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The FCC has announced the comment and reply comment deadlines for its recently-announced Further Notice of Proposed Rulemaking (FNPRM), which proposes to replace nearly all of a television station’s paper public inspection file with a more expansive online file hosted by the FCC. Comments are due at the FCC by December 22, 2011, with Reply Comments due by January 6, 2012. In addition, the public can also submit comments to the Office of Management and Budget regarding the proposal’s impact under the Paperwork Reduction Act by January 23, 2012.

This is an important proceeding as it involves far more than simply moving public files online. The goal of this proceeding, and the separate proceeding also commenced recently to replace television station Quarterly Issues Programs Lists with a new form (which we discussed here) is to create fully searchable databases of uniform information about broadcast stations and their programming that researchers, advocates and policy makers can cite in support of a particular regulatory theory, proposal, or complaint. Beyond the burden on TV stations in populating this database, broadcasters are justifiably leery of the long term impact on licensee discretion.

Historically, there has been a strong correlation between the FCC gathering information on the amount of programming being aired of a particular type, and demanding that more (or sometimes less) of it be aired in the future. Based upon this history, broadcasters can be forgiven if they feel a First Amendment chill down their collective spine when the FCC seeks more information about their programming decisions, and worse yet, declares that such information should be instantly available to anyone with an Internet connection.

As we have seen in the indecency context where the FCC has been buried by email complaints, some against stations that never actually aired the program at issue but which were incorrectly reported on the Internet as having aired it, making station information available by Internet risks drowning out the voices of local viewers and listeners with the shrill cries of distant agitators.

More to the point, given the power of the FCC over broadcasters’ license renewals, and the stress and expense of defending against even baseless complaints at the FCC, the path of least resistance for a broadcaster is to succumb to the pressure and program in a way that makes the government happy. The government may try to exert this pressure subtly (usually not), but like water passing over a stone, it inexorably wears the broadcaster down. The details of the FNPRM provide an indication of how much regulatory water the FCC is proposing to send broadcasters’ way.

In adopting these proposals as mere disclosure requirements, the FCC can implicitly denote what it considers to be a suspect program or practice without having to adopt a rule specifically prohibiting that particular program/practice and facing judicial scrutiny of the prohibition. Taken together, the online public file and program reporting proposals appear to be an exercise in “regulation by raised eyebrow,” with the modern twist of enlisting the Internet community to crowdsource station monitoring and complaints to ensure adequate pressure on broadcasters to get with the program.

Broadcasters as a whole recognize, and are dedicated to, meeting the needs of their local community. The FNPRM’s suggestion that they should also meet the needs of the global Internet community merely distracts from that fundamental mission. The reason public inspection files are so rarely visited by the public is that local viewers and listeners are already very knowledgeable about their local stations’ service to their community. All they have to do is turn on their TV or radio to find out more. They have traditionally shown little need for, or interest in, the public file.

Contributing to that disinterest is the anachronistic nature of the file itself. For example, what is the utility of a contour map to the average viewer/listener when TV stations are carried throughout the DMA by cable, satellite, translators and boosters, and radio stations are streamed throughout their market and beyond? While a good case could be made for scaling back the public file rule, the FNPRM’s effort to sprint in the opposite direction is difficult to fathom, particularly given how strained station resources already are in the current economy.

All television broadcasters (and frankly, radio broadcasters with an eye to the future) should carefully consider how the changes proposed in the FNPRM would affect their ability to function and serve their communities, and ensure that they let the FCC know just what that impact would be.

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As promised at its last Open Meeting, the FCC has released a Notice of Inquiry focused on replacing television stations’ Quarterly Issues/Programs Lists with an online, standardized and searchable programming disclosure form. The effort seeks, depending on your point of view, to reform or to reinstate the failed FCC Form 355 that the FCC adopted in 2007, but which never went into use because of numerous legal challenges attacking the form’s onerous reporting requirements and overt programming mandates.

While the FCC claims that it is starting anew, as opposed to merely revising the old Form 355, it is not starting from scratch. Instead, the FCC punts on crafting a new form and asks whether the form that the Public Interest, Public Airwaves Coalition (“PIPAC”) has presented to the FCC will do the trick. That form would collect information regarding a television station’s programming in the following categories:

  • Local News: “programming that is locally produced and reports on issues about, or pertaining to, a licensee’s community of license”;
  • Local Civic/Governmental Affairs: “broadcasts of interviews with or statements by elected or appointed officials and relevant policy experts on issues of importance to the community, government meetings, legislative sessions, conferences featuring elected officials, and substantive discussions of civic issues of interest to local communities or groups”;
  • Local Electoral Affairs: “candidate-centered discourse focusing on the local, state and United States Congressional races for offices to be elected by a constituency within the licensee’s broadcast area”;
  • Closed Captioning and Video Description: whether programming reported on the form is captioned and what type of captioning is used, as well as ALL programming that is not captioned and the basis for its exemption; and
  • Emergency Accessibility Complaints: the number of complaints a station receives during the reporting period that its emergency programming is not accessible to those with disabilities.

The FCC asks for comment on a wide range of issues relating to these categories, such as whether broadcasters should report on individual segments within programs or only on entire programs, what constitutes a segment, and whether any additional categories should be added. The FCC also asks “what is an issue?,” which of course goes to the very heart of a licensee’s First Amendment discretion to determine what qualifies as suitable programming for its audience. It was the government’s concern about stepping on broadcasters’ First Amendment rights in the first place that led to the adoption of the more flexible Quarterly Issues/Programs List the FCC now seeks to replace.

As a replacement for the Quarterly Issues/Programs List, PIPAC is urging the FCC to randomly select dates during each quarter, and then require broadcasters to compile information regarding the programming aired in the above categories on those dates. As a practical matter, however, this would encourage broadcasters to focus their resources on small and numerous news stories over major investigative efforts, since a station that airs fewer but more complex and thoroughly investigated news stories runs the risk of getting no FCC credit if such stories don’t happen to fall on one of the “sample” days chosen by the FCC.

With respect to local election coverage, PIPAC proposes that broadcasters report all such programming aired during the lowest unit rate window (45 days before a primary and 60 days before a general election). Alternatively, the FCC asks whether it should use a composite week or two actual weeks as the appropriate reporting period and how it should give notice to broadcasters of its random selections. One proposal — that the FCC notify broadcasters within a day or two of the date it randomly chooses — would have the FCC perpetually announcing dates for which broadcasters must preserve information about election programming aired.

Despite the FCC proposing that the online disclosure form be kept as part of a television station’s new online public inspection file, the PIPAC form requests a great deal of information that would be entirely duplicative of that public file. This includes having a link to the online public inspection file (in which the reporting form would be found in the first place), as well as links to the station’s most recent ownership report and children’s television programming report (each of which the FCC has proposed to include as part of the online public file), station contact information (which the FCC has already proposed be kept as part of the online public file), information about whether reported programs aired as part of a local marketing or other agreement or required sponsorship identification information (which information is already included in the online public file proposal), as well as such basic information as whether the station is commercial or noncommercial, the DMA in which it is located, and its network affiliation.

PIPAC created its form before the FCC released the proposal for a new online public file, and it is readily apparent that the PIPAC form is in many ways redundant with the FCC’s proposal. Oddly, however, the FCC seems to be considering the PIPAC form as a complement to an online public file, rather than as merely a duplicative addition to that file. As we noted earlier, there is a worrisome undercurrent in these proceedings that the FCC’s focus is on facilitating the efforts of distant policy advocates and academicians to hold a broadcaster “accountable” for its programming choices rather than on ensuring that stations serve the needs of their local audiences.

Organizations that have to be told online what a station’s affiliation or television market is, or whether it operates commercially or noncommercially, obviously are in a poor position to know the needs and interests of that station’s local community, much less whether the station is meeting those needs and interests. Instead, these proposed requirements seem aimed at merely providing a mechanism for pressuring stations to air more of a particular type of programming favored by the government or by a distant advocacy group. As Commissioner McDowell pointed out today in his concurring statement, it appears that stations’ local communities will benefit little from these proposed new requirements.

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In its various incarnations — CONELRAD, the Emergency Broadcast System, the Emergency Alert System, and soon, the EAS CAP system — America’s public warning system has much in common with a vintage automobile that has been taken out of the garage only for short trips. In those short trips (mostly state and local tests and alerts), it has performed adequately, but until this week’s national test, we never had a chance to take it out on the open road and see what it could really do.

Now that the first national EAS test is behind us, we know that the system isn’t broken, but that it definitely will benefit from this breaking in process. That process, which necessarily includes extensive analysis of this week’s test, will reveal numerous ways in which the system can be tweaked for better and more reliable performance under open road conditions. The basic system appears to have run fine; the message got out to the public (though obviously better in some locations than others).

Unlike the relative simplicity of an automobile, however, the EAS system is one of the largest pieces of machinery in the world, having immense geographic scope and a staggering number of components. Getting all of those components to function smoothly together is a complex task that requires much more effort than the typical automotive tune up. Its performance grows more impressive when you remember that most of those components are independently (and privately) owned and operated, and are not supported by federal funding. The EAS system is perhaps the ultimate public-private partnership.

While it is too early to provide a detailed assessment of the areas where the functioning of the system went astray, as we indicated previously, the purpose of the test was to help FEMA, the FCC, and EAS Participants determine the reliability of the EAS system and where it needs improvement, and the test certainly accomplished that. There were a number of issues uncovered with regard to cable and satellite alerts, as well as individual radio and television stations in Oregon and a number of other locations apparently not receiving the test, excessive background audio noise in the test message, some television stations receiving video but no audio, and header codes apparently being sent twice. While the press has understandably focused on areas where problems arose, initial reports seem to indicate that the alert was heard in the vast majority of locations, and that the next area to focus on is ensuring that the content of the alert itself is clear and understandable to the public.

According to the FCC, it and FEMA will now use the results of the test “to identify gaps and generate a comprehensive set of data to help strengthen our ability to communicate during real emergencies. Based on preliminary data, media outlets in large portions of the country successfully received the test message, but it wasn’t received by some viewers or listeners. We are currently in the process of collecting and analyzing data, and will reach a conclusion when that process is complete.”

EAS Participants should remember that just because the national test is over, their work is not done. As we discussed in October, the FCC is encouraging online reporting of each Participant’s test results as soon as possible and has mandated that the information be submitted to the FCC no later than December 27, 2011 (either online or on paper).

In the meantime, that noise you hear coming from the nation’s garage will be thousands of EAS Participants, EAS equipment manufacturers, and government officials tuning and tweaking the EAS system for its next run on the open road.

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FEMA has indicated that the audio of the November 9th national EAS test is being shortened from its original two and a half minute length to thirty seconds. Originally, the government had indicated the entire test would run as long as three and a half minutes, but current indications are that the shortened audio will reduce the length of the overall EAS test to 45-60 seconds.

While FEMA’s reasoning behind the change is not currently known, I note that the National Cable and Telecommunications Association filed a request with FEMA on October 21, 2011 seeking to delay the national test because many cable systems are not ready for it. The problem is that because the proposed test will use the Presidential Emergency Action Notification code, the video will state that “This is an Emergency Action Notification,” and will not give any indication that it is a test. While the audio will make clear that it is a test, those unable to hear the audio (for example, the deaf/hard of hearing or people in a bar where the TV is on but the sound is turned down) could reasonably conclude that an actual emergency is occurring.

While TV broadcasters will generally be inserting a visual crawl indicating that it is only a test, many cable systems do not have that technical capability. NCTA has therefore asked that the test be delayed while the cable industry explores how best technically to insert a visual message over the EAS test assuring viewers that it is indeed only a test.

Given the massive amount of effort that has gone into setting up and preparing for this first ever national EAS test, as well as in notifying the public that there will be a test, delaying it could generate more confusion than just proceeding with the test. It is therefore possible that FEMA’s decision to shorten the test is a pragmatic compromise between either delaying the test or scaring the daylights out of the deaf and hard of hearing community. Presumably, a shorter message is less likely to cause confusion, as it won’t seem as unusual as an emergency message that runs for over three minutes. At a minimum, it will shorten the period of panic, as those watching will see normal programming resume in less than a minute.

Whether the system can be fully tested by the shorter message is already being debated, and some confusion is now unavoidable, given that that the public and first responders have already been told to expect and plan for a test that runs well over three minutes. At the moment, FEMA is trying to get the word out about the shortened test, hoping to reduce that confusion before November 9th arrives.

UPDATE (1:25pm): The FCC has released a new EAS Handbook in light of the shortened test. The Public Notice announcing the new handbook can be found here, and the new EAS Handbook can be found here. The Public Notice indicates that this new version supersedes the version released last week and should be used for all matters related to the November 9 National EAS Test.

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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:

  • Cable Operator Subject to $25,000 Fine for EAS and Signal Leakage Violations
  • Late-filed Renewals Garner $26,000 Fine

Interfering Signal Leakage Proves Costly for Florida Cable Television Operator

The FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”) to the operator of a Florida cable television system for multiple violations of the FCC’s rules. The NAL proposes a $25,000 forfeiture for the system based upon violation of the FCC’s cable signal leakage standards, failure to submit the required registration form to the FCC, and failure to maintain operational Emergency Alert System (“EAS”) equipment.

During a 2011 inspection of the system, agents from the Tampa Office of the FCC’s Enforcement Bureau discovered extensive signal leakage. In order to protect aeronautical frequencies from interference, Sections 76.605 and 76.611 of the FCC’s Rules establish a maximum cable signal leakage standard of 20 microvolts per meter (“µV/m”) for any point in the system and a maximum Cumulative Leak Index (“CLI”) of 64. Inspection of the cable system revealed twenty signal leaks, fourteen of which were over 100 µV/m, with the highest measuring 1,023 µV/m. In addition, the system’s CLI measured 64.88, exceeding the maximum permitted level of 64. The operator also acknowledged the system had not maintained cable leakage logs or performed routine maintenance as required by the FCC. The base forfeiture for these violations is $8,000.

The FCC also found two other violations. In 2010, FCC agents discovered the cable system had not filed its required registration statement with the FCC. In the 2011 inspection, the owner admitted the station had not submitted the required form, and, as of the date of the NAL, had still not filed the form. Section 76.1801 of the FCC’s Rules specifies a base forfeiture of $3,000 for failing to file required forms. Since the system had still not submitted the form more than a year after being instructed to do so, the FCC ordered an upward adjustment of the fine by $1,500.

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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.