FCC Watch

A Broadcaster's Guide To Washington Issues

Here's a briefing on the legal and regulatory proceedings affecting broadcasters from communications attorneys David Oxenford and David O'Connor. The topics: Aereo ... CALM Act ... Class A TV ... Closed Captioning ... EEO 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.

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 doxenford@wbklaw.com or 202-383-3337 and O'Connor at doconnor@wbklaw.com or 202-383-3429.

In alphabetical order:

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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. 

Brand Connections

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.

Closed Captioning

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.


Comments (2) -

BroadbandisBest Nickname posted over 2 years ago
Dear David and David, This is just a fantastic document. Thank you for all of the hard work to put this together. It is very much appreciated.
Roger Thornhill Nickname posted over 2 years ago
Whoa, my head is spinning. This is all crap the MVPDs don't have to deal with and yet they still want more concessions from broadcasters by crying unfairness and demanding reforms in broadcast exclusivity and retransmission consent agreements.
Marketshare Blog Playout Blog




Overnights, adults 18-49 for September 22, 2016
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Source: Nielsen


  • Rob Owen

    Easily fall’s best broadcast network comedy pilot, NBC’s The Good Place offers a clever high-concept premise that’s complemented with intelligent, sometimes absurdist humor. Created by Michael Schur, co-creator of NBC’s Parks and Recreation, The Good Place is a highly serialized series that’s essentially set in heaven and stars Kristen Bell and Ted Danson. NBC made five episodes of The Good Place available for review, and the show not only holds up, but also it improves, deepening characters that initially feel one-note and frequently leaving viewers guessing with cliffhanger endings to many of the episodes. The combination of snappy dialogue and winning but flawed characters makes The Good Place a great bet for fans of smart TV comedy.

  • Maureen Ryan

    Pitch has swagger, for good reason. It gets the big things right; the Fox drama about the first female baseball player in the Major Leagues is one of the year’s most assured and exciting debuts. But part of what impresses about the pilot is also the way it confidently strings together so many small but telling details. Ginny (Kylie Bunbury) is the first woman to be called up from the minors to the big leagues, and no show since Friday Night Lights has done a better job of portraying the internal and external pressures that weigh heavily on young athletes asked to do much more than merely succeed on the field. Pitch will likely do a good job of getting viewers to root for it. The hope is that the show won’t be an impressive, short-lived curiosity, but rather a long-term phenomenon.

  • Kevin Fallon

    In a fall TV season that’s already making a splash for championing diverse, distinctive voices in an array of projects that they created, wrote, and starred in, Better Things on FX stands out. The show is created by, written by, and starsPamela Adlon. She plays Sam Fox, the single mother of three daughters modeled after her own reality-show-ready experience raising three girls in Los Angeles following a divorce. Sam is also, like Adlon, a working actress — on shows both raunchy, a la Californication, and animated for children, like her role on Recess. It’s a refreshingly blunt take on single motherhood without sacrificing the warmth of parental love, portraying the dance between selfishness and selflessness that’s at the heart of being a parent — especially one weathering the hormonal fireworks of a household of four women at different ages.

  • David Wiegand

    The fall TV season doesn’t count as much as it used to — we already know that. But no matter how many retreads the broadcast networks throw at viewers in the next few months, this fall will be memorable because of the premiere of Atlanta on Tuesday, Sept. 6, on FX. The half-hour comedy created by and starring Donald Glover (Community), simply and brilliantly recalibrates our expectations of what a TV comedy is and how black lives are portrayed on the medium.

  • Louisa Ada Seltzer

    The second reboot of the 1980s John Candy movie Uncle Buck, bumped by ABC from midseason, has the same tired jokes you'll find on any second-rate sitcom. Too bad, because Mike Epps is appealing and ABC would be wise to keep him around for future shows, but there’s just not enough to this show to suggest it will last past summer. It also airs against NBC’s America’s Got Talent, summer’s No. 1 program on broadcast, which may make it even harder to find an audience.

  • Neil Genzlinger

    Bryan Cranston brings his Tony Award-winning interpretation of President Lyndon B. Johnson to television in an adaptation of the Robert Schenkkan play All the Way, and it’s still quite a sight to behold, just as it was on Broadway in 2014. Nothing beats witnessing this kind of larger-than-life portrayal onstage, of course. But the television version, presented by HBO, offers plenty of rewards, allowing Cranston to work the close-ups and liberating him from the confines of a theater set. Cranston’s performance is a gem — in his hands, this accidental president comes across as an amazing bundle of contradictions, someone who seems at once too vulgar for the job and just right for it.

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