Reminder: Must Carry/Retrans Election Notices Due October 1

Posted in Broadcast Regulation, MVPD Regulation

Broadcasters have less than three weeks to send election notices to cable and DBS operators.  The election notices inform those operators of a broadcaster’s choice between must carry and retransmission consent and cover the January 1, 2015 through December 31, 2017 cycle.

Note that a commercial station that fails to send an election notice to a cable operator defaults to must carry status while failure to send an election notice to a DBS operator defaults the station to retransmission consent.

October 1 EEO Deadlines Fast Approaching

Posted in Broadcast Regulation, Employment

A reminder that certain radio and television stations face upcoming FCC EEO reporting deadlines.

Annual EEO Public File Report
Radio and television station employment units (SEUs) located in the Virgin Islands, Florida, Puerto Rico, Iowa, Missouri, Alaska, Guam, Hawaii, Oregon, Samoa, and Washington with five or more full-time employees must prepare by Wednesday, October 1, 2014 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 October 1, 2013 through September 30, 2014, 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.

Certain broadcast license renewal applications are due on October 1, 2014.  The license renewal process includes the filing of an FCC Form 396 Broadcast EEO Program Report, as described below:

FCC Form 396 Broadcast EEO Program Report
Television stations in Alaska, Guam, Hawaii, Oregon, Samoa, and Washington must apply for license renewal on or before October 1, 2014.  A critical component of the Commission’s license renewal process is the Form 396 Broadcast EEO Program Report, which must be submitted to the FCC, electronically, prior to the filing of the Form 303-S Application for Renewal of Broadcast Station License.  The Form 396 requires applicants to report discrimination complaints and, for SEUs with five or more full-time employees, to submit PFRs for 2013 (covering October 1, 2012-September 30, 2013) and 2014 (covering October 1, 2013-September 30, 2014).

Once filed with the FCC, the Form 396 must be placed in the public inspection file of each station in the SEU.  For full-power and Class A television stations, the FCC will automatically place the electronically filed Form 396 in the station’s online public inspection file.  Stations should check their online public files to make sure the Form 396 is there.


What Broadcasters Don’t Know About Political Advertisers Can’t Hurt Them (At Least With the FCC)

Posted in Advertising Issues, Broadcast Regulation, First Amendment, Political Broadcasting

Broadcasters are not required to affirmatively investigate the identity of entities purchasing political advertising time, the FCC’s Media Bureau has reaffirmed.  In a letter dismissing complaints against two television stations, FCC political chief Bobby Baker stated that, “unless furnished with credible, unrefuted evidence that a sponsor is acting at the direction of a third party, the broadcaster may rely on the plausible assurances of the person(s) paying for the time that they are the true sponsor.”

The complaints were filed by the Institute for Public Representation on behalf of the Campaign Legal Center, the Sunlight Foundation, and Common Cause against television stations WJLA-TV, Washington, D.C., and KGW(TV), Portland, Oregon.  Both of the affected stations had recently been sold by their longtime owners: WJLA-TV from Allbritton Communications to Sinclair Broadcast Group and KGW(TV) from Belo Corp. to Sander Media LLC.  The complaints involved advertisements sponsored by Super PACs.  In the case of WJLA, the advertisement in the Virginia governor’s race indicated that it was sponsored by NextGen Climate Action Committee (NextGen).  KGW, meanwhile, broadcast an advertisement in a U.S. Senate race indicating that it was sponsored by American Principles Fund (APF).  But the complaints alleged that merely naming NextGen and APF as the sponsor of each ad was not sufficient.

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Employers: Tread Lightly When Considering Disciplining Employees for Online Conduct

Posted in Employment

On August 22, 2014, the National Labor Relations Board (NLRB) issued a Decision and Order in which it found that Facebook activities – including “Liking” a post – can constitute concerted activity protected by Section 7 of the National Labor Relations Act (the Act).  Section 7 of the Act gives employees the right to act together “to improve terms and conditions of employment or otherwise improve their lot as employees” and applies to all employees, whether or not they are unionized.  If an employer disciplines or fires an employee for engaging in protected concerted activities, the employer faces a variety of penalties, including having to reinstate the fired employee to the same or a substantially equivalent position and/or pay back wages.

The case examined by the NLRB arose in January 2011 when employees and former employees of the Triple Play Sports Bar and Grille learned that they owed additional state income taxes due to an accounting error.  Employees discussed the situation at work and complained to Triple Play, which scheduled a staff meeting to discuss the employees’ concerns.  Prior to that meeting, Jamie LaFrance, a former employee, posted a status update to her Facebook page:

Maybe someone should do the owners of Triple Play a favor and buy it from them.  They can’t even do the                                                                                             tax paperwork correctly!!!  Now I OWE money…Wtf!!!!  Continue Reading

Think You Can Require Contest Entrants to “Like” Your Page? Not Anymore! Says Facebook

Posted in Advertising Issues, Contests

Facebook has announced a policy change that is likely to alter the manner in which many companies conduct contests and promotions using the social networking website.  Under existing Facebook policy, contests and other promotions frequently required entrants or those seeking to take advantage of a promotion to “like” a Facebook page before seeing certain content or becoming eligible to enter or participate.  This practice is commonly referred to as “like-gating,” which Facebook explains occurs “when you force a Facebook user who has not already liked your Page to like your Page before they can see content.”

Under the new policy, which goes into effect on November 5, 2014, Facebook will prohibit Page-owners from incentivizing users to “like” a Page in order to access content.  This ban applies not only to entry into contests or sweepstakes, but also other content – such as songs or written material – and coupons, discounts, and other rewards.  The bottom line is that businesses will now need to gain “likes” based on whether visitors to their Pages want to connect with and hear from them, rather than the promotions they offer.  Failure to comply can result in Facebook taking remedial action, up to and including disabling Pages.

This change represents just another in the constantly evolving list of terms and conditions that apply to social media platforms such as Facebook, Twitter, Pinterest, and Instagram.  Businesses running contests, sweepstakes, and other promotions therefore now need to ensure that their activities comport with not only a complex web of state and federal laws, but also the ever-changing requirements of these social media websites.

Federal Register Publication Begins Flurry of Activity In Incentive Auction Proceeding

Posted in Broadcast Regulation, Spectrum

Auction BlockThe FCC’s Report and Order in the incentive auction proceeding was published today in the Federal Register—the first in a series of events that will occur over the next several months in advance of the incentive auction of broadcast spectrum.

Based on today’s publication date, petitions for reconsideration of the Incentive Auction Report and Order will be due on or before Monday, September 15, 2014.  It is a near certainty that some parties will petition for reconsideration—the question is how many and what effect it will have on the FCC’s timeline for the incentive auction.  In December, FCC Chairman Tom Wheeler expressed his belief that the Commission can “conduct a successful auction in the middle of 2015.”  However, Chairman Wheeler noted that meeting that deadline would require achieving several milestones along the way.

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FCC Seeks Comment on Extending Online Public File to Radio Stations and MVPDs

Posted in Broadcast Regulation, MVPD Regulation

The FCC yesterday released a Public Notice seeking comment on whether it should initiate a rulemaking proceeding that would require broadcast radio stations, cable systems, and other MVPDs to post their public inspection files to the FCC’s online database.

Currently, the online public file requirements apply only to broadcast television stations.  The Public Notice comes in response to a Petition for Rulemaking filed by the Campaign Legal Center, Common Cause, and the Sunlight Foundation to expand the online public file requirement (including the political file component) “to cable and satellite systems.”  In recent months, these same organizations have filed complaints with the FCC against numerous television stations based on a review of their online political files, alleging failures to comply with the rules governing political ad disclosures.  Notably, the FCC acted on the group’s request in just a week’s time, and added radio to the proposal on its own initiative.  This may signal an intent on the Commission’s part to foster efforts by public interest groups to analyze political spending.

The Commission initially declined to require radio stations and MVPDs to maintain an online public file, citing an insufficient record and an easier initial implementation of the online public file process.  However, it did delegate authority to Commission staff to allow radio stations to voluntarily post their public files online.  The Public Notice notes that “Commission staff is analyzing the budget and technical issues that are involved in allowing radio licensees to upload documents to the online public file voluntarily.”

Currently, broadcast television stations must post public file material, including information concerning political advertising buys, to a publicly accessible online file hosted by the FCC.

Comments on the Public Notice are due August 28, 2014, and reply comments are due September 8, 2014.

FCC Orders Clarify Closed Captioning Waiver Standard

Posted in Broadcast Regulation, MVPD Regulation, Online Video

Two decisions released last week shed light on how the FCC will review petitions for exemption from the closed captioning rules under the “economically burdensome” standard.

The Consumer and Governmental Affairs Bureau granted Gerald Bryant TV, Inc., producer of the music show JBTV, a “temporary exemption” of two years from captioning.  In 2012, Bryant operated at a net loss of more than $140K and had net current liabilities of almost $560K, which persuaded the Bureau that “having to captioning its program will exacerbate these losses and possibly lead to the termination of the program.”  The two-year reprieve “will give Bryant ample time to locate ways to comply with the closed captioning requirements,” especially “given the evolution of technology, potential drops in the cost of captioning over time, and the possibility that the financial status of Bryant may change.”

Bryant’s two-year temporary exemption from the closed captioning rules is the first such waiver granted by the Bureau.  Perhaps what tipped the balance in Bryant’s favor is that his losses were so significant that even the public interest groups – usually uniform in their opposition to any waiver of the closed captioning rules – agreed that a limited waiver appeared to be appropriate. Clearly, the Bureau is sending a message that it will interpret the “economically burdensome” standard very narrowly.

This message was reinforced in the Bureau’s decision to deny a similar petition by First Lutheran Church of Albert Lea (FLC), producer of the worship service show Peace & Power.  In 2012, FLC and its production affiliate operated at an aggregate net profit of more than $42K and had total net current assets of almost $188K.  The Bureau determined that “FLC could have begun providing closed captioning and still have operated at a profit” of about $33K in 2012, and its net current assets are “further evidence that the provision of closed captioning would not be economically burdensome.”

FCC Seeks Comment on Pandora’s Petition for Relief from the Communications Act’s 25% Foreign Ownership Benchmark

Posted in Broadcast Regulation, Foreign Ownership, Music Licensing

In the latest chapter of the attempt by Internet streaming music provider Pandora to acquire a South Dakota radio station, the Federal Communications Commission (FCC) has asked for comments on the petition for declaratory ruling that Pandora filed in late June.  The petition, as we explained previously, is the first one filed by an entity seeking to exceed the 25% benchmark for foreign investment in broadcast licensee parent companies imposed by Section 310(b)(4) of the Communications Act.  The FCC had previously applied a de facto rule prohibiting such investment, but in November of last year clarified that it would consider, on a case-by-case basis, proposals to exceed the 25% benchmark in the broadcast context.

As the FCC Public Notice requesting comment explains, Pandora’s petition states that although it has reason to believe its level of foreign ownership is less than 25%, it cannot demonstrate compliance in accordance with the guidelines set out by the FCC’s Audio Division in connection with Pandora’s application.  Those guidelines are derived from a 1974 internal FCC staff memo and require applicants seeking to demonstrate that they have foreign ownership of less than 25% to engage in a complex, multi-step analysis.  Among other things, an applicant with widely held shares must first ascertain the citizenship of as many of its shareholders as possible, and then conduct a statistically valid survey to determine the citizenship of the remaining shareholders.  If a shareholder does not respond to the survey or provides information that does not allow the applicant to determine with certainty that the shareholder is domestic, then the applicant must assume that the shareholder is foreign.

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FCC Adds IP Captioning Obligations to Video Clips

Posted in Broadcast Regulation, Broadcast Technology, MVPD Regulation, Online Video

Update (7/14):  The FCC released the text of the Second Order on Reconsideration and Second Further Notice of Proposed Rulemaking Monday.

The FCC adopted an Order today at its Open Meeting which expands the agency’s IP captioning rules to online video clips, subject to some important carve-outs that will be addressed in a Further Notice of Proposed Rulemaking.  The IP captioning rules currently exempt video clips, defined as “excerpts of full-length programming,” and apply only to full-length video programming that has previously aired on television with captions.

The new rules will phase in beginning in 2016.  Specifically, by January 1, 2016, video programming distributors (VPDs) must provide captions for “straight lift” clips of pre-recorded programming.  By January 1, 2017, montages of straight lift clips must be captioned.  Finally, by July 1, 2017, VPDs must provide captioning for clips of live and near-live programming; however, VPDs will have a grace period of 12 hours for live programming and 8 hours for near-live programming.  “Live programming” is programming “shown on television substantially simultaneous with its performance,” and “near-live programming” must be performed and recorded less than 24 hours prior to first airing on television.

Notably, the Commission indicated that it will entertain waiver requests based on the economically burdensome standard.  In addition, it clarified that the closed captioning quality rules, which take effect January 15, 2015, will apply to IP video clips.

The new rules also come with three important carve-outs.  First, clips posted before the appropriate phase-in deadlines do not need to be captioned after the deadline passes.  In other words, clips that are currently posted and that will be posted prior to the phase-in deadlines do not need captioning.  Second, the rules do not currently apply to “advance video clips,” which are clips posted online after the phase-in deadline but before the clip airs on television.  The Further Notice seeks comment on this exemption, which is of particular interest to stations that post clips of breaking news before the breaking news airs on television.  Third, the rules apply only when VPDs post clips on their own website or app, not when the clip is posted by third-party websites.  The Further Notice also seeks comment on this exemption.

The Further Notice also asks about decreasing or eliminating the grace period for live and near-live programming, a question Commissioner Pai deemed “odd” considering that the rule does not take effect for three years.  In addition, the Further Notice seeks comment on “mash-ups,” which the FCC defines as video packages that contain content shown on television with captions along with video not subject to the rules, such as online-only content.

We will provide further updates on comment deadlines when the Order and FNPRM are released and subsequently published in the Federal Register.