The FCC’s Notice of Proposed Rulemaking (NPRM) seeking comment on whether to modernize the requirements that broadcasters report annually on their provision of digital television (DTV) ancillary or supplementary services and provide local public notice of the filing of certain applications has been published in the Federal Register. As the FCC has announced, this sets deadlines of December 29, 2017 for comments and January 16, 2018 for reply comments. These proposals are a part of the FCC’s Media Modernization initiative, initially launched in May 2017.
On November 20, 2017, the Federal Communications Commission released a Report & Order (Order) authorizing television broadcasters to use the Next Gen TV standard (a/k/a ATSC 3.0) on a voluntary, market-driven basis. The Order also includes a Further Notice of Proposed Rulemaking (FNPRM) that seeks further comment on three specific issues related to the ATSC 3.0 rules adopted in the companion Order. Comments are due 60 days after publication of the FNPRM in the Federal Register, and replies are due 30 days thereafter. The Next Gen TV rules adopted by the Order will become effective 30 days after Federal Register publication, except for a handful of rules that contain new or modified information collection requirements that require OMB approval. These few rules will become effective after OMB approval is obtained. The key points of the Order and FNPRM are summarized below.
The Order authorizes television broadcasters to transmit using the ATSC 3.0 transmission standard on a voluntary, market-driven basis. Accordingly, broadcasters are permitted, but not required, to transmit Next Gen TV signals provided they comply with all FCC rules applicable to such signals. Broadcasters could, therefore, opt to continue transmitting their signals solely in the currently authorized ATSC 1.0 transmission standard.
The Order requires broadcasters choosing to implement Next Gen TV operations to air a local simulcast of the primary video programming stream of their ATSC 3.0 channel in the current ATSC 1.0 format. Next Gen TV broadcasters must partner with another station (i.e., a “host” station) in their local market to either (1) air an ATSC 3.0 channel at the host’s facility, while using their original facility to continue to provide an ATSC 1.0 simulcast channel, or (2) air an ATSC 1.0 simulcast channel at the host’s facility, while converting their original facility to the ATSC 3.0 standard in order to provide a 3.0 channel. The local simulcasting requirement only applies to the primary video programming stream aired by Next Gen TV broadcasters on their ATSC 3.0 channels. Broadcasters will have discretion to select the primary stream for purposes of local simulcasting, but the Order notes the FCC’s belief that broadcasters will elect the programming stream that contains network programming for network affiliates or the station’s most popular programming for non-network stations. Continue Reading
On October 20, 2017, the Federal Trade Commission issued an Enforcement Policy Statement regarding the applicability of the Children’s Online Privacy Protection Act (COPPA) to the collection and use of children’s voice recordings, such as those collected when a child uses an internet-enabled device to perform a search via voice commands. The Enforcement Statement clarifies that verifiable parental consent is not required for certain such recordings.
The FTC’s COPPA rule requires, among other things, operators of commercial websites or online services directed to children to provide notice of their information practices to parents and to obtain verifiable parental consent before collecting a child’s personal information. As originally promulgated, the rule defined “personal information” to include data such as name, address, and social security number. In 2013, the FTC amended its COPPA rule to add audio files containing a child’s voice to the definition of personal information. Thus, covered operators must provide notice and obtain verifiable parental consent before “collecting” a child’s voice recording. (A covered operator is deemed to have “collected” personal information when it requests, prompts, or encourages a child to submit such information online.) Continue Reading
On October 26, 2017, the Federal Communications Commission released a draft Report & Order (“Draft Order”) that would allow television broadcasters to use the Next Gen TV standard (a/k/a ATSC 3.0) on a voluntary, market-driven basis. The Draft Order will be voted on at the Commission’s November 16th Open Meeting. Below, we summarize the key points in the Draft Order.
The Draft Order would authorize broadcasters to transmit using the ATSC 3.0 transmission standard on a voluntary, market-driven basis. Accordingly, broadcasters would be permitted, but not required, to transmit Next Gen TV signals. Broadcasters could, therefore, opt to continue transmitting their signals solely in the currently authorized ATSC 1.0 transmission standard.
In the Draft Order, the Commission states that it will require broadcasters choosing to implement Next Gen TV operations to air a local simulcast of the primary video programming stream of their ATSC 3.0 channel in the current ATSC 1.0 transmission standard. Next Gen TV broadcasters must partner with another station (i.e., a “host” station) in their local market to either (1) air an ATSC 3.0 channel at the host’s facilities, while using their original facility to continue to provide an ATSC 1.0 simulcast channel, or (2) air an ATSC 1.0 simulcast channel at the host’s facility, while converting their original facility to the ATSC 3.0 standard in order to provide a 3.0 channel. The local simulcasting requirement only applies to the primary video programming stream aired by Next Gen TV broadcasters on their ATSC 3.0 channels. The Draft Order states that broadcasters will have discretion to select the primary stream for purposes of local simulcasting, but notes that the primary stream “generally contains network programming for network affiliates or the station’s most popular programming for non-network stations.” Continue Reading
Federal Communications Commission (FCC or Commission) Chairman Ajit Pai is proposing some of the most dramatic changes to the Commission’s media ownership rules in decades. At its November 16 Open Meeting, the agency will consider an Order on Reconsideration that would: (i) eliminate the 42-year-old newspaper/broadcast cross-ownership rule; (ii) eliminate the radio/television cross-ownership rule; (iii) loosen the existing rules governing the ownership of local television stations (including attribution of joint sales agreements); and (iv) initiate a proceeding to establish an incubator program to facilitate the entry of new and diverse voices in the broadcast industry. If adopted, the Order on Reconsideration will represent a substantial departure from the Commission’s Second Report and Order in the 2010/2014 Quadrennial Ownership Review, which largely left the FCC’s existing rules intact. The draft Order on Reconsideration can be found here.
At its October 24, 2017 Open Meeting, the FCC voted to eliminate its 78-year-old main studio rule, requiring each radio and television station to maintain a main studio located in or near its community of license. Commissioners voted along party lines, with Chairman Pai and Commissioners O’Rielly and Carr voting in favor of eliminating the rule and Commissioners Clyburn and Rosenworcel voting against. The rule change will go into effect 30 days after its publication in the Federal Register.
The Report & Order (“R&O”) issued by the Commission did not deviate substantively from the draft Report and Order released on October 3, 2017. As expected, therefore, the R&O eliminates the main studio rule, under which a broadcast station is required to maintain a main studio either in its community of license, within its principal community contour, or within 25 miles from the reference coordinates of the center of the station’s community of license. As justification for eliminating the rule, the R&O notes that “it is exceedingly rare for a member of the public to visit a station’s main studio, with community members overwhelmingly choosing instead to communicate with stations through more efficient means such as email, station websites, social media, mail, or telephone.” The R&O also concludes that elimination of the main studio rule will not result in a decline in broadcasters’ local news coverage or community involvement because other rules, such as the requirement that broadcasters air programming responsive to local community issues, will “ensure that a station continues to serve its local community.” The R&O also emphasizes the cost savings afforded by elimination of the main studio rule, which “will enable [broadcasters] to allocate greater resources to local programming and other matters such as community outreach, newsgathering, equipment upgrades, and attracting new talent and personnel.” Continue Reading
The FCC has, for the first time, approved an application for the assignment of the license of a television station that agreed to relinquish its spectrum in the Broadcast Television Incentive Auction but has not yet commenced channel sharing.
These so-called “zombie” or “nomad” licenses have perplexed broadcasters and the FCC staff for months. In April, shortly after the Commission announced the results of the Incentive Auction, Hero LicenseCo LLC filed an application to assign KBEH to KWHY-22 Broadcasting, LLC. The rub, however, was that Hero submitted a successful bid in the Incentive Auction to relinquish its spectrum usage rights (in exchange for nearly $150 million). Although KWHY-22 apparently planned to implement a channel sharing arrangement between KBEH and KWHY-TV (which itself received $123 million to move to a low-VHF channel), the parties sought consent to assign KBEH before KWHY-22 filed its application to channel share (much less implemented sharing).
On October 19, 2017, Democratic Senator Amy Klobuchar of Minnesota introduced a bill, co-sponsored by Sens. Mark Warner (D-VA) and John McCain (R-AZ), aimed at regulating online political advertising. The bill, dubbed the “Honest Ads Act,” would require online platforms to identify the purchasers of certain political ads, maintain a “public file” containing specific information about ads referencing candidates and issues of national importance, and make “reasonable efforts” to ensure that political ads are not “directly or indirectly” purchased by a foreign national or foreign entity. Under the bill, broadcasters would also be required to make such reasonable efforts.
Accordingly, if enacted, the bill would not only impose new reporting and disclosure obligations on platforms like Facebook, Google and Twitter, but would also impact broadcasters that sell political ads on their websites. Now, therefore, may be a good time for a reminder about the political broadcasting rules that currently apply to political advertising on station websites.
Today, internet advertising is not subject to FCC regulations or the political broadcasting provisions of the Communications Act. Therefore, concepts such as lowest unit charge, equal opportunities, and reasonable access are not applicable for online advertising.
FEC rules, however, do apply to political advertising on the internet. FEC regulations require internet advertising for federal candidates or elections to be sold at standard rates. Discounts should not be given to candidates unless those discounts are made available to regular commercial advertisers on the same terms. Any favorable treatment for a political candidate could be construed as an in‐kind campaign contribution. The FEC also requires clear and conspicuous sponsorship identification disclosures on internet advertisements that relate to a federal candidate or elections. Those disclosures must state whether or not the advertising was authorized and/or paid for by a candidate. In addition, many states have similar requirements for ads relating to state and local candidates or ballot propositions.
We will continue to monitor the Honest Ads Act as it moves (or doesn’t move) through Congress. Check this blog for updates.
This week, the United States Court of Appeals for the D.C. Circuit affirmed an FCC order issued in March 2016 that declined to require emergency alerts in languages other than English. In a 2-1 decision, the Court found the agency’s determination to be consistent with the Communications Act and reasonable, and thus denied the petition for review filed by groups that had previously requested that the FCC require multi-lingual emergency alerts. In its decision, the D.C. Circuit relied, among other things, on the requirement that Emergency Alert System (EAS) participants report certain information by November 6, 2017.
In the order under review, the FCC had concluded that it lacked sufficient information to justify the imposition of the requested remedy, and instead found that it needed to study (albeit on what the Court described as “bureaucracy standard time”) whether to require the transmission of alerts other than in English. The Court relied, in part, on this information-gathering process in upholding the FCC’s decision. As part of that process, the FCC required EAS participants to provide additional information concerning whether and how they can translate emergency alerts and convey them in language in addition to English. Specifically, all EAS participants—which include radio stations, television stations, cable systems, wireline video systems, wireless, direct broadcast satellite service providers, and digital audio radio service providers—must provide the following information to their State Emergency Communications Committees (SECCs): Continue Reading
Effective November 13, 2017, NCE stations must comply with the recordkeeping requirements established by the new rule that allows them to conduct limited on-air fundraising activities that interrupt regular programming to benefit third-party non-profit organizations. Specifically, non-CPB NCE stations that conduct third-party fundraising must place in their public files, on a quarterly basis, the following information for each third-party fundraising program: the date, time, and duration of the fundraiser; the type of fundraising activity; the name of the non-profit organization benefitted by the fundraiser; a brief description of the specific cause or project, if any, supported by the fundraiser; and, to the extent that the NCE station participated in tallying or receiving any funds for the non-profit group, an approximation of the total funds raised.
These requirements were announced in April when the FCC adopted a Report and Order (which we wrote about here) relaxing its rule prohibiting NCE stations from conducting fundraising activities that substantially alter or suspend regular programming and that are designed to benefit an entity other than the station itself. Before going into effect, however, the new recordkeeping requirements needed approval by the Office of Management and Budget pursuant to the Paperwork Reduction Act. The Federal Register recently announced that this approval has been received and that the new recordkeeping requirements will go into effect on November 13.