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FCC Filings

FCC Proceedings and State Association Support
The New Hampshire Association of Broadcasters, under the guidance of federal legal counsel Richard Zaragoza with the Washington, DC law firm of Pillsbury Winthrop Shaw PIttman, LLP, has provided support (in the form of Joint Comments and/or Joint Reply Comments alongside state broadcast associations nationwide) in the following FCC filings:

There follows a further updated listing of the FCC proceedings, and one piece of Federal legislation, in which the various State Broadcasters Associations jointly participated from January 1, 2011 to the present.  These examples of advocacy before the FCC illustrate how vigorous the participating State Broadcasters Associations have been in protecting and advancing the best interests of the free, local, over-the-air, radio and television industries before the FCC.

  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 on behalf of the named State Broadcasters Associations. The FCC's Notice of Proposed Rule Making proceeding is considering the reallocation of 120 MHz spectrum from the television industry to the wireless industry. The State Associations representing the fifty States and the District of Columbia stated that while they were appreciative of Chairman Genachowski's remarks before the breakfast audience at the NAB Convention and his dialogue at the NAB Convention with the Executives of a number of State Associations, they continue to have very serious misgivings about the approach being taken by the Commission to remove even more of the spectrum that is used for free, local, over-the-air, commercial and noncommercial television broadcasting. Together the State Associations expressed the view that the Commission's spectrum reclamation approach to solving any user congestion challenges that the wireless industry may face in the future rests on assumptions that have not been supported and cannot be supported at this time. They demonstrated that the DTV transition is new, ongoing and challenging, and the fruits of its public interest potential have yet to be fully realized. The State Associations also pointed out that the Commission's choice of TV spectrum for reclamation is not the necessary product of an independently conducted spectrum inventory audit. Furthermore, they challenged as questionable the Commission's notion of "voluntary," in connection with its incentive auction proposal, in the absence of legally binding FCC assurances that no monetary or non-monetary adverse effect, condition or consequence will befall any station which has not agreed to participate in the auction. Finally, the State Associations argued that the Commission's "problem solving" approach as set forth in the NPRM is too regulatory and not sufficiently marketplace-driven. For those reasons, they urged the FCC to hold the proceeding in abeyance until at least (i) a truly independent spectrum inventory has been commissioned and the results are made part of the record for public comment, (ii) the Office of Engineering and Technology's Allotment Optimization Model ("AOM") is made a part of the record for public comment, and (iii) the Commission has issued a legally binding commitment to the effect that no television station will be caused to suffer any adverse monetary or non-monetary effect, condition or consequence as a result of choosing not to turn in all or a portion of its spectrum via auction or otherwise. (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 on behalf of the named State Broadcasters Associations.  The Joint Comments strongly supported the current statutory scheme guaranteeing the must carry/retransmission consent rights of our Nation's free, local, ubiquitous, commercial and noncommercial television broadcast stations.  We expressed pleasure that the Commission had, in its NPRM, again expressly acknowledged that it does not possess the requisite statutory authority to impose mandatory interim carriage or binding arbitration even in the rare circumstance where the parties fail to reach a mutually agreeable arrangement through their retransmission consent negotiations.  We contended that if, as is clearly the case here, the Commission may not directly undermine the must carry/retransmission consent rights of television stations, it follows as a matter of law that the Commission may not indirectly undermine those rights.  We showed that the Commission's proposal to eliminate the network non-duplication and syndicated exclusivity rules would undermine those rights by removing the ability of television stations to deny an MVPD the programming that the television station had developed or acquired at great expense, even in the rare circumstance where the station and the MVPD were unable for any reason to come to mutually acceptable retransmission consent terms.  Given the undermining effect that the elimination of the network non-duplications and/or syndicated exclusivity rules would have on the must carry/retransmission consent scheme established by Congress, the State Associations contended that the Commission would be acting in an arbitrary and capricious way if it were to eliminate either of those rules.  We maintained that informing and empowering subscribers, not government intervention, is the only lawful and otherwise appropriate way to address potential MVPD service disruptions.  Accordingly, in order to ensure that consumers are not caught unaware in the atypical circumstance when retransmission consent negotiations reach an impasse and that such consumers are sufficiently empowered to protect themselves, we urged the Commission to amend Section 73.1603 of its rules (advance notice required before any signals are deleted) by (i) applying the rule to all MVPDs, (ii) expanding the advance notice from thirty (30) days to sixty (60) days; and (iii) requiring MVPDs to waive any termination fees for subscribers who wish to terminate their service in response to a notice issued pursuant to Section 73.1603, as amended.  (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 on behalf of the Named State Broadcasters Associations.  The Joint Comments urged the FCC to temporarily suspend its enforcement of its commercial and noncommercial public inspection file rules ("PIF Rules") until such time as it fully reviews and updates those rules as well as its related enforcement policies.  Such suspension would not apply to the documents required to be placed in a station's political file.  We argued that the Commission is no less accountable than is OMB under the requirements of the Paperwork Reduction (the "PRA"). The PIF Rules are over 45 years old and there has been no recent effort by the Commission, notwithstanding the requirements of the PRA, to justify the PIF Rules taking into account (i) the decades old lack of any sustained, interest among members of the public (except for representatives or candidates and political parties to inspect political files) to actually review the documents in station public inspection files, (ii) the very significant staffing burden of maintaining an up-to-date public inspection file that has grown in length, scope and complexity over the years, (iii) the current availability of many of the same documents on the FCC's own website, (iv) the unreasonably high base fine for a public inspection file violation ($10,000) particularly when compared with the base fines for other types of violations, and (v) the fact that the cycle for radio station license renewals has just begun (with television stations scheduled to begin filing their renewal applications in less than 12 months) which potentially adds to the burden on thousands of stations which must self-disclose any public file deficiencies going back eight years.  (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 on behalf of the named State Broadcasters Associations.  The Joint Comments applauded the Commission's adoption of the Third Further Notice dealing with the conversion of EAS to CAP and stated that the NPRM affords an important and timely opportunity for interested parties to provide a boots-on-the-ground assessment of the strengths and weaknesses of the Commission's current Part 11 Rules in a Common Alerting Protocol environment.  The State Associations encouraged the Commission to exercise its expertise in overseeing EAS to ensure that every state, county, and local authority with public safety responsibilities understands that its active participation is needed in the design, updating, and execution of statewide EAS plans that serve as the centralized, federally approved, roadmap for the use of EAS throughout each state and territory.  The Associations also urged the Commission to use the State Emergency Communications Committees as change agents to promote more robust EAS partnerships at the state, county and municipal levels.  While the commitment to EAS in many states is consistently exemplary, the track record nationwide has been uneven at best.  Furthermore, the budgetary constraints affecting state and local governments, from which virtually 100% of the EAS messages originate, are challenging the national goal to upgrade their EAS transmission capabilities to CAP as soon as possible.  The State Associations believe that if the Commission re-establishes its commitment to, and the authority and stature of, the SECCs, such Federal institutional support, coupled with the sacred duty of governmental authorities at all levels to protect their citizens, will result in a more robust EAS partnerships among all stakeholders. Those partnership, in turn, will lead to a faster and more complete upgrading of the EAS system nationwide.  In sum, SECCs should be recognized by the Commission as too long underutilized, but critically important, engines of change that can help to take EAS, as used by state and local authorities, to the levels to which FEMA, the FCC and the broadcast industry aspire for the Nation.
    The Joint Comments also urged the Commission to delete the gubernatorial preemptive override requirement: the State Associations and others have demonstrated earlier in the proceeding that the gubernatorial override requirement is itself wholly unnecessary and problematic.  The State Associations submited that the willingness of broadcasters to respond when called upon by state and local emergency managers has never been an issue and that no one has ever suggested that broadcaster cooperation turns on who is issuing an alert about an emergency situation.  The nature of the event dictates that cooperation.  The Comments stated that the record in the proceeding is replete with examples of the dedication and commitment that the broadcasters have had toward creating a better EAS for the benefit of all Americans.  Unquestionably, of the many ways that local broadcasters serve the public interest, nothing is more important to them than preserving the safety of their viewers and listeners.  The Joint Comments further argued gthat the gubernatorial override right stands the FCC's EAS protocols under Part 11 on their head.  The thrust of the EAS protocols is event based, not originator based.  There are in fact dozens of event-centric codes that focus on the type of events which put citizens at risk – those events in turn dictate the nature of the message and the corresponding code.  The Governor's override right elevates the speaker over the event.  Moreover, a governor is already accounted for under one of the four "originator codes" under "Civil Authorities."  He or she already works through the state emergency management and public safety authorities.  All of those authorities work very cooperatively with broadcast stations, cable systems and others.  Even the President does not have his own "originator code." (Rule Making Pending with the exception of the request for further extension of the CAP deadline which has been granted.  See below.)

  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 on behalf of the named State Broadcasters Associations, the Broadcast Warning Working Group, NAB, NCTA, ACA, NPR, APTS and PBS.  For the reasons stated in the Petition, we urged the Commission to remove from the slower moving rule making proceeding the pressing issue of whether to grant a further extension of the CAP deadline and to extend the September 30 deadline to a date that is 180-days from the legal effectiveness of the expected Report and Order amending Part 11 (EAS) of the FCC's regulations.  (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 of 2021 (MB Docket No. 11-154), Joint Reply Comments filed November 1, 2011 on behalf of the named State Broadcasters Associations.          The Reply Comments were filed in the FCC's rule making proceeding seeking to implement certain provisions of the 21st Century Communications and Video Accessibility Act of 2010 that would require television stations to caption television programming disseminated over the Internet.  Because the NPRM raised the specter of a wide range of new regulations on television stations, the Associations sought to reduce those  burdens and regulatory risks in several ways.  First, we urged the FCC to adopt the SMPTE-TT, which was recommendated and the Video Programming Accessibility Advisory Committee and supported by the NAB, as the industry standard for the interchange format for receiving and passing through closed captioning.  We pointed out that SMPTE-TT would provide television stations and other parties in the distribution chain with needed certainty which, in turn, would save time and money during the online captioning process.  In line with the NAB, we also asked the Commission to allow SMPTE-TT to serve as a safe harbor for the FCC's Internet captioning requirements.  Second, we urged the FCC to limit its captioning requirements to "full-length programmings" with the effect that the new requirements would not apply to excerpts or clips of full-length programs, such as individual segments of a local news program streamed online.  Third, we urged the FCC to extend by an additional six months the lead times when the new regulations would become effective, reasoning that without such an extension stations may be forced to reduce or eliminate online postings of live, near-live, and prerecorded, unedited programming until their captioning resources and other capabilities are fully developed. (Rule Making Pending)

  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).  In its October 27, 2011 Order on Reconsideration and Further Notice of Proposed Rulemaking, the Commission vacated its previously adopted but never effective FCC Form 355 which the State Broadcasters Associations, the NAB and others had vigorously opposed before the FCC.  Furthermore, in the rule making portion of its October 27 action, the Commission (i) accepted the position of the State Broadcasters Associations that it would be too burdensome for individual television stations to be required to re-design and maintain station online public inspection files on their own websites, and (ii) agreed to host such files on its own website.  (Rulemaking Pending; Joint Comments currently being drafted in response to rulemaking)