FCC Proceedings and State Association Support
The Massachusetts Broadcasters Association, under the guidance of federal legal counsel Richard Zaragoza with the Washington, DC law firm of Pillsbury Winthrop Shaw Pittman, LLP, has provided support (in the form of Joint Comments and/or Joint Reply Comments alongside state broadcast associations nationwide) in the following FCC filings:
There follows a further updated listing of the FCC proceedings, and one piece of Federal legislation, in which the various State Broadcasters Associations jointly participated from January 1, 2013 to the present. These examples of advocacy before the FCC illustrate how vigorous the participating State Broadcasters Associations have been in protecting and advancing the best interests of the free, local, over-the-air, radio and television industries before the FCC.
- In the Matter of Expanding the Economic and Innovation Opportunities of Spectrum Through Incentive Auctions, Notice of Proposed Rulemaking (Docket No. 12-268). Joint Comments filed with the FCC on January 25, 2013. The participating State Broadcasters Associations urged the Commission to apply the following principles in its consideration and resolution of the proceeding: The Commission should recognize that its statutory responsibilities are clear and that its discretion is limited under the law; television broadcasters must be able to make truly informed decisions whether to participate in the incentive auction process; a licensee’s participation in the incentive auction process must be kept confidential except as disclosed or authorized by the licensee; and, in adopting repacking, the Commission must take into full consideration the nation’s continuing need to preserve a ubiquitous, free, local, reliable, “First Informer,” over-the-air, broadcast service (Rulemaking Pending).
- In the Matter of FCC Seeks Comment on Adopting Egregious Cases Policy, Public Notice(Docket No. 13-86). Joint Comments filed with the FCC on July 22, 2013. The participating State Broadcasters Associations identified specific actions that the FCC should take immediately to extricate itself from continuing to infringe the First Amendment rights of broadcasters in the area of indecency. Specifically, the Associations urged the FCC to promptly issue one or more orders which: (i) Declare that the FCC will no longer undertake enforcement action against any broadcast station, based on a pending or future complaint, that the station aired either a fleeting expletive as a remark or gesture (including “profanities”), isolated nudity or mere suggestion of sexual activity, or any type of sound and/or image that is alleged to be indecent and that was broadcast during, including but not limited to, a live or taped newscast, interview, documentary, public affairs, sports or entertainment programming; (ii) Dismiss all pending complaints that would not be enforceable under Proposal #1 above, giving priority to the dismissal of complaints that are holding up the processing of assignment and/or transfer of control applications, then to those complaints that are holding up the processing of renewal applications, then to those complaints that are the subject of current indemnification and/or escrow agreements with the FCC, and so on; (iii) Declare that any specific program material that is alleged to be indecent, in any complaint that is not eligible for dismissal under Proposal #1 above, will be evaluated on the public record during the course of this proceeding, but solely (no enforcement action contemplated) for this important but limited purpose: the FCC will use the program material that is alleged in such complaints to discuss, on the public record and with the opportunity for public comment, how it might rule taking into consideration various presented or assumed facts and factors. The overarching purpose of that “discussion” is to determine whether the Commission will be able, as a matter of law, to provide broadcasters and the public with a clear, consistent, predictable, and otherwise lawful, understanding of what broadcast material in the future will be deemed legally actionable and what broadcast material will not be considered legally actionable, consistent with the limitations contemplated under Proposal #1 above; (iv) Modify the FCC’s online complaint form by removing the reference to “profanity” and adding a “personal knowledge/willful false statement” certification to the form (to insure listener/viewer personal accountability); (v) Declare that the Commission will take either of the two following actions within 30 days of receipt of an obscenity/indecency complain: (a) dismiss the complaint if (1) it was not filed using the FCC’s online form or the equivalent, (2) does not contain all of the information required by the form or (3) is not prima facie actionable under the narrower focus set forth in Proposal 1# above or (b) forward the complaint to the affected station for a response; (vi) Declare that a station receiving an indecency complaint from the FCC will have 30 days to respond and the FCC will have 120 days from the receipt of the station’s response to issue a decision; and (vii) Declare the establishment of new procedures that will improve the fairness, transparency and speed of its processes where the placement of an “enforcement hold” on the processing of a pending application may be warranted, including limiting the amount of the funds to be escrowed and reducing from two to one year the deadline by which funds must be released if the FCC has not taken action on the complaint that was the cause of the “enforcement hold” (Proceeding pending).
- In the Matter of Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, Public Notice(MM Docket No. 00-168). Ex Parte Letter filed on November 13, 2013. The participating State BroadcastersAssociationscontinued their opposition to the requirement that television stations post their political files online, particularly given that there is no parallel regulation requiring cable and satellite providers to post online the same competitively sensitive information about political advertising rates. The Associations urged the Commission to lift its current broadcast-only, asymmetric online political file rule at least until the FCC requires cable and satellite operates to post the same information online. For the same and other reasons, the Associations also urged the Commission to defer its tentative deadline of July 1, 2014, by which the FCC would apply its online political file rule to all television stations, irrespective of affiliation and market size. Lastly, the Associations strongly opposed the one-size-fits-all proposal of a coalition of public interest groups, which is urging the Commission to mandate that all television stations to use the same form to record political time information, because such a requirement would impose “substantial costs, not only for the time spent by station personnel but also for the necessary training, sale material redesigns, and software development” (Rulemaking Pending, although the online political file requirement became effective July 1, 2014 for all television stations, irrespective of network affiliation and television market).
- In the Matter of Equipment and Operational Issues Identified Following the First Nationwide Test of the Emergency Alert System, Public Notice(EB Docket No. 04-296). Joint Reply Comments filed on November 19, 2013. The participating State Broadcasters Associations, while complimenting the outstanding work of the FCC, FEMA, the NAB, NPR and many others in the area of EAS, emphasized that they are the equally committed, boots-on-the-grounds representatives of the broadcast industry whose EAS-related mission is to best ensure that the tried and true, one-to-many, communications architecture of our nation’s radio and television broadcasters continues to be relied upon as a highly efficient communications tool protecting lives and property and speeding recovery efforts after virtually any kind of natural and man-made disaster. The Associations identified the many ways in which State Broadcasters Associations play a critical role, among other EAS-related matters (i) working with state and local emergency management authorities in drafting, updating and fine-tuning State EAS plans that the FCC requires be filed, approved and followed; (ii) educating/training state and local emergency management authorities; (iii) administering the required regular monthly EAS tests; (iv) checking EAS equipment under the State Associations’ ABIP Programs; and (v) where resources permit, assisting stations to acquire updated EAS equipment. The Associations cautioned the Commission, in its efforts to further improve the EAS system, not to follow a one-size-fits-all approach. Rather, given the vast number of configurations in station plants and equipment, they urged the Commission to follow a path of flexibility as relates to the presentation of text and audio. The Associations also stressed need for the Commission to amend its regulations to prohibit cable operators from blocking members of the public, who are their subscribers, from having immediate, uninterrupted and full access to the emergency information provided by local television stations that are carried on their systems. During EAS activations, cable systems frequently, in effect, stand in front of TV screens, blocking their subscribers’ “view” of the “First Informer” information provided by their local television broadcasters stations. Television stations not only invest millions of dollars to provide emergency information. In addition, their programming is captioned for the benefit of the hearing impaired. Thus, the cable industry’s practice of overriding television programming prejudices the very class of viewer that Congress and the FCC have specifically sought to protect. We urged the FCC to end the practice immediately (Proceeding Pending).
- In re the Petition of The Independent Spanish Broadcasters Association, the Office of the United Church of Christ, Inc., and the Minority Media
Telecommunications Council, Public Notice (Docket No. 04-296), Joint Comments filed on May 28, 2014. The participating State Broadcasters Associations joined commented on MMTC’s “designated hitter” proposal. Under that proposal, MMTC is asking the FCC, in essence, to require English language radio and television stations to provide foreign language emergency information when, for example, a foreign language station in the market becomes inoperable during an emergency. The State Associations told the Commission that we supported the concept of “designated hitter” compacts in which station licensees choose voluntarily to enter into formal or informal arrangements with each other, under which one station would agree to provide additional emergency information coverage in the language of the foreign language station, in the event that the foreign language station’s on-air operations were interrupted during an emergency. We also stated that MMTC’s proposal warrants careful consideration by the various state and local emergency management authorities, working with their local broadcasters and other communications providers, to determine the feasibility of such compacts on a voluntary, case by case basis. However, the State Associations emphasized that with respect to EAS alerts, broadcast stations are not the content originators, only the conduits for distribution of the alerts to the general public, and therefore the Commission should consider using its resources and prestige to convince Federal, state and local emergency management authorities, including the National Weather Service, to provide multilingual EAS alerts. The State Associations also raised First Amendment concerns, and identified the potential financial costs and legal risks that an English language station would face if it were required to provide foreign language emergency information. The State Associations also pointed out that a second National EAS Test should be the federal government’s top priority for fear that multilingual EAS alerting may complicate matters at a time when “getting it right” in English should be the first priority of our nation.
- In re Amendment of the FCC’s Sports Blackout Rules, Notice of Proposed Rule Making (Docket No. 12-3). Ex Parte Letter to FCC Chairman Wheeler, be filed August _, 2014. [The Letter will oppose the elimination of the Sports Blackout Rules.]
- Inre Review of the Emergency Alert System, Public Notice (EB Docket No. 04-296). [We are considering whether to file opening Joint Comments by August 14, or to await the filing of Comments by others and then to file Joint Reply Comments by a later date.]