On September 17, 2015, the Federal Communications Commission (FCC or Commission) unanimously approved a Report and Order (R&O) modernizing its Contest Rule. As originally promulgated in 1976, the Contest Rule required broadcasters to periodically announce on-air the material terms of a licensee-conducted contest (material terms include how to enter, eligibility restrictions, entry deadline dates, prize information, time and means of winner selection, and tie-breaking procedures). Under the revised Contest Rule, radio and television stations will have the option to disclose material contest terms on any Internet website readily accessible to the public (including the station or licensee’s website), provided that they satisfy certain requirements. Chief among these is a mandate that broadcasters posting material contest terms online also periodically announce the website address where the terms are posted. Stations may continue to broadcast material terms disclosures on-air, but are no longer required to do so. The Commission heralded the change as “another step to modernize [its] rules to reflect how Americans access and consume information in the 21st century,” and stated an intent to “afford broadcasters more flexibility in the manner of their compliance with” the Contest Rule “while giving consumers improved access to important contest information.” Continue Reading
The Federal Communications Commission (FCC or Commission) is seeking comment on whether to update the standards that it considers for determining whether parties have negotiated in good faith for retransmission consent of a broadcast signal. Comments will be due 60 days after publication in the Federal Register; reply comments will be due 30 days later.
Under Section 325(b) of the Communications Act of 1934, as amended, multichannel video programming distributors (MVPDs) may not retransmit the signal of a broadcast station without the broadcaster’s express authority. Meanwhile, the Act imposes a requirement upon both broadcasters and MVPDs to “negotiate in good faith” for retransmission consent. A party can violate this obligation by committing certain enumerated per se breaches of the good faith negotiation requirement or by committing conduct that, in the “totality of the circumstances,” does not constitute negotiating in good faith.
In the 16 years since Congress adopted the good faith negotiation requirement, the FCC has had to resolve just four complaints, dismissing three and finding, in the fourth, that an MVPD violated the “good faith” requirement by carrying a third party’s broadcast signal that duplicated the signal of another without consent during a retransmission consent dispute. Since 2011, the Commission has also had pending a proceeding that, among other things, proposed to provide more guidance to negotiating parties on good faith negotiation requirements. Nevertheless, in the STELA Reauthorization Act of 2014, Congress directed the Commission to “commence a rulemaking to review its totality of the circumstances test for good faith negotiations.”
The resulting Notice of Proposed Rulemaking (NPRM) seeks comment on a number of issues relating to the totality of circumstances test, including whether specific proposals in the record—the majority of which were proposed by MVPD interests—should constitute evidence of bad faith. Although the NPRM’s focus is on the totality of the circumstances test, the FCC also asks whether any of the factors discussed “should be considered additional per se violations,” thereby raising the prospect of revising the entirety of the good faith test.
After the jump, we discuss the specific issues identified in the NPRM. Continue Reading
On August 11, 2015, the Federal Communications Commission (FCC or Commission) released a Public Notice that sets forth the procedures that will govern competitive bidding in Auction 1000, the first-ever incentive auction of broadcast television spectrum. As we mentioned previously, the Procedures PN establishes March 29, 2016 as the “date on which bidding will begin” in the auction, although active bidding rounds actually will begin at a later date. The Commission affirms that the decisions detailed in the Procedures PN implement its overarching objective for the auction: to allow market forces to determine the highest and best use of spectrum. The Procedures PN establishes rules for the following key elements of the auction: (1) Initial Clearing Target Determination Procedure; (2) Opening Prices; (3) Reverse Auction Bidding; (4) Forward Auction Bidding; (5) Assignment Round (Forward Auction); and (6) Final TV Channel Assignments
We have prepared a detailed summary of the Procedures PN. Please contact any of the attorneys listed above, or the attorney who regularly handles your FCC matters, if you are interested in obtaining a copy.
Updated 8/14/2015: We have learned that the initial application to participate in the reverse auction will NOT constitute a binding commitment. This post has been revised to reflect that new information.
One of the most common questions that we have received over the past several weeks is what exactly will happen on March 29, 2016. Several weeks ago, the FCC announced (through the title of the Auction Procedures Public Notice) that the Incentive Auction will “begin” on March 29, 2016. But it has remained a mystery what the Commission meant by “begin” – until now.
According to the Auction Procedures PN, March 29, 2016 “will be the deadline for reverse auction applicants to commit to an initial bid option.” An explanation of the registration process will help put this in context. The process of registering for the reverse auction will include several steps: Continue Reading
In a post last week, we told you that it is Time to Start Thinking About Ownership Reports. Now, commercial broadcasters will have an extra month to think.
On August 6, 2015, the FCC’s Media Bureau adopted an Order extending the deadline for filing biennial ownership reports to December 2, 2015. The Bureau explained that “some licensees and parent entities of multiple stations may be required to file numerous forms, and the extra time is intended to permit adequate time to prepare such filings.”
Although an extension of the filing deadline has become commonplace, many broadcasters will appreciate the advance notice. Now, you can enjoy that extra month of summer before you start to think about ownership reports.
It’s still summer, but it’s never too early for commercial broadcasters to start thinking about Biennial Ownership Reports. Because 2015 is an “odd year,” Ownership Reports will be due on November 2, 2015 (the 1st is a Sunday). (NCE stations are required to file Biennial Ownership Reports every two years on the station’s renewal anniversary date or, with the proper notice to the FCC, on the renewal anniversary date of a commonly owned station.) Broadcasters who have been through Ownership Reports before know that the drafting process is tedious and time consuming. As such, it’s a good idea to start planning early.
Ownership Reports are currently filed in CDBS on FCC form 323. As the FCC continues its transition from CDBS to the new Licensing and Management System (LMS), however, it’s likely 2015 Biennial Ownership Reports will be filed in LMS using form 2100 and a designated schedule. Fortunately (or not) there shouldn’t be any substantive differences between the schedule and form 323. A separate form 323/schedule must be filed for each “level” of a company’s ownership structure (for example, separate 323s/schedules must be filed for the licensee of a TV or radio station, the parent of the licensee, the parent’s parent, etc.). Individuals and entities with an “attributable interest” in the entity for which the form/schedule is filed must be reported. Individuals with an attributable interest must disclose their name, FRN, gender, ethnicity and race. If any attributable individual or entity has an attributable interest in another broadcast station or certain newspapers outside the “ownership chain” for which the Report is filed, that too must be reported.
The Commission has also started to think about Ownership Reports. On July 30, 2015, the Commission announced that it will host an all-day public workshop on Wednesday, September 9, 2015 to “discuss access to, and use of, the FCC’s commercial broadcast ownership data.” The workshop will be targeted at public interest organizations and members of the public interested in mining ownership data. As such, the workshop will address topics such as data that the FCC collects; how members of the public can access those data; and mechanisms for querying, studying, and visualizing the data, including in combination with data available from non-FCC sources. Because much of the content will be technical in nature, the Commission encourages attendees to bring their own laptops. The workshop will be held in the Commission Meeting Room at FCC Headquarters, 445 12th Street, SW, Washington DC, 20554. The workshop will also be broadcast live on the Internet at www.fcc.gov/live.
In a Public Notice released yesterday, the FCC’s Office of Engineering and Technology (OET) announced that the final version of the TVStudy software, which calculates television stations’ coverage areas for use in the Incentive Auction and subsequent repacking, is now available on the Commission’s LEARN website. OET also released a preliminary table showing the baseline coverage area and population served by all full-power and Class A television stations currently eligible for protection in the repacking process and participation in the Incentive Auction, as calculated using this final version of the TVStudy software,.
We emphasize, however, that the list of stations included in the table is not the final list of stations eligible to participate in the auction and receive protection in the post-auction repack. The table just provides the baseline data for those stations that were included in last month’s preliminary list of auction-eligible stations (see our earlier post here), based upon the technical information currently in the FCC’s databases. This technical information is subject to update based on licensees’ Pre-Auction Technical Certifications (Schedule 381), which are due by July 9, 2015. The table may also be updated with any previously omitted stations who are successful in petitioning the FCC for inclusion. Such petitions are also due by July 9.
Marking a win for the Federal Communications Commission (Commission or FCC) in the latest incentive auction battle, on June 12, 2015, the D.C. Circuit sustained the Commission’s Incentive Auction Order and a related Declaratory Ruling. As we explained before, the Order, adopted on May 15, 2014, sets forth the rules of the upcoming reverse and forward auctions, and also lays out the FCC’s repacking plan. The Declaratory Ruling, released September 30, 2014, clarifies the Commission’s approach to repacking. Rejecting the arguments presented by Petitioners—the National Association of Broadcasters (NAB) and Sinclair Broadcast Group, Inc. (Sinclair)—a three-judge panel upheld the Commission’s decisions, allowing the incentive auction process to continue forward.
On Friday afternoon, the Federal Communications Commission (FCC or Commission) released new rules designed to make it easier for broadcast television stations to enter into channel sharing agreements before or after the upcoming broadcast television incentive auction. The Commission also sought comments on how channel sharing agreements should operate outside of the auction context.
In the First Order on Reconsideration, the FCC largely granted a Petition for Reconsideration filed by the Expanding Opportunities for Broadcasters Coalition (EOBC). The Petition asked the Commission to: (1) permit parties to channel sharing agreements to negotiate for common contractual rights, such as puts, calls, options, and rights of first refusal; (2) allow broadcasters to enter into channel sharing agreements before or after the auction; (3) permit parties to channel sharing agreements to define the term of those agreements; and (4) delete rules that would have permitted the FCC to assign replacement channel sharing partners to a station that loses its original partner. In the accompanying Notice of Proposed Rulemaking (NPRM), the Commission seeks comment on whether and how to accommodate channel sharing not directly related to the incentive auction. Continue Reading
On June 9, 2015, the Federal Communications Commission (FCC or Commission) issued a Public Notice identifying a preliminary list of 2,202 full power and Class A television stations that are eligible to participate in the Incentive Auction and receive protection in the post-auction repack. Specifically, the list includes those stations found to be subject to protection in accordance with the Commission’s June 2014 Report and Order.
We say that the list is preliminary for two reasons. First, the Public Notice explains that the list is not intended to pre-judge the outcome of pending petitions for reconsideration of the Report and Order, which could lead to the inclusion of additional stations. Second, any licensee who believes its station was omitted from the list in error may file a “Petition for Eligible Entity Status” by July 9, 2015 explaining why it believes its station is entitled to protection.