Advisories

On Jan. 24, 2008, the Federal Communications Commission (“FCC”) released the text of its “Report on Broadcast Localism and Notice of Proposed Rulemaking” (“NPRM”), which was adopted in December of last year. As part of its Localism proceeding, the Commission reviewed a number of issues, from the public interest programming of broadcasters to their music selection process to their response to local emergencies. The Commission summarized its findings in its recent Report, and among its conclusions were findings that not all broadcasters were adequately assessing the needs of their communities or serving the public interest through coverage of local news and other local events.

Because of these perceived weaknesses in broadcaster performance, the FCC adopted its NPRM, tentatively concluding that re-regulation of the broadcast industry is necessary to ensure that broadcasters serve their local communities. Broadcasters should carefully review these proposals, and consider filing comments in this proceeding to address the impact that these proposals would have on station operations.

The FCC has proposed a number of potentially burdensome requirements, many of which were eliminated by the Commission long ago, and many of which go beyond what the FCC has ever required. Comments on this extensive list of proposals for new rules are due only 30 days after a summary of this proceeding is published in the Federal Register, which occurred on Feb. 13, 2008. Thus, comments in this rulemaking proceeding must be filed with the Commission by March 14 and reply comments by April 14. This is a very short period of time in which to comment on a number of significant proposals that are poised to return the broadcast industry to the regulatory structure of the 1980s. Comments can be filed with the Commission in paper or electronically through the Electronic Comment Filing System found on the FCC's website. When submitting comments, commenters should be sure to reference the docket number for this rulemaking, MB Docket No. 04-233.

Among the specific proposals on which the Commission now asks for comments in its NPRM are the following:

• Community advisory boards. The Commission tentatively concludes that all stations will be required to establish a community advisory board to advise the station on the issues of importance to the community that can be addressed in the station's programming. The Commission indicated that it did not want to bring back the burden of the ascertainment process that was abolished in the 1980s, but asks how the board should be established so as to represent the entire community, suggesting that the categories of community leaders that were used in the ascertainment process could be used as a standard to guide the licensee in determining the make-up of the board. Other questions include how often the board should meet, and how the board members should be selected (or elected—though by whom, the Commission does not suggest).
• Other community outreach efforts. The Commission also suggests that other community outreach efforts should be considered as possible mandates for broadcasters. These would include the following:
  • Listener surveys by telephone or other electronic means. (It is noted that general public surveys were also part of the ascertainment process abolished in the 1980s, so if this were adopted together with the community advisory board, ascertainment would effectively be back.)
  • Focus groups or town hall meetings to determine community needs.
  • Participation of management personnel on community boards, committees, councils and commissions.
  • Specific phone numbers or e-mail addresses, publicized during programming, for the public to register their comments on station operations.
• Remote station operations. Comments are sought as to whether television stations should be forbidden to operate without being manned during all hours of operation. The same issues for radio operations have already been suggested in the proceeding to consider new radio public interest obligations, advanced in the Digital Radio proceeding.
• Quantitative programming guidelines. The Commission proposes to adopt quantitative standards for programming that a station would have to meet to avoid extra processing and scrutiny at license renewal time. Questions include: What categories of standards should be established (just local programs—or more specific requirements to set required amounts of news, public affairs and other categories—and how to define what programming would qualify in each category)? Should requirements be established as specific numbers of minutes, or hours per day or per week, or by a percentage of programming, or through some other metric? Should other specific requirements or measurements be established?
• Main studios. The Commission suggests reverting to the pre-1987 requirement that each station maintain a main studio in its community of license.
• Network programming review. The Commission asks whether rules should be adopted to require that local network affiliates have some ability to review all network programming before it is aired. If so, what programs would be exempt from the requirement (e.g., live programs); how much prior review is necessary; would such a right disrupt network operations?
• Voice tracking. The Commission asks if "voice-tracking," (i.e., a radio announcer who provides announcing on a radio station from outside a local market, sometimes including local inserts to make it sound as if the announcer is local) should be limited or prohibited, or if disclosure should be required when voice tracking is used.
• Local music. While the Commission indicates that it did not think that a ban on national playlists was required, it did ask whether broadcasters should be required to report the songs that they play, and how they choose their music. With that information, the Commission asks if it should consider the amount of local music played when assessing whether a station has served the needs of its community at license renewal time.
• Class A TV. The Commission asks whether it should adopt rules that permit more LPTV stations to achieve Class A status, meaning that they would no longer be secondary stations subject to being forced off the air by interfering uses of the TV spectrum by full-power TV stations.

All broadcasters should be paying careful attention to these proposals, as they will have a direct impact on their bottom line, and will also create numerous traps into which a broadcaster can fall at renewal time. The $5,000 and $10,000 fines that were issued in the last renewal cycle for stations that did not complete all of their quarterly issues programs lists may well be nothing compared to fines for violating some or all of these new standards if adopted.

In addition to the above-listed specific proposals to be considered in this proceeding, the Commission mentions a number of other proceedings that are either underway or which will be initiated to consider other issues relevant to the consideration of localism in broadcasting. The new proceedings to begin include:

• Embedded advertising. The Commission specifically states in the NPRM that it believes there are a number of broadcast practices that violate the spirit of the Commission's sponsorship identification rules. On one of these issues, the Commission plans to launch a proceeding to investigate “embedded advertising," commercial messages that are contained in program content (e.g., when the hero of a TV program sips a recognizable can of Coke or drives a Ford or goes to see a specific new movie). That topic was on the Commission's agenda for consideration in December, but was pulled at the last minute. Apparently it will be returning in the near future.
• Network-affiliate issues. For years, the Commission has had a petition before it from a group of owners of network-affiliated television stations arguing that network-affiliation agreements give the networks too much power, effectively precluding affiliates from making programming choices that might better serve the interests of their communities. It appears that the Commission will be tackling those issues, perhaps in a new proceeding devoted specifically to network-affiliate issues.
• In-state television signal availability. The Commission promises to initiate a proceeding to determine if cable and satellite carriers should be permitted (or required) to provide subscribers with service from an in-state television station, even if the subscriber lives in a DMA where all the television stations originate in another state.
• FM channel availability. The FCC has instructed its staff to come up with a tool to make it easier for the public to determine (on their own without hiring a consulting engineer) if a new FM station can be allotted at a particular community. Look for this tool to appear on the FCC's website in the future.

A number of other related issues will be considered as part of other on-going proceedings. These include:

• Enhanced disclosure obligations. In a simultaneously released Order, the FCC imposes certain enhanced disclosure obligations on television broadcasters—requiring that new forms be completed quarterly by broadcasters reporting on the types of programming that they broadcast, and requiring that public file information be maintained on the station's website (if the station has a website). The imposition of similar requirement for radio is already under consideration in the Digital Radio proceeding. (For more information, see the recent DWT advisory regarding the FCC's new television disclosure requirements.)
• Emergency communications. The obligations of broadcasters to communicate with their audiences in times of emergency, including communications with the hearing impaired and with audience members who do not speak English, are to be considered in an Emergency Communications docket that the Commission states will be decided soon.
• LPFM issues. Issues about providing LPFM stations with more protections from interference from full-power stations, and a potential preference against FM translator stations, will be addressed in a Further Notice of Proposed Rulemaking in which the Commission will soon be receiving comments.
• Payola, video news releases and sponsorship identification. The Commission currently has proceedings underway to enforce its payola rules in specific cases, and to gather more information about the use of video news releases (VNRs) by broadcasters, as well as certain specific enforcement actions. The Commission intends to pursue these issues.
• Increased opportunities for new entrants. In a separate proceeding adopted at the December meeting, the Commission adopted an order containing specific rules to enhance the opportunities for new entrants into broadcast ownership, thus increasing local media diversity. That proceeding will also raise a number of new issues. The text of the new rules adopted in that proceeding, and its proposals for other new rules, has not yet been released, but a number of localism-related issues will be discussed in that proceeding.

Broadcast licensees should consider these issues now and be prepared to comment in the Localism proceeding as well as the various other proceedings that apparently will be coming in the near future. Be sure to check our blog, www.broadcastlawblog.com, for future updates regarding these proceedings and for further details about submitting comments in the Localism rulemaking proceeding.