Scott R. Flick and Paul A. Cicelski of Pillsbury to Speak on "Making It Work: A Broadcaster's Guide to the FCC's EEO Rule," May 30, 2013
May 30, 2013
Scott R. Flick and Paul A. Cicelski will discuss the requirements of a successful station EEO program in this webinar hosted in conjunction with the Massachusetts Broadcasters Association and the New Hampshire Association of Broadcasters on May 30, 2013 from 2:00-3:00pm ET/12:00-1:00pm PT.
Topics to be discussed will include the three major elements of the FCC's EEO rule, employment outreach requirements, the 16 FCC outreach credits, record keeping and reporting requirements, FCC EEO form information, the FCC's EEO enforcement practices and more.
Posted May 10, 2013
A few minutes ago, the FCC issued a Public Notice granting a thirty-day extension of the deadlines for submitting comments and reply comments in response to the FCC's April 1, 2013 Public Notice seeking input on whether the Commission should make changes to its current broadcast indecency policies. Comments and reply comments were originally due on May 20 and June 18, 2013, respectively, but have now been extended to June 19, 2013 (comments) and July 18, 2013 (reply comments). The extension was granted in response to a Motion filed by the National Association of Broadcasters on April 26, 2013.
Scott Flick of our office posted a detailed analysis of the Public Notice early last month. To refresh your memory, the Public Notice (jointly released by the FCC's Enforcement Bureau and General Counsel's Office) was issued in response to FCC Chairman Genachowski's request that FCC staff review the "Commission's broadcast indecency policies and enforcement to ensure they are fully consistent with vital First Amendment principles."
With respect to guidance for parties planning to file comments, the quoted language below from the Public Notice describes the matters on which the FCC is seeking comment:
- [W]hether the full Commission should ... treat isolated expletives in a manner consistent with our decision in Pacifica Foundation, Inc., Memorandum Opinion and Order, 2 FCC Rcd 2698, 2699 (1987) ("If a complaint focuses solely on the use of expletives, we believe that . . . deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.")?
- Should the Commission instead maintain the approach to isolated expletives set forth in its decision in Complaints Against Various Broadcast Licensees Regarding Their Airing of the "Golden Globe Awards" Program, Memorandum Opinion and Order, 19 FCC Rcd 4975 (2004)?
- As another example, should the Commission treat isolated (non-sexual) nudity the same as or differently than isolated expletives?
The Public Notice also states that parties are invited "to address these issues as well as any other aspect of the Commission's substantive indecency policies." As Scott pointed out in his analysis last month, this final question appears to open the door to a broader review of indecency doctrine than the FCC has engaged in for quite some time.
Given the controversy the FCC's indecency policies have historically generated, you can expect to see plenty of comments filed on June 19 and reply comments on July 18 by parties on all sides of this issue. As the FCC moves toward new leadership with the departure of Chairman Genachowski, the FCC's indecency enforcement policies could take some interesting turns.
Posted April 30, 2013
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:
- Assignment of Paired AM Stations Denied by the FCC
- Use of Illegal Cell Phone Jammers Leads to Fines in Excess of $125,000
FCC Denies Two Assignment Applications of Paired AM Stations
Early this month, the FCC issued two letters denying several assignment applications seeking to separately assign jointly-operated AM stations to different licensees, contrary to the FCC's rules.
In the 1990s, the FCC expanded the AM band frequencies and permitted AM licensees to operate both existing AM band stations and expanded band AM stations in order to improve the quality of the AM service. However, this dual operating authority was contingent upon the surrender of one of the two licenses within five years from the grant of the license for the expanded band station.
In September 1999, one of the licensees filed an assignment application to assign two paired AM band stations to a second licensee. The FCC granted this assignment application, but the receiving licensee only consummated the assignment of one of the two AM stations due to "environmental issues." Several years later, the two licensees filed several new assignment applications requesting FCC approval to separately assign the stations to new licensees, including one application in 2006 and two applications in 2012. In none of these applications did the licensees mention that the stations were part of a jointly-operated pair or that any additional special conditions might apply.
In its letters, the FCC denied all of the pending assignment applications and declined to grant a waiver of the FCC's rule requiring the surrender of one of the two licenses. In its decisions, the FCC stated that the grant of the applications would be contrary to the public interest and would "(1) constitute a further violation of a Commission-imposed processing policy; (2) bestow a further benefit on a party that knowingly engaged in such violation; (3) be unfair to those licensees that have returned one of the paired licenses; and (4) be inconsistent with the expanded band licensing principle that each licensee surrender one license at the expiration of the dual operating authority period." In other words, the FCC made clear that the only assignment application it would be willing to accept is one resulting in both AM stations being held by a single licensee.
Use of Cell Phone Jammers to Prevent Cell Phone Use during Working Hours Does Not Pay Off
The FCC has long kept a careful eye on the sale and use of illegal cell phone jamming devices that interfere with cellular communications. This month, the FCC continued to take action against the use of illegal cell phone jammers by issuing two hefty Notices of Apparent Liability for Forfeiture ("NAL") against two companies, one in Alabama and one in Louisiana, both of which used several cell phone jamming devices at their worksites.
As described in the two NALs, each company purchased four cell phone jammers from various Internet sources (and a fifth jammer as a backup) and installed them throughout their worksites to prevent their employees from using cell phones while working. In both instances, agents from the FCC's Enforcement Bureau responded to anonymous complaints and inspected the worksites.
Using direction finding techniques, the agents discovered strong wideband emissions on the cellular bands and determined that the source of these emissions was from signal jammers.
The Enforcement Bureau agents then inspected the worksites and interviewed the managers of the two companies, both of whom admitted that they had purchased the jammers online and operated them at their worksites--one company for a period of two years and the other for a period of a few months. Both managers showed the agents the locations of the jamming devices and voluntarily surrendered them.
Sections 301, 302(b), and 333 of the Communications Act generally prohibit the importation, use, marketing, and manufacture of cell phone jammers because jammers are designed to impede authorized communications and can disrupt safety communications, such as 911 calls. Moreover, since the primary purpose of a jammer is to interfere with authorized communications, jamming devices cannot be certified and cannot comply with the FCC's technical standards for operation.
In response to the use of illegal jamming devices, the FCC issued substantial forfeitures to both companies. The relevant base forfeiture amounts are $10,000 for operating without FCC authorization, $5,000 for using unauthorized or illegal equipment, and $7,000 for interference with authorized communications. The base forfeiture for violations of the prohibition on signal jamming is $16,000 per violation or per day, up to a maximum of $112,500 for a single violation. For the company in Alabama that operated four jamming devices for a period of two years, the FCC found that the company committed 12 total violations, representing three violations for each of the four jamming devices in use. Thus, the fine would normally be $16,000 per violation, for a total fine of $192,000. However, since the company immediately surrendered the jamming devices and was cooperative with the Enforcement Bureau agents, the FCC reduced the penalty by 25% to $144,000. The FCC applied the same type of calculation to the company in Louisiana that operated four jamming devices for a period of a few months, resulting in a fine of $126,000 after a 25% reduction in the total fine amount. The FCC also ordered both companies to submit sworn written statements providing contact information for the sellers of the jamming devices and all information regarding the sources from which the jamming devices were purchased.
In addition, the FCC cautioned the companies that while the FCC chose not to impose separate forfeitures for the illegal importation of the jamming devices, the FCC has the power to impose "substantial monetary penalties" on individuals or businesses who illegally import jammers. The FCC further warned the companies and other individuals and businesses that the FCC "may pursue alternative or more aggressive sanctions, should the approach set forth [here] prove ineffective in deterring the unlawful operation of jamming devices."
Posted April 29, 2013
By Tony Lin
The FCC's revised rules for its Experimental Radio Services ("ERS") were published in today's Federal Register, and become effective on May 29, 2013 (except for several rules that contain new or modified information collection requirements, which require further approval by the Office of Management and Budget). These revised rules allow parties, including manufacturers, entrepreneurs, and students, to engage in a wide variety of experiments involving radio spectrum, including, for example, technical demonstrations, equipment testing, limited market studies, and development of radio techniques. The FCC's revisions streamline and modernize the ERS rules, allowing parties to more quickly develop new technologies and products for the marketplace.
One of the primary changes to the rules is the creation of three types of ERS licenses: (1) Program Licenses; (2) Compliance Testing Licenses; and (3) Medical Testing Licenses. An applicant for a license must demonstrate in its application that it meets the eligibility requirements, must provide a certification of radio frequency (RF) expertise or partner with another entity with such expertise, and must explain the purpose of its experiment. Each license has a term of five years and is renewable.
Under a Program License, the license holder is permitted to conduct an ongoing program of research and experimentation under a single authorization without having to obtain prior FCC consent for each distinct experiment or series of unrelated experiments, as would have been required under the FCC's prior rules. Eligibility is limited to colleges, universities, research laboratories, manufacturers of radio frequency equipment or end-user products with integrated radio frequency equipment, and medical research institutions. Authorized entities must provide a "stop buzzer" point of contact, identify the specifics of each proposed experiment in advance of the testing on a public web database established by the FCC, and post a report detailing the results of each experiment upon completion of the experiment (A "stop buzzer" point of contact is a person who can address interference concerns and cease all transmissions immediately if interference occurs).
A Compliance Testing License allows a test lab to conduct testing for FCC equipment authorizations. Such licenses are available to labs that are currently recognized for RF product testing as well as any other lab that the FCC finds has sufficient expertise to undertake such testing. Unlike a Program Licensee, a compliance testing licensee does not have to identify a "stop buzzer" point of contact, provide any notification period prior to testing, or file any narrative statement regarding test results. Testing is limited to those activities necessary for product certification.
The third type of experimental license is a Medical Testing License. This license allows an eligible entity to conduct clinical trials of medical devices (i.e., a device that uses RF wireless technology or communications functions for diagnosis, treatment, or patient monitoring). Only health care facilities (defined as hospitals and other establishments that offer services, facilities and beds for beyond a 24-hour period in rendering medical treatment, as well as institutions and organizations regularly engaged in providing medical services through clinics, public health facilities, and similar establishments, including government entities and agencies) are eligible for this type of experimental license. Medical devices tested under a Medical Testing License must comply with the FCC's Part 15, 18 and 95 rules. Authorized health care entities must provide a "stop buzzer" point of contact and also follow the same notice and reporting requirements as Program Licensees. A Medical Testing Licensee is required to file a yearly report with the FCC on the activity that has been performed under the license.
The FCC's other changes to its ERS rules include:
- consolidating all of the experimental licensing rules into Part 5 of the FCC's Rules;
- consolidating its rules regarding marketing of unauthorized devices;
- allowing demonstrations in residential areas of devices not yet authorized, so long as the relevant spectrum licensee is working with the device manufacturer;
- permitting, without an experimental license, the operation of devices not yet authorized, so long as the devices are operated as part of a trade show demonstration and at or below the maximum power level permitted for unlicensed devices under the FCC's Part 15 rules;
- allowing more flexible product development and market trials;
- standardizing and increasing the importation limit for devices that have not yet been authorized to 4,000 units; and
- codifying the existing practice of allowing RF tests and experiments conducted within an anechoic chamber or Faraday cage without the need for obtaining an experimental license.
Posted April 16, 2013
By John Hane
Recently, TVNewsCheck.com ran a short item noting that a large broadcast group (not a network owned and operated group) and a large multichannel video distributor (MVPD) successfully concluded carriage negotiations. There was no interruption of service. Given the successful outcome, I was surprised to see that someone posted a comment regarding the piece saying the deal illustrates why the FCC should tighten its broadcast ownership rules. No matter how many times I read comments of this sort, I am perplexed that people actually believe it's a good thing for the government to mandate that broadcasters be the underdogs in all major negotiations that impact the quality and availability of broadcasters' programming. If anything, government policy should encourage broadcasters to grow to a scale that is meaningful in today's complex television marketplace. Not one of the other major distributors makes its programming available for free.
If independent (non-O&O) broadcasters aren't permitted to achieve a scale large enough to negotiate effectively with upstream programmers and downstream distributors, you won't have to wait long see high cost, high quality, high value programming available for free to those who choose to opt out of the pay TV ecosystem. It's much better to have two, three or four strong competitors in each market, owned by companies that can compete for rational economics in the upstream and downstream markets, than to have eight or more weak competitors, few of which can afford to invest in truly local service or negotiate at arms-length with program suppliers and distributors.
For those who have not been paying attention, the television market has changed profoundly in the past 20 years. The big programmers and the big MVPDs have gotten a whole lot bigger. The largest non-O&O broadcast groups have grown too, but not nearly as much. Fox, Disney/ABC, NBCU and the other programmers are vastly bigger companies with incomparable market power vis-a-vis even the largest broadcast groups. The same is true of the large MVPDs, which together serve the great majority of television households.
There's nothing inherently bad about big content aggregators and big MVPD distributors. And anyway, they are a fact of life. Despite their size, each is trying to deliver a competitive service and deliver good returns for shareholders. That's what they are supposed to do, and in general (with a few exceptions) they serve the country well. But again, they are much, much larger than even the largest broadcast groups. If you believe that having a viable and competitive free television option is a good thing, that's a problem.
So in response to the suggestion that the FCC further limit the scale of broadcasters, I reply: why does the government make it so damn hard for the only television service that is available for free to bargain and compete with vastly larger enterprises that are comparatively unregulated?
Posted April 14, 2013
As our readers are aware, we did a great deal of reporting before and after the first-ever Nationwide Emergency Alert System (EAS) Test conducted on November 9, 2011. The purpose of that test was to assess the readiness and effectiveness of the system in the event of an actual national emergency. Broadcasters, as well as cable, satellite, and wireline providers across the country (EAS Participants), all took part in the test. For a quick refresher, see my previous posts on the test here, here, here, here, and here. Late this past Friday, the FCC's Public Safety and Homeland Security Bureau released a report summarizing the outcome of the national test entitled: "Strengthening the Emergency Alert System (EAS): Lessons Learned from the Nationwide EAS Test".
As the FCC and FEMA have made clear on numerous ocassions, the national EAS test was not intended to be a pass or fail event, but was to be used to identify and address the limitations of the current EAS. The Report concludes that the national EAS alert distribution architecture is sound and that the national test was received by a large majority of EAS Participants and could be seen and heard by most Americans. The results of the test show that more than 80 percent of EAS Participants across the country successfully received and relayed the FEMA test message.
The Report also indicates, however, that there are a number of technical areas where the system can be improved. According to the Report, among the problems that impeded the ability of EAS Participants to receive and/or retransmit the emergency Action Notification (EAN) issued by FEMA, and of the public to receive it, were:
- Widespread poor audio quality;
- Lack of a Primary Entry Point (PEP) in an area to provide a direct connection to FEMA;
- Use of alternatives to PEP-based EAN distribution;
- The inability of some EAS Participants either to receive or retransmit the EAN;
- Short test length; and
- Anomalies in EAS equipment programming and operation.
As a result of its findings, the Report recommends that another nationwide test be conducted after the FCC commences a number of formal rulemaking proceedings seeking public comment on steps to improve EAS related to these and other shortcomings.
In its Report, the Bureau also recommends that, in connection with any future EAS testing, the FCC develop a new Nationwide EAS Test Reporting System to improve the electronic filing of test result data. The Report also encourages the Executive Office of the President to reconvene the Federal EAS Test Working Group to work with Federal partners and other stakeholders to use the results of the test to find ways to improve EAS and plan for future nationwide tests.
Despite the audio problems and other issues identified in the Report with respect to the nationwide EAS test, the first ever test appears to have achieved its goal of helping the FCC, FEMA, and EAS Participants identify areas where EAS can be improved in the event of an actual emergency. If the recommendations outlined in the Report are implemented by the FCC, the public will likely have a number of opportunities during upcoming rulemaking proceedings to provide their input to the FCC on ways to further improve the reliability of the nation's EAS.
Posted April 5, 2013
This morning, the FCC released a Public Notice announcing that, commencing immediately and until further notice, it will no longer accept modification applications (or amendments to modification applications) from full power and Class A television stations if the modification would increase the station's coverage in any direction beyond its current authorization.
The Public Notice also indicates that the FCC will cease processing modification applications that are already on file if the modification will increase the station's coverage in any direction. Applicants with a pending modification application subject to the freeze are being given 60 days to amend their application to prevent an increase in coverage (or seek a waiver), thereby allowing those applications to be processed by the FCC. Modification applications that are not amended within that period will not be processed until after the FCC releases its order in the Spectrum Auction proceeding, and at that point will be subject to any new rules or policies adopted in that rulemaking that would limit station modifications.
With regard to Class A stations specifically, the FCC will also not accept Class A displacement applications that increase a station's coverage in any direction. Class A applications to implement the digital transition (flash cut and digital companion channels) will continue to be processed as long as they comply with the existing restrictions on such applications.
The FCC states that the reason for putting modification applications in the deep freeze is that:
We find that the imposition of limits on the filing and processing of modification applications is now appropriate to facilitate analysis of repacking methodologies and to assure that the objectives of the broadcast television incentive auction are not frustrated. The repacking methodology the Commission ultimately adopts will be a critical tool in reorganizing the broadcast TV spectrum pursuant to the statutory mandate. Additional development and analysis of potential repacking methodologies is required in light of the technical, policy, and auction design issues raised in the rulemaking proceeding. This work requires a stable database of full power and Class A broadcast facilities. In addition, to avoid frustrating the central goal of "repurpos[ing] the maximum amount of UHF band spectrum for flexible licensed and unlicensed use," we believe it is now necessary to limit the filing and processing of modification applications that would expand broadcast television stations' use of spectrum.
So once again, television broadcasters are tossed into a digital ice age, unable to adapt their facilities to shifting population areas, which seems to be the polar opposite of what Congress intended in requiring that spectrum incentive auctions not reduce broadcast service to the public. Aggravating the situation is that, unlike some of the DTV transition application freezes, the FCC is not limiting this freeze to large urban markets where it hopes to free up broadcast spectrum for wireless broadband. Indeed, modification applications were already less likely in those heavily populated urban areas because of the existing spectrum congestion that makes modifying a TV station's signal difficult.
As a result, the broadcasters most likely to be hurt by the freeze are those in more rural areas--areas that have ample available spectrum for broadcasting and broadband, and which the FCC has said are not really the target of its spectrum incentive auction. Those broadcasters will have to hope that the FCC is serious about considering freeze waiver requests. Otherwise, rural Americans will once again see improvements in their communications services delayed while the FCC focuses all its attention on securing more spectrum for broadband in urban population centers.
Posted April 4, 2013
Marking the end of a winter that has been way too long is an annual rite of Spring for the media industry--the National Association of Broadcasters' Show in Las Vegas. This year's Show is taking place from April 6th to the 11th at the Las Vegas Convention Center. The NAB touts the Show as "the world's largest media and entertainment event covering the development, management and delivery of content across all mediums." The growing technological and business diversity of the Show is reflected in the NAB's additional description of the Show as being "home to the solutions that transcend traditional broadcasting and embrace content delivery to new screens in new ways." That is certainly true, with the diversity of exhibitors covering every sector even tangentially related to media and content production.
Of course, for all that the Show itself is, one of the most compelling reasons to spend a few pleasant April days in Las Vegas is to reconnect with friends and colleagues in the industry, as well as meeting in person a lot of the people that you have previously known only by phone or email.
If you see us at the Show, please stop and say hello. You can also reach out to us via email at the Show by clicking on the links above. They take you to our respective bios at Pillsbury, including email addresses.
If you are headed to the Show, we look forward to seeing you there. For those who won't be there, I'll be writing a post after the Show summarizing some of the highlights.
Posted April 1, 2013
After nine months of rumors and uncertainty as to where the FCC is headed after last summer's indecency decision by the Supreme Court in FCC v. Fox Television Stations, Inc. (which we discussed in this post), the FCC today released a very brief public notice that:
- Announces the FCC staff has disposed of over one million indecency complaints (which it states is over 70% of those that were pending at the FCC), "principally by closing pending complaints that were beyond the statute of limitations or too stale to pursue, that involved cases outside FCC jurisdiction, that contained insufficient information, or that were foreclosed by settled precedent."
- Announces that the FCC will continue to actively investigate "egregious indecency cases."
- Announces that it is opening up a new docket (GN Docket No. 13-86), and is seeking comments from the public in that docket as to whether the FCC should change its broadcast indecency policies, and if so, how. While not limiting the breadth of potential changes, the FCC specifically asks whether it is time to go back to the old policy of prosecuting on-air expletives only where there is "deliberate and repetitive use in a patently offensive manner," or stick with the more recent policy of pouncing on a single fleeting expletive, the policy that led to the Supreme Court's 2012 decision. The Public Notice also asks if the FCC should treat "isolated (non-sexual) nudity the same or different than isolated expletives?"
- Finally, emphasizing again the broad nature of the FCC's proposed review, the Public Notice asks commenters "to address these issues as well as any other aspect of the Commission's substantive indecency policies."
While the timing of the Public Notice, just ahead of Chairman Genachowski's (and Commissioner McDowell's) announced departure from the FCC, is interesting, more interesting is the "spontaneous" look of the document. In an agency that can readily produce requests for comments that are hundreds of pages long, and on a subject that has produced reams of pleadings and precedent over several decades, the substantive portion of the Public Notice is but a few paragraphs long--a few paragraphs that open the door to a fundamental rethinking of the FCC's approach to indecency.
The Public Notice therefore has the look of a document that was not long in the making, and which may have emerged as result of a departing Chairman beginning to move the ball forward for his successor. The process forward will likely be complex and arduous, and the ultimate result is anyone's guess, but by at least launching the proceeding before his departure, Chairman Genachowski will absorb some of the political heat that could have otherwise fallen on his successor, while also challenging that successor to address an issue that has become a significant distraction and consumer of increasingly scarce FCC resources.
While also a result of its brevity, the lack of any "initial" or "tentative" conclusions by the FCC in the document gives the impression that the FCC may indeed be ready to commence a fundamental reexamination of indecency policy, and is not just going through the motions of collecting comments before proceeding on a largely predetermined route. It is not asking so much how it should proceed in light of the Supreme Court's decision, but how it should proceed in general. For those who loudly proclaim that the FCC has failed in its duties as a "content cop", as well as broadcasters struggling to figure out on a minute by minute basis what program content might cross the FCC's invisible indecency line, a fresh look at the issue will be welcome. Whether this "reset" can resolve the many tough questions surrounding indecency enforcement is, however, another question entirely.
March 30, 2013
On this date, all live and near-live programming that is shown on the Internet after being shown on television must be captioned for online viewing, in accordance with the rules implementing the 21st Century Communications and Video Accessibility Act. "Live" programming is defined as programming that airs on TV "substantially simultaneously" with its performance (e.g., news and sporting events). "Near-live" programming is video programming that is performed and recorded less than 24 hours prior to the first time it aired on television (e.g., "The Late Show with David Letterman").
Posted March 29, 2013
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:
- Delay in Providing Access to Public Inspection File Leads to Fine
- FCC Fines Broadcaster for Antenna Tower Fencing, EAS and Public Inspection File Violations
This month, the Enforcement Bureau of the FCC issued a Notice of Apparent Liability for Forfeiture and Order ("NAL") in the amount of $10,000 against a Texas noncommercial broadcaster for failing to promptly make its public inspection file available. For the delay of a few hours, the Commission proposed a fine of $10,000 and reminded the licensee that stations must make their public inspection file available for inspection at any time during regular business hours and that a simple request to review the public file is all it takes to mandate access.
According to the NAL, an individual from a competitor arrived at the station at approximately 10:45 a.m. and asked to review the station public inspection file. Station personnel informed the individual that the General Manager could give him access to the public files, but that the General Manager would not arrive at the station until "after noon." The individual returned to the studio at 12:30 p.m.; however, the General Manager had still not arrived at the studio. According to the visiting individual, the receptionist repeatedly asked him if he "was with the FCC." Ultimately, the receptionist was able to reach the General Manager by phone, and the parties do not dispute that at that time, the individual asked to see the public file. During that call, the General Manager told the receptionist to give the visitor access to the file. According to the visitor, when the General Manager finally arrived, he too asked if the individual was from the FCC, and then proceeded to monitor the individual's review of the public file.
After the station visit, the competitor filed a Complaint with the FCC alleging that the station public files were incomplete and that the station improperly denied access to the public inspection files. The FCC then issued a Letter of Inquiry to the station, requesting that the station respond to the allegations and to provide additional information. The station denied that any items were missing from the public file and also denied that it failed to provide access to the files.
Posted March 26, 2013
At the end of every quarter, TV stations across the land must electronically file with the FCC a Form 398--The Children's Television Programming Report. However, stations attempting to do that filing for the first quarter of 2013 are discovering that the FCC's online filing system for those forms ends with the fourth quarter of 2012. As a result, it is preventing many TV stations from preparing their electronic report for the first quarter of 2013, rejecting all efforts to select "First Quarter 2013" as the report to be filed.
At first, it appeared that the FCC had bought into the "Mayan Prophecy" that the world was ending in December 2012, marking the end of the Mayan (and perhaps the FCC's) calendar. And, had the world actually ended in 2012, filing a Form 398 covering the first quarter of 2013 would have indeed ranked low on most broadcasters' "to do" lists. However, with 2013 well under way, TV stations are now flummoxed as to how to get the FCC's electronic filing system to allow the preparation and filing of a first quarter 2013 kidvid report.
Fortunately, there is an answer, but it requires a little background. We reported in a 2010 KidVid Advisory that the FCC had suddenly begun requiring stations to enter their FCC Registration Number and password as the final step before permitting a Form 398 to be filed. As it turned out, this was apparently the first step in creating a new FCC Form 398 filing system.
In July 2012, the FCC released what it termed an "alternate" link for accessing the Form 398 filing system and updated its user manual to indicate that the web address for filing the form is the alternate link. However, the FCC's main Children's Television Programming page on the Internet continues to show that the original link is the one to use for filing a Form 398, and until this quarter, that original link has continued to work correctly. Of course, most TV stations just have the original link bookmarked, and have no reason to visit the FCC's website/user manual to see if the filing procedures have been changed. Adding to the confusion is the fact that following the original link does not generate a warning or error message, but takes you to the same filing page stations have been using for years. It is only when a station tries to create a report for first quarter 2013 that a problem arises.
As a result, the "alternate" link is not just an alternate any more, and must be used to file all post-2012 kidvid reports. So, from here on out, use this link for filing your kidvid reports: http://licensing.fcc.gov/KidVidNew/public/filing/submit_login.faces
Note also that, at the new link, you will have to provide your call sign, Facility ID, FCC Registration Number and Password to even be able to log into the system. This is all information you previously needed to file a Form 398, but you supplied it at the end of the filing process. Now, you can't even get started without it. For TV stations that have been banging their heads against the wall trying to figure out why they can't prepare, much less file, their Form 398, using the alternate link should solve that problem. It may be a small problem compared to the end of the world, but then the Mayans never had to deal with online filing.
Posted March 25, 2013
As we have discussed at great length in the past, the FCC's rules require that certain video programming delivered online be captioned if the programming previously aired on television with captions. The rules kicked in on April 30 of last year, and all video programming that appeared on television with captions after that date is considered "covered Internet Protocol (IP) video" and will ultimately need to be captioned when being shown online.
The first step of the captioning phase-in occurred on September 30, 2012. Since that date, stations have been required to display captioning for prerecorded full-length programming delivered via IP if the programming was first aired on television with captions on or after the April 30 date noted above.
The second phase of the FCC's IP captioning rules begins March 30, 2013 (a Saturday), at which time the FCC's IP captioning rules require all live and near-live programming subject to the rules and shown on television with captions to be captioned when delivered online. The FCC's definition of "live" or "near-live" captures all programming performed simultaneously or recorded within 24 hours of its first transmission to a video programming distributor. Note that as long as they do not constitute "substantially all" of a full-length program, online video clips are currently exempt from the IP captioning rules.
As a result, the question we probably receive most often from clients about online captioning is: what exactly does the FCC mean by "substantially all" of a full-length program? It's a good question that lacks a precise answer. The FCC intentionally decided not to provide a specific threshold for the length or number of clips aired that would constitute "substantially all" of a program. According to the FCC, it did not see "any evidence that Congress sought to exclude only clips of a certain duration or percentage of the full-length program."
Parties should keep in mind, however, that the FCC will not allow them to game the system by simply "shaving" off a few minutes or brief segments of a full length program in order to avoid the IP captioning obligation. The FCC emphasized that "if there is clear evidence that an entity has developed a pattern of attempting to use video clips to evade its captioning obligations," the FCC may find that a rule violation has occurred.
There is of course more to come. The captioning requirements for "full length" and "live or near-live" programming are just the beginning of the new IP captioning obligations being implemented in the near future. The next deadline is coming up soon with the September 30, 2013 requirement that all pre-recorded programming that is edited for Internet distribution be captioned for online viewing. Also, don't forget there are separate captioning compliance deadlines for captioning of IP video programming that previously aired on television prior to the effective date of the rules, but that is shown again on television with captions after the effective date. Those phased-in captioning requirements are scheduled to take place between March 2014 and March 2016, with progressively shorter periods to caption the programming for IP video after it airs on television with captions.
As was the case with the original broadcast captioning rules, each phase-in "deadline" shrinks the amount of programming exempt from the online captioning requirement while requiring the distributor to tackle ever more complex captioning issues. IP captioning will therefore consume a growing portion of the attention of those posting broadcast video online. The big difference is that broadcast captioning was phased in over eight years (twelve years for Spanish language programming), whereas online captioning is being phased in on a much faster schedule.
Posted March 20, 2013
While in the works for a while, today's formal announcement by FCC Commissioner McDowell that he will be departing the FCC leaves a hole in the FCC's ranks that will be difficult to fill. In many regards, Commissioner McDowell was a throwback to an earlier time, both at the FCC and in Washington, in that his tenure was distinguished not just by his congenial nature, but by an abiding adherence to his regulatory principles, rather than to reaching a particular result. While I suspect he might bristle at being described as a "rational regulator", preferring instead to be known as a "devoted deregulator", Commissioner McDowell represented a common-sense approach to the communications industry and the business of regulating it.
Since the job of a lawyer is to obtain for a client the best result legally possible, you would think that lawyers would be big fans of the "predictable vote"--the commissioner whose policy positions are so embedded that there is little doubt as to where they will stand on any particular issue. And of course, if three of the five commissioners are on your side of an issue, that's a pretty warm and fuzzy place to be. The problem, however, is that for every time three of the five commissioners support your position, there will be a time when three of the five do not.
For that reason, an experienced lawyer will always prefer an inquisitive and open-minded regulator over an ideologue, even when it is an ideologue that agrees with you (today). While the independent-minded regulator will make you work to persuade them each and every time, the opportunity to persuade them is never foreclosed. If you fail to persuade them that your cause is just, then the failure is yours, and not just the result of an agency formalizing a preordained result.
Over the years, the FCC has been blessed with a number of commissioners that have been particularly good at compartmentalizing natural biases, and giving the parties before them a full and fair opportunity to make their case. Probably not coincidentally, many of these same commissioners have had both a healthy sense of humor and humility, putting those around them at ease and creating an environment conducive to an open and lively discussion of the issues. A final characteristic found among this select group--and helpful to anyone in Washington--is the ability to separate the advocate from the issue, recognizing that just because you disagree with the argument that the advocate must make today on behalf of a client doesn't diminish the advocate who, like the commissioner, is just trying to do their job to the best of their ability, and will have to make a different argument on behalf of a different client tomorrow.
Unfortunately, these characteristics are rarely those that will get you nominated by a President, or see you through a partisan confirmation process, so commissioners with all of these characteristics will inevitably tend to be the exception rather than the rule. Because of this, Commissioner McDowell will be missed by many who work at, and with, the FCC. In a town where some individuals have countdown calendars marking the number of days remaining in a particular government official's tenure, it is perhaps the ultimate backhanded Washington compliment that the most arresting part of Commissioner McDowell's departure announcement was where it noted he had been at the FCC for "nearly seven years." It's hard to believe it has been that long.
March 17, 2013
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, 2013.
Posted March 13, 2013
In response to a request by the Coalition for Broadcast Investment ("Coalition"), the FCC, through its Media Bureau, has invited the filing of comments on the question of whether the Commission should now be open to allowing non-citizens and foreign companies to hold more than a 25% equity interest in U.S. radio and television stations. The deadline for filing comments is April 15, with reply comments due by April 30.
The Coalition is comprised of national broadcast networks, radio and television station licensees, as well as community and consumer organizations. It is urging the FCC to publicly commit, going forward, to considering on their individual merits transactions proposing significant foreign investment in broadcast stations, rather than reflexively rejecting foreign ownership above the 25% mark, as the FCC has traditionally done when reviewing broadcast transactions.
But for the Commission's decades-old refusal to be flexible, the Coalition's request would not have been necessary as Section 310(b)(4) of the Communications Act states that a broadcast license will not be granted to "any corporation directly or indirectly controlled by any other corporation of which more than one-fourth of the capital stock is owned of record or voted by aliens, their representatives, or by a foreign government or representative thereof, or by any corporation organized under the laws of a foreign country, if the Commission finds that the public interest will be served by the refusal or revocation of such license." The very language of the Act therefore indicates that alien ownership above the 25% mark will be permitted unless the FCC specifically finds that such foreign ownership would not, in the particular situation presented, serve the public interest.
Despite the language of the statute, the FCC has routinely declined to consider broadcast-related transactions proposing more than 25% foreign ownership of a broadcast parent company. The Coalition contends that, by considering the merits foreign ownership proposals in excess of the 25% mark, the FCC will encourage "access to additional and new sources of investment capital [which] will benefit the broadcast industry and American consumers by financing advanced infrastructure, innovative services and high quality programming; and by promoting the creation of highly skilled, well-paying jobs" as well as "provide new opportunities for minority businesses and entrepreneurs, whose access to the domestic capital markets has been limited...."
A clear statement by the FCC that it will now review, on the merits, radio and television transactions proposing significant foreign investment in U.S. broadcast stations should send a very constructive signal to the broadcast industry, to potential foreign investors and to U.S. investors looking to syndicate more of their capital needs offshore for U.S. broadcast investments. Such a new openness and flexibility on the part of the Commission will also serve to create a more equitable "access to capital" environment for broadcasters particularly in relation to other forms of media.
Future Commission actions publicly approving, disapproving and conditioning transactions proposing "plus 25%" foreign ownership will, over time, provide the necessary predictability that is so important for investment decision-making. Pillsbury has considerable experience in crafting FCC-friendly ownership/control structures for banks, companies and firms with foreign ownership that wish to invest in U.S. broadcast stations. Action by the Commission on the Coalition's letter will hopefully simplify and speed the heretofore painstaking process of balancing the return on investment objectives of foreign investors against the need to meet the letter and intent of the FCC's rules and policies with respect to foreign ownership of U.S. broadcast stations.
Posted March 7, 2013
As we all know, it's easy to complain about the Federal Government these days given the gridlock that currently exists on Capitol Hill, the Sequester, and the looming debt ceiling battle. But let's give credit where credit is due.
The FCC has revised its Equal Employment Opportunity (EEO) audit letter for all broadcast licensees, and has eased the burden on respondents by eliminating the need to produce copies of each and every job vacancy notice that was sent out to every referral source, allowing stations instead to file only a representative copy of each job opening notice along with a list of the referral sources to which it was sent. In addition, the FCC has changed its audit letter to allow the submission of a single on-air job advertisement log sheet instead of requiring stations to provide multiple log sheets. The letter also states that stations are not required to provide copies of "applicants' resumes ..., company training manuals, posters, employee handbooks, or corporate guidebooks." While responding to an EEO audit remains a time consuming task, the FCC has at least taken a step in the right direction by better focusing the audit request on the most consequential materials.
The new version of the EEO audit letter was, as required by the FCC's rules, sent to randomly selected radio and television stations in the past few weeks. The FCC annually audits the EEO programs of approximately five percent of broadcast stations and has released the list of the stations subject to the most recent audit. All stations, whether targeted for this round of audits or not, should carefully review the FCC's sample audit letter, as it informs stations of what they will need to present when their time comes.
The FCC's EEO rules require broadcast station employment units with five or more full-time employees to recruit broadly and inclusively for all job openings, and require substantial recordkeeping, periodic reports to the FCC, and the placement of those reports in stations' public inspection files and on their websites. Broadcasters must also regularly analyze the results of their recruitment efforts to ensure that broad and inclusive outreach is being achieved and must keep detailed records of their recruitment outreach efforts to submit to the FCC in the event of an EEO audit.
For everything you ever wanted to know about ensuring compliance with the FCC's EEO rules, see our comprehensive and recently updated Client Advisory: "The FCC's Equal Employment Opportunity Rules and Policies - A Guide for Broadcasters."
The fact that stations will no longer need to provide multiple ad log sheets or the corporate materials described above will certainly make responding to an audit easier. That said, the FCC's EEO rules are, and will continue to be, a significant regulatory burden on broadcasters. While broadcasters will not be required to submit as much material to the FCC as part of an EEO audit, they will continue to be required to maintain records extensively detailing their job recruitment efforts. In addition, stations should take note that the FCC's Public Notice released with the new version of the EEO audit letter seems to indicate that in exchange for the reduced response burdens, the FCC is raising the bar and now expects stations to adopt a standard of "vigorous recruitment."
Still, despite concerns as to what the FCC means by "vigorous", it's nice to see that the FCC is moving in the direction of simplified audits in an effort to actually ease regulatory filing burdens on broadcasters.
Posted February 28, 2013
June 1, 2011 marked the beginning of a four-year cycle during which all commercial and noncommercial radio and television stations in the United States will come under special scrutiny by the Federal Communications Commission ("FCC" or "Commission") as the FCC considers whether to renew each station's license to broadcast.
This is a period of regulatory uncertainty and vulnerability for stations, during which the FCC closely reviews their record of compliance with its rules and service to the public during the license term, and third parties have the opportunity to petition the FCC to deny the station's license renewal request. One significant focus of the FCC's and petitioners' attention will be each station's performance under the FCC's rules concerning equal employment opportunity ("EEO").
In light of the ongoing renewal cycle, this Guide is designed to assist stations in charting a course for full compliance going forward, as well as in evaluating their level of past compliance and the risks the station may face when filing its license renewal application.
Article continues -- a full version of this article can be found at The FCC's Equal Employment Opportunity Rules and Policies - A Guide for Broadcasters.
Posted February 25, 2013
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 Takes Action Against Interference and Unlicensed Operations
- FCC Assesses $25,000 Fine for Unresponsiveness
Licensee Cannot Escape Fine for Intentional Jamming and Unlicensed Operations
In a rather odd chain of events, the FCC recently issued a Memorandum Opinion and Order ("Order") against an individual in Thousand Oaks, California stemming from a 2009 investigation and a 2011 Forfeiture Order. The Order rejected a petition for reconsideration of the earlier Forfeiture Order and affirmed the FCC's decision to fine the individual for unlicensed radio operations, intentional interference with radio operations, and refusal to allow an inspection of radio equipment.
In March 2009, an agent from the FCC's Enforcement Bureau investigated radio interference at a shopping center. The agent located an unlicensed repeater transmitter operating from a secure radio communications facility on Oat Mountain with a beam antenna pointed in the direction of the shopping center. The repeater was transmitting pulsating signals on 461.375 and 466.375 MHz, the land mobile frequencies licensed to the shopping center for its own operations. These transmissions were jamming the shopping center's licensed land mobile operations.
During the investigation, an unidentified individual communicated with shopping center personnel on a different set of frequencies, telling them they had "plenty of warning", that he was jamming their licensed frequencies to force them to cease use of those frequencies, and that they needed to apply to the FCC to cancel their current land mobile license and apply for a new license to operate on different frequencies. He then began transmitting NOAA weather radio on the licensed frequencies to block any use of those frequencies by the shopping center.
Scott R. Flick and Lauren Lynch Flick of Pillsbury to Speak on "EEO on the Road to Renewal: Seizing Your Last Chance to Avoid EEO Problems at License Renewal Time," February 20, 2013
February 20, 2013
Scott R. Flick and Lauren Lynch Flick will discuss the FCC's EEO requirements for broadcasters at license renewal time in this webinar hosted by the Texas Association of Broadcasters on February 20, 2013 from 3:00 PM to 4:30 PM Eastern Time.
For more information and to register, please click here.
Posted February 14, 2013
At this stage in the media cycle, few could have missed the news of several Michigan and Montana TV stations airing an EAS alert warning the public of a zombie attack. As I noted earlier this week, while the facts surrounding these alerts are still developing, it appears they were the result of someone outside the U.S. triggering the stations' EAS equipment via that equipment's Internet connection. While the resulting burst of media stories quickly devolved into a flurry of zombie jokes, the movie that came to mind as the story developed was not Night of the Living Dead, but the Terminator films, which feature an interconnected national defense network called Skynet. In the films, Skynet becomes so sophisticated as to turn on its creators, causing a nuclear launch that brings destruction to the human race and, after the movie, Arnold Schwarzenegger to the California Governor's Office.
For many years, the EAS system, as well as its predecessor, the Emergency Broadcast System, operated by having a number of primary broadcast stations connected to governmental agencies through a closed network (typically over telephone lines). When an alert was sent to these primary stations, they would broadcast the alert, which would then be picked up and aired by stations monitoring the signal of the primary station, and in turn, by other stations monitoring those secondary stations. This created a daisy chain in which an announcement over one station quickly spread to stations throughout the alert area.
One of the perceived flaws of the Emergency Broadcast System was the amount of human interaction it required. For example, when a national alert was accidentally triggered in 1971, it caused little disruption, since many station managers intercepted it and did not air it because they heard no corroboration of the emergency over their newswires. While it turned out that those station managers were correct in concluding it was an accidental alert, critics of the Emergency Broadcast System counted this event as a failure of the system, since the delay inherent in station managers deciding whether an alert should be aired (and the risk that they may reach the wrong conclusion) puts more lives in danger.
The shift to EAS from the Emergency Broadcast System was done largely to increase the automation, and therefore the reliability, of the system. That digital squeal you hear accompanying an EAS warning is a digital code instructing other equipment, including the public's radios (if properly equipped), to activate, lessening the chance that emergency alerts go unheard, either because a link in the daisy chain failed to relay the message, or because the public was not listening to radio or watching TV at the time.
The downside to this level of automation soon became apparent. As I wrote in September of 2010, a radio ad for gas stations sought to satirize emergency alert announcements, right down to including the EAS digital tone. Because EAS equipment has a poor sense of humor and is no judge of context, any station airing the ad would trigger EAS alerts on the stations "downstream" from it in the EAS daisy chain. For this reason, Section §11.45 of the FCC's Rules provides that "No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS." Just a few months later, the problem repeated itself when TV ads for the disaster movie Skyline included an EAS tone among the many sound effects in the ad.
The highly automated nature of EAS was demonstrated yet again this week, when a Wisconsin radio station's morning show disc jockeys played a tape of the zombie EAS alert, including the digital tone. The result was--you guessed it--the alert being automatically rebroadcast over at least one local television station whose EAS equipment was activated by the digital EAS tone.
While the automatic nature of EAS creates the risk of false alerts propagating rapidly, at least the false alerts up until now were somewhat self-inflicted wounds, caused by either the system being erroneously activated by a governmental mistake, or by an EAS Participant accidentally airing an activation code contained in third-party content. Because of the closed nature of the system, false activations necessarily required a mistake from a participant in the EAS system, even if that mistake was airing third party content that had not been screened for EAS tones.
This week's episode, however, appears to have been something entirely different. In an effort to expand the types of consumer devices capable of relaying an alert, the backbone of the EAS system was moved not long ago from the closed network model to an Internet-based system. The benefit is that mobile and other devices connected to the Internet will be able to relay alerts to the public automatically, ensuring the broadest possible distribution of the alert. The bad news, however, is that by shifting to an Internet backbone, we have opened the public alert system to the same outside forces that plague every other aspect of the Internet. In this week's case, it appears that someone outside the U.S. spent a number of days trying to use those Internet connections to access station EAS equipment. In at least a few cases, they succeeded, generating the now-infamous zombie alerts.
So the good news is that we are well along in the development of an automated emergency alert system that can spread emergency information to most Americans in a matter of minutes. The bad news is that by putting the system almost entirely under the control of "the machines" (a Terminator term), the moderating effect of human involvement is greatly limited. In addition, by connecting this equipment through the Internet, we have expanded the ubiquity of the system, but at the cost of making every EAS Participant's equipment, whether in Michigan, Montana, or elsewhere, readily accessible to every miscreant in the world with an Internet connection.
Thus, we are perfecting an automated response system that operates most efficiently without human involvement, while creating opportunities for control of that system (or at least portions of it) to fall into the hands of those who do not have our best interests at heart. In other words, Skynet is now a reality. This Skynet does not, thankfully, have the power to initiate nuclear launches, but it certainly does have the capability to launch public panic. A more realistic alert than a zombie attack could cause immense confusion and harm, particularly where the false message is being reinforced by identical EAS alerts on every source of information available, whether it be broadcast, cable, satellite, or smartphone.
I have worked with many of the individuals who created and have dedicated themselves to improving and expanding the current EAS system, and I have no doubt that they are moving quickly to seal off any vulnerabilities discovered in the zombie attacks. Still, I can't help but wonder if EAS is now subject to the same Internet arms race that bedevils online security everywhere, with ever-evolving measures and countermeasures being deployed in an effort to stay one step ahead of those wishing to commandeer the alert system for their own benefit or amusement. If so, the questions becomes: which is worse, false alerts that panic the populace, or a populace that becomes so used to false alerts that they ignore a real one?
February 14, 2013
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 December 31, 2012.
Posted February 12, 2013
With the State of the Union Address occurring tonight, the FCC wasted no time in advising broadcast stations and other EAS Participants to take immediate steps to prevent unauthorized uses of the Emergency Alert System like the fake zombie attack alerts that went out over a few stations in Michigan and Montana yesterday. While federal and state authorities are investigating the source of those hoax alerts, which appear to have come from outside the U.S., the FCC has just released instructions for EAS Participants in hopes of heading off any more false alerts.
The haste with which these instructions have been generated is demonstrated by the fact that they are not even on FCC letterhead, nor formatted for such a release. It is also worth noting that they are not described as "recommendations" or "guidelines", but as actions EAS Participants "must" or "are required" to take. A copy of the FCC release can be found here, but the full text is below:
Urgent Advisory: Immediate actions to be taken regarding CAP EAS device security.
All EAS Participants are required to take immediate action to secure their CAP EAS equipment, including resetting passwords, and ensuring CAP EAS equipment is secured behind properly configured firewalls and other defensive measures. All CAP EAS equipment manufacturer models are included in this advisory.
All Broadcast and Cable EAS Participants are urged to take the following actions immediately
- EAS Participants must change all passwords on their CAP EAS equipment from default factory settings, including administrator and user accounts.
- EAS Participants are also urged to ensure that their firewalls and other solutions are properly configured and up-to-date.
- EAS Participants are further advised to examine their CAP EAS equipment to ensure that no unauthorized alerts or messages have been set (queued) for future transmission.
- If you are unable to reset the default passwords on your equipment, you may consider disconnecting your device's Ethernet connection until those settings have been updated.
- EAS Participants that have questions about securing their equipment should consult their equipment manufacturer.
While the farcical nature of the initial hoax caused more amusement than panic, it is easy to see how a more realistic message could have caused far more damage. Yesterday's events will hopefully be isolated incidents, but we will be seeing a lot more attention focused on the security, as opposed to the reliability, of the EAS system.
Posted February 7, 2013
By John Hane
The engineers who worked heroically to push broadcasting across the digital threshold had barely caught up on their sleep before agitation for more change began to erupt. The National Broadband Plan concluded that the amount of over-the-air viewing doesn't justify the number of broadcast stations, and that the FCC could use incentive auctions to re-pack broadcasting into a smaller band of spectrum. Now incentive auctions are the law. This decade we will likely see more broadcast spectrum repurposed for mobile services and another "transition" as hundreds of broadcasters conform their facilities.
So what's the connection between incentive auctions and talk of a new technical standard? The FCC thinks we need more spectrum for mobile services -- in large part because of rising use of video on mobile devices. But the FCC's rules dictate a broadcast television technical standard that means much of the most popular video -- which is already available free-to-air -- can't be received by mobile devices. The FCC is right that spectrum best suited for mobile services should be useful for mobile services. So why stop with the highest frequency TV channels? If we're going to do all the work of another transition, why not open a path for consumers to access the entire TV band with mobile devices? Many of the same forward-looking broadcasters that championed 8-VSB are working with others on a new standard that incorporates next-generation transmission technologies, as an article in TVNewsCheck reported earlier today. ATSC 3.0 would be easily accessible on mobile devices and provide a much better indoor viewing experience as well. And it will be ready to deploy when incentive auction repacking takes place.
But will every broadcaster want to upgrade at the same time? And what about consumers? FCC rules require all broadcasters to use the same digital standard to ensure universality -- so every television can receive every broadcast signal. But not everybody thinks that's the best policy. Back in the 1990s, the FCC itself debated whether it should select one standard, approve several standards, or simply let the market work things out. It adopted the ATSC standard, but it also asked whether the requirement to use that standard should sunset after a critical mass of deployment was reached.
Nobody wants a television Babel. But what does universal access mean when people increasingly consume their video on-the-move and on devices that we don't think of as televisions? In my home near downtown Bethesda, Maryland, pretty close to many of the region's television towers, I can reliably receive only three stations, even with an attic-mounted antenna. I can't receive any broadcasts on any of my computers, tablets, or other mobile devices.
I love broadcast television, but in my case, it's difficult or impossible to use most of the time. Millions of other Americans either don't use over-the-air television directly, or use it less than they otherwise might, for similar reasons.
February 1, 2013
Full-power AM and FM radio broadcast stations licensed to communities in Texas, and television stations and Class A television stations, as well as LPTV stations capable of local origination, licensed to communities in Indiana, Kentucky or Tennessee, must on this date begin to air their pre-filing renewal announcements in accordance with the FCC's regulations. Additional announcements must air on February 16, March 1 and March 16.
February 1, 2013
Full-power AM and FM radio broadcast stations licensed to communities in Kansas, Nebraska, or Oklahoma, and television stations and Class A television stations, as well as LPTV stations capable of local origination, licensed to communities in Arkansas, Louisiana, or Mississippi, must begin on this date to air their post-filing license renewal announcements in accordance with the FCC's regulations. Additional announcements must air on February 16, March 1, March 16, April 1 and April 16. FM Translator stations licensed to communities in these states must arrange for the required newspaper public notice of their license renewal application filing.
February 1, 2013
Full-power AM and FM radio broadcast stations, as well as FM Translator stations, licensed to communities in Kansas, Nebraska, or Oklahoma, and television stations and Class A television stations, as well as LPTV stations capable of local origination, licensed to communities in Arkansas, Louisiana, or Mississippi, 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 this date, and commercial stations must promptly submit their FCC license renewal application filing fee. FCC Forms 303-S and 396 as filed must be placed in stations' public inspection files.
February 1, 2013
Noncommercial radio stations licensed to communities in Kansas, Nebraska or Oklahoma, and noncommercial television stations licensed to communities in Arkansas, Louisiana, Mississippi, New Jersey or New York (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. FCC Form 323-E does not require a filing fee. The form as filed must be placed in stations' public inspection files.
February 1, 2013
Station employment units that have five or more full-time employees and are comprised of radio and/or television stations licensed to communities in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, or Oklahoma must by this date place in their public inspection file and post on their station website a report regarding station compliance with the FCC's EEO Rule during the period February 1, 2012 through January 31, 2013. A more detailed review of station EEO obligations and the steps for implementing an effective EEO program can be found in our most recent EEO Advisory.
Posted January 31, 2013
Late this afternoon, the FCC released a short Report and Order allowing a limited set of television stations to forego uploading a portion of their paper public inspection files to the FCC's online system by the upcoming Monday, February 4 deadline.
As we previously reported, under FCC rules adopted last year, all full power and Class A television stations had to begin using an online public inspection file hosted on the FCC's website beginning August 2, 2012. In order to comply with the new rules, stations have been required to make sure that all public inspection file documents created beginning on August 2, 2012 have been promptly uploaded to the FCC's online database, except for emails and letters from the public and the political files for stations not affiliated with the ABC, CBS, NBC and Fox networks in the top 50 markets. Documents that were already in stations' public inspection files prior to August 2, 2012 must be uploaded to the new online public file by Monday's deadline.
Under the FCC's public file rule, some categories of documents must remain in the public file until final action has been taken on the station's next license renewal application. Most notable among these documents are all of the station's quarterly filings, such as Quarterly Issues/Programs Lists, Children's Television Programming Reports on Form 398, Certifications of Compliance with Commercial Limits in Children's Programming, and Certifications of Continuing Class A Eligibility. Where action on a station's license renewal application is delayed, many years' worth of documents can pile up in the station's public inspection file waiting for the license renewal grant.
One station in this situation petitioned the FCC to allow it to continue to retain the Quarterly Issues/Programs Lists covering quarters prior to the start of its current eight year license term at the station's main studio, rather than having to upload the voluminous documents to the online public file. The FCC today granted this request and provided the same relief to all other "similarly situated" stations.
Specifically, a station can forego uploading its "prior term" Quarterly Issues/Programs Lists to the FCC's website if (1) the station's license renewal application was not challenged; (2) action on the station's license renewal application is delayed for an enforcement reason other than one relating to issue-responsive programming and the related recordkeeping requirements; and (3) the station retains the prior term Quarterly Issues/Programs Lists at the station's main studio public file until final action on the station's license renewal application. The station must still upload the Quarterly Issues/Programs Lists for its current license term to the online public file.
The FCC stated that this relief was warranted in part because of the burden of uploading these documents. The FCC also cited its policy that stations with a pending license renewal application must still file their next license renewal application when normally due. The FCC felt that the online availability of a station's Quarterly Issues/ Programs Lists from the prior license term could confuse the public regarding what they should review and comment on with regard to the station's performance during the current license term.
What is odd, however, is that this rationale applies equally to other quarterly filings mentioned above that the FCC is still requiring be uploaded to the online public file. As a result, stations should keep in mind that the Order is very limited in scope, and the amount of materials subject to the uploading exemption is only a portion of the documents relating to the prior license term.
Still, to the extent the FCC has provided at least some relief with regard to uploading Quarterly Issues/Programs Lists, stations with a license renewal application from their preceding eight year license term still pending should take the time to determine whether they qualify for this relief.
January 31, 2013
By this date, most commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must submit the Minimum Fee Statement of Account Form and the annual $500 copyright royalty fee to SoundExchange. January 31 is also the date by which certain webcasters and simulcasters are eligible to make elections affecting their royalty rates and reporting requirements for the upcoming year. If your radio broadcast station is simulcast or rebroadcast over the Internet, we encourage you to consult qualified counsel with regard to your obligations.
Posted January 31, 2013
- FCC Assesses $8,000 Fine for EAS Equipment Installation Problems
- Notice of Violation Issued against FM Station for a Variety of Reasons
FCC Proposes Fine for Operational, But Not Fully Functional, EAS Equipment
The FCC has often noted the importance of the national Emergency Alert System ("EAS") while taking enforcement action against broadcast stations whose EAS equipment is not functioning or who otherwise fail to transmit required EAS messages. In a slightly atypical case, the FCC this month issued a Notice of Apparent Liability for Forfeiture and Order ("NAL") for $8,000 against the licensee of an FM radio station in Puerto Rico because, even though the station's EAS equipment was fully operational, the manner of installation made it incapable of broadcasting the required EAS tests automatically.
In April 2012, agents from the FCC's Enforcement Bureau inspected the station's main studio and discovered that the EAS equipment was installed in such a way that it was not able to automatically interrupt programming to transmit an EAS message. Section 11.35 of the FCC's Rules requires that all broadcast stations have EAS equipment that is fully operational so that the monitoring and transmitting functions are available when the station is in operation. The Rules further require that broadcast stations be able to receive EAS messages, interrupt on-air programming, and transmit required EAS messages. When a facility is unattended, automatic systems must be in place to perform these functions. During the inspection, the station's director admitted that the EAS equipment was not capable of transmitting an EAS message without someone manually reducing the on-air programming volume. He further admitted that the equipment had been in this condition since at least September 2011, if not earlier.
The station broadcast programming 24 hours a day, but was only staffed from 6:00 am to 7:00 pm. As a result, when the station was unattended, it could not interrupt programming to transmit EAS messages. The base forfeiture for failing to maintain operational EAS equipment is $8,000, which the FCC thought was appropriate in this case. The FCC also directed the licensee to submit a written statement indicating that the EAS equipment is now fully operational at all times, particularly when unattended, and otherwise in full compliance with the FCC's rules.
FM Station Receives Notice of Violation for an Assortment of Violations
At the end of last month, the FCC issued a Notice of Violation ("NOV") against the licensee of an FM radio station in Texas based upon an October 2012 inspection by an agent from the Enforcement Bureau. The agent concluded that the licensee was violating a number of FCC rules.
Section 73.1350 of the FCC's Rules requires that licensees establish monitoring procedures to ensure that the equipment used by a station complies with FCC rules. Upon inspection, the FCC agents found no records indicating that the licensee had established or implemented such monitoring procedures, and the station's chief engineer had difficulty monitoring the equipment's output when asked to do so by the agent. Sections 73.1870 and 73.3526 also require that a chief operator be designated, that designation be posted with the station's license at the main studio, and a copy of the station's current authorization be kept in the station's public inspection file. At the time of the inspection, the NOV indicated there was no written designation of the chief operator and the station's license renewal authorization was not at the station's main studio.
During the inspection, the agent also found that the FM station's EAS equipment was unable to send and receive tests and was not properly installed to transmit the required weekly and monthly tests. The licensee also did not have any EAS logs documenting the tests sent and received and, if tests were not sent or received, the reasons why those tests were not sent or received, all in violation of Section 11.35 of the FCC's Rules.
Finally, pursuant to Section 73.1560 of the FCC's Rules, if a station operates at reduced power for 10 consecutive days, it must notify the FCC of that fact. Operation at reduced power for more than 30 days requires the licensee to obtain a grant of Special Temporary Authority from the FCC for such operation. In this instance, the FM station had been operating at reduced power for 14 consecutive days, and the FCC found no indication that it had been notified by the licensee of the station's reduced power operations.
As a result of the NOV, the licensee must submit a written response, explaining each alleged violation and providing a description and timeline of any corrective actions the licensee will take to bring its operations into compliance with the FCC's rules. The FCC may elect to assess a fine or take other enforcement action against the station in the future if it ultimately determines the facts call for such a response.
A PDF version of this article can be found at FCC Enforcement Monitor.
Scott Flick and Paul Cicelski of PIllsbury to Speak to Illinois and Wisconsin TV Broadcasters on License Renewal, January 30, 2013
January 30, 2013
Scott Flick and Paul Cicelski of Pillsbury Law will review the FCC's Broadcast License Renewal Process during this Webinar presented by the Illinois Broadcasters Association and Wisonsin Broadcasters Association on January 30, 2013.
Posted January 22, 2013
Being businesses built upon the value of information, and working constantly to create new business models aimed at monetizing that information, the communications industry tends to be very careful about letting any form of information leave the building. That, along with the highly competitive nature of the industry, means many industry players keep a very tight grip on all business-related information. As a result, the communications industry often ranks up there with defense contractors in imposing broad confidentiality restrictions on their employees, either by contract or through general corporate policy.
There are times, however, when the government has determined that public policy considerations outweigh the need of a business for secrecy. The most obvious exceptions come in the form of subpoenas and search warrants. However, there are also more subtle exceptions, one of which is addressed today in a Pillsbury Client Alert from our employment and litigation practices. The Client Alert addresses a number of decisions that have been coming out of the National Labor Relations Board, several of which found that the respective employer's confidentiality policies violated the National Labor Relations Act because the policies could be read to prohibit employees from discussing wages, benefits, or other terms and conditions of employment with anyone else.
Under the National Labor Relations Act, such confidentiality restrictions are illegal, largely because they impede employees from engaging in collective bargaining or other employee protection activities. For those who are about to breath a sigh of relief after thinking to themselves "this doesn't affect me since my business isn't unionized," hold that breath for a moment. As the Client Alert points out, while it is true that the National Labor Relations Act, and the National Labor Relations Board, are known mostly for their union-related jurisdiction, the National Labor Relations Act applies to all private employers that affect interstate commerce, not just union shops.
As the federal government's regulation of much of the communications industry, particularly broadcasting, is based upon the interstate nature of those businesses (even where a station's service area is entirely within a single state), it is safe to say there are few in the communications industry that are not subject to these recent rulings. In fact, while I won't attempt to summarize the Client Alert here, as it is brief and well worth taking the time to read, I will note that one of the decisions discussed involves a player in the communications industry whose confidentiality policy was actually found to be acceptable.
In light of these recent decisions, all businesses should take a look at their confidentiality policies to determine whether they can be read to prohibit, for example, employees from discussing their salaries, raises and bonuses with each other. If the confidentiality policy is written so broadly as to unintentionally prohibit such activities, a rewrite of that policy is in order. In contrast, if the very notion of employees discussing their salaries with each other gives you heartburn, and your confidentiality policy is specifically targeted at preventing such conversations, then you have a more extensive policy rewrite ahead of you, and a lot more heartburn coming.
Posted January 11, 2013
Despite the many distractions of the new year, it's important not to forget that by February 4, 2013, all full-power and Class A television stations must have completed the process of uploading public file materials to the FCC's online public file system.
As we reported in July and August of last year, the FCC's new rules require television stations to replace the public files they maintain at their studios with electronic files hosted online by the FCC. The new rules mean that each station must inventory their current paper public inspection file to determine which documents need to be uploaded to the FCC's website. In order to comply with the new rules, stations must make sure that everything in their current paper public inspection file is uploaded to the FCC's website except political broadcasting files created prior to August 2, 2012, and emails and letters from the public. While the focus has been on shifting the paper files into an online public file database, stations must remember that they will still be required to keep, at a minimum, the emails and letters from the public in the paper public file at each station's main studio, and therefore take steps to ensure that the public will still be able to access that file during normal business hours. In other words, just because most of the file will be online, the procedures for allowing the public to promptly review public file materials that remain at the main studio must remain in place, including the need to ensure that the public can access the file during lunch hours.
Also, keep in mind that ABC, CBS, NBC and Fox affiliates located in the top 50 markets were required to begin placing new political file information online on August 2, 2012. These stations are not required to upload any political file documentation that was placed in the file prior to August 2, but they are required to keep the pre-August 2 materials in their paper public inspection files for two years from the date on which the documents were created. All other TV and Class A stations must continue to maintain their political files at their main studio, unless they voluntarily choose to upload their political files in advance of the July 1, 2014 deadline to do so.
Among the items that stations are required to upload on their own from their paper files to the FCC's online file:
- Citizens Agreements (if any)
- Political Files since August 2, 2012 (top 50/top 4 networks for now)
- Annual EEO Public File Reports
- Responses to FCC inquiries
- Records concerning commercial limits for children's programming
- Quarterly Issues/Programs Lists
- Public Notices of assignment/transfer applications and renewal of license applications
- Carriage elections of must-carry/retransmission consent
- Joint sales agreements or time brokerage agreements
- Non-commercial station donor lists
- Class A statements of continuing eligibility
- Applications and related materials
- Contour maps
- Ownership Reports (FCC Form 323)
- The Public and Broadcasting Manual
- EEO Forms (Forms 396 and 397)
- Investigation materials originated by the FCC
- Children's Programming Reports (FCC Form 398)
January 10, 2013
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 October 1, 2012 through December 31, 2012, and ensure a copy of the form as filed with the FCC is in the station's online public inspection file.
January 10, 2013
Commercial full-power and Class A television stations must place in their online 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 October 1, 2012 through December 31, 2012.
January 10, 2013
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 October 1, 2012 through December 31, 2012.
Posted January 3, 2013
Earlier today, the FCC released a Sixth Further Notice of Proposed Rulemaking relating to its biennial broadcast ownership report filing requirements, reigniting a controversy over privacy, broadcast investment, and indeed, the very purpose of the reports.
In 2009, the FCC revamped its Form 323, the Commercial Broadcast Station Ownership Report, somewhat to address data collection shortcomings identified by the U.S. Government Accounting Office, but mostly to try to make the information more standardized and transparent for academic researchers wishing to generate industry-wide ownership statistics, particularly with regard to minority and female ownership. Unfortunately, the FCC's initial effort to revise the form seemed to have focused on trying to create a form that researchers would applaud, rather than on the "user experience" of those required to fill it out. The result was an awkward effort at forcing complex ownership information into highly redundant machine-readable spreadsheet formats.
Causing particular consternation, however, was a new requirement that every officer, director and shareholder mentioned in those reports have a unique FCC-issued Federal Registration Number (FRN). Because the FCC wants researchers to be able to track the race, ethnicity and gender of each individual connected with a broadcast station, it requires that those registering to obtain an FRN provide either a Taxpayer Identification Number (TIN), or a Social Security Number (SSN). This, according to the FCC, is necessary to allow it to differentiate between individuals that may have similar names and addresses.
Not surprisingly, this requirement met with fierce opposition from numerous groups, including: (1) those who have heard the admonition of government and others to never reveal your SSN to anyone or risk identity theft; (2) broadcasters, who found less than thrilling the experience of badgering their shareholders to either hand over their SSN or take the time to apply for and deliver the FRN themselves; (iii) broadcast lawyers, trying to get ownership reports on file by the deadline despite never hearing back from a significant percentage of those asked to cooperate to provide individual FRNs; and (iv) the investor community, which is not fond of the idea of having to hand over personal information because an individual chose to buy shares of a broadcast company rather than a movie studio.
After fierce opposition and various failed efforts to get the FCC to eliminate the requirement or at least create an alternate method of obtaining an FRN that didn't require an SSN or TIN, the FCC had a change of heart when required by the U.S. Court of Appeals for the DC Circuit to explain itself (you can read Paul Cicelski's discussion of that response here). The FCC defended the new ownership report filing requirements by telling the court that no one would be forced to hand over their SSN or TIN, as it was going to permit broadcasters to apply for a Special Use FRN (SUFRN, one of the most descriptive acronyms you will find) in cases where a party refuses to allow use of its SSN/TIN. In light of this representation, the court declined to intervene, and the FCC proceeded with implementation of the new ownership report form and requirements.
With the availability of SUFRNs and various other changes to the ownership report form and filing system, the FCC was finally able to make the oft-extended filing deadline stick, with commercial broadcasters filing their November 1, 2009 ownership reports by a July 8, 2010 deadline. However, the effort at making the data more accessible for researchers ended up making the form very burdensome for broadcasters required to complete and submit the reports. The biggest issue is structural--requiring the submission of the exact same information over and over in a filing system never lauded for its user-friendliness. During the numerous extensions of the filing deadline, the FCC did incorporate some features like copy and paste to lessen the burden of creating duplicative reports, but no tech feature can overcome the burden created by requiring the filing of the exact same ownership information over and over again for each station in a group rather than just reporting the ownership of that group (once) and the stations that are in it. Because of this, even a relatively small broadcast group can find itself filing well over a hundred ownership report forms.
The irony is that even media researchers--the very group for which this unwieldy reporting system was created--have begun to complain that the sheer volume of filings makes it difficult to sort through the mass of repetitive data. Many communications lawyers seem to agree, finding the "old" ownership reports far more useful in understanding a station's ownership than the current edition.
Still, broadcasters and the FCC seemed to have reached a detente over the reports, with broadcasters quietly grumbling to themselves about the mind-numbing repetitiveness of drafting and filing the reports, but (having seen in the earlier iterations of the "new" report) knowing how much worse it could be. That detente may have ended today when the FCC released the Sixth Further Notice of Proposed Rulemaking, which tentatively concludes that the need to uniquely identify each person connected with a broadcast station is so strong that it must end the availability of SUFRNs and require that all reported individuals get an FRN based upon their SSN or TIN.
While the FCC's conclusions are "tentative", and it requests comment on these and many other questions relating to the ownership report, you can feel the collective chill go down broadcasters' spines as the FCC proceeds to suggest that it could fine individuals who fail to provides an SSN/TIN-based FRN, and queries whether broadcasters should be required to warn their shareholders of that. Telling shareholders or potential shareholders that they face fines for electing to invest their money in broadcasting is not exactly the best way to attract investment to broadcasting, including investment by the minority and female investors the FCC so clearly wants.
But it is that last issue that raises the most curious point of all: to get minority and female ownership information, the FCC seeks to implement an awkward, intrusive, burdensome, privacy-insensitive ownership reporting regime premised on the need for both massive ownership filings and the tracking of individuals by their SSN to determine minority and female ownership trends in the industry. Wouldn't it be far simpler, less intrusive, and less burdensome to just ask broadcasters to provide in their ownership reports (or elsewhere) aggregate data on their minority and female officers, directors, and shareholders? Researchers could then just utilize that data to create industry totals rather than having to wade through mountains of unrelated ownership data to derive it themselves.
Instead of this simplified approach, the FCC seems intent upon using the clumsy mechanism of ownership reports to assess minority and female representation in the industry, stating in the Sixth Further Notice of Proposed Rulemaking that "Unlike many of our filing obligations, the fundamental objective of the biennial Form 323 filing requirement is to track trends in media ownership by individuals with particular racial, ethnic, and gender characteristics." For those of us who have been in the industry for quite some time, that claim is surprising, as the very first sentence of Section 73.3615, the FCC rule that governs the filing of ownership reports, states: "The Ownership Report for Commercial Broadcast Stations (FCC Form 323) must be electronically filed every two years by each licensee of a commercial AM, FM, or TV broadcast station (a "Licensee"); and each entity that holds an interest in the licensee that is attributable for purposes of determining compliance with the Commission's multiple ownership rules."
In attempting to convert a reporting obligation designed to ensure multiple ownership rule compliance into an academic research tool on minority and female broadcast ownership, the FCC undermines both goals. Broadcasters have routinely provided the minority and female ownership data the FCC seeks without fuss, and can hardly be faulted for wishing to do so in a straightforward manner that: (a) doesn't require unnecessarily complex and redundant filings; and (b) doesn't require them to badger their shareholders for private information while threatening their shareholders with federal fines for failing to comply. Rather than "doubling down" on a flawed approach, perhaps it is time for the FCC to step back and reassess the most efficient way of obtaining the desired information--more efficient for broadcasters, more efficient for the FCC, and more efficient for media researchers.