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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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As we reported last month, the federal government has decided to conduct the first-ever national test of the Emergency Alert System. On June 9, 2011, FEMA and the FCC announced that the nationwide test is scheduled to occur on November 9, 2011, at 2pm Eastern Standard Time.

In an effort to answer questions about the test, the FCC has launched a helpful “Emergency Alert System Nationwide Test” information page which can be found here. The page includes a countdown clock (117 days and counting!) and provides the who, what, when, where and why regarding the first national test.

Last month we also reported that the FCC has implemented a rulemaking proposing sweeping changes to the Part 11 EAS Rules in order to codify the obligation that EAS Participants begin formatting EAS messages using the Common Alerting Protocol (CAP). The FCC’s Third Further Notice of Proposed Rulemaking raises a host of questions, the most immediate of which is whether the current September 30, 2011 deadline for implementing CAP should be extended. For the vast majority of EAS Participants trying to meet that deadline, the answer to the FCC’s question appears to be a resounding “yes”. Among other issues, installing new EAS equipment just a month before the first national EAS test is likely to result in a national test beset by the “teething pains” of getting the new equipment functioning smoothly.

If you wish to respond to this or any of the other CAP-related questions being considered by the FCC, remember that comments are due at the FCC next Wednesday, July 20.

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Posted in: Emergency Alert System
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In a setback for media interests, the United States Court of Appeals for the Third Circuit yesterday issued its Opinion in Prometheus Radio Project v. FCC (“Prometheus II“). The case focuses on the Federal Communications Commission’s most recent revisions to its media ownership rules, which were adopted in a 2008 Order (the “2008 Order“) concluding the FCC’s 2006 Quadrennial Regulatory Review.

The Prometheus II Opinion generally upheld those portions of the 2008 Order which retained the pre-2003 versions of the:

  • Radio/Television Cross-Ownership Rule
  • Local Television Ownership Rule, including the Top-Four Station and Eight Voices Tests
  • Local Radio Ownership Rule
  • Dual Network Rule

With respect to each of these rules, media interests had argued that the limitations were no longer necessary in the public interest as a result of increased competition, and that the FCC was therefore obligated under Section 202(h) of the 1996 Telecommunications Act to repeal or modify those regulations. The Third Circuit rejected those arguments and found the FCC’s analysis supporting a continuation of its pre-2003 ownership limitations to be reasonable, and not arbitrary, capricious, and/or unconstitutional.

The Third Circuit also remanded some portions of the 2008 Order to the FCC. First, the Third Circuit spent a considerable portion of the Opinion determining that the FCC failed to meet notice and comment requirements of the Administrative Procedure Act with regard to its decisions affecting the Newspaper/Broadcast Cross-Ownership (“NBCO”) rules. The court repeated at length criticisms raised by FCC Commissioner Copps and former Commissioner Adelstein and ultimately decided that these defects were so significant as to require that the NBCO rules be vacated and remanded to the FCC to be considered again as part of the 2010 Quadrennial Regulatory Review.

Also with respect to the NBCO rule, the 2008 Order had granted five permanent waivers of the rule to Gannett and to Media General. A group of public advocacy groups challenged those grants, but the Third Circuit held that the FCC had not been given an opportunity to pass on the arguments below and that the court therefore lacked jurisdiction to hear those challenges.

Finally, the Court ruled that the FCC failed to adequately address proposals to foster minority and female ownership of broadcast media in the 2008 Order and the related Diversity Order. It particularly criticized the FCC’s use of SBA criteria in determining whether a party was an “eligible entity” under the failed station solicitation rule adopted in the 2008 Order, and its failure to give adequate consideration to proposals from interest groups to limit eligibility to socially and economically disadvantaged businesses. As a result, this ruling was also vacated and remanded to the FCC.

From here, the FCC will now have to address the items that the Third Circuit has remanded to it. In addition, the FCC is again considering its multiple ownership rules in conjunction with its 2010 Quadrennial Regulatory Review. Therefore, the ball is yet again in the FCC’s court.

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By: Scott R. Flick and Christine A. Reilly

The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ local public inspection files by July 10, 2011, reflecting information for the months of April, May and June, 2011.

Content of the Quarterly List

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station. The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.

To demonstrate a station’s compliance with this public interest obligation, the FCC requires a station to maintain, and place in the public inspection file, a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.

Given the fact that program logs are no longer officially mandated by the Commission, 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 TV station compliance that is discussed below and which must be produced by Class A TV applicants and licensees.

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By Lauren Lynch Flick and Christine A. Reilly

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by July 10, 2011, reflecting programming aired during the months of April, May and June, 2011.

Statutory and Regulatory Requirements

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

For all full-power and Class A television stations, website addresses displayed during children’s programming or promotional material must comply with a four-part test or they will be counted against the commercial time limits. In addition, the contents of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations. The definition of commercial matter now include promos for television programs that are not children’s educational/informational programming or other age-appropriate programming appearing on the same channel. Licensees must prepare supporting documents to demonstrate compliance with these limits on a quarterly basis.

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

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Hope everyone had a great July 4th! With the long weekend now behind us, I wanted to remind readers that July 10th represents a significant filing deadline for radio and television stations. Below is a brief summary of the quarterly deadlines, as well as links to our Client Alerts describing the requirements in more detail.

Children’s Television Programming Documentation

All commercial full-power television stations and Class A LPTV stations must prepare and file with the FCC a Form 398 Children’s Programming Report for the second quarter of 2011, reflecting children’s programming aired during the months of April, May, and June, 2011. The Form 398 must be filed with the FCC and placed in stations’ public inspection files by July 10, 2011.

In addition to requiring stations to air programming responsive to the educational and informational needs of children, the FCC’s rules limit the amount of commercial material that can be aired during programming aimed at children. Proof of compliance with the children’s television commercial limitations for the second quarter of 2011 must also be placed in stations’ public inspection files by July 10, 2011.

For a detailed discussion of the children’s programming documentation and filing requirements, please see our Client Alert here.

Quarterly Issues Programs Lists

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems. Radio and television broadcast stations, whether commercial or noncommercial, must prepare and place in their public inspection files by July 10, 2011, a list of important issues facing their communities, and the programs which aired during the months of April, May, and June, 2011 dealing with those issues. For a detailed discussion of these requirements, please see our Client Alert here.

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Posted in: Children & Media
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As I wrote in April, the FCC decided after much delay to ask the U.S. Supreme Court to review a pair of lower court rulings seriously challenging the FCC’s prohibition on indecent programming that airs before 10pm. Today the Supreme Court announced that it has agreed to hear the matter, setting up what could be the most important broadcast content case in decades.

The lower court decisions being challenged by the FCC involve the unintentional airing of isolated expletives on Fox during live awards programs, and an episode of NYPD Blue on ABC that showed a woman’s buttocks (the FCC-approved term for that part of the anatomy). That the underlying facts of these cases are so different (an accidental expletive on live TV versus scripted nudity in a dramatic program) increases the likelihood of a relatively broad indecency decision by the Court, as opposed to a narrow finding that the FCC was or wasn’t justified in pursuing a particular case based on the facts of that case.

The Court could ultimately support the government’s general right to police indecency while finding fault with the FCC’s current interpretation of how that should be done. However, the elephant in the room is whether it still makes sense for the government to assert that broadcasters have lesser First Amendment rights than all other media. The implications of the Court finding that broadcasters, a major source of news and information for most Americans, have First Amendment rights equivalent to newspapers would create regulatory ripples far beyond indecency policy. For that reason, the Court will likely think long and hard before making such a sweeping pronouncement.

Still, it is increasingly true that most audiences in the U.S. have ceased to draw a distinction between, for example, broadcast channels and cable/satellite channels. As they flip through the growing number of programming channels on their flat screen TVs, or increasingly watch Internet content over those same TVs, the government’s case for regulating the content of a small number of those channels grows more tenuous. The Supreme Court will now tell us whether it has grown too tenuous to continue.

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As I wrote back in February, the federal government has decided to conduct the first-ever national test of the Emergency Alert System. Today, FEMA and the FCC announced that the test will occur on November 9, 2011, at 2pm Eastern Standard Time. On that date, the public will hear a message indicating “This is a test,” but FEMA and the FCC indicate that the entire test could last up to three and a half minutes.

Because the test is a presidential EAS test, it must be retransmitted by radio and television broadcasters, cable operators, satellite radio service providers, direct broadcast satellite service providers, and wireline video service providers. In the announcement, FEMA took pains to note that the test will not simply be a pass/fail exercise, but an opportunity to find out what is working and what isn’t, so that the system can be tweaked and improved.

It is likely that the national EAS test will become an annual event following this initial test. One issue that was not discussed in the announcement, however, is how the current September 30, 2011 deadline for EAS participants to install EAS equipment compatible with the Common Alerting Protocol (CAP) could affect the test. The FCC had originally said that the intent of a national test was to assess the existing EAS operation, as opposed to testing the implementation and functionality of the new CAP-compliant EAS equipment soon to being purchased and installed by broadcast, cable, and satellite operators.

As the FCC just last week announced the commencement of a rulemaking to adopt rules and processes for the implementation of CAP, there is a growing feeling that the September 30, 2011 CAP implementation deadline may need to be extended in order to prevent a situation where EAS participants are required to immediately purchase and install new EAS equipment that may or may not comply with the CAP requirements ultimately adopted by the FCC. Whether intended or not, a national EAS test just six weeks after the CAP deadline will likely end up being more about the teething pains of CAP implementation than about how reliably the current EAS infrastructure functions.

As a result, preventing the national test from being sidelined by the inevitable implementation glitches of CAP may be the strongest reason yet for extending the CAP implementation deadline to a date beyond November 9, 2011. It will be good to know how the never-before-tested national EAS infrastructure functions before adding the additional complexities of CAP-compliant EAS equipment to it.