David Oxenford

While some might think that the business of deregulation is easy, that usually is not the case, as comments on the Federal Communications Commission’s proposals to modify the public notice requirements for broadcast applications make clear. In a Notice of Proposed Rulemaking, as part of its initiative on the Modernization of Media Regulation, the FCC looked to modify the rules governing public notice that broadcasters must give when they file certain types of broadcast applications – particularly license renewals and applications for the assignment or transfer of broadcast stations.

With the Super Bowl soon to kick off in Houston (TX), one recalls that during the last Super Bowl held in Houston, the notorious “wardrobe malfunction” occurred. To readers of this blog, that incident raises a whole host of other issues, as it triggered a re-examination of the Federal Communications Commission’s indecency rules which, 13 years after the incident, does not appear to have any end in sight.

The Super Bowl incident, as well as various other instances of “fleeting expletives” that slipped out during TV awards shows, led to numerous FCC fines in the early 2000s, and a long string of court appeals thereafter. These court appeals culminated in a Supreme Court decision throwing out the FCC’s fines against broadcasters, not because the FCC did not have the authority to issue fines for indecent conduct, but instead because the FCC did not give adequate notice to stations as to what was permitted and what was prohibited as it had not adequately explain why it had decided to abandon its prior policy of just issuing admonitions to stations that had inadvertent fleeting indecency slip-ups.

[Commentary] In the last two days, the Federal Communications Commission has asked for public comment on two proposals for foreign ownership of US broadcast stations where that ownership would exceed 25% of the company – a limit that has for decades been seen as the upper end of ownership by foreign nationals.

While the FCC three years ago said that they would consider such ownership on a case by case basis, up until this week, the FCC had considered only one case under this new flexible policy – and that was the case of Pandora, where the FCC took over a year to approve their acquisition of a broadcast station – and Pandora didn’t even think that their foreign ownership exceeded the 25% threshold, but they could not prove it because of the difficulty of assessing the citizenship of public companies. Now, the FCC seeks comments on two cases, one where an Australian husband and wife team seek to acquire 100% ownership of companies owning 29 radio and TV stations in Alaska, Arkansas and Texas. The second involves Univision, which asks for FCC approval for foreign ownership of up to 49% of its stock, as it plans a public offering which would also involve the conversion to stock of warrants held by a Mexican company that already has a stake in the company.

[Commentary] A briefing on the legal and regulatory proceedings affecting broadcasters covers the following topics: Aereo, CALM Act (meant to end loud TV commercials), Class A TV, closed captioning, equal employment opportunity rules, emergency information, FCC commissioners, filing freeze, foreign investment in broadcasting, incentive auction, indecency, joint sales agreements, license renewals, LPTV stations, online public inspection files, ownership limits, ownership reporting, political broadcasting, public interest programming disclosure, retransmission consent/must carry, sponsorship id, sports blackout rules, tower and antenna issues, UHF discount, video descriptions, white spaces.

[Commentary] Zapple is dead. The Zapple Doctrine was an outgrowth of the Federal Communications Commission’s Fairness Doctrine. The Zapple Doctrine required that broadcast stations that give air time to the supporters of one candidate in an election give time to the supporters of competing candidates as well.

Even though the Fairness Doctrine has been defunct for years, having had various manifestations of the Doctrine declared unconstitutional either by the Courts or the FCC, Zapple apparently lived on, or at least a death certificate had never been issued. Thus stations had to be concerned about giving air time to supporters of political candidates for fear of having to provide a similar amount of time to those supporting competing candidates.

Apparently, that uncertainty has now been resolved, as in two just released cases, the FCC’s Media Bureau has declared that Zapple, like the rest of the Fairness Doctrine, is dead. Based on this decision, stations don’t have to worry about on-air statements made by an opinionated talk show host giving rise to equal opportunities to those who favor the candidate opposed by the host. As long as the station does not put the candidate on the air, the equal time (or equal opportunities) rule does not apply.

With so many new regulations and challenges facing television broadcasters, it’s hard to keep track of all the changes. So how can stations, while tending to their own businesses, keep up with it all? With FCC Watch, an exclusive briefing on some of the major issues at the Federal Communications Commission prepared by David Oxenford and David O'Connor, attorneys in the Washington law offices of Wilkinson Barker Knauer LLP.

In alphabetical order, from Aereo to White Spaces/Unlicensed Devices. Some highlights in between include new closed captioning standards for TV and IP content, emergency information, incentive auction/repacking, joint sales agreements, political broadcasting, retransmission consent/must-carry, and regulations on sports blackouts.

[Commentary] There is one interesting and important proceeding that the Federal Communications Commission has recently resuscitated and is worthy of mention -- the proposal to mandate multilingual emergency alerts by broadcast stations -- even when the station broadcasting in a language other than English is knocked off the air by some local emergency.

The proposal would require that all primary EAS stations broadcast national alerts in both English and Spanish, and that state EAS plans should designate stations to provide emergency information in other languages where there are significant populations that have a primary language other than English or Spanish. Not only that, but English language stations in these areas are proposed to have to play a back-up role, ready to step in and provide emergency information in one of these languages should the primary station serving a particular non-English speaking population be forced off the air.

Comments on this proposal are due on April 28, and replies by May 12.

[Oxenford is partner at Wilkinson, Barker and Knauer]