Articles Posted in Television

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The engineers who worked heroically to push broadcasting across the digital threshold had barely caught up on their sleep before agitation for more change began to erupt. The National Broadband Plan concluded that the amount of over-the-air viewing doesn’t justify the number of broadcast stations, and that the FCC could use incentive auctions to re-pack broadcasting into a smaller band of spectrum. Now incentive auctions are the law. This decade we will likely see more broadcast spectrum repurposed for mobile services and another “transition” as hundreds of broadcasters conform their facilities.

So what’s the connection between incentive auctions and talk of a new technical standard? The FCC thinks we need more spectrum for mobile services — in large part because of rising use of video on mobile devices. But the FCC’s rules dictate a broadcast television technical standard that means much of the most popular video — which is already available free-to-air — can’t be received by mobile devices. The FCC is right that spectrum best suited for mobile services should be useful for mobile services. So why stop with the highest frequency TV channels? If we’re going to do all the work of another transition, why not open a path for consumers to access the entire TV band with mobile devices? Many of the same forward-looking broadcasters that championed 8-VSB are working with others on a new standard that incorporates next-generation transmission technologies, as an article in TVNewsCheck reported earlier today. ATSC 3.0 would be easily accessible on mobile devices and provide a much better indoor viewing experience as well. And it will be ready to deploy when incentive auction repacking takes place.

But will every broadcaster want to upgrade at the same time? And what about consumers? FCC rules require all broadcasters to use the same digital standard to ensure universality — so every television can receive every broadcast signal. But not everybody thinks that’s the best policy. Back in the 1990s, the FCC itself debated whether it should select one standard, approve several standards, or simply let the market work things out. It adopted the ATSC standard, but it also asked whether the requirement to use that standard should sunset after a critical mass of deployment was reached.

Nobody wants a television Babel. But what does universal access mean when people increasingly consume their video on-the-move and on devices that we don’t think of as televisions? In my home near downtown Bethesda, Maryland, pretty close to many of the region’s television towers, I can reliably receive only three stations, even with an attic-mounted antenna. I can’t receive any broadcasts on any of my computers, tablets, or other mobile devices.

I love broadcast television, but in my case, it’s difficult or impossible to use most of the time. Millions of other Americans either don’t use over-the-air television directly, or use it less than they otherwise might, for similar reasons.

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Late this afternoon, the FCC released a short Report and Order allowing a limited set of television stations to forego uploading a portion of their paper public inspection files to the FCC’s online system by the upcoming Monday, February 4 deadline.

As we previously reported, under FCC rules adopted last year, all full power and Class A television stations had to begin using an online public inspection file hosted on the FCC’s website beginning August 2, 2012. In order to comply with the new rules, stations have been required to make sure that all public inspection file documents created beginning on August 2, 2012 have been promptly uploaded to the FCC’s online database, except for emails and letters from the public and the political files for stations not affiliated with the ABC, CBS, NBC and Fox networks in the top 50 markets. Documents that were already in stations’ public inspection files prior to August 2, 2012 must be uploaded to the new online public file by Monday’s deadline.

Under the FCC’s public file rule, some categories of documents must remain in the public file until final action has been taken on the station’s next license renewal application. Most notable among these documents are all of the station’s quarterly filings, such as Quarterly Issues/Programs Lists, Children’s Television Programming Reports on Form 398, Certifications of Compliance with Commercial Limits in Children’s Programming, and Certifications of Continuing Class A Eligibility. Where action on a station’s license renewal application is delayed, many years’ worth of documents can pile up in the station’s public inspection file waiting for the license renewal grant.

One station in this situation petitioned the FCC to allow it to continue to retain the Quarterly Issues/Programs Lists covering quarters prior to the start of its current eight year license term at the station’s main studio, rather than having to upload the voluminous documents to the online public file. The FCC today granted this request and provided the same relief to all other “similarly situated” stations.

Specifically, a station can forego uploading its “prior term” Quarterly Issues/Programs Lists to the FCC’s website if (1) the station’s license renewal application was not challenged; (2) action on the station’s license renewal application is delayed for an enforcement reason other than one relating to issue-responsive programming and the related recordkeeping requirements; and (3) the station retains the prior term Quarterly Issues/Programs Lists at the station’s main studio public file until final action on the station’s license renewal application. The station must still upload the Quarterly Issues/Programs Lists for its current license term to the online public file.

The FCC stated that this relief was warranted in part because of the burden of uploading these documents. The FCC also cited its policy that stations with a pending license renewal application must still file their next license renewal application when normally due. The FCC felt that the online availability of a station’s Quarterly Issues/ Programs Lists from the prior license term could confuse the public regarding what they should review and comment on with regard to the station’s performance during the current license term.

What is odd, however, is that this rationale applies equally to other quarterly filings mentioned above that the FCC is still requiring be uploaded to the online public file. As a result, stations should keep in mind that the Order is very limited in scope, and the amount of materials subject to the uploading exemption is only a portion of the documents relating to the prior license term.

Still, to the extent the FCC has provided at least some relief with regard to uploading Quarterly Issues/Programs Lists, stations with a license renewal application from their preceding eight year license term still pending should take the time to determine whether they qualify for this relief.

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Despite the many distractions of the new year, it’s important not to forget that by February 4, 2013, all full-power and Class A television stations must have completed the process of uploading public file materials to the FCC’s online public file system.

As we reported in July and August of last year, the FCC’s new rules require television stations to replace the public files they maintain at their studios with electronic files hosted online by the FCC. The new rules mean that each station must inventory their current paper public inspection file to determine which documents need to be uploaded to the FCC’s website. In order to comply with the new rules, stations must make sure that everything in their current paper public inspection file is uploaded to the FCC’s website except political broadcasting files created prior to August 2, 2012, and emails and letters from the public. While the focus has been on shifting the paper files into an online public file database, stations must remember that they will still be required to keep, at a minimum, the emails and letters from the public in the paper public file at each station’s main studio, and therefore take steps to ensure that the public will still be able to access that file during normal business hours. In other words, just because most of the file will be online, the procedures for allowing the public to promptly review public file materials that remain at the main studio must remain in place, including the need to ensure that the public can access the file during lunch hours.

Also, keep in mind that ABC, CBS, NBC and Fox affiliates located in the top 50 markets were required to begin placing new political file information online on August 2, 2012. These stations are not required to upload any political file documentation that was placed in the file prior to August 2, but they are required to keep the pre-August 2 materials in their paper public inspection files for two years from the date on which the documents were created. All other TV and Class A stations must continue to maintain their political files at their main studio, unless they voluntarily choose to upload their political files in advance of the July 1, 2014 deadline to do so.

Among the items that stations are required to upload on their own from their paper files to the FCC’s online file:

  • Citizens Agreements (if any)
  • Political Files since August 2, 2012 (top 50/top 4 networks for now)
  • Annual EEO Public File Reports
  • Responses to FCC inquiries
  • Records concerning commercial limits for children’s programming
  • Quarterly Issues/Programs Lists
  • Public Notices of assignment/transfer applications and renewal of license applications
  • Carriage elections of must-carry/retransmission consent
  • Joint sales agreements or time brokerage agreements
  • Non-commercial station donor lists
  • Class A statements of continuing eligibility

There are also a number of other documents that the FCC has indicated it will upload into stations’ online public files. However, it is important that stations diligently check their online public files to ensure they are complete, as the ultimate responsibility for maintaining a complete online public file is the station’s, and not the FCC’s. Items that should be automatically uploaded by the FCC are:

  • Authorizations
  • Applications and related materials
  • Contour maps
  • Ownership Reports (FCC Form 323)
  • The Public and Broadcasting Manual
  • EEO Forms (Forms 396 and 397)
  • Investigation materials originated by the FCC
  • Children’s Programming Reports (FCC Form 398)

Given the sheer size of public inspection files, the uploading process can be very labor intensive, and stations that have not yet commenced that process should immediately turn their attention to it. Stations should also understand that their public inspection files are now open to anyone with an Internet connection, making it for less likely that any omissions will go unnoticed. As recent issues of our monthly FCC Enforcement Monitor indicate, the FCC has not been hesitant to fine even noncommercial stations for public inspection file violations, and we are definitely seeing a trend by the FCC of issuing $15,000 fines rather than the base fine of $10,000. Time to get those page scanners running at top speed.

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Earlier today, the FCC released a Sixth Further Notice of Proposed Rulemaking relating to its biennial broadcast ownership report filing requirements, reigniting a controversy over privacy, broadcast investment, and indeed, the very purpose of the reports.

In 2009, the FCC revamped its Form 323, the Commercial Broadcast Station Ownership Report, somewhat to address data collection shortcomings identified by the U.S. Government Accounting Office, but mostly to try to make the information more standardized and transparent for academic researchers wishing to generate industry-wide ownership statistics, particularly with regard to minority and female ownership. Unfortunately, the FCC’s initial effort to revise the form seemed to have focused on trying to create a form that researchers would applaud, rather than on the “user experience” of those required to fill it out. The result was an awkward effort at forcing complex ownership information into highly redundant machine-readable spreadsheet formats.

Causing particular consternation, however, was a new requirement that every officer, director and shareholder mentioned in those reports have a unique FCC-issued Federal Registration Number (FRN). Because the FCC wants researchers to be able to track the race, ethnicity and gender of each individual connected with a broadcast station, it requires that those registering to obtain an FRN provide either a Taxpayer Identification Number (TIN), or a Social Security Number (SSN). This, according to the FCC, is necessary to allow it to differentiate between individuals that may have similar names and addresses.

Not surprisingly, this requirement met with fierce opposition from numerous groups, including: (1) those who have heard the admonition of government and others to never reveal your SSN to anyone or risk identity theft; (2) broadcasters, who found less than thrilling the experience of badgering their shareholders to either hand over their SSN or take the time to apply for and deliver the FRN themselves; (iii) broadcast lawyers, trying to get ownership reports on file by the deadline despite never hearing back from a significant percentage of those asked to cooperate to provide individual FRNs; and (iv) the investor community, which is not fond of the idea of having to hand over personal information because an individual chose to buy shares of a broadcast company rather than a movie studio.

After fierce opposition and various failed efforts to get the FCC to eliminate the requirement or at least create an alternate method of obtaining an FRN that didn’t require an SSN or TIN, the FCC had a change of heart when required by the U.S. Court of Appeals for the DC Circuit to explain itself (you can read Paul Cicelski’s discussion of that response here). The FCC defended the new ownership report filing requirements by telling the court that no one would be forced to hand over their SSN or TIN, as it was going to permit broadcasters to apply for a Special Use FRN (SUFRN, one of the most descriptive acronyms you will find) in cases where a party refuses to allow use of its SSN/TIN. In light of this representation, the court declined to intervene, and the FCC proceeded with implementation of the new ownership report form and requirements.

With the availability of SUFRNs and various other changes to the ownership report form and filing system, the FCC was finally able to make the oft-extended filing deadline stick, with commercial broadcasters filing their November 1, 2009 ownership reports by a July 8, 2010 deadline. However, the effort at making the data more accessible for researchers ended up making the form very burdensome for broadcasters required to complete and submit the reports. The biggest issue is structural–requiring the submission of the exact same information over and over in a filing system never lauded for its user-friendliness. During the numerous extensions of the filing deadline, the FCC did incorporate some features like copy and paste to lessen the burden of creating duplicative reports, but no tech feature can overcome the burden created by requiring the filing of the exact same ownership information over and over again for each station in a group rather than just reporting the ownership of that group (once) and the stations that are in it. Because of this, even a relatively small broadcast group can find itself filing well over a hundred ownership report forms.

The irony is that even media researchers–the very group for which this unwieldy reporting system was created–have begun to complain that the sheer volume of filings makes it difficult to sort through the mass of repetitive data. Many communications lawyers seem to agree, finding the “old” ownership reports far more useful in understanding a station’s ownership than the current edition.

Still, broadcasters and the FCC seemed to have reached a detente over the reports, with broadcasters quietly grumbling to themselves about the mind-numbing repetitiveness of drafting and filing the reports, but (having seen in the earlier iterations of the “new” report) knowing how much worse it could be. That detente may have ended today when the FCC released the Sixth Further Notice of Proposed Rulemaking, which tentatively concludes that the need to uniquely identify each person connected with a broadcast station is so strong that it must end the availability of SUFRNs and require that all reported individuals get an FRN based upon their SSN or TIN.

While the FCC’s conclusions are “tentative”, and it requests comment on these and many other questions relating to the ownership report, you can feel the collective chill go down broadcasters’ spines as the FCC proceeds to suggest that it could fine individuals who fail to provides an SSN/TIN-based FRN, and queries whether broadcasters should be required to warn their shareholders of that. Telling shareholders or potential shareholders that they face fines for electing to invest their money in broadcasting is not exactly the best way to attract investment to broadcasting, including investment by the minority and female investors the FCC so clearly wants.

But it is that last issue that raises the most curious point of all: to get minority and female ownership information, the FCC seeks to implement an awkward, intrusive, burdensome, privacy-insensitive ownership reporting regime premised on the need for both massive ownership filings and the tracking of individuals by their SSN to determine minority and female ownership trends in the industry. Wouldn’t it be far simpler, less intrusive, and less burdensome to just ask broadcasters to provide in their ownership reports (or elsewhere) aggregate data on their minority and female officers, directors, and shareholders? Researchers could then just utilize that data to create industry totals rather than having to wade through mountains of unrelated ownership data to derive it themselves.

Instead of this simplified approach, the FCC seems intent upon using the clumsy mechanism of ownership reports to assess minority and female representation in the industry, stating in the Sixth Further Notice of Proposed Rulemaking that “Unlike many of our filing obligations, the fundamental objective of the biennial Form 323 filing requirement is to track trends in media ownership by individuals with particular racial, ethnic, and gender characteristics.” For those of us who have been in the industry for quite some time, that claim is surprising, as the very first sentence of Section 73.3615, the FCC rule that governs the filing of ownership reports, states: “The Ownership Report for Commercial Broadcast Stations (FCC Form 323) must be electronically filed every two years by each licensee of a commercial AM, FM, or TV broadcast station (a “Licensee”); and each entity that holds an interest in the licensee that is attributable for purposes of determining compliance with the Commission’s multiple ownership rules.”

In attempting to convert a reporting obligation designed to ensure multiple ownership rule compliance into an academic research tool on minority and female broadcast ownership, the FCC undermines both goals. Broadcasters have routinely provided the minority and female ownership data the FCC seeks without fuss, and can hardly be faulted for wishing to do so in a straightforward manner that: (a) doesn’t require unnecessarily complex and redundant filings; and (b) doesn’t require them to badger their shareholders for private information while threatening their shareholders with federal fines for failing to comply. Rather than “doubling down” on a flawed approach, perhaps it is time for the FCC to step back and reassess the most efficient way of obtaining the desired information–more efficient for broadcasters, more efficient for the FCC, and more efficient for media researchers.

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Today, December 13, 2012, is the effective date of the FCC’s rules implementing the Commercial Advertisement Loudness Mitigation (CALM) Act. As a result, all commercial broadcast television stations and multichannel video program providers (“MVPDs”) must have by today either sought a waiver or installed equipment and undertaken procedures to comply with the Advanced Television Systems Committee (ATSC) A/85: “ATSC Recommended Practice: Techniques for Establishing and Maintaining Audio Loudness for Digital Television,” also known as the RP.

For locally inserted commercials, stations must install and maintain equipment and software that measures the loudness of the content and ensures that the dialnorm metadata value matches the loudness of the content when encoding audio for transmission (try saying that three times fast!). For commercials already embedded in the programming, stations must be able to pass through that CALM-compliant programming without adverse changes.

As long as that benign pass-through is accomplished, stations can rely on appropriate certifications from program suppliers to demonstrate compliance with respect to embedded commercials. If a program supplier does not provide the certification, “large” television stations and “large” and “very large” MVPDs (as defined by the FCC) must conduct annual spot checks of the programming. The first spot checks must be completed one year from today, by December 13, 2013. Details on these compliance requirements can be found in Paul Cicelski’s post on the CALM Act earlier this year. We will also shortly be posting a Pillsbury Advisory on ensuring continuing CALM Act compliance.

As noted above, the FCC created a waiver procedure for stations and MVPDs where compliance would be financially burdensome, allowing them up to a year of additional time to come into compliance. Waiver requests were originally due back in October, but the FCC announced two days ago that it would accept waiver applications from small television stations filed through today. “Small” television stations, that is, those with less than $14 million in revenues in 2011 or that are in markets 150 to 210, were not required to submit highly detailed financial data with their waiver requests, and the FCC indicated that waiver requests would be deemed granted upon filing unless the FCC later advises the applicant otherwise.

In response, more than 125 waiver requests were filed. Earlier this week, the FCC granted two of them, including one from a television station in the midst of a studio move that will include installation of upgraded equipment for CALM Act compliance. Stations that do not have a waiver request on file with the FCC by today need to have the equipment and procedures in place to ensure they are operating in compliance with the CALM Act. That means that stressed television viewers will be having a calmer holiday season, while station and MVPD engineers and managers stress out trying to remain CALM.

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by January 10, 2013, reflecting programming aired during the months of October, November, and December 2012.

Statutory and Regulatory Requirements
As a result of the Children’s Television Act of 1990 (“Act”) 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 online 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 younger. Form 398 must be filed electronically with the FCC. The FCC automatically places the electronically filed Form 398 filings into the respective station’s online public inspection file. However, each station should confirm that this has occurred to ensure that its online public inspection file is complete. The base forfeiture for noncompliance with the requirements of the FCC’s Children’s Television Programming Rule is $10,000.

Noncommercial Educational Television Stations
Because noncommercial educational television stations are precluded from airing commercials, the commercial limitation rules do not apply to such stations. Accordingly, noncommercial television stations have no obligation to place commercial limits documentation in their public inspection files. Similarly, though noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and younger, they do not need to complete FCC Form 398. They must, however, maintain records of their own in the event their performance is challenged at license renewal time. In the face of such a challenge, a noncommercial station will be required to have documentation readily available that demonstrates its efforts to meet the needs of children.

A PDF version of this entire article can be found at 2012 Fourth Quarter Children’s Television Programming Documentation.

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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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Don’t forget that by December 3, 2012, all commercial and noncommercial full power television stations, as well as all digital low power, digital Class A, and digital television translator stations that are licensed, or are operating pursuant to Special Temporary Authority, must electronically file an FCC Form 317 with the FCC. The purpose of the Form 317 is to disclose whether a station provided ancillary or supplementary services on its digital spectrum at any time during the twelve month period ending on September 30, 2012.

Ancillary or supplementary services are all services provided on a portion of a station’s digital spectrum that is not necessary to provide the required single, free, over-the-air signal to viewers. Thus, any video broadcast signal provided at no charge to viewers is exempt from the fee. According to the FCC, 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 did provide such ancillary/supplementary services in the past year, then the FCC expects that station to include in its Form 317 the services provided, the amount of gross revenues derived from those services, and a remittance Form 159 submitting payment to the government of 5% of the gross revenues generated by those services.

What if your station has never used any of its digital capacity for ancillary or supplementary services? It doesn’t matter, as all digital TV stations are required to file a Form 317 annually, whether or not they have transmitted any non-broadcast services. Stations unfamiliar with this requirement will want to take a look at our Client Advisory for more information, and make sure they don’t miss the coming deadline. Missing the deadline can result in a totally different “fee” being imposed on a station by the FCC – a fine for failure to timely file required forms.

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While most presidential candidates were concentrating yesterday on last minute campaign events aimed at swaying undecided voters, independent presidential candidate Randall Terry was instead focused on winning votes at the FCC, filing multiple election day political advertising complaints against broadcast stations.

I wrote last week of an FCC decision holding that a DC-area station had failed to provide Terry reasonable access to airtime as required by Section 312 of the Communications Act. According to the FCC, Terry, an independent presidential candidate known for seeking to air visually disturbing political ads prominently featuring aborted fetuses, was entitled as a federal candidate to purchase airtime because he was on the ballot in West Virginia. While Terry was apparently not on the ballot in DC, Maryland, or Virginia, the area primarily served by the station, the FCC concluded that the station’s Noise Limited Service Contour covered nearly 3% of the population of West Virginia, making Terry a legally qualified candidate for purposes of demanding airtime on the DC-area station.

Apparently buoyed by that success, Terry yesterday filed complaints against five Florida television stations arguing that he has once again been denied reasonable access rights. What makes these filings odd is that, although dated November 5th, they were not filed with the FCC until November 6th, election day. Even if Terry actually intended to file them on November 5th, that would still be too late for the FCC to take any meaningful action before the election was over. That means Terry has already begun the process of positioning himself for the next election, and is perhaps looking to establish friendly FCC precedent now that can be used against stations then.

What also makes Terry’s Florida filings notable is that he is not seeking reasonable access as a candidate for president (presumably because he was not on the presidential ballot in Florida). Instead, his reasonable access complaints are based upon being on the ballot as a candidate for the U.S. House of Representatives, representing South Florida’s 20th Congressional District. Terry alleges in his complaints that all five stations cited Section 99.012(2) of the Florida Statues as a reason for not accepting his ads. That Section provides that “No person may qualify as a candidate for more than one public office, whether federal, state, district, county, or municipal, if the terms or any part thereof run concurrently with each other.” Since Terry was on the ballot in a number of states running for president, the stations argued that the Florida Statute prevented him from also appearing on a ballot in Florida as a candidate for the U.S. House of Representatives. The stations’ argument is that Terry was therefore not a legally qualified candidate for federal office in Florida, and thus not entitled to reasonable access.

Terry’s response to that argument cites no caselaw, FCC or otherwise, but argues by analogy that stations did air Romney/Ryan ads in Florida despite Ryan also being on the ballot in Wisconsin to keep his House seat. That is not a particularly strong argument, however, as I suspect that stations in Florida were actually airing Romney ads, and Romney was unquestionably a legally qualified candidate on the ballot. If Ryan also appeared in those ads, that would not alter a station’s obligation to provide reasonable access to Romney for his ads, and the “no censorship” provision of the Communications Act means that Romney is free to present anyone else he wants in his ads without interference.

Since the FCC is not generally in the business of interpreting state election laws, the central question in these complaints is whether the FCC will defer to a licensee’s reasonable judgment as to who is a legally qualified candidate in the licensee’s own state. If not, broadcasters will find that once simple reasonable access analysis is growing steadily more complex and dangerous. As foreshadowed by last week’s post, reasonable access issues seem destined to become a growing part of future elections. Yesterday’s Terry complaints appear to be an effort to turn up the heat on stations, even where there is no useful remedy available to a candidate whose multiple campaigns have already concluded.

Copies of the Terry complaints can be found here.

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The FCC today released a political advertising decision that, while perhaps not surprising, will still alarm many broadcasters. Back in February, I wrote a pair of posts (here and here) about Randall Terry, who was then seeking airtime during the Superbowl to air ads featuring graphic footage of aborted fetuses, ostensibly in support of his effort to become the presidential nominee of the Democratic Party. It appears that the Democratic Party didn’t want him, as the Democratic National Committee sent stations a letter asserting that Terry was not a candidate for the Democratic nomination and was not entitled to the broadcast airtime benefits legally qualified federal candidates receive.

In my first post in February, I noted that Section 312 of the Communications Act, which requires broadcast stations to grant “reasonable access” to airtime for federal candidates, was growing increasingly susceptible to a First Amendment challenge, and that the situation presented by the Terry ads — broadcasters being forced to air visually repugnant material that they would otherwise never subject their audience to, regardless of their own political bent — represents just the kind of scenario that might motivate broadcasters to challenge this statutory requirement. It certainly gives a judge or Congress an appealing set of facts to consider overturning or reforming the current law.

It is also worth noting that broadcasters are not allowed to channel such ads into parts of the day when children are less likely to be in the audience. This inability to channel such ads away from children has always been curious, as a candidate can hardly complain about being unable to reach an audience that is too young to vote anyway (and the candidate is of course free to reach out to them with more age-appropriate ads in any event). Indeed, the FCC, which has done a respectable job over the years of applying the Communications Act’s political ad requirements in the real world, once held that broadcasters could choose to shift such ads away from kid-friendly hours. The FCC was rebuffed in court, however, in a decision that focused entirely on how such channeling could infringe upon a candidate’s freedom of expression, seemingly oblivious to the freedom of expression of stations unwilling to subject their child viewers to such content.

As I wrote in my second post, the FCC was able to avoid a confrontation over recent Terry ads for a bit longer when it ruled in February that Terry was not a legally qualified presidential candidate on the Illinois ballot (where the station being challenged was located). It also ruled that even had that not been the case, the station was reasonable in turning down a request for Superbowl ad time since it is a uniquely popular event in which the station might well find it impossible to accommodate ads from competing candidates demanding “equal opportunities” under the Communications Act to air their ads in the Superbowl as well.

Knowing how attractive the plum of guaranteed ad time at a station’s lowest unit charge is to anyone wishing to get their message out there, it came as no surprise when the Terry campaign, now running Terry as an independent candidate, filed another complaint, this time against Washington, DC station WUSA(TV). Terry sought access on the basis of being a legally qualified candidate in West Virginia, a small portion of which, he asserted, falls within WUSA(TV)’s signal.

The station rejected Terry’s ads, noting that Terry was not a legally qualified candidate in its DC/Maryland/Virginia service area. When challenged at the FCC, it submitted a Longley-Rice signal contour map, which takes blocking terrain (e.g., mountains) into account, and which indicated that the station’s actual coverage of West Virginia was slim to none (“de minimis” in FCC parlance).

In determining where reasonable access must be granted, the FCC looks at a station’s “normal service area”, and for TV, it has generally considered a station’s Grade B contour to be the “normal service area”. The transition to digital TV, however, has eliminated the analog concept of a Grade B contour. In reaching today’s decision, the FCC concluded that since the FCC considers a digital station’s Noise Limited Service Contour (NLSC) to be the equivalent of an analog Grade B contour in other FCC contexts, it is appropriate to use the NLSC as the appropriate “normal service area” for purposes of reasonable access complaints. While engineers readily acknowledge that Longley-Rice contour analysis is a more accurate predictor of actual signal reception than the NLSC, Longley-Rice analysis can be complex, and it appears the FCC opted for the simplicity and bright line certainty of using the NLSC. While the NLSC represents a somewhat hypothetical coverage area, NLSC coverage maps are widely available, including on the FCC’s own website, making it an easier tool for candidates to utilize in planning their media buys.

Since, according to the FCC, WUSA(TV)’s NLSC covers nearly 3% of West Virginia’s population, the FCC concluded in today’s decision that the station was unreasonable in rejecting Terry’s ads. While the FCC’s decision is a pragmatic one, it adds more kindling to the reasonable access fire, as stations are now forced to offend their audiences with content from candidates that are legally qualified in any area that is within their NLSC service area, whether or not actual TV reception exists. This not only increases the number of reasonable access requests stations may face, but will further antagonize their viewers, who might understand why a station has to air ads for a candidate that is on the ballot in their area, but will be particularly perplexed as to why a station is airing offensive content from a candidate they have never heard of and cannot vote for or against. When Congress drafted the reasonable access and “no censorship of political ads” provisions of the Communications Act, it probably assumed that extreme content would not be a problem since a candidate was unlikely to air such content if he or she wanted to be elected. However, that logic evaporates when the viewing audience doesn’t even have the opportunity to vote against such a candidate.

While the FCC appears to have been concerned that a more complex contour analysis could be gamed by a broadcaster, the result instead unfortunately encourages issue activists of every persuasion to game the system for their own gain. In the present case, it is pretty obvious that buying very expensive airtime in the nation’s capital is not a cost-effective way of reaching less than 3% of the voters in West Virginia, and that the real audience is the large DC-area population for which Terry was apparently unable to qualify to be on the ballot. That became even more obvious when WUSA(TV) provided the Longley-Rice contour map indicating that the station actually had little or no coverage in West Virginia, but the Terry campaign nonetheless continued to press for airtime on the station.

The obvious path for future issue activists is to declare their candidacy for federal office, but instead of doing the hard work of qualifying for the ballot in large population centers in order to be heard, taking the easier path of qualifying for the ballot in less populated surrounding areas that are just within the fringe coverage of a big market station’s predicted NLSC coverage. By following this formula, they get guaranteed access to airtime in front of a large market audience, and at much lower rates than commercial advertisers would pay, with the added benefit that the station cannot edit the ad or decline to air it no matter how offensive the content.

For those who make the not unreasonable argument that putting up with some questionable exploitation of the political ad rules is necessary to ensure that legitimate candidates can get their message out, consider the following: only federal candidates have a right of reasonable access. In this heated political season, particularly in the heavily contested large population centers, stations have been forced to preempt the spots of many of their normal commercial advertisers to make room for political spots for federal candidates (seen a car ad lately?), and local and state candidates have similarly suffered from having their ads pushed aside to make way for federal candidate ads. As a result, forcing broadcasters to air content that offends adult viewers, disturbs child viewers, and damages the relationship of trust between the broadcaster and its public harms more than just the broadcaster and its audience. It harms each and every local and state candidate that actually is on the ballot in a station’s market. They too would like to get their message out, but in their case, to people who can actually vote for them and that are affected by who is elected to represent them. To the extent that “all politics is local”, it make little sense to shunt aside these local and state candidates merely to guarantee access to those using the Communications Act’s “federal formula” to game the system for their own agendas.

While today’s decision is not one that will be welcomed by broadcasters, make no mistake, it is not the FCC’s fault that we have reached this point. The reasonable access requirements for federal candidates are encoded into the Communications Act, and there is only so much the FCC can do in applying the statute in a political landscape that is far more complex than those who drafted these provisions likely ever contemplated. With election season nearly over, and many stations sold out of airtime through the election, the immediate impact of today’s decision will be limited. It is a safe bet, however, that the underlying issue will continue to haunt future elections.