The Federal Communications Commission (FCC) recently released a Report and Notice of Proposed Rulemaking (NPRM) on Broadcast Localism. The NPRM advances many potentially costly and cumbersome proposals to re-regulate the broadcast industry, including: 

  • elimination of remote station operations; 
  • quantitative programming guidelines for television; 
  • locating a station’s main studio only within the community of license; 
  • affiliate review of television network programming;
  • radio voice-tracking regulation; 
  • local music reporting for radio broadcasters; and 
  • greater community outreach efforts for all broadcasters.

Given the potential costs of these proposed regulatory initiatives, all broadcasters should consider some degree of participation in this proceeding, whether individually, in groups, or through trade associations. Comments are due by March 14, 2008; reply comments are due by April 14, 2008.

Below we provide a brief synopsis of the background of this proceeding and the regulatory obligations proposed by the FCC.

Background

The FCC’s NPRM is an outgrowth of former FCC Chairman Powell’s 2004 Notice of Inquiry regarding Broadcast Localism (NOI). The NOI generated over 83,000 written submissions from the public. Six FCC field hearings were held across the nation. The NPRM addresses perceived concerns raised on this record, namely, that: (1) broadcasters’ public interest programming falls “far short” from what it should be; (2) many broadcast stations do not engage in sufficient public dialogue regarding community programming needs and interests; and (3) many members of the public are not aware of the issue-responsive programming that their local stations are airing. To address these perceived inadequacies, the FCC’s NPRM outlines several proposals to enhance broadcast localism and diversity, to increase and improve the amount and nature of broadcast programming that is targeted to the local needs and interests of a licensee’s community of license, and to provide more accessible information to the public about broadcasters’ efforts to air such programming.

Specific Proposals for Comment

Community Advisory Boards – The FCC tentatively concluded that licensees should convene a permanent advisory board comprised of officials and other leaders from the station’s service area to advise the station on community issues of importance that can be addressed in programming. The FCC specifically indicated that it did not wish to bring back the formal ascertainment process abolished in the 1980s, but the FCC asks if the old ascertainment guidelines could inform the make-up of the community advisory board. Other areas for comment include meeting logistics and how the board should be selected (or elected).

Informal Information Gathering – The FCC asked for comment as to whether it should adopt rules or guidelines incorporating other community outreach efforts, such as: (1) formal or ad hoc audience surveys; (2) “town hall” meetings with the broadcast audience (to prioritize issues to be covered in news, public affairs, public service, and special programming); (3) station management sitting on various boards, committees, councils, and commissions that depend on community participation; and (4) dedicated viewer feedback telephone numbers, Web sites and e-mail addresses, publicized during programming periods, to facilitate community dialogue.

Renewal Application Programming Guidelines – The FCC tentatively concluded that specific programming standards for broadcast licensees at renewal time could be beneficial. Such programming standards would set thresholds for broadcasters to meet in order to avoid additional localism scrutiny during the license renewal process. The FCC seeks comments regarding how it should establish these proposed guidelines. Should broadcasters be required to broadcast a specific number of local programming hours per week or a percentage of overall programming? Should the guidelines cover particular types of programming (i.e., local news, politics, public affairs, and entertainment) or simply reflect locally oriented programming generally? Must the programming be locally produced? Should the FCC adopt processing guidelines regarding specific types of locally oriented programming to be aired at particular times of the day? Or, should the FCC create other renewal processing guidelines that give renewal processing priority to stations that meet certain standards?

Remote Station Operation – In 1995, the FCC authorized unattended broadcast station operations due to the increased reliability and performance of remote operations. Since then, broadcasters have used remote operations to increase station efficiency or compensate for a lack of on-air talent in the broadcast community. Some participants in the NOI have asserted that the FCC should repeal its earlier liberalization, arguing that remote operations result in decreased local service to the community of license. (In particular, participants have argued that unmanned stations are less equipped to inform the community of local weather emergencies.) In this proceeding, and in the FCC’s proceeding on digital audio radio, the FCC is considering whether broadcast licensees should be required to maintain a physical presence at the broadcasting facility during all hours of operation.

Main Studio Location – At one time, all broadcasters were required to maintain their main studios in the station’s community of license. In the 1980s and again in the 1990s, the rules were liberalized. Now, a station may locate its main studio at any location within the principal community contour of any station licensed to its community or within 25 miles from the reference coordinates of the community. The FCC seeks comment as to whether it should revert back to the requirement to maintain the main studio in the community of license “in order to encourage broadcasters to produce locally originated programming.”

Affiliate Review of Television Network Programming – For television broadcasters that are affiliated with a major network, the FCC has a right-to-reject rule permitting affiliates to preempt network programming that it deems unsuitable for the station’s local community or to preempt network programming in order to substitute programming the licensee deems is of greater local or national importance. The NPRM seeks comment regarding whether the right-to-reject rule should be bolstered by giving affiliate stations the right to review network programming before it is aired, and if so, which shows, such as live events, should be exempted.

Voice-Tracking – The NOI also sought comment on voice-tracking, a practice by which stations import popular out-of-town personalities from bigger markets to smaller ones, customizing the programming to make it appear as if the personalities are local residents. The FCC noted in the NPRM that “such practices may diminish the presence of licensees in the communities and thus hinder their ability to assess the needs and interests of their local communities.” The FCC seeks comment on the prevalence of voice-tracking and whether the FCC can and should take steps to limit the practice, require disclosure, or take other steps.

Local Music – Many public participants expressed concern that the prevalence of national playlists by large radio station groups effectively shuts out local music talent airplay. The FCC explains in the NPRM that the record to date does not support a prohibition against the use of national music playlists. However, the FCC is seeking further comment on whether radio licenses should be required to provide data regarding their airing of local artists and how station playlists are developed.

New Proceedings To Be Initiated

In addition to the items above, the FCC also stated that it would open further proceedings related to broadcast localism. We have highlighted three of these FCC proposals below.

Embedded Advertising – In connection with the FCC’s investigation into video news releases (VNRs), it may consider calling for additional comments from the public regarding a “broader set of issues,” including embedded advertising. Embedded advertising is the practice of promoting for consideration a commercial product or service by placement within the program (i.e., actors drinking a branded soft-drink on air).

In-State Television Must Carry – The FCC will initiate a rulemaking proceeding to consider must carry market definition changes to address situations in which Designated Market Areas (DMAs) cross state borders or where out-of-state stations are closest to the cable system’s principal headend. In these cases, the FCC may propose modifications of the carriage rules to provide cable and satellite subscribers with service from an in-state television station.

Upgrade of Low Power Television Stations to Class A – The FCC tentatively concluded that it should allow additional low power television stations to upgrade to Class A status and will seek comment on this proposal, including suggestions as to eligibility standards.

Localism Issues in Other FCC Proceedings

In the NPRM, the FCC also listed several other localism-related issues that are the subject of other FCC proceedings. In the “Enhanced Disclosure Order,” released simultaneously with the Localism NPRM, the FCC adopted new rules requiring television broadcasters to post most of their public file on their Internet Web site (if they have one). Additionally, the Enhanced Disclosure Order requires television stations to file quarterly reports with the FCC detailing the amount and kinds of local programming they air using a standardized form. The standardized programming report form was adopted to replace the current issues and programming list, but goes far beyond this function. On the form, stations must list all programs in the following categories: national news, local news (produced by the station), local news (produced by another entity besides the station), local civic affairs, local electoral affairs, independently produced programming, other local programming, and public service announcements. Stations must also indicate whether they have undertaken any efforts to determine the programming needs of their community of license, indicate whether they have complied with closed captioning requirements, and disclose any local marketing agreements.

Other localism issues being addressed in pending proceedings are: (1) enhanced disclosure for radio stations; (2) the use of FM translators by AM radio stations; (3) the emergency alert system; (4) interference protections for low-power FM radio; (5) network affiliation contract issues; (6) payola, VNRs, and sponsorship identification; and (7) greater opportunities for new entrants to broadcast ownership.

Participation in the Localism Proceeding

All broadcasters should consider participating in the localism proceeding in order to document the impact of the FCC’s proposals. The NPRM does not address exemptions for stations operating in lower-ranked markets or those employing smaller staffs, nor does it fully consider the economic burdens of the proposals. In some instances, the FCC has made tentative conclusions in the NPRM to impose new regulations; in other instances, it lists only potential avenues of regulation it might consider. In all cases, it may be possible for the broadcast industry to avoid or lessen the potential for further regulation where broadcasters can demonstrate that the proposals would be burdensome and not further the FCC’s goals.

In short, we believe that this proceeding could impact the day-to-day operations of all broadcast station licensees and urge those in the broadcast community to participate. As stated above, comments are due by March 14, 2008, and reply comments are due by April 14, 2008. Please contact any one of the attorneys listed below for further information or to participate in this proceeding.