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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. In fact, FCC Enforcement Monitor actually predates the creation of the FCC’s Enforcement Bureau, which came into being just a few months after the first issue was published. This month’s issue includes:

  • FCC Increases Fine to $25,000 for Broadcaster’s Violations Related to Time Brokerage Agreement
  • Upward Adjustment in EAS Portion of Multiple Violation Fine Results in Total Forfeiture of $25,000
  • Noncommercial Broadcaster Fined $7000 for Late-Filed License Renewal Application

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

In September 2009, following a complaint, agents from the Enforcement Bureau’s Tampa Field Office conducted an inspection of a Florida AM station. According to the Notice of Apparent Liability (“NAL”) issued by the FCC, the AM broadcaster failed, for the second time within three years, to maintain the required number of full-time employees at its main studio in violation of Section 73.1125(a) of the FCC’s Rules, and to maintain a complete public inspection file, which violates Section 73.3526 of the FCC’s Rules.

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Along with all of the other activities of the coming holidays, December 1 represents a busy filing deadline for digital television stations and many commercial and non-commercial radio stations, depending upon their location. For those affected, below is a brief summary of the applicable deadlines, as well as links to our recent client alerts and advisories describing the requirements in more detail.

December 1 Noncommercial Ownership Reports

Noncommercial educational radio stations licensed to communities in Colorado, Minnesota, Montana, North Dakota and South Dakota, and noncommercial educational television stations licensed to communities in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont must file their Biennial Ownership Reports by December 1, 2010. For a detailed discussion of the filing requirements, please see our Client Alert here.

December 1 EEO Deadlines

Radio and television stations licensed to communities in: Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota and Vermont have a number of December 1, 2010 deadlines for compliance with the FCC’s EEO Rule. For a detailed discussion of the requirements, please see our Client Advisory here.

December 1 DTV Ancillary/Supplementary Services Report

All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 by December 1, 2010. For a detailed discussion of this requirement, please see our Client Advisory here.

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All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 by December 1, 2010.

The FCC requires all digital television stations to submit FCC Form 317 each year. The report details whether stations provided ancillary or supplemental services at any time during the twelve-month period ending on the preceding September 30. It is important to note that the FCC Form 317 must be submitted regardless of whether stations offered any such services. FCC Form 317 must be filed electronically, absent a waiver, and is due on December 1, 2010.

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

If a DTV station provided ancillary or supplementary services during the 12-month time period ending on September 30, 2010, it must remit to the FCC 5% of the gross revenues derived from the provision of those services. This payment can be forwarded to the FCC’s lockbox at the U.S. Bank in St. Louis, Missouri and must be accompanied by FCC Form 159, the Remittance Advice. Alternatively, the fee can be paid electronically using a credit card on the FCC’s website. The fee amount must also be submitted by the December 1, 2010 due date.

For assistance in preparing and filing FCC Form 317, please contact any of the attorneys in the Communications Practice Section.

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In what has become one of our most popular posts at CommLawCenter, a few months ago I discussed a radio ad that contained an “attention getting” Emergency Alert System tone that was activating broadcast stations’ EAS equipment around the country. The post noted that airing the commercials violated Section 11.45 of the FCC’s Rules (“No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.”).

The earlier post also noted that these ads potentially violated Section 73.1217 of the FCC’s Rules, which is the FCC’s prohibition on airing broadcast hoaxes. These rules are the result of the FCC’s longstanding concern with the airing of material that could cause public panic, dating all the way back to the Orson Welles Halloween broadcast of War of the Worlds in 1938, just four years after the FCC was created by Congress.

Television stations have now joined their radio brethren in unintentionally airing Emergency Alert System tones. The Society of Broadcast Engineers disclosed yesterday that a television ad for the new movie Skyline, which hits theaters tomorrow, began airing earlier this week with an EAS tone repeated six times throughout the length of the spot. A copy of the spot can be found on the SBE website here, with the EAS tones being very audible in the background.

Stations airing such spots put themselves at risk of adverse action by the FCC, particularly for any airings that occur after the station has learned of the issue. However, stations that aired the spot before SBE’s announcement yesterday are not off the hook, as the FCC holds broadcasters liable for the content they air, and normally takes the position that stations should have checked the spots before they aired for problematic content.

While an EAS tone sounds like digital hash to the human ear, it contains a lot of information that is used to trigger the EAS receivers of stations in a “daisy chain” fashion to quickly spread emergency information. In that regard, each signal is like human DNA, containing information that allows you to determine its origin. In this case, the EAS signal being used is a recording of a Pennsylvania statewide monthly test that fails to include the normal “End of Message” tone. As a result, stations whose EAS equipment is activated by another station airing the false tone could suddenly find themselves retransmitting the content of the other station for a couple of minutes after the tone airs.

Unfortunately, because it is generally the broadcast station and not the creator of the ad that will be held liable, advertisers are not always adequately incentivized to make sure their ads comply with FCC regulations. That means it is up to broadcasters to check each and every ad they run for violations of the law, including violations of the FCC’s sponsorship identification rule, the FCC’s rules involving ads in children’s programming, and ads with questionable content, whether it be indecency, defamation, false product claims, or, in this case, false EAS alerts.

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As a record three billion dollar political advertising season comes to a close, broadcasters must remember that the FCC requires many broadcast stations to stay open for business this weekend. Specifically, all radio and television stations that have provided weekend access to any commercial advertiser within the twelve months prior to the election must provide similar access to federal candidates the weekend before the November 2 election date.

A station only needs to offer federal candidates the same kinds of weekend services that it has previously offered to commercial advertisers. This means that if a station has provided weekend access only for deleting copy or canceling spots, as opposed to selling and scheduling new spots, the station is only required to provide those same pre-election weekend services for federal candidates. Stations also need to keep in mind that they cannot discriminate between candidates with regard to providing access.

According to FCC staff, unlike federal candidates, state and local candidates do not have a similar right to weekend access even if the station has provided such access to commercial advertisers.

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The FCC’s Media Bureau released a Public Notice today announcing a freeze on the filing of applications for new digital low power television (“LPTV”) and TV Translator stations, and major modifications to existing analog and digital LPTV and TV Translator stations in “rural areas.”

After the completion of the nationwide transition to digital broadcasting by full-power television stations, the FCC announced that it would permit the filing of applications for new digital LPTV and TV Translator stations on a first-come, first-served basis. The FCC announced the filings would commence in two phases, with the filing of applications in “rural areas” beginning on August 25, 2009, followed by “non-rural areas” on January 25, 2010. The January 25, 2010 filing date for non-rural areas was delayed until July 26, 2010, and then ultimately suspended indefinitely. “Rural” area stations are those with a transmitter site that is farther than 75 miles from the reference coordinates for the 100 largest cities listed in Appendix A of the Media Bureau’s original Public Notice on this matter.

Today’s Public Notice indicates that the FCC will continue to accept and process applications for minor changes to existing facilities, flash-cut applications, digital companion channel applications for existing analog stations, and displacement applications where the applicant can demonstrate actual interference from existing full-power television operations, or from stations still operating on channels 52 to 69.

As the basis for its action, the Media Bureau cited the recommendation in the National Broadband Plan to make an additional 500 MHz of spectrum available for broadband use over the next ten years. The Media Bureau stated that the freeze would allow the FCC “to evaluate its reallocation and repacking proposals and their impact on future licensing of low power television facilities.” The Public Notice goes on to state that, after the FCC has completed its broadband rulemakings, the Media Bureau will determine when LPTV filings can be made again. However, given the number of rulemaking proceedings the National Broadband Plan will generate, it is reasonable to assume that a lifting of the freeze will not occur anytime soon.

For assistance in analyzing a station’s options in light of the Media Bureau’s action, please contact any of the attorneys in the Communications Practice Section.

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In a Public Notice released yesterday, the Consumer & Governmental Affairs Bureau of the FCC established new comment dates to refresh the record on several closed captioning issues first raised in proceedings initiated in 2005 and 2008. Comments are due November 24, 2010, with reply comments due December 9, 2010.

2005 Closed Captioning Notice of Proposed Rulemaking (“2005 NPRM”)

First, the FCC is seeking to refresh the record on several items that were raised in its 2005 NPRM that remain outstanding. Specifically, it is asking for additional comments on whether the FCC should establish “quality” standards for non-technical portions of the captioning rules. Such standards would be aimed at ensuring the accuracy of the captions themselves. In this regard, the FCC would like comments on what the adoption of such standards would cost to programmers and distributors, whether there are enough competent captioners to meet the demand, and whether different captioning quality standards should apply to live and pre-recorded programming.

Second, the FCC seeks to refresh the record regarding the need for new rules that go beyond the current “pass through” rule. The “pass through” rule requires video programming distributors to deliver all programming containing closed captioning with the original closed captioning data intact in a format that can be displayed by decoders meeting the standards of Part 15 of the FCC’s Rules. According to the Public Notice, the FCC is looking for ways to prevent technical problems in the delivery of captions and to remedy technical problems quickly when they do occur.

With respect to violations of the captioning requirements, the FCC seeks comments on whether to establish specific “per violation” forfeiture amounts, and if so, what those amounts should be. The FCC is also seeking comments on whether video programming distributors should be required to file periodic captioning compliance reports.

The 2005 NPRM also discussed the continued use of electronic newsroom technique (ENT), in which the closed captioning text is fed directly from a station’s teleprompter. Because this captioning technique does not provide captions for unscripted segments, the current rule limits its use to stations that are not affiliated with ABC, CBS, NBC, or Fox, or which are located outside the top 25 markets. Nonbroadcast networks serving at least 50% of cable/satellite households are also prohibited from relying on ENT. The FCC is asking whether the use of ENT for captioning should be further restricted by, for example, expanding the prohibition to stations outside the top 25 markets.

The FCC is also seeking comments on whether it should mandate that petitions for exemption from the closed captioning requirements be filed electronically.

2008 Closed Captioning Notice of Proposed Rulemaking (“2008 NPRM”)

With respect to the 2008 NPRM, the FCC is asking for comments to refresh the record on how the captioning exemption for “channels” producing revenues of less than $3 million should apply to digital multicasting. In 2008, the FCC asked whether each programming stream in a multicast signal should constitute a separate “channel,” or whether the broadcaster’s primary and multicast streams should be considered a single channel for purposes of determining whether they exceed the $3 million exemption limit. The FCC wishes to update the record, and is asking for comments on the ramifications of ruling that each multicast stream is a separate channel.

As noted above, comments on these proposals are due November 24, 2010, and reply comments are due December 9, 2010. Please contact any of the lawyers in the Communications Practice Section for assistance in the preparation and filing of comments or reply comments.

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With the Fox-Cablevision carriage dispute grabbing headlines, and the cable and broadcast industries preparing for battle in Congress and at the FCC over retransmission issues, you would be hard pressed to find common ground between these two media players. However, I have seen it, and it is now on file at the FCC.

When FEMA signed off on a technical standard for the next generation of emergency alert technology, known as CAP, a few weeks ago, it activated a 180 day deadline for the government to certify CAP-capable equipment and for media entities to acquire and install that certified equipment. At the time, we wrote that 180 days likely would not be enough time to have equipment based on the new standard manufactured, certified by FEMA (and possibly the FCC), installed, tested, and operational. While no one wants to hinder deployment of this next-generation emergency alert technology, the immense complexity of CAP, which is intended to distribute alerts not just on television and radio, but potentially through cell phones, the Internet, and myriad other communications channels, makes implementation very challenging. There are still a lot of issues to work out, and just as important as deploying the technology is making sure that it will work properly once deployment is complete.

To ensure that happens, and to try to facilitate an orderly rather than rushed deployment of EAS CAP technology, earlier today Dick Zaragoza and Paul Cicelski of our firm filed a request to extend the time period during which media entities must implement the CAP standard. The current deadline for EAS implementation is March 29, 2011. Today’s extension request urges the FCC to extend the implementation period through at least September 30, 2011, and to consider a longer implementation period tied to completion of the FCC’s own potential CAP equipment certification process and/or the FCC’s anticipated proceeding to modify its rules to complete the implementation of CAP.

This is the interesting part. Participating in today’s extension request were 46 of the state broadcasters associations, the National Association of Broadcasters, the National Cable and Telecommunications Association, the Society of Broadcast Engineers, the American Cable Association, the Association for Maximum Service Television, National Public Radio, the Association of Public Television Stations, and the Public Broadcasting Service.

I can’t recall any prior issue inspiring such unanimity among this diverse group of participants, and that should provide an indication of the seriousness with which they view the upcoming task. If implemented successfully, EAS CAP will bring a more ubiquitous and content-rich emergency alert system to the United States. If implemented poorly, vast amounts of time and money will have been expended without significantly improving public safety. Knowing many individuals who have dedicated themselves to making CAP a reality over the past few years, it would be a shame to not see the full benefits of the technology realized.

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By Richard R. Zaragoza

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

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

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

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

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

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

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

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

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

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

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

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

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

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