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June 2015

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • Educational FM Licensee Receives $8,000 Fine for Unauthorized Operation
  • FCC Cancels $6,000 Fine for Late Filings due to Licensee’s Inability to Pay
  • Blaming Prior Legal Counsel, Telecommunications Provider Pays $2,000,000 Civil Penalty

Continued Unauthorized Operation Leads to $8,000 Fine

A New York noncommercial educational radio station received an $8,000 fine after repeatedly failing to operate its station in accordance with its authorization. Section 301 of the Communications Act prohibits the use or operation of any apparatus for the transmission of communications or signals by radio, except in accordance with the Act and with a license granted by the FCC. In addition, Section 73.1350(a) of the FCC’s Rules requires a licensee to maintain and operate its broadcast station in accordance with the terms of the station authorization.

In response to a complaint, an FCC agent discovered in October of 2012 that the licensee was operating the station from a transmitter site in Buffalo, New York, a location about 36 miles from the authorized site. The FCC made repeated attempts to contact the licensee. Ultimately, the president of the licensee confirmed the unauthorized operation and agreed to cease operating from Buffalo. The FCC then issued a Notice of Unlicensed Operation to the licensee, warning it that future unauthorized operations could result in monetary penalties.

After receiving another complaint, the FCC determined that the licensee had resumed unauthorized operation in November of 2012. In response, the FCC’s Enforcement Bureau issued a Notice of Apparent Liability (NAL) proposing an $8,000 fine. The FCC explained in the NAL that although the base fine for operating at an unauthorized location is $4,000, the egregiousness of the licensee’s violation warranted an upward adjustment of an additional $4,000. The FCC based this decision on the fact that the licensee had moved the location of its transmitter to a significantly more populous area more than 30 miles from its authorized location in an effort to increase the station’s audience while potentially causing economic or competitive harm to radio stations licensed to that community.

Following the NAL, the licensee sought a reduction or cancellation of the fine, claiming that it made good faith efforts to remedy the violation, had a history of compliance with the FCC’s Rules, and was unable to pay the fine. The FCC concluded that the licensee took no remedial actions until after it was notified of the violation, and found that the licensee’s continued operation from the unauthorized location after receiving a Notice of Unlicensed Operation demonstrated a deliberate disregard for the FCC’s Rules. Finally, the licensee failed to provide any documentation supporting its inability to pay claim. Accordingly, the FCC rejected the licensee’s arguments and declined to cancel or reduce the $8,000 fine.

In Rare Decision, FCC Cancels Fine Based on Station’s Operating Losses

In October of 2014, the FCC’s Video Division proposed a $16,000 fine against the licensee of a Class A TV station for violating (i) Section 73.3539(a) of the FCC’s Rules by failing to timely file its license renewal application, (ii) Section 73.3526(11)(iii) for failing to timely file its Children’s Television Programming Reports for eight quarters, (iii) Section 73.3514(a) for failing to report those late filings in its license renewal application, and (iv) Section 73.3615(a) for failing to timely file its 2011 biennial ownership report. The FCC also noted a violation of Section 301 of the Communications Act because the station continued operating after its authorization expired. Continue reading →

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Beginning next Wednesday, July 1, 2015, TV stations affiliated with the Top Four networks (ABC, CBS, NBC, and Fox) in the top 60 markets will be required to provide 50 hours of video description per calendar quarter.

Currently, the video description requirement applies only to commercial TV stations affiliated with a Top Four network that are located in the top 25 markets. However, the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) requires the FCC to extend the video description requirements to Top Four-affiliated stations in markets 26-60 (a) after filing a report with Congress on the state of the video description market; and (b) not later than six years after the enactment of the CVAA.

In its 2011 Video Description Order, the FCC announced that the requirement for 50 hours of video description would expand to the 60 largest markets, as determined by the Nielsen 2014-2015 TV Household DMA rankings, on July 1, 2015.

In addition, the FCC noted that the video description rules require all stations to pass through video description when it is provided by their network if the station has the technical capability to do so.

The CVAA gives the FCC authority, beginning in 2020, to phase in the video description requirements for up to an additional 10 markets each year. Accordingly, the FCC will continue to assess the costs and benefits of video description to determine whether extending the requirements beyond the top 60 markets is appropriate.

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The FCC has slowly but surely been striving to improve the nation’s Emergency Alert System (“EAS”) to improve safety warnings to the public. In its most recent effort to achieve this goal, the FCC issued an Order last week updating its rules to establish operational standards to be used during national EAS tests and emergencies. According to the FCC, the release of the Order is meant to “help facilitate the use of EAS in a way that maximizes its overall effectiveness as a public warning and alert system.” The FCC’s rule changes were made in part to respond to problems that occurred during the first nationwide EAS test, which took place in November of 2011.

The FCC’s actions should come as no surprise to those following our reporting on EAS both before and after the first nationwide test. As a refresher, in the Commission’s 2013 EAS Report Strengthening the Emergency Alert System (EAS): Lessons Learned from the Nationwide EAS Test, the FCC concluded that a number of technical changes could be made to improve EAS and the national alerting system. Among other things, the first nationwide EAS test revealed that many encoders/decoders did not receive or transmit the test because the “location code” sent was “Washington, DC”, which those encoders/decoders did not recognize as being relevant to their local area.

To address this error, the FCC will require EAS participants to be able to receive and process a national location code. Specifically, the Commission has adopted “six zeroes” (000000) as the national location code pertaining to every state and county in the U.S. in order to make EAS consistent with Common Alerting Protocol (“CAP”) standards. This requirement will kick in one year from the effective date of the new rules (the effective date is thirty days after the Order is published in the Federal Register). EAS Participants should be aware that the change to the “six zeroes” national code could make some older “legacy” EAS equipment obsolete, or require that existing EAS equipment software be updated.

The Order also adopted a new rule regarding the use of a National Periodic Test (“NPT”) event code for future EAS testing, which is designed to bring consistency to the operation of EAS equipment in future national, regional, state, and local activations. The FCC determined that using the NPT for national tests would be a less burdensome alternative to using the Emergency Alert Notification (“EAN”) code. This is because the EAN has characteristics that are different than standard event codes, which include having maximum authority to supersede any other live alert or event as well as having no definitive duration. In contrast, the NPT is treated just like other codes, has a duration of two minutes, is already included in Part 11 of the FCC’s Rules, and is therefore already programmed into most EAS equipment. Just like the “six zeroes” for the national location code, all EAS receivers will need to be able to receive the NPT code within one year from the effective date of the new rules.

The FCC is also creating a new and permanent “Electronic Test Reporting System” (“ETRS”) and is mandating that all EAS Participants use the ETRS to electronically file test results with the FCC immediately following any nationwide EAS test.  As many filers may recall, a number of problems occurred with the previous electronic filing system, including not providing filers with confirmation of having filed, and not allowing any updates or corrections to a report after it has been filed. These glitches will hopefully be corrected, and the FCC believes that data retrieved from its new ETRS will be usable to create a planned “FCC Mapbook” database that organizes stations and cable systems by their state, EAS Local Area, and EAS designation. EAS Participants are required to complete the identifying information initially required by the ETRS within sixty days of the effective date of the new ETRS rules, or within sixty days of the launch of the ETRS, whichever is later. 

Lastly, the FCC is requiring EAS Participants to comply with minimum accessibility rules to ensure that EAS visual messages are accessible to all members of the public, including those with disabilities. The Order discussed and adopted new requirements for the following three operational areas in particular: (1) display legibility; (2) completeness; and (3) placement. Regarding display legibility, the FCC amended its rules to require that displays be “in a size, color, contrast, location, and speed that is readily readable and understandable.” For completeness, the FCC amended its rules to require that the EAS visual message “be displayed in its entirety at least once during any EAS alert message.” Finally, for placement, the FCC reiterated its requirement that the EAS visual message “be displayed at the top of the television screen or where it will not interfere with other video messages,” and amended its rules to require that the visual message not “(1) contain overlapping lines of EAS text or (2) extend beyond the viewable display except for crawls that intentionally scroll on and off of the screen.” These new requirements will go into effect six months after their effective date, which is thirty days after their publication in the Federal Register.

Some of these deadlines may seem far in the future, but it is important that EAS Participants be certain that they are capable of processing the NPT and six zeroes location code sooner rather than later. Those unwilling to heed this advice should be aware that the Order specifically states that the Media Bureau will work closely with the Enforcement Bureau to ensure that the new national test rules are strictly followed. In other words, parties that failed to adequately perform (or even participate in) the last national EAS test can expect the FCC to be much sterner the next time around.

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Today, the FCC released a Public Notice with a 45-page Appendix listing all full-power and Class A television stations eligible to participate in the reverse auction and receive protection in the repacking process. Licensees should immediately review the Appendix to ensure their station has been included and to determine whether the appropriate authorization for their facility has been listed for auction participation and protection in the repacking. Any station that believes it has been wrongly omitted from the Appendix must file a Petition for Eligible Entity Status by July 9, 2015.

In addition, the Public Notice announces that Form 2100, Schedule 381, the Pre-Auction Technical Certification Form, must also be filed by July 9, 2015. This form requires that the licensee review the station’s authorization listed in the Appendix, as well as the underlying technical information contained in the FCC’s database, and certify whether that information is correct. If it is not, the licensee must state in the form whether the discrepancy is the result of a Commission error or of the licensee operating at variance from its authorization.

If the discrepancy is due to an error by the FCC in its records, the corrected facilities will be used by the Commission for participation in the reverse auction and protection in the repacking process. Where the discrepancy is due to the licensee operating at variance, the licensee must file the appropriate applications to correct that information in the FCC’s database.  Those corrected parameters will not, however, be used for participation in the reverse auction or protection in the repacking process.

As we have written previously, Schedule 381 requests a great deal of information, such as the year of the last structural analysis of the station’s antenna structure and the standard under which that analysis was conducted; whether the station’s antenna is shared with another station; the antenna’s frequency range if it is capable of operating over multiple channels; and the make, model number and maximum power output capacity of the station’s transmitter.

The Public Notice states that if a licensee does not file a Schedule 381, the FCC will assume that the information in the station’s authorization and in the FCC’s database is correct. However, in that circumstance, the Commission will not have the same information regarding that station as it has for stations that did file the Schedule 381, so it is unclear at this time how the FCC will handle that situation.

The FCC will ultimately release a detailed summary of the baseline coverage and population served by each station eligible for participation in the auction and protection in the repacking process. That summary will reflect the information submitted in the Schedule 381, including corrections of discrepancies resulting from FCC errors, along with any changes made as a result of successful Petitions for Eligible Entity Status.

With today’s Public Notice, the FCC moves the spectrum auction a significant step closer to reality.

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May 2015

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • 404 Not Found: Missing Online Public File Documents Lead to $9,000 Fine
  • Wireless Providers Pay $158 Million to Settle Mobile Cramming Violations
  • Failure to Timely File License Renewal Application Results in $1,500 Fine

FCC Ramps up Enforcement of Online Public File Rule with $9,000 Fine and Multiple Admonishments

This month, the FCC proposed a $9,000 fine against one TV station licensee and admonished two others for violating the online public file rule. TV stations were required to upload new public file documents to the online public file on a going-forward basis beginning August 2, 2012, and should have finished uploading existing public file documents (with certain exceptions) by February 4, 2013. Until now, the FCC had taken relatively few enforcement actions against licensees for public file documents that exist but haven’t been uploaded to the station’s online public file, making three cases in one month stand out.

Section 73.3526(e)(11)(i) of the FCC’s Rules requires that every commercial TV licensee place in its public file, on a quarterly basis, an Issues/Programs List that details programs that have provided the station’s most significant treatment of community issues during the preceding quarter. Section 73.3526(b)(2), which the FCC modified in 2012, requires TV station licensees to upload these and most other public file documents to the FCC-hosted online public file website.

On October 1, 2014, an Oregon TV licensee filed its license renewal application. An FCC staff inspection revealed that the licensee failed to upload to the online public file copies of its Issues/Programs Lists for its entire license term. The FCC concluded that the licensee missed both the August 2, 2012 and the February 4, 2013 deadlines by over two years, resulting in two separate violations. Additionally, the licensee did not disclose the online file violations in its license renewal application, creating an additional violation of the FCC’s Rules. Each violation cost the station $3,000, for a total proposed fine of $9,000.

Also this month, a Honolulu licensee and a different Oregon licensee caught the FCC’s attention for online public file violations. The FCC proposed fines of $9,000 and $3,000 respectively against the stations for failing to timely file all of their Children’s Television Programming Reports. In addition, the FCC admonished both licensees for failing to timely upload electronic copies of their quarterly Issues/Programs Lists by the February 4, 2013 deadline. The FCC determined that while the licensees uploaded the documents approximately 18-19 months late, they were at least uploaded prior to the filing of each station’s license renewal application. Because this preserved the public’s ability to undertake a full review of the stations’ public file documents in connection with potentially filing a petition to deny, the FCC concluded that admonitions rather than additional fines were an appropriate response.

FCC Continues Crack Down on Cramming Violations With Two Multi-Million Dollar Settlements

The FCC announced this month that, in coordination with the Consumer Financial Protection Bureau and the attorneys general of all 50 states and D.C., it has reached settlements with two large wireless carriers to resolve allegations that the companies charged customers for unauthorized third-party products and services, a practice known as “cramming.” Investigations revealed that the companies had included charges ranging from $0.99 to $14.00 per month for unauthorized third-party Premium Short Message Services (“PSMS”) on their customers’ telephone bills, and that the companies retained approximately 30-35% of the revenues for each PSMS charge they billed. Continue reading →

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As we’ve previously written, the FCC adopted an Audible Crawl Rule in April 2013 requiring TV stations, by today, May 26, 2015, to present aurally on a secondary audio program stream (“SAP”) any non-newscast emergency information that a station presents visually. On March 27, 2015, the National Association of Broadcasters (“NAB”) filed a petition urging the FCC to grant a six-month extension of this deadline. The NAB also requested that the FCC (i) waive the requirement that visual but non-textual emergency information be included in the audible crawl, and (ii) reconsider the utility of including school closing information in its list of emergency information to be included in the SAP. Today, the FCC released a Memorandum Opinion and Order announcing that it will grant each of the NAB’s three waiver requests, extending the general compliance deadline by six months to November 30, 2015.

As adopted, the rule would have required all emergency information presented visually to be fully conveyed verbally on the SAP twice, including weather maps and school closings. Unfortunately, certain inherently graphical information, such as a Doppler Radar map, does not contain text files that can simply be converted to speech—making compliance not only difficult, but arguably impossible (e.g., imagine describing a Doppler Radar map twice in the time it is onscreen.). The NAB also contended that the aural presentation of lengthy school closure lists “serves no real utility, [and] may in fact impede timely provision of emergency information to vision impaired viewers” that could obtain school closure information through more efficient means. The 50 State Broadcasters Associations and the Society of Broadcast Engineers were among commenters that filed in support of the waiver requests.

Balancing the challenges of implementation against the concerns stated in comments submitted by the American Council of the Blind and the American Foundation for the Blind, the FCC announced that it will waive the requirement to aurally describe visual but non-textual emergency information, but limit the waiver to 18 months. Broadcasters now have until November 2016 before the FCC will require them to “aurally describe the critical details regarding the emergency and how to respond to the emergency . . . including the critical details conveyed solely by a map or other graphic display.”

Lastly, as the NAB requested (and all commenters supported), the FCC will waive the requirement that school closing announcements and bus schedule changes be included in the audible crawl SAP pending FCC reconsideration of that issue as part of its Second Further Notice of Proposed Rulemaking (adopted May 21, 2015, but not yet released by the FCC).

As the compliance deadline was set to kick in today, many broadcasters were likely contemplating which was the better of two bad options—ceasing to visually provide any emergency information, or risking an enforcement action for failing to convert onscreen text (or graphics) into speech. Fortunately, today’s waiver grant avoids the need for broadcasters to make that Hobson’s choice, so better late than never!

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The FCC has released a Notice of Proposed Rulemaking, Report and Order, and Order (really, that’s the title of it) (“NPRM/R&O”) proposing regulatory fees for Fiscal Year 2015 and making other changes to its regulatory fee structure. Comments on the FCC’s proposals are due June 22, 2015, with reply comments due July 6, 2015.

For the fourth consecutive year, the FCC proposed $339,844,000 in regulatory fee payments. The proposed fee tables are attached to the NPRM/R&O as Appendix C and can be used to estimate your likely 2015 regulatory fee burden. Note that effective this year, regulatory fees on Broadcast Auxiliary licenses and Satellite TV construction permits have been eliminated from the fee schedule.

In the NPRM, the FCC requested comment on whether the apportionment of regulatory fees between TV and radio broadcasters should be changed, noting that it expects to collect approximately $28.4 million from radio broadcasters and $23.6 million from TV broadcasters, but that commercial radio stations outnumber commercial TV stations by 10,226 to 4,754. Because the FCC generally allocates regulatory fees based upon the number of FCC employees employed in regulating a particular service, the FCC appears to be suggesting that radio broadcasters may have to shoulder a larger share of the broadcast regulatory fee burden

The FCC also noted that while TV regulatory fees are based upon the size of the DMA in which the TV station is located, radio fees are based upon the population actually served and the class of the station. The NPRM seeks comment on whether changes should be made to this structure, but indicated that any changes made would be unlikely to impact fees this year.

In addition, the FCC requested comment on a petition filed by the Puerto Rico Broadcasters Association requesting regulatory fee relief for broadcasters in Puerto Rico due to economic hardships and population declines specific to Puerto Rico.

Finally, the FCC adopted some changes to its regulatory fee structure. The most significant of these is a new regulatory fee, proposed to be set at $0.12 per subscriber annually, imposed upon direct broadcast satellite (“DBS”) providers (i.e., DISH and DIRECTV). The FCC pointed out that while DBS providers historically have paid regulatory fees with respect to regulation by the International Bureau, they have not paid fees with respect to the Media Bureau which also regulates the service. The payment of fees by DBS providers to recover costs associated with Media Bureau regulation of DBS was teed up in a notice of proposed rulemaking last year and was adopted in the NPRM/R&O.

After comments and reply comments are received, the FCC will release an order setting forth the final 2015 regulatory fee amounts. This order is usually released in August but sometimes isn’t available until September. The order will also establish the precise filing window for submitting regulatory fees, which is typically in the latter part of September.

Those wishing to oppose the proposed regulatory fee changes will need to file their comments and reply comments with the FCC by the respective June 22, 2015 and July 6, 2015 deadlines.

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The FCC announced this afternoon that it has reached an agreement with iHeartCommunications resolving “an investigation into the misuse of the Emergency Alert System (EAS) tones….”  As we’ve noted before on numerous occasions, the federal government is very touchy about the use of an EAS alerting tone when there isn’t a test or actual emergency.

There are principally two reasons for this.  First, as the FCC noted (again) in today’s Public Notice, quoting Travis LeBlanc, Chief of the Enforcement Bureau, “[t]he public counts on EAS tones to alert them to real emergencies….  Misuse of the emergency alert system jeopardizes the nation’s public safety, falsely alarms the public, and undermines confidence in the emergency alert system.”

Second, the greatest advantage and disadvantage of the EAS system is that the tone contains digital data that automatically triggers EAS alerts by other stations monitoring the originating station.  This creates a highly efficient daisy chain that can distribute emergency information rapidly without the need for human intervention.

Unfortunately, that creates certain problems, one of which is that there is no human to intercede when an EAS warning of a zombie apocalypse occurs and there are no actual brain-eating creatures in the area (don’t laugh, this has actually happened already).  It is the electronic equivalent of Winston Churchill’s statement that “a lie gets halfway around the world before the truth has a chance to get its pants on.”

Compounding the harm is that while the originating station knows that the alert is false, and can so inform public safety personnel and the public itself when contacted about it, stations further down the automated distribution chain know only that they received and redistributed an EAS alert.  They have no knowledge of the facts surrounding the alert itself, potentially leading to a longer period of public panic before the EAS system locates its pants.

For reasons that are hard to discern, other than perhaps that the public has become more aware of EAS (resulting in more attention from advertisers and programmers seeking to leverage that familiarity), there has been a significant uptick in false EAS alerts in the past five years.  The result has been a growing number of FCC fines in amounts that previously only appeared in indecency cases.  Today’s Public Notice indicates that the FCC has “taken five enforcement actions totaling nearly $2.5 million for misuse of EAS tones by broadcasters and cable networks” in the past six months.

In today’s case (the Order for which has now been released), the FCC stated that “WSIX-FM, in Nashville, Tennessee, aired a false emergency alert during the broadcast of the nationally-syndicated The Bobby Bones Show.”  Delving into the details, the FCC noted that:

While commenting on an EAS test that aired during the 2014 World Series, Bobby Bones, the show’s host, broadcast an EAS tone from a recording of an earlier nationwide EAS test.  This false emergency alert was sent to more than 70 affiliated stations airing “The Bobby Bones Show” and resulted in some of these stations retransmitting the tones, setting off a multi-state cascade of false EAS alerts on radios and televisions in multiple states.

The FCC indicated that the station has formally admitted to a violation of the FCC’s EAS rules, and has agreed to (1) pay a $1,000,000 civil penalty, (2) implement a three-year compliance plan, and (3) “remove or delete all simulated or actual EAS tones from the company’s audio production libraries.”

While the size of the financial penalty is certainly noteworthy, the real first in this particular proceeding is the FCC’s effort to eradicate copies of EAS tones before they can be used by future production staffs.  Given the easy access to numerous recordings of EAS tones on the Internet, the FCC might be a bit optimistic that deleting the tone from a station’s production library will prevent a recurrence.  However, it is perhaps an acknowledgement that most false EAS tone violations are the result of employees unaware of the FCC’s prohibition rather than a producer bent on violating the rule.  It is also an acknowledgement that even a multi-year compliance program may not solve the problem if an EAS tone is lurking in the station library, seductively tempting and teasing that ambitious new staffer who just got a great idea for a funny radio bit….

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While the road to hell may be paved with good intentions, the path to any government objective is usually paved with forms and paperwork. We were reminded of that today when the FCC released a Public Notice reminding full power and Class A television stations of the May 29 Pre-Auction Licensing Deadline. Only those facilities that a station has constructed and for which a license application has been filed by May 29 will be recognized by the FCC for purposes of the reverse auction and spectrum repacking process. That is, stations will not be able to benefit in the reverse auction from, or claim protection in the repacking process for, any facilities modifications completed after May 29, despite the current September 1, 2015 deadline for transitioning Class A stations to digital operation. We wrote about this deadline back in January.

More importantly, the Public Notice further fleshes out the pre-auction process, announcing that the FCC will release a list, expected in mid-June, of each station’s eligible facilities as reflected in the FCC’s database on May 29. Every full power TV and Class A station will then be required to certify to the FCC that the information for that station in the FCC’s database is correct, or identify any errors.

If the error in the database is the FCC’s mistake, it will be corrected in the database and the corrected facilities protected in the auction and repack.  Where the discrepancy is due to the licensee’s error, the licensee must file a modification application to correct the error and seek Special Temporary Authority to operate at variance until a new license is issued. In the latter case, the corrected facilities will not be used for the reverse auction, nor protected in the repacking if licensed after May 29.  Accordingly, the Public Notice urges licensees to make use of the remaining window of opportunity to modify their authorizations to reflect the parameters that they wish to carry into the auction and repacking process.

As you may have guessed, there will be another form involved, so the Public Notice also officially releases Form 2100, Schedule 381, which stations will have to complete not only to make the certification above, but to provide a significant amount of technical information that the FCC has not previously collected.  The information appears designed to assist the FCC in analyzing the impact its repack decisions will have on individual stations and to identify hurdles to completing the repack in the 39-month time period the FCC anticipates.  Among the requested items are: the year of the last structural analysis of the station’s antenna structure and the standard under which that analysis was conducted; whether the station’s antenna is shared with another station and the antenna’s frequency range if it is capable of operating over multiple channels; and the make, model number and maximum power output capacity of the station’s transmitter.

The information sought is detailed and may take stations time to collect. However, today’s Public Notice announces that stations are expected to file the form within 30 days of the FCC’s release in June of its “protected facilities” list. Accordingly, all full power and Class A television stations that have not already done so should review their facility parameters as reflected in the FCC’s CDBS and Antenna Structure Registration databases to confirm their accuracy and immediately file any needed corrective applications. In doing so, stations should also compile the information they are going to need to complete Schedule 381, as the FCC will be looking for that completed form in July.

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At its Open Meeting scheduled for next Thursday, May 21, 2015, the FCC will consider extending emergency information accessibility rules to “second screen” devices such as computers, tablets, and smartphones.  The contemplated Second Report and Order and Second Further Notice of Proposed Rulemaking would expand the class of entities subject to the FCC’s accessibility rules (adopted in April 2013) to include multi-channel video programming distributors (“MVPDs”) providing linear video programming on second screen devices.  Such a change could have far-reaching implications for both MVPDs and device manufacturers.

By way of background, the FCC released a Report and Order (“Order”) and Further Notice of Proposed Rulemaking (“FNPRM”) on April 9, 2013, adopting some, and proposing other, emergency information and video description rules to implement Sections 202 and 203 of the Twenty-First Century Communications and Video Accessibility Act of 2010.  Among other requirements, the Order adopted new rules mandating that video programming distributors (“VPDs”) present aurally on a secondary audio stream (“SAS”) any non-newscast emergency information that it presents visually.  The emergency information provided on the SAS must be read at least twice in full and preceded by an aural tone to alert blind and visually impaired audience members that emergency information is available and to differentiate audio accompanying the underlying programming from emergency information audio.

In the FNPRM, the Commission sought comment on whether an MVPD that permits its subscribers to access linear video programming via second screen devices qualifies as a VPD that is providing “video programming”, as defined in Sections 79.1(a)(1) and (2) of the FCC’s Rules, and is therefore covered by the emergency information requirements adopted in the Order.  Issues left open in the FNPRM that the FCC will likely have to address in drafting the Second Report and Order include:

  • Who bears the burden of making emergency information available on these devices: the MVPD, the device manufacturer, or both?
  • Should the rules apply regardless of where the subscriber is located when accessing the programming (i.e., inside or outside the home)?
  • Does it matter whether the emergency content is being delivered over the MVPD’s IP network or over the Internet?

Although the FCC’s announcement in the tentative agenda for the meeting mentions only proposed rules related to accessibility of emergency alerts, the FNPRM also opened the door to extending video description rules to second screen devices.  Notably, the FCC has remarked that, “as a technical matter, once the [SAS] is received by a device, that stream can be made available regardless of whether it is used for emergency information or video description.”  Next week, we’ll hopefully learn how far the FCC intends to go on both of these requirements.