Articles Posted in Television

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As we all know, it’s easy to complain about the Federal Government these days given the gridlock that currently exists on Capitol Hill, the Sequester, and the looming debt ceiling battle. But let’s give credit where credit is due.

The FCC has revised its Equal Employment Opportunity (EEO) audit letter for all broadcast licensees, and has eased the burden on respondents by eliminating the need to produce copies of each and every job vacancy notice that was sent out to every referral source, allowing stations instead to file only a representative copy of each job opening notice along with a list of the referral sources to which it was sent. In addition, the FCC has changed its audit letter to allow the submission of a single on-air job advertisement log sheet instead of requiring stations to provide multiple log sheets. The letter also states that stations are not required to provide copies of “applicants’ resumes …, company training manuals, posters, employee handbooks, or corporate guidebooks.” While responding to an EEO audit remains a time consuming task, the FCC has at least taken a step in the right direction by better focusing the audit request on the most consequential materials.

The new version of the EEO audit letter was, as required by the FCC’s rules, sent to randomly selected radio and television stations in the past few weeks. The FCC annually audits the EEO programs of approximately five percent of broadcast stations and has released the list of the stations subject to the most recent audit. All stations, whether targeted for this round of audits or not, should carefully review the FCC’s sample audit letter, as it informs stations of what they will need to present when their time comes.

The FCC’s EEO rules require broadcast station employment units with five or more full-time employees to recruit broadly and inclusively for all job openings, and require substantial recordkeeping, periodic reports to the FCC, and the placement of those reports in stations’ public inspection files and on their websites. Broadcasters must also regularly analyze the results of their recruitment efforts to ensure that broad and inclusive outreach is being achieved and must keep detailed records of their recruitment outreach efforts to submit to the FCC in the event of an EEO audit.

For everything you ever wanted to know about ensuring compliance with the FCC’s EEO rules, see our comprehensive and recently updated Client Advisory: “The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters.”

The fact that stations will no longer need to provide multiple ad log sheets or the corporate materials described above will certainly make responding to an audit easier. That said, the FCC’s EEO rules are, and will continue to be, a significant regulatory burden on broadcasters. While broadcasters will not be required to submit as much material to the FCC as part of an EEO audit, they will continue to be required to maintain records extensively detailing their job recruitment efforts. In addition, stations should take note that the FCC’s Public Notice released with the new version of the EEO audit letter seems to indicate that in exchange for the reduced response burdens, the FCC is raising the bar and now expects stations to adopt a standard of “vigorous recruitment.”

Still, despite concerns as to what the FCC means by “vigorous”, it’s nice to see that the FCC is moving in the direction of simplified audits in an effort to actually ease regulatory filing burdens on broadcasters.

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At this stage in the media cycle, few could have missed the news of several Michigan and Montana TV stations airing an EAS alert warning the public of a zombie attack. As I noted earlier this week, while the facts surrounding these alerts are still developing, it appears they were the result of someone outside the U.S. triggering the stations’ EAS equipment via that equipment’s Internet connection. While the resulting burst of media stories quickly devolved into a flurry of zombie jokes, the movie that came to mind as the story developed was not Night of the Living Dead, but the Terminator films, which feature an interconnected national defense network called Skynet. In the films, Skynet becomes so sophisticated as to turn on its creators, causing a nuclear launch that brings destruction to the human race and, after the movie, Arnold Schwarzenegger to the California Governor’s Office.

For many years, the EAS system, as well as its predecessor, the Emergency Broadcast System, operated by having a number of primary broadcast stations connected to governmental agencies through a closed network (typically over telephone lines). When an alert was sent to these primary stations, they would broadcast the alert, which would then be picked up and aired by stations monitoring the signal of the primary station, and in turn, by other stations monitoring those secondary stations. This created a daisy chain in which an announcement over one station quickly spread to stations throughout the alert area.

One of the perceived flaws of the Emergency Broadcast System was the amount of human interaction it required. For example, when a national alert was accidentally triggered in 1971, it caused little disruption, since many station managers intercepted it and did not air it because they heard no corroboration of the emergency over their newswires. While it turned out that those station managers were correct in concluding it was an accidental alert, critics of the Emergency Broadcast System counted this event as a failure of the system, since the delay inherent in station managers deciding whether an alert should be aired (and the risk that they may reach the wrong conclusion) puts more lives in danger.

The shift to EAS from the Emergency Broadcast System was done largely to increase the automation, and therefore the reliability, of the system. That digital squeal you hear accompanying an EAS warning is a digital code instructing other equipment, including the public’s radios (if properly equipped), to activate, lessening the chance that emergency alerts go unheard, either because a link in the daisy chain failed to relay the message, or because the public was not listening to radio or watching TV at the time.

The downside to this level of automation soon became apparent. As I wrote in September of 2010, a radio ad for gas stations sought to satirize emergency alert announcements, right down to including the EAS digital tone. Because EAS equipment has a poor sense of humor and is no judge of context, any station airing the ad would trigger EAS alerts on the stations “downstream” from it in the EAS daisy chain. For this reason, Section §11.45 of the FCC’s Rules provides that “No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS.” Just a few months later, the problem repeated itself when TV ads for the disaster movie Skyline included an EAS tone among the many sound effects in the ad.

The highly automated nature of EAS was demonstrated yet again this week, when a Wisconsin radio station’s morning show disc jockeys played a tape of the zombie EAS alert, including the digital tone. The result was–you guessed it–the alert being automatically rebroadcast over at least one local television station whose EAS equipment was activated by the digital EAS tone.

While the automatic nature of EAS creates the risk of false alerts propagating rapidly, at least the false alerts up until now were somewhat self-inflicted wounds, caused by either the system being erroneously activated by a governmental mistake, or by an EAS Participant accidentally airing an activation code contained in third-party content. Because of the closed nature of the system, false activations necessarily required a mistake from a participant in the EAS system, even if that mistake was airing third party content that had not been screened for EAS tones.

This week’s episode, however, appears to have been something entirely different. In an effort to expand the types of consumer devices capable of relaying an alert, the backbone of the EAS system was moved not long ago from the closed network model to an Internet-based system. The benefit is that mobile and other devices connected to the Internet will be able to relay alerts to the public automatically, ensuring the broadest possible distribution of the alert. The bad news, however, is that by shifting to an Internet backbone, we have opened the public alert system to the same outside forces that plague every other aspect of the Internet. In this week’s case, it appears that someone outside the U.S. spent a number of days trying to use those Internet connections to access station EAS equipment. In at least a few cases, they succeeded, generating the now-infamous zombie alerts.

So the good news is that we are well along in the development of an automated emergency alert system that can spread emergency information to most Americans in a matter of minutes. The bad news is that by putting the system almost entirely under the control of “the machines” (a Terminator term), the moderating effect of human involvement is greatly limited. In addition, by connecting this equipment through the Internet, we have expanded the ubiquity of the system, but at the cost of making every EAS Participant’s equipment, whether in Michigan, Montana, or elsewhere, readily accessible to every miscreant in the world with an Internet connection.

Thus, we are perfecting an automated response system that operates most efficiently without human involvement, while creating opportunities for control of that system (or at least portions of it) to fall into the hands of those who do not have our best interests at heart. In other words, Skynet is now a reality. This Skynet does not, thankfully, have the power to initiate nuclear launches, but it certainly does have the capability to launch public panic. A more realistic alert than a zombie attack could cause immense confusion and harm, particularly where the false message is being reinforced by identical EAS alerts on every source of information available, whether it be broadcast, cable, satellite, or smartphone.

I have worked with many of the individuals who created and have dedicated themselves to improving and expanding the current EAS system, and I have no doubt that they are moving quickly to seal off any vulnerabilities discovered in the zombie attacks. Still, I can’t help but wonder if EAS is now subject to the same Internet arms race that bedevils online security everywhere, with ever-evolving measures and countermeasures being deployed in an effort to stay one step ahead of those wishing to commandeer the alert system for their own benefit or amusement. If so, the questions becomes: which is worse, false alerts that panic the populace, or a populace that becomes so used to false alerts that they ignore a real one?

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With the State of the Union Address occurring tonight, the FCC wasted no time in advising broadcast stations and other EAS Participants to take immediate steps to prevent unauthorized uses of the Emergency Alert System like the fake zombie attack alerts that went out over a few stations in Michigan and Montana yesterday. While federal and state authorities are investigating the source of those hoax alerts, which appear to have come from outside the U.S., the FCC has just released instructions for EAS Participants in hopes of heading off any more false alerts.

The haste with which these instructions have been generated is demonstrated by the fact that they are not even on FCC letterhead, nor formatted for such a release. It is also worth noting that they are not described as “recommendations” or “guidelines”, but as actions EAS Participants “must” or “are required” to take. A copy of the FCC release can be found here, but the full text is below:

Urgent Advisory: Immediate actions to be taken regarding CAP EAS device security.

All EAS Participants are required to take immediate action to secure their CAP EAS equipment, including resetting passwords, and ensuring CAP EAS equipment is secured behind properly configured firewalls and other defensive measures. All CAP EAS equipment manufacturer models are included in this advisory.

All Broadcast and Cable EAS Participants are urged to take the following actions immediately

  1. EAS Participants must change all passwords on their CAP EAS equipment from default factory settings, including administrator and user accounts.
  2. EAS Participants are also urged to ensure that their firewalls and other solutions are properly configured and up-to-date.
  3. EAS Participants are further advised to examine their CAP EAS equipment to ensure that no unauthorized alerts or messages have been set (queued) for future transmission.
  4. If you are unable to reset the default passwords on your equipment, you may consider disconnecting your device’s Ethernet connection until those settings have been updated.
  5. EAS Participants that have questions about securing their equipment should consult their equipment manufacturer.

I’ll have more to say about the zombie apocalypse in the next few days, as I was already writing a post on the subject when the FCC release arrived. However, I wanted to get the FCC’s message out to broadcasters, cable operators, and other EAS Participants quickly, so that they can take action to prevent further hoax alerts, as well as be aware of the seriousness with which the FCC is taking these false alerts. Management should make sure that their staff is on alert for unusual EAS activity, particularly during major events coverage.

While the farcical nature of the initial hoax caused more amusement than panic, it is easy to see how a more realistic message could have caused far more damage. Yesterday’s events will hopefully be isolated incidents, but we will be seeing a lot more attention focused on the security, as opposed to the reliability, of the EAS system.

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The engineers who worked heroically to push broadcasting across the digital threshold had barely caught up on their sleep before agitation for more change began to erupt. The National Broadband Plan concluded that the amount of over-the-air viewing doesn’t justify the number of broadcast stations, and that the FCC could use incentive auctions to re-pack broadcasting into a smaller band of spectrum. Now incentive auctions are the law. This decade we will likely see more broadcast spectrum repurposed for mobile services and another “transition” as hundreds of broadcasters conform their facilities.

So what’s the connection between incentive auctions and talk of a new technical standard? The FCC thinks we need more spectrum for mobile services — in large part because of rising use of video on mobile devices. But the FCC’s rules dictate a broadcast television technical standard that means much of the most popular video — which is already available free-to-air — can’t be received by mobile devices. The FCC is right that spectrum best suited for mobile services should be useful for mobile services. So why stop with the highest frequency TV channels? If we’re going to do all the work of another transition, why not open a path for consumers to access the entire TV band with mobile devices? Many of the same forward-looking broadcasters that championed 8-VSB are working with others on a new standard that incorporates next-generation transmission technologies, as an article in TVNewsCheck reported earlier today. ATSC 3.0 would be easily accessible on mobile devices and provide a much better indoor viewing experience as well. And it will be ready to deploy when incentive auction repacking takes place.

But will every broadcaster want to upgrade at the same time? And what about consumers? FCC rules require all broadcasters to use the same digital standard to ensure universality — so every television can receive every broadcast signal. But not everybody thinks that’s the best policy. Back in the 1990s, the FCC itself debated whether it should select one standard, approve several standards, or simply let the market work things out. It adopted the ATSC standard, but it also asked whether the requirement to use that standard should sunset after a critical mass of deployment was reached.

Nobody wants a television Babel. But what does universal access mean when people increasingly consume their video on-the-move and on devices that we don’t think of as televisions? In my home near downtown Bethesda, Maryland, pretty close to many of the region’s television towers, I can reliably receive only three stations, even with an attic-mounted antenna. I can’t receive any broadcasts on any of my computers, tablets, or other mobile devices.

I love broadcast television, but in my case, it’s difficult or impossible to use most of the time. Millions of other Americans either don’t use over-the-air television directly, or use it less than they otherwise might, for similar reasons.

Continue reading →

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Late this afternoon, the FCC released a short Report and Order allowing a limited set of television stations to forego uploading a portion of their paper public inspection files to the FCC’s online system by the upcoming Monday, February 4 deadline.

As we previously reported, under FCC rules adopted last year, all full power and Class A television stations had to begin using an online public inspection file hosted on the FCC’s website beginning August 2, 2012. In order to comply with the new rules, stations have been required to make sure that all public inspection file documents created beginning on August 2, 2012 have been promptly uploaded to the FCC’s online database, except for emails and letters from the public and the political files for stations not affiliated with the ABC, CBS, NBC and Fox networks in the top 50 markets. Documents that were already in stations’ public inspection files prior to August 2, 2012 must be uploaded to the new online public file by Monday’s deadline.

Under the FCC’s public file rule, some categories of documents must remain in the public file until final action has been taken on the station’s next license renewal application. Most notable among these documents are all of the station’s quarterly filings, such as Quarterly Issues/Programs Lists, Children’s Television Programming Reports on Form 398, Certifications of Compliance with Commercial Limits in Children’s Programming, and Certifications of Continuing Class A Eligibility. Where action on a station’s license renewal application is delayed, many years’ worth of documents can pile up in the station’s public inspection file waiting for the license renewal grant.

One station in this situation petitioned the FCC to allow it to continue to retain the Quarterly Issues/Programs Lists covering quarters prior to the start of its current eight year license term at the station’s main studio, rather than having to upload the voluminous documents to the online public file. The FCC today granted this request and provided the same relief to all other “similarly situated” stations.

Specifically, a station can forego uploading its “prior term” Quarterly Issues/Programs Lists to the FCC’s website if (1) the station’s license renewal application was not challenged; (2) action on the station’s license renewal application is delayed for an enforcement reason other than one relating to issue-responsive programming and the related recordkeeping requirements; and (3) the station retains the prior term Quarterly Issues/Programs Lists at the station’s main studio public file until final action on the station’s license renewal application. The station must still upload the Quarterly Issues/Programs Lists for its current license term to the online public file.

The FCC stated that this relief was warranted in part because of the burden of uploading these documents. The FCC also cited its policy that stations with a pending license renewal application must still file their next license renewal application when normally due. The FCC felt that the online availability of a station’s Quarterly Issues/ Programs Lists from the prior license term could confuse the public regarding what they should review and comment on with regard to the station’s performance during the current license term.

What is odd, however, is that this rationale applies equally to other quarterly filings mentioned above that the FCC is still requiring be uploaded to the online public file. As a result, stations should keep in mind that the Order is very limited in scope, and the amount of materials subject to the uploading exemption is only a portion of the documents relating to the prior license term.

Still, to the extent the FCC has provided at least some relief with regard to uploading Quarterly Issues/Programs Lists, stations with a license renewal application from their preceding eight year license term still pending should take the time to determine whether they qualify for this relief.

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Despite the many distractions of the new year, it’s important not to forget that by February 4, 2013, all full-power and Class A television stations must have completed the process of uploading public file materials to the FCC’s online public file system.

As we reported in July and August of last year, the FCC’s new rules require television stations to replace the public files they maintain at their studios with electronic files hosted online by the FCC. The new rules mean that each station must inventory their current paper public inspection file to determine which documents need to be uploaded to the FCC’s website. In order to comply with the new rules, stations must make sure that everything in their current paper public inspection file is uploaded to the FCC’s website except political broadcasting files created prior to August 2, 2012, and emails and letters from the public. While the focus has been on shifting the paper files into an online public file database, stations must remember that they will still be required to keep, at a minimum, the emails and letters from the public in the paper public file at each station’s main studio, and therefore take steps to ensure that the public will still be able to access that file during normal business hours. In other words, just because most of the file will be online, the procedures for allowing the public to promptly review public file materials that remain at the main studio must remain in place, including the need to ensure that the public can access the file during lunch hours.

Also, keep in mind that ABC, CBS, NBC and Fox affiliates located in the top 50 markets were required to begin placing new political file information online on August 2, 2012. These stations are not required to upload any political file documentation that was placed in the file prior to August 2, but they are required to keep the pre-August 2 materials in their paper public inspection files for two years from the date on which the documents were created. All other TV and Class A stations must continue to maintain their political files at their main studio, unless they voluntarily choose to upload their political files in advance of the July 1, 2014 deadline to do so.

Among the items that stations are required to upload on their own from their paper files to the FCC’s online file:

  • Citizens Agreements (if any)
  • Political Files since August 2, 2012 (top 50/top 4 networks for now)
  • Annual EEO Public File Reports
  • Responses to FCC inquiries
  • Records concerning commercial limits for children’s programming
  • Quarterly Issues/Programs Lists
  • Public Notices of assignment/transfer applications and renewal of license applications
  • Carriage elections of must-carry/retransmission consent
  • Joint sales agreements or time brokerage agreements
  • Non-commercial station donor lists
  • Class A statements of continuing eligibility

There are also a number of other documents that the FCC has indicated it will upload into stations’ online public files. However, it is important that stations diligently check their online public files to ensure they are complete, as the ultimate responsibility for maintaining a complete online public file is the station’s, and not the FCC’s. Items that should be automatically uploaded by the FCC are:

  • Authorizations
  • Applications and related materials
  • Contour maps
  • Ownership Reports (FCC Form 323)
  • The Public and Broadcasting Manual
  • EEO Forms (Forms 396 and 397)
  • Investigation materials originated by the FCC
  • Children’s Programming Reports (FCC Form 398)

Given the sheer size of public inspection files, the uploading process can be very labor intensive, and stations that have not yet commenced that process should immediately turn their attention to it. Stations should also understand that their public inspection files are now open to anyone with an Internet connection, making it for less likely that any omissions will go unnoticed. As recent issues of our monthly FCC Enforcement Monitor indicate, the FCC has not been hesitant to fine even noncommercial stations for public inspection file violations, and we are definitely seeing a trend by the FCC of issuing $15,000 fines rather than the base fine of $10,000. Time to get those page scanners running at top speed.

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Earlier today, the FCC released a Sixth Further Notice of Proposed Rulemaking relating to its biennial broadcast ownership report filing requirements, reigniting a controversy over privacy, broadcast investment, and indeed, the very purpose of the reports.

In 2009, the FCC revamped its Form 323, the Commercial Broadcast Station Ownership Report, somewhat to address data collection shortcomings identified by the U.S. Government Accounting Office, but mostly to try to make the information more standardized and transparent for academic researchers wishing to generate industry-wide ownership statistics, particularly with regard to minority and female ownership. Unfortunately, the FCC’s initial effort to revise the form seemed to have focused on trying to create a form that researchers would applaud, rather than on the “user experience” of those required to fill it out. The result was an awkward effort at forcing complex ownership information into highly redundant machine-readable spreadsheet formats.

Causing particular consternation, however, was a new requirement that every officer, director and shareholder mentioned in those reports have a unique FCC-issued Federal Registration Number (FRN). Because the FCC wants researchers to be able to track the race, ethnicity and gender of each individual connected with a broadcast station, it requires that those registering to obtain an FRN provide either a Taxpayer Identification Number (TIN), or a Social Security Number (SSN). This, according to the FCC, is necessary to allow it to differentiate between individuals that may have similar names and addresses.

Not surprisingly, this requirement met with fierce opposition from numerous groups, including: (1) those who have heard the admonition of government and others to never reveal your SSN to anyone or risk identity theft; (2) broadcasters, who found less than thrilling the experience of badgering their shareholders to either hand over their SSN or take the time to apply for and deliver the FRN themselves; (iii) broadcast lawyers, trying to get ownership reports on file by the deadline despite never hearing back from a significant percentage of those asked to cooperate to provide individual FRNs; and (iv) the investor community, which is not fond of the idea of having to hand over personal information because an individual chose to buy shares of a broadcast company rather than a movie studio.

After fierce opposition and various failed efforts to get the FCC to eliminate the requirement or at least create an alternate method of obtaining an FRN that didn’t require an SSN or TIN, the FCC had a change of heart when required by the U.S. Court of Appeals for the DC Circuit to explain itself (you can read Paul Cicelski’s discussion of that response here). The FCC defended the new ownership report filing requirements by telling the court that no one would be forced to hand over their SSN or TIN, as it was going to permit broadcasters to apply for a Special Use FRN (SUFRN, one of the most descriptive acronyms you will find) in cases where a party refuses to allow use of its SSN/TIN. In light of this representation, the court declined to intervene, and the FCC proceeded with implementation of the new ownership report form and requirements.

With the availability of SUFRNs and various other changes to the ownership report form and filing system, the FCC was finally able to make the oft-extended filing deadline stick, with commercial broadcasters filing their November 1, 2009 ownership reports by a July 8, 2010 deadline. However, the effort at making the data more accessible for researchers ended up making the form very burdensome for broadcasters required to complete and submit the reports. The biggest issue is structural–requiring the submission of the exact same information over and over in a filing system never lauded for its user-friendliness. During the numerous extensions of the filing deadline, the FCC did incorporate some features like copy and paste to lessen the burden of creating duplicative reports, but no tech feature can overcome the burden created by requiring the filing of the exact same ownership information over and over again for each station in a group rather than just reporting the ownership of that group (once) and the stations that are in it. Because of this, even a relatively small broadcast group can find itself filing well over a hundred ownership report forms.

The irony is that even media researchers–the very group for which this unwieldy reporting system was created–have begun to complain that the sheer volume of filings makes it difficult to sort through the mass of repetitive data. Many communications lawyers seem to agree, finding the “old” ownership reports far more useful in understanding a station’s ownership than the current edition.

Still, broadcasters and the FCC seemed to have reached a detente over the reports, with broadcasters quietly grumbling to themselves about the mind-numbing repetitiveness of drafting and filing the reports, but (having seen in the earlier iterations of the “new” report) knowing how much worse it could be. That detente may have ended today when the FCC released the Sixth Further Notice of Proposed Rulemaking, which tentatively concludes that the need to uniquely identify each person connected with a broadcast station is so strong that it must end the availability of SUFRNs and require that all reported individuals get an FRN based upon their SSN or TIN.

While the FCC’s conclusions are “tentative”, and it requests comment on these and many other questions relating to the ownership report, you can feel the collective chill go down broadcasters’ spines as the FCC proceeds to suggest that it could fine individuals who fail to provides an SSN/TIN-based FRN, and queries whether broadcasters should be required to warn their shareholders of that. Telling shareholders or potential shareholders that they face fines for electing to invest their money in broadcasting is not exactly the best way to attract investment to broadcasting, including investment by the minority and female investors the FCC so clearly wants.

But it is that last issue that raises the most curious point of all: to get minority and female ownership information, the FCC seeks to implement an awkward, intrusive, burdensome, privacy-insensitive ownership reporting regime premised on the need for both massive ownership filings and the tracking of individuals by their SSN to determine minority and female ownership trends in the industry. Wouldn’t it be far simpler, less intrusive, and less burdensome to just ask broadcasters to provide in their ownership reports (or elsewhere) aggregate data on their minority and female officers, directors, and shareholders? Researchers could then just utilize that data to create industry totals rather than having to wade through mountains of unrelated ownership data to derive it themselves.

Instead of this simplified approach, the FCC seems intent upon using the clumsy mechanism of ownership reports to assess minority and female representation in the industry, stating in the Sixth Further Notice of Proposed Rulemaking that “Unlike many of our filing obligations, the fundamental objective of the biennial Form 323 filing requirement is to track trends in media ownership by individuals with particular racial, ethnic, and gender characteristics.” For those of us who have been in the industry for quite some time, that claim is surprising, as the very first sentence of Section 73.3615, the FCC rule that governs the filing of ownership reports, states: “The Ownership Report for Commercial Broadcast Stations (FCC Form 323) must be electronically filed every two years by each licensee of a commercial AM, FM, or TV broadcast station (a “Licensee”); and each entity that holds an interest in the licensee that is attributable for purposes of determining compliance with the Commission’s multiple ownership rules.”

In attempting to convert a reporting obligation designed to ensure multiple ownership rule compliance into an academic research tool on minority and female broadcast ownership, the FCC undermines both goals. Broadcasters have routinely provided the minority and female ownership data the FCC seeks without fuss, and can hardly be faulted for wishing to do so in a straightforward manner that: (a) doesn’t require unnecessarily complex and redundant filings; and (b) doesn’t require them to badger their shareholders for private information while threatening their shareholders with federal fines for failing to comply. Rather than “doubling down” on a flawed approach, perhaps it is time for the FCC to step back and reassess the most efficient way of obtaining the desired information–more efficient for broadcasters, more efficient for the FCC, and more efficient for media researchers.

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Today, December 13, 2012, is the effective date of the FCC’s rules implementing the Commercial Advertisement Loudness Mitigation (CALM) Act. As a result, all commercial broadcast television stations and multichannel video program providers (“MVPDs”) must have by today either sought a waiver or installed equipment and undertaken procedures to comply with the Advanced Television Systems Committee (ATSC) A/85: “ATSC Recommended Practice: Techniques for Establishing and Maintaining Audio Loudness for Digital Television,” also known as the RP.

For locally inserted commercials, stations must install and maintain equipment and software that measures the loudness of the content and ensures that the dialnorm metadata value matches the loudness of the content when encoding audio for transmission (try saying that three times fast!). For commercials already embedded in the programming, stations must be able to pass through that CALM-compliant programming without adverse changes.

As long as that benign pass-through is accomplished, stations can rely on appropriate certifications from program suppliers to demonstrate compliance with respect to embedded commercials. If a program supplier does not provide the certification, “large” television stations and “large” and “very large” MVPDs (as defined by the FCC) must conduct annual spot checks of the programming. The first spot checks must be completed one year from today, by December 13, 2013. Details on these compliance requirements can be found in Paul Cicelski’s post on the CALM Act earlier this year. We will also shortly be posting a Pillsbury Advisory on ensuring continuing CALM Act compliance.

As noted above, the FCC created a waiver procedure for stations and MVPDs where compliance would be financially burdensome, allowing them up to a year of additional time to come into compliance. Waiver requests were originally due back in October, but the FCC announced two days ago that it would accept waiver applications from small television stations filed through today. “Small” television stations, that is, those with less than $14 million in revenues in 2011 or that are in markets 150 to 210, were not required to submit highly detailed financial data with their waiver requests, and the FCC indicated that waiver requests would be deemed granted upon filing unless the FCC later advises the applicant otherwise.

In response, more than 125 waiver requests were filed. Earlier this week, the FCC granted two of them, including one from a television station in the midst of a studio move that will include installation of upgraded equipment for CALM Act compliance. Stations that do not have a waiver request on file with the FCC by today need to have the equipment and procedures in place to ensure they are operating in compliance with the CALM Act. That means that stressed television viewers will be having a calmer holiday season, while station and MVPD engineers and managers stress out trying to remain CALM.

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by January 10, 2013, reflecting programming aired during the months of October, November, and December 2012.

Statutory and Regulatory Requirements
As a result of the Children’s Television Act of 1990 (“Act”) 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.

These two obligations, in turn, require broadcasters to comply with two paperwork requirements. Specifically, stations must: (1) place in their online 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 the station has aired for children 16 years of age and younger. Form 398 must be filed electronically with the FCC. The FCC automatically places the electronically filed Form 398 filings into the respective station’s online public inspection file. However, each station should confirm that this has occurred to ensure that its online public inspection file is complete. The base forfeiture for noncompliance with the requirements of the FCC’s Children’s Television Programming Rule is $10,000.

Noncommercial Educational Television Stations
Because noncommercial educational television stations are precluded from airing commercials, the commercial limitation rules do not apply to such stations. Accordingly, noncommercial television stations have no obligation to place commercial limits documentation in their public inspection files. Similarly, though noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and younger, they do not need to complete FCC Form 398. They must, however, maintain records of their own in the event their performance is challenged at license renewal time. In the face of such a challenge, a noncommercial station will be required to have documentation readily available that demonstrates its efforts to meet the needs of children.

A PDF version of this entire article can be found at 2012 Fourth Quarter Children’s Television Programming Documentation.

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by January 10, 2013, reflecting information for the months of October, November, and December 2012.

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.

A PDF version of this entire article can be found at Fourth Quarter Issues/Programs List Advisory for Broadcast Stations.