action also does not affect noncommercial stations, which continue to file their biennial reports on FCC Form 323-E by a filing deadline determined based upon the state in which they are licensed (rather than a single national date).

According to the FCC, the filing date was moved because “some licensees and parent entities of multiple stations may be required to file numerous forms and the extra
time is intended to permit adequate time to prepare such filings.” Despite providing the extra time, the FCC is still encouraging parties to prepare and file their ownership reports as soon as possible.

Having provided the extra filing time, the FCC will not be too pleased with broadcasters that fail to meet this new deadline. Broadcasters should therefore accept the FCC’s advice and try to avoid last minute ownership filings, which increase the likelihood of technical and other problems that can interfere with a successful filing.

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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.

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8/15/2011

The FCC has announced that full payment of all applicable Regulatory Fees for Fiscal Year 2011 must be received no later than September 14, 2011.

As of this date, the FCC has not released a Public Notice officially announcing the deadline for payment of FY 2011 annual regulatory fees. However, the FCC’s website indicates that the 2011 annual regulatory fees must be paid no later than 11:59 pm (EST) on September 14, 2011.

As reported in July 2010, beginning in 2011, the Commission has discontinued mailing assessment notices to licensees/permittees. It is the responsibility of each licensee/permittee to determine what fees are due and to pay them in full by the deadline. Information pertaining to the annual regulatory fees is available online at https://www.fcc.gov/fees/regfees.html.

Annual regulatory fees are owed for most FCC authorizations held as of October 1, 2010 by any licensee or permittee which is not otherwise exempt from the payment of such fees. Licensees and permittees may review assessed fees using the FCC’s Media Look-Up website – http://www.fccfees.com. Certain entities are exempt from payment of regulatory fees, including, for example, governmental and non-profit entities. Section 1.1162 of the FCC’s Rules provides guidance on annual regulatory fee exemptions. Broadcast licensees that believe they qualify for an exemption may refer to the FCC’s Media Look-Up website for instructions on submitting a Fee-Exempt Status Claim.

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As we reported previously, in an atypical display of unity among broadcasters and the cable industry, the parties found common ground and filed a Petition with the FCC seeking to extend the deadline for implementing the Common Alerting Protocol (CAP) standard.

Last week, that unified front continued when we filed a further extension request with the FCC on behalf of an even greater assembly of EAS Participants, including the State Broadcasters Associations, representing all fifty States and the District of Columbia, the National Association of Broadcasters, the Broadcast Warning Working Group, the National Cable and Telecommunications Association, the American Cable Association, National Public Radio, the Association of Public Television Stations, and the Public Broadcasting Service. The Petition asks the FCC to grant a further extension of at least 180 days beyond the current September 30, 2011 CAP compliance deadline, with the 180 days to run from the effective date of the Commission’s amendment of its Part 11 rules pursuant to its recently released Third Further Notice of Proposed Rulemaking. (Our discussion of the Third Further Notice can be found here).

In granting the earlier request for an extension of the CAP deadline, the FCC acknowledged that if it failed to extend the 180-day deadline, it could “lead to an unduly rushed, expensive, and likely incomplete process.” As a result, the Commission issued its Order giving EAS Participants until September 30, 2011, to acquire and install equipment able to accept CAP-formatted EAS messages.

In their Petition seeking a further extension of the CAP deadline, the broadcast and cable industries assert that a later deadline is warranted given the regulatory uncertainty that remains regarding CAP compliance. The Petition notes the nearly unanimous view of those who commented on the Third Further Notice that the deadline should be further extended because the FCC has not yet decided whether it will itself conduct EAS equipment certification in addition to the certification being done by FEMA. The Petition also notes that the Third Further Notice may lead to Part 11 rule changes altering the current obligations of EAS Participants in ways that would affect the purchase, installation and operation of new EAS equipment.

The Petition also states that a further extension will allow participants in the scheduled November 9, 2011, National EAS Test to focus their limited engineering resources on ensuring the success of the nationwide test. (We previously reported on the first National EAS Test here and here).

It remains to be seen whether a further extension will be granted, but if the Petition and the majority of comments recently filed in response to the FCC’s Third Further Notice in the EAS proceeding are any indication, EAS Participants — including broadcasters, cable operators and many others — feel strongly that a further extension of the deadline is essential.

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The FCC has released a Report and Order which includes its final determinations as to how much each broadcast licensee will have to pay in Annual Regulatory Fees for fiscal year 2011 (FY2011). The FCC collects Annual Regulatory Fees to offset the cost of its non-application processing functions, such as its rulemaking function.

Each year, the FCC issues a Notice of Proposed Rulemaking setting forth the amounts it proposes to assess each type of license. After taking comments, the FCC releases the final amounts due for that year. It is common for the FCC to adopt its proposed fees without revision, although last year, the FCC significantly increased the fees on Commercial UHF Television Stations and erased promised reductions for radio stations. In contrast, this year, the FCC adopted the fees almost entirely as it had proposed them in the Notice of Proposed Rulemaking put out in May.

Nevertheless, for FY2011, Commercial UHF Television Station fees again increased across the board from the amounts those stations paid in FY2010. Commercial VHF Television Station fees for those stations outside the top 25 markets decreased across the board. In addition, satellite television stations and LPTV, Class A television, TV Translator, TV Booster, FM Translator and FM Booster stations all had their fee amounts reduced from their FY2010 levels. The fees for most categories of radio stations increased modestly. A chart reflecting the fees for the various types of licenses affecting broadcast stations is attached here.

The FCC will release an additional Public Notice announcing the dates of the filing window for the fees and other details; however, it will accept payment beginning immediately. The FCC will not mail the hard copy assessments it has sent to broadcast stations in the past. Therefore, stations must be prepared to file and pay their fees without a specific reminder from the FCC.

As has been the case for the past few years, stations must make an online filing using the FCC’s Fee Filer system to report to the FCC the types and amounts of fees they are obligated to pay. Once they have done that, they can pay their fees electronically or by separately submitting payment to the FCC’s Lockbox.

Finally, the FCC reiterated its commitment to opening a Further Notice of Proposed Rulemaking before the end of 2011 to examine whether it should revise the manner in which it allocates the fee burden among the different industries it regulates, as well as to account for new sectors that have arisen since it first started collecting Annual Regulatory Fees in 1994. Commercial VHF Television Station licensees have previously complained that the FCC assigns too much of the Annual Regulatory Fee burden for media services to VHF stations. Licensees in other services have also objected to the manner in which their fees are calculated. Stations wishing to comment on the rebalancing of the fee obligations will have an opportunity to file Comments once the Further Notice of Proposed Rulemaking is released.

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Every year, television stations whose signals were carried outside of their markets by a cable or satellite television provider during the prior year have the opportunity to obtain copyright royalties for that carriage. However, the claims process contains many rigid requirements. One is that claims must be filed no later than 5:00 pm in Washington, DC on July 31. Since July 31 is a Sunday this year, stations get one additional day, until 5:00 pm on August 1, 2011, to file (4:00 pm for courier-delivered claims).

Stations that aired locally produced programming in 2010 and were carried on cable systems located outside of their DMAs or were delivered to subscribers for home viewing outside of their DMAs by a satellite carrier should review the requirements for eligibility and submission of their claim. If a station’s claim is not filed using an approved method, including the specific addresses for mail and hand deliveries, or if the claim is not filed by the deadline, the station will not be able to seek any copyright royalties for its programming carried out of market in 2010. Stations that successfully file their claims will be asked at a later date to provide additional information to establish the amount of reimbursement to which they may be entitled.

The firm’s Advisory on making copyright royalty claims can be found here, and provides additional information for stations interested in pursuing a claim.