A Broadcaster's Guide To Washington Issues
It has been an eventful quarter for broadcast television, with major rulings at the Supreme Court and the FCC. To help you keep up, here's FCC Watch, an exclusive briefing on some of the major issues at the agency prepared by David Oxenford and David O'Connor, attorneys in the Washington law offices of Wilkinson Barker Knauer LLP. You can reach Oxenford at firstname.lastname@example.org or 202-383-3337 and O'Connor at email@example.com or 202-383-3429.
In alphabetical order:
In a sweeping victory for broadcasters, the Supreme Court on June 25 ruled 6-3 that the Aereo service infringes on broadcasters’ public performance rights. Read our summary of the decision here. In the wake of the decision, Aereo originally announced that it was pausing its service, but has now asked the lower courts to consider it as a cable system, entitled to rebroadcast television stations under the statutory license. Read our thoughts on this issue and the potential that Aereo could end up having to negotiate retransmission fees here.
Recently the Copyright Office ruled that it could not process Aereo’s submission of royalties and other filings because it found that Aereo does not appear to qualify for a compulsory license as a cable system under the Copyright Act.
Aereo has made noises about seeking relief from Congress, where retransmission consent issues, as well as a major copyright overhaul and a revamp of the communications laws are all on the table. The Copyright Office is also seeking comments on the meaning of the Supreme Court decision, comments from which it may suggest further action to Congress. Little movement is likely in Congress in an election year (other than STELA reauthorization – see below), but stay tuned for these issues to resurface in the next Congress.
CALM Act/Loud Commercials
The CALM Act, meant to end the dreaded “loud commercial” on TV, went into effect in December 2012. TV stations with more than $14 million in revenue in 2011 were required to complete their first annual “spot checks” of embedded advertisements in uncertified programming by Dec. 13, 2013. See our summary of CALM Act requirements here and here.
Last summer, Acting Chairwoman Mignon Clyburn advised Congress that the FCC is monitoring complaints related to loud commercials, and suggested that if a particular station receives a sufficient number of complaints, the FCC will issue a Letter of Inquiry regarding the station’s CALM Act compliance. So stay tuned for possible enforcement actions related to the CALM Act.
In June, the FCC adopted minor revisions to the CALM Act rules, in recognition of changes to the technical standards that were adopted by the Advanced Television Standards Committee. Broadcasters must comply with the new standards by June 4, 2015. For more information, click here.
TV Closed Captioning —
In February, the FCC adopted significant new closed captioning obligations for broadcasters, which will be phased in over time. To begin with, the FCC clarified that the closed captioning rules apply to mixed English-Spanish programming, to on-demand programming, and to low power TV stations. The FCC also clarified that snippets of English or Spanish on programs that are otherwise in a different language do not need to be captioned.
In addition, as of June 30, broadcasters utilizing the Electronic Newsroom Technique (“ENT”) must ensure that most news programming is scripted for the teleprompter (and therefore captioned), and must utilize crawls and other visuals to provide visual access when ENT is not used. See this article here for further information.
The FCC also has imposed stringent new “quality” standards for captioning, in four distinct areas: 1) accuracy; 2) synchronicity with the words being captioned; 3) caption completeness from the beginning of a program to its ending; and 4) caption placement so that the caption text does not obscure other important on-screen information. These quality standards will take effect no earlier than January 1, but may be delayed depending on the OMB approval schedule.
In the Further Notice portion, the FCC asks a number of questions about methods to assess compliance with the new requirements, among other issues. Comments in that proceeding were due July 9, with replies due August 8.
At the same time, the FCC has been restricting the waiver process for closed captioning under the “undue economic burden” standard. That standard is significantly higher than in previous years. The FCC has been reviewing the captioning waivers and issuing public notices soliciting comments. Consumer groups have actively opposed the waiver requests. So far the Commission has dismissed a number of requests as deficient, and sought additional information from others, but to date it has not issued any substantive decisions on these waiver requests.
IP Captioning — In January 2012, the FCC adopted rules that require closed captioning of certain full-length video programming delivered via Internet protocol (i.e., IP video). The rules are a result of the 21st Century Communications and Video Accessibility Act (CVAA) federal law designed to improve the accessibility of media and communications services and devices.