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

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

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

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

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

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

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

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

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

  • Radio/Television Cross-Ownership Rule
  • Local Television Ownership Rule, including the Top-Four Station and Eight Voices Tests
  • Local Radio Ownership Rule
  • Dual Network Rule

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

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

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

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

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

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By: Scott R. Flick and Christine A. Reilly

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

Content of the Quarterly List

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

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

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

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By Lauren Lynch Flick and Christine A. Reilly

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

Statutory and Regulatory Requirements

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

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

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

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

Children’s Television Programming Documentation

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

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

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

Quarterly Issues Programs Lists

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

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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:

  • FCC Fines FM Broadcaster an Extra $5,000 For Inaction
  • Inaccurate Tower Ownership Information Ends in $3,000 Fine

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

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

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

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

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

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

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By Glenn S. Richards and Christine A. Reilly

In a series of actions within the last five days, the FCC has focused its enforcement attention on cramming — the unauthorized placement of fees onto a consumer’s monthly phone bill by its own phone provider or an unaffiliated third party. These charges could be for telecommunications products and services but could also be for cosmetics or diet products. At an event in Washington, DC on June 20th, FCC Chairman Julius Genachowski announced the launch of a major new effort to educate consumers about cramming and plans for a proceeding that will empower consumers to better protect themselves from cramming. The FCC estimates that up to 20 million Americans may be victims of cramming each year.

In a series of Notices of Apparent Liability (NAL) released last week, the FCC issued fines between $1.5 and $4.2 million against four telephone service providers for cramming. These charges usually range from $1.99 to $19.99 per month and may go undetected for months. To reinforce its concerns about cramming, the FCC also released an Enforcement Advisory stating that “it has acted on four major investigations involving cramming” which it said is an “unjust and unreasonable” practice under Section 201(b) of the Communications Act. The Advisory also stated that the telecom providers “had apparently engaged in constructive fraudulent activity as part of a plan to place charges on consumers’ phone bills for services that the consumers neither requested nor authorized.”

According to a News Release issued last week, the four telecom providers, all headquartered in Pennsylvania, defrauded consumers by billing them for unauthorized dial-around services (a form of long distance service that allows a customer to use a different carrier than the one presubscribed to the telephone number). According to the News Release, 99.9% of the billing charges levied by the alleged violators were bogus. In one NAL, the FCC stated that one of the telecom providers billed “as many as 18,571 consumers monthly, during which time no more than 22 consumers (or 0.1 percent) ever actually used its service.”

According to the NALs, all four telecom providers employed identical Internet-only solicitation and online enrollment for services utilizing the same billing aggregator. The telecom providers practiced the same method of customer verification, which did not include sending “reply required” confirmation e-mails. When consumers later challenged the monthly charges, the telecom provider stated that as part of its customer verification process, it merely confirmed that the consumer’s name and/or address contained on the online enrollment form matched the telephone number provided on the online enrollment form, or confirmed that the IP address provided on the online enrollment form was within a 100 mile radius of the name, address and telephone number included in the online registration.
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As I wrote back in February, the federal government has decided to conduct the first-ever national test of the Emergency Alert System. Today, FEMA and the FCC announced that the test will occur on November 9, 2011, at 2pm Eastern Standard Time. On that date, the public will hear a message indicating “This is a test,” but FEMA and the FCC indicate that the entire test could last up to three and a half minutes.

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

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

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

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