2011 Archives

FCC Enforcement Monitor

Scott R. Flick Christine A. Reilly

Posted December 29, 2011

By Scott R. Flick and Christine A. Reilly

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:

  • Failure to Monitor and Repair EAS Equipment Nets $8,000 Fine
  • Fines for Late-Filed License Renewals Continue
  • $25,000 Fine for Failure to Answer FCC Correspondence
Act of Vandalism Ends With $8,000 Fine

In a recently released Notice of Apparent Liability ("NAL"), the FCC issued a fine totaling $8,000 against a New Mexico AM broadcaster for violating the FCC's Emergency Alert System ("EAS") rules. The NAL alleges that the broadcaster failed to properly maintain its EAS equipment, a violation of Section 11.35 of the FCC's Rules.

During a June 2011 main studio inspection, an agent from the Enforcement Bureau's San Diego Field Office observed that the station's EAS equipment was not operational. According to the NAL, the Station's EAS equipment had been damaged by vandalism six months prior to the inspection. In addition to the equipment failure, Station employees were unable to provide the required EAS documentation (i.e., logs or other EAS records) associated with the mandatory weekly and monthly tests required by Section 11.61 of the FCC's Rules.

Inoperable EAS equipment is a violation of Section 11.35(a) of the Commission's Rules, which mandates that broadcasters must ensure that the required EAS equipment is installed, maintained and monitored. Section 11.35(a) also requires EAS participants to log, among other things, instances when the station experiences technical issues during participation in the weekly or monthly EAS tests. Pursuant to Section 11.35(b), EAS participants must seek FCC approval if their EAS equipment will not be functioning for more than 60 days. The base fine for an EAS violation is $8,000. The FCC, stating that "EAS is critical to public safety," levied the full fine against the broadcaster.

Late Filings and Unauthorized Operations Lead to $10,000 Forfeiture

The FCC recently issued a joint Memorandum Opinion and Order and NAL to the licensee of an AM station in South Carolina for several violations of the FCC's Rules. The licensee was ultimately fined $10,000 for failing to file its license renewal application on time and for unauthorized operation of the station following the license's expiration.

Section 73.3539(a) of the FCC's Rules requires license renewal applications to be filed four months prior to the expiration date of the license. The AM station's license was set to expire in December 2003, but no license renewal application was filed. The station licensee later explained that it did not file a renewal application because it did not realize the license had expired. In May of 2011, seven years later, the FCC notified the station that the station's license had expired, its authority to operate had been terminated, and that its call letters had been deleted from the FCC's database.

After receiving this letter, the station filed a late license renewal application and a subsequent request for Special Temporary Authority ("STA") to operate the station until the license renewal application was granted. Because so much time had passed since the station failed to timely file its 2003 license renewal application, the deadline for the station's 2011 license renewal application (for the 2011-2019 license term) also passed without the station filing a timely license renewal application. As a result, the FCC found the station liable for an additional violation of its license renewal filing obligations. The base fine for failing to file required forms is $3,000. Thus, the FCC found the station liable for a total of $6,000 relating to these two violations.

Further, the FCC found the licensee liable for violations of Section 301 of the Communications Act because the station continued operating for seven years after its license had expired. The base forfeiture for such a violation is $10,000, but the FCC lowered the proposed forfeiture to $4,000 because the station had previously been licensed.

In spite of the rule violations and $10,000 fine, the FCC decided to grant the station's license renewal application, finding that the station's violations did not evidence a "pattern of abuse."

FCC Fines Unresponsive Party $21,000 Above Base Fine

A recent NAL released by the Enforcement Bureau provides a reminder that regulatory ignorance is not bliss. According to the NAL, the Enforcement Bureau, as part of an investigation into billing practices, issued a Letter of Inquiry ("LOI") to a provider of prepaid calling cards on July 15, 2011. The LOI mandated that a response be submitted by August 4, 2011.

The provider failed to respond to the LOI by the initial deadline. The Enforcement Bureau, via e-mail on August 29, 2011, provided an additional extension of time to respond until September 8, 2011. The extended deadline again came and went without action by the provider. As of December 9, 2011, the Enforcement Bureau had not received a response to its July 2011 LOI. Pursuant to Section 1.80 of the FCC's Rules, the base fine for failure to respond to FCC correspondence is $4,000.

The NAL noted that the FCC's authority under Sections 4(i), 218, and 403 of the Communications Act of 1934 "empowers it to compel carriers ... to provide the information and documents sought by the Enforcement Bureau's LOI," and that failure to respond to an Enforcement Bureau request "constitutes a violation of a Commission order." The Enforcement Bureau stated that the provider's "egregious, intentional and continuous" misconduct warranted a $21,000 upward adjustment to the base $4,000 fine, for a total fine of $25,000.

A PDF version of this article can be found at FCC Enforcement Monitor.

Filings on National EAS Test Results Due Next Week

Paul A. Cicelski

Posted December 22, 2011

By Paul A. Cicelski

In what now seems like ages ago, the FCC and FEMA conducted the first nationwide test of the Emergency Alert System back on November 9, 2011. While the FCC and FEMA are continuing to review and analyze what went right and what went wrong during the national test, EAS Participants should not forget that their work may not be done. As we discussed immediately following the test, the FCC has mandated that EAS Participants submit the full results of their test to the FCC, either online or on paper, no later than December 27, 2011.

I reported back in October that the FCC created three separate forms for purposes of reporting a station's test results. Stations should have completed Form 1 prior to the test, providing background information regarding the station's facilities and equipment, and Form 2 on or as close as possible to the November 9 test date, providing information on whether or not the station received the national test alert and whether the alert was passed along.

In Form 3, the FCC has asked for more detailed information on the success or failure of the test. We were the first to point out publicly that there is a conflict in dates between the FCC's form page on the website which indicates that the deadline is December 24, and the FCC's National EAS Test Public Notice which indicates that the deadline is December 27. However, the FCC's filing rules and discussions we have had with FCC staff confirm that the official deadline is December 27.

So if you have not done so already, make sure to submit the required information about the success or failure of your EAS equipment during the national test prior to next week's deadline.

December 15, 2011: Copyright Royalty Fee - Monthly Usage Statement of Account Form Due

December 15, 2011

Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending October 31, 2011.

FCC Announces Comment Deadlines on Replacement for Television Quarterly Issues Programs Lists

Lauren Lynch Flick

Posted December 15, 2011

By Lauren Lynch Flick

At its October Open Meeting, the FCC announced that it was moving ahead on two proposals to "standardize" and "enhance" television stations' public reporting regarding the programming they air, and their business and operational practices. The first of those items to be released related to the Online Public Inspection File, which we report on in detail here and here. The Further Notice of Proposed Rulemaking in that proceeding has already been published in the Federal Register and the first round of comments in that proceeding are due on December 22, 2011.

The second item, which deals with the new disclosure form to replace television stations' current Quarterly Issues Programs Lists and the FCC's prior failed attempt to standardize and enhance station disclosures on FCC Form 355, has now appeared in the Federal Register. We discuss this proposed form in detail here. The publication of this item establishes the deadline for comments on the new form, which are due on January 17, 2012, with Reply Comments due on January 30, 2012.

The FCC has moved swiftly in getting these items published, thereby commencing the public input process on these proposals, and has indicated that they are a high priority at the Commission. Broadcasters' best opportunity to influence how these proposals take shape is now. As a result, stations should review the proposed form and our analysis of both it and the related Online Public File to understand the impact these new requirements could have on their operations.

We previously noted that the proposed form is highly duplicative of portions of the Online Public File proposal. Regardless of what information is collected, having to disclose it twice, in two different formats, is a burden on broadcasters that the FCC appears to have not acknowledged. In addition, the new form being put forth by the FCC for comment, far from merely standardizing the way programming information is disclosed, could well end up standardizing what programming is actually aired, intruding on licensee programming discretion.

Broadcasters that fail to participate in these proceedings do so at their own peril, as the resulting regulatory requirements could well be the proverbial lump of coal that TV broadcasters find in their stocking this year.

December 1, 2011: FCC Form 317 DTV Ancillary/Supplementary Services Report Due

December 1, 2011

Commercial television stations must by this date electronically file FCC Form 317 Annual DTV Ancillary/Supplementary Services Report for Commercial Digital Television Stations with the FCC whether or not they have received any income from ancillary or supplementary services. If a DTV station provided ancillary or supplementary services during the 12-month time period ending on the preceding September 30, and received compensation for doing so, the station is required to pay five percent of the gross revenue from such services concurrently with the filing of Form 317.

December 1, 2011: FCC Form 323-E Biennial Ownership Report Due

December 1, 2011

Noncommercial radio stations licensed to communities in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont and noncommercial television stations licensed to communities in Colorado, Minnesota, Montana, North Dakota, and South Dakota (other than sole proprietorships or partnerships composed entirely of natural persons) must electronically file by this date their biennial ownership reports on FCC Form 323-E, unless they have consolidated this filing date with that of other commonly owned stations licensed to communities in other states.

December 1, 2011: Annual EEO Public File Report Required

December 1, 2011

Station employment units ("SEUs") that have five or more full-time employees and are comprised of radio and/or television stations licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont must by this date place in their public inspection files (and post on their station website, if there is one), a report regarding station compliance with the FCC's EEO Rule during the period December 1, 2010 through November 30, 2011.

December 1, 2011: Pre-filing License Renewal Announcements for Radio Stations

December 1, 2011

Full-power AM and FM radio broadcast stations licensed to communities in Arkansas, Louisiana and Mississippi must begin on this date to air their pre-filing license renewal announcements in accordance with the FCC's regulations.

December 1, 2011: Post-filing License Renewal Announcements for Radio Stations

December 1, 2011

Full-power AM and FM radio broadcast stations licensed to communities in Alabama and Georgia must begin on this date to air their post-filing license renewal announcements in accordance with the FCC's regulations. FM Translator stations must arrange for the required newspaper public notice of their license renewal application filing.

December 1, 2011: Filing of Applications for Renewal of Licenses for Radio Stations

December 1, 2011

Full-power AM and FM radio broadcast stations, as well as FM Translator stations, licensed to communities in Alabama and Georgia must by this date electronically file their applications for renewal of license on FCC Form 303-S, along with their Equal Opportunity Employment Reports on FCC Form 396 and their FCC filing fee.

December 1, 2011: FCC Form 323 Biennial Ownership Report Due

December 1, 2011

All commercial radio, television, low power television and Class A television stations must electronically file by this date their biennial ownership reports on FCC Form 323 and pay the required FCC filing fee. FCC Form 323 as filed must be placed in stations' public inspection files.

FCC Enforcement Monitor

Scott R. Flick Christine A. Reilly

Posted December 1, 2011

By Scott R. Flick and Christine A. Reilly

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:


  • Malfunctioning Monitor Costs Broadcaster $10,000

  • FCC Fines Tower Owner $13,000 For Lighting and Ownership Issues

Faulty Remote Light Monitoring System Results in $10,000 Fine

According to a recent Notice of Apparent Liability ("NAL"), agents at the FCC's Norfolk Field Office received a complaint of an unlit tower from the Federal Aviation Administration ("FAA"). Two weeks later, agents from the Norfolk Field Office contacted the local Sheriff's Office for a visual confirmation of the tower's lighting status. A deputy indicated that all but one of the lights on the 700 foot tower were not functioning and that the only functioning light was located 100 feet from the ground.

Section 17.51 of the FCC's Rules requires certain structures to install and maintain red obstruction lighting. These lights must be functional between sunset and sunrise. The base fine for failure to comply with lighting and painting regulations is $10,000. Sections 17.47, 17.48 and 17.49 require structure owners to 1) inspect all automatic or mechanical lighting control devices at least every three months, 2) notify the FAA immediately of tower lighting malfunctions or extinguishments, and 3) maintain logs detailing any malfunctions or extinguishments.

The Norfolk field agents conducted an onsite inspection of the tower almost one month after receiving notification of the complaint from the FAA. The tower owner's contract engineer was present at the time of the onsite inspection. During that inspection, the agents confirmed that only one tower light was functioning and that the tower's remote light monitoring system was also malfunctioning. The NAL indicated that the consulting engineer admitted that the monitoring system had notified the tower owner that the top beacon was not functioning only six days prior to the onsite inspection. The tower owner notified the FAA at that time. The engineer also stated that the tower owner did not maintain tower logs detailing regular tower and control device inspections or instances of malfunctions.

In light of these failures, and the period of time over which they occurred, the FCC assessed a fine of $10,000 to the tower owner.

Reporting Failures Result in Fines Totaling $13,000

The registrant of an antenna structure in California was recently found liable for $13,000 for violations related to the antenna structure's red obstruction lighting and for failing to notify the FCC of the structure's change in ownership.

In response to complaints that the structure's obstruction lighting had failed, agents from the Los Angeles Field Office contacted the registrant of the structure. Section 303(q) of the Communications Act of 1934 and Section 17.51(a) of the FCC's Rules require that antenna structures be painted with aviation orange and white and have red obstruction lighting indicating the top and midpoints of the structure. Upon inspection, however, the agent found that none of the structure's lights were functioning between sunset and sunrise. The Enforcement Bureau subsequently issued a Letter of Inquiry. In response, the registrant admitted that the lights were not operational for a period of two months, and he was unsure if he had notified the Federal Aviation Administration at the time of the outage, as required by Section 17.48 of the FCC's Rules. As noted above, the base forfeiture for failing to comply with the required lighting and painting standards is $10,000. Though the violation was "repeated" because the outage lasted two months, the FCC did not issue an upward adjustment of the penalty.

The FCC further found that the registrant had violated Section 17.57 of the FCC's Rules, which requires that tower owners immediately notify the FCC of any changes in ownership. The registrant assumed ownership of the structure in April 2008, but did not update the ownership information filed with the FCC until January 2011, after being contacted by agents from the Enforcement Bureau. The base forfeiture for violating the rules pertaining to tower ownership notifications is $3,000. As a result, the FCC tacked on an additional $3,000 fine, resulting in a total proposed fine of $13,000 for the tower owner.

A PDF version of this article can be found at FCC Enforcement Monitor.

Following the Thanksgiving Holiday, A Reminder That Many December 1 FCC Deadlines Loom

Paul A. Cicelski

Posted November 30, 2011

By Paul A. Cicelski

As the Thanskgiving Day tryptophan finally wears off, it's important not to forget that December 1 is a busy filing day for television and radio broadcasters alike. Below is a brief summary of the FCC's December 1 filing deadlines, along with links to previous posts describing the filing requirements in more detail.

FCC Form 317 DTV Ancillary/Supplementary Services Report

As we reported last week, commercial television stations must electronically file by December 1 FCC Form 317, the Annual DTV Ancillary/Supplementary Services Report for Commercial Digital Television Stations, even if they have not received any income from ancillary or supplementary services.

FCC Form 323 Commercial Biennial Ownership Report

I wrote back in August that the FCC's Media Bureau changed the commercial Form 323 filing deadline from November 1, 2011 to December 1, 2011. By December 1, all commercial radio, television, low power television and Class A television stations must electronically file their biennial ownership reports on FCC Form 323 and timely pay the required FCC filing fee.

FCC Form 323-E Non-Commercial Biennial Ownership Report

Noncommercial radio stations licensed to communities in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont and noncommercial television stations licensed to communities in Colorado, Minnesota, Montana, North Dakota, and South Dakota (other than sole proprietorships or partnerships composed entirely of natural persons) must electronically file by December 1 their biennial ownership reports on FCC Form 323-E, unless they have consolidated this filing date with that of other commonly owned stations licensed to communities in other states.

Annual EEO Public File Report

Station employment units that have five or more full-time employees and are comprised of radio and/or television stations licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont must by December 1 place in their public inspection files (and post on their station website, if there is one), a report regarding station compliance with the FCC's EEO Rule during the period December 1, 2010 through November 30, 2011.

Pre-filing License Renewal Announcements for Radio Stations

Full-power AM and FM radio broadcast stations licensed to communities in Arkansas, Louisiana and Mississippi must begin on December 1 to air their pre-filing license renewal announcements in accordance with the FCC's regulations.

Post-filing License Renewal Announcements for Radio Stations

Full-power AM and FM radio broadcast stations licensed to communities in Alabama and Georgia must begin on December 1 to air their post-filing license renewal announcements in accordance with the FCC's regulations. FM Translator stations must arrange for the required newspaper public notice of their license renewal application filing.

Renewal of Licenses for Radio Stations

Full-power AM and FM radio broadcast stations, as well as FM Translator stations, licensed to communities in Alabama and Georgia must electronically file their applications for renewal of license on FCC Form 303-S, along with their Equal Opportunity Employment Reports on FCC Form 396 by December 1, and timely pay their FCC filing fee.

December 1 represents an eventful filing day. Time for everyone to shrug off the Thanksgiving hangover and make sure your filings are prepared and filed on time.

Comment Deadlines Set in FCC's Effort to Expand TV Public Inspection File Obligations

Lauren Lynch Flick

Posted November 22, 2011

By Lauren Lynch Flick

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.

Client Advisory: Annual DTV Ancillary/Supplementary Services Report Due for Television Stations

Paul A. Cicelski Lauren Lynch Flick

Posted November 22, 2011

By Lauren Lynch Flick and Paul A. Cicelski

All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 by December 1, 2011.

The FCC requires all digital television stations, including all commercial and noncommercial educational full power television stations, digital low power television stations, digital translator television stations, and digital Class A television stations, to submit FCC Form 317 each year. The report details whether stations provided ancillary or supplemental services at any time during the twelve-month period ending on the preceding September 30. It is important to note that the FCC Form 317 must be submitted regardless of whether stations offered any such services. FCC Form 317 must be filed electronically, absent a waiver, and is due on December 1, 2011.

Ancillary or supplementary services are all services provided on the portion of a station's digital spectrum that is not necessary to provide the required single free, over-the-air signal to viewers. Any video broadcast service that is provided with no direct charge to viewers is exempt. According to the FCC, examples of services that are considered ancillary or supplementary include, but are not limited to, "computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, subscription video, and the like."

If a station provided ancillary or supplementary services during the 12-month time period ending on September 30, 2011, it must pay the FCC 5% of the gross revenues derived from the provision of those services. This payment can be forwarded to the FCC's lockbox at the U.S. Bank in St. Louis, Missouri and must be accompanied by FCC Form 159, the Remittance Advice. Alternatively, the fee can be paid electronically using a credit card on the FCC's website. The fee amount must also be submitted by the December 1, 2011 due date.

FCC Commences Effort to Replace Quarterly Issues/Programs Lists

Lauren Lynch Flick

Posted November 14, 2011

By Lauren Lynch Flick

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.

November 14, 2011: Copyright Royalty Fee - Monthly Usage Statement of Account Form and Quarterly Report of Use Form Due

November 14, 2011

Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending September 30, 2011.

Breaking In the EAS System

Scott R. Flick Paul A. Cicelski

Posted November 11, 2011

By Scott R. Flick and Paul Cicelski

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.

NAB Futures Summit: November 6-8, 2011 - Ranchos Palos Verdes, CA

November 6, 2011

Telecom Monitor

Christine A. Reilly Glenn S. Richards

Posted November 4, 2011

By Glenn S. Richards and Christine A. Reilly

The Commission's Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010 Initiates a Two-Year Deadline for Providers of Advanced Communications Services and Manufacturers of Equipment Used in Advanced Communications Services to Comply with Disabilities Access Requirements.

The Federal Communications Commission (the "Commission") recently adopted a Report and Order ("R&O") and Further Notice of Proposed Rulemaking ("FNPRM") implementing Section 104 of the Twenty-First Century Communications and Video Accessibility Act of 2010 (the "CVAA"), codified as Sections 716, 717 and 718 of the Communications Act of 1934, as amended (the "Act"). The purpose of the CVAA is to "ensure that people with disabilities have access to the incredible and innovative communications technologies of the 21st century."

Prior to the passage of the CVAA, and pursuant to Section 255 of the Act, the Commission imposed disabilities access requirements on manufacturers of telecommunications equipment (including answering machines, pagers and telephones) and providers of telecommunications services. In 2007, the Section 255 requirements were extended to providers of interconnected VoIP services and manufacturers of VoIP equipment. The CVAA expands the Commission's regulatory authority to historically unregulated providers of advanced communications services ("ACS") and manufacturers of equipment used for ACS (collectively the "Covered Entities") and codifies the requirement as it applies to interconnected VoIP.

ACS includes interconnected VoIP, noninterconnected VoIP, electronic messaging service and interoperable video conferencing services, which are defined as:

  • Interconnected VoIP: a service that (1) enables real-time, two-way voice communications; (2) requires a broadband connection from the user's location; (3) requires Internet protocol-compatible customer premises equipment ("CPE"); and (4) permits users generally to receive calls that originate on the public switched telephone network ("PSTN") and to terminate calls to the PSTN.
  • Noninterconnected VoIP: a service that (i) enables real-time voice communications that originate from or terminate to the user's location using Internet protocol or any successor protocol; and (ii) requires Internet protocol compatible customer premises equipment" and "does not include any service that is an interconnected VoIP service.
  • Electronic Messaging Service: "means a service that provides real-time or near\real-time non-voice messages in text form between individuals over communications networks. This service does not include interactions that include only one individual (human to machine or machine to human communications).
  • Interoperable Video Conferencing Services: services that provide real-time video communications, including audio, between two or more users. This service does not include video mail. The Commission has sought additional comment, pursuant to the Further Notice of Proposed Rulemaking, regarding the definition and application of "interoperable".

The Commission clarified that the regulations implemented pursuant to the CVAA "do not apply to any telecommunications and interconnected VoIP products and services offered as of October 7, 2010." The R&O also indicates that any regulated equipment or service offered after October 7, 2010 may be governed by both Sections 255 and 716.

The CVAA established, among other things, a phased compliance timeline due to the financial and technical burdens associated with developing and implementing technological changes required by the CVAA. Covered Entities must comply with Sections 716 and 717 within one year of the effective date. Section 718 compliance must be achieved within two years of the effective date or no later than October 8, 2013. The CVAA also includes long-term reporting obligations, enforcement procedures, limitations on liability for violations and finite compliance deadlines. The Commission decided that the rules, as implemented, would not include any safe harbors or technical standards at this time. Finally, the Commission determined that when implementing the CVAA, its rules should include opportunities for waivers and self-executing exemptions.

Continue reading "Telecom Monitor"

Breaking News: National EAS Test Shortened

Scott R. Flick

Posted November 3, 2011

By Scott R. Flick

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.

FCC Enforcement Monitor

Scott R. Flick Christine A. Reilly

Posted October 31, 2011

By Scott R. Flick and Christine A. Reilly

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.

Continue reading "FCC Enforcement Monitor"

Glenn Richards of Pillsbury to Speak at the IT Procurement Summit on "Telecom Negotiations Lessons Learned," on October 28, 2011

Glenn S. Richards

October 28, 2011

Glenn S. Richards will speak during this session which takes place from 7:00 am to 5:00 pm.

Telecom encompasses such a wide range of products and services - from voice to data to wireline to wireless and everything in between. This complexity means it's always a challenge to prepare for the negotiation of a contract with a telecom provider. This panel will outline the lessons that they have walked away with when negotiating agreements with telecom providers. Even if your immediate plans do not include upcoming negotiations with telcos, many of these lessons learned can be universally applied to a variety of suppliers.

For more information and to register, please click here.

FCC Proposal for Online Public Files for TV Moves to the Front Burner

Lauren Lynch Flick

Posted October 27, 2011

By Lauren Lynch Flick

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.

Glenn Richards of Pillsbury to Speak at the IT Procurement Summit on "VoIP: Ready for Prime Time?", October 27, 2011

Glenn S. Richards

October 27, 2011

Glenn S. Richards will speak during this session which takes place from 7:00 am to 5:00 pm.

Once a technology for hobbyists, VoIP has emerged in the past five years as the standard for most enterprise customers. However, challenges and opportunities persist as customers must still grapple with multiple service providers, mobility features, 911 access and a changing regulatory environment that could substantially increase the cost of your VoIP service. This session will address strategies for negotiating contracts for VoIP services and provide an understanding of state and federal regulatory issues that could impact service delivery.

For more information and to register, please click here.

National EAS Test: FCC Online Reporting System & Test Handbook Now Available

Paul A. Cicelski

Posted October 26, 2011

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.

FCC Overturns 298 Prior Closed Captioning Waivers

Scott R. Flick

Posted October 21, 2011

By Scott R. Flick

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.

Time to Prepare -- November 9 National EAS Test Draws Near

Paul A. Cicelski

Posted October 20, 2011

By Paul A. Cicelski

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.

October 15, 2011: Copyright Royalty Fee - Monthly Usage Statement of Account Form Due

October 15, 2011

Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending August 31, 2011.

The Smoke Thickens for Both Radio and TV on Marijuana Ads

Scott R. Flick

Posted October 14, 2011

By Scott R. Flick

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.

Scott Flick of Pillsbury to Speak on "A Sense of Renewal: Navigating the FCC's Broadcast License Renewal Process," October 11, 2011

Scott R. Flick

October 11, 2011

Scott R. Flick of Pillsbury will review the FCC's Broadcast License Renewal Process during this Webinar presented by the Indiana Broadcasters Association on October 11th from 3:00 pm to 4:00 pm.

To register, please click here.

John Hane of Pillsbury to Participate in a Webinar Hosted by SNL Kagan Entitled "The FCC and Retrans: What is on the Agenda", Tuesday, October 11, between 1:30 and 3:00 p.m. ET

October 11, 2011

John Hane will be joined by Tom Larsen of Mediacom Communications and Sarah Barry and Robin Flynn of SNL Kagan to discuss and debate whether the FCC will adopt new retransmission consent rules and whether rules are needed at all.

To register, please click here.

October 10, 2011: Class A Television Continuing Eligibility Certification

October 10, 2011

Class A television stations are required to maintain documentation in their public inspection files sufficient to demonstrate continuing compliance with the FCC's Class A eligibility requirements. We recommend that by this date Class A television stations generate such documentation for the period July 1, 2011 through September 30, 2011 and place it in their public inspection files.

October 10, 2011: FCC Form 388 DTV Consumer Education Report Due

October 10, 2011

All full-power television stations that have not yet completed construction and commenced operation of their final post-transition DTV facilities must electronically file by this date FCC Form 388 demonstrating their compliance with DTV consumer education initiative requirements for the period July 1, 2011 through September 30, 2011.

October 10, 2011: FCC Form 398 Children's Programming Report Due

October 10, 2011

Commercial full-power and Class A television stations must by this date electronically file FCC Form 398, demonstrating their responsiveness to "the educational and informational needs of children" for the period July 1, 2011 through September 30, 2011, and place the form as filed in the stations' public inspection files.

October 10, 2011: Certification of Children's Commercial Time Limitations Required

October 10, 2011

Commercial full-power and Class A television stations must place in their public inspection files by this date records "sufficient to verify compliance" with the FCC's commercial time limitations in children's programming broadcast during the period July 1, 2011 through September 30, 2011.

October 10, 2011: Quarterly Issues/Programs List Required

October 10, 2011

All full-power radio, full-power television, and Class A television stations must place in their public inspection files by this date the Quarterly Issues/Programs List covering the period July 1, 2011 through September 30, 2011.

Retransmission Consent Reform - Where Does it Stand?

John K. Hane

Posted October 10, 2011

By John K. Hane

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

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

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

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

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

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

Medical Marijuana Advertising Becomes a Definite Liability for Broadcasters and Other Media

Scott R. Flick

Posted October 6, 2011

By Scott R. Flick

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

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

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

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

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

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

National EAS Test Raises Interesting Issues for Participants

Paul A. Cicelski

Posted October 6, 2011

By Paul A. Cicelski

As we previously reported here and here, the Federal Emergency Management Agency (FEMA), along with the Federal Communications Commission (FCC) and the National Oceanic and Atmospheric Administration (NOAA), will conduct the first nationwide Emergency Alert System (EAS) Test on November 9, at 2:00 p.m. Eastern.

FEMA and the FCC have strongly urged EAS Participants to get advance word of the test out to the public in order to avoid an Orson Welles "War of the Worlds" type of panic when the national test is initiated. To that end, FEMA has produced a Public Service Announcement (PSA) that EAS Participants can use to forewarn the public of the national test. The FCC has indicated that it will soon be making scripts available on its website for EAS participants to use to warn the public.

An interesting issue that has arisen in connection with broadcasters and other EAS Participants using the PSAs is whether the spots require sponsorship identification under the FCC's sponsorship identification rules. Even though it is reasonable to argue that no "money, service or other valuable consideration [will be] directly or indirectly paid, or promised to or charged or accepted" for airing the PSA, recent FCC sponsorship identification decisions involving Video News Releases have fined parties for using spots (unrelated to EAS) provided free of charge by third parties (in this case, FEMA).

Given the public service nature of the spot, and the fact that it is being provided by the Federal Government, it seems unlikely that the FCC will have an appetite for pursuing those who air the spot without adding sponsorship identification. However, in light of the FCC's decisions finding fault with airing even a portion of a third party Video News Release without including sponsorship identification, those airing FEMA spots might want to consider adding sponsorship ID tags to them.

It is also important to remember that the FCC will be requiring EAS Participants to file reports on the results of the test, including whether, and from whom, parties received the alert message and whether they were able to rebroadcast the test message. The FCC is in the process of establishing an electronic filing system on its website to allow EAS Participants to file the reports in as close to real time as possible following the test. Although only paper filing of the reports is required under the FCC's rules, the FCC is strongly encouraging parties to file electronically in order to allow FEMA and the FCC to review the results as quickly as possible. This will allow them to determine sooner rather than later if there are any problems with the EAS system that need to be addressed.

While the FCC has left open the question of whether it may take enforcement action against parties reporting problems in fulfilling their EAS obligations during the national test, it is clear is that the FCC will have little sympathy for parties who fail to actually participate in the test at all. Also, given that the FCC's rules currently require weekly and monthly EAS tests, EAS Participants should ensure that their EAS equipment is operating in compliance with FCC rules now so that they have no unhappy surprises to report to the FCC following the national test.

More information regarding the details of the national test can be found on the FCC's website here, and on FEMA's website here. The national EAS test date is drawing near, and the time for resolving these preparatory questions is running out.

Glenn Richards of Pillsbury to Speak at the 7th Annual Real-Time Communications Conference and Expo on October 6th

Glenn S. Richards

October 6, 2011

Glenn S. Richards will speak at this event hosted by the Illinois Institute of Technology's School of Applied Technology in two panel sesstions, "Universal Service Fund/Intercarrier Compensation Reform" and "NG911, Location and Accessibility," on October 6th from 8:30 am to 6:30 pm.

For more information and to register, please click here.

October 1, 2011: FCC Form 323-E Biennial Ownership Report Due

October 1, 2011

Noncommercial radio stations licensed to communities in Alaska, American Samoa, Florida, Guam, Hawaii, the Mariana Islands, Oregon, Puerto Rico, the Virgin Islands, and Washington and noncommercial television stations licensed to communities in Iowa and Missouri (other than sole proprietorships or partnerships composed entirely of natural persons) must electronically file by this date their biennial ownership reports on FCC Form 323-E, unless they have consolidated this filing date with that of other commonly owned stations licensed to communities in other states.

October 1, 2011: Annual EEO Public File Report Required

October 1, 2011

Station employment units ("SEUs") that have five or more full-time employees and are comprised of radio and/or television stations licensed to communities in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, the Mariana Islands, Missouri, Oregon, Puerto Rico, the Virgin Islands, and Washington must by this date place in their public inspection files (and post on their station website, if there is one), a report regarding station compliance with the FCC's EEO Rule during the period October 1, 2010 through September 30, 2011.

October 1, 2011: Pre-filing License Renewal Announcements for Radio Stations

October 1, 2011

Full-power AM and FM radio broadcast stations licensed to communities in Alabama and Georgia must begin on this date to air their pre-filing license renewal announcements in accordance with the FCC's regulations.

October 1, 2011: Post-filing License Renewal Announcements for Radio Stations

October 1, 2011

Full-power AM and FM radio broadcast stations licensed to communities in Florida, Puerto Rico, and the Virgin Islands must begin on this date to air their post-filing license renewal announcements in accordance with the FCC's regulations. FM Translator stations licensed to communities in these states must arrange for the required newspaper public notice of their license renewal application filing.

October 1, 2011: Filing of Applications for Renewal of Licenses for Radio Stations

October 1, 2011

Full-power AM and FM radio broadcast stations, as well as FM Translator stations, licensed to communities in Florida, Puerto Rico, and the Virgin Islands must electronically file by this date their applications for renewal of license on FCC Form 303-S, along with their Equal Opportunity Employment Reports on FCC Form 396 and their FCC filing fee.

October 1, 2011: Cable and Satellite Carriage Elections

October 1, 2011

Every three years, commercial television stations with must-carry rights are required to elect either retransmission consent or mandatory carriage (must-carry) on local cable and satellite systems for the upcoming three-year period. By this date, such stations must send their election notices to affected cable and satellite providers.

September 30, 2011: Traditional Deadline for the filing of Suspended FCC Form 395-B

September 30, 2011

This is the traditional date used by the FCC as the deadline for the filing of FCC Form 395-B, the Broadcast Annual Employment Report. As of the date of this publication, this filing requirement remains suspended.

September 30, 2011: EEO 1 Report Due

September 30, 2011

Broadcasters that are subject to the federal Equal Employment Opportunity Commission's (EEOC) reporting requirements must file their EEO 1 Report (Form 100) by this date.

FCC Enforcement Monitor

Scott R. Flick Christine A. Reilly

Posted September 30, 2011

By Scott R. Flick and Christine A. Reilly

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:

  • Low Power Broadcaster's Defiance Results in $7,000 Upward Adjustment
  • Unauthorized Post-Sunset Operations Lead to $4,000 Fine for AM Station

Belligerence Costs a Florida Broadcaster an Additional $7,000

Pursuant to a recently issued Notice of Apparent Liability ("NAL"), a Florida low power FM broadcaster was penalized an additional $7,000 for refusing to power down its transmitter at the request of agents from the FCC's Tampa Field Office. In June 2010, FCC field agents, following up on a complaint lodged by the Federal Aviation Administration regarding interference to its Air Traffic Control frequency at 133.75 MHz, employed direction-finding techniques to locate the source of the interference. The source turned out to be a low power FM station. When approached by the agents, a "representative of the station" repeatedly refused to power down the station even though the agents explained that the interference was an "ongoing safety hazard" and a "safety of life hazard."

During a subsequent telephone conversation between the station owner and an agent, the owner refused to let his representative at the station power down the transmitter until the station engineer was present. The station owner arrived at the transmitter site 30 minutes later and allowed the agents to inspect the station. At the time of the inspection, agents discovered that the station was using a transmitter that was not certified by the FCC, a direct violation of Section 73.1660 of the FCC's Rules. The base forfeiture for operating with unauthorized equipment is $5,000.

Two months after the site inspection, the Tampa Field Office issued a Letter of Inquiry. In its response, the licensee admitted that the noncompliant transmitter had been in use for approximately four months, up to and including the date of the site inspection. The response also indicated that the transmitter was replaced by a certified transmitter on July 9, 2010.

The FCC decided that the "particularly egregious" nature of the violation, and the station owner's "deliberate disregard" of an air traffic safety issue, warranted an upward adjustment of $7,000 to the base fine. The NAL therefore assessed a $12,000 fine against the station.

Continue reading "FCC Enforcement Monitor"

Broadcasters Hustling to Meet Numerous October Deadlines

Lauren Lynch Flick

Posted September 23, 2011

By Lauren Lynch Flick

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

October 1 (weekend)

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

October 10 (holiday)

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

October 23 (weekend)

  • License Renewal Documentation: Date on which radio stations licensed to communities in North and South Carolina must place in their public inspection file documentation of having given the required public notice of their August 1st license renewal filing.

NAB Small Market TV Exchange: September 22-24, 2011 - Austin, TX

September 22, 2011

Time for Cable and Satellite Carriage Elections, and the Stakes Have Never Been Higher

Scott R. Flick

Posted September 19, 2011

By Scott R. Flick

October 1, 2011 marks the triennial deadline for full power television stations (and a few lucky qualifying LPTV stations) to send their written must-carry or retransmission consent elections to each of the cable and satellite providers serving their market. The elections made by this October 1st will govern a station's carriage rights for the three-year period from January 1, 2012 to December 31, 2014, and the impact of these elections will be far more significant for individual TV stations than any made before.

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

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

Continue reading "Time for Cable and Satellite Carriage Elections, and the Stakes Have Never Been Higher"

FCC Further Extends EAS CAP-Compliance Deadline

Paul A. Cicelski

Posted September 16, 2011

Paul A. Cicelski

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

We filed the Petition on behalf of representatives of all EAS Participants, which included the State Broadcasters Associations, representing all fifty States and the District of Columbia, the National Association of Broadcasters, the Broadcast Warning Working Group, the National Cable and Telecommunications Association, the American Cable Association, National Public Radio, the Association of Public Television Stations, and the Public Broadcasting Service. Today, the FCC released an Order agreeing with the need for an extension and changing the CAP deadline from September 30, 2011 to June 30, 2012.

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

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

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

Rare Reprieve for Last Minute Regulatory Fee Filers

Lauren Lynch Flick

Posted September 15, 2011

By Lauren Lynch Flick

For those of you who remember the sense of relief you felt as a kid when you forgot to study for a test and later found out that class was cancelled, the FCC is giving you a chance to enjoy that feeling again. Despite the fact that annual regulatory fees were due yesterday, September 14, 2011, the FCC announced late today that the filing deadline is being extended until 11:59 pm ET tomorrow, September 16, 2011.

That may be a relief to many, as this year the FCC did not send out individual notices of the fee filing deadline to licensees, meaning that the number of licensees who forgot to file is likely higher this year than is typically the case. However, that is not the reason for the extension. Those who waited until the last minute to file their fees discovered that the FCC's electronic filing system was struggling under the load. Because of this, the FCC decided to grant the extension to make sure no one can complain that they tried to file on time but were prevented by the system from meeting the filing deadline. In other words, there's no excuse for missing the filing deadline now!

Because regulatory fees paid by check must reach the FCC's lockbox in St. Louis by the deadline, the more practical way of meeting the new deadline is through the use of a credit card for payment. Fees received after the deadline are subject to the automatic 25% late fee.

Should Media Lenders Feel Less Secure?

Miles S. Mason

Posted September 15, 2011

By Miles S. Mason

In an uncertain economy, obtaining financing for business transactions can be a challenge. It can be even more challenging for FCC licensees, since FCC rules prohibit granting a security interest in an FCC license. Because lenders want an enforceable lien on all of a borrower's assets, when those assets include FCC licenses, agreements must be structured carefully to give a lender all of the economic benefits of holding a security interest in the FCC license, without taking a security interest in the license itself.

The standard approach has been to provide the lender with a security interest in the "proceeds" of a license sale. That approach was called into question last October after a decision by the Colorado Bankruptcy Court (In re Tracy), which held that a security interest in the proceeds of an FCC license does not survive bankruptcy. While many communications lawyers saw this decision as an aberration, and the New York Bankruptcy Court (In re Terrestar Networks) rejected it outright in reaching an opposite conclusion last month, just a few days after that New York decision, on appeal, the Colorado U.S. District Court affirmed the reasoning in Tracy, once again opening the issue to debate.

Continue reading "Should Media Lenders Feel Less Secure?"

NAB Radio Show: September 14-16, 2011 - Chicago, IL

September 14, 2011

September 14, 2011: Copyright Royalty Fee - Monthly Usage Statement of Account Form Due

September 14, 2011

Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending July 31, 2011.

Spectrum Fees and the Urban Legend of Free Spectrum

Scott R. Flick

Posted September 13, 2011

By Scott R. Flick

In the past few days, details have emerged from the White House regarding the funding sources being proposed to cover the cost of the American Jobs Act. In the government's search for cash, it should surprise no one that in addition to broadcast spectrum auction language (which seems to be in every new funding bill these days), spectrum fees are also being proposed. While there is some good news for television broadcasters, who are exempt from the fees in the current draft of the bill, you can never tell if that exemption will survive the rough and tumble legislative process. Radio broadcasters aren't so lucky--no exemption for them.

One trend is clear--the government's growing reliance on fees from broadcasters and other FCC license holders. When I started practicing in the 1980s, the FCC did not generally charge fees. Congress later instructed the FCC to collect a fee for each application or report filed, and to set the size of the fee at an amount that would cover the cost of processing that particular application/report. While there was some grumbling about having to pay the FCC to process reports that the FCC had required be filed in the first place, most understood that the government was not going to surrender this newly-found revenue source.

However, when Congress later required the FCC to also collect annual regulatory fees from spectrum users in amounts sufficient to cover the FCC's total operating budget, spectrum users cried foul. They were already paying a filing fee to have the FCC process their applications, and now were expected to pay a separate annual fee to cover all of the FCC's operating costs (including application processing). This meant that the government was double-dipping--collecting fees under the guise of "covering costs" that in fact exceeded those costs. To his credit, Commissioner McDowell acknowledged this strange situation in 2009, when he urged the FCC to "take another look at why we continue to levy a tax of sorts of allegedly $25 million or so per year on industry, after the Commission has fully funded its operations through regulatory fees. That money goes straight to the Treasury and is not used to fund the agency." Despite the protests, the FCC continues to be required by Congress to collect those fees, which increase every year.

So broadcasters and other spectrum users can be forgiven if they are skeptical of calls for yet one more government fee on their existence. Even if the exemption for television broadcasters stays in the bill, that is limited comfort for TV licensees, since any spectrum fee adopted will almost inevitably creep over to television as Congress continues its search for revenue sources that can be called "fees" rather than "taxes."

Sensitive to these complaints, the White House attempted to bolster its case in a summary of the bill, stating that "it is expected that fees would encourage efficient allocation and use of the radio spectrum, as the opportunity cost of spectrum resources would be reflected to commercial license holders that did not receive authorizations through competitive bidding." This perennial argument, that broadcasters shouldn't complain about any governmentally-imposed burden because "they got their spectrum for free," remains one of the urban legends of Washington. Like most urban legends, however, it has no basis in fact.

Very few current broadcasters "got their spectrum for free." The FCC has been auctioning off broadcast spectrum for over a decade, and broadcast stations that were licensed before that time have typically been sold and resold at "fair market value" many times over the years. As a result, it is a rare broadcaster that currently holds a broadcast license obtained directly from the FCC "for free". Most broadcasters have paid dearly for that license, both in terms of the station purchase price and the public service obligations that come with the license.

Still, fee proponents argue that because the original license holder didn't have to pay the government for the spectrum, the "free" argument still applies, no matter how many times the station has changed hands since then. That argument is eviscerated, however, by a simple analogy. When the United States was settled, the government issued land grants to settlers who "staked a claim" to virgin territory by promising to make productive use of that land (the "Sooners" being one of the better-known examples). Other than the promise to use the land, these settlers did not pay the government for their land grants. The land then passed from generation to generation and from seller to buyer many times in the years since the original grant. However, despite the fact that the original owners "got their land for free", I would wager there are few homeowners among us who would agree that we received "our" land for free, much less accept a governmental fee premised on that assertion.

How spectrum/licenses were originally assigned by the FCC (or its predecessor agency) many years ago bears no more relevance to today's broadcaster than 19th century land grants relate to the modern homeowner. In both cases, the original owner lived up to its commitment to the government to make productive use of the asset, and was therefore permitted to eventually sell its claim to others. To assert that these buyers are somehow suspect beneficiaries of land or spectrum ignores reality. Today's broadcasters are merely the spiritual descendants of a different kind of settler--the pioneers of the airwaves.

FCC's Video Description Rules Have Been Officially Reinstated

Paul A. Cicelski

Posted September 9, 2011

By Paul A. Cicelski

Yesterday, the reinstatement of the FCC's "video description" rules finally became official with their publication in the Federal Register. It has been a long time coming, given that the rules were originally created by the FCC in 2000. In short, the reinstated rules require large-market broadcast affiliates of the top four national networks, and cable/satellite systems (MVPDs) with a large number of subscribers, to provide programming with video descriptions to their viewers.

"Video description" is defined by the FCC as the "insertion of audio narrated descriptions of a television program's key visual elements into natural pauses in the program's dialogue with the goal of making video programming more accessible to individuals who are blind or visually impaired." The FCC's original adoption of the rules in 2000 was challenged by the Motion Picture Association of America, among others, in the United States Court of Appeals for the District of Columbia Circuit. In its 2002 decision, the Court vacated the FCC's rules, holding that the FCC had "insufficient authority" to enact such rules.

In a very slow but deliberate response to the Court's decision, Congress gave the FCC explicit authority to adopt video description rules in the Twenty-First Century Communications and Video Accessibility Act of 2010 (TCCVAA), which became law in October of 2010. As we reported previously here, the TCCVAA mandated that the FCC take a number of steps to ensure that new communications technologies are accessible to individuals with vision or hearing impairment, including reinstating the video description rules that had been vacated by the D.C. Circuit.

As required by Congress, the FCC issued an Order late last month announcing the reinstatement of its video description rules. According to the FCC, the most important aspects of its reinstated rules are:

  • Full-power affiliates of the ABC, CBS, NBC and Fox networks located in the top 25 television markets must provide 50 hours of video-described prime time and/or children's programming each quarter;
  • MVPDs that operate systems with 50,000 or more subscribers must provide 50 hours of video-described prime time and/or children's programming each quarter on each of the top five non-broadcast networks that they carry; and
  • All broadcast stations affiliated with any network (including non-commercial stations) and all MVPD systems must pass through video descriptions contained in programming that they distribute as long as they have the technical capability to do so. "Technical capability" means having all the necessary equipment except for items that would be of minimal cost.

The TCCVAA also requires the FCC to eventually expand the broadcast requirement to the 60 largest markets, and the Commission has designated July 1, 2015 as the date when ABC, CBS, NBC and Fox affiliates in markets 26-60 (based on the Nielsen market rankings as of January 1, 2015) will be required to provide video description on 50 hours of prime time and/or children's programming each quarter.

While the video description rules will technically become effective on October 8, 2011, the FCC indicates that broadcast stations and MVPDs will not be required to begin full compliance with the rules until July 1, 2012. Even though July 2012 sounds like the distant future now, broadcasters and MVPDs should acquaint themselves with the new rules as soon as possible. The FCC's Order reinstates dozens of rule provisions, some of which are highly technical and will require significant effort on the part of broadcasters and MVPDs to ensure that they can comply in time or obtain waivers where necessary.

The FCC Makes Its Indecency Case at the Supreme Court, But Has the Court Already Shown Its Cards?

Scott R. Flick

Posted September 7, 2011

By Scott R. Flick

The FCC today filed its Brief at the U.S. Supreme Court defending its actions against Fox and ABC programming it found to be indecent. In the case of Fox, the alleged indecency was celebrity expletives uttered during the 2002 and 2003 Billboard Music Awards, while ABC was fined for rear nudity shown during an episode of NYPD Blue. As I wrote earlier, the fact that the Court is reviewing such disparate forms of indecency (fleeting expletives during live programming versus nudity during scripted programming) increases the likelihood of a broader ruling by the court regarding indecency policy, as opposed to a decision limited to the very specific facts of these two cases.

When the Supreme Court was contemplating whether to hear the FCC's appeal of the lower court decisions, some broadcasters urged the Court to look beyond these particular cases and rule on the continued viability of Red Lion. The Red Lion case is a 1969 decision in which the Supreme Court ruled that it was constitutional to limit broadcasters' First Amendment rights based upon the scarcity of broadcast spectrum. The logic behind Red Lion was that since there isn't enough spectrum available for everyone to have their own broadcast station, those fortunate enough to get a broadcast license must accept government restrictions on its use. Red Lion is the basis for many of the FCC regulations imposed on broadcasters, but the FCC's indecency policy is Red Lion's most obvious offspring.

While Red Lion is the elephant in the room in any case involving broadcasters' First Amendment rights, its emergence in the Fox/ABC case was particularly unsurprising. In an earlier stage of the Fox proceeding, the Supreme Court reversed a lower court ruling that the FCC's indecency enforcement was an arbitrary and capricious violation of the Administrative Procedure Act. The Court's decision was not, however, a show of unanimity. The 5-4 decision included a main opinion from Justice Scalia, but also two concurrences and three dissents. The most interesting aspect of the fractured decision came from Justice Thomas, who joined the majority in finding that the FCC had not violated the Administrative Procedure Act, but who also noted the "deep intrusion into the First Amendment rights of broadcasters" and questioned whether Red Lion was still viable in the Internet age.

It is certainly true that much of the logic supporting Red Lion has been undercut by a changing world. There are now far more broadcast stations than newspapers, but no one argues that the scarcity of newspapers justifies limiting their First Amendment rights. Similarly, the Internet has given those seeking not just a local audience, but a national or even international audience a very low cost alternative for reaching those audiences. While broadcast stations may still be the best way of reaching large local audiences, they are no longer the only way.

These are just a few of the many changes occurring since 1969 that weaken the foundation of Red Lion. If you put two communications lawyers in a room and give them five minutes, they will be able to generate at least a dozen other reasons why Red Lion's day has passed. Try this at your next cocktail party. It's far better than charades and communications lawyers need to get out more anyway.

It is therefore not surprising that broadcasters accepted Justice Thomas's invitation and urged the Court to reconsider Red Lion in evaluating the constitutionality of indecency regulation. What is interesting, however, is that when the Court agreed to review the lower court decisions, it explicitly limited its review to the constitutionality of the FCC's indecency policy, and declined to consider the broader questions raised by Justice Thomas with regard to Red Lion.

While some saw that as a defeat for broadcasters, I am inclined to think it was something else entirely. Although the composition of the Court has changed a bit since 2009, it is worth noting that four justices questioned the FCC's indecency policy then, and a fifth justice explicitly questioned Red Lion, the very foundation of that policy. Given that it only takes the votes of four justices for the Court to agree to hear an appeal, the exclusion of Red Lion from that review is curious, and it is certainly possible that Justice Thomas is alone in his concern about the continued viability of Red Lion.

More likely, however, is that the Court is adhering to its long-held doctrine of keeping decisions as narrow as possible when addressing the constitutionality of a particular law or regulation. If that is the case, then the justices may well have concluded that the FCC's indecency policy, at least in its current form, cannot survive constitutional review, and that there is no need to consider the broader issue of whether the government has any viable basis for regulating broadcasters and broadcast content. Stated differently, If the Court was inclined to uphold the constitutionality of the FCC's indecency policy, an assessment of the continued viability of Red Lion would be critical to that decision, since a constitutional policy for which the government lacks a constitutional basis to impose on broadcasters is still unconstitutional.

While it is always a risky endeavor to attempt to "read" the Court, the entire basis of indecency policy is to protect children from content the government finds unsuitable for them. It is therefore telling that on the very day the Court agreed to hear the FCC's appeal, it also released a decision overturning a California law prohibiting the sale of violent video games to minors, finding in a 7-2 decision that the law infringed upon the First Amendment, regardless of its intent to protect children. That decision makes clear that the Court will not merely accept "protecting children" as a valid basis for limiting First Amendment activities.

Of course, the California ban on sales of violent video games to minors affected only minors, whereas the FCC's restriction on indecency limits the broadcast content that everyone--adults and minors alike--can access from 6am-10pm every day (the hours during which indecent broadcast content is prohibited). That fact, combined with the reality that there is far more "First Amendment" speech (political and otherwise) on radio and television than in most video games, means that the FCC may have a tough job convincing the Court that the FCC's indecency policy can coexist with the First Amendment.

Client Advisory: Preserving and Maximizing Insurance Claims in the Aftermath of Hurricane Irene

Posted September 6, 2011

By Peter M. Gillon, Vince Morgan and James P. Bobotek

9/6/2011

Hurricane Irene has caused immense damage to the East Coast with loss estimates in the billons. Those affected face many challenges as they begin the recovery process, including impaired utility services, water damage, accessibility problems and supply-chain disruptions. Fortunately, many corporate policyholders have insurance coverage available to assist in the aftermath of this tragic event. Taking a few proactive steps will help maximize that coverage.

Insurance claims arising out of natural disasters such as Hurricane Irene can be very complex, both in terms of sheer scope and the legal issues involved. Irene caused not only billions of dollars in property damage through wind, rain, and flooding, but also exacted a heavy toll on commercial business operations as a result of power outages, evacuations, and transportation route closures. To help with the claim process, we have prepared this Advisory to provide a basic outline of some key issues to keep in mind as restoration and recovery efforts continue.

Continue reading "Client Advisory: Preserving and Maximizing Insurance Claims in the Aftermath of Hurricane Irene"

FCC Enforcement Monitor

Scott R. Flick Christine A. Reilly

Posted August 31, 2011

By Scott R. Flick and Christine A. Reilly

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:

  • Late-Filed License Application Garners $7,000 Fine
  • FCC Fines Noncommercial Broadcaster $5,000 for Alien Ownership Violation
"Inadvertent Error" Results in $7,000 Fine for West Virginia Broadcaster

The FCC recently issued a combined Memorandum Opinion and Order and Notice of Apparent Liability (the "Order") fining a West Virginia FM broadcaster for unauthorized operation and failure to file a required form. The base fines associated with these types of rule violations total $13,000. However, based on the circumstances detailed below, the FCC decided to reduce the overall fine to $7000.

The licensing process begins with the grant of a construction permit and concludes with the grant of a station license authorizing permanent operation of the newly-constructed facilities. Pursuant to Section 73.3598(a) of the FCC's Rules, construction must be completed within three years and a license application must be promptly filed with the FCC when construction is completed. Subsection (e) of this rule provides that a construction permit will be automatically forfeited upon its expiration if construction is not completed and a license to cover application has not been filed within the allotted three year period.

In the instant case, the FM broadcaster was forced to utilize an emergency antenna as a consequence of a 2002 tower collapse. In June 2004, the FM broadcaster sought to modify its station to relocate its authorized tower site to a location less than two miles away. As part of this process, the FM broadcaster filed an application for a construction permit. The FCC granted the application in July 2004 and issued a construction permit slated to expire in July 2007.

According to the Order, the FM broadcaster filed its license application in May 2011, almost four years beyond the expiration of the 2004 construction permit. The license application included a request for a waiver of Section 73.3598(e), indicating that the authorized construction had been completed by April 2006, well in advance of the three year expiration date, but that due to an "inadvertent error", the license application was not filed prior to the construction permit's July 2007 expiration.

In support of its waiver request, the FM broadcaster cited a May 2011 case in which the FCC had "affirmed the staff's practice of waiving Section 73.3598(e) of the Rules in situations where the applicant conclusively demonstrates that it completed construction prior to the expiration of the construction permit, notwithstanding the tardy filing of the license to cover application." In response, the FCC's Order noted that the prior waivers occurred where the delay in meeting the deadline was "relatively minor", as was the case in the cited May 2011 decision, where a license application was filed three days after the expiration of the construction permit. The FCC concluded that a four year delay could not be considered minor.

Ultimately, the FCC rejected the FM broadcaster's waiver request, dismissed the license application, and on its own motion, granted the station special temporary authority to operate while it reapplied for a new construction permit. The FCC levied the full $3,000 fine for failure to timely file a license application, but reduced the unauthorized operation fine (for the period the station operated with modified but unlicensed facilities) from $10,000 to $4,000 since the station had previously held a valid license.

Continue reading "FCC Enforcement Monitor"

FCC Moves Biennial Ownership Report Deadline to December 1

Paul A. Cicelski

Posted August 24, 2011

By Paul A. Cicelski

In 2009, the FCC adopted an Order which expanded the types of commercial broadcast licensees required to file ownership reports on FCC Form 323 biennially. The FCC also established November 1 (of odd-numbered years) as the single national ownership report filing date for all commercial broadcast stations. As a result, all commercial full-power AM, FM, TV, and Class A and LPTV stations, as well as entities with attributable interests in those stations, were due to file their next biennial ownership reports on November 1 of this year. However, the Media Bureau issued an Order yesterday which moves the November 1, 2011 filing deadline to December 1, 2011. The FCC indicates that despite the change in filing date, the ownership reports should still include a snapshot of station ownership as it existed on October 1, 2011.

Keep in mind that the ownership report filing requirement does not apply to TV translators, FM translators, or low power FM stations. The FCC's action also does not affect noncommercial stations, which continue to file their biennial reports on FCC Form 323-E by a filing deadline determined based upon the state in which they are licensed (rather than a single national date).

According to the FCC, the filing date was moved because "some licensees and parent entities of multiple stations may be required to file numerous forms and the extra
time is intended to permit adequate time to prepare such filings." Despite providing the extra time, the FCC is still encouraging parties to prepare and file their ownership reports as soon as possible.

Having provided the extra filing time, the FCC will not be too pleased with broadcasters that fail to meet this new deadline. Broadcasters should therefore accept the FCC's advice and try to avoid last minute ownership filings, which increase the likelihood of technical and other problems that can interfere with a successful filing.

The First Domino Falls: Say Goodbye to Channel 51

Scott R. Flick

Posted August 22, 2011

By Scott R. Flick

The FCC this morning announced a "temporary" freeze on the filing and processing of applications for full power and low power television stations on Channel 51. The freeze was announced in response to a petition filed in March by CTIA - the Wireless Association and the Rural Cellular Association asking the FCC to take steps to "prevent further interference caused by TV broadcast stations on channel 51" to wireless broadband services in the Lower 700 MHz A Block. More specifically, the petition urged the FCC to "(1) revise its rules to prohibit future licensing of TV broadcast stations on channel 51, (2) implement freezes, effective immediately, on the acceptance, processing and grant of applications for new or modified broadcast facilities seeking to operate on channel 51, and (3) accelerate clearance of channel 51 where incumbent channel 51 broadcasters reach voluntary agreements to relocate to an alternate channel."

What is odd about the FCC's announcement, however, is that freezes are normally implemented to "lock down" the engineering database to permit the FCC to analyze various engineering solutions using a stable database. For example, during the DTV transition, the FCC issued numerous freezes as it attempted to engineer a DTV channel plan that would allow each full power station both a digital and an analog channel to operate during the transition. That task would have been much harder if the database had kept changing during that time.

Here, however, the FCC is not freezing Channel 51 applications to give it time to resolve a Channel 51 engineering issue. Instead, it is freezing Channel 51 applications to ostensibly give it time to determine whether to freeze Channel 51 applications. That is a novel use for a freeze, and seems to prejudge the ultimate question of whether the FCC should grant the underlying petition.

Of particular interest is the fact that today's notice goes farther than just a freeze, as it "(1) announces a general freeze, effectively [sic] immediately, on the filing of new applications on channel 51 and the processing of pending applications on channel 51; (2) lifts the existing freeze as applied to, and will accept, petitions for rulemaking filed by full power television stations seeking to relocate from channel 51 pursuant to a voluntary relocation agreement; and (3) opens a 60-day window for parties with pending low power television station applications on channel 51 to amend their applications to request a voluntary channel assignment."

Typically, when the FCC issues a freeze, it is only on the filing of new applications. As a matter of fairness, the FCC will normally process applications already on file when a freeze is announced since such an applicant has already expended its resources to file an application that was fully grantable before the freeze was announced. That makes this freeze unusual, as it freezes even pending applications, and in doing so, pretty much "temporarily" grants the wireless industry's petition.

That last aspect is particularly odd. In contrast to a freeze designed to "lock in" the current engineering situation while options are assessed, the freeze notice does the opposite, specifically encouraging Channel 51 applicants and licensees to amend their applications and modify their facilities to change the current Channel 51 engineering terrain. In other words, it is a freeze that is not designed to lock in the current situation, but to actively change the current situation.

If it wasn't already clear where the FCC is heading, establishing a 60-day "window" for low power applicants to clear off of Channel 51 in response to only a "temporary" freeze would make no sense if the FCC didn't intend the freeze to be permanent. A low power station that fails to file a displacement application during those 60 days could well be deprived of a subsequent opportunity to amend when the FCC adopts a permanent Channel 51 freeze. Otherwise, there would be no point in limiting such applications to a 60-day window. In that regard, the assertion in the freeze notice that the FCC's action is purely procedural and therefore "not subject to the notice and comment and effective date requirements of the Administrative Procedure Act" will be of little comfort to the low power applicant who waits to see what "permanent" action the FCC takes in this proceeding.

While the freeze does leave the FCC staff some wiggle room to grant waivers for modification applications by existing Channel 51 stations where necessary to maintain service to the public (thank you Media Bureau!), it is apparent that the FCC has decided to begin winding down use of Channel 51, even though the wireless entities that bid on the adjacent spectrum knew that they were subject to interference from Channel 51 stations when they bought it.

Broadcasters not affected by this freeze should derive little comfort from that fact. The FCC has made clear its desire to recover 120 MHz of contiguous broadcast spectrum, which means that all channels higher than 30 would disappear. This Channel 51 freeze merely establishes the template for those future FCC actions, and soon the bell could be tolling for far more than just Channel 51.

Nebraska Broadcasters Association Annual Convention, August 17-18, 2011

August 17, 2011

For more information click here.

Scott Flick of Pillsbury to Speak at the 2011 Nebraska Broadcasters Association Annual Convention, August 17, 2011, on "Staying Ahead of the Curve: A Tour of Washington's Monumental Communications Issues"

Scott R. Flick

August 17, 2011

Scott R. Flick will speak at this session taking place from 1:45 PM to 3:30 PM.

For more information and to register, please click here.

Client Alert: FCC Sets September 14, 2011 as the Deadline for Payment of FY 2011 Annual Regulatory Fees

Christine A. Reilly Richard R. Zaragoza

Posted August 16, 2011

By Richard R. Zaragoza and Christine A. Reilly

8/15/2011

The FCC has announced that full payment of all applicable Regulatory Fees for Fiscal Year 2011 must be received no later than September 14, 2011.

As of this date, the FCC has not released a Public Notice officially announcing the deadline for payment of FY 2011 annual regulatory fees. However, the FCC's website indicates that the 2011 annual regulatory fees must be paid no later than 11:59 pm (EST) on September 14, 2011.

As reported in July 2010, beginning in 2011, the Commission has discontinued mailing assessment notices to licensees/permittees. It is the responsibility of each licensee/permittee to determine what fees are due and to pay them in full by the deadline. Information pertaining to the annual regulatory fees is available online at http://transition.fcc.gov/fees/regfees.html.

Annual regulatory fees are owed for most FCC authorizations held as of October 1, 2010 by any licensee or permittee which is not otherwise exempt from the payment of such fees. Licensees and permittees may review assessed fees using the FCC's Media Look-Up website - http://www.fccfees.com. Certain entities are exempt from payment of regulatory fees, including, for example, governmental and non-profit entities. Section 1.1162 of the FCC's Rules provides guidance on annual regulatory fee exemptions. Broadcast licensees that believe they qualify for an exemption may refer to the FCC's Media Look-Up website for instructions on submitting a Fee-Exempt Status Claim.

Continue reading "Client Alert: FCC Sets September 14, 2011 as the Deadline for Payment of FY 2011 Annual Regulatory Fees"

August 14, 2011: Copyright Royalty Fee - Monthly Usage Statement of Account Form and Quarterly Report of Use Form Due

August 14, 2011

Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending June 30, 2011.

Public File Fines Catching the Attention of Broadcasters at License Renewal Time

Scott R. Flick

Posted August 10, 2011

By Scott R. Flick

While our monthly editions of FCC Enforcement Monitor have continued to grow in popularity over the past decade, I'm never quite sure if it is because readers rely on it to better understand the FCC's Rules, or if it is more akin to going to the races to see who crashes. Every month, FCC Enforcement Monitor highlights some of the FCC's recent enforcement actions, and the penalties imposed. Having edited every issue since it launched in 1999, I find it useful in spotting enforcement trends before our clients find out about those trends the hard way.

One of the trends that is increasingly apparent is the FCC's hardening line on public inspection file violations. In fact, we just did a major update to our Client Advisory on public file compliance to help broadcast stations avoid that pitfall, and I'll be in Austin this week at the Texas Association of Broadcasters/Society of Broadcast Engineers convention with Stephen Lee of the FCC's Houston regional office discussing the public file rule and other FCC compliance issues.

One of the questions on the broadcast license renewal form requires applicants to certify that they have fully complied with the public file rule and that their files are complete. Once upon a time, a station that could not make that certification and was therefore required to disclose its file's shortcomings to the FCC might well get an admonition from the FCC to do better in the future, combined with an acknowledgement that the applicant had at least voluntarily disclosed its infraction. Then the FCC began issuing $2000 fines for public inspection violations, which crept upward in the last license renewal cycle to $3000 and then to $4000. During this time, there was much consternation among broadcasters who had sought to comply with the rule, admitted to the FCC any shortcomings in their public file, and felt that they were being unfairly punished for being forthright with the FCC.

In 1997, the FCC established a base fine of $10,000 for public inspection file violations, but tended not to issue fines for the full $10,000 unless it was an egregious violation, such as a station that failed to keep a public file at all for some period of time. However, in the past decade, $10,000 has become the standard "go to" fine for even minor public file violations. In fact, the most recent FCC Enforcement Monitor details a recent case where the FCC chose to adjust its base fine upward and issue a $15,000 fine for a public inspection file violation.

Of equal interest in that same issue of FCC Enforcement Monitor is a case in which the FCC fined a student-run noncommercial station $10,000 for documents missing from the public file. In assessing the fine, the FCC made clear that the station's "voluntary" disclosure of public file problems in its license renewal application no longer earns any sympathy from the FCC. The FCC stated that "although the Licensee has admitted to the violations, it did so only in the context of the question contained in its captioned license renewal application that compelled such disclosure." When the station later asked that the fine be cancelled or reduced given its student-run and noncommercial nature, the FCC once again had no sympathy, and reaffirmed the $10,000 fine.

Since submitting a false certification on a federal form can lead to far worse penalties than a fine, broadcasters have but one option for avoiding a $10,000 (or worse) fine, and that is by making sure their stations' public inspection files are above reproach. With the next license renewal cycle now upon us, broadcasters would be wise to ensure their public file is getting the attention it deserves. If that leaves us with no FCC public inspection file fines to discuss in a future issue of FCC Enforcement Monitor, I'll be happy with that result.

Special Advisory for Commercial and Noncommercial Broadcasters: Meeting the Radio and Television Public Inspection File Requirements

Scott R. Flick Lauren Lynch Flick

Posted August 10, 2011

By Lauren Lynch Flick and Scott R. Flick

8/10/2011

This Advisory is designed to help commercial and noncommercial radio and television stations comply with the FCC's public inspection file rules. See 47 C.F.R. §§ 73.3526 and 73.3527. This Advisory tracks the public access, content, retention and organizational requirements of those regulations. Previous editions of this Advisory are obsolete, and should not be relied upon.

As of the date of this Advisory, the FCC is considering petitions for reconsideration of two new, but not yet effective, regulations that will have an impact on public inspection files maintained by television broadcast stations. One will require every full-power and Class A television station with a website to post a duplicate set of virtually the entire contents of their current "paper-based" public inspection file on their website. The second will require such television stations, on a quarterly basis, to complete a new report entitled "Standardized Television Disclosure Form" using new FCC Form 355, file that report with the FCC, place a copy of the completed report in the station's public inspection file, and post the report on the station's website, if it has one. As mentioned, neither of these two new requirements is legally effective at this time. It should be noted that representatives of the broadcast industry have challenged both requirements, and it is not possible to predict the outcome of those challenges. Accordingly, stations should evaluate what steps they may need to take to come into compliance with these new regulations at a later date. We intend to update this Advisory if and when either of those two requirements goes into effect.

Public Access to the Public Inspection File
The FCC requires every applicant, permittee, and licensee of a full-power AM, FM, and TV station or of a Class A TV station to maintain a local public inspection file. The purpose of this file, according to the Commission, is "to make information to which the public already has a right more readily available, so that the public will be encouraged to play a more active part in a dialogue with broadcast licensees." Because the public file rules are part of the FCC's commitment to responsive broadcasting, the importance of broadcaster compliance with these rules cannot be overemphasized. (continued...)

A PDF verison of this entire article can be found at Special Advisory for Commercial and Noncommercial Broadcasters: Meeting the Radio and Television Public Inspection File Requirements.

Texas Association of Broadcasters/Society of Broadcast Engineers Annual Convention and Trade Show, August 10-11, 2011

August 10, 2011

For more information click here.

Scott Flick of Pillsbury to Speak at the Texas Association of Broadcasters/Society of Broadcast Engineers Annual Convention & Trade Show, August 10, 2011

Scott R. Flick

August 10, 2011

Scott R. Flick will discuss FCC compliance issues at a seminar taking place from 4:45 PM to 6:00 PM in Austin. The discussion will focus on best practices for meeting a broadcast station's FCC obligations and avoiding common but costly mistakes.

For more information and to register, please click here.

"Regulatory Uncertainty" Prompts Further EAS CAP Extension Request

Paul A. Cicelski

Posted August 2, 2011

By Paul A. Cicelski

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

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

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

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

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

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

August 1, 2011: FCC Form 323-E Biennial Ownership Report Due

August 1, 2011

Noncommercial radio stations licensed to communities in California, North Carolina, and South Carolina and noncommercial television stations licensed to communities in Illinois and Wisconsin (other than sole proprietorships or partnerships composed entirely of natural persons) must electronically file by this date their biennial ownership reports on FCC Form 323-E, unless they have consolidated this filing date with that of other commonly owned stations licensed to communities in other states.

August 1, 2011: Annual EEO Public File Report Required

August 1, 2011

Station employment units ("SEUs") that have five or more full-time employees and are comprised of radio and/or television stations licensed to communities in California, Illinois, North Carolina, South Carolina, and Wisconsin must by this date place in their public inspection files (and post on their station website, if there is one), a report regarding station compliance with the FCC's EEO Rule during the period August 1, 2010 through July 31, 2011.

August 1, 2011: Pre-filing License Renewal Announcements for Radio Stations

August 1, 2011

Full-power AM and FM broadcast radio stations licensed to communities in Florida, Puerto Rico and the Virgin Islands must begin on this date to air their pre-filing license renewal announcements in accordance with the FCC's regulations.

August 1, 2011: Post-filing License Renewal Announcements for Radio Stations

August 1, 2011

Full-power AM and FM radio broadcast stations licensed to communities in North Carolina and South Carolina must begin on this date to air their post-filing license renewal announcements in accordance with the FCC's regulations. FM Translator stations licensed to communities in these states must arrange for the required newspaper public notice of their license renewal application filing.

August 1, 2011: Filing of Applications for Renewal of Licenses for Radio Stations

August 1, 2011

Full-power AM and FM radio broadcast stations, as well as FM Translator stations, licensed to communities in North Carolina and South Carolina must electronically file their applications for renewal of license on FCC Form 303-S, along with their Equal Opportunity Employment Reports on FCC Form 396 and their FCC filing fee by this date.

July 31, 2011: Copyright Royalty Claims Due

July 31, 2011

Television stations with locally-produced programming whose signals were carried as distant signals by at least one cable system in 2010, and television stations with locally-produced programming whose signals were carried by at least one satellite carrier for home viewing in 2010, are eligible to file royalty claims for compensation with the Copyright Office in Washington, DC by this date.

FCC Enforcement Monitor

Scott R. Flick Christine A. Reilly

Posted July 28, 2011

By Scott R. Flick and Christine A. Reilly

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:

  • FCC Increases Fine to $25,000 for Main Studio and Public File Violations
  • FCC Reaffirms $10,000 Public File Violation Against Student-Run Noncommercial FM Station

FCC Fines Texas Broadcaster $25,000 for Repeated Failure to Maintain Full-Time Personnel and to Make Available a Complete Public Inspection File

According to a recent Notice of Apparent Liability ("NAL"), the FCC proposed two fines totaling $25,000 against a Texas broadcaster for violations of Section 73.1125 (the "Main Studio Rule") and Section 73.3526 (the "Public Inspection File Rule") of the Commission's Rules. The violations were discovered during three separate site visits over a two week period by an agent from the Enforcement Bureau's Houston Field Office.

The Main Studio Rule establishes the requirements for a station's main studio, including minimum staffing levels. The FCC requires that licensees maintain a "meaningful management and staff presence" at a station's main studio. Based on a 1991 decision, the FCC defines "meaningful" as having at least one management level employee and one staff level employee generally present "during normal business hours." The base forfeiture for violations of Section 73.1125 is $7,000. The Public Inspection File Rule requires broadcasters to maintain, and make available, certain material in their public inspection file, including a station's current authorization, a current copy of the Public and Broadcasting manual, and a list of programs ("issues-programs list") broadcast during each quarter of the license term that evidences the station's most significant treatment of community issues. The base forfeiture for violations of Section 73.3526 is $10,000.

Continue reading "FCC Enforcement Monitor"

FCC Announces FY2011 Regulatory Fee Amounts

Lauren Lynch Flick

Posted July 26, 2011

By Lauren Lynch Flick

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

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

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

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

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

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


August 1 Deadline Looms For Copyright Royalty Claims

Lauren Lynch Flick

Posted July 21, 2011

By Lauren Lynch Flick

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

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

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

FCC Announces Deadlines for Ending All Analog and Channel 52-69 LPTV Operations

Scott R. Flick Lauren Lynch Flick

Posted July 15, 2011

By Scott R. Flick and Lauren Lynch Flick

If you have an LPTV station operating on a channel higher than 51, you have until September 1 of this year to file an application to change to digital operation on channel 51 or below. Failure to file an application by that deadline means the station's authority to operate will terminate on December 31 of this year, which is the deadline announced late today by the FCC for ending all LPTV operations on channels 52-69.

By establishing this rapid deadline for moving LPTV stations out of channels 52-69, the FCC is seeking to clear the way for the immediate use of that spectrum by wireless operators and public safety systems. Stations that are unable to locate a workable channel below channel 52 and get a modification application on file in the next six weeks will have to shutter their operations by the end of this year.

In the order released today, the FCC also established a hard date of September 1, 2015 for all analog LPTV broadcasting to cease, regardless of channel. The FCC stated that setting the date some four years in advance will allow low power operators ample time to plan for the transition and prepare for the impact of the National Broadband Plan on spectrum availability.

Continue reading "FCC Announces Deadlines for Ending All Analog and Channel 52-69 LPTV Operations"

FCC Launches National EAS Test Information Page

Paul A. Cicelski

Posted July 15, 2011

By Paul A. Cicelski

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

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

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

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

July 15, 2011: Copyright Royalty Fee - Monthly Usage Statement of Account Form Due

July 15, 2011

Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending May 31, 2011.

July 10, 2011: Class A Television Continuing Eligibility Certification

July 10, 2011

Class A television stations are required to maintain documentation in their public inspection files sufficient to demonstrate continuing compliance with the FCC's Class A eligibility requirements. We recommend that by this date Class A television stations generate such documentation for the period April 1, 2011 through June 30, 2011 and place it in their public inspection files.

July 10, 2011: FCC Form 388 DTV Consumer Education Report Due

July 10, 2011

All full-power television stations that have not yet completed construction and commenced operation of their final post-transition DTV facilities must electronically file by this date FCC Form 388 demonstrating their compliance with DTV consumer education initiative requirements for the period April 1, 2011 through June 30, 2011.

July 10, 2011: FCC Form 398 Children's Programming Report Due

July 10, 2011

Commercial full-power and Class A television stations must by this date electronically file FCC Form 398, demonstrating their responsiveness to "the educational and informational needs of children" for the period April 1, 2011 through June 30, 2011, and place the form as filed in the stations' public inspection files.

July 10, 2011: Certification of Children's Commercial Time Limitations Required

July 10, 2011

Commercial full-power and Class A television stations must place in their public inspection files by this date records "sufficient to verify compliance" with the FCC's commercial time limitations in children's programming broadcast during the period April 1, 2011 through June 30, 2011.

July 10, 2011: Quarterly Issues/Programs List Required

July 10, 2011

All full-power radio, full-power television, and Class A television stations must place in their public inspection files by this date the Quarterly Issues/Programs List covering the period April 1, 2011 through June 30, 2011.

Another Third Circuit Setback for Media Interests

Clifford M. Harrington

Posted July 8, 2011

By Clifford M. Harrington

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

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


  • Radio/Television Cross-Ownership Rule

  • Local Television Ownership Rule, including the Top-Four Station and Eight Voices Tests

  • Local Radio Ownership Rule

  • Dual Network Rule

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

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

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

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

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

2011 Second Quarter Issues/Programs List Alert for Broadcast Stations

Scott R. Flick Christine A. Reilly

Posted July 6, 2011

By: Scott R. Flick and Christine A. Reilly

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

Content of the Quarterly List

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

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

Given the fact that program logs are no longer officially mandated by the Commission, the Quarterly Lists may be the most important evidence of a station's compliance with its public service obligations. The lists also provide important support for the certification of Class A TV station compliance that is discussed below and which must be produced by Class A TV applicants and licensees.

Continue reading "2011 Second Quarter Issues/Programs List Alert for Broadcast Stations"

2011 Second Quarter Children's Television Programming Documentation Alert

Lauren Lynch Flick Christine A. Reilly

Posted July 6, 2011

By Lauren Lynch Flick and Christine A. Reilly

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

Statutory and Regulatory Requirements

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

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

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

Continue reading "2011 Second Quarter Children's Television Programming Documentation Alert"

Broadcasters: It's Quarterly Filing Time Again

Paul A. Cicelski

Posted July 6, 2011

By Paul A. Cicelski

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

Children's Television Programming Documentation

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

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

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

Quarterly Issues Programs Lists

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

July, 2011: Regulatory Fees Announced

July 1, 2011

The FCC is expected to release a Public Notice this month indicating the dates by which annual regulatory fees must be filed with the FCC and the amounts of those fees. Broadcasters should be alert to this announcement.

FCC Enforcement Monitor

Scott R. Flick Christine A. Reilly

Posted June 30, 2011

By Scott R. Flick and Christine A. Reilly

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:

  • FCC Fines FM Broadcaster an Extra $5,000 For Inaction

  • Inaccurate Tower Ownership Information Ends in $3,000 Fine

Failure to Heed an FCC Warning Regarding Public Inspection File Violations Results in $15,000 Fine
Following a routine inspection in April 2010, the Enforcement Bureau's Pennsylvania Field Office issued a Letter of Inquiry ("LOI") regarding the contents of a Pennsylvania FM station's public inspection file. According to a recently released Notice of Apparent Liability ("NAL"), all of the station's issues/programs lists for the current license term, a total of 15 quarters, were unaccounted for in the station's public inspection file at the time of the inspection. Section 73.3526(e)(12) of the FCC's Rules requires broadcasters to place in their public inspection file each quarter a list of programs that have provided the station's most significant treatment of community issues. The base forfeiture for violations of Section 73.3526 is $10,000.

In its response to the LOI, the FM broadcaster admitted that the quarterly issues/programs lists were unavailable on the day of the inspection. The FM broadcaster indicated that it was evident "a person or persons had gone through the file and that some of the items had been removed" and was "committed" to bringing the station's public inspection file into compliance.

Continue reading "FCC Enforcement Monitor"

The Supreme Court Joins the Indecency Battle

Scott R. Flick

Posted June 27, 2011

By Scott R. Flick

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

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

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

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

Scott Flick of Pillsbury to Speak at the 2011 Mid Atlantic States Broadcasters Conference, June 21, 2011 in Broadcaster Regulatory and Legislative Roundtable

Scott R. Flick

June 20, 2011

Scott Flick will speak at this special session which takes place at 10:15 AM and includes an update of current regulatory and legislative proposals. Topics to be discussed include the Performance Tax, ABIPs, the National Broadband Plan and spectrum reallotment, Advertising tax proposals, and a variety of other FCC and legislative matters.

For more information click here.

June 14, 2011: Copyright Royalty Fee - Monthly Usage Statement of Account Form Due

June 14, 2011

Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit to SoundExchange the Monthly Report of Use and Monthly Usage Statement of Account forms for the month ending April 30, 2011.

November 9, 2011 Announced as First National EAS Test Date

Scott R. Flick

Posted June 9, 2011

By Scott R. Flick

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

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

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

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

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

Laurie Lynch Flick of Pillsbury to Speak on the FCC's EEO Regulations, June 9, 2011

June 8, 2011

Lauren Lynch Flick will discuss compliance with the FCC's EEO Regulations and preparing for the EEO portion of stations' upcoming license renewal filings at this seminar presented by the New Hampshire Association of Broadcasters on June 9, 2011 from 9:00 am to noon.

For New Hampshire broadcasters wishing to obtain more information and to register for the seminar, please click here.

NAB Service to America Dinner: June 6, 2011 - Washington, DC

June 6, 2011

FCC Releases Long-Awaited Emergency Alert System NPRM

Paul A. Cicelski

Posted June 2, 2011

By Paul A. Cicelski

Last week, the FCC released its long-awaited Third Further Notice of Proposed Rulemaking, the goal of which is to modify Part 11 of the FCC's Rules in order to allow for Common Alerting Protocol (CAP) delivery of the "next generation" Emergency Alert System (EAS). A copy of the NPRM can be found here.

EAS Participants (e.g., radio and television stations, wired and wireless cable television systems, DBS and SDARS services) have been anxiously waiting for the FCC to release this NRPM since at least the end of last year. The primary reason for this, as we previously reported here and here, is that CAP-compliant EAS encoders/decoders must be purchased, installed and operational by September 30 of this year. The hope of EAS Participants has been that this proceeding will provide them with much needed guidance to make informed decisions regarding what equipment they should obtain and install to ensure compliance with CAP and the revised Part 11 rules. The NPRM also gives EAS Participants the opportunity to comment on the proposed rules and to provide input regarding how CAP and next generation EAS will impact their operations going forward.

The NPRM is a lengthy 203 paragraphs (with an additional 18 pages of proposed new rules) and it asks for public comment on many items related to revising and streamlining the FCC's Part 11 rules and how the FCC should codify the requirements for processing emergency alerts using CAP. A few of the NPRM's highlights are summarized below.

Continue reading "FCC Releases Long-Awaited Emergency Alert System NPRM"

June 1, 2011: FCC Form 323-E Biennial Ownership Report Due

June 1, 2011

Noncommercial radio stations licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, and Wyoming and noncommercial television stations licensed to communities in Michigan and Ohio (other than sole proprietorships or partnerships composed entirely of natural persons) must electronically file by this date their biennial ownership reports on FCC Form 323-E, unless they have consolidated this filing date with that of other commonly owned stations licensed to communities in other states.

June 1, 2011: Annual EEO Public File Report Required

June 1, 2011

Station employment units ("SEUs") that have five or more full-time employees and are comprised of radio and/or television stations licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming must by this date place in their public inspection files (and post on their station website, if there is one), a report regarding station compliance with the FCC's EEO Rule during the period June 1, 2010 through May 30, 2011.

June 1, 2011: Pre-filing License Renewal Announcements for Radio Stations

June 1, 2011

Full-power AM and FM broadcast radio stations licensed to communities in North Carolina and South Carolina must on this date begin to air their pre-filing license renewal announcements in accordance with the FCC's regulations.

June 1, 2011: Post-filing License Renewal Announcements for Radio Stations

June 1, 2011

Full-power AM and FM radio broadcast stations licensed to communities in the District of Columbia, Maryland, Virginia and West Virginia must begin on this date to air their post-filing license renewal announcements in accordance with the FCC's regulations. FM Translator stations licensed to communities in these states must arrange for the required newspaper public notice of their license renewal application filing.

June 1, 2011: Filing of Applications for Renewal of Licenses for Radio Stations

June 1, 2011

Full-power AM and FM radio broadcast stations, as well as FM Translator stations, licensed to communities in the District of Columbia, Maryland, Virginia and West Virginia must electronically file their applications for renewal of license on FCC Form 303-S, along with their Equal Opportunity Employment Reports on FCC Form 396 and their FCC filing fee by this date.

FCC Freezes TV Station Channel Changes in Preparation for Spectrum Repacking

Scott R. Flick

Posted May 31, 2011

By Scott R. Flick

The FCC today announced a freeze on the acceptance of any petitions for rulemaking seeking to change a station's assigned channel in the Post-Transition Table of DTV Allotments. While application freezes were once relatively rare at the FCC, they became quite common as a planning mechanism during the years when the FCC was creating a new Table of Allotments to initiate and complete the transition to digital television.

Given the FCC's announced intent to begin reclaiming broadcast television spectrum for wireless broadband as part of the National Broadband Plan, and to then repack the remaining television stations into a smaller chunk of spectrum, today's announcement was not a surprise. The Commission's brief announcement stated that the freeze is necessary to "permit the Commission to evaluate its reallocation and repacking proposals and their impact on the Post-Transition Table of DTV Allotments...."

The freeze will put a stop to the steady migration of stations from the VHF to the UHF band, where reception is generally better and the opportunities for successful mobile DTV operations greater. While not discussed in the FCC's announcement, proponents of transferring broadcast spectrum to wireless broadband have no interest in VHF spectrum, so each station that moves from the VHF band to the UHF band makes the FCC's efforts to clear UHF spectrum for broadband that much more difficult. The FCC noted in its announcement that since the lifting of the last freeze in 2008, it has processed nearly 100 television channel changes, and that it therefore believes most stations interested in making a channel change have had sufficient time to do so. The FCC indicated that it would continue to process channel change requests filed before the new freeze commenced.

And so it begins. While the prospects for legislation to implement the National Broadband Plan's broadcast spectrum incentive auctions remain murky, the FCC does not need the blessing of Congress in order to commence the process of spectrum repacking. Now well over a year old, the National Broadband Plan remains mostly that--a plan. Today's freeze marks one of the first concrete steps by the FCC to implement at least some aspects of that plan. Setting aside the issue of whom the ultimate winners and losers in the spectrum debate will be, the painful and expensive process of implementing a new Table of Allotments for digital television is still far too fresh a memory for many broadcasters to want to be subjected to a similar process now.

At least with the transition to digital, broadcasters could see the benefits of enduring the difficult process in order to be able to garner the benefits of high definition programming, multicasting, and datacasting. Unfortunately, for broadcasters not interested in selling spectrum in an incentive auction, repacking means all pain and no gain. The best case scenario for a television broadcaster in a repacking is just to survive the disruption and distraction without losing signal coverage of viewers and cable headends. That doesn't leave broadcasters with much light at the end of the tunnel to guide them through the difficult days ahead.

FCC Enforcement Monitor

Scott R. Flick Christine A. Reilly

Posted May 26, 2011

By Scott R. Flick and Christine A. Reilly

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:


  • FCC Fines FM Broadcaster for Excessive Power and RF Radiation Levels

  • Forfeiture More Than Triples After Consent Decree Default

Missing Fence Yields $10,000 Fine for Utah FM Broadcaster
During a routine inspection in April 2010, Denver field agents cited a Utah FM broadcaster for excess radio frequency radiation ("RFR") exposure and failure to operate the station as authorized by the FCC. The citations resulted in a combined $14,000 fine.

According to the Notice of Apparent Liability ("NAL"), the station and its antenna tower were located at the top of a hill easily accessible by foot and all terrain vehicles. The station and tower were enclosed by a chain link fence, but access from the base of the hill to the station's fence was unobstructed. The field agents visited the station on two separate occasions and determined that the station was exceeding permitted RFR exposure levels, with actual RFR ranging from 165 to 315% of the legally acceptable levels at distances between 12 and 28 feet outside the chain link fence. At the time of the inspection, Denver field agents did not observe any posted RFR warning signs on or near the site. Failure to maintain acceptable levels of public RFR exposure is a direct violation of Section 1.1310 of the FCC's Rules, which mandates that broadcasters comply with the RFR exposure limits established by the National Council on Radiation Protection and Measurements as outlined in the tables provided in the FCC's Rules.

Continue reading "FCC Enforcement Monitor"

Webinar: "Online and Mobile Marketing: What's Legal, What's Not and What's Changed," May 24, 2011

May 24, 2011

Attorneys from Pillsbury's Privacy, Data Protection & Information Use team will give an overview of web-based privay and data security requirements as well as online and mobile marketing standards during this webinar on Tuesday, May 24th from 12:00 PM-1:00 PM ET.

For more information and to register for this presentation, please click here.

Client Alert: Biennial Ownership Reports are due by June 1, 2011 for Noncommercial Educational Radio Stations in AZ, DC, ID, MD, NV, NM, UT, VA, WV, and WY and for Noncommercial Educational Television Stations in MI and OH

Lauren Lynch Flick Christine A. Reilly

Posted May 20, 2011

By Lauren Lynch Flick and Christine A. Reilly

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

Noncommercial educational radio stations licensed to communities in Arizona, District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, and Wyoming, and noncommercial educational television stations licensed to communities in Michigan and Ohio must file their Biennial Ownership Reports by June 1, 2011.

In 2009, 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 June 1, 2011 for Noncommercial Educational Radio Stations in Arizona, District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, and Wyoming and for Noncommercial Educational Television Stations in Michigan and Ohio

You Can't File That Renewal Too Early, Or Can You?

Lauren Lynch Flick

Posted May 19, 2011

By Lauren Lynch Flick

During the last license renewal cycle, the FCC handed out an unprecedented number of fines to broadcasters who failed to file their license renewal applications on time. In some cases, a station only learned of its failure to file because the FCC sent it a letter notifying it that the FCC had deleted the station's call sign from the official records and that the station's operating authority had been terminated. For a broadcaster, that can ruin your whole day.

Such letters usually lead to an immediate call to the station's counsel to try and fix the problem before the station's business, goodwill, and call sign are lost permanently. The associated fines and legal costs to try to resuscitate the station's license provide further incentive to avoid placing yourself in this situation. Because of this, it is no wonder that some broadcasters are anxious to get their license renewal applications on file well in advance of their filing deadline.

There is, however, such as thing as being too early. The FCC has already returned at least four license renewal applications because they were filed too early. Some were radio broadcasters whose stations are licensed to communities in DC, Maryland, Virginia or West Virginia. They are required to file their applications by June 1st, and are the first to use the new version of the renewal form, which the FCC announced it would begin accepting on May 2. At least one of these stations has already refiled its application, this time waiting for the May 2nd official opening of renewal season.

These stations are not alone, however, with numerous other broadcasters also having filed prematurely. Among these early filers are low power television stations whose renewal applications are not due for a year or more from now. Because many FCC compliance obligations are connected to a station's license renewal cycle, a station that is off on its renewal filing date by such a margin that its application is filed in the wrong year likely has numerous other FCC issues that need to be examined and addressed.

Compounding the danger is the FCC database's admonition that it does not generate an automatic dismissal letter notifying the applicant that its renewal application has been dismissed. As a result, these early filers may believe they have discharged their license renewal filing obligations only to later find out that their authority to operate has been terminated.

The window within which a station can file a compliant license renewal application is actually quite small. For most stations in the full power services, as well as LPFM stations, the FCC's rules require that four pre-filing announcements be aired on specific dates and in specific time periods alerting the public that the station will be filing a license renewal application. Once the application is filed, six more announcements must air noting that the application has been filed, again on a prescribed time schedule. Because the last of the pre-filing announcements must air on the 16th (with the license renewal application due on the 1st of the following month), stations that file before that date will be airing an inaccurate public notice. In addition, the EEO portion of the license renewal application, which is submitted separately using FCC Form 396, requires that all but the smallest stations attach their two most recent annual EEO Public Inspection File reports to the filing. However, the FCC's EEO rule requires that each annual report cover a time period ending no earlier than 10 days before the anniversary of that station's license renewal filing deadline. A station can't comply with that requirement if it files its renewal materials before that 10 day period commences.

Therefore, while May 2nd, 2011 has now passed and renewal season has officially begun, stations filing more than a week or two before their license renewal application deadline are likely creating a potential problem for themselves. This goes double for the 396 EEO form. So far in 2011, more than 70 of these forms have been filed at the FCC by stations whose licenses are nowhere near ready for a license renewal review. To avoid this, stations need to familiarize themselves with the license renewal filing and notice dates applicable to them, and not simply mimic what stations in other states or services are doing.

To give that effort a little boost, you can look at our latest post regarding license renewals, which addresses the upcoming license renewal compliance deadlines (beginning June 1) for radio stations in North Carolina and South Carolina. If you are not a radio station licensee in North or South Carolina, don't worry, your time is coming. When it does, make sure you are ready early; just not too early.

Client Advisory: Pre-Filing and Post-Filing License Renewal Announcement Reminder for Radio Stations in North Carolina and South Carolina

Lauren Lynch Flick Christine A. Reilly

Posted May 17, 2011

By Lauren Lynch Flick and Christine A. Reilly

Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in the states listed above must begin airing pre-filing license renewal announcements on June 1, 2011. License renewal applications for these stations, and for in-state FM Translator stations, are due by August 1, 2011.

Pre-filing License Renewal Announcements

Full power commercial and noncommercial radio, LPFM, and FM Translator stations whose communities of license are located in North Carolina and South Carolina must file their license renewal applications with the FCC by August 1, 2011.

Beginning two months prior to that filing, however, full power commercial and noncommercial radio and LPFM stations must air four pre-filing announcements alerting the public to the upcoming license renewal application filing. As a result, these radio stations must air the first pre-filing renewal announcement on Wednesday, June 1, 2011. The remaining pre-filing announcements must air once a day on June 16, July 1, and July 16, for a total of four announcements. At least two of these four announcements must air between 7:00 a.m. and 9:00 a.m. and/or 4:00 p.m. and 6:00 p.m.

The text of the pre-filing announcement is as follows:

Continue reading "Client Advisory: Pre-Filing and Post-Filing License Renewal Announcement Reminder for Radio Stations in North Carolina and South Carolina"

May 15, 2011: Copyright Royalty Fee - Monthly Usage Statement of Account Form and Quarterly Report of Use Form Due

May 15, 2011

Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must submit by this date the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending March 31, 2011.

Bouncing Checks at the FCC an Expensive Proposition

Scott R. Flick

Posted May 12, 2011

By Scott R. Flick

A Notice of Apparent Liability released today by the FCC's Enforcement Bureau provides 25,000 reasons that you don't want to bounce a check when making a payment at the FCC. As I noted in a post this time last year, there has been a conspicuous effort by the FCC to increase the size of fines for various rule violations. Equally apparent has been an effort by the FCC in recent years to rely more heavily on "consent decrees" rather than fines to resolve allegations of rule violations.

In a typical case, the FCC will commence an investigation of alleged rule violations, and rather than completing the investigation and (where appropriate) issuing a fine, the FCC and the licensee will negotiate a consent decree to resolve the matter. For the FCC, the benefit of resolving an investigation through a consent decree is that it conserves agency resources that would otherwise have to be expended to complete the investigation, issue sanctions, and defend those sanctions if the licensee appeals them. For the licensee, a consent decree can be attractive as well, cutting short a potentially embarrassing investigation and eliminating the risk of being socked with a far larger fine.

An FCC consent decree generally has two components: a "voluntary" financial contribution to the federal government, and the implementation of a multi-year compliance program, complete with reports to the FCC to ensure that the alleged rule violations do not recur. While there is no shortage of people who argue that consent decree negotiations can quickly devolve into a "shakedown," the consent decree process can sometimes be an efficient means of resolving what would otherwise be a resource-draining process for both the FCC and the licensee.

If you enter into a consent decree, however, be prepared to live up to it. In an enforcement action released today, a consent decree ended badly for the licensee of an AM station in Puerto Rico. The licensee entered into a consent decree in May 2008 to resolve allegations of rule violations involving tower fencing, the station's public inspection file, and operating with an unauthorized antenna pattern. The consent decree required the licensee to make an $8,000 contribution to the U.S. Treasury, and to file a compliance report in May 2010 certifying compliance with all of the other terms of the consent decree. The licensee entered into the consent decree after the FCC issued a Notice of Apparent Liability indicating that it was prepared to issue a $15,000 fine for the alleged violations.

According to the Enforcement Bureau, the licensee attempted to make the $8,000 contribution with a check that bounced for "insufficient funds." When the licensee also failed to file its compliance report, the FCC lost patience, resulting in the issuance today of a new Notice of Apparent Liability against the station licensee for $25,000.

Perhaps the licensee thought that once the consent decree is signed, the FCC has too much else on its hands to bother following up to ensure that the licensee lives up to its consent decree promises. If so, the licensee misjudged the FCC. It may take some time for the long arm of the FCC to catch up with you, but as happened in this case, it eventually does.

FCC Commissioner Meredith Baker Leaving FCC for NBC-Universal

Paul A. Cicelski

Posted May 12, 2011

By Paul A. Cicelski

FCC Commissioner Meredith Attwell Baker made the surprise announcement yesterday that she will leave the FCC on June 3 to become Senior Vice President of Government Affairs at NBC-Universal. Baker's departure will leave Commissioner Robert McDowell as the only Republican Commissioner at the FCC for the time being. It is unlikely that President Obama will be in any hurry to name a replacement, leaving Democrats with a 3-1 political advantage at the FCC once Baker leaves. Her departure comes as a surprise because, although her current term at the FCC is up in June, she was expected to be nominated for another term.

It certainly appears to have caught her colleagues at the Commission by surprise, all of whom quickly released very brief statements of congratulations. Despite the warm wishes from her colleagues, the brevity of those statements makes clear that they didn't have much time to prepare them.

This being Washington, DC, the Commissioner's move did not come without controversy. The trade press reported that many found it disconcerting that the Commissioner was joining NBC-Universal just a few months after voting in favor of Comcast's contested multi-billion dollar purchase of that company. For example, Free Press's website reports that Free Press President and CEO Craig Aaron has stated that "Less than four months after Commissioner Baker voted to approve Comcast's takeover of NBC Universal, she's reportedly departing the FCC to lobby for Comcast-NBC. This is just the latest -- though perhaps most blatant -- example of a so-called public servant cashing in at a company she is supposed to be regulating."

Others, including National Association of Broadcasters President and CEO Gordon Smith, publicly supported the Commissioner's move, stating in a news release that "With a winning combination of integrity, intellect and experience, Meredith Baker will be a key player for NBCUniversal, and I know that her in-depth knowledge of broadcast issues, deep understanding of the D.C. landscape and strong leadership abilities will make her an important resource for the entire broadcast industry." Indeed, Commissioner Baker's excellent reputation in Washington, earned at both the NTIA and the FCC, will do much to deflect, although certainly not silence, criticism regarding the timing of the move.

The eventual appointment of the Commissioner's replacement is likely to be a hotly debated issue, with such big ticket items as net neutrality, spectrum auctions, the potential repacking of broadcast spectrum, and retransmission consent battles on the FCC's plate. Unlike Commissioner Baker's surprise announcement yesterday, however, it is a surprise to no one that the political maneuvering in Washington over the future composition of the FCC has already begun in earnest.

FCC Asserts New Ex Parte Rules Not Intended as a Revenue Generator

Paul A. Cicelski

Posted May 6, 2011

By Paul A. Cicelski

Earlier today, the FCC wrapped up a seminar on complying with its new ex parte rules, which govern the public disclosures that must be made following a meeting with FCC personnel. The new rules are designed to increase the transparency of the FCC's decision-making process, and go into effect in a few short weeks (June 1, 2011). Unfortunately, the price of increased transparency is more paperwork and the risk of being assessed fines by the Enforcement Bureau, which has been granted authority to police the new rules and issue fines to those who run afoul of them.

Fortunately, the FCC's General Counsel, Austin Schlick, indicated at the seminar that while the Enforcement Bureau now has the authority to levy fines for ex parte violations, the FCC will not use its new ex parte rules as an administrative "speed trap" to generate revenue from fines. While his statement is not binding on the FCC, it does provide some comfort to those unfamiliar with the process and requirements for conducting meetings with the FCC that inadvertent errors won't necessarily be costly ones.

A complete copy of the order establishing the new rules can be found here, but some of the more noteworthy changes include:

  1. Under the new rules, all ex parte notice letters must be filed electronically with the FCC in machine-readable format (e.g., DOC, PPT or searchable-PDF files). There are a number of exceptions to this rule, including for hardship and documents containing confidential information.

  2. All presentations will require ex parte filings, even those in which parties merely reiterate arguments or data already in the record. Such ex parte filings must provide details regarding the facts that were discussed, the arguments made, and the support offered for those arguments during the presentation. Alternatively, parties may provide detailed citations to prior filings containing that information.

  3. Because of these added complexities, the filing deadline for submitting an ex parte notice will now be two full business days after the presentation (rather than one). However, during the "Sunshine Period" prior to an FCC vote, the notice must be filed on the same business day in which the presentation is made.
On a related note, the FCC this week published in the Federal Register a request for comments establishing the comment deadlines for those wishing to provide input on when and how real parties-in-interest must be disclosed in ex parte filings. A copy of the request for comments can be found here.

In particular, the FCC is interested in whether disclosure requirements should apply to other types of filings in addition to ex parte notices, whether disclosures should be made in only some or all types of FCC proceedings, whether different disclosure requirements should be applicable to different types of entities (such as trade associations or non-profit groups), and whether a party should be deemed to have made adequate disclosure if its filing references information appearing on the Internet or available from the FCC's databases. Comments are due by June 16, 2011 and Reply Comments are due by July 18, 2011.

Will Marijuana Ads Make License Renewals Go Up in Smoke?

Scott R. Flick

Posted May 3, 2011

By Scott R. Flick

Broadcasters don't know it yet, but recent actions by the Department of Justice suggest that the federal government may be moving closer to raining on their upcoming license renewals. The reason? Medical marijuana advertising. While it seems like a recent phenomenon, the first state laws permitting medical marijuana go back some 15 years. The movement by states to permit the use of medical marijuana has grown steadily since then, with half the states in the U.S. (and the District of Columbia) now having medical marijuana laws on the books or under consideration.

Of course, when an entrepreneur sets up a medical marijuana dispensary, the next step is to get the word out to the public. In the past few years, these dispensaries began approaching broadcast stations in growing numbers seeking to air advertising. In the depths of the recent recession, medical marijuana dispensaries were one of the few growth industries, and many stations were thrilled to have a new source of ad revenue.

However, marijuana, medical or otherwise, is still illegal under federal law. When we first began receiving calls a few years ago from broadcast stations asking if they could accept the ads, the federal government's position was ambiguous. Many stations, and in some cases, their counsel, concluded that as long as the activity was legal in the state in which the station was located, airing medical marijuana ads was fine. In 2009, the Department of Justice gave some comfort, if not support, to this school of thought when it internally circulated a memo to some U.S. attorneys suggesting that the DOJ was not interested in pursuing medical marijuana businesses as long as they operated in compliance with state law.

Continue reading "Will Marijuana Ads Make License Renewals Go Up in Smoke?"

FCC Enforcement Monitor

Scott R. Flick Christine A. Reilly

Posted April 28, 2011

By Scott R. Flick and Christine A. Reilly

Headlines:

  • FCC Begins to Move on Pending Video News Release Complaints
  • Failure to Monitor Tower Lighting Results in $12,000 Penalty

Video News Releases Garner $4,000 Fines for Two Television Broadcasters

After a flurry of complaints from advocacy groups a few years ago raised the issue at the FCC, the Commission has been pondering how to treat Video News Releases (VNRs) with respect to its sponsorship identification rule. The result has been a growing backlog of enforcement investigations involving VNRs. However, the release of two decisions proposing fines for stations that aired all or part of a VNR without identifying the material on-air as being sponsored appears to indicate that the dam is about to break. In its first VNR enforcement actions in years, the FCC fined two unrelated television stations $4,000 each for violating the sponsorship identification requirements found in Section 317 of the Communications Act and Section 73.1212 of the FCC's Rules.

Continue reading "FCC Enforcement Monitor"

The FCC Takes Its Indecency Case to the Supreme Court, But Without Enthusiasm

Scott R. Flick

Posted April 21, 2011

By Scott R. Flick

Caught between a rock and the Second Circuit, the FCC hesitantly took the defense of its indecency policy to the Supreme Court today. The FCC filed a petition seeking the Court's review of the Second Circuit's decisions in indecency cases involving Fox and ABC programs. Last year, the Second Circuit found the FCC's interpretation of indecency to be arbitrary and capricious. On appeal, the Supreme Court disagreed, and lobbed this perennial hot potato back over the net to the Second Circuit for an assessment of the constitutionality of the FCC's indecency policy.

Whether intentional or not, the Supreme Court's return of the matter to the Second Circuit was the legal equivalent of a high lob, and the Second Circuit enthusiastically slammed the ball back across the net, ruling that the FCC's current indecency policy is unconstitutionally vague. In light of its earlier ruling, the Second Circuit's conclusion was hardly a surprise. More curious, however, was the government's reaction to it. Rather than again storming to the Supreme Court to defend its indecency policy, the FCC first asked the Second Circuit to reconsider its decision (a request that was denied in November 2010), and then sought not one, but two extensions of the deadline for requesting Supreme Court review.

The FCC waited until the end of even that extended period before seeking joint review of the Fox and ABC decisions (the deadline for the Fox decision was today, while the FCC actually had until May 4th to seek review of the ABC decision). In asking that the cases be considered together, the FCC is making the calculation that "scripted nudity" in ABC's NYPD Blue presents a more compelling case for government regulation than the Fox case, where the agency concluded that fleeting expletives (during the Billboard Music Awards) were a form of actionable indecency despite years of precedent to the contrary. That new interpretation, which the FCC first announced with regard to an NBC broadcast of the Golden Globe Awards, gave everyone (including FCC staff) a case of regulatory whiplash, whereas the FCC's ongoing, if erratic, feud with broadcast nudity was hardly a surprise (and therefore less controversial).

The government's hesitance to bring all of this to the Supreme Court's doorstep a second time is even more curious after reading the petition, which bluntly states that "The court of appeals has effectively suspended the Commission's ability to fulfill its statutory indecency enforcement responsibilities unless and until the agency can adopt a new policy that surmounts the court of appeals' vagueness rulings." The petition then suggests that no functional indecency policy could overcome that hurdle. It is therefore apparent that the FCC's delay in bringing the challenge (which to be fair, necessarily involves getting the Department of Justice on board) is not the result of any belief that the agency might have been able to "live with" or "work around" the Second Circuit's ruling by revising its policy. There is clearly something else at work here.

From a legal perspective, the FCC's petition is well written. However, in reading through it, you can't avoid the impression that even the FCC is trying to convince itself that the technological and cultural shifts of the last decade or two have not rendered the notion of government second-guessing broadcast content an anachronism. In particular, it is hard to escape the irony of the FCC seeking to bring high speed Internet into every home by reallocating broadcast spectrum based on the argument that only 10% of Americans are viewing over-the-air television. If true, then the government is expending a lot of effort to control what that 10% sees on their televisions, while racing to use those airwaves to bring these same households the wonders of the Internet--including all of that content that they aren't allowed to see on their TV's.

The convergence of distribution technologies is upon us, and whether that claimed 10% of households uses their TV's V-Chip, or an Internet software filter on their computer, to prevent unwelcome content from entering their home, the result is hardly different. The FCC's sudden shyness in defending its indecency policy suggests that it is concerned that the Supreme Court may note that incongruity as well.

April 14, 2011: Copyright Royalty Fee - Monthly Usage Statement of Account Form Due

April 14, 2011

Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending February 28, 2011.

April 14, 2011: John Nicholson of PIllsbury to Speak on "New Generic Top Level Domains: Why Should You Care and What To Do Now"

John Nicholson

April 14, 2011

During this webinar on April 14, 2011 at 12:00 EDT, John Nicholson and others will discuss the ICANN gTLD process.

For additional details and to register for this event, please click here.

California Court Decision Applies CAN-SPAM Act to Social Media

Paul A. Cicelski

Posted April 13, 2011

By Paul A. Cicelski

As we all know, unsolicited spam email can be annoying and intrusive. In 2003, Congress enacted the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act to curb spam. As required by the Act, the FTC and FCC adopted rules that prohibit sending unwanted commercial messages without prior permission. Among other things, the CAN-SPAM Act makes it "unlawful for any person to initiate the transmission, to a protected computer, of a commercial electronic mail message, or a transaction or relationship message, that contains, or is accompanied by, header information that is materially false or materially misleading."

On March 28, 2011, a U.S. District Court in California held for the first time that the CAN-SPAM Act's restrictions on the transmission of unsolicited commercial e-mail extends beyond traditional e-mail to include communications to other electronic medium, including Facebook friends' walls, news feeds, and home pages. As John Nicholson of Pillsbury's Global Sourcing group describes in detail in a recent Client Alert found here, the ruling is the most expansive judicial interpretation so far regarding the types of messages that fall within the scope of the CAN-SPAM Act.

John's Client Alert is definitely worth a read for companies using social media in marketing. As John points out, companies should verify that they (and any marketing services they engage) comply with CAN-SPAM's requirements for commercial messages sent via social media platforms.

Client Alert: Clock is Ticking on ICANN gTLD Process: As More Entities Seek New Domain Names, Others Should Doublecheck Their Trademarks

John Nicholson

Posted April 12, 2011

By John L. Nicholson

4/12/2011
The board of the Internet Corporation for Assigned Names and Numbers (ICANN) has scheduled a June 20th meeting to approve the process for proposing new generic top-level domains (gTLDs). If this date holds, the application process will begin in late October, with new gTLDs being approved and added to the Internet starting around July 2012. As more organizations announce their plans to apply for a specific domain, the clock is ticking for other organizations who might want to apply for a TLD or who may need to react to TLDs being registered by competitors or other entities. Chief Marketing Officers, with the assistance of other senior executives, legal and external advisors, should be evaluating whether to apply, defend or do nothing, and how to prepare for the consequences of each decision.

Pillsbury, in cooperation with Architelos and CollectiveIntell, is offering a webinar on the gTLD process on April 14 titled, "New Generic Top Level Domains: Why Should You Care and What to Do Now." To register, please visit WebEx.

For additional background on the gTLD process see our March 10, 2011, alert, "New Generic Top-Level Domain Application Process Brings Business Opportunities, Issues."

As discussed previously, there are currently 21 TLDs (.com, .org, and .net being the most popular), and more than 270 country code top-level domains (ccTLDs). After years of debate, a set of policy recommendations for creating new gTLDs was adopted in October 2007. After a succession of drafts for an Applicant Guidebook for the would-be operators of new gTLDs, and unprecedented back-and-forth with representatives of various governments, ICANN has proposed the following timeline for the gTLD process:

Continue reading "Client Alert: Clock is Ticking on ICANN gTLD Process: As More Entities Seek New Domain Names, Others Should Doublecheck Their Trademarks"

NAB Show: April 11-14 - Las Vegas, NV

April 11, 2011

April 10, 2011: Class A Television Continuing Eligibility Certification

April 10, 2011

Class A television stations are required to maintain documentation in their public inspection files sufficient to demonstrate continuing compliance with the FCC's Class A eligibility requirements.

April 10, 2011: FCC Form 388 DTV Consumer Education Report Due

April 10, 2011

All full-power television stations that have not yet completed construction and commenced operation of their final post-transition DTV facilities must electronically file by this date FCC Form 388 demonstrating their compliance with DTV consumer education initiative requirements for the period January 1, 2011 through March 31, 2011.

April 10, 2011: FCC Form 398 Children's Programming Report Due

April 10, 2011

Commercial full-power and Class A television stations must by this date electronically file FCC Form 398 demonstrating their responsiveness to "the educational and informational needs of children" for the period January 1, 2011 through March 31, 2011, and place the form as filed in the stations' public inspection files.

April 10, 2011: Certification of Children's Commercial Time Limitations Required

April 10, 2011

Commercial full-power and Class A television stations must place in their public inspection files by this date records "sufficient to verify compliance" with the FCC's commercial time limitations in children's programming broadcast during the period January 1, 2011 through March 31, 2011.

April 10, 2011: Quarterly Issues/Programs List Required

April 10, 2011

All full-power radio, full-power television, and Class A television stations must place in their public inspection files by this date the Quarterly Issues/Programs List covering the period January 1, 2011 through March 31, 2011.

Client Alert--The CAN-SPAM Act Applies to Social Media Messaging, Rules Federal Court in California

John Nicholson

Posted April 7, 2011

By John L. Nicholson

4/7/2011
On March 28, 2011, the U.S. District Court for the Northern District of California held in Facebook, Inc. v. MaxBounty, Inc.<sup>1 that messages sent by Facebook users to their Facebook friends' walls, news feeds or home pages are "electronic mail messages" under the CAN-SPAM Act. The court, in denying MaxBounty's motion to dismiss, rejected the argument that CAN-SPAM applies only to traditional e-mail messages. The ruling is the most expansive judicial interpretation to date of the types of messages falling within the purview of the CAN-SPAM Act. While the court did not address the underlying merits of the CAN-SPAM claims, companies using social media in marketing should verify that they (and any marketing services they engage) comply with CAN-SPAM's requirements for commercial messages sent via social media platforms.

MaxBounty is an advertising and marketing company that uses a network of content-producing publishers to drive traffic to its customers' websites. MaxBounty acts as an intermediary between its network of publishers (advertisement content creators) and its customers (third-party advertisers).

Continue reading "Client Alert--The CAN-SPAM Act Applies to Social Media Messaging, Rules Federal Court in California"

The iPad App Flap - What's the Big Deal?

John K. Hane

Posted April 5, 2011

By John K. Hane

Ever since Time Warner Cable released an app that allows users to watch two or three dozen cable channels on iPads we've been barraged by press reports of litigation and plans of other multichannel providers to launch similar services. Cablevision has announced it's launching a similar app that lets subscribers watch their entire channel lineup on an iPad.

Suddenly cable and satellite companies are rushing to review their programming and retransmission deals to figure out what rights they have obtained, while programmers frantically review distribution agreements to see what rights they may have given away. We can find a few lessons about retransmission consent agreements in the App Flap, but let's save those for another day.

What this really comes down to is whether the iPad apps qualify as "cable system" distribution, Internet distribution, or something else. Most programmers (and a few careful broadcasters) specifically carve out Internet distribution when signing carriage agreements - existing deals cover distribution for in-home viewing over cable and DBS systems. Internet distribution rights are negotiated separately, if at all. But many broadcasters who signed MSO form retrans agreements may have given away a lot more than they intended to.

Continue reading "The iPad App Flap - What's the Big Deal?"

April 1, 2011: FCC Form 323-E Biennial Ownership Report Due

April 1, 2011

Noncommercial radio stations licensed to communities in Texas and noncommercial television stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee (other than sole proprietorships or partnerships composed entirely of natural persons) must electronically file by this date their biennial ownership reports on FCC Form 323-E, unless they have consolidated this filing date with that of other commonly owned stations licensed to communities in other states.

April 1, 2011: FCC Form 397 EEO Mid-Term Report Due

April 1, 2011

SEUs comprised of television stations licensed to communities in Delaware and Pennsylvania, regardless of staff size, must by this date electronically file with the FCC the FCC Form 397 Broadcast Mid-Term Report and place the form as filed in the stations' public inspection files.

April 1, 2011: Annual EEO Public File Report Required

April 1, 2011

Station employment units ("SEUs") that have five or more full-time employees and are comprised of radio and/or television stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas must by this date place in their public inspection files (and post on their station website, if there is one), a report regarding station compliance with the FCC's EEO Rule during the period April 1, 2010 through March 31, 2011.

April 1, 2011: Pre-filing License Renewal Announcements for Radio Stations

April 1, 2011

Full-power AM and FM radio broadcast stations licensed to communities in the District of Columbia, Maryland, Virginia and West Virginia must on this date begin to air their pre-filing license renewal announcements in accordance with the FCC's regulations.

Deadline to Obtain Interference Protection From White Spaces Devices Just Days Away

Paul A. Cicelski Lauren Lynch Flick

Posted March 31, 2011

By Paul A. Cicelski and Lauren Lynch Flick

Last Fall, the FCC adopted final rules allowing Part 15 unlicensed Television Band Devices (TVBDs) to operate in "white spaces", the slivers of unused spectrum in the television band. To find available slivers of spectrum, the TVBDs will consult a database that is intended to contain information about every use being made of TV spectrum throughout the United States. However, certain users of television spectrum have only until April 5, 2011, to ask the FCC to grant a waiver in order to be included in the interference protection database or risk debilitating interference.

Any facility, including a cable headend, satellite receive facility, TV translator, Class A television station, low power television station or broadcast auxiliary station, that picks up an over-the-air broadcast signal at a point located more than 80 kilometers outside the originating station's protected contour must file a waiver request with the FCC by April 5, 2011 seeking to have that use included in the white spaces database and protected from interference.

At a later date, the FCC will allow users to register without a waiver those receive sites that are located within the 80 kilometer zone (but outside the station's protected contour) for interference protection. They cannot do so now because the database is still being developed. In the meantime, waiver requests for locations located outside of the 80 kilometer zone must be filed now and should include the coordinates of the receive site, the call sign of the originating station received over-the-air, and an indication of how potential white space devices would disrupt existing service. According to the FCC, it will accept public comment on waiver requests prior to making a decision on whether or not to grant them.

As a result, any cable headend that has built a tower with a directional receive antenna to pick up particularly distant television station signals, or any broadcaster or TV translator that uses over-the-air signals or a UHF microwave backbone to connect a series of translator facilities, will be prevented from registering such sites outside the 80 kilometer zone unless they seek a waiver by the April 5 deadline. Unintended interference to a cable system's ability to receive a television station's signal could result in the television station being dropped from the cable system. Interference to a single link in a long microwave backbone could interrupt signal delivery to all sites further down the line.

While the 80 kilometer "no waiver" zone may seem large, one multiple system cable operator has already filed a waiver request with the FCC indicating that it has headends receiving over-the-air television signals outside that zone in eleven different locations spread across multiple states, including Alabama, Arizona, Illinois, Iowa, Michigan and Minnesota. Thus, if a station is being carried by a far off cable or satellite system, it would be wise for cable and satellite operators as well as TV licensees to double check how and where the TV station's signal is being received. For TV signals being picked up over-the-air more than 80 kilometers from their protected contour, a waiver request now will be required to ensure continued interference-free signal delivery.

Although receive sites located within the 80 kilometer zone do not face the April 5, 2011 waiver deadline, they will still be affected by the implementation of the white spaces database. Because the data that will be used to populate the database will be taken from the FCC's existing records, it is important that parties review the data in the FCC's databases to make sure it is accurate to avoid potential interference from future white space operations.

In January, the FCC's Office of Engineering and Technology (OET) conditionally designated nine companies as white-space device database administrators: Comsearch, Frequency Finder Inc., Google Inc., KB Enterprises LLC/LS Telcom, Key Bridge Global LLC, Neustar Inc., Spectrum Bridge Inc., Telcordia Technologies, and WSdb LLC. The FCC held a training session for these entities earlier this month. Thus, the rollout of these databases will soon be at hand. OET recently stated that it intends to "exercise strong oversight of the TV bands databases and administrators." That said, parties should still exercise their own diligence in reviewing the FCC's databases, registering receive sites, and applying for any needed waivers if they want to avoid interference problems down the road.

FCC to Advertisers: Don't Discriminate or We'll Punish the Broadcasters

Scott R. Flick

Posted March 22, 2011

By Scott R. Flick

I wrote last week about the FCC's announcement that broadcasters must certify in their license renewal applications that their advertising contracts have, since March 14, 2011, had a nondiscrimination clause in them. Specifically, broadcasters must certify that their "advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses." The good news from last week's announcement was that the FCC chose to apply the advertising nondiscrimination certification (which was originally announced in 2008), prospectively, rather than announcing that stations would have to certify their contracts included such language since 2008 or 2009.

That was the good news, and what government giveth with one hand, it can taketh away with the other. Today the FCC released an FCC Enforcement Advisory and News Release emphasizing how seriously it intends to treat that certification. The FCC's Advisory states that broadcasters unable to make that certification will need to "attach an exhibit identifying the persons and matters involved and explaining why the noncompliance is not an impediment to a grant of the station's license renewal application."

The Advisory goes on to state that "Licensees must have a good faith basis for an affirmative certification" and notes that "a licensee that uses a third party to arrange advertising sales is responsible for exercising due diligence to ensure that the advertising agreement contains the nondiscrimination clause and does not discriminate on the basis of race or ethnicity."

Lawyers are perhaps unique in their ability to acknowledge the validity of a legal requirement while still questioning the logic of it. Make no mistake--this new certification is the law and broadcasters need to make sure that they can truthfully make this certification at license renewal time. The goal itself is admirable. Indeed, as Univision's Washington counsel during the time that it grew from only seven TV stations to 162 TV and radio stations, I saw first hand the challenges of persuading advertisers (and others) that Spanish-language viewers and listeners are an important group of consumers worthy of advertisers' dollars.

However, as I noted in last week's post, trying to use the FCC's authority over broadcasters as a method to modify the conduct of advertisers (who are generally beyond the FCC's authority) is a futile approach. Advertisers aren't too worried about a broadcaster's license renewal. As a result, the only one to be hurt here is the broadcaster, not the discriminatory advertiser.

The FCC can counter that preventing broadcasters from accepting ads of discriminatory advertisers ensures such advertisers will cease their discriminatory ad practices if they want air time. This assertion suffers, however, from two debilitating flaws. First, if the current FCC's view is accurate that broadband,and not broadcasting, is the way of the future, then there will be plenty of non-broadcast venues for advertisers wishing to engage in discriminatory ad buys. Indeed, the FCC's certification will not even prevent the same advertiser from making discriminatory ad buys in non-broadcast media while avoiding such discrimination on the broadcast side.

That brings us, however, to the bigger flaw in this approach, and that is the simple fact that clauses in a contract can generally only be enforced by the parties to that contract. As a result, a broadcaster can place the required nondiscrimination clause in its contract, and if the advertiser proceeds to purchase ads in a discriminatory manner (e.g., splitting its ad buying money among all of the broadcaster's local radio stations except the one with the Spanish-language format), the FCC can't really do anything about it. The only party in a position to enforce the nondiscrimination clause in the contract is the broadcaster, who will understandably be hesitant to spend precious resources suing an advertiser. There is no financial incentive to spend money on litigation, and there is obviously a huge disincentive for the broadcaster to sue a revenue source that can readily take its advertising dollars elsewhere (and who won't care what happens to the broadcaster's license renewal application).

Even today's FCC Enforcement Advisory seems to overlook this, asserting that "a broadcaster that learns of a violation of a nondiscrimination clause while its license renewal application is pending should update its license renewal application so that it continues to be accurate." However, whether an advertiser has proceeded to engage in discriminatory ad buying practices in violation of the contractual nondiscrimination clause would not necessarily affect the accuracy of the broadcaster's certification that its "advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses." The broadcaster could certainly volunteer to the FCC that it had discovered an advertiser discriminating, but the FCC has no authority to punish the advertiser, and punishing the broadcaster who uncovered the advertiser's discriminatory efforts doesn't make much sense. As a result, the new certification adds to the regulatory thicket surrounding broadcasters, but leaves discriminatory advertisers free to roam.

FCC Enforcement Monitor

Scott R. Flick Christine A. Reilly

Posted March 21, 2011

By Scott R. Flick and Christine A. Reilly

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:


  • Florida FM Translator Fined $13,000 for Unauthorized Operations

  • Latest Public Inspection File Violation Nets Upwardly Adjusted Fine

  • Failure to Monitor Inactive Tower Results in $6,000 Penalty


Failure to Operate as Authorized Costs Florida Broadcaster an Additional $4,000

A recent FCC Notice of Apparent Liability ("NAL") for $13,000 against a Florida broadcaster serves as a costly reminder that stations must operate in accordance with the FCC's Rules, and more notably, as specifically authorized in their station license. According to the NAL, the Florida broadcaster failed to heed a verbal warning from Tampa field agents that its station was operating beyond the technical parameters of its authorization. The NAL stated that the Tampa field agents, pursuant to an investigation and following two complaints, took field strength measurements on five separate occasions and visited the station's transmitter site on two separate occasions over approximately 11 months between October 2009 and September 2010. Field measurements undertaken in October 2009 and early February 2010 indicated that the station was operating with a power level well in excess of its authorization in violation of Section 74.1235(e) of the FCC's Rules, which states, "[i]n no event shall a station authorized under this subpart be operated with a transmitter power output (TPO) in excess of the transmitter certificated rating and the TPO shall not be more than 105 percent of the authorized TPO."

Continue reading "FCC Enforcement Monitor"

Client Alert: Biennial Ownership Reports are due by April 1, 2011 for Noncommercial Educational Radio Stations in Texas, and for Noncommercial Television Stations in Delaware, Indiana, Kentucky, Pennsylvania and Tennessee

Lauren Lynch Flick Christine A. Reilly

Posted March 21, 2011

By Lauren Lynch Flick and Christine A. Reilly

3/18/2011
The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to their respective license renewal filing deadlines.

Noncommercial educational radio stations licensed to communities in Texas, and noncommercial television stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee, must file their Biennial Ownership Reports by April 1, 2011.

In 2009, 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 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 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 application filing.

A PDF version of this article can be found at Biennial Ownership Reports are due by April 1, 2011 for Noncommercial Educational Radio Stations in Texas, and for Noncommercial Television Stations in Delaware, Indiana, Kentucky, Pennsylvania and Tennessee.

Client Advisory: Pre-Filing and Post-Filing License Renewal Announcement Reminder for Radio Stations in the District of Columbia, Maryland, Virginia and West Virginia

Lauren Lynch Flick

Posted March 18, 2011

By Lauren Lynch Flick

3/18/2011
Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in the states listed above must begin airing pre-filing license renewal announcements on April 1, 2011. License renewal applications for these stations, and for in-state FM Translator stations, are due by June 1, 2011.

Pre-filing License Renewal Announcements

Full power commercial and noncommercial radio, LPFM, and FM Translator stations whose communities of license are located in the District of Columbia, Maryland, Virginia, or West Virginia must file their license renewal applications with the FCC by June 1, 2011.

Beginning two months prior to that filing, however, full power commercial and noncommercial radio and LPFM stations must air four pre-filing announcements alerting the public to the upcoming renewal application filing. As a result, these radio stations must air the first pre-filing renewal announcement on Friday, April 1, 2011. The remaining pre-filing announcements must air once a day on April 16, May 1, and May 16, for a total of four announcements. At least two of these four announcements must air between 7:00 a.m. and 9:00 a.m. and/or 4:00 p.m. and 6:00 p.m.

Continue reading "Client Advisory: Pre-Filing and Post-Filing License Renewal Announcement Reminder for Radio Stations in the District of Columbia, Maryland, Virginia and West Virginia"

March 17, 2011: Copyright Royalty Fee - Monthly Usage Statement of Account Form Due

March 17, 2011

Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending January 31, 2011.

2011 First Quarter Children's Television Programming Documentation Advisory

Lauren Lynch Flick Christine A. Reilly

Posted March 16, 2011

By Lauren Lynch Flick and Christine A. Reilly

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

Statutory and Regulatory Requirements

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

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

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

Continue reading "2011 First Quarter Children's Television Programming Documentation Advisory"

2011 First Quarter Issues/Programs List Advisory for Broadcast Stations

Scott R. Flick Christine A. Reilly

Posted March 16, 2011

By Scott R. Flick and Christine A. Reilly

The next Quarterly Issues/Programs List ("Quarterly List") must be placed in stations' local public inspection files by April 10, 2011, reflecting information for the months of January, February and March, 2011.

Content of the Quarterly List

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

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

Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station's compliance with its public service obligations. The lists also provide important support for the certification of Class A station compliance discussed below.

Continue reading "2011 First Quarter Issues/Programs List Advisory for Broadcast Stations"

Broadcast Station EEO Advisory

Lauren Lynch Flick Christine A. Reilly

Posted March 15, 2011

By Lauren Lynch Flick and Christine A. Reilly

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas, and highlights the upcoming deadlines for compliance with the FCC's EEO Rule.

Introduction

April 1, 2011 is the deadline for broadcast stations licensed to communities in the States/Territories referenced above to place their Annual EEO Public File Report in their public inspection files and post the report on their website, if they have one. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by April 1, 2011.

Under the FCC's EEO rule, all radio and television station employment units ("SEUs"), regardless of staff size, must afford equal employment opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees ("Nonexempt SEUs") must also comply with the FCC's three-prong outreach requirements. Specifically, all Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives ("Menu Options") suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station's eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, attending job fairs, and having an internship program.

Continue reading "Broadcast Station EEO Advisory"

Broadcasters Catch a Break on License Renewal Advertising Certification

Scott R. Flick

Posted March 14, 2011

By Scott R. Flick

Pity the post office. Even its federal brethren have abandoned it. Today the FCC announced that, with the beginning of the broadcast license renewal cycle fast approaching, it will not be sending its traditional postcard reminders to broadcast licensees. It did say, however, that it would email reminders to broadcasters for which it has email addresses in an effort to minimize the number of enforcement actions it will need to take against those failing to file on time. The base fine for a late-filed renewal is $3,000, but because most stations that miss the filing deadline have their license expire before they realize their mistake, an additional $4,000 fine for unauthorized operation (for a total of $7,000 per station) is nearly automatic.

While those of us following the FCC's enforcement actions have noticed a fairly dramatic upward trend in the size of FCC fines (noted in an earlier post), the Media Bureau is to be commended for taking steps to assist broadcasters in meeting their filing obligations rather than just fining those that don't.

To accomplish this, the FCC today released a Public Notice announcing the availability of its new license renewal form, discussing the changes found in it, and providing a link to the state-by-state schedule of license renewal deadlines. The idea is to make the information readily available to broadcasters, though not by way of their mailboxes. Make no mistake, however, as the Public Notice reminds us, that broadcasters are responsible for meeting their own filing deadlines, and cannot defend a failure to timely file by claiming that the FCC didn't remind them.

More importantly, the Public Notice is not just a procedural announcement. The FCC took the opportunity to address a critical question regarding its new requirement that license renewal applicants certify that their "advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses." This new certification was adopted as a way of preventing advertisers and ad agencies from engaging in "no urban/no Spanish" ad placement practices. In creating the certification requirement, the FCC once again used its authority over broadcasters to force a change in the conduct of those for which the FCC lacks jurisdiction (in this case, advertisers).

In an early February post, our own Dick Zaragoza raised a number of issues that broadcast license renewal applicants need to consider before making this new certification. An additional source of concern is that the FCC had not made clear how far back the certification must reach. The FCC adopted the requirement in 2008, but didn't provide a specific date by which nondiscrimination clauses had to be incorporated into broadcasters' advertising contracts. Many communications lawyers told their clients that the requirement had gone into effect in mid-2008, while others, including myself, noted that it could not go into effect until the FCC had taken some additional procedural steps to effectuate it, but when those steps would be completed was impossible to predict.

Thankfully, today's Public Notice answers that three year old question, stating that the certifications must cover a period starting today, March 14, 2011, to the date a station files its license renewal application. Stations that successfully implemented this change anytime between 2008 and now will be able to make the necessary certification, and stations that were frozen by uncertainty need to implement it immediately or face the consequences at renewal time. While the license renewal process can be a stressful one, particularly for those who barely remember filing their last renewal application eight years ago, the Media Bureau today helped broadcasters by eliminating at least some of the uncertainty that can make it so stressful.

Client Alert: New Generic Top-Level Domain Application Process Brings Business Opportunities, Issues

John Nicholson

Posted March 10, 2011

By John L. Nicholson

3/10/2011
Beginning later this year, ICANN is expected to accept applications for new generic domain suffixes for industries, interests and communities, such as ".bank," ".movie" or ".music." In addition to the generic terms, this round also includes the potential for various geographic tags that are not country codes (e.g., ".nyc" or ".andes"), brands (".pillsbury") as well as non-Latin characters (e.g., "中 and 国"). ICANN is expecting to approve between 200 and 500 new gTLDs in this round and to have new application rounds approximately every two years.

For organizations considering applying for a gTLD, the process will be expensive. The initial application fee is $185,000 and ICANN also requires the provision of a bond or irrevocable line of credit equal to the operating costs to keep a domain in service for three years. Estimates of the operating costs for the first few years could be several hundred thousand dollars or more, depending on the scale of use of the domain and the services offered. (Note, the bond/line of credit would likely be for a smaller amount, as it would only have to cover the most basic domain-name services.) It will only make sense if there is a clear "business plan" for use of the domain to advance short-term or long-term goals of the brand, industry, profession, or field represented.

Continue reading "Client Alert: New Generic Top-Level Domain Application Process Brings Business Opportunities, Issues"

Client Advisory: FCC Adopts Order in its Proceeding to Promote Rural Radio Service

Paul A. Cicelski

Posted March 8, 2011

By Paul A. Cicelski

As we reported previously, the Federal Communications Commission (FCC) issued a Notice of Proposed Rulemaking (NPRM) in 2009 which requested comment on a number of proposals to modify its allotment criteria. In particular, the NPRM sought to restrict the ability of rural radio stations to move into Urbanized Areas. The FCC has released its Order in the proceeding, adopting some of its proposals to limit rural stations' ability to move to larger communities, modifying its existing rules, and proposing new rules implementing a Tribal Priority.

Under Section 307(b) of the Communications Act, the FCC is required to ensure a "fair, efficient and equitable" distribution of radio services to the various states and communities in the country. In deciding where a new or modified radio station should be allotted under Section 307(b), the FCC uses a set of four standard "priorities," as well as a Tribal Priority for Native Nations operating largely on Tribal Lands. The four standard priorities are: (1) First fulltime aural (reception) service; (2) Second fulltime aural service; (3) First local (transmission) service; and (4) Other public interest matters. Priorities (2) and (3) are considered equal. Where the Tribal Priority applies, it is considered between Priorities (1) and (2).

Continue reading "Client Advisory: FCC Adopts Order in its Proceeding to Promote Rural Radio Service"

Client Alert: FCC Proposes Rules to Reinstate and Expand Video Description Obligations for Television Stations

Lauren Lynch Flick

Posted March 4, 2011

By Lauren Lynch Flick

On March 3, 2011, the FCC released a Notice of Proposed Rulemaking ("NPRM") setting forth proposed rules to implement the video description requirements contained in the Twenty-First Century Communications and Video Accessibility Act of 2010 ("CVAA"), which became law in October 2010. The CVAA mandates that the FCC take a number of steps to ensure that new communications technologies are accessible to individuals with vision or hearing impairment, including reinstating the video description rules for television broadcasters that had been thrown out by the United States Court of Appeals for the District of Columbia Circuit in 2002. The CVAA directs that the reinstated video description requirements apply to programming that is "transmitted for display in digital format" and authorizes the FCC to extend the video description requirements to stations and situations that were not covered by the prior rules. Accordingly, the FCC is using this NPRM to take a fresh look at the rules.

The Fifty Hour Minimum and Pass-Through Obligations

Video description, which is confusingly sometimes referred to as audio description, assists those who are blind or have impaired vision to view video programming by providing, during a pause in a program's dialogue, a verbal description of the key visual elements being shown.

As was the case under the FCC's former rules, all network-affiliated television stations (including non-commercial stations) must pass through video descriptions when the network provides them and the station has the technical capability to air them. For stations that have multiple broadcast streams, the FCC proposes to require the pass-through of video descriptions on each stream. The pass-through obligation also applies to multichannel video programming distributors ("MVPDs") that have the technical capability to pass through video-described programming on the channel containing the video-described programming. As noted below, the FCC is seeking comments on how it should determine whether a particular station or MVPD has the technical capability to pass through descriptions.

Continue reading "Client Alert: FCC Proposes Rules to Reinstate and Expand Video Description Obligations for Television Stations"

Client Advisory: A Look at the Decision Enjoining ivi TV From Streaming Broadcast Content on the Internet

Lauren Lynch Flick

Posted March 4, 2011

By Lauren Lynch Flick and Cydney Tune

On February 22, 2011, US District Court Judge Naomi Reice Buchwald of the Southern District of New York issued a 59-page decision enjoining ivi TV, Inc. from streaming the programming of various network-affiliated television stations on the Internet without their permission. The judge's opinion articulates a basic principle of copyright law -- that the creator of the content holds a bundle of rights which, with very few exceptions, it alone controls. Therefore, even in this age of proliferating distribution platforms, the fact that the copyright owner has made its content available via a number of different technologies does not diminish its ability to control whether and how to make it available on a new platform. The case will likely yield more examination of this issue, as ivi TV has sought a stay of the injunction.

Background
ivi TV began Internet streaming of the signals of several network affiliated television stations located in Seattle and New York in September 2010, and thereafter announced plans to add stations from Chicago, Los Angeles and San Francisco in the future. It offered subscribers located throughout the United States the ability to receive these television signals via an Internet connection for a monthly fee. Subscribers downloaded a player, chose the signals to watch, and the signals were delivered in an encrypted form. In anticipation of the content owners' lawsuit, ivi TV sought a Declaratory Ruling from a US District Court in Seattle that the company was not infringing the copyrights in the programming, but the court dismissed that case as an anticipatory filing. A consortium of television stations, the producers of programming shown on the stations, and Major League Baseball later commenced a lawsuit for copyright infringement in New York, seeking an injunction to prevent any further retransmissions of their content by ivi TV.

Continue reading "Client Advisory: A Look at the Decision Enjoining ivi TV From Streaming Broadcast Content on the Internet"

Perspectives on the FCC's First Broadcast Spectrum Reallocation Rulemaking

John K. Hane

Posted March 1, 2011

By John K. Hane

More than two months after the FCC released a Notice of Proposed Rulemaking proposing preliminary steps to reallocate and reassign television broadcast spectrum for wireless broadband, the government machinery has finally announced comment deadlines: March 18 for initial comments and April 18 for replies. This is the first of several proceedings the FCC intends to pursue in its goal to repurpose broadcast spectrum.

The notice makes three proposals and asks a number of questions about each. It propose