Vol. 5, Issue 3, June 2006

New FCC Commissioner Sworn In

Robert McDowell was recently sworn in as the fifth FCC Commissioner, meaning that for, the first time in 18 months the FCC will have a full complement of Commissioners on board. More importantly, McDowell is a Republican and his addition creates a 3 to 2 Republican majority on the Commission. We expect that the Commission will begin to take on more high profile items such as newspaper cross-ownership, general market ownership caps, must carry obligations on broadcaster’s digital channels, the AT&T/BellSouth merger and plans to divide up the assets of bankrupt cable carrier, Adelphia, between Comcast and Time Warner Cable.

Rule Making Seeks To Allow Local Origination On FM Translators

Miller Communications, Inc. owns and operates seven radio stations, including news-talk FM station WTIM in Taylorville, IL. Miller Communications recently purchased a permit to construct a new FM translator station, and has petitioned the Commission to change the rules that prohibit FM translators from broadcasting their own locally originated programming. Current FCC rules limit the programming on FM translators to the rebroadcast of the signal of a full-power FM facility. Comments have already been filed on both sides of this issue in FCC Rulemaking No. RM-11331, and you can add your comments as well. You can read more about the proposal at

http://www.taylorvilledailynews.com/TranslatorFiling.asp, or contact us.

Is It News, Or A Paid Advertisement?

The FCC has launched an inquiry into the practice of television stations airing “video news releases” or “VNRs” without proper identification of the sponsor who furnished the VNR for broadcast. VNRs are generally produced by or for companies or advocacy groups to promote a specific position or a specific product. When a television stations airs a VNR it is supposed to identify the piece as a sponsored piece and identify the sponsor. A recent complaint filed with the FCC by the Center for Media and Democracy claims that stations in 8 of the top 10 TV markets aired these public relations pieces as “news” without the proper sponsorship identification, and worse, actually edited out the sponsor identification information that the sponsor provided in the VNR itself.

Class A, LPTV And TV Translator Digital Companion Channel Filing Window Opens This Month.

The FCC has scheduled a filing window from June 19, 2006 until June 30, 2006 for the filing of applications for Class A, LPTV and TV translator digital companion channels. This window is exclusively for licensees and permittees of existing Class A, LPTV and TV translator stations. Much like their full-power counterparts, these stations will have to convert their analog broadcasts to digital. The rules provide two means by which these low power operators can convert from analog to digital. The first is for licensees and permittees to implement an on-channel conversion to digital on their authorized channel through a “flashcut” application, where analog operation would immediately cease upon grant of the on-channel digital application. The second method is for an analog licensee to file in this window for a digital companion channel. The licensee would be able to continue to broadcast on its analog channel and would be able to commence digital broadcasting on its new digital companion channel. At some point in the future, the licensee would have to return one channel to the FCC and keep one channel to continue its digital broadcasting. For more information about the digital transition process and the upcoming filing window, please contact us.

Enforcement in Action

The FCC has stepped up its enforcement actions in recent months and this week issued Notices of Apparent Liability (“NALs”) against four television stations for failing to comply with a variety of reporting requirements. The licensees for the four stations had each reported in their respective renewal applications that certain filings required to be maintained at the stations during the applicable license renewal period were missing. In particular, the stations were missing Issues/Programs lists, Children’s Television Reports, and/or the reports showing compliance with the commercial limits for children’s television programming from the station’s public inspection files. Although in each case none of the licensees lacked every report (suggesting a complete failure to comply) and each of the licensees discovered and corrected the problem without FCC involvement (that is, no discoveries were made by virtue of an official inspection), the FCC concluded that all of the violations were both ‘willful and repeated’ and warranted the imposition of significant fines, ranging between $4,000 and $18,000.

The reality is that the Commission will no longer overlook seemingly minor transgressions of its rules and stands prepared to issue fines against licensees, even if the errors are inadvertent and are first discovered and reported by the licensees. For example, in one of the recent NALs an employee responsible for preparing and filing the required reports left the licensee and his reporting duties were not kept up by different personnel. The FCC did not consider this a proper excuse for failing to comply and the licensee was fined.

The lesson to be learned from these enforcement actions is to be sure that your station complies with the FCC’s rules by being sure that you understand what all of the rules are. The FCC does not consider ignorance of its rules an excuse. Moreover, be sure that your staff understands when reports must be prepared and placed in the public inspection file. If you are not sure, your staff is probably not sure either. We would be happy to assist you in providing a primer on what reports need to be done on a weekly, monthly, quarterly and yearly basis to help you meet all of your FCC reporting requirements. Please do not hesitate to contact us should you need further information.

EEO Audits Continue

This week the FCC sent Equal Employment Opportunity (EEO) audit letters to randomly selected broadcasters. This is the FCC’s continuing mission to randomly audit approximately five percent of all broadcasters.

Audits can be time-consuming and costly. Should your station receive an audit letter, please contact us so that we may assist you in preparing a thorough response. We would also be happy to review your EEO programs at any time in advance of the receipt of an audit request to be sure that your operation is in compliance.

This newsletter is intended to be for informational use only. Readers should not act upon the information presented here without seeking professional legal counseling to address the facts and circumstances specific to them. The transmission and/or receipt of this newsletter does not create an attorney-client relationship.

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