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By Richard R. Zaragoza

Talk about being in a tough spot. Members of Congress are urging the FCC to broker an agreement between Cablevision and Fox in their ongoing retransmission consent dispute. Cablevision’s subscribers in the impacted areas are worried that the contractual dispute will not end any time soon and the FCC is obviously concerned with the consumer disruption. But what can the FCC actually do? The answer is, not much, and it appears to be doing all it can at the moment.

As a matter of longstanding policy, the FCC has generally refused to get involved in private contractual disputes between companies it regulates. And as we discussed in a previous post, with respect to retransmission consent, the FCC does not have the authority under the Communications Act to force Cablevision and Fox to come to an agreement or to require interim carriage while the parties continue to negotiate.

In other words, the FCC’s hands are largely tied. FCC Chairman Genachowski as recently as last night issued a press release again urging the parties to reach a deal, but absent evidence of a lack of good faith negotiating tactics by the parties, there is little more that he or the FCC can do.

In order to help Cablevision’s subscribers figure out what to do, the FCC has issued a Consumer Advisory that explains what’s going on with the dispute and provides suggestions that may be at a Cablevision subscribers’ disposal. The Advisory is called “What Cablevision Subscribers Should Know About Receiving Fox-Owned Stations WNYW (NY), WWOR (NJ) & WTRF (PA)”, and the document provides an excellent informational resource for any pay-TV subscriber who might be affected by the expiration of a retransmission consent agreement. In my view, the Alert also strongly suggests that subscribers in such circumstances generally have a number of viable alternatives so that they can continue to view their favorite television stations.

The Alert makes it clear that Cablevision may carry the Fox station signals and their programming only if Cablevision and Fox reach a mutually acceptable agreement. Importantly, the Alert also makes clear that subscribers to Cablevision have a number of alternatives to allow them to continue to view the Fox stations and their programs by using other pay-TV providers such as AT&T, DIRECTV, DISH Network, RCN and Verizon FIOS, or viewing the stations over-the-air using a digital television set or an analog TV set connected to a digital-to-analog converter box (using an appropriate antenna in either case). In short, because a number of viewing options are available to the public, no one is prevented from continuing to watch the stations just because Cablevision and Fox have been unable to reach a mutual agreement on the terms of an extension or renewal of their carriage agreement.

The FCC’s Alert was issued in the midst of calls from Members of Congress, U.S. Senators and others that Cablevision and Fox be ordered to submit to binding arbitration. By the FCC’s action in publishing the Alert, the Commission signals that it does not have the authority either to command agreement between these private parties or to force them into arbitration. The Alert also supports the view that such action is not needed to protect the public because competition from other pay-TV providers, as well as free over-the-air access via indoor or outdoor antennae, assure the public of the continued availability of affected stations and their programming.

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In the heat of the battle raging over carriage of various Fox networks on Cablevision’s systems, Randy May, the founder and chief intellect of the Free State Foundation, has weighed in on the retransmission consent debate (available here). I read his comments with interest, because Randy often provides insightful observations on important telecommunications policy issues, and I care about retransmission consent.

I was disappointed. The paper only rehashes the cable television party line.

Surprisingly, Randy suggests that broadcasters’ exercise of retransmission consent rights should be scrutinized and possibly regulated even more. One would have to dig pretty deep to find the last time Randy advocated solving a problem by throwing more government at it.

The party line Randy endorses goes something like this: broadcasters get special privileges from the government with respect to signal carriage, which give them a retrans “negotiating advantage.” Retransmission consent negotiations don’t happen in a free market goes the argument. The solution? Broadcasters’ retransmission rights should be even more regulated than they are already.
Randy cites two “advantages” broadcasters supposedly enjoy in retrans negotiations: (1) must-carry and (2) program exclusivity. The cable industry party line is a little tortured, coming, as it does, from interests subject to a small fraction of the regulatory umbrella that shadows broadcasters. These are the same companies, after all, that argue government should stand back and let broadband carriers treat Internet traffic as they will.

The party line is also completely wrong about the carriage rules.
First, the existence of must-carry sometimes harms, but never helps, broadcasters that elect retransmission consent. Broadcasters must claim their retrans rights once every three years through a technical and exacting election process. If they make a mistake, they risk having to give away their signals for free. Cable companies routinely use this against broadcasters in retrans negotiations.

By definition, any broadcaster engaged in retransmission consent negotiations has forfeited its must-carry rights. It’s either-or. Each broadcaster makes its election once every three years — same election for all overlapping cable operators, no cherry-picking. If you elect retrans, you have no guarantee of being carried at all and no option to revert to must-carry if negotiations break down.

Must-carry benefits some broadcasters, no doubt. But it doesn’t confer any advantage on a broadcaster that elects retransmission consent. The cable/DBS/telco party line suggests that must-carry gives broadcasters a retrans advantage, but it never identifies what that supposed advantage is. Randy doesn’t explain the advantage either. There is none.
Second, the program exclusivity rules impose huge burdens on broadcasters. Start with the unregulated baseline: producers and distributors are free under the law to agree to exclusive distribution territories. The broadcast networks and affiliates, if they wanted to, could agree that each affiliate has unfettered nonduplication protection throughout its DMA. That would be a free market.

But this is anything but a free market: even if broadcasters purchase exclusivity rights, they may not enforce those rights except within limited, FCC-defined areas. If you doubt me, just read the notes to the network nonduplication and the syndicated exclusivity rules. And this is a bargaining advantage? A reason to pile more rules on broadcasters?
Having read hundreds of Randy’s usually insightful postings over the years, I’m disappointed to see him republish boilerplate cable industry advocacy. His comments run counter to the Free State Foundation’s guiding principles and lack Randy’s trademark sharpness and passion. More to the point, they bizarrely suggest that the government somehow does broadcasters a favor by limiting their free market rights.

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The FCC’s Further Notice of Proposed Rulemaking seeking comment on the conversion of low power television stations from analog to digital operation was published in the Federal Register today. Comments on the FCC’s proposals are due on December 17, 2010, with reply comments due on January 18, 2011.

Although Congress established a deadline of June 12, 2009 for all full-power television stations to discontinue analog operations and begin operating only in digital, LPTV and TV Translator stations, as well as Class A TV stations, were seen as needing more time to marshal the resources to transition to digital operation. Accordingly, the Congressionally-mandated analog cut-off date did not apply to these stations. As a result, all full power television stations have ceased over-the-air analog broadcasts, but a significant number of Class A, LPTV and TV translator stations continue to transmit in analog and many questions persist as to how to transition these stations to digital-only operation. The FCC has released a Further Notice of Proposed Rulemaking (FNPRM) in its proceeding examining the digital transition for Class A, LPTV and TV Translator stations. The FNPRM seeks comment on the procedures and timelines by which these stations will complete the transition to digital operations.

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In October of 1996 my boss, the chairman of a $3 billion television production and distribution empire (and one of the smartest television dealmakers I ever met) scoffed when I said that television could be delivered over the Internet. I told him to wait ten years. Well, in 2006 we had YouTube, but I doubt Bill Bevins would count that as television.

In the first ten days of October 2010:

  • I spoke on the “Hot Topics” panel at the annual TPRC conference, where leading academics and policy makers discuss legal, economic, social, and technical issues on national and international information and communications policy. The hot topic this year: over-the-top (OTT) television.
  • A friend called asking for advice – he’d been offered a senior executive post with a very large broadcasting company paying a great salary, and a senior position with a scrappy OTT startup, paying lots of stock and the chance to hit big. In 2010, he sees this as a tough call.
  • I watched Forrest Gump in “high definition” on a 50″ plasma monitor, streamed by Netflix to my son’s Xbox. The quality was stunning.
  • I installed my new AppleTV and watched a high definition podcast, also streamed, and several “high definition” videos on YouTube and Netflix. In several cases, the quality was very good. And the Apple TV interface is much more elegant and easier to use than our FiOS set top box.

I should have told Bill 14 years.

OTT is here. There’s a lot of long tail and niche content online. It’s getting easier to find and use, and if you have a fast broadband connection, the quality can be outstanding. So just what is cord cutting and how do you define OTT? And what do they mean for traditional video providers?

Cord cutting at its extreme means a household drops MVPD service and relies on other sources of television – primarily free OTA television supplemented by long-tail OTT internet services like Netflix and Hulu. OTT means traditional television content delivered through non-traditional (generally Internet) television distribution channels. It doesn’t refer to non-traditional video content (YouTube and other user generated content) regardless of distribution channel. We make this distinction because, rightly or wrongly, we consider YouTube and Vimeo to be something entirely different (and less threatening to incumbent providers) than the delivery of high resolution, full-format, traditional programming over the Internet.

Many fear OTT will lead to tens of millions of households to cut the cord. This is naturally a concern for cable and satellite providers, but many broadcasters worry too, because MVPDs won’t pay broadcasters for cord cutting households. Personally, I think we are likely to see a fair amount of cord cutting in the next few years, and an even larger amount of what I call cord trimming – dropping premium services or higher tier services. In new households, broadband is essential, while pay television service is often optional. And the combination of gorgeous, over-the-air, live high definition broadcast service and increasingly compelling long tail OTT options is likely to be a better option for many households than traditional MVPD service.

But there’s a silver lining for cable systems and broadcasters, and even for DBS providers.

  • Cable systems may lose video subs, but demand for OTT television will drive broadband adoption into more of the 40 million households that haven’t adopted it so far, and it will lead others to upgrade their connections, at higher prices. Since broadband service is generally more profitable than video services, cable profit margins could actually rise even if gross revenue shrinks.
  • Broadcasters could lose retransmission consent fees from cord cutting households, but cord shrinking will affect broadcast competitors – cable networks – before broadcasters, because it’s the expensive higher tiers and premium services that cord-shrinking customers drop. The broadcast and sports channels are the last to go before cord is cut altogether.
  • If total MVPD penetration falls from the high eighties to the mid sixties in the next seven to ten years, as I suspect it will, tens of millions in advertising will migrate back from cable and satellite to broadcast, because reach is still important. Twelve or so years ago, with MVPD penetration in the mid 60s, broadcasters were far more profitable, even without retransmission revenue.
  • Much higher broadband penetration could breathe new life into the DBS business model, which is an incredibly cost efficient way to distribute high quality linear television. With more broadband homes to sell into, DBS providers can create a hybrid satellite-OTT service that meets and in many ways exceeds what the cable operators can do with their own video services.

OTT service will have many effects beyond cord shrinking and cord cutting. But incumbent providers should embrace OTT, because the opportunities it enables – the best of which we can’t imagine yet – far outweigh the risks that it poses to all incumbent business models. It creates opportunities for greater efficiencies and more varied service offerings for all incumbents, if they have the vision to see the opportunities and the perseverance to follow through. Best of all, OTT can make television more satisfying for consumers, more measurable, and easier to use – leading, inevitably, to more usage. In the television business, we all like more usage, as long as we get our share. Getting that share is the challenge and the opportunity.

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Posted in: Internet & Online
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Last week, Congress passed the Twenty-First Century Communications and Video Accessibility Act of 2010 (the “Act”) which, among other things, reinstates the FCC’s former Video Description rules for television broadcasters, extends closed captioning of video programming to the Internet, and requires the FCC to examine methods of increasing the accessibility of emergency information. The President signed the bill today, October 8, 2010.

The Act is designed to update the Communications Act to account for the many new technologies available in today’s marketplace and to assure that they are accessible to persons with hearing or vision impairment. The Act outlines a decade-long timetable for the submission of various reports by a new advisory committee to the FCC, and then by the FCC to Congress, and the implementation of further regulations based on the findings of those reports. When fully implemented, the Act will require that specific amounts of digital television programming contain video descriptions, that certain video programming distributed via the Internet contain closed captions, and that consumer electronics devices contain features to promote accessibility and be hearing aid compatible. We have summarized the Act’s requirements in three phases below.

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After we published our Advisory reminding licensees of the deadline to electronically file the Quarterly Children’s Television Programming Report on FCC Form 398 for the Third Quarter of 2010, the FCC disclosed that it has modified its electronic filing system to require the entry of a Federal Registration Number (“FRN”) and password as the final step before the report can be filed. The FCC issued no advance public notice of this requirement, but instead placed the following notice on its webpage dedicated to the Children’s Television Act of 1990, although NOT on the page that licensees visit to prepare and file the report itself:

To enhance the security and integrity of the KidVid database, we now require authentication with an FRN and password associated with the broadcast facility for each Form 398 filing. After you have completed Form 398, you will be prompted to enter this information. You must enter your FRN and password to complete the form. If you have forgotten your FRN password, please contact the CORES helpdesk at 877-480-3201.

Because of the potential for surprises associated with the implementation of this new requirement, we recommend that, if possible, licensees complete their Form 398 filings in advance of the filing deadline. The filing deadline for this quarter falls on Tuesday, October 12, 2010 due to the Columbus Day holiday, so Friday, October 8, 2010 is a good target date for completing the Form 398. This will allow additional time for station personnel to address any issues that arise, such as determining which FRN and password combination(s) will be accepted by the filing system, and, if necessary, to locate the correct information.

Should you have any questions regarding this Alert or the FCC’s children’s programming requirements in general, please contact any of the attorneys in the Communications practice section.

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The Department of Homeland Security’s Federal Emergency Management Agency (FEMA) announced in a public notice released today that it has adopted the Common Alerting Protocol (CAP) v1.2 Standard for FEMA’s Integrated Public Alert Warning System (IPAWS). Under the FCC’s Rules, Emergency Alert System (EAS) participants (e.g., radio and television stations, and wired and wireless cable television systems) must be able to receive CAP-formatted EAS alerts no later than 180 days after FEMA publishes the technical standards and requirements for CAP transmissions. Although FEMA’s public notice does not mention the 180 day clock, an FCC representative stated today that the 180 day period commences with issuance of the FEMA public notice. As a result, all EAS participants should assume that the release of the public notice today (September 30) initiated the 180 day period to acquire and install CAP-compliant equipment.

At its essence, IPAWS is a network of alert systems through which FEMA is upgrading the way Americans receive alert and warning information, providing that information through as many communications pathways as possible. CAP is an alerting format that uses digital technology to allow a consistent warning message to be disseminated simultaneously over as many different warning systems as possible. In addition to enhanced audio and video, CAP permits digital photos and text to be included in emergency alerts and AMBER alerts.

FEMA and the FCC are to be commended for their hard work in seeking to improve EAS and better alert the American people in the event of an emergency. However, EAS participants and equipment manufacturers alike have argued that 180 days is not enough time to acquire equipment compatible with the new CAP standards and to configure EAS systems to receive and relay CAP messages. Manufacturers of EAS equipment may not be able to meet the sudden demand for new equipment by that deadline if every EAS participant is indeed required to have CAP-capable equipment installed within 180 days. Many EAS players have also noted that the 180 day time frame does not take into account legitimate budgeting concerns, given that the equipment alone can cost $2,000-$3,000. With tight federal, state, and local budgets, most EAS participants will likely get no assistance in acquiring the equipment necessary to make the new alerting system work.

There is also the issue of equipment certification and testing. FEMA is expected to wrap up its initial certification process by issuing a list of CAP-certified equipment by the end of November. But it isn’t clear if the FCC will conduct its own certification process to provide EAS participants and EAS equipment manufacturers with the certainty of FCC rule compliance they would like prior to moving forward with acquiring CAP-compliant equipment. Many also complain that it remains unclear if parties will be able to fully test the reliability of their new CAP equipment until late 2011, given that the first national FEMA test of CAP is not expected to occur until that time.

Also, while EAS participants are required to meet the 180 day deadline, there are no rules requiring state or local Emergency Management Agencies or public safety departments to be able to actually deliver such alerts by that deadline. So while EAS participants will need to be able to receive national CAP messages delivered by FEMA, they will also need to make sure that their new equipment can simultaneously receive older “legacy” messages that may continue to be issued locally. And if states decide to implement a CAP-compliant EAS system in the future, there is no guarantee that the equipment they acquire then will be fully compatible with the equipment purchased earlier by EAS participants in that state.

The good news is that staff at both FEMA and the FCC have been made aware of these and other concerns surrounding the 180 day deadline and seem sympathetic to those concerns. It is therefore possible that the 180 day compliance period could be extended, but EAS participants should not rely on that being the case. Because of this, EAS participants will need to carefully assess their situation to determine when and how to select EAS equipment appropriate to their needs. EAS participants that wait until too late to focus on this issue will certainly face an emergency of their own.

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Posted in: Emergency Alert System
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The FCC today released an order refining, but largely reaffirming, its earlier decision to allow unlicensed devices to operate in the TV band as long as they do not cause interference to existing users such as TV stations and wireless microphone operators. While many refer to this spectrum as “white spaces” on the theory that it is vacant spectrum located between existing television signals, veterans of the digital television transition question whether white spaces more appropriately fall into the same category of mythical creatures as unicorns.
The digital transition’s compression of television stations that previously occupied Channels 2-69 nationwide into Channels 2-51 took a miraculous feat of engineering (and the displacement of a lot of LPTV stations). Many stations had to be wedged into the shrunken TV band with a shoehorn, which, at least in urban areas, left very little free spectrum. While the phrase “white spaces” evokes a mental image of vast open prairies, the densely populated areas that are the target markets for manufacturers of unlicensed equipment are already spectrum congested, and are more likely to offer “white spots” or “white specks” than white spaces. The benefit of the Commission’s order will likely be greater in rural areas, where spectrum congestion is not an issue even after the digital transition.

As long as the FCC lives up to the Prime Directive of not causing interference to existing inhabitants of the TV band, the benefits of better utilization of spectrum are hard to dispute. Broadcasters understand as well as anyone the challenge of eking out every last ounce of potential from spectrum. However, broadcasters are understandably concerned with a significant change made by the FCC in today’s order — the elimination of the FCC’s requirement that white spaces devices be able to sense local signals and avoid causing interference to them. By eliminating that requirement, the FCC removed the “safety valve” it had installed in its original plan. Instead, the FCC is placing its faith entirely in the creation of one or more privately-created and run databases of existing spectrum users that unlicensed devices will consult before selecting a frequency on which to operate.

Many in the broadcast industry have been strong proponents of requiring unlicensed devices to have “sensing” capability rather than relying solely on a national database of existing signals. “System redundancy” is an important feature in designing reliable communications systems, and removing that redundancy inevitably makes for a less reliable system. As the FCC has noted, eliminating the “sensing” requirement will reduce the cost of unlicensed devices, but as we discovered in the recent Gulf oil spill, short term decisions to reduce costs by reducing safety margins can have far greater and more expensive long term consequences.

While lacking any backup protection, a spectrum database could be a workable solution if properly implemented. However, the challenges of implementation are immense. Ensuring the accuracy of the database itself will be a challenge given constantly changing spectrum use by new and existing operators. Also, signals propagate differently depending on frequency, what part of the country you are in, local terrain, and various other factors, making the database either incredibly complex, or inadequate to address real world circumstances.

Viewers of TV stations in Fresno, whose real world signals extend far beyond their predicted contours because of terrain effect, will suddenly be subject to interference from unlicensed devices. In addition, you have to think that users of those unlicensed devices aren’t going to be too happy when their wireless network won’t function because (unknown to them) it is receiving interference from a TV signal that the database swears isn’t there.

Because of these and many other issues, the FCC needs to keep an open mind as it implements its proposed use of white spaces. A well-performing database that keeps licensed and unlicensed operators adequately separated is in everyone’s interest. If some of the FCC’s initial conclusions need to be rethought in order to accomplish that, those discussions will be healthy ones.

Equally important is ensuring that equipment manufacturers fastidiously comply with the FCC’s interference protocols. Broadcasters are rightly concerned that non-compliant or just poorly designed and manufactured unlicensed devices can cause immense damage, and the FCC lacks the tools to put the genie back in the bottle should that occur. Fining such manufacturers after the fact won’t help much if millions of interference-inducing devices are already out there interfering with the public’s ability to watch TV, listen to a sermon, or attend a Broadway show. As the FCC proceeds down this path, getting it right is going to be far more difficult than just getting it done.

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The staggered deadlines for filing Biennial Ownership Reports by noncommercial educational radio and television stations remain in effect and are tied to their respective anniversary renewal filing deadlines.

Noncommercial educational radio stations licensed to communities in Iowa and Missouri, and noncommercial educational television stations licensed to communities in Alaska, American Samoa, Florida, Guam, Hawaii, Mariana Islands, Oregon, Puerto Rico, Virgin Islands and Washington, must file their Biennial Ownership Reports by October 1, 2010.

Last year, the FCC issued a Further Notice of Proposed Rulemaking seeking comments on, among other things, whether the Commission should adopt a single national filing deadline for all noncommercial educational radio and television broadcast stations like the one that the FCC has established for all commercial radio and television stations. That proceeding remains pending without decision. As a result, noncommercial educational radio and television stations continue to be required to file their biennial ownership reports every two years by the anniversary date of the station’s license renewal filing.

A PDF version of this article can be found at Biennial Ownership Reports Are Due by October 1, 2010 for Noncommercial Educational Radio Stations in Iowa and Missouri, and for Noncommercial Educational Television Stations in Alaska, American Samoa, Florida, Guam, Hawaii, Mariana Islands, Oregon, Puerto Rico, Virgin Islands and Washington

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Posted in: Noncommercial Operation
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One of the great things about being a communications lawyer is the wide array of issues you deal with over the course of a day. Contract lawyers negotiate contracts, and litigators litigate, but communications lawyers negotiate contracts, litigate, argue government policy, and generally are thrown into the breach whenever a problem emerges affecting their clients. As a very senior communications practitioner said when I was a young lawyer, “if you want to be a communications lawyer, you better be very good at your trade or have a damn good smile!”
Because of the diversity of communications issues out there, you never know when you answer the phone what the issue will be. One question I have received on multiple occasions over the years is whether it’s true that radio stations are prohibited from airing the sound of a police siren. I have had broadcasters swear there is a flat prohibition on this and that they were taught about it early in their career. While there is no outright prohibition, this “old broadcaster’s tale” stems from a 1970 FCC proceeding where several complainants sought such a ban. The FCC declined to prohibit these sound effects, but basically told broadcasters to use common sense when airing them. Not coincidentally, 1970 was the year that R. Dean Taylor’s song Indiana Wants Me made it to Number 5 on the Billboard charts, complete with siren. A siren-free version of the song was also produced to appease nervous radio stations (take a listen to the “with sirens version“; go ahead, I’ll wait till you get back).

I was reminded of all this today when I received a client call asking about a radio ad from the oil company ARCO that includes the Emergency Alert System tone at the beginning of the spot. The Society of Broadcast Engineers has posted an MP3 of the ad here.

The EAS tone differs from police sirens in two important ways. First, the airing of the EAS tone or a simulation of the tone where no emergency or authorized EAS test exists is flatly prohibited by Section §11.45 of the FCC’s Rules (“No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.”). It could also potentially violate Section 73.1217, the FCC’s prohibition on broadcast hoaxes.

Second, unlike members of the public who usually can discern from context whether a siren or other emergency sound is a cause for concern (does Indiana really want them?), the electronics that monitor radio signals do not have this capability. As a result, the airing of the commercial has accidentally activated EAS receivers around the country, which hear the alert tone and activate the local emergency alert system as though an actual emergency is occurring. It appears the tone in the spot was tweaked to speed it up a bit, but apparently not enough to avoid fooling at least some EAS receivers.

Stations airing the spot, particularly where EAS activations have occurred, should get in touch with their communications counsel immediately. The FCC’s words from 1970 are still relevant here: “The selection and presentation of advertising and other promotional material are, of course, the responsibility of licensees. However, in this selection process, licensees should take into account, under the public interest standard, possible hazards to the public. Accordingly, in making decisions as to acceptability of commercial and other announcements, licensees should be aware of possible adverse consequences of the use of sirens and other alarming sound effects.” It may take 40 years, but what goes around, comes around.