Articles Posted in Programming Regulations

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January 2014

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 Admonishes Television Stations for “Host-Selling” to Children
  • $7,500 Fine Imposed for Documents Missing From Public Inspection File
  • $17,000 Fine for Unauthorized Operation of a Radio Transmitter

Admonishment Issued for Program Characters Promoting a Product

The FCC continues to enforce its restrictions on commercial content during children’s shows. Section 73.670 of the FCC’s Rules restricts the amount of commercial matter that can be aired during children’s programming to 10.5 minutes per clock hour on weekends and 12 minutes per clock hour on weekdays. The Commission most often examines compliance with these limitations when acting on a television station’s license renewal application.

Earlier this month, the FCC issued identical admonishments to two commonly-owned Wisconsin TV stations for failing to comply with the limits on commercial matter in children’s programming. The stations disclosed in their license renewal applications that they had aired a commercial for cereal during a children’s program seven years ago, and the commercial contained “glimpses of characters from the program on the screen.” The licensee noted that the appearance was “small, fleeting, and confined to a small area of the picture,” and that the software used by the CW Network to prevent such appearances failed to catch this particular incident. Where a program character appears during a commercial in that program, the FCC’s approach is to treat the entire program as a commercial, which by definition exceeds the FCC’s commercial time limits in children’s programming.

The licensee argued that the images did not appear “during the commercial part of the spot but during a portion of the material promoting a contest.” The FCC disagreed, but only issued an admonishment to each of the stations because the violation was an isolated incident. Nevertheless, the FCC warned that it would impose more serious sanctions if the licensee committed any similar violations in the future.

License Assessed $7,500 Fine for Failing to Provide Quarterly Issues/Programs Lists for Seventeen Quarters

Earlier this month, the FCC imposed a $7,500 fine on a Pennsylvania station for willfully and repeatedly violating the Commission’s rule regarding the public inspection file. Under Section 73.3526(e)(12) of the FCC’s Rules, a licensee must create a list of significant issues affecting its viewing area in the past quarter and the programs it aired during that quarter to address those issues. The list must then be placed in the station’s public inspection file by the tenth day of the month following that quarter.

In April of 2010, an agent from the Enforcement Bureau’s Philadelphia office found during an inspection that the licensee was missing fifteen quarters of issues/programs lists. The licensee explained in response to a subsequent Letter of Inquiry that some of the lists had been stolen or removed from the public inspection file and promised to replace the missing lists. However, in February of 2011, a follow-up investigation revealed that the public inspection file contained only one issues/programs list, which meant that there was a total of seventeen quarters of missing lists. At the time of the follow-up, the licensee said that part of the roof of a neighboring building had collapsed and destroyed the records.

In June of 2011, the FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”) for $15,000. In response, the licensee argued that the fine should be reduced because the missing records were outside his control and that he did not have the ability to pay such a fine. In January of 2014, the FCC determined that a reduction of the fine was warranted based on the licensee’s inability to pay, but noted that the failure to maintain issues/programs lists was not outside of the licensee’s control and that the licensee’s explanations as to the cause of the missing documents conflicted with each other. Although the FCC reduced the fine from $15,000 to $7,500, the Enforcement Bureau cautioned that it has previously rejected inability to pay claims for repeated or egregious violations and that in the event this licensee commits future violations, it may result in significantly higher fines that may not be reduced merely because of the licensee’s inability to pay.

Licensee Fined for Interfering with United States Coast Guard Operations

Last month, the FCC issued an NAL against a California licensee for operating a radio transmitter on a frequency not authorized by its license and failing to take precautionary measures to avoid causing interference. The base fine for operating on an unauthorized frequency is $4,000, and the base fine for interference is $7,000.

In January of last year, the United States Coast Guard complained to the FCC of interference with its operations in the 150 MHz VHF band. An agent from the Enforcement Bureau’s Los Angeles office used radio direction-finding methods to determine that the interference was coming from the licensee’s building. The agent located a transmitter at that location that was operating on a frequency different than that indicated on the transmitter’s label. After the Bureau contacted the licensee and informed it of the agent’s findings, the licensee turned off the transmitter, and the interference to the Coast Guard stopped.

Subsequently, the Enforcement Bureau’s Los Angeles office issued a Notice of Violation (“NOV”) to the licensee for failing to operate in accordance with its authorization and not taking reasonable precautions to avoid interference to licensed services. The NOV noted that the licensee’s authorization specified operation on frequencies that included neither the transmitter’s labeled frequency nor the frequency on which the transmitter was actually operating. In response, the licensee argued that the transmitter was unstable and operating about .8 MHz on both sides of the designated frequency.

Under Section 1.903(a) of the FCC’s Rules, a licensee can only operate a station in compliance with a valid authorization granted by the Commission. The FCC rejected the licensee’s argument that the malfunctioning transmitter was operating on the licensee’s assigned frequency, finding that its agent’s investigation indicated otherwise. The FCC also noted that Section 90.403(e) of the FCC’s Rules requires that licensees take appropriate measures to avoid causing harmful interference, and that the licensee here failed to offer any evidence in response to the NOV that it had taken such precautions.

In determining the appropriate fine, the FCC considered the facts and circumstances and found that the violations warranted proposing a fine higher than the base amount for these violations. Because the licensee caused harmful interference to the Coast Guard’s operations and the licensee was not aware of its spurious signal until the FCC notified it, the FCC assessed a total fine of $17,000, increasing the fine by $6,000 over the base amount for such violations.

A PDF version of this article can be found at FCC Enforcement Monitor.

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Over the years, I’ve written numerous times about the FCC’s adverse reaction to advertisers seeking to make their ads more attention-getting through inclusion of an Emergency Alert System tone. The most recent was this past November, when the FCC proposed a $25,000 fine against Turner Broadcasting System, Inc. for an EAS tone-laden Conan promo, and announced a $39,000 consent decree with a Kentucky TV station for a local sports apparel store ad containing an EAS alert tone.

I titled the post FCC Reaches Tipping Point on False EAS Alerts, and noted at the end of it that

ominously, today’s FCC Enforcement Advisory notes that “[o]ther investigations remain ongoing, and the Bureau will take further enforcement action if warranted.” Given today’s actions by the FCC, everyone whose job it is to review ad content before it airs is having a very bad day.

Today, the FCC fulfilled that prophecy, proposing an additional $200,000 fine against Turner Broadcasting System, Inc. for distributing another ad containing EAS tones. According to the FCC, Turner’s Adult Swim Network aired ads produced by Sony Music Group promoting an album by rap artist A$AP Rocky and the album’s availability at Best Buy stores. While the ad did not contain any digital data from an EAS tone, it did simulate the EAS audio tone itself. The ad aired seven times over the network’s East Coast feed, and then was repeated seven more times in the West Coast feed three hours later.

The FCC’s decision is “spirited” (at least by FCC standards), managing to convey a fair degree of exasperation, principally because of Turner’s prior violation and the fact that

In response to those [earlier] complaints, which also emphasized the potential impact on public safety of the transmission of such material, Turner represented to the Commission that it had changed certain of its internal review practices. Nevertheless, another Turner-owned channel, less than one year later, transmitted the A$AP Rocky/Best Buy advertisement 14 times over a six day period, which also contained simulations of the EAS codes. Thus, despite its experience with the problem of misusing EAS codes and Attention Signals, Turner continued to violate Section 11.45 of the Commission’s rules and Section 325(a) of the Act, indicating a higher degree of culpability in this instance. Therefore, based on the number of transmissions at issue, the amount of time over which the transmissions took place, the nationwide scope of Adult Swim Network’s audience reach, Turner’s degree of culpability, Turner’s ability to pay, and the serious public safety implications of the violations, as well as the other factors as outlined in the Commission’s Forfeiture Policy Statement, we find that a forfeiture of two hundred thousand dollars ($200,000) is appropriate.

Beyond the unprecedented size of the fine for such a violation, today’s decision is also notable because, unlike the self-inflicted wound of putting an EAS tone in a program promo, this case involved a spot produced by a third party. While the FCC has appeared in the past to have had at least some sympathy where a problem in a third-party ad “slipped through”, the FCC’s sympathy seems to be exhausted at this point. Having said that, it is worth noting that the FCC went after the program network rather than the individual cable and satellite systems that actually transmitted the spots to the public. Cable and satellite providers can take at least some solace in that.

While the nationwide audience and prior violation may have made the size of this fine somewhat unique, it is safe to say that the FCC has reached the point that it is unlikely to find a false EAS tone, no matter the circumstances, to be an excusable “oops” on the part of a program distributor. While the FCC might once have been willing to just admonish a violator and save the fines for repeat offenders, it appears that there will no longer be any free bites at the false EAS tone apple, and that each bite will be appreciably more expensive than the last.

Of course, if the FCC is hoping that steadily escalating fines will cause violators to lose their taste for the forbidden fruit of false EAS tones in ads, the question is whether advertisers will also hear that message, or are broadcasters, cable operators and satellite TV providers forever doomed to play a game of whack-a-mole (whack-a-tone?) with third-party ads?

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November 2013

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:

  • Multiple Indecency Complaints Result in $110,000 Payment
  • $42,000 in Fines for Excessive Power, Wrong Directional Patterns and Incomplete Public Inspection Files
  • Cable Operator Fined $25,000 for Children’s Programming Reports

Broadcaster Enters Into $110,000 Consent Decree Involving Allegations of Indecent Material

The FCC recently approved a consent decree involving a broadcaster with TV stations in California, Utah and Texas accused of airing indecent and profane content.

Section 73.3999 of the FCC’s Rules prohibits radio and television stations from broadcasting obscene material at all times and prohibits indecent material aired between 6:00 a.m. and 10:00 p.m.

The FCC received multiple complaints about the television show in question and sent Letters of Inquiry to the broadcaster asking it to provide a copy of the program and to answer questions about possible violations of the FCC’s indecency rule. The licensee complied with the requests but maintained that the program did not contain indecent content.

Earlier this month, the FCC entered into a consent decree with the broadcaster and agreed to terminate its investigation and dismiss the pending indecency complaints. Under the terms of the consent decree, the broadcaster is required to (a) designate a Compliance Officer within 30 days, and (b) create and implement a company-wide Compliance Plan within 60 days, which must include: (i) creating operating procedures to ensure compliance with the FCC’s restrictions on indecency, (ii) drafting a Compliance Manual, (iii) training employees about what constitutes indecent content, and (iv) reporting noncompliance to the FCC within 30 days of discovering any violations. The consent decree also requires the filing of a compliance report with the FCC in 90 days and annually thereafter for a period of 3 years. The requirements imposed under the consent decree expire after three years.

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One of the perennial challenges of being a broadcaster is determining what you can air, when you can air it, and how it must be aired without incurring the wrath of the federal government. While the FCC tends to be the federal agency most commonly encountered on content issues, various other government agencies create additional layers of complexity, with the Department of Justice, the Food and Drug Administration, and the Federal Trade Commission all having an interest in what is aired, particularly where it involves advertising. As new products become available and are marketed, the government struggles to keep up, sometimes leaving the media in the lurch as to whether a particular ad is “safe” for airing.

For that reason, broadcasters have stepped carefully with regard to advertisements for medical marijuana (which I’ve discussed previously here), tobacco products, and other items of federal concern. While enforcement encounters with the FCC can be unpleasant, encounters with the DOJ can be downright incarcerating. Fortunately, broadcasters’ encounters with the DOJ are rare, and usually involve the DOJ bringing a court action to enforce collection of an FCC-imposed fine. However, that also means the body of DOJ precedent on substantive content issues can be pretty thin, leaving broadcasters guessing as to what can and cannot be aired.

One area where the DOJ has definitely had a broad role to play is in the advertising of tobacco products. From the original ban on broadcast cigarette advertising implemented in 1971 to its later expansion to little cigars (1973) and smokeless tobacco (1986), the DOJ is the entity charged with enforcing the ban on most types of tobacco broadcast advertising. While a ban on tobacco advertising might seem straightforward, complying with it can be fairly complex, resulting in a number of DOJ decisions regarding what can be said in advertising for tobacco shops and tobacco products not affected by the ad ban. Our recently updated Pillsbury Advisory on tobacco advertising restrictions is a good place to learn more about those nuances.

One new product that continues to garner attention (and confusion) is e-cigarettes, which are battery-powered devices designed to imitate the look and feel of a cigarette, but which deliver nicotine vapor rather than tobacco smoke to the lungs. While e-cigarettes have become fairly common, only limited research has been done on their health effects, and many countries have now regulated them in a variety of ways.

In the U.S., the FDA has expressed serious concerns about the manufacturing and marketing of e-cigarettes, but has not yet been successful in implementing restrictions on e-cigarette sales. However, there have been indications the FDA will move as early as next month to launch a rulemaking to implement restrictions on e-cigarette sales. While it is likely that any ultimate FDA rules will prohibit the marketing of e-cigarettes to minors, it is at this point unknown whether the FDA might try to impose broader restrictions on advertising, and whether such restrictions would stand up in court. What is known is that rulemakings at federal agencies take time, so it will likely be a while before any new FDA rules could be implemented.

That pretty much leaves the question of whether e-cigarettes can currently be advertised up to the DOJ. Given the DOJ’s dim view under existing tobacco ad restrictions of any ad that even mentions the word “cigarette”, many assumed that the DOJ would take a similar view of e-cigarette advertising. However, because the DOJ has not publicly moved to take action against a growing number of e-cigarette ads, broadcasters have so far been left wondering where the government stands on the issue.

We now know the answer to that question. My Pillsbury colleague Paul Cicelski has obtained clarification from the Department of Justice in the form of a letter stating the DOJ’s position on e-cigarette advertising. The letter notes that the ad ban covers “any roll of tobacco” wrapped in paper, tobacco, or any other substance likely to be purchased by consumers as a “cigarette”. It proceeds to note that while e-cigarettes are often manufactured to look like conventional cigarettes, they do not contain a “roll of tobacco” and therefore are not subject to the federal ban on cigarette ads.

So does that mean the floodgates are open on e-cigarette ads? Not quite. First, the DOJ letter indicates that it reflects the views of the Consumer Protection Branch of the DOJ and not “any other governmental office, agency or department,” specifically noting that the Federal Trade Commission has authority over e-cigarette ads that are deceptive, such as those that make health claims without adequate scientific support. Similarly, many states have grown concerned about e-cigarettes and have introduced legislation to restrict their use and advertising. As a result, in addition to being wary of health claims in ads like “e-cigarettes will help you stop smoking”, broadcasters should check the laws of their state for any state-based limitations on e-cigarette advertising. Finally, as noted above, the FDA is clearly interested in this area, and likely will have something to say about e-cigarette regulation once it concludes its soon-to-be-launched e-cigarette proceeding.

Fortunately, the FTC and FDA have traditionally focused their enforcement efforts on advertisers rather than on the media entities carrying the ads, so even if e-cigarette regulations are ultimately adopted, those regulations are unlikely to principally target broadcasters for merely running the ads. As a result, the DOJ’s position on e-cigarettes goes a long way toward resolving a significant source of confusion and angst for many broadcasters while opening up an additional avenue for broadcast ad dollars.

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by January 10, 2013, reflecting information for the months of October, November, and December 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 the 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. We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness. Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during the license term. Stations should include in the Quarterly Lists as much issue-responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs. Taking extra time now to provide a thorough Quarterly List will help reduce risk at license renewal time.

It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their public inspection file.

A PDF version of this entire article can be found at Fourth Quarter Issues/Programs List Advisory for Broadcast Stations.

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July 2012
Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue is a special issue regarding recent FCC actions that provide a detailed (and expensive) look at Section 73.1206, the prohibition on recording telephone calls for broadcast.

FCC Issues a Total of $41,000 in Fines for Broadcaster Airing Prank Telephone Calls

The close of August in Washington, D.C. has brought with it a surge of beautiful weather, baseball excitement (for the first time in recent memory), and … forfeiture orders related to the improper recording of telephone calls for broadcast. On August 22nd, the FCC issued two forfeiture orders assessing a combined $41,000 in fines against licensees owned by the same parent company for violations of the telephone broadcast rule.

The telephone broadcast rule, Section 73.1206 of the Commission’s Rules, requires that, “[b]efore recording a telephone conversation for broadcast, or broadcasting such a conversation simultaneously with its occurrence, a licensee shall inform any party to the call of the licensee’s intention to broadcast the conversation, except where such party is aware, or may be presumed to be aware from the circumstances of the conversation, that it is being or likely will be broadcast.” While the rule language only talks about providing notice to the calling party, the FCC has reiterated many times that when a station employee intends to record a call for broadcast or broadcasts the call live, the employee must also obtain the party’s consent before recording the call or going live.

Both orders released on August 22nd involved a finding that the licensee had violated this rule. The first order involved prank calls made in April 2006 by radio personalities to members of the public during a comedy segment of the station’s morning show. In one conversation, the caller pretended to be an intruder hiding under the bed of the person receiving the call; in another, the caller pretended to be a loan shark bent upon collecting a debt.

The FCC began investigating the prank calls after receiving a complaint from a station listener. During the investigation, the licensee indicated it was unable to confirm or deny whether the prank calls aired on its morning show, and could not provide a recording or transcript of the program. The licensee acknowledged, however, that the program identified in the complaint was aired on the station and was simulcast on two co-owned stations.

The second forfeiture order released on the 22nd also involved the broadcast of an alleged prank call in which the caller pretended to be a hospital employee who then informed the call recipient that the recipient’s husband had been in a motorcycle accident and died at the hospital. When questioned about the incident, the licensee told the FCC that its parent company had contracted with an outside vendor who made and recorded the call. The licensee admitted that it broadcast the call on multiple occasions.

In the first case, the FCC had proposed a $25,000 fine. In the second case, the FCC had proposed a $16,000 fine. In both cases, the licensee urged cancellation of the proposed fines, to no avail. In batting down a myriad of arguments raised by the licensees, the FCC affirmed not only its broad investigative powers to enforce Section 73.1206, but also the licensees’ responsibility to both adhere to and demonstrate their adherence to the Commission’s Rules.

These two decisions provide an excellent primer for broadcasters on the FCC’s enforcement of the telephone broadcast rule, as between them, the FCC addressed a multitude of defenses raised by the licensees, ultimately concluding that none of those defenses could prevent the imposition of very substantial fines. More specifically, the FCC shot down each of the following licensee arguments:

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The FCC recently issued two separate Notices of Apparent Liability for Forfeiture (NALs), found here and here, for a combined sum of $40,000 against the licensee of a Class D AM radio station for failing to make available a complete public inspection file, and submitting what the FCC concluded was incorrect factual information concerning the station’s public inspection file. According to the FCC, the station submitted the incorrect information without having a reasonable basis for believing that the information it provided to the Commission was accurate. What is most significant about this case is that this latest in fines is in addition to a $25,000 fine the FCC issued less than a year ago and included the same violation, bringing the licensee’s collective contribution to the U.S. Treasury to $65,000 in the last 12 months.

By way of background, during a routine FCC inspection of an AM radio station in Texas back in December 2010, agents from the FCC’s Enforcement Bureau’s Houston Office found that the station failed to maintain a main studio with a meaningful full-time management and staff presence, determined that the station’s public inspection file was missing a current copy of the station’s authorization, its service contour map, the station’s most recent ownership report filing, the Public and Broadcasting manual, and all issues-programs lists, and refused to make the public inspection file available. As a result, in June of last year, the Bureau issued an NAL in the amount of $25,000 for violating the FCC’s main studio rule and public inspection file rules, and also required the licensee to “submit a statement signed under penalty of perjury by an officer or director of the licensee that . . . [the Station’s] public inspection file is complete.” In response to the FCC’s directive, last August the licensee submitted a certification stating that “[i]n coordination with [an independent consultant], all missing materials cited have been placed in the Station’s Public Inspection File, and the undersigned confirms that it is complete as of the date of this response.”

Agents from the Enforcement Bureau’s Houston Office returned to inspect the station’s public inspection file last October and it turned out that once again the file did not contain any issues-programs lists. The agents also determined that none of the station employees present had knowledge of the station having ever kept issues-programs lists in the public inspection file.

In response to a Letter of Inquiry from the Enforcement Bureau regarding the missing lists, the licensee told the FCC that that the issues-programs folder was empty due to an “oversight” and that the licensee believed that the public file contained daily program logs of the programming aired by the party brokering time on the station. The licensee also stated in its response that it had hired an outside consultant to review the public file, who apparently indicated to the licensee that the public file “was complete.”

Based on that follow-up visit, the Bureau released its first of two NALs issued on June 14, 2012, and cited the AM station for a failure to exercise “even minimal diligence prior to the submission” of its August certification stating that it was in full compliance with the FCC’s Public Inspection File Rules. In addressing the licensee’s violations, the Bureau noted that in 2003 the FCC expanded the scope of violations of Section 1.17 which states that no person should provide, in any written statement of fact, “material factual information that is incorrect or omit material information that is necessary to prevent any material factual statement that is made from being incorrect or misleading without a reasonable basis for believing that any such material factual statement is correct and not misleading.”

As a result, information provided to the FCC – even if not intended to purposefully mislead the FCC – can result in fines if the licensee does not have “a reasonable basis for believing” that the information submitted is accurate. Licensees therefore need to be aware that an intent to deceive the Commission is not a prerequisite to receiving a fine; inaccurate statements or omissions that are the result of negligence can be costly as well.

As if that were not enough, the Bureau issued a second NAL on the same day in which it assessed a further fine against the licensee in the amount of $15,000 for failing to make available a “complete public inspection file.” In determining the amount of this forfeiture, the Bureau noted that although the base forfeiture amount is $10,000 for public file rule violations, given the previous inspection by the agents from the Bureau’s Houston Office, the licensee had a history of prior offenses warranting an upward adjustment in the forfeiture amount. The Bureau therefore concluded that because the licensee had violated the public inspection file rule twice within a one-year period – including after being informed that it had violated the Commission’s rule – “its actions demonstrate[ed] a deliberate disregard for the Commission’s rules and a pattern of non-compliance,” warranting a $5,000 upward adjustment in the forfeiture amount.

This case is noteworthy because it demonstrates that parties dealing with the Commission must be mindful that, prior to submitting any application, report, or other filing to the FCC, it is important to ensure that the information being provided is accurate and complete in all respects. It also is significant for the high dollar amount of the fines the FCC issued to the licensee of a Class D AM station in a period of less than 12 months based on fairly common public file and main studio rule violations.

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The Office of Management and Budget (OMB) has once again rubber-stamped and approved an FCC information collection request in apparent defiance of its statutory obligation to take a hard look at the burdens imposed under the Paperwork Reduction Act (PRA). As I reported previously, the FCC adopted burdensome rules requiring television stations to replace their existing locally-maintained public inspection files with digital files to be placed online on an FCC-hosted website, including stations’ detailed political records. What is a bit of a surprise, and frankly disappointing, is that the OMB took less than two weeks to approve the FCC’s request even though the proposed rules appear to clearly violate the standards of the PRA, and lengthy comments were filed by multiple parties informing the OMB of that fact.

As I’ve stated, the new regulations will without question increase burdens on TV stations (including thousands of pages of copying, significant costs, and countless hours of employee time), while needlessly duplicating records already required to be maintained online by the Federal Election Commission. If such rules are not something the OMB should withhold approval of, or at least take a long hard look at, you have to wonder what level of burden is required to trigger a denial under the PRA. Very few FCC regulations that I can think of historically have imposed more paperwork burdens on stations than the online public/political file regulations.

In any case, in light of the OMB’s approval, all Top 4 network affiliated stations in the top 50 markets will have to start placing political file material online 30 days after the FCC publishes a notice of the OMB approval in the Federal Register. I will provide an update when that publication occurs. However, there still may be some twists and turns coming, as it is more than likely that broadcasters will ask the courts to stay the effective date of the rules. If such a request is granted, the rules will not go into effect as quickly as the FCC is hoping.

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

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

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

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

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Despite spring-like weather in Washington this winter, broadcasters, with good reason, have been busy filing frosty comments in response to the FCC’s Notice of Inquiry (NOI) regarding “Standardizing Program Reporting Requirements for Broadcast Licensees.”

Free Press and others are urging the FCC to require television stations to complete and publicly file a “Sample Form” setting forth the number of minutes that a station devoted, during a composite week period, to the broadcast of certain categories of FCC-selected programming. The proposed form (or some version of it) would take the place of the Quarterly Issues/Programs List requirement that was adopted by the Commission nearly thirty years ago after an exhaustive review of many of the same issues that caused the FCC in 2007 to adopt FCC Form 355 (“Standardized Television Disclosure Form”), which the Commission abandoned last year on its own motion.

The 46 State Broadcasters Associations (represented by our firm), three other State Broadcasters Associations, the National Association of Broadcasters, and a coalition of network television station owners, among others, filed comments alerting the FCC that its proposals to adopt new and detailed program reporting requirements raise serious questions about the Commission’s authority to do so under the First Amendment. The 46 State Associations noted that “substitut[ing] a chiefly quantity of programming measure for public service performance, which is the focus of Free Press’ Sample Form, would, in the State Associations’ view, inappropriately, (i) elevate form (quantity of minutes) over substance (treatment of specific issues), (ii) place other undue burdens on stations, and (iii) intertwine the government for years to come in the journalistic news judgments of television broadcast stations throughout the country.”

According to the State Associations and the NAB, the FCC’s failure to address the clear constitutional questions raised is peculiar in light of First Amendment case law. They are referring to the Commission’s proposed adoption of a quantity of programming approach to measure station performance, which would introduce the same type of “raised eyebrow” regulatory dynamic that the U.S. Court of Appeals for the D.C. Circuit in Lutheran Church found unlawfully pressured stations to hire based on race. According to that same court in the more recent MD/DC/DE Broadcasters case, the FCC has “a long history of employing…a variety of sub silentio pressures and ‘raised eyebrow’ regulation of program content…as means for communicating official pressures to the licensee.” In Lutheran Church, the court concluded that “[n]o rational firm–particularly one holding a government-issued license–welcomes a government audit.” The court also concluded that no rational broadcast station licensee would welcome having to expend its resources, and suffer any attendant application processing delays in having to justify their actions to the FCC, regardless of whether in response to a petition to deny an application, a complaint, or other objection filed by a third party.

The network television station owners also pressed the First Amendment issue by pointing out that it is well established that the First Amendment precludes the FCC from requiring the broadcast of particular amounts and types of programming. The network owners also noted that few broadcasters, confronted with a Commission form asking them to list all of their programming related to certain content categories, will not feel pressure to skew their editorial judgments in a conforming manner.

These comments reveal the difficult position in which the FCC places itself when it attempts to craft rules that relate to specific programming content. Having launched itself down that path, the question becomes whether the Commission will attempt to face these issues and address them in any resulting rule, or merely downplay them, requiring an appeals court to address them at a later date. Only after we know the answer to that question will we know whether the term “stopwatch review” refers to a new regime of FCC content regulation, or is merely a reference to how long it takes a court to find that such rules can’t coexist with the First Amendment.