Articles Posted in Must-Carry/Retransmission Consent

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

  • New Hampshire Presidential Primary Deepfake Robocalls Lead to Enforcement Action Against Call Originator
  • TV Broadcaster Faces $720,000 Fine for Failure to Negotiate Retransmission Consent in Good Faith
  • Statutory Maximum Penalty of $2,391,097 for Pirate Radio Operator

Telecommunications Company Accused of Originating Illegal Robocalls That Used President Biden’s Voice

A Michigan-based telecommunications company received a Notice of Suspected Illegal Traffic (“Notice”) from the FCC’s Enforcement Bureau accusing it of originating illegal robocall traffic related to the New Hampshire Presidential Primary election.

Two days before voting began in the Primary, New Hampshire residents believed to be potential Democratic voters began receiving calls purportedly from President Joe Biden telling them to “save” their vote for the November general election and not vote in the Primary.  The caller ID information indicated the call came from the spouse of a former state Democratic Party chair who was running a super PAC urging state Democrats to write in President Biden’s name in the Primary.  The call was not authorized by President Biden or his campaign or an authorized committee, nor did it include a legitimate message from the president but instead was a so-called deepfake using the President’s voice.  The caller ID information was spoofed.

Following widespread news reporting of the calls, the FCC investigated the matter together with the New Hampshire Attorney General, the Anti-Robocall Multistate Litigation Task Force and USTelecom’s Industry Traceback Group (“ITG”).  This group determined that the telecommunications company was the originating provider of the robocalls at issue, and the ITG provided identifying call data to the company for the suspect calls.  In response, the company identified another entity as the party that initiated the calls and told the ITG that it had warned the initiating entity as to the illegality of the calls.  According to the Notice, both the company and the apparent initiating entity have been previous subjects of illegal robocall investigations.

It is illegal under federal law to “knowingly transmit misleading or inaccurate caller identification information with the intent to defraud, cause harm, or wrongfully obtain anything of value” and the law requires originating providers to protect their networks by taking “affirmative, effective measures to prevent new and renewing customers from using its network to originate illegal calls, including knowing its customers and exercising due diligence in ensuring that its services are not used to originate illegal traffic.”  Failure by a provider to protect its network can lead to downstream providers permanently blocking all of the upstream provider’s traffic.  In this case, the FCC believed the caller knowingly transmitted misleading and inaccurate caller ID information to deceive and confuse call recipients and apparently intended to harm prospective voters by using the President’s voice to tell them to not participate in the Primary.  The company also signed the calls with A-Level Attestation, an authentication designation that signals to downstream providers that the company has a direct relationship with the customer and that the customer legitimately controls the phone number in the caller ID field.

Transmittal of the Notice triggered several obligations for the company, including that it investigate the illegal traffic identified by the FCC and block or cease accepting all of the illegal traffic within 14 days of the Notice if the company’s investigation determines that it was part of the call chain for the identified traffic or substantially similar traffic.  Failure to respond to the Notice or to comply with additional obligations could result in temporary or permanent blocking of all traffic from the company, removal of the company from the Robocall Mitigation Database, which would cause all intermediate and terminating providers to immediately cease accepting the company’s telephone traffic, and more.  The FCC also issued a Public Notice notifying all U.S.-based voice service providers of the suspected illegal traffic coming from the company and authorizing the providers, at their discretion, to block or cease accepting traffic from the company without liability under the Communications Act of 1934 if the company failed to effectively mitigate the illegal calls. Continue reading →

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With the end of another year soon upon us, we have begun to look forward to the highs, lows, joys, and filings that 2023 has in store.  In accordance with a Pillsbury holiday tradition, earlier this month we published our annual Broadcasters’ Calendar of upcoming regulatory deadlines for broadcasters–a compendium of the currently known deadlines occurring throughout 2023. It’s full of dates and deadlines affecting TV and radio in the coming year, and cross-references some of our other Advisories to help stations meet their regulatory obligations in the year ahead. We hope this Calendar helps guide you into and through the new year.  Happy 2023 to all.

Items of Note in 2023[1]

  1. Commercial and Noncommercial Biennial Ownership Report: December 1, 2023 is the deadline by which all commercial and noncommercial radio and television stations must file their biennial ownership reports. Commercial stations will file FCC Form 2100, Schedule 323, and noncommercial stations will file FCC Form 2100, Schedule 323-E. The filing window opens October 1, 2023, and all ownership reports must reflect information current as of that date.
  2. Applications for Renewal of License: The three-year long state-by-state license renewal cycle ends in April 2023 for stations in the television services (full-power television, Class A television, LPTV, and TV Translator). The three-year renewal cycle for stations in the radio services (AM, FM, FM Translator, and LPFM) ended in April 2022. Stations will file their license renewal applications on FCC Form 2100, Schedule 303-S (“Form 303-S”) along with their Equal Opportunity Employment Reports on Form 2100, Schedule 396 (“Form 396”). The date by which the licensee must file a station’s application for license renewal depends on the state or territory of the station’s community of license. All licensees should familiarize themselves now with the dates associated with this important filing. As noted in previous Calendars, stations are no longer required to air pre-filing announcements during the two months preceding the filing of their license renewal application and instead need only air six post-filing announcements over four consecutive weeks, beginning within five business days after the FCC has “accepted for filing” their license renewal application. Additional information can be found in our License Renewal Advisories published on CommLawCenter prior to each state-by-state application deadline.
  • TV Spectrum Repack Progress Report and Reimbursement Deadlines: Because the 39-month post-auction transition period for full-power and Class A television stations ended in 2020, the post-repack Transition Progress Report (FCC Form 2100, Schedule 387) filing deadlines are not noted in this year’s calendar. However, stations that received an extension of time to complete their transition must continue to file Transition Progress Reports on a quarterly basis until they have ceased operating on their pre-repack channels, completed construction of their post-repack facilities, and reported that information to the FCC. In addition to these quarterly reports, transitioning stations must file Transition Progress Reports ten weeks before the end of their assigned construction deadline, ten days after completion of all work related to constructing their post-repack facilities, and five days after ceasing operations on their pre-auction channel. Throughout 2021 and 2022, all repacked full-power and Class A television stations and FM stations and LPTV/translator stations that sought reimbursement had to submit all invoices and supporting documentation, and initiate interim close-out procedures. The FCC announced in February 2022 that it intends to visit a random sample of Broadcaster Relocation Fund participants to verify the existence and operational status of equipment for which the participant received reimbursement.

January 1

Audio Description Requirements Extend to Nielsen Designated Market Areas 81 to 90—Commercial television stations affiliated with one of the top four broadcast networks and assigned to the Madison, Waco-Temple-Bryan, Harlingen-Weslaco-Brownsville-McAllen, Paducah-Cape Girardeau-Harrisburg, Colorado Springs-Pueblo, Shreveport, Syracuse, Champaign and Springfield-Decatur, Savannah, or Cedar Rapids-Waterloo-Iowa City and Dubuque Nielsen Designated Market Areas must comply with the FCC’s audio description (formerly video description) rules.

January 10

Quarterly Issues/Programs List Due—All full-power radio, full-power television, and Class A television stations must upload to their Public Inspection File by this date the Quarterly Issues/Programs List covering the period October 1, 2022 through December 31, 2022. Continue reading →

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This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider that provided the station’s signal to at least one viewer outside the station’s local service area during 2021.  These stations may be eligible to file royalty claims for compensation with the United States Copyright Royalty Board.  These filings are due by August 1, 2022.

Under the federal Copyright Act, cable systems and satellite operators must pay license royalties to carry distant TV signals on their systems.  Ultimately, the Copyright Royalty Board divides the royalties among those copyright owners who claim shares of the royalty fund.  Stations that do not file claims by August 1, 2022 will not be able to collect royalties for carriage of their signals during 2021.  While claims are typically due July 31, that date falls on a Sunday this year.  Stations will therefore have until the first business day in August to file.

In order to file a cable royalty claim, a television station must have aired locally-produced programming of its own and had its signal carried outside of its local service area by at least one cable system in 2021.  Television stations with locally-produced programming whose signals were delivered to subscribers located outside the station’s Designated Market Area in 2021 by a satellite provider are also eligible to file royalty claims.  A station’s distant signal status should be evaluated and confirmed by communications counsel.

Cable and satellite claim forms can no longer be filed in paper form through mail or courier, and instead must be filed electronically via eCRB, the Copyright Royalty Board’s online filing system. Prior to filing electronically, claimants or their authorized representatives must register for an eCRB account.  First-time electronic filers should register for an account as soon as possible, as there is a multiple day waiting period between initial registration and when a user may submit claims.  Also, because accounts can become locked due to inactivity, filers who already have an eCRB account should confirm that their login credentials still work.

To submit claims, stations are required to supply the name and address of the filer and of the copyright owner, and must provide a general statement as to the nature of the copyrighted work (e.g., local news, sports broadcasts, specials, or other station-produced programming).  Claims must be submitted by 11:59 pm ET on August 1, and claimants should keep copies of all submissions and confirmations of delivery.

Please contact any of the group’s attorneys for assistance in determining whether your station qualifies to make a claim and in filing the claim itself.

A PDF version of this article can be found here.

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October 1, 2020 is the deadline for TV stations to (1) upload to their online Public Inspection Files their must-carry/retransmission consent carriage election statements for the three-year cycle covering January 1, 2021 to December 31, 2023, and (2) notify MVPDs of any changes to their election status.

As we previewed in May, the upcoming October 1 deadline marks the first under the FCC’s new electronic notice system, which replaces the previous requirement that eligible broadcasters mail paper notices to cable and satellite providers regarding carriage elections by October 1 every three years. This year, the FCC’s new procedures simplify this notification process.

Under the new approach, commercial TV stations must place statements electing either must-carry or retransmission consent in their online Public Inspection File by October 1 every third year.  A separate notice to MVPDs is only required when the station wishes to change the status it elected in the prior three-year cycle.  Similar to the obligation imposed on broadcasters (discussed in more detail here), the new rules require cable providers to maintain up-to-date contact information for carriage-related issues in the FCC’s Cable Operations and Licensing System (COALS) database (which the FCC makes available in the online Public Inspection Files of cable providers).  Satellite providers must place such information directly in their online Public Inspection File, making it easier for broadcasters to identify the appropriate contact for election notices.

To that end, stations opting to change their election with respect to any MVPD must send notice of the change to the e-mail address provided by the relevant MVPD, with a copy to the FCC at ElectionNotices@FCC.gov, and attach a copy of the election change notice to the election statement uploaded to the station’s online Public Inspection File.  In response, MVPDs are supposed to confirm receipt of the change notice.  The FCC has said that if broadcasters fail to receive such confirmation, and are unable to reach anyone at the phone number provided by the MVPD, the change notice will still be considered timely if placed in the station’s Public Inspection File, and the proper FCC e-mail address copied, by the October 1 deadline.

Similarly, the FCC simplified the election process for noncommercial educational (“NCE”) stations by eliminating the triennial election notice requirement after October 1, 2020.  As a result, once NCE stations place their election statements requesting carriage in their online Public Inspection File by the October 1, 2020 deadline, no further triennial notices will be required.  While separate carriage notification procedures were adopted for low power television stations and NCE translator stations that qualify for must-carry status, but which do not have a Public Inspection File, the FCC yesterday waived the carriage notice requirement with regard to NCE educational translators.  In doing so, it noted the unique challenges sending such notices would pose for these stations, as they merely rebroadcast rather than originate programming.

For veterans of the cumbersome certified mail approach previously used for many years, the new approach seems almost too easy.  If only that were true of all FCC rule changes.

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With much of the United States under COVID-19 stay-at-home directives, and frost warnings still in the forecast, it’s as good a time as any to review the upcoming cable and satellite carriage election process for television broadcasters. The FCC recently completed an overhaul of its rules governing how eligible television broadcasters provide notice of their carriage elections to cable and satellite companies. The first deadline under those new procedures is July 31, 2020, when broadcasters must update their online contact information at the FCC as a precursor to implementing the FCC’s new paperless MVPD carriage notification procedures.

Continue reading →

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This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider that provided service to at least one viewer outside the station’s local service area during 2017. These stations may be eligible to file royalty claims for compensation with the United States Copyright Royalty Board. These filings are due by July 31, 2018.

Under the federal Copyright Act, cable systems and satellite operators must pay license royalties to carry distant TV signals on their systems. Ultimately, the Copyright Royalty Board divides the royalties among those copyright owners who claim shares of the royalty fund. Stations that do not file claims by the deadline will not be able to collect royalties for carriage of their signals during 2017.

In order to file a cable royalty claim, a television station must have aired locally-produced programming of its own and had its signal carried outside of its local service area by at least one cable system in 2017. Television stations with locally-produced programming whose signals were delivered to subscribers located outside the station’s Designated Market Area in 2017 by a satellite provider are also eligible to file royalty claims. A station’s distant signal status should be evaluated and confirmed by communications counsel.

Both the cable and satellite claim forms may be filed electronically or in paper form. Paper forms may be downloaded from https://www.crb.gov/cable; however, with the recent introduction of the Copyright Royalty Board’s new online filing system, eCRB, claimants are strongly encouraged to file claims online. Prior to filing electronically, claimants or their authorized representatives must register for an eCRB account at https://app.crb.gov. To submit claims, stations are required to supply the name and address for the filer and for the copyright owner, and must provide a general statement as to the nature of the copyrighted work (e.g., local news, sports broadcasts, specials, or other station-produced programming). Claimants should keep copies of all submissions and confirmations of delivery, including certified mail receipts.

Those filing paper forms should be aware that detailed rules as to how the claims must be addressed and delivered apply. Claims that are hand-delivered by a local Washington, D.C. commercial courier must be delivered between 8:30 am and 5:30 pm (those hand-delivered by a private party must arrive by 5:00 pm). Claims may be sent by certified mail if they are properly addressed, postmarked by July 31, 2018, and include sufficient postage. Claims filed via eCRB must be submitted by 11:59 pm (EDT) on July 31. The Copyright Royalty Board will reject any claim filed prior to July 1, 2018 or after the deadline. Overnight delivery services such as Federal Express cannot be used. Stations filing paper claims should verify the proper procedures with communications counsel.

Please contact any of the group’s attorneys for assistance in determining whether your station qualifies to make a claim and in filing the claim itself.

A PDF version of this article can be found here.

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This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider that provided service to at least one viewer outside the station’s local service area during 2016. These stations may be eligible to file royalty claims for compensation with the United States Copyright Royalty Board. These filings are due by July 31, 2017.

Under the federal Copyright Act, cable systems and satellite operators must pay license royalties to carry distant TV signals on their systems. Ultimately, the Copyright Royalty Board divides the royalties among those copyright owners who claim shares of the royalty fund. Stations that do not file claims by the deadline will not be able to collect royalties for carriage of their signals during 2016.

In order to file a cable royalty claim, a television station must have aired locally-produced programming of its own and had its signal carried outside of its local service area by at least one cable system in 2016. Television stations with locally-produced programming whose signals were delivered to subscribers located outside the station’s Designated Market Area in 2016 by a satellite provider are also eligible to file royalty claims. A station’s distant signal status should be evaluated and confirmed by communications counsel.

Both the cable and satellite claim forms may be filed electronically or in paper form. Paper forms may be downloaded from https://www.crb.gov/cable/; however, with the recent introduction of the Copyright Royalty Board’s new online filing system, eCRB, claimants are strongly encouraged to file claims online. Prior to filing electronically, claimants or their authorized representatives must register for an eCRB account at https://app.crb.gov/.To submit claims, stations are required to supply the name and address for the filer and for the copyright owner, and must provide a general statement as to the nature of the copyrighted work (e.g., local news, sports broadcasts, specials, or other station-produced programming). Claimants should keep copies of all submissions and confirmations of delivery, including certified mail receipts.

Those filing paper forms should be aware that detailed rules as to how the claims must be addressed and delivered apply. Claims that are hand-delivered by a local Washington, D.C. commercial courier must be delivered between 8:30 am and 5:30 pm (those hand-delivered by a private party must arrive by 5:00 pm). Claims may be sent by certified mail if they are properly addressed, postmarked by July 31, 2017, and include sufficient postage. Claims filed via eCRB must be submitted by 11:59 pm (EDT) on July 31. The Copyright Royalty Board will reject any claim filed prior to July 1, 2017 or after the deadline. Overnight delivery services such as Federal Express cannot be used. Stations filing paper claims should verify the proper procedures with communications counsel.

Please contact any of the group’s attorneys for assistance in determining whether your station qualifies to make a claim and in filing the claim itself.

A PDF version of this article can be found here.

 

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There is an old vaudeville routine I’ve found more useful for understanding lawmaking in Washington than any textbook.  It goes something like this:

(Scene: a nighttime street corner illuminated by a single streetlight; a short man (Joe) is frantically searching for something near the base of the streetlight when a tall man (Bill) enters from stage left.)

Bill:  Hi Joe.  Did you lose something?

Joe:  I was buying a hot dog at the cart down the street, and when he was giving me my change, I dropped a quarter.

Bill:  Well if you dropped it down the street, why are you looking here?

Joe:  Cause the light’s better here.

When constituents are unhappy, no matter the cause, they make sure their representatives in Congress know it.  In turn, a good politician knows that the worst possible response is to say there really isn’t anything government can do to fix the problem.  So the legislator promises to take immediate action to remedy the constituent’s complaint.  Often, however, the constituent’s issue lacks a governmental solution, or the only solution would create yet worse problems.

As a result, the desire to demonstrate responsiveness leads to legislation that does nothing to actually solve the constituent’s problem, and sometimes makes matters worse.  However, as long as the legislation relates in some way to the subject matter of the complaint, the legislator can claim to have addressed the needs of his or her constituents.  Rather than face the difficult task of explaining the complexities of the issue to constituents, and why the system is working as intended (or at least better than any of the available alternatives), legislators will search for an irrelevant solution where “the light’s better.”

I was reminded of this last week by an exception that proves the rule.  Chairman Wheeler announced the FCC would terminate without further action its congressionally-mandated review of the Commission’s rule requiring that parties to retransmission consent negotiations negotiate in good faith.  Congress had urged the review in response to heavy lobbying from the cable and satellite TV industries for changes to the retransmission consent regime, as well as in response to complaints from viewers frustrated by their pay TV provider’s programming disruptions.  Specifically, Congress directed the FCC to “commence a rulemaking to review its totality of the circumstances test for good faith negotiations under clauses (ii) and (iii) of section 325(b)(3)(C) of the Communications Act of 1934.”

To understand this mandate requires going back to 1999, when Congress passed the Satellite Home Viewer Improvement Act (“SHVIA”).  SHVIA changed copyright law to allow satellite TV systems to retransmit local TV stations, putting satellite TV on an equal competitive footing with cable TV for the first time.  Cable operators had been retransmitting local TV stations for decades, but the lack of a broad compulsory copyright license for satellite providers meant that most subscribers were ineligible to receive broadcast programming via satellite.

Given the monopolistic power of most local cable systems at the time, there was a concern that cable operators would apply pressure on local stations to withhold retransmission rights from satellite providers to preserve cable TV’s continued stranglehold on the programming most desired by pay TV subscribers.  To address this fear, Congress included in SHVIA a provision that would “prohibit a television broadcast station that provides retransmission consent from . . . failing to negotiate in good faith ….”  That the purpose of this requirement was not managing the negotiations themselves, but ensuring that all new entrants, including satellite TV, had an opportunity to negotiate for broadcast programming, was made clear by three associated facts.

First is that good faith negotiation was strangely required of only the broadcaster; the pay TV provider had no such obligation.  This imbalance of rights would have been unthinkable had the purpose of the good faith obligation been to ensure fair negotiations, but it made sense where broadcast programming was in such high demand that requiring pay TV providers to engage in negotiations with local TV stations seemed entirely unnecessary. Continue reading →

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This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider that provided service to at least one viewer outside the station’s local service area during 2015. These stations may be eligible to file royalty claims for compensation with the United States Copyright Royalty Board. These filings are due by August 1, 2016 at 5:00 pm (EDT).

Under the federal Copyright Act, cable systems and satellite operators must pay license royalties to carry distant TV signals on their systems. Ultimately, the Copyright Royalty Board divides the royalties among those copyright owners who claim shares of the royalty fund. Stations that do not file claims by the deadline will not be able to collect royalties for carriage of their signals during 2015.

In order to file a cable royalty claim, a television station must have aired locally-produced programming of its own and had its signal carried outside of its local service area by at least one cable system in 2015. Television stations with locally-produced programming whose signals were delivered to subscribers located outside the station’s Designated Market Area (“DMA”) in 2015 by a satellite provider are also eligible to file royalty claims. A station’s distant signal status should be evaluated and confirmed by communications counsel.

Both the cable and satellite claim forms may be filed electronically or in paper form. Electronic versions of these forms are available online at http://www.loc.gov/crb/claims/. To submit claims, stations are required to supply the name and address for the claimant and the copyright owner, provide a general statement as to the nature of the copyrighted work (e.g., local news, sports broadcasts, specials, or other station-produced programming), and submit at least one example of retransmission as a distant signal. For cable claims, stations will also be required to supply the name of the program, the station’s city and state of license, a date in 2015 when retransmission as a distant signal occurred, and the name and location of a cable system that retransmitted the station to subscribers on a distant signal basis. For each satellite retransmission identified, stations will need to supply the name of the program, the station’s city and state of license, a date in 2015 when retransmission as a distant signal occurred, and the name of a satellite provider that retransmitted the station to subscribers on a distant signal basis. Claimants should keep copies of all submissions and confirmations of delivery, including certified mail receipts.

Claims can also be submitted in paper form. Detailed rules as to how the claims must be addressed and delivered apply. Claims that are hand-delivered by a local Washington, D.C. courier must be filed one hour earlier, by 4:00 pm. Claims may be sent by certified mail if they are properly addressed, postmarked by August 1, 2016, and include sufficient postage. The Copyright Royalty Board will reject any claim filed prior to July 1, 2016 or after the deadline. Overnight delivery services such as Federal Express cannot be used. Stations filing paper claims should verify the proper procedures with communications counsel.

A PDF version of this article can be found here.

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FCC Chairman Wheeler released a blog post today discussing a number of changes and proposed changes to rules impacting TV and radio broadcasters. While his blog contained good news for the radio industry, TV broadcasters are likely to be less pleased.

On the TV side there are two major initiatives. First, the Chairman is proposing to his fellow Commissioners that the FCC adopt an order eliminating what he termed “outdated exclusivity rules”–the FCC’s network non-duplication and syndicated exclusivity rules. These “non-dup” and “syndex” rules, as they are more commonly known, essentially provide a process by which TV broadcasters can efficiently implement the geographic exclusivity they negotiated in their programming agreements without the need for expensive court actions.  The purpose of these rules is to prevent multi-channel video program distributors (MVPDs) from violating that exclusivity by importing the exclusive programming from out-of-market TV stations.

These rules are of particular importance during retransmission negotiations, since without such rules, MVPDs could import, for example, a distant affiliate of the same network (one which obviously did a poor job of negotiating its own retransmission agreement) to violate the local station’s exclusivity.  With the rule change proposed by the Chairman, the local station could no longer quickly and efficiently resolve the problem by filing a complaint at the FCC. Instead, it would need to initiate a long and costly court battle that would inevitably pull in (1) the distant affiliate, and (2) the network whose contract the distant affiliate breached by entering into a retransmission agreement exceeding that affiliate’s geographic right to the network’s programming.

It’s not hard to understand why an MVPD would like blocking the importation of exclusive programming to be a complex, time-consuming, and expensive proposition for a local TV station, but it’s less clear why the federal government would want to create a less efficient process that further clogs up the courts with multi-party litigation.  The obvious answer is that it is not merely a procedural change, but one meant to alter the balance of substantive rights that existed when Congress created the retransmission consent process.

The second major TV-related item is the Chairman’s circulation among his colleagues of a Notice of Proposed Rulemaking (NPRM) to review the process used to determine whether broadcasters and MVPDs are negotiating retransmission consent rights in “good faith”. The purpose of the good faith regulations is to determine whether a party is negotiating with an intent other than that of reaching a deal (e.g., stalling for time).  To implement this requirement, the FCC created a list of bad faith tactics that are prohibited (for example, refusing to show up for negotiations), as well as a “totality of the circumstances” test which seeks to determine whether a party’s conduct as a whole indicates that the party has not made “good faith” efforts to reach a deal.

While only cable systems have been found to have engaged in bad faith negotiations by the FCC, the MVPD industry has long sought to alter the traditional meaning of “good faith” in an effort to limit certain negotiating tactics that have nothing to do with whether a party is intent upon reaching a deal.  Indeed, the focus has been on limiting the negotiation options available to broadcasters, even where, perversely, the result would be longer MVPD program blackouts.

The NPRM proposed by Chairman Wheeler, responding to a congressional directive to examine the matter, will apparently seek to alter the FCC’s approach to determining whether parties are engaging in good faith retransmission consent negotiations. Networks, local TV stations, and MVPDs all will no doubt eagerly await release of this NPRM to determine how the FCC’s proposals are likely to affect negotiating leverage and fees in the retransmission consent world–an odd result given that Chairman Wheeler’s blog post said the reason for eliminating the network non-dup and syndex rules is to “take [the FCC’s] thumb off the scales” in retransmission negotiations.

Call us cynics, but we’ll be surprised if “importing a station into a market where that station has no program rights” joins the list of bad faith negotiating tactics, even though it is the epitome of seeking a way around entering into an agreement with the local broadcaster.

From the broadcast industry’s “glass is half full” perspective, the Chairman’s blog post also indicated that the FCC will soon conclude a nearly four-year effort to update the FCC’s station contest rule.  That rule requires broadcasters to regularly describe the material terms of station contests on-air.  After long consideration, it appears the FCC will allow contest rules to be posted online as an alternative to speed-reading contest rules on-air. We earlier wrote about this proceeding at various stages in FCC Proposes to Clear Airwaves of Boring Contest Rules, But State Law Issues Remain and Bringing the FCC’s Contest Rule Up to Date. This rule change has had broad support, and while applicable to both TV and radio, is of greater practical importance to the radio industry, which tends to run more station contests and doesn’t have the option of airing written rules onscreen.

Finally, following up on his promise before the NAB Show in April, Chairman Wheeler indicated that he will also recommend to his colleagues that the FCC move forward with adopting several proposals in the 2013 AM Revitalization NPRM. This was a hot topic at the NAB Show in Las Vegas earlier this year when the Chairman signaled that the establishment of a window specifically for AM stations to apply for FM translators was essentially off the table, as Scott Flick wrote last April. Most considered an AM-only filing window to be the most practical and effective path to AM revitalization, particularly for AM daytime-only stations.  In fact, the outcry in response to the Chairman’s dismissal of that option appeared to have stalled the AM Revitalization proceeding. While it looks like AM radio broadcasters can expect some relief from the FCC soon, most will be watching to see if an FM translator window for AM stations is part of that relief.  Regardless, today is one of those days where you’d rather be a radio station than a TV station.