Articles Tagged with Television

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With much of the United States under COVID-19 stay-at-home directives, and frost warnings still in the forecast, it’s as good a time as any to review the upcoming cable and satellite carriage election process for television broadcasters. The FCC recently completed an overhaul of its rules governing how eligible television broadcasters provide notice of their carriage elections to cable and satellite companies. The first deadline under those new procedures is July 31, 2020, when broadcasters must update their online contact information at the FCC as a precursor to implementing the FCC’s new paperless MVPD carriage notification procedures.

Ever since Congress created the must-carry/retransmission consent regime in the 1992 Cable Act, broadcasters have mailed paper notices to MVPDs regarding their must-carry/retransmission consent elections prior to October 1st of every third year. With regard to satellite distributors, this process has always required stations to send their election notices via certified mail, return receipt requested. While the rules didn’t specifically require this for notices to cable systems, the lack of specificity in the rules regarding cable notices led most broadcasters to use the same procedures as used with satellite providers.

This approach often imposed significant costs on broadcasters, requiring them to: (1) identify the MVPDs serving each of their markets, (2) locate the correct contact person for carriage matters at each MVPD, (3) prepare the election letters, (4) send the letters to that contact person via certified mail, (5) confirm receipt of each letter, and (6) be prepared to move quickly to find new contact information and send new election letters (which still must be received by the October 1 deadline) where the post office returns an election letter as undeliverable.

In 2019, the FCC took the first step to simplify this process and reduce the corresponding costs. Specifically, it adopted rules requiring both television broadcasters and MVPDs to post in their online Public Inspection Files an email address and telephone number for the employee responsible for handling carriage inquiries. In addition, MVPDs must place similar contact information in the FCC’s COALS filing system. The FCC has now directed television stations and MVPDs to complete these tasks by July 31, 2020.

In the FCC’s new paperless notice system, after the contact information has been uploaded, TV stations will have until October 1, 2020 to upload to their online Public Inspection File their carriage elections. This election will cover the next three-year cycle from January 1, 2021 to December 31, 2023.

Because noncommercial stations cannot elect retransmission consent on MVPDs, the FCC found that it could simplify the process for noncommercial stations by eliminating the need for further triennial elections after the October 1, 2020 election notice is placed in the station’s Public Inspection File.

This new “Public File” approach also simplifies the process for commercial TV stations going forward in that they will only have to send a separate notice to an MVPD if the station seeks to change its election for that MVPD from its election for the prior three-year cycle. In such cases, the station must send an email to the MVPD containing certain information with regard to its change in election, and send a “carbon copy” to a newly-created FCC email address for such notifications. The MVPD is then required to acknowledge receipt via email.

The copy sent to the FCC email address is intended to serve as evidence of the station’s effort to provide the required email notice to the MVPD. If the station does not receive the required acknowledgement from the MVPD, it must call the MVPD’s contact telephone number. Where the station retains records demonstrating that it took the above steps, and timely uploaded its election to its online Public File, the FCC will consider the station’s election to be effective.

In adopting these new procedures, the FCC noted that two classes of television broadcast facilities eligible for carriage are not required to maintain online Public Inspection Files: (i) low-power television stations that qualify for must-carry rights, and (ii) qualified educational television translators. Because of this, the FCC adopted rules in March 2020 to implement slightly different election notification requirements for these facilities.

Specifically, eligible low-power television stations and educational television translator stations will be required to email each MVPD by  October 1, 2020 and provide certain “baseline information” regarding their carriage election (or carriage request in the case of NCE translators). Going forward, qualified LPTV stations must only email an MVPD when seeking to change their election for the upcoming three-year cycle. Like full-power commercial TV stations, LPTV stations must send a “carbon copy” to the FCC’s must-carry notification email address, and follow-up with a telephone call to the MVPD if they do not receive a verification of receipt email from the MVPD.

If the MVPD has any questions regarding carriage, it is permitted to rely on the contact information for the station contained in the FCC’s LMS filing system. For that reason, eligible LPTV stations and educational television translators must update their contact information in LMS no later than July 31, 2020, and keep it updated thereafter.

The new rules should reduce the number of broadcasters standing in line at their local post offices in late September, but for this new system to work, broadcasters and MVPDs need to make sure that they update their contact information by July 31st, 2020, and keep it up to date thereafter.

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The FCC announced the opening of a new filing window to modify pending applications proposing new digital Low Power TV and TV translator service in rural areas.  This filing window will permit applicants with long-pending applications who have subsequently been displaced by the Incentive Auction and the repacking process to submit amended proposals, subject to certain conditions.

In June 2009, the FCC announced a filing window for new digital LPTV and TV translator stations to serve rural areas.  The window opened on August 25, 2009, and the plan was for the FCC to permit similar new, non-rural proposals to be filed starting on January 25, 2010.  However, at the same time that the FCC was accepting applications for new rural LPTV and TV translator stations, it was also considering the adoption of the National Broadband Plan, which, inter alia, proposed to re-purpose a portion of the UHF television spectrum.  The FCC first delayed, and then cancelled, the “non-rural” filing window, and imposed a freeze on the filing and processing of the rural proposals.

As a result, there are now a significant number of pending applications for new LPTV and TV translator stations to serve rural areas that have been frozen since 2010.  The new filing window, which will be open between December 2, 2019 and January 31, 2020, will permit applicants to submit amendments that (i) specify a new digital channel in the revised TV band and/or (ii) propose a change in transmitter site of 48 kilometers or less.  The amendments must protect full-power, Class A television and LPTV/translator stations that have been licensed or that hold valid construction permits, along with any previously-filed applications for those services.  Moreover, any amendment must continue to qualify as a rural service proposal.

After the window closes on January 31, 2020, the FCC will provide mutually-exclusive applicants the opportunity to resolve conflicting proposals through settlement or engineering amendments.  If an engineering conflict cannot be resolved, the FCC will conduct an auction.  The FCC will dismiss all pending applications that do not submit an in-core amendment during the filing window.

Given the holiday season and the short turnaround on filing amendments, applicants with long-pending applications should move quickly to find a new channel and/or tower site that will permit the FCC to process their application.

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At its July 2019 Open Meeting this week, the FCC voted to make several changes to its Children’s Television Programming rules.  It released its final Order adopting the changes this afternoon.  Although characterized by Commissioner O’Rielly as “modest” changes, the revised rules are likely to alter television broadcasters’ compliance efforts in several significant respects, including the time at which the programming is aired, the type of programming that qualifies as educational, and how a broadcaster demonstrates compliance with the revised rules.

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