The State Broadcasters Associations representing the fifty States, the District of Columbia and the Commonwealth of Puerto Rico, including your Association, filed Joint Comments with the FCC applauding the  Commission’s adoption of the Third Further Notice in a rule making dealing with the conversion of EAS to CAP.   The State Associations stated that the NPRM affords an important and timely opportunity for interested parties to provide a boots-on-the-ground assessment of the strengths and weaknesses of the Commission’s current Part 11 Rules in a Common Alerting Protocol environment.  That type of assessment should lead to a more informed and judicious updating of those rules, taking into consideration the conversion of the Emergency Alert System to CAP.

As the record in earlier phases of this proceeding demonstrate, the State Associations, as representatives of the radio and television broadcast industries in their states and territories, have extensive, first-hand experience working with emergency management and public safety authorities at the state and local levels throughout the United States.  Based on that experience, it is their collective observation that, when it comes to utilizing EAS as well as appreciating the role that EAS has played and can continue to play in protecting the lives and property of citizens, there are significant differences among the states, counties and municipalities in terms of priorities, resources and training.  Those differences can translate into lack of use, as well as inefficient and inconsistent use, of EAS as an emergency management tool.  For those reasons, the State Associations encourage the Commission in this proceeding to exercise its expertise in overseeing EAS to ensure that every state, county, and local authority with public safety responsibilities understands that its active participation is needed in the design, updating, and execution of statewide EAS plans that serve as the centralized, federally approved, roadmap for the use of EAS throughout each state and territory.

The Commission should use the State Emergency Communications Committees as change agents to promote more robust EAS partnerships at the state, county and municipal levels.  While the commitment to EAS in many states is consistently exemplary, the track record nationwide has been uneven at best.  Furthermore, the budgetary constraints affecting state and local governments, from which virtually 100% of the EAS messages originate, are challenging the national goal to upgrade their EAS transmission capabilities to CAP as soon as possible.  The State Associations believe that if the Commission re-establishes its commitment to, and the authority and stature of, the SECCs, as described in these Joint Comments, such Federal institutional support, coupled with the sacred duty of governmental authorities at all levels to protect their citizens, will result in a more robust EAS partnerships among all stakeholders. Those partnership, in turn, will lead to a faster and more complete upgrading of the EAS system nationwide.  In sum, SECCs should be recognized by the Commission as too long underutilized, but critically important, engines of change that can help to take EAS, as used by state and local authorities, to the levels to which FEMA, the FCC and the broadcast industry aspire for the Nation.

The Commission should delete the gubernatorial preemptive override requirement.   The State Associations and others have demonstrated earlier in this proceeding that the gubernatorial override requirement is itself wholly unnecessary and problematic.  The State Associations submit that the willingness of broadcasters to respond when called upon by state and local emergency managers has never been an issue.  No one has ever suggested that broadcaster cooperation turns on who is issuing an alert about an emergency situation.  The nature of the event dictates that cooperation.  The record in this proceeding is replete with examples of the dedication and commitment that the broadcasters have had toward creating a better EAS for the benefit of all Americans.  Unquestionably, of the many ways that local broadcasters serve the public interest, nothing is more important to them than preserving the safety of their viewers and listeners.

The gubernatorial override right stands the FCC’s EAS protocols under Part 11 on their head.  The thrust of the EAS protocols is event based, not originator based.  There are in fact dozens of event-centric codes that focus on the type of events which put citizens at risk – those events in turn dictate the nature of the message and the corresponding code.  The Governor’s override right elevates the speaker over the event.  Moreover, a governor is already accounted for under one of the four “originator codes” under “Civil Authorities.”  He or she already works through the state emergency management and public safety authorities.  All of those authorities work very cooperatively with broadcast stations, cable systems and others.  Even the President does not have his own “originator code.”

The Commission should further extend the September 30, 2011, deadline by which EAS Participants must be able to receive CAP alerts.  The State Associations propose that a new 180- day extension be measured from the date when the Commission’s amendments to Part 11 become legally effective.  One of the important reasons why the first extension of the CAP deadline was sought was because it was not then known whether the FCC would institute a parallel certification process for the equipment that would be needed to fully comply with the CAP deadline.  That uncertainty has not gone away.  It is true that the Third Further Notice has been issued, but it remains uncertain whether the Commission will implement its own certification process. No EAS Participant should be required to purchase costly equipment not knowing whether it will be fully FCC compliant.  The additional time will also allow EAS Participants to take into consideration any and all changes in Part 11 before making final purchase decisions as well as before finalizing their planning for CAP-related installation, training, testing, and operations.

The State Associations also wish the Commission to consider a further extension taking into account an even broader context.  FEMA and the FCC have taken the lead on the conversion to CAP.  However, that initiative does not take into account the fact that virtually 100% of EAS originations currently emanate from state and local authorities and NWS that, with a few exceptions, do not have the resources to implement CAP from their end.  For some of those authorities, the conversion to CAP is viewed as a luxury which they cannot presently afford.  Given that the CAP will not be used for the vast bulk of EAS messages for the foreseeable future, the State Associations respectfully urge the Commission to weigh that factor favorably when considering whether to grant a further extension of the CAP-compliance deadline is appropriate.

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From RBR.com

The Government Accountability Office is continuing to review of the impact of the proposed Performance Rights Act, as requested by the author, House Judiciary Committee Chairman John Conyers (D-MI) and other members. But the GAO has also sent those Members of Congress a letter it has received from the US Copyright Office pressing the GAO for an endorsement of PRA.

The GAO found that both the radio and record industries benefit from the current situation, but that the promotional value of having songs played by radio stations has declined – although it can’t say how much that value is.

The GAO acknowledges that implementing the PRA would place a new economic burden on radio stations – and possibly put some out of business – but it also notes that the increased revenues would help the record companies invest in new music. It is currently working on a more complete report which may include more detailed economic analysis.

Here is a brief summary from the original GAO report issued in February:

“Based on GAO’s review of the recording and broadcast radio industries and the proposed Performance Rights Act, it found the following: (1) Both the recording and the broadcast radio industries face economic challenges. Digital technology and piracy have decreased the sale of records, the recording industry’s main source of revenue. Economic conditions and the fragmentation of listeners among newer media platforms, such as the Internet and mobile devices, have reduced advertising sales, broadcast radio’s primary revenue source. (2) Both the recording and broadcast radio industries benefit from their current relationship. The recording industry receives broadcast radio airplay, which promotes sales for sound recordings and concert tickets. For the radio industry, sound recordings attract listeners to radio stations that sell advertisements. (3) The proposed act would result in additional costs for broadcast radio stations. Costs from performance royalties would vary based on whether the station broadcasts music and its gross annual revenue. Stations may also face administrative costs from record-keeping and playlist reporting requirements as well. Some radio stations that are unable to adjust to these new costs may reduce staffing levels; change from music to nonmusic programming, such as news, talk, or sports; or discontinue operations. (4) The proposed act would result in additional revenue for record companies, musicians, and performers. Musicians and performers whose songs are broadcast on the radio would receive an additional income stream. Record companies could use the additional revenue to invest more heavily in the creative process of music.”

The letter from Marybeth Peters, Register of Copyrights, urges the GAO to “elaborate on some of the more concrete positive effects that will likely come about with the passage of the PRA,” such as preventing job losses in the music industry. In particular, it notes the “perilous financial state of EMI,” one of the big four record labels.

Peters also downplays the economic impact the PRA would have on broadcasters, noting that the ad market is cyclical and that radio revenues appear to be recovering. “The Office therefore suggests that the Report highlight the fact that the PRA would not require broadcasters to pay royalties for their public performance of sound recordings for anywhere from one to three years after the date upon which the PRA is enacted, depending upon the size and nature of the broadcast station.”

Yesterday, the Massachusetts Broadcasters Association joined with many other State Broadcasters Associations in vigorously opposing the rulemaking effort by a number of cable and satellite television operators and others to persuade the FCC to radically change, through governmental fiat, the negotiating dynamics of the Congressionally-mandated, market-driven negotiating process by which television stations exercise their must carry/retransmission consent rights.  We pointed out that, not surprisingly, the MVPDs want the FCC to change those dynamics in ways that will benefit them, and severely prejudice the television broadcast industry, in all future retransmission consent (“RTC”) negotiations.

The Associations stressed that the Petitioners are urging the FCC to grant every MVPD mandatory interim carriage—the equivalent of a “compulsory signal carriage license”—in circumstances where an MVPD and a television station are unable, for any reason, to reach agreement on the terms and conditions of a renewed or extended retransmission consent agreement before expiration/termination of the then current RTC agreement.  Under such “license,” the MVPD would have the right to continue carrying the station’s signal (and thus all of its programming), on the frozen terms and conditions of the former RTC agreement for as long as it took the FCC, and presumably the courts, to finally decide if one of the parties had acted in bad faith.  During that period, the television station could not charge the MVPD additional consideration for the right to retransmit the station’s signal even if the station, as is likely, was incurring higher and higher programming acquisition costs.  Such “licenses” would be automatically available to any MVPD that took the position that it was negotiating in good faith and would last as long as it took the FCC and the courts to decide if that was true.

        The Associations demonstrated that neither the Communications Act nor the Copyright Act grants the FCC the statutory authority to impose either mandatory interim signal carriage or arbitration in connection with must carry or retransmission consent negotiations.  The Commission has repeatedly acknowledged that fact.  For good reason, a change in the law is not warranted.  We showed that adoption of the Petitioners’ proposals would lead to (i) substantially fewer mutually successful, timely RTC negotiations; (ii) substantially more FCC-based litigation; (iii) the loss of RTC-related compensation that television stations need to continue to produce and otherwise acquire increasingly expensive and responsive local, syndicated, and network informational and entertainment programming, including sports and other types of compelling programming; (iv) a weakening in the ability of television stations to compete and survive against the combined subscription/advertising-based model of cable and satellite MVPDs; and (v) as a  result of the diminished capacity of the television broadcast industry to compete vigorously in the marketplace for programming, an acceleration in the already strong trend of sports and other types of compelling programming migrating from free local over-the-air television to pay TV. 

The Associations also asserted that informed subscribers, not governmental intervention, is the only lawful and otherwise appropriate way to address potential MVPD service disruptions of the type complained of by the Petitioners.  Their wails of distress on behalf of MVPD subscribers are no more than cries of self-interest from MVPDs more worried about losing subscribers to over-the-air viewing or to competing MVPD providers than about arming their subscribers with timely information about RTC negotiations and informing those subscribers of their options for ensuring they will be unaffected by the MVPD’s loss of a particular station’s programming.  We pointed out that MVPDs are in the best position to eliminate subscriber uncertainty by beginning RTC negotiations well in advance of the RTC expiration date and by providing their subscribers with timely and truly helpful information the subscribers can use to prepare to implement an over-the-air antenna option and/or switch to an alternate MVPD provider if they wish.  In short, we make clear that if subscribers face programming disruption, it is caused by deliberate decisions on the part of MVPDs to keep their subscribers in the dark during negotiations, and not by television stations exercising their statutory rights in those negotiations.

In concluding, the Associations urged that, as the Petitioners have failed to demonstrate any need to “fix” the current retransmission consent process, much less addressed the harm that their proposals would create, the rulemaking sought by the Petitioners should not proceed, and their petition should be dismissed or denied in its entirety.