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At its Open Meeting this morning, the Federal Communications Commission released its latest proposal to require commercial and noncommercial television broadcasters to maintain their public inspection files online. The FCC had taken incremental steps in this direction over the years by first permitting and encouraging stations to maintain their public files online, and then requiring that certain content of the public file, such as annual EEO public file reports and the progress reports that broadcasters filed during the DTV transition, also be posted on stations’ websites.

However, most television broadcasters will recall that in 2007 the FCC suddenly upped the stakes considerably when it undertook a review of the public interest obligations applicable to television broadcasters as they transitioned to digital television. The results of that review, known as “Enhanced Disclosures”, specifically mandated that television broadcasters complete a long and excruciatingly detailed new form, FCC Form 355, reporting on their programming content quarterly, and maintain almost the entirety of their public file in an online format.

While these requirements were adopted by the FCC in 2007, they were never actually implemented. Broadcasters petitioned the FCC to reconsider its order due to the excessive burden the new requirements placed on stations, and advised the government’s Office of Management and Budget, which must approve any new paperwork requirements before they go into effect, of the burden the new rules would impose.

This summer, the FCC released a report entitled “The Information Needs of Communities.” It concluded that the Form 355 was “overly bureaucratic and cumbersome.” Consistent with that conclusion, the FCC today abandoned the Form 355, but stated that it is internally circulating a Notice of Inquiry that will examine what manner of disclosures television broadcasters should instead make.

While eliminating the Form 355, the FCC did not give up on its goal of an online public inspection file. In fact, today’s proposal to implement an online public file suggests the inclusion of documents that the FCC had exempted in its 2007 order, as well as documents that stations have never previously had to place in their public file at all. Those items which are now apparently fair game include shared services agreements and a station’s political file. In addition, the FCC is proposing that stations be required to post information online regarding all of their on-air sponsorship announcements.

Both the political file and sponsorship identification proposals pose a potentially enormous burden for TV stations. How big that burden will be should become clearer when the FCC releases the actual text of the Notice of Proposed Rulemaking. Commissioner McDowell specifically asked for comment on the burden imposed by requiring that stations’ political files be posted online and continuously updated. During today’s Open Meeting, he pointedly noted that the FCC had decided to exempt the political file from online posting in 2007 because the burden outweighed the public interest benefit.

In that regard, the FCC did acknowledge some of the concerns broadcasters had earlier raised regarding the burden of online posting. For example, the FCC is proposing that, rather than requiring broadcasters to maintain their own websites for posting their public file information, the FCC create its own hosting site for that purpose.

We will certainly have more to say about this proceeding once the FCC releases the text of its proposals and inquiries. Commissioner McDowell made an additional point at the Open Meeting which certainly will resonate with broadcasters, and that is whether the burdens these new procedures would involve will result in any true benefit to the local communities the stations serve. Much was said today in support of the item based on a desire to drive additional broadband adoption, and to aid academics and advocacy groups in monitoring media. However, the purpose of the public inspection file has always been to ensure that a station’s local community has easy access to the information necessary to assess the station’s performance, particularly at license renewal time. It will be hard to justify the additional burden on TV stations if the primary “benefit” of an online file goes to academicians and distant advocacy groups rather than to a station’s local audience. Implicit in that approach is a “one size fits all” assumption about what types of programming meet the needs of each and every local community.

This is obviously a very important proceeding for all broadcasters, since the FCC has made clear that once online public files are implemented for TV, radio is likely next. All broadcasters will therefore want to get involved in this issue once the FCC announces the deadlines for filing comments.

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By: Paul A. Cicelski

As I mentioned last week, the FCC has been creating an online reporting system for EAS Participants to use to report their results in connection with the first ever nationwide EAS test, which is set to take place on November 9, 2011. In addition, the FCC has been preparing a new EAS Handbook that is designed to be used during the nationwide EAS test in place of the old Handbook. The FCC has now completed both tasks and issued a Public Notice today announcing the activation of the online reporting system and the release of the Handbook. The reporting system and the Handbook can be accessed on the FCC’s Public Safety & Homeland Security Bureau’s EAS Nationwide Test Landing Page.

With respect to the reporting system, the FCC is asking that EAS Participants populate the database in advance of the test with items like station call letters, license identification numbers, geographic coordinates, EAS assignments (i.e., LP or NP status, etc.), EAS monitoring assignments, and the emergency contact representative of the EAS Participant. The FCC is also requesting that EAS Participants input immediate test results, (e.g., was the EAN received and was it passed on) on the day of the test. While the FCC is encouraging rapid online reporting of each Participant’s test results, it is mandatory that the information be submitted to the FCC within 45 days following the test (either online or on paper).

The FCC has created three separate forms which, together, request the following information:

  • Form 1: Prior to November 9, please provide background information on your facilities and equipment.
  • Form 2: On November 9, please provide information on whether you received the alert and whether you passed on the alert.
  • Form 3: Between November 10 and December 24, please provide more detailed information on the success or failure of the test. (Please note that there is a conflict in dates between the FCC’s form page on the website which indicates that the deadline is December 24, while the FCC’s Public Notice indicates that the deadline is December 27).

According to the FCC, the new EAS Handbook “provides EAS Participants with instructions for participating in the first nationwide test of the EAS, scheduled for November 9, 2011, at 2:00 p.m., Eastern Standard Time. A copy of the Handbook must be located at normal duty positions or EAS equipment locations where an operator is required to be on duty and must immediately be made available to staff responsible for participating in the test.” Importantly, the FCC specifically notes that the “handbook will supersede all other EAS Handbooks only during the operation of the Nationwide EAS Test on November 9, 2011.”

Don’t forget that a great deal of additional useful information on the national test can be found at the National Alliance of State Broadcasters Associations’ EAS Alert website and at the National Association of Broadcasters’ EAS National Test website. Both will greatly assist EAS Participants in successfully completing the national test.

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In a decision that may cause a fair amount of chaos for program producers, television stations, and cable systems, the FCC yesterday released an Order overturning 298 previously granted closed captioning waivers. According to the Order, the FCC granted only three temporary waivers in the period between 1996, when the captioning requirement was created by Congress, and 2005. However, in 2006, the FCC suddenly granted 303 permanent waivers of the captioning requirement. While the Order indicates that the FCC has received an additional 500 waiver requests since that time, it does not indicate whether any of these later requests have been acted on. It therefore appears that the 298 captioning waivers that were overturned represent the great majority of all outstanding waivers.

Of the 303 waivers granted in 2006, 298 were challenged by a consortium of organizations representing the deaf and hard of hearing. Those appeals had been pending at the FCC for just over five years. During that time, Congress modified the captioning requirements in the Communications Act when it adopted the 21st Century Communications and Video Accessibility Act of 2010 (the “CVAA”). The three significant captioning changes made by the CVAA are (1) the change of the term “undue burden” as the standard for captioning waivers to the term “economically burdensome”, (2) the imposition of a six month time limit (with exceptions) for the FCC to process captioning waiver requests, and (3) the codification in the statute of the FCC’s current practice of considering programming exempt from captioning while a waiver request is pending.

It appears that the need to modify its rules to incorporate these changes refocused the FCC’s attention on the outstanding waiver appeals, leading to the sudden action on the appeals after five years. Ultimately, the FCC concluded that the waivers should not have been granted, as they improperly relied on (1) the noncommercial nature/lack of remunerative value of the programming, (2) the program producers’ nonprofit status, (3) the presumption that waivers would be granted where “the provision of closed captions would curtail other activities important to [the producers’] mission”, (4) the grant of permanent waivers where temporary waivers would be more appropriate, and (5) the failure of the waiver grants “to consider whether petitioners solicited captioning assistance from their video programming distributors.”

This last factor is particular important for TV stations and cable systems. The FCC formally announced in the Order that because these program distributors are the parties actually responsible for ensuring that programming is captioned, “soliciting funds from these responsible entities is necessary to meeting one’s captioning obligations, and … evidence of such solicitation is required before a petitioner may qualify for a captioning exemption.” As a result, these local programming outlets can expect to be solicited by program producers in a very formal way for the funds necessary to caption their programming.

The Order lists the waiver recipients whose waivers have been revoked, and requires that they either file a new request for a waiver by January 18, 2012, or be in compliance with the FCC’s closed captioning rules by January 19, 2012. Those filing a new waiver request will be required to submit current documentation demonstrating that providing closed captions would be economically burdensome given (1) the nature and cost of the closed captioning difficulty/expense, (2) the impact on the operation of the program provider/owner, (3) the financial resources of the program provider/owner, and (4) the type of operations of the program provider/owner, as well as any other factors the petitioner thinks relevant to the request (including alternatives proposed by the petitioner as a reasonable substitute for closed captioning).

It doesn’t take much reading between the lines of the Order to conclude that closed captioning waivers are going to be much more difficult to obtain in the future. Given that 100% of English and Spanish broadcast TV programming must now be captioned (unless it falls into one of the FCC’s categorical exemptions), the FCC’s decision may impose significant hardship on many program producers and the TV stations that carry their programming. At a minimum, the producers whose waivers have been revoked will need to go through the waiver request process again. If their request is not granted, then they, along with program producers who cannot make the necessary waiver showing, will need to begin captioning their programming or cease production and/or distribution of that programming to media outlets governed by the FCC’s captioning rules.

Finally, because of the captioning changes made by the CVAA referenced above, yesterday’s Order also includes a Notice of Proposed Rulemaking in which the FCC seeks comments on how to interpret Congress’s change of the waiver standard language from “undue burden” to “economically burdensome.” The FCC indicates that its tentative conclusion is that Congress did not intend the language change to have a substantive effect upon waiver requests, particularly given that other language in the Communications Act relating to captioning waivers was not changed by the CVAA. The FCC’s request for comments focuses on whether this tentative conclusion is accurate. Those program producers whose waivers were revoked will want to consider submitting comments in this rulemaking, as it will likely end up determining the standard by which any new waiver requests will be judged.

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As reported previously, FEMA, along with the FCC and NOAA, will conduct the first nationwide Emergency Alert System (EAS) Test on November 9, at 2:00 p.m. Eastern. The EAS has never been tested on a national level. Needless to say, it is important for EAS Participants to educate the public in advance of the test so as to avoid panic when the test airs.

The FCC and FEMA have produced public service announcements (PSAs) to increase public awareness of the test. The National Association of Broadcasters recommends that all EAS Participants air one or more of these PSAs, starting at least a week prior to the test, and then increase the frequency of the PSAs as the November 9 deadline draws near. Video and audio PSAs that can be used to educate the public are located on the FCC’s National EAS Test website.

In addition, the National Alliance of State Broadcasters Associations and the NAB have put together very useful EAS websites here and here that can greatly assist EAS Participants in conducting the national test. The NAB has put together a checklist that provides tips to ensure that EAS equipment is ready for the test, and outlines specific actions EAS Participants should take before and after the test. Also, FEMA has put together a just released “EAS Best Practices Guide” that provides helpful information for improving the effectiveness of EAS going forward. On the day of the test, stations should follow the procedures set forth in the FCC’s soon-to-be-released new EAS Handbooks, and disregard prior versions of the Handbooks.

The FCC is currently in the process of completing an electronic EAS reporting system to allow EAS participants to electronically report on their experience in participating in the national test (what went right and what went wrong at their facility). As soon as it becomes available, the FCC is encouraging EAS Participants to log in and populate the system with as much “pre-fill” information as possible in advance of the test so as to facilitate the rapid submission of reports by EAS Participants once the test has concluded.

While EAS Participants are not required to submit their EAS test reports electronically, the FCC is encouraging electronic filing to provide the FCC with “real time results” from the test. As soon as practicable following the test, the FCC is urging EAS Participants to let the FCC know whether they (1) received the Emergency Action Notification and (2) if required to do so, were able to rebroadcast the test. Within 45 days following the test, all EAS Participants must provide a comprehensive and detailed diagnostic report to the FCC on the results of their participation in the test. This mandatory report can be filed either electronically or on paper.

Perhaps the most important action EAS Participants can take beyond educating the public (and hopefully state and local officials) in advance of the test, is to make sure that their EAS equipment is functioning properly and is actually attended by someone when the national test message is received on November 9. While the equipment is designed to automatically receive and retransmit test messages, nothing beats having someone there to monitor the process and ensure the test is relayed smoothly.

Stay tuned for further details on the test as they become available, including a discussion of the soon-to-be-operational FCC national test filing database and the not-yet-released EAS Handbooks to be used during the national test. Both should be made public any day now.

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Both TV and radio stations are learning that medical marijuana can give you a bad headache. However, everyone, including the Department of Justice, currently seems uncertain as to the long-term prognosis for stations that aired medical marijuana ads. As I wrote here last week, leading to a number of articles on the issue in trade press and around the web this week, it is clear that the DOJ has abandoned any pretense of taking a restrained approach to the natural conflict between state laws permitting medical marijuana and federal laws prohibiting it as an illegal drug. The question I had raised back in May, and focused on in last week’s post, was whether the threat to media running medical marijuana ads had moved from theoretical to imminent.

When the DOJ sent letters to the landlords of medical marijuana dispensaries last week telling them to evict their dispensary tenants or risk imprisonment, forfeiture of their buildings and confiscation of all rent collected from those dispensaries, it became clear that media collecting ad revenues for promoting the sale of medical marijuana could just as easily be in the DOJ’s crosshairs. What I found interesting about the reaction to last week’s post, however, was an assumption by many that this is a radio-only issue, and that television stations “did not inhale” medical marijuana ad revenues these past few years. However, the first (and as far as I know, only) medical marijuana complaint pending at the FCC was lodged against a large market network TV affiliate.

The DOJ apparently doesn’t see it as a radio-only matter either. When the issue was raised by a reporter this week, U.S Attorney Laura Duffy caused a stir by announcing that her next target is indeed medical marijuana advertising, noting that she has been “hearing radio and seeing TV advertising” promoting the drug.

The good news for media in general is that, unlike the FCC, the DOJ is less concerned about past conduct, and more interested in reducing future medical marijuana advertising (and thereby reducing future medical marijuana sales). It was therefore in character when Ms. Duffy announced that her first step would be notifying media “that they are in violation of federal law.” The DOJ followed a similar approach in 2003 when it sent letters to broadcasters and other media threatening prosecution of those running ads for gambling websites on grounds that those media outlets were “aiding and abetting” the illegal activities. You can read a copy of the letter here. I note with a bit of irony that one of the arguments made by the DOJ in the 2003 letter is that stations should not be airing ads for online gambling “since, presumably, they would not run advertisements for illegal narcotics sales.”

While the DOJ later pursued some media companies for running ads for online gambling, including seizing revenue received from those ads, its efforts were principally aimed at making an example of those who failed to “take the hint” from the DOJ’s 2003 letter. It seems likely that the DOJ will follow a similar path with regard to medical marijuana ads, focusing primarily on putting an end to the airing of such ads as opposed to pursuing hundreds of legal actions against those who previously aired them.

Also providing at least a small sense of relief for media are more recent statements from the office of Ben Wagner, one of (along with Laura Duffy) California’s four U.S. Attorneys, indicating that he is not currently focusing on medical marijuana advertising. While that could obviously change at any time, it does suggest that any action against media for medical marijuana advertising is at the discretion of the individual U.S. Attorney, and not an objective of the DOJ as a whole.

If the DOJ remains true to its past practices, then broadcasters and other media can likely avoid becoming a target for legal action by ceasing to air medical marijuana ads now. Pursuing individual media outlets is resource-intensive for the DOJ, and raises some thorny legal issues. More to the point, there is little to be accomplished by such actions if media outlets have already stopped airing the ads.

With regard to the FCC, however, broadcasters are not so lucky. Unlike the DOJ, which can choose whether to pursue an action against a media outlet, the FCC will likely be forced to address the issue both in the context of adjudicating complaints against broadcasters for airing medical marijuana ads, and in considering whether a station’s past performance merits renewal of its broadcast license. Given the classification of marijuana as an illegal drug under federal law, and particularly in light of the government’s other attacks on components of the medical marijuana industry, it will be difficult for the FCC to avoid confronting the issue, even where a station stopped airing the ads years ago. As a result, print and online media outlets may be able to get the marijuana advertising out of their systems fairly quickly, but broadcasters could be suffering legal flashbacks for years to come.

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Spoiler alert: Tomorrow I’ll be participating in a webinar (with Tom Larsen of Mediacom and Sarah Barry and Robin Flynn of SNL Kagan) to discuss and debate whether the FCC will adopt new retransmission consent rules and whether rules are needed at all. If you want to be surprised at my comments, don’t read this post!

The debate so far has been characterized by a lot of rhetoric. True facts, when they are presented, usually lack context. For example, it is true that broadcast signal carriage rates are rising fast. But the multichannel pay providers attribute those rising rates to “greed”. It’s a safe bet that the real reasons for rising retransmission fees are more complex than that. There are plenty of greedy people in all sectors of for-profit commerce, but few have the ability to raise rates at will. Market forces have a way of curbing irrational demands.

What we have is a debate about whether the government should adopt new regulations governing private transactions that take place in the very complicated television distribution marketplace. Lost in the debate is any meaningful description of what that marketplace looks like today and how it came to this point. Tomorrow I’ll describe the marketplace and explain why it is permitting retransmission rates to rise. I doubt I’ll change anyone’s mind about whether retransmission rates should rise. But I hope an explanation of the market forces that are causing them to rise will nudge the debate in a more constructive direction.

And now for the spoilers. Is retransmission consent reform needed? As an advocate for broadcasters, I surely think not. But my many years of experience in both broadcast and multichannel pay television (I haven’t always been a lawyer) tell me the same thing. Rising rates reflect market forces adjusting compensation to better reflect relative value. Rates won’t rise at the current pace forever, and if they manage to exceed the underlying value of broadcast carriage rights, the market will drive those rates back down. Consumers aren’t hurt by rising retransmission rates. They are hurt when prices they pay for services are greater than the underlying value of the service. I can make a persuasive case that rising retransmission consent rates will, given time, result in lower cable and satellite bills.

Will the FCC adopt new rules curbing the flexibility of broadcasters in retransmission consent negotiations? The buzz in Washington is that it won’t. I don’t think the FCC would impose new rules even if it had the legal authority to do so. Many at the FCC understand the complexities of the television distribution market, and they understand that meddling in one small part of that market will inevitably have unintended consequences, harming consumers and competition in ways that would outweigh any hoped for benefits from new regulations.

If you’re interested in knowing more on this topic but can’t join the webinar tomorrow, please drop me an email and I’ll send a copy of my slides.

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In what became one of our more heavily circulated posts, I wrote a piece back in early May entitled “Will Marijuana Ads Make License Renewals Go Up in Smoke?” It noted that the Department of Justice was showing signs of abandoning its “live and let live” policy toward medical marijuana producers and dispensaries operating in compliance with state laws.

Because advertising by such dispensaries had become a significant revenue source for broadcasters in states where medical marijuana was legalized, the DOJ’s about-face placed broadcasters in an awkward position. While medical marijuana may be legal under state law, it has never been legal under federal law. This means that broadcast stations, which the law deems to be engaged in an interstate activity, and whose livelihood depends on license renewal by the FCC, are an easy target for a Federal Government intent upon suppressing the sale of medical marijuana. The takeaway from my post was that stations should think long and hard before accepting medical marijuana ads.

It became clear this morning that it was time to do an update on the subject when an article from the Denver Post came across my desk noting that “the last bank in Colorado to openly work with the medical-marijuana industry — Colorado Springs State Bank — officially closed down the accounts of dispensaries and others in the state’s legal marijuana business over concerns about working with companies that are, by definition, breaking federal law.” Like broadcasters, the banking industry is heavily regulated by the Federal Government, and it appears that Colorado bankers have collectively concluded that, despite the large sums of money involved, it is not worth the risk of dealing with medical marijuana dispensaries and incurring the wrath of the feds.

That development alone should concern broadcasters airing medical marijuana ads. However, late today, word got out that the DOJ, through its four U.S. Attorneys in California, sent letters threatening medical marijuana dispensaries in California with criminal charges and confiscation of their property if they do not shut down within 45 days. Of particular interest to broadcasters (and any other media running medical marijuana ads), these letters were sent not just to dispensaries, but to their landlords, effectively telling the landlords to evict their tenant or risk imprisonment, forfeiture of their building and confiscation of all rent collected for the period the dispensary was in business.

The DOJ’s willingness to threaten those who are not engaged in the sale of medical marijuana, but who merely provide services to those who are, should raise alarm bells for media everywhere. If landlords who collect rent from medical marijuana dispensaries are at risk, media that collect ad revenues from promoting the sale of medical marijuana could just as easily be in the DOJ’s crosshairs. More to the point, the Federal Government is in a much better position to exercise leverage over the livelihoods of broadcasters than over California property owners not engaged in any form of interstate activity.

Colorado bankers have apparently already reached a similar conclusion, and the DOJ’s stepped-up campaign in California against medical marijuana removes any doubt for broadcasters and other media as to which way the federal winds are now blowing. You can expect a heated legal and political battle between the states and the Federal Government over the DOJ’s efforts to nullify state medical marijuana laws. While that battle ensues, broadcasters and other media will want to do their best to stay out of the line of fire.

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This October has more than its share of filing deadlines for broadcasters to worry about. Of course, it is the end of the quarter, so broadcasters should be prepared for their routine quarterly filings. Additionally, certain states will have EEO and noncommercial ownership filing obligations. This year is also a radio license renewal year and a triennial must-carry/retransmission consent election year for television stations. All in all, there are a number of deadlines to keep track of, so read on.

October 1 (weekend)

  • Must-Carry/Retransmission Consent Elections: Deadline for commercial full power television stations to notify by certified mail all cable and satellite providers in their markets of their election between must-carry and retransmission consent for the next three-year period. More information on this election can be found here. Noncommercial stations must make requests for carriage, as they do not have retransmission consent rights.
  • EEO Public File Reports: Deadline for radio and television station employment units with five or more employees in the following states to prepare and place in their public inspection file, and on their website if they have one, their annual EEO Public File Report: Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, and Washington, as well as American Samoa, Guam, Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands.
  • FCC Form 323-E: Deadline for the following noncommercial stations to electronically file their biennial ownership report on FCC Form 323-E: Radio stations licensed to communities in Alaska, Florida, Hawaii, Oregon, and Washington, as well as American Samoa, Guam, Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands, and television stations licensed to communities in Iowa and Missouri.
  • Pre-filing Renewal Announcements: Date on which radio stations licensed to communities in Alabama and Georgia must begin airing their pre-filing license renewal announcements. The remaining announcements must air on October 16, November 1 and November 16.
  • License Renewal Filing: Deadline for radio stations licensed to communities in Florida, Puerto Rico, and the Virgin Islands to electronically file their license renewal applications. These stations must also commence their post-filing renewal announcements to air on October 1 and 16, November 1 and 16, and December 1 and 16.

October 10 (holiday)

  • Quarterly Issues/Programs Lists: Deadline for all radio, full power television and Class A television stations to place their Quarterly Issues/Programs List in their public inspection file.
  • Children’s Television: Deadline for all commercial full power and Class A television stations to electronically file FCC Form 398, the Children’s Television Programming Report, with the FCC and place a copy in their public inspection file. These stations must also prepare and place in their public inspection files their documentation of compliance with the commercial limits in programming for children 12 and under.

October 23 (weekend)

  • License Renewal Documentation: Date on which radio stations licensed to communities in North and South Carolina must place in their public inspection file documentation of having given the required public notice of their August 1st license renewal filing.
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October 1, 2011 marks the triennial deadline for full power television stations (and a few lucky qualifying LPTV stations) to send their written must-carry or retransmission consent elections to each of the cable and satellite providers serving their market. The elections made by this October 1st will govern a station’s carriage rights for the three-year period from January 1, 2012 to December 31, 2014, and the impact of these elections will be far more significant for individual TV stations than any made before.

To understand why, keep in mind that in the early days of must-carry/retransmission consent elections, the lack of local competition among cable providers allowed them to take a “my way or the highway” attitude toward television broadcasters. As cable subscribership soared, and local cable providers faced little or no competition for subscribers, broadcasters had little choice but to make their programming available for retransmission. Because cable providers were in a position to refuse to pay cash for retransmission rights, the largest broadcasters were limited to negotiating for non-monetary compensation (e.g., obtaining carriage for an affiliated program service, which led to the launch of Fox News, among others). Smaller broadcasters typically did worse, as they had a weaker negotiating position and little need for non-monetary compensation like guaranteed carriage of a non-existent second channel. These were the days before digital multicasting made such additional local channels at least plausible.

Faced with these challenges, many stations just elected must-carry, which guaranteed cable carriage while avoiding the need to engage in prolonged negotiations likely to result in little gain. That all changed with the arrival of satellite television providers, who provided competition to cable, and more importantly, needed local TV signals to take market share from cable providers. Both of these developments were critical to creating a free market for the retransmission of broadcast programming. First, because they lacked cable’s monopoly position, satellite providers were willing to pay cash to obtain the broadcast programming that would allow them to compete for subscribers. Second, as subscribers left cable for satellite, cable providers suddenly had to compete for subscribers, and couldn’t do it without ensuring continued access to local broadcast signals.

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Paul A. Cicelski

As I reported last month, my colleague Dick Zaragoza and I filed a Petition with the FCC asking for a further extension of the deadline for EAS Participants to implement the Common Alerting Protocol (CAP) standard for the Emergency Alert System (EAS).

We filed the Petition on behalf of representatives of all EAS Participants, which included 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. Today, the FCC released an Order agreeing with the need for an extension and changing the CAP deadline from September 30, 2011 to June 30, 2012.

The extension means that the thousands of EAS Participants across the country now have additional time to acquire and install the equipment needed to become CAP-compliant. In its Order, the FCC agreed with the arguments made in the Petition by the broadcast and cable industries that a later deadline was necessary in light of the regulatory uncertainty that remains regarding what is necessary for CAP compliance, particularly because the FCC’s EAS Third Further Notice of Proposed Rulemaking (released in May and which we reported on here) will undoubtedly lead to significant EAS rule changes that could alter the requirements for EAS Participants in a way that would impact the manner in which they will go about buying, installing, testing and operating new CAP-compliant EAS equipment. In short, the extension will enable EAS Participants to review and adapt to the final rules adopted or altered in the EAS proceeding.

According to the FCC’s Order, the extension is warranted because “until the Commission has completed its rulemaking process, it cannot meaningfully impose a deadline by which EAS Participants must be able to receive CAP-formatted alerts.” The Commission further stated that no one “can comply with section 11.56 yet, because the Commission has not finalized all the key technical specifics necessary for receiving CAP-formatted alerts” and that it is “unlikely that the Commission can address all of the issues raised in the Third FNPRM and ensure that the corresponding Part 11 rule amendments are adopted and effective prior to the current September 30, 2011 deadline.” Primarily for these reasons, the FCC extended the deadline to allow “adequate time to evaluate the impact of any changes to Part 11 before being required to comply with regulations the full impact of which cannot yet be known.”

On another positive note, the Commission’s extension of the CAP-compliance deadline may allow the first-ever National EAS Test scheduled by FEMA and the FCC (set for November 9, 2011) to run more smoothly. The hope is that, as argued in the Petition, the extension of the CAP-compliance deadline until June of next year will allow participants in the scheduled November 9, 2011 National EAS test to focus on the success of that test instead of being concerned with the functioning of newly-installed EAS equipment. For those interested in more background on the National EAS test, we previously reported on it here and here). With this most recent extension of the EAS CAP deadline, we hope we will be able to later report that the national test went smoothly.

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