The Massachusetts Broadcasters Association and 45 other State Broadcasters Associations joined in filing comments in response to the FCC’s proposal to require television stations to post the bulk of their public inspection files, including their political files, on the FCC’s website.

We supported the Commission’s proposal to exclude from any online public inspection file requirement the multitude of letters and emails that television stations receive from the public.  We also expressed support for the Commission’s decision to offer to host the public inspection files on the FCC’s own website, but qualified our support by urging the Commission, as we did in earlier stages of the proceeding, to give stations the option of using the FCC’s website or its own website, with appropriate links to the FCC’s website, for their online public inspection files.

The State Associations did raise serious concerns however.  We expressed great concern that the Commission’s apparent focus in the proceeding had changed, and inappropriately so, from the FCC’s longstanding emphasis on encouraging local dialogues between local residents and their local stations about their programming service to a new emphasis on oversight of television stations by non-local, and in fact, distant researchers and public advocacy groups that have no local ties to or personal knowledge of the individual communities served by local television stations.

We also registered our strong objection to the Commission’s proposal to require television stations to place their political files online, including forcing stations to catalogue the political file materials by “subfolders” and “subdivisions,” in effect to standardizing the management of traffic at television stations.  We pointed out that there is no industry standard for managing traffic because many television stations use their own in-house trafficking software and many others use the products of at least fourteen outside vendors.  In addition, we opposed the Commission’s proposal to expand substantially the types of “sponsors” that must be identified on the lists that stations have long been required to maintain in their public files.  We argued that not only will each of these proposed new requirements be extraordinarily burdensome, they reflect a new “gotcha” regulatory attitude of the Commission with researchers, public advocacy groups and the Commission playing “stop watch” roulette if station political files go online or if the list of a television station’s “sponsors” must be expanded.  Given that the base fines for violations of the FCC’s political file and public inspection file rules are $9,000 and $10,000, respectively, we pointed out that the FCC will have a strong incentive to encourage the filing of “stop watch” complaints as well as to make adverse “willful or repeated” findings notwithstanding the good faith efforts of broadcasters.

The State Associations urged the Commission not to adopt an online political file requirement or to expand the types of sponsorships that must be listed by television stations in their public inspection files.  In the alternative, we suggested that the Commission defer a decision on whether to adopt an online political file requirement for television stations pending the outcome of its action with respect to replacing FCC Form 355.  We also urged the Commission, if it still intends to adopt an online public inspection file requirement for television stations, to conduct a pilot program before finalizing any online public inspection file rule as well as provide a reasonable phase-in period for compliance.  Furthermore, with the adoption of an online public inspection file requirement, we requested the Commission to remove as unnecessary the public file certification question from its application for renewal of broadcast licenses on FCC Form 303-S, as well as to reduce the base forfeiture amount for public inspection file violations which will become even more arbitrary and capricious in an online public file world.

Lastly, to acknowledge the high priority of dialogues between local viewers and local stations, the State Associations urged the Commission to require all persons and organizations having complaints about a station’s programming to certify, in any complaint, objection or petition filed with the Commission, that they have already made their concerns known, in writing or by email, to the affected station(s) and that they have not received either any response from the station(s) or a satisfactory response (along with the reasons why the response was not satisfactory) before the FCC will consider the matters contained in the person’s or organization’s complaint, objection or petition.

by Lauren Lynch Flick and Paul A. Cicelski

Pillsbury Law

All commercial and noncommercial educational digital television broadcaststation licensees and permittees must file FCC Form 317 by December 1, 2011.

The FCC requires all digital television stations, including all commercial and noncommercial educational full power television stations, digital low power television stations, digital translator television stations, anddigital Class A television stations, to submit FCC Form 317 each year. The report details whether stations provided ancillary or supplemental services at any time during the twelve-month period ending on the preceding September 30.

It is important to note that the FCC Form 317 must be submitted regardless of whether stations offered any such services. FCC Form 317 must be filed electronically, absent a waiver, and is due on December 1, 2011.  Ancillary or supplementary services are all services provided on the portion of a DTV station’s digital spectrum that is not necessary to provide the required single free, over-the-air signal to viewers. Any videobroadcast service that is provided with no direct charge to viewers is exempt.

According to the FCC, examples of services that are considered ancillary or supplementary include, but are not limited to,”computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, subscription video, and the like.”  If a DTV station provided ancillary or supplementary services during the 12-month time period ending onSeptember 30, 2011, it must pay the FCC 5% of the gross revenues derived from the provision of those services.

This payment can be forwarded to the FCC’s lockbox at the U.S. Bank in St. Louis, Missouri andmust be accompanied by FCC Form 159, the Remittance Advice.  Alternatively, the fee can be paid electronically using a credit card on the FCC’s website. The fee amount must also be submitted by theDecember 1, 2011 due date.

The Massachusetts Broadcasters Association, along with 44 other State Broadcasters Associations joined in filing Reply Comments in the FCC’s rule making proceeding to implement certain provisions of the 21st Century Communications and Video Accessibility Act of 2010 that would require television stations to caption television programming disseminated over the Internet.  Because the NPRM raised the specter of a wide range of new regulations on television stations, the Associations sought to reduce those  burdens and regulatory risks in several ways.  First, we urged the FCC to adopt the SMPTE-TT, which was recommendated and the Video Programming Accessibility Advisory Committee and supported by the NAB, as the industry standard for the interchange format for receiving and passing through closed captioning.  We pointed out that SMPTE-TT would provide television stations and other parties in the distribution chain with needed certainty which, in turn, would save time and money during the online captioning process.  In line with the NAB, we also asked the Commission to allow SMPTE-TT to serve as a safe harbor for the FCC’s Internet captioning requirements.  Second, we urged the FCC to limit its captioning requirements to “full-length programmings” with the effect that the new requirements would not apply to excerpts or clips of full-length programs, such as individual segments of a local news program streamed online.  Third, we urged the FCC to extend by an additional six months the lead times when the new regulations would become effective, reasoning that without such an extension stations may be forced to reduce or eliminate online postings of live, near-live, and prerecorded, unedited programming until their captioning resources and other capabilities are fully developed.

NAB President and CEO Gordon Smith sent a letter to all members of the Joint Select Committee on Deficit Reduction, more commonly referred to as the “Super Committee,” citing a Citigroup study examining the “looming” spectrum crisis.  Massachusetts Senator John Kerry sits on the committee.

In the study, Citigroup states that ” we do not believe the U.S. faces a spectrum shortage.”

The full letter can be read here.

It is widely assumed that the “Super Committee” will include language giving the FCC the power to hold incentive auctions for broadcasters.  The NAB and MBA are not against the idea of voluntary incentive auctions with the caveat that  authorizing legislation maintains specific safeguards to ensure that: (a) viewers who currently rely on and can view localtelevision stations today continue to have access to those stations…and (b) broadcasters whochoose not to volunteer are held harmless by the process.

On Friday, September 15th, the FCC agreed to extend the deadline for broadcast stations to upgrade to new CAP (Common Alerting Protocol) EAS equipment.  The full ruling can be read on FCC.gov.

From Senator Gordon Smith, President and CEO of the National Association of Broadcasters

As I discussed yesterday (Thursday) in a webcast to our membership-at-large, this is a critical time for broadcasters – both television and radio stations – and it will require committed engagement from all of us to stave off any government actions that could hurt the future of broadcasting and our commitment to serving our local communities.

One of the greatest game-changing issues facing our businesses continues to be congressional and Federal Communications Commission (FCC) proposals to reallocate spectrum. These proposals could threaten free, local TV’s ability to innovate and provide viewers with the news, emergency information and high-quality programs that they expect and deserve. Currently, congressional and White House leaders are negotiating national debt ceiling legislation, which could include spectrum auction authority. The timeline for reaching a deal on the debt ceiling legislation is August 2 unless an extension is secured.

We need your help to send a strong message to Congress and beat back government intervention that could threaten the future of free, local television. You can engage in our on-air campaign by downloading the 30-second radio and TV spots atwww.nab.org/TheFutureofTV. We ask that you air these spots as often as possible between now and August 2.

\”For Granted\” :30 English

As a reminder, you must fill out the PB-17 form that we have customized for stations airing these spots and place it in your public file.

On this website, you also will find additional tools and resources to help you educate your members of Congress, as well as listeners and viewers on the spectrum issue. These resources include a spectrum primer called Spectrum 101 and print and banner ads. You will also have the ability to call or send an email to your legislators to express your concerns that TV viewers are protected in any spectrum proposal that may be included in debt ceiling legislation.

We thank you for your support and participation in our efforts. Working together, we will ensure a strong future for broadcasting.

Sincerely,

Gordon H. Smith
NAB President and CEO

On Tuesday, March 14th, the FCC’s Media Bureau announced revisions to the license renewal procedures for radio and television stations nationwide.

The change to FCC Form 303-S, the application form that commercial and noncommercial educational radio and television stations will be using to file for the next renewal of their licenses may be found here.

To summarize the Public Notice, the Bureau identifies the forms to be used in the renewal filing process; provides by state the dates for filing renewal applications; and explains the electronic filing system.  The Public Notice also makes it clear that each licensee is responsible for knowing when to file for renewal (do not rely upon the FCC to warn you) and that any licensee which fails to timely file for renewal risks a fine late filing at a base amount of $3,000.00 plus a fine of $4,000 (base amount) for unauthorized operations.

In highlighting the four major revisions to the renewal application form 303-S, the Public Notice makes clear for the first time that the time period covered by the new Non-Discriminatory Advertising Sales Agreements Certification is March 14, 2011 which is the effective date of the revised 303-S form.  Accordingly, if a licensee has not yet implemented the requirement that nondiscrimination clauses be contained in its sales agreements by March 14, the licensee will have to answer the certification “no” and provide an explanation.

The revision reads:

Non-Discriminatory Advertising Sales Agreements Certification. Section II, Question 7 is a new certification for licensees of commercial radio and television stations.  Licensees must certify that their advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements contain nondiscrimination clauses.  For both the radio and television renewal cycles, the certification covers the period from today, March 14, 2011, the effective date of the revised Form 303-S, to the date of the station’s license renewal application filing.  For subsequent license renewal cycles, the certification will cover the entire license term.  NCE licensees are not required to make this certification and, therefore, should select “not applicable.”As detailed in the revised Form 303-S instructions, prohibited discriminatory practices include “no urban/no Spanish” dictates.  Broadcasters must have a reasonable basis for making the certification. If the response to Question 7 is “No,” a commercial licensee must attach an exhibit explaining the persons and matters involved and why the matter is not an impediment to a grant of the station’s license renewal application.

On the heels of the Public Notice, all licensees would be wise to check the FCC’s data base to make sure that the Commission’s files reflect the intended, contact information for their stations.

The FCC has asked for television’s participation in a webinar dealing with broadcast spectrum and incentive auctions.  It will be possible to submit questions “anonymously” through the MBA.  The webinar will be done with all of the New England states.  To register for the webinar please visit: https://fccevents.webex.com/fccevents/onstage/g.php?t=a&d=990723913

Save the Date: Wednesday, March 16, 2011, 10am-12pm Eastern Time

FCC Webinar for Television Broadcasters

Please join FCC Media Bureau Chief Bill Lake and Rebecca Hanson, Senior Advisor, Broadcast Spectrum, in a live webinar that describes the financial opportunities offered by voluntary incentive auctions, as proposed in the FCC’s National Broadband Plan.  Incentive auctions for TV spectrum seek to offer broadcasters new business model options involving their voluntary contribution of some or all of their licensed spectrum, including options that allow broadcasters to participate and continue to broadcast. This webinar will give an overview of those opportunities and will provide an opportunity for the FCC representatives to respond to questions, including questions about the need to repack the remaining television channels following the auction. Specific topics will include:

How would an incentive auction work?

Broadcaster Opportunities, channel-sharing, and VHF

Repacking Implications

If you have any questions, please contact Jordan at jordan@massbroadcasters.org or 800-471-1875

Posted February 3, 2011

By Scott R. Flick

Late today, the FCC released an Order laying the groundwork for the first national test of the Emergency Alert System. As we noted in an earlier post, the FCC began this process nearly a year ago, when it released a Notice of Proposed Rulemaking seeking public comment on the implementation of regular national EAS tests. Today’s order modifies the FCC’s Rules to authorize such tests as well as to establish the ground rules for conducting them.

Specifically, the Order:

• Requires all EAS participants to participate in national EAS tests scheduled by the FCC in consultation with the Federal Emergency Management Agency;
• Requires that the first national test use the Emergency Alert Notification code, the live event code used for nationwide Presidential alerts;
• Provides that the national test replaces the monthly and weekly EAS tests in the month and week it is held;
• Requires the Public Safety and Homeland Security Bureau of the FCC provide at least two months’ public notice prior to a national test;
• Requires EAS participants to submit test-related data within 45 days of the test;
• Requires that test data received from EAS participants be treated as presumptively confidential, but allows it to be shared on a confidential basis with other federal agencies and state emergency management agencies that have confidentiality protection at least equal to that provided by the Freedom of Information Act; and
• Delegates authority to the Public Safety and Homeland Security Bureau, in consultation with FEMA and other EAS stakeholders, to establish various administrative procedures for national tests, including the location codes to be used in the alerts and the pre-test outreach to be conducted.

While many following this proceeding had anticipated that the FCC might hold off on a national test until it had modified its rules to incorporate Common Alerting Protocol and the deadline for EAS participants to install CAP-compliant equipment had passed, it appears the first national test could occur as early as this Fall. The order specifically notes that the first “national EAS test is strictly of the legacy EAS system and is independent of the transition to CAP.”

The Order notes the need for significant public outreach prior to the test (to avoid public panic), and acknowledges that, at least for the first test, EAS participants will likely get more than the minimum two months’ warning to accomplish that public education objective.

Of particular note to EAS participants is the requirement that they record and submit to the FCC within 45 days of the test a fair amount of detail regarding that participant’s performance during the test (e.g., was the alert received and passed on successfully, what equipment was used, what was the cause of any problems that occurred, etc.). In order to facilitate the submission of that data, the FCC also announced that it will be creating an electronic filing system that EAS participants may elect to use to comply with the reporting requirement.

Because the FCC wishes to encourage EAS participants to be honest in reporting failures that occur during national tests, it did note that it would treat the required submissions as a “voluntary disclosure”. In the past, the FCC has considered a licensee’s voluntary disclosure of a rule violation to be a mitigating factor that can merit a reduction in the fine or other sanction imposed. Notably, however, the FCC did not foreclose itself from issuing fines or taking other action against an EAS participant reporting a failure of its equipment/performance in the national test, particularly where the violation is “repeated, egregious, or not promptly remedied.”

As a result of today’s Order, and the wheels it puts in motion, broadcasters, cable providers, and other EAS participants will need to make sure they and their EAS equipment are ready to participate in a national EAS test as early as this Fall. The FCC, FEMA and other governmental agencies also have much to do before a national test can occur. However, today’s action clears the initial obstacles away, and will allow the FCC to achieve its goal of assessing “for the first time, the readiness and effectiveness of the EAS from top-to-bottom, i.e., from origination of an alert by the President and transmission through the entire EAS daisy chain, to reception by the American public.” That assessment has been a long time coming, and while it does present some regulatory risks for EAS participants, most will be pleased to have confirmation that the EAS equipment they have maintained day in and day out, year after year, will serve its intended purpose should a national emergency require it.

By Richard R. Zaragoza

The Office of Management and Budget is currently considering whether to approve a revised version of FCC Form 303-S, the “Application For Renewal of Broadcast Station License” that all commercial and noncommercial full-power radio and television stations will be required to use when they file for their next renewal of license. The FCC has made several modifications to the prior version of the form.

One of the modifications is a new renewal certification which will constitute a material representation to a government agency. For that reason, every renewal applicant will want to be doubly sure that it has a reasonable, good faith basis for responding to the certification with an unqualified “Yes” and adequate documentation to support such response. Specifically, the revised renewal form seeks a “Yes” or “No” response to the new certification that the licensee’s “advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.” According to the FCC, this new certification is needed to combat “no urban/no Spanish dictates” that have turned up in some broadcast advertising arrangements. The FCC believes that those “dictates” discriminate against broadcast stations which target African American and Hispanic audiences and the businesses they support.

When it adopted the “nondiscrimination clause” requirement, the FCC chose not to provide specific, or even illustrative, language to be included in advertising contracts. Such language would have given applicants a better idea of what the FCC actually believes qualifies as an adequate “nondiscrimination clause.” As a result, licensees have been left to rely upon their own interpretations of what constitutes compliance.

One question of interpretation relates to the scope of the nondiscrimination clause: is it adequate if only two types of prohibited discrimination are identified, namely race and ethnicity, or must the clause include all other types of discrimination prohibited under federal, state and local law? We know that the rule making from which the nondiscrimination clause arose focused only on “no urban/no Spanish dictates,” and that the FCC’s later issued “Erratum” substituted “ethnicity” for “gender” without retaining “gender.” From this it can be argued that the FCC did not intend to require stations to include in their nondiscrimination clauses other forms of discrimination prohibited by federal, state and local authorities, although stations are free to include them.

Additional interpretation is required to answer this question: is the nondiscrimination clause sufficient if each sales contract in effect proclaims (i) that no advertiser may use the station to discriminate on the basis of race or ethnicity and (ii) that any contract entered into with an advertiser whose intent is to use the station to unlawfully discriminate shall be null and void? Or must the nondiscrimination clause also include from the advertiser some type of certification or representation to the station disclaiming any intent to discriminate on the grounds of race or ethnicity? It is my experience that the approaches used by stations vary considerably. That fact may suggest that there are a number of interpretations that may be regarded as reasonable.

The third instance requiring interpretation relates to those stations that do not use formal sales contracts: how are they expected to comply with the nondiscrimination clause requirement? The answer to this question will turn on how flexible the FCC intends to be. We know that noncommercial educational stations filing their license renewal applications will not be asked to respond to this particular certification because such stations do not “sell” time, although they do enter into on-air and production relationships with their underwriters. Certainly a starting point for commercial stations that do not use formal sales contracts is to ensure they can adequately demonstrate to the FCC that their advertising sales arrangements with third parties in fact alert such parties to the station’s nondiscrimination policy and do not discriminate on the basis of race or ethnicity, e.g., website postings, standard email disclaimers, invoice/statement disclaimers.

The three questions posed above are not intended to deal with all of the issues raised by the new renewal certification. My observation is that if the FCC had been more clear when it adopted the nondiscrimination clause requirement, licensees would be able to make a more informed judgment in deciding whether they may responsibly respond to the new certification requirement with an unqualified “Yes,” or whether they will be required to answer “No” with an explanation, understanding that a “No” answer will likely result in the licensee’s application being pulled out of line and deferred for further scrutiny. Stations should consult with communications counsel now to assess whether, based on current practices, they will have a reasonable basis to respond “Yes” to the new renewal certification when it comes time to file their application for renewal of license.