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FCC Grants Petitions for Waiver of Audible Crawl Rule

Posted in Broadcast Regulation

fcc-logoThe Federal Communications Commission (FCC or Commission) issued a Memorandum Opinion and Order granting two Petitions for Waiver of certain provisions of Section 79.2(b)(2)(ii). This rule section requires that emergency information provided visually during non-newscast video programming be made accessible audibly to individuals who are blind or visually impaired through the use of a secondary audio stream (Audible Crawl Rule).

National Association of Broadcaster (NAB) Petition

The Commission granted the request of the NAB for a six-month extension of the deadline for the Audible Crawl Rule. Broadcasters now have until November 30, 2015 to come into compliance with the Audible Crawl Rule requirements. Further, the Commission granted an eighteen-month extension of the requirement to aurally describe visual but non-textual emergency information – such as maps or other graphics. Finally, broadcasters were granted a waiver from the requirement to include school closing information in the audible crawls. NAB committed to working with consumer groups to find a more efficient alternative to communicate school closing information.

American Cable Association (ACA) Petition

The Commission also granted the request of the ACA for waiver of the Audible Crawl Rule for two classes of cable systems. First, hybrid digital/analog systems that lack the equipment to pass through secondary audio streams on their analog service will be allowed to comply with the requirement by providing consumers free set-top boxes. Second, analog-only systems were granted an extension until June 12, 2018 to comply with the secondary audio stream pass-through requirement.

Top 10 Questions Broadcasters Have About the Incentive Auction

Posted in Broadcast Regulation, Spectrum

Top10As David Letterman delivered his final Top Ten list the other night, we got to thinking about compiling a top ten list of our own.  With the Broadcast Television Incentive Auction high on many broadcasters’ minds, we thought that would be a good place to start.  So, in tribute to the late night legend, we present our top ten questions that broadcasters have about the Incentive Auction.

  1. When Do I Need to Decide Whether to Participate in the Auction and When Will the Auction Begin?
  2. How Much is My Station Worth in the Auction?
  3. What is Dynamic Reserve Pricing (DRP)?
  4. How Can I Benefit From the Auction If I Want to Continue Broadcasting?
  5. If the FCC Accepts My Bid, When Will I Get Paid and How Long Will I Have to Vacate My Current Channel?
  6. If I Do Not Participate in the Auction, Will My Station Definitely Be Repacked?
  7. How Long Will My Station Have to Transition to its Post-Auction Channel?
  8. Is There Anything I Can Do Now to Prepare for the Repack?
  9. Will the FCC Cover the Full Extent of My Repacking Costs?
  10. Will There Still Be a Channel for My LPTV or TV Translator Station After the Repack?

Click “continue reading” for the answers.

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The Auction is Coming . . . Make Sure Your Station is Protected

Posted in Broadcast Regulation, Spectrum

prepareAs the Federal Communications Commission continues to move toward an Incentive Auction in early 2016, the Commission is reminding full power and Class A television stations that there are certain actions they should take to make sure their facilities are subject to protection in the repacking process or eligible for relinquishment in the auction.

All stations should pay careful attention to the May 29, 2015 Pre-Auction Licensing Deadline.  Stations with pending construction permits for facilities subject to protection must license (or have a license to cover on file) their permitted facilities by this date for those facilities to be protected in the auction.  Even stations that do not have pending construction permits should carefully review their authorizations to confirm that the Commission’s records properly reflect the stations’ operating parameters.  Any errors should be addressed through a license modification application.  Time is of the essence: the FCC will only protect a modified facility if the modification application is granted and the station has filed its license to cover application by the May 29 deadline.

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FCC Grants Pandora Relief from the Communications Act’s 25% Foreign Ownership Limit, Signals Intent to Consider Revising Broadcast Foreign Ownership Compliance Mechanisms in the Future and Provides Limited Guidance Regarding Compliance in the Meantime

Posted in Broadcast Regulation, Foreign Ownership, Transactions

As we predicted last week, the Federal Communications Commission (FCC or Commission) has acted on the request by Internet streaming music provider Pandora for permission to exceed the 25% benchmark for foreign investment in broadcast licensee parent companies imposed by Section 310(b)(4) of the Communications Act. In the Pandora Ruling, the FCC authorized foreign investors to hold up to an aggregate 49.99% voting and/or equity interest in Pandora Media, the parent company of Pandora Radio, without additional Commission approval, provided that a majority of its Board of Directors remain United States citizens and subject to certain conditions.

The ruling arises in the context of Pandora Radio’s request – first submitted nearly two years ago – for FCC approval of its acquisition of a South Dakota radio station. As we explained previously, Pandora Radio sought to obtain the station in part to qualify for lower copyright performance royalties in connection with its webcasting service. Its application drew opposition from the American Society of Composers, Authors, and Publishers (“ASCAP”), one of the major performance royalty organizations. Among other things, ASCAP contended that Pandora Radio’s application failed adequately to demonstrate compliance with the FCC’s foreign ownership limits.

When Pandora Radio initially submitted its application, the FCC had applied a de facto rule prohibiting investment in broadcast licensee parent companies in excess of 25%. Subsequently, however, the FCC issued a Declaratory Ruling clarifying that it would consider, on a case-by-case basis, requests to exceed the 25% limit in the broadcast context. Pandora Radio thereafter submitted the Petition for Declaratory Ruling that gave rise to the FCC’s recent ruling, which sought permission for Pandora Media to exceed the 25% benchmark under Section 310(b)(4). In its Pandora Ruling, the FCC found that acceptance of Pandora Radio’s proposal would not contravene the public interest, subject to certain conditions the FCC imposed and in the specific situation presented by the proposed acquisition.

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Closed Captioning Quality Control: FCC Establishes Procedures to Report Non-Certifying Video Programmers

Posted in Broadcast Regulation

TV Remote ControlAs part of its efforts to improve the quality of closed captions, the FCC today issued a Public Notice detailing the procedures for video programming distributors (VPDs) – including broadcasters and MVPDs – to submit reports identifying those video program suppliers who do not provide widely-available certifications regarding the quality of the closed captions provided with their programming.

On March 16, 2015, new rules regulating the quality of closed captions went into effect and VPDs were required to make “best efforts” to obtain certifications from each of their video program suppliers (networks, syndicated program providers, etc.) regarding the new quality standards.  These certifications must state either (1) that the programming satisfies the captioning quality standards, (2) that the programmer has adopted and follows the Best Practices for captioning quality (as specified in Section 79.1(k) of the FCC’s rules), or (3) that the programmer is exempt from the closed captioning rules under one or more properly attained exemptions. Continue Reading

June 1, 2015 EEO Deadlines (Including the Return of Form 397 Mid-Term Filings)

Posted in Broadcast Regulation, Employment

Man holding stack of paperwork with hand on calculator with longCertain radio and television stations face an upcoming Federal Communications Commission (FCC or Commission) Equal Employment Opportunity (EEO) annual reporting deadline on Monday, June 1, 2015:

Annual EEO Public File Report

Radio and television station employment units (SEUs) located in Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia with five or more full-time employees must prepare by Monday, June 1, 2015 an annual EEO Public File Report (PFR). The report must be placed in the public inspection file of each station in the SEU. (For full-power and Class A television stations, this means the PFR must be uploaded to the station’s online public inspection file hosted by the FCC.) The PFR must also be posted on the website belonging to each station in the SEU.

The PFR should summarize the SEU’s recruitment activity from June 1, 2014 through May 31, 2015, including full-time positions filled, the recruitment sources used to advertise those job openings, and the total number of interviewees and hires produced by each recruitment source. The PFR must also include a summary of the SEU’s recruitment initiatives.

FCC Form 397 Broadcast Mid-Term Report: New Filing Round Begins

Licensees that have reached the mid-point of their eight-year license term must file a FCC Form 397 Broadcast Mid-Term Report for a substantive review of their recruitment activity. Radio SEUs with 11 or more full-time employees located in the District of Columbia, Maryland, Virginia and West Virginia kick off the Form 397 filing cycle on Monday, June 1, 2015. Radio and television stations in the remainder of the U.S. file the Form 397 on a rolling basis over a four-year period based on the state in which they are licensed on the fourth anniversary of their license renewal application filing deadline. Television stations start one year later than radio, with their Mid-Term Report filing cycle beginning June 1, 2016. (Note: Radio SEUs with ten or fewer full-time employees and television SEUs with four or fewer full-time employees are not required to submit a Form 397.)

The Form 397 requires filers to identify the individual responsible for EEO matters and to submit the SEU’s two most recent PFRs as attachments. Those SEUs with a June 1, 2015 deadline must include PFRs covering June 1, 2013-May 31, 2014 and June 1, 2014-May 31, 2015. Once filed with the FCC, the Form 397 must be placed in the public inspection file of each station in the SEU.

FCC Could Decide Soon Whether Pandora Can Exceed Foreign Ownership Limit

Posted in Broadcast Regulation, Foreign Ownership

world globalizationThe Federal Communications Commission (FCC) is poised to decide whether Internet streaming music provider Pandora can exceed the Commission’s foreign ownership limit in its acquisition of a South Dakota radio station.  As we previously wrote, in June 2014, Pandora filed a Petition for Declaratory Ruling requesting authority to exceed the 25% benchmark for foreign investment in broadcast licensee parent companies imposed by Section 310(b)(4) of the Communications Act.  On April 21, 2015, FCC Chairman Tom Wheeler circulated a declaratory ruling responding to the petition to his fellow commissioners for consideration.

Pandora’s petition stems from its ongoing effort to acquire South Dakota radio station KXMZ(FM), which it believes will allow it to qualify for lower royalties for public performances of musical works in the repertories of the American Society of Composers, Authors, and Publishers (ASCAP) and Broadcast Music, Inc. (BMI) that are made via Pandora’s webcasting service.  Those lower rates are available to the owners of terrestrial radio stations, but not to pure-play webcasters like Pandora.  In response to Pandora’s original assignment application, ASCAP raised questions regarding Pandora’s ability to demonstrate compliance with the FCC’s foreign ownership limits.  After the Commission issued a Declaratory Ruling explaining that it will consider, on a case-by-case basis, requests to exceed the 25% limit in the broadcast context, Pandora filed its petition.

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GAO Finds Elimination of the Broadcast Exclusivity Rules Would Have “Varying Effects”

Posted in Broadcast Regulation, GAO Reports, Program Content

ReportIn a report to Congress released on April 14, 2015, the United States Government Accountability Office (“GAO”) found that the effects of eliminating the FCC’s network non-duplication and syndicated exclusivity rules would “depend on other federal actions and industry response.”  To arrive at this “conclusion,” the GAO reviewed comments filed by industry stakeholders (including numerous broadcasters and MVPDs) in response to the FCC’s 2014 further notice of proposed rulemaking considering elimination or modification of the exclusivity rules; conducted “semi-structured” interviews with the industry stakeholders; and reviewed relevant rules, statutes, and affiliation agreements.

As the GAO recognized, local television stations negotiate with content providers, including national networks and syndicators, for the right to be the exclusive provider of that content in their markets.  The exclusivity rules help protect these contractual rights be requiring the blackout of duplicative programming from other sources.  Thus, the GAO found that if the exclusivity rules were eliminated, local stations “may no longer be the exclusive providers of network and syndicated content in their markets” due to cable providers’ ability to import distant signals.  As a result, stations’ bargaining position in retransmission consent negotiations could be reduced, which could in turn cause stations to agree to lower retransmission consent fees. This potential reduction in revenues could reduce stations’ investments in content, including local news and community-oriented content, and could affect the fees households pay for cable television service. However, “because multiple factors may influence investment in content and fees,” the GAO stated that it could not quantify these effects. Continue Reading

FAA Grounding Commercial UAS on Websites, YouTube

Posted in Broadcast Technology, Online Video

CAMCOP11_med.jpgThe Federal Aviation Administration (FAA) has recently stepped up enforcement efforts against Unmanned Aircraft Systems (UAS) operators engaged in unauthorized “commercial” operations. The FAA’s current regulatory scheme permits hobby and recreational use of UAS but requires commercial UAS users to receive FAA authorization before beginning operations. Two recent regional office enforcement actions against UAS hobbyists (prompted by the content on their respective websites) reaffirms the FAA’s commitment to preventing unapproved UAS operations and signals that the agency may be adopting a broad view of what constitutes “commercial” operation.

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Commission Affirms that its Authority to Enforce Broadcast Indecency Rules Is Alive and Well; Issues First-Ever Maximum Fine for Indecency

Posted in Broadcast Regulation, First Amendment, Indecency, Program Content

On March 23, 2015, the Federal Communications Commission proposed a fine of $325,000 – the maximum amount possible – against the licensee of television station WDBJ in Roanoke, Virginia for airing sexually explicit content during a newscast. According to the Notice of Apparent Liability for Forfeiture, WDBJ aired a video clip that included less than three seconds of footage of “an erect penis being stroked” during a news story about a former adult film star who joined a local volunteer rescue squad. The NAL states that the footage aired during the 6:00 p.m. newscast on July 12, 2012, within a small box. The station did not dispute that the footage aired, but instead explained that its inclusion in the newscast had been wholly inadvertent. The station also argued that the image was not actionably indecent under the Commission’s rules because of its fleeting nature, that the station lacked notice that the Commission would find such material indecent, and that the Commission’s indecency rules are unconstitutional. The Commission rejected each of these arguments.

The Commission’s indecency rules ban the broadcast of obscene material at any time and prohibit radio and television broadcasters from airing indecent material between the hours of 6:00 a.m. and 10:00 p.m. The Commission defines indecent speech as “material that, in context, depicts or describes sexual or excretory organs or activities in terms patently offensive as measured by contemporary community standards for the broadcast medium.” The Commission found that the image broadcast by WDBJ depicted a sexual organ and sexual activity under the first prong of this test. The Commission then turned to the second prong – patent offensiveness – which itself is analyzed using a three-part analysis which considers (1) the explicitness or graphic nature of the material; (2) whether the material is repeated or dwelled upon; and (3) whether it panders, titillates, or shocks. Continue Reading