Joint Comments of the Named State Broadcasters Association In Response to LPFM-AG PRM

Joint Comments of the Named State Broadcasters Association In Response To Notice Of Proposed Rulemaking

Comments of the Missouri and California Broadcasting Associations

2015 CBA FCC Filings

9th Circuit Court Opinion on Garcia v. Google



2014 CBA FCC Filings



Current legal actions/filings on behalf of broadcasters (2015):

1. In the Matter of Amendment of Section 73.1216 of the Commission’s Rules Related to Broadcast Licensee-Conducted Contests, Notice of Proposed Rule Making (MB Docket No. 14-226; RM-11684), Joint Comments filed on February 18, 2015. The participating State Broadcasters Associations filed in support of the FCC’s rule making proposal that would amend the Station Contest Rule to give radio and television stations the option, in lieu of over-the-air broadcasts, of disclosing the terms of their station contents via their own websites or any Internet website that is publicly accessible. We argued that giving broadcasters the flexibility to choose between on-air and online station contest disclosures will better enable them to reach and inform their audiences. We also pointed out that this flexibility will also bring broadcast licensees one step closer to regulatory parity with their cable, satellite, and internet competitors, to whom the Station Contest Rule does not apply. We urged the Commission to be careful not to unduly encumber the online disclosure option. Specifically, we objected to any requirement that licensees broadcast the “complete and direct” website address where contest terms are located “each time” a licensee makes any mention or reference to a station contest. Rather, we proposed that the new rule require the announcement of the website’s home address (e.g., “wxyz.com”) only when the station affirmatively promotes the contest. Additionally, we urged the Commission to refrain from micro-managing stations that choose to post contest disclosures on the Internet because there is no reason for the Commission to depart from its long-standing policy of leaving the manner of disclosure to the licensee’s discretion. In response to the Commission’s proposal to establish record retention requirements, we argued that since the State Associations agree that station contest rules posted online should be available 24/7 during the contest, for free, and without any registration requirement (subject to technical outages and other force majeure events), we saw no reason to adopt retention requirements, particularly given that such a requirement would be better dealt with at the state level. ( Proceeding Pending)

2. In the Matter of Expansion of Online Public File Obligations to Cable and Satellite TV Operators and Broadcast and Satellite Radio Licensees, Notice of Proposed Rule Making (MB Docket No. 14-127), Joint Comments filed on March 16, 2015. The participating State Broadcasters Associations made the following major: (1) having required TV broadcasters to maintain an online file, the FCC should require the same of MVPD TV competitors (cable and satellite); (2) given the differences in staff size, etc., and the sheer number of stations affected, the FCC must recognize the differences between TV and radio in implementing a radio online public file rather than just unthinkingly imposing the same rules on radio as were imposed on TV; (3) the FCC should phase-in any requirement by starting in the Top 50 markets before later expanding beyond that; (4) rather than temporarily exempt stations with less than five full-time employees, the FCC should permanently exempt Station Employment Units with ten or fewer full time employees, consistent with the FCC’s exemption standard for Midterm EEO Reports and certain other EEO obligations; (5) exempt stations should be permitted to voluntarily move their public files online if they elect to do so, and the FCC should modify its rules to incentivize stations to make that voluntary move by offsetting the regulatory burdens involved; (6) the FCC should examine and strengthen its filing systems to ensure they can handle the added load more online public files will bring; (7) the FCC should extend its ten-day quarterly filing windows to thirty days to reduce the burden on both the system and filers by spreading out the number of filers on any particular day; and (8) the FCC should not use this proceeding to expand broadcasters’ public file obligations, but instead focus on implementing online public file requirements that are practical, functional, and not harmful to smaller stations. ( Proceeding Pending)

3. In the Matter of Accessible Emergency Information, and Apparatus Requirements for Emergency Information and Video Description; Implementation of the Twenty-First Century Communications and Video Accessibility Act of 2010, Public Notice (MB Docket Nos. 12-107, 11-43), Joint Comments filed on April 13, 2015. On March 27, 2015, the NAB filed a petition urging the FCC to waive a portion of its new rules requiring a TV station to make visual emergency information available in the audio of the station’s SAP stream as well. Earlier this week, all 50 State Broadcasters Associations joined in filing Comments with the FCC to support the NAB’s request. Those Comments urged the FCC to delay implementation of the rules for six months, until November 30, 2015, to give vendors time to create technology capable of performing the conversion of textual emergency content into aural content, and to give TV stations time to test and implement those technical solutions. The Comments also requested that the FCC waive the requirement that all visual but non-textual information (e.g., Doppler Radar and weather maps) be conveyed aurally on SAP until technological solutions to accomplish that become available. Finally, the Comments urged the FCC to reconsider or waive the requirement that school closings be considered a form of emergency information that must be made available aurally in the SAP until such time as a more practical solution is identified. In particular, the Comments noted that for stations serving areas with numerous schools and school districts, aurally listing all of the various closings (twice, as required by the rule for all emergency information) would crowd out more important emergency information with limited benefit given other sources of school closing information available. Throughout, the Comments emphasized that broadcasters support the goal of making video programming and emergency information accessible to all members of the public, but the difficulty of complying with these requirements before technical solutions are found places stations in the awkward position of deleting visual content that cannot readily be delivered aurally rather than risk a rule violation. Such an approach offers no benefit to the visually impaired while reducing the ability of TV stations to convey emergency information to the rest of their audience. (Proceeding Pending)
4. In the Matter of Low Power FM (LPFM) Advocacy Group Petition for Rulemaking for Improvements to the LPFM Radio Service (RM-11753), Joint Comments filed on August 31, 2015. On July 27, 2015, the Lower Power FM Advocacy Group (LPFM-AG) filed a Petition for Rulemaking with the FCC, asking the Commission to institute a number of changes that would fundamentally alter the nature of the LPFM service. In opposing the Petition, the participating State Broadcasters Associations focused on three main concerns: the Petitioner’s requests to (i) grant LPFM stations primary status; (ii) increase LPFM operating power; and (iii) allow LPFM stations to operate commercially. First, we argued that amending the rules to grant primary status to LPFM stations would compromise the integrity of FM spectrum by increasing the risk to full-power FM licensees in ways the FCC specifically found unacceptable in adopting the current rules. Additionally, we explained that the FCC’s obligation to maintain the secondary status of LPFM stations is mandated by the Local Community Radio Act, which provides that the FCC shall ensure that LPFM stations “remain . . . secondary to existing and modified full-service FM stations.” Next, we opposed any increase to LPFM power on the grounds that such increase would further strain an already overcrowded FM band. Granting this request would block licensing opportunities for FM translators (including for AM revitalization) and boosters, as well as undercut the hyperlocal nature of LPFM stations that the FCC intended to be the very essence of the service. We also argued that any increase in LPFM operating power would exacerbate the risk of interference to full power stations. Finally, we urged the FCC to reject the Petitioner’s request to allow LPFM stations to operate commercially. In authorizing the LPFM service, the FCC sided with the “overwhelming majority” of commenters who endorsed establishing LPFM as a noncommercial service, designed as a forum for programming responsive to local community needs and interests, not ratings and revenues. We pointed out that—contrary to the Petitioner’s argument that LPFM cannot survive as a noncommercial service—many LPFM licensees and advocacy groups also oppose the introduction of commercial elements to the LPFM service. In our comments, we noted that the State Associations are supportive of LPFM service, but urged the FCC to recognize that granting Petitioner’s requests would essentially replace the current LPFM service with an entirely different service—in contravention of the public interest and statutory mandates. (Proceeding Pending)

5. In re Amendment of the Commission’s Rule Related to Retransmission Consent, Report and Order and Further Notice of Proposed Rulemaking (MB Docket No. 10-71), 29 FCC Rcd 03351 (2014), Written Ex Parte Communication filed on October 13, 2015. In their Ex Parte Letter, the participating State Broadcasters Association vigorously opposed Chairman Wheeler’s proposal to eliminate the FCC’s TV Exclusivity Rules. We argued that, although broadcasters typically welcome Commission review of outdated rules, the Exclusivity Rules, while certainly well-established, are far from outdated. Any proposal to eliminate rules so integral to the health of broadcast localism cannot simply be viewed in the abstract, but instead must acknowledge the real-world consequences and harms that would ensue. The State Associations expressed disappointed to see the FCC, via the Blog Post of William Lake, the Chief of the FCC’s Media Bureau, merely repeating the same empty rationale for eliminating the Exclusivity Rules as the FCC’s Further Notice of Proposed Rulemaking (“FNPRM”) offered—that the rules are outdated. We stressed that there is an important distinction, however, between “outdated” and what the Exclusivity Rules actually are—tried and true. “Outdated” suggests that the Exclusivity Rules have ceased to have their original utility, but there is not an iota of evidence in the record to support that conclusion. They serve the same purpose today as when they were adopted, that purpose is no less vital, and mere repetition of the word “outdated” cannot change that fundamental fact. We also noted that many commenters in this proceeding have focused on the integral connection between the Exclusivity Rules and the continued availability of the Compulsory License, and they are correct that the two mechanisms are inextricably linked. The Blog Post seeks to deny that fact, and is therefore unpersuasive. However, that point has been well covered in the record by others, we stated, and the State Associations therefore wish to focus on a different unsupported assertion made in the Blog Post—that the issues the FCC seeks to create by eliminating the Exclusivity Rules can be addressed solely through contracts and court litigation. Indeed, the existence of the Compulsory License makes preservation of the Exclusivity Rules even more critical. Setting aside that it is not in the public interest to burden already overburdened courts with more litigation, stations and MVPDs with more costs, and the public with having to ultimately pay those costs (whether in lost local service or through higher prices on advertised products and MVPD subscriptions), we urged that contracts cannot accomplish the miraculous results the FNPRM and Blog Post attribute to them. Indeed, as detailed in the filing, the Exclusivity Rules remain necessary precisely because no private contractual regime can even begin to address the issues created by Congress via the Compulsory License. This is not a point of debate, but simple legal fact we argued. That is why there is nothing in the record actually seeking to demonstrate how contracts can successfully, much less efficiently, address the program exclusivity issues that the Exclusivity Rules manage so elegantly. Instead, the FNPRM and Blog Post merely assume that they can with no evidence to support that assumption. (Proceeding Pending)



2014 Filings:

1. In the Matter of Revitalization of the AM Radio Service, Notice of Proposed Rule Making (MB Docket No. 13-249), Joint Letter filed on January 22, 2014. The participating State Broadcasters Associations applauded the Commission’s commitment to diligently examine measures to revitalize the AM broadcast service nationwide, and expressed their appreciation to Commissioner Pai for his outstanding leadership in this important matter. Rather than awaiting the evaluation and resolution of all proposals that are being considered in this proceeding, the Associations urged the Commission, with respect to any particular proposal it deems sound on its face, consistent with the overarching goal of this proceeding and logically severable, not to delay adopting the proposal. Otherwise, the Associations argued, the Commission risked sacrificing the public interest benefits that could be achieved by several such proposals while it remains immersed considering hundreds of other proposals. (Proceeding Pending)

2. 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. (Proceeding Pending)

3. 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), Supplement filed on May 30, 2014, adding the names of additional participating State Associations.

4. In re the Commission’s Public Notice released August 7, 2014, on the subject of online public inspection and political files (Docket No. 14-127), Joint Letter Comments filed on August 28, 2014. The participating State Broadcasters Associations urged the Commission to proceed cautiously, guided by its cumulative experiences with current and expected television station filings as well as with an actual track record of pay-TV provider filings. Only after the Commission has reached a high comfort level that its online filing system will indeed be capable of handling the filing of millions of pages of new documents, should the Commission even consider whether to extend the online public/political file requirements to the more than 15,000 radio stations nationwide. (The FCC has issued a Notice of Proposed Rule Making proposing to extend the online public/political file requirements to radio stations, cable operators and satellite operators. The NPRM is responsive to a number of concerns that we raised in our August 28 Joint Letter Comments.) (Proceeding Pending)

5. In re Review of the Emergency Alert System, Public Notice (EB Docket No. 04-296), Written Ex Parte Communication filed on September 8, 2014. The participating State Broadcasters Associations supported the opening comments of the NAB relating to the National EAS Locator Code, the National Periodic Test Code, IPAWS, the EAS Test Reporting System, ETRS Forms and EAS test crawls. Also, in urging the Commission to grant all television stations the right of “selective override,” thereby allowing such stations to opt out of a cable system’s EAS override, the State Associations submit that “it makes little sense to require television stations to maintain certain speed, completeness, and placement of EAS crawls when such crawls can be overridden by cable systems.” (Proceeding Pending)

6. In re the US Forest Service’s Proposed Directive for Commercial Filming in Wilderness; Special Uses Administration (RIN 0596-AD20), Joint Letter Comments filed on December 3, 2014. The participating State Broadcasters Associations expressed concern that certain aspects of the US Forest Service’s current and proposed permitting process violate the First Amendment by imposing a “prior restraint” on the freedom of speech and freedom of the press that are guaranteed by the United States Constitution. At the current time, broadcasters are exempt from the Forest Service’s permitting process if they are on Forest Service land covering “breaking news.” “Breaking News” is defined as “An event or incident that arises suddenly, evolves quickly, and rapidly ceases to be newsworthy.” We argued that the only way for the Forest Service to avoid the prohibition against “prior restraints,” would be for the Forest Service to reject its unreasonably narrow definition of news. In support, we cited to a letter filed by the Idaho State Broadcasters Association that makes two salient points with respect to the Forest Service’s definition of “breaking news,” “[c]overage of a forest fire in Idaho would be exempt from filming restrictions while it is burning, but a story about the aftermath of that fire might not be.” Furthermore, the Forest Service’s “limited definition [of news] does not take into account the varied nature of news coverage including feature stories, sports, documentaries, on-line material and other programming that is produced over a longer period of time.” Accordingly, the State Associations urged the Forest Service to broaden the broadcaster exemption from the permitting process to include all newsgathering and dissemination activities of broadcasters. (Proceeding Pending)

2012 Filings:

1. In the Matter of Standardized and Enhanced Disclosure Requirements for Broadcast Licensees (MM Docket No. 11-189). Joint Motion for Extension of Deadlines for Filing Comments and Reply Comments. (Motion granted in part)

2. In the Matter of Standardized and Enhanced Disclosure Requirements for Broadcast Licensees (MM Docket No. 11-189). Joint Comments filed January 27, 2012 on behalf of the named State Broadcasters Associations. The State Associations urged the Commission to retain the QPI Lists requirement, which has long been accepted as the best evidence of whether a station has been responsive to local community needs, issues and problems, and to reject the notion that the number of minutes a particular type of program may have aired on a station is a more appropriate measure of a broadcast station’s service in the public interest than the information provided in the QPI Lists. We argued that those Lists are already “standardized” in terms of the type of information required to be included in them. The fact that it may be difficult for a person to “compare” the Lists of one station against the Lists of another station is simply not relevant. The QPI Lists were never intended to be used for station-to-station comparison purposes and such a focus on comparisons would be inappropriate in any event. Rather, the Lists are intended to measure a station’s own individual performance not vis-à-vis other stations but against the evolving needs, issues and problems of the station’s community of license and surrounding service area as the station understands them. To substitute a chiefly quantity of programming measure for public service performance, which is the focus of Free Press’ “Sample Form,” would, in the State Associations’ view, inappropriately, (i) elevate form (quantity of minutes) over substance (treatment of specific issues), (ii) place other undue burdens on stations, and (iii) intertwine the government for years to come in the journalistic news judgments of television broadcast stations throughout the country. The State Associations argued that the Commission “got it right” in 1984/1986, that the FCC acted arbitrarily and capriciously by reversing policy direction in the 2008 Report and Order, and that the Commission should not repeat that earlier mistake going forward. For those and the other reasons spelled out in these Joint Comments, the State Associations urge the Commission to terminate this proceeding without taking any action that may lead either (i) to the adoption of any form of quantitative program measure of a broadcast station’s service in the public interest, or (ii) to the deletion or modification of the current requirement that commercial and noncommercial broadcast stations maintain QPI Lists in their public inspection files. To the extent that the Commission may discern certain best practices in the drafting of QPI Lists, that type of information would be welcomed. (Notice of Inquiry Pending)

2011 Filings:

1. In the Matter of Innovation in the Broadcast Television Bands: Allocations, Channel Sharing and Improvements to VHF (ET Docket No. 10-235) Joint Reply Comments filed April 25, 2011 (Rule Making Pending)

2. In the Matter of Amendment of the Commission’s Rules Related to Retransmission Consent (MB Docket No. 10-71), Joint Comments filed May 27, 2011 (Rule Making Pending)

3. In re Notice of Public Information Collection(s) Being Reviewed by the FCC, Comments Requested on whether the FCC’s public inspection file rules should be retained in their present form (OMB Control No. 3060-0214), Joint Comments filed on June 17, 2011 (Matter Pending Before OMB)

4. In the Matter of Review of the Emergency Alert System; Independent Spanish Broadcasters Association, the Office of Communication of the United Church of Christ, Inc., and the Minority Media and Telecommunications Council, Petition for Immediate Relief; Randy Gehman Petition for Rulemaking (EB Docket No. 04-296), Joint Comments filed July 20, 2011 (Request for further extension of the CAP deadline granted. See below. Report and Order adopted, agreeing with the State Associations, among other matters, that the State Governors should not have their own “override” rights.)

5. In the Matter of Review of the Emergency Alert System; Independent Spanish Broadcasters Association, the Office of Communication of the United Church of Christ, Inc., and the Minority Media and Telecommunications Council, Petition for Immediate Relief; Randy Gehman Petition for Rulemaking (EB Docket No. 04-296), Petition for an Expedited Further Extension of the 180-Day “CAP” Compliance Deadline filed on July 29, 2011 (In response to the Petition, on September 15, the Commission agreed to extend the deadline to June 30, 2012.)

6. In the Matter of Closed Captioning of Internet Protocol-Delivered Video Programming; Implementation of the Twenty-First Centure Communications and Video Accessibility Act of2021 (MB Docket No. 11-154), Joint Reply Comments filed November 1, 2011 (Report and Order adopted, agreeing with the State Associations, among other matters, that the SMPTE-TT will effectively serve as a “safe harbor.”)

7. In the Matter of Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations; Extension of the Filing Requirement for Children’s Television Programming Report (FCC Form 398) (MM Docket Nos. 00-168 and 00-44). Joint Comments filed December 22, 2011 (Rulemaking Pending)

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