Articles Posted in

Published on:

By

September 2015

The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by October 10, 2015, reflecting information for the months of July, August, and September 2015.

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

Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations. The lists also provide important support for the certification of Class A station compliance discussed below. We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness. Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during the license term. Stations should include in the Quarterly Lists as much issue-responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs. Taking extra time now to provide a thorough Quarterly List will help reduce risk at license renewal time.

It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their public inspection file. The FCC’s base fine for missing Quarterly Lists is $10,000.

Preparation of the Quarterly List

The Quarterly Lists are required to be placed in the public inspection file by January 10, April 10, July 10, and October 10 of each year. The next Quarterly List is required to be placed in stations’ public inspection files by October 10, 2015, covering the period from July 1, 2015 through September 30, 2015. All TV stations must post their Quarterly Lists to their online public inspection file at https://stations.fcc.gov.

Stations should keep the following in mind:

  • Stations should maintain routine outreach to the community to learn of various groups’ perceptions of community issues, problems, and needs. Stations should document the contacts they make and the information they learn. Letters to the station regarding community issues should be made a part of the station’s database.

Continue reading →

Published on:

By and

September 2015

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 Admonishes TV Station Licensees for Violating Commercial Limits in Children’s Programming
  • Telecommunications Provider Agrees to $1.175 Million Payment to Resolve Investigation of 911 Call Failures
  • Pirate Radio Operator’s Repeated Disregard for the Rules Results in $15,000 Proposed Fine

Continue reading →

Published on:

By

We tend to focus on regulatory and legislative issues here at CommLawCenter, as that is the common ground for many of our media clients.  However, the truth is that—just like our clients—we spend more time working on business issues than regulatory ones.  Whether it’s mergers and acquisitions informed by regulatory rules, program negotiations, or novel business arrangements like channel-sharing agreements, the transactions are driven by business needs, regulatory needs, or both.

Continue reading →

Published on:

By and

[UPDATE:  The FCC just released its Report and Order defining the requirements for stations wishing to meet their contest disclosure obligations by posting their contest rules online.  The revised FCC rule requires a licensee to (i) broadcast the relevant website address periodically with information making it easy for a consumer to find the material contest terms online; (ii) establish a link or tab to material contest terms on the website’s home page; (iii) maintain contest terms online for a minimum of thirty days after the contest ends; and (iv) where applicable, within 24 hours of a material change in contest rules (and periodically thereafter), announce that the material terms have changed and direct participants to the website to see the changes. 

The FCC also noted that the “relevant website” for posting rules should be the station’s or licensee’s website or, if there is no station or licensee website, then any other website that is “designed to be accessible to the public 24/7, for free, and without any registration requirement.”

In the Report and Order, the FCC agreed with commenters that a literal interpretation of the “complete and direct” website announcement requirement would be unduly burdensome for broadcasters and confusing to the public.  It therefore concluded that broadcasters could satisfy the requirement by identifying the relevant address “through simple instructions or natural language (e.g., ‘for contest rules go to kxyz.com and then click on the contest tab’).”

The Report and Order did not, however, shine any light on how frequently a broadcaster must announce the web address.  Instead, the FCC decided that “the public interest would be better served by providing licensees with flexibility to determine the frequency with which they broadcast the website address where contest terms are made available to the public.”  The FCC cautioned, however, that if it finds “that licensees are failing to broadcast the website address with adequate frequency,” the Commission will revisit the issue in the future.]

[EARLIER POST BELOW]

As we wrote last month, the agenda for the FCC’s September open meeting included consideration of its proposal to modernize the 40-year-old broadcast contest rule. Today, after more than three and a half years of (unopposed) anticipation, the FCC adopted rules that “allow broadcasters to disclose contest rules online as an alternative to broadcasting them over the air.”

As the FCC has not released the text of its decision yet, the precise form of disclosure that will be required is not fully known.  However, it appears the FCC did hear the suggestions made by numerous commenters regarding how often a station must air the web address for contest rules. The FCC’s original proposal would have required that the online location of the full contest rules be mentioned every time the contest itself is mentioned.  Numerous parties complained that such an approach would clutter the airwaves with repetitive mentions of the website address where the rules could be found, and would be of little use to a public well-attuned to finding information on the Internet.

Today’s Public Notice hints that less frequent website mentions will be adequate, stating that broadcasters will be required only to “periodically announce over the air the website address where their contest rules can be found.”  Once the text of the rules is released, broadcasters will learn if the FCC has provided any guidance as to how often a “periodic” announcement must run.

Also left open until the text of today’s decision arrives is the issue of whether the FCC will stick with its original proposal that “the complete and direct” website address (e.g., “http://www.WXYZ.com/contest123/rules”) be aired, or if broadcasters will instead be allowed to use a shorter web address, such as the station’s main website, where a link to the contest rules can be found.  In either case, we would expect the FCC will require that a link to the contest rules be featured prominently on a station’s website.

While today’s action still permits broadcast stations to comply with the rules by airing the material terms of a contest on-air, it opens up an additional option that many stations will prefer to use, if for no other reason than to put an end to debates at the FCC about whether what a station aired constituted the “material terms” of a contest’s rules.  That has been a major subject of FCC enforcement decisions related to station-conducted contests, and one that should go away if the station has posted the full contest rules online.  As a result, the main focus of any FCC investigation involving a station contest will likely be limited to whether the station followed its published rules in conducting its contest.  That is a far more objective question, and should eliminate some of the risk that has been inherent in running a station contest for the past 40 years.

Published on:

By and

As we wrote last month, the agenda for the FCC’s September open meeting included consideration of its proposal to modernize the 40-year-old broadcast contest rule. Today, after more than three and a half years of (unopposed) anticipation, the FCC adopted rules that “allow broadcasters to disclose contest rules online as an alternative to broadcasting them over the air.”

Continue reading →

Published on:

By

As we reported here, the FCC released its proposals regarding 2015 regulatory fees last May. As August turned into September, licensees were getting anxious as to when the FCC would get around to issuing an order setting the fees and opening the “Fee Filer” online payment system. That happened today with the release of this Public Notice and this Report and Order and Further Notice of Proposed Rulemaking (note that for the reasons discussed below, these FCC website links will not function correctly until the FCC’s website resumes normal operation on September 8th).

Continue reading →

Published on:

By and

August 2015

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 Again Cracks Down on Wi-Fi Blocking at Conference Centers
  • Licensee Faces $27,000 Fine for Repeatedly Failing to File Kidvid Reports
  • Too Little Too Late: FCC Dismisses as Late (and Meritless) Antenna Structure Owner’s Petition for Reconsideration

Continue reading →

Published on:

By

The FCC today released a tentative meeting agenda for its September 17, 2015 Open Commission Meeting.  The agenda includes consideration of a Report and Order granting broadcasters greater flexibility in making rule disclosures required by the FCC for station-conducted contests.

As we posted here and here, the Commission previously adopted a Notice of Proposed Rulemaking looking to “modernize” its nearly 40-year-old station-conducted contest rule.  The current rule requires broadcasters conducting a contest to “fully and accurately disclose the material terms of the contest” by airing them a “reasonable” number of times.  As readers of our Enforcement Monitor know, differing opinions on what is “material” and “reasonable” have led to numerous FCC enforcement actions, typically resulting in $4,000 fines.

The NPRM proposed to alleviate some of that confusion by allowing broadcasters to post contest rules on any publicly accessible website and then announce the web address on-air in lieu of broadcasting the rules themselves.  In addition to easing the burden on broadcasters, who must often resort to speed reading contest rules on-air to cover all material terms while putting their audiences to sleep in the process, the proposed rule will give audience members the opportunity to review the contest rules at a more leisurely pace and at their convenience on the Internet.

The key question that remains is what the Commission’s Report and Order will say regarding how often a station must air the web address for the contest rules.  The NPRM originally proposed including the contest rule web address with every mention of the contest, which could clutter the airwaves even more than the current rule’s requirement to air all of the material terms a reasonable number of times.  Commenters in the proceeding pushed back, suggesting less frequent website mentions, and asking the FCC to modify its NPRM proposal that each mention include “the complete and direct website address” to instead allow use of a shorter web address (e.g., the station’s main website) where a link to the contest rules can be found.

The Report and Order under consideration has been a long time coming.  The original petition for rulemaking was filed in January of 2012 and encountered no opposition, with all parties seeing the benefit of maximizing the respective strengths of broadcasting and the Internet in conducting a contest.  With the ability to easily post the full contest rules online, station licensees will no longer need to stress over which contest rules are “material”, and audience members will no longer have to be speed readers (or speed listeners) to participate in a station-conducted contest.

Published on:

By

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.

Published on:

By and

July 2015

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:

  • Repetitive Children’s Programming Costs TV Licensee $90,000
  • It’s Nice to Be Asked: FCC Faults Red-Lighted Licensee’s Failure to Request STA
  • FCC Proposes $25,000 Fine for Hogging Shared Frequencies

“Repeat” Offender: Children’s Programming Reports Violations Cost Licensee $90,000

A licensee of several full power and Class A TV stations in Florida and South Carolina paid $90,000 to resolve an FCC investigation into violations of the Children’s Television Act (CTA) threatening to hold up its stations’ license renewal grants.

The CTA, as implemented by Section 73.671 of the FCC’s Rules, requires full power TV licensees to provide sufficient programming designed to serve the educational and informational needs of children, known as “Core programming”, and Section 73.6026 extends this requirement to Class A licensees. The FCC’s license renewal application processing guideline directs Media Bureau staff to approve the CTA portion of any license renewal application where the licensee shows that it has aired an average of 3 hours per week of Core programming. Staff can also approve the CTA portion of a license renewal application where the licensee demonstrates that it has aired a package of different types of educational and informational programming, that, even if less than 3 hours of Core programming per week, shows a level of commitment to educating and informing children equivalent to airing 3 hours per week of Core programming. Applications that do not satisfy the processing guidelines are referred to the full Commission, where the licensee will have a chance to prove its compliance with the CTA.

Among the seven criteria the FCC has established for evaluating whether a program qualifies as Core programming is the requirement that the program be a regularly scheduled program. The FCC has explained that regularly scheduled programming reinforces lessons from episode to episode and “can develop a theme which enhances the impact of the educational and informational message.” With this goal in mind, the FCC has stressed that the CTA intends for regularly scheduled programming to be comprised of different episodes of the same program, not repeats of a single-episode special.

Applying this criteria to each of the licensee’s 2012 and 2013 license renewal applications, the FCC staff questioned whether certain programming listed in the Children’s Television Programming Reports for the stations complied with the episodic program requirement. In particular, the staff looked at single-episode specials that the licensee counted repeatedly for the purpose of demonstrating the number of Core programs aired during each quarter—for example, the licensee listed one single-episode special as being aired 39 times in one quarter. After determining that it could not clear the renewal applications under the FCC’s processing guidelines, the staff referred the matter to the full Commission for review.

The FCC and the licensee subsequently negotiated the terms of a consent decree to resolve the CTA issues raised by the Media Bureau. Under the terms of the consent decree, the licensee agreed to make a $90,000 voluntary contribution to the U.S. Treasury. The licensee also agreed to enact a plan to ensure future compliance with the CTA, to be reflected in each station’s Quarterly Children’s Television Programming Reports. In light of the consent decree and after reviewing the record, the FCC concluded that the licensee had the basic qualifications to be an FCC licensee and ultimately granted each station’s license renewal application.

FCC Clarifies “Red Light” Policy Is a Barrier to Grants, Not a Road Block to Filing Requests

An Indiana radio licensee faces a $15,000 fine for failing to retain all required documentation in its station’s public inspection file and for suspending operation of the station without receiving special temporary authority (STA) to do so.

Continue reading →