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Auction Update: Confirm Your Station Coverage and Population Data

Posted in Broadcast Regulation, Spectrum

Auction BlockIn 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.

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D.C. Circuit Upholds FCC Incentive Auction Order, Allowing Auction Process to Continue Forward

Posted in Broadcast Regulation, Spectrum

auction-block-150x140 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.

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FCC Releases Preliminary List of Auction-Eligible Facilities; Asks Stations to Certify Accuracy of Technical Data By July 9, 2015

Posted in Broadcast Regulation, Spectrum

Auction BlockOn 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.

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FCC Media Bureau Allows Pandora to Acquire Radio Station, Approving Pandora’s Plan for Compliance with Waiver of Communications Act’s 25% Foreign Ownership Limit

Posted in Broadcast Regulation, Foreign Ownership, Transactions

Just over a month after the Federal Communications Commission (FCC or Commission) adopted its Declaratory Ruling (Pandora Ruling) allowing Internet streaming music provider Pandora to exceed the Communications Act’s 25% benchmark for foreign investment in broadcast licensee parent companies, the FCC’s Media Bureau granted Pandora’s application to acquire South Dakota radio station KXMZ. The Bureau took this action over the objection of the American Society of Composers, Authors, and Publishers (“ASCAP”), one of the major music performance royalty organizations, which had taken issue with Pandora’s certification of compliance with the foreign ownership limits and its motivations for acquiring the radio station.

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. However, the FCC ordered Pandora to take certain steps to ensure that foreign shareholders do not obtain significant influence over Pandora without prior Commission approval and without giving Pandora the opportunity to take preventative or remedial actions. The FCC also ordered Pandora to submit a compliance plan in connection with its application to acquire KXMZ, outlining the steps it has taken and intends to take to comply with the Pandora Ruling.

As required, Pandora submitted a compliance plan to the FCC, which it later revised. In its revised compliance plan, Pandora committed to engage in the following steps to monitor its foreign ownership levels:

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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