Articles Posted in Television

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As we discussed in a previous post and separate Client Advisory, the FCC released a Public Notice to implement a provision of the Satellite Television Extension and Localism Act (STELA) that requires the FCC to submit a report on in-state broadcast programming to Congress by August 11, 2011. The Public Notice was published in the Federal Register yesterday, which means that comments are due by January 24, 2011, with reply comments due by February 22, 2011.

As we discussed previously, the purpose of the FCC’s Report to Congress is to address a concern of some members of Congress that subscribers located in markets that straddle a state line may be unable to receive broadcast news and information from their own state because the local stations made available by cable and satellite providers are all located in the “other” state. According to the FCC, the report will: (1) analyze the number of households in a state that receive the signals of local broadcast stations assigned to a community of license located in a different state; (2) evaluate the extent to which consumers in each local market have access to in-state broadcast programming over-the-air or from a multichannel video programming distributor; and (3) consider whether there are alternatives to DMAs for defining “local” markets that would provide consumers with more in-state broadcast programming.

This proceeding is relevant to retrans because there have been some efforts on Capitol Hill to introduce legislation allowing cable and satellite operators to import the signals of television stations from another market. While the official description of this situation describes these subscribers as being deprived of news and information regarding their own state, the more pragmatic concern of such viewers it is argued is that they aren’t able to watch sports teams from their state as often as they would like. However, creating a legislative opportunity to import distant stations carrying such in-state sports (and other) programming would often mean importing a station that duplicates the network and syndicated programming of a local station already carried by cable systems and satellite providers in the market. Importing stations in this manner raises complex issues with respect to potentially siphoning off the local station’s viewers (and advertisers), undercutting the local station’s program exclusivity, and impacting the local station’s leverage when it commences retransmission consent negotiations.

For those who plan on filing comments or replies, keep in mind that the FCC has specifically asked for data to help it analyze the issues relating to the availability of in-state broadcast stations for consumers, including the proper “methodologies, metrics, data sources, and level of granularity” that should be used in its report to Congress. The FCC is also asking for specific information to identify counties and populations within given states that have limited access to in-state broadcast programming.

As a result of efforts currently underway on the Hill with respect to potentially allowing the importation of in-state but out-of-market signals, those interested in retransmission consent should continue to monitor this matter closely.

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As we discussed in a post back in March, the FCC’s staff had just released its National Broadband Plan, which announced a controversial proposal to reclaim 120 MHz of spectrum from television broadcasters. Yesterday evening, the FCC moved this process forward by issuing a Notice of Proposed Rulemaking to open TV spectrum to use by fixed and mobile wireless facilities, including mobile broadband. We are in the process of preparing a detailed Client Advisory analyzing the FCC’s Notice for publication later today. However, for those that can’t wait, there are a number of big issues raised by the Notice.

First, the FCC proposes to give wireless broadband providers new primary allocations in the broadcast television spectrum. If adopted, this new rule would give fixed and mobile wireless users co-primary status throughout the entirety of the TV spectrum (as opposed to just in the upper-UHF band). Having primary status is important: it means non-primary services have to accept any interference from you, and you don’t have to worry about interference you cause to non-primary services (like low power television stations). If the FCC issues fixed and mobile wireless licenses in the TV band, and gives them co-primary status, then those wireless broadband providers would have the exact same interference protections as full-power TV stations enjoy today. As a result, full-power TV stations would be prevented from modifying their facilities if the modification would cause interference to a newly-licensed wireless operator. Regardless of which licensee was there “first”, co-primary status means that neither service can propose modified facilities if interference would be caused to the existing facilities of the other service.

Second, the FCC proposes to establish a legal framework allowing two or more broadcast stations, potentially including Class A and low power television stations, to voluntarily share a single six-megahertz channel. The Notice proposes to allow parties flexibility to decide for themselves how best to share the six-megahertz channel, and envisions more than two stations potentially sharing the same channel. According to the Notice, two sharing stations could each broadcast one primary HD stream, while more than two stations sharing a six-megahertz channel would each broadcast in Standard Definition (although note that the engineering community has been pretty vocal regarding losses in picture quality caused when two HD signals jockey for room in a single 6MHz channel). The FCC also proposes, regardless of the number of stations sharing a channel, that each of the full-power stations retain must-carry rights on cable and satellite systems for their primary program stream.

Finally, the Notice asks for comment on ways to improve VHF TV reception to increase the attractiveness of the VHF band to digital TV stations. The FCC recognizes that UHF spectrum is much more desirable for flexible digital TV service (as well as for mobile broadband) than VHF spectrum. In an effort to encourage increased use of VHF channels by digital broadcasters, the FCC asks for comment on proposals to increase the performance standards of indoor VHF antennas. The Notice also proposes to make technical changes to the FCC’s VHF service rules, including allowing VHF stations to operate at higher power than the rules currently permit. The FCC is also asking for any other ideas that might improve reception of digital VHF TV signals.

To say that these proceedings represent a big deal for broadcasters and wireless operators understates the meaning of both “big” and “deal”. These proceedings will lay out the framework for how all affected services will develop and interact with each other for the foreseeable future. They also represent the FCC’s continuing shift from dedicating spectrum to specific uses to allowing multiple services to share the same spectrum. While, if done correctly, shared spectrum use can increase spectrum efficiency, the etiquette of that sharing arrangement is a critical component of how the FCC, and the residents of that spectrum, proceed from here.

There is a maxim that “good fences make good neighbors.” In moving toward shared use, the FCC is proposing to tear down the fences separating spectrum users, and each of those users is about to learn more about their neighbors than they ever wanted to know. What rules the FCC adopts to protect each party’s flower bed from being trampled by its neighbors is going to be critically important. Keep a close eye on these proceedings, and on your flower bed.

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Yesterday, a day in advance of the November 24th statutory deadline to adopt rules implementing the Satellite Television Extension and Localism Act, the FCC released a flurry of STELA-related orders. STELA governs the satellite carriage of broadcast stations, and in particular, the importation of distant network stations, in local markets. Because STELA and its predecessor statutes lie at the nexus of communications and copyright law, they represent very complex and arcane matters that often leave even communications lawyers scratching their heads if they aren’t experienced in the area.

For those interested in the details of yesterday’s three Orders and the FCC’s request for additional comments, I recommend taking a look at our Client Advisory on the subject from earlier today. For the rest of the population, suffice it to say that the major impact of these orders for broadcasters is how they affect the ability of satellite operators to import a “significantly viewed” (“SV”) duplicating network signal into portions of a local market, thereby undercutting the local network affiliate’s ratings, ad revenue, and retransmission negotiations.

As detailed in the Client Advisory, of the FCC’s three Orders, one favors satellite operators by making it easier to import distant network stations into a market, while the other two favor broadcasters by limiting the proportion of satellite subscribers in a market that are eligible to sign up to receive a distant network station.

Of particular note is the FCC’s conclusion in one of the Orders that “because SV status generally applies to only some areas in a DMA and not throughout an entire DMA, we find it unlikely that an SV station could permanently substitute for a local in-market station, even in the provision of network programming to the market.” The FCC further stated that “because most viewers want to watch their local stations, we do not think that carriage of only SV stations would satisfy most subscribers for an extended time.”

That is a comforting conclusion for broadcasters, and probably an accurate one. However, it may be cold comfort for the local broadcaster in heated retransmission negotiations where the satellite operator threatens to import a duplicative network station into the market. Because of that, and despite the complexity of the law in this area, television station owners and satellite operators need to acquire a keen understanding of each other’s rights under STELA and the FCC’s related rules, or proceed at their own peril.

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Yesterday, the Federal Communications Commission issued three Orders and a Public Notice designed to implement the new requirements of the Satellite Television Extension and Localism Act (STELA).

The FCC beat by one day the November 24, 2010 statutory deadline for adopting new rules governing several aspects of satellite operators’ carriage of television broadcast signals under STELA. The first of three Orders favors satellite providers by making it easier for them to import the signals of significantly viewed (“SV”) stations from neighboring markets into a station’s local television market. However, the other two Orders favor broadcasters in updating the procedures for subscribers wishing to qualify to receive distant network television stations from their satellite operator. Lastly, the FCC issued a Public Notice seeking comments and data for a required report to Congress regarding the availability of in-state broadcast stations to cable and satellite subscribers located in markets straddling state borders.

Significantly Viewed Stations Order
In this Order, the FCC concluded that, under STELA, a satellite subscriber must generally subscribe to the local-into-local package before it can receive the signal of an out of market station significantly viewed (over-the-air) in that subscriber’s area. Illogically, however, the subscriber does not have to receive the signal of the local affiliate of the same network as the imported SV network station. The subscriber’s receipt by satellite of any local station is all that is needed. The FCC stated that its interpretation means that, where a local affiliate is not carried during negotiation of a retransmission consent agreement, the satellite carrier can provide certain subscribers with network programming from an SV network station in a neighboring market.

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As Scott Flick reported in a previous post, our firm filed a Petition on behalf of an unlikely coalition of broadcast and cable associations and their allies, including 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. The parties joined forces to ask the FCC to extend the deadline for all EAS Participants to acquire and install the equipment necessary to use the Common Alerting Protocol (CAP) standard for Emergency Alert System alerts. The unified effort paid off, as today the FCC released an Order waiving Part 11.56 of its Rules and extending the CAP deadline from March 29, 2011 to September 30, 2011.

Last September 30, FEMA announced the adoption of the CAP v1.2 standard, which triggered a 180-day deadline for implementation. In a post found here, I described CAP and what the CAP compliance deadline requires of EAS Participants.

The extension means that the estimated 25,000 to 30,000 EAS Participants now have more time to acquire the new and sophisticated equipment they need to become CAP-compliant, while giving FEMA more time to certify CAP-compliant EAS equipment. The six-month delay will also allow equipment manufacturers to test their CAP products and to make any changes needed to meet the certification requirements. This process, in turn, will give EAS Participants the certainty they need to make better informed decisions regarding what equipment they should obtain and install to ensure compliance with CAP. Finally, the extension will give all parties, including noncommercial broadcasters, smaller cable systems, and rural broadcasters more time to budget for the purchase of new equipment.

The FCC acknowledged that if it failed to extend the 180-day deadline, it could “lead to an unduly rushed, expensive, and likely incomplete process.”

The Order also leaves open the possibility of extending the CAP deadline beyond September 30, 2011. This is because the FCC will soon be conducting a rulemaking proceeding to incorporate CAP into its Part 11 Rules, and at this point it is unclear what specific Part 11 rule changes will be made as a result of the new CAP standard. According to the FCC, it plans to complete that rulemaking prior to September 30, 2011, but will ask for comments on “whether the extension for CAP acceptance by EAS Participants granted in this waiver order is sufficient, and reserves the right to further extend the date for CAP reception in any new rule we may adopt.” Given that the outcome of the rulemaking proceeding will likely result in a number of significant revisions to the FCC’s EAS Rules, another extension of the deadline is certainly plausible in order to give parties enough time to come into compliance with the new rules.

In other words, stay on alert, as we will definitely be hearing much more about CAP in the near future.

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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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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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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.