In the last few weeks, while I was on vacation and otherwise occupied, there have been many big developments in the broadcasting and music industries that I’ll try to write about separately – including the release of the FCC’s Order setting up the first official outline of the television incentive auction process and the Department of Justice beginning an examination of the antitrust consent decrees that govern ASCAP and BMI.  But a couple of quick FCC decisions bear mentioning here.

First, the FCC announced a change in the CALM Act, regulating loud commercials.  We wrote about the FCC’s order implementing the Act, here.  One of the FCC’s decisions in implementing the Act was that stations could comply with its provisions by meeting the standards set out in A/85 Recommended Practice, a standard adopted by the ATSC (the Advanced Television Standards Committee).  The FCC noted that such standards would be revised from time to time.  That standard has now been revised by ATSC, and stations, to remain in compliance with this safe harbor for compliance under the CALM Act, are expected to comply with the revised standard by June 4, 2015.Another interesting development was the delay in the effective date of the new application fees for FCC applications filed by commercial entities.  We wrote about the new fees here.  These fees were supposed to have taken effect on June 6, but because of an error in the Federal Register publication omitting a page from the new fee schedule, the effective date has been postponed to July 3

Finally, the FCC adopted a hearing designation order in a case involving a broadcaster who lost a number of radio station licenses a dozen years ago when the FCC revoked those licenses based both on alleged misrepresentations to the FCC and on his conviction of a felony involving sexual relations with children.  The broadcaster who lost these licenses is now seeking to buy another FCC license, arguing that the events on which his felony convictions were based took place over 20 years ago, that he has been released from prison for almost 15 years and has been rehabilitated and, given the passage of time and his rehabilitation, he should now be allowed to hold an FCC license.  A child protection organization has challenged the application, questioning the evidence of rehabilitation, and also arguing that the individual had improperly been managing a station through an LMA in the recent past without FCC approval, and his past character issues should have prohibited that management. 

The FCC decided that there was nothing wrong with his LMA, as such an operation was not prohibited under the FCC’s character policy statement.  But the FCC decided to hold a hearing to determine whether the broadcaster has been sufficiently rehabilitated from his past criminal conduct, which had been found to be actions that “that shock the conscience and summon almost universal disapproval, a category that the FCC expressly warned would be the subject of special agency concern” when his licenses had initially been revoked.  Given the nature of the offenses, the FCC wanted to hold a hearing to determine if his rehabilitation was in fact complete, and also whether the misrepresentation and lack of candor that he was determined to have exhibited also were issues that, with the passage of time, should no longer concern the FCC.  This case could clarify the FCC’s character policy statements acknowledgement that rehabilitation of someone’s character to own an FCC license is possible.  It may well help to set out what the limits on that rehabilitation may be, both in terms of remoteness in time and the seriousness of the prior offense.