Requiring broadcasters to dig into the true sources of funding for political ads as is requested in a letter Thursday from several transparency groups would create a thorny situation for the FCC, several broadcast attorneys said. The letter to FCC Chairman Tom Wheeler from the Campaign Legal Center, Common Cause and the Sunlight Foundation said the agency should act on several complaints, applications for review on the matter that have been sitting since 2014 (see Ref:1411130068]), and a Media Access Project petition for rulemaking from 2011. The Communications Act requires broadcasters to “exercise reasonable diligence” to correctly identify sponsors of political ads, and the FCC should enforce the law, said Georgetown Law Institute for Legal Representation Senior Counselor Andrew Schwartzman, who represents the groups.
Monty Tayloe
Monty Tayloe, Associate Editor, covers broadcasting and the Federal Communications Commission for Communications Daily. He joined Warren Communications News in 2013, after spending 10 years covering crime and local politics for Virginia regional newspapers and a turn in television as a communications assistant for the PBS NewsHour. He’s a Virginia native who graduated Fork Union Military Academy and the College of William and Mary. You can follow Tayloe on Twitter: @MontyTayloe .
The back and forth between Chairman Tom Wheeler and Commissioner Ajit Pai over the AM revitalization order is the latest flare-up (see 1510260062) in what is seen by some as a more partisan and divided FCC than past administrations, communications attorneys and former agency officials said in interviews this week. Wheeler and Commissioners Mignon Clyburn and Mike O'Rielly referenced (here, here and here) the disagreements and very public battle over the order in statements released with it. Lawyers said an antagonistic atmosphere at the commission is being exacerbated by partisan fighting in Washington.
The FCC released the text of its AM revitalization order, creating a 2016 window for AM stations to apply for waivers to relocate existing FM translators, and a 2017 window for AM stations that didn’t use the first window to apply for new FM translators, as expected (see 1510220060). “We are very pleased that all five Commissioners came together in a spirit of compromise to unanimously approve this order,” said National Association of Black Owned Broadcasters President Jim Winston in a statement Saturday. The item includes a report and order, plus a Further NPRM and a notice of inquiry that seek comment on possible further policies such as removing skywave protections for Class A stations. The Media Bureau is already taking action on the order, issuing a public notice Monday on the specifics of the 2016 window application process.
The FCC decision that lawyers representing multiple clients in the incentive auction are at risk of violating anti-collusion rules mean communications lawyers need to limit their own access to information, lawyers who study legal ethics rules said at an FCBA ethics CLE Thursday night. Since the FCC guidance on the prohibition is focused on bidding information (see 1510070082 and 1510070072), attorneys seeking to represent multiple clients need to make arrangements with their clients ahead of time to make sure they won't have access to bidding information, said Wilkinson Barker General Counsel Lawrence Movshin. “You should be trying to avoid getting any kind of prohibited information.”
The FCC voted to approve an AM revitalization order that includes a 2017 AM-only window for FM translator applications, said agency and industry officials during Thursday’s commissioner meeting and in subsequent interviews. The text of the item hasn't been released and won’t be until at least Friday, said a Media Bureau spokeswoman. Chairman Tom Wheeler and Media Bureau Chief Bill Lake confirmed during a news conference Thursday in response to our questions that the item was approved.
The FCC unanimously approved an NPRM on proposals to make it easier for broadcasters to have foreign owners and change the way the commission assesses foreign ownership, as was expected (see 1510190064). The foreign ownership rules for broadcasting act as funding constraints that other industries don’t face, said Commissioner Jessica Rosenworcel at Thursday’s commissioner meeting. The proposals in the NPRM would allow the FCC to allow broadcasters better access to foreign capital without “sacrificing” security, Rosenworcel said. “It’s time to fix these constraints,” she said. “If a common carrier can request commission approval for up to 100 percent foreign ownership, why shouldn’t a broadcaster be able to do the same?” Commissioner Ajit Pai asked.
Three incentive auction items that had been on the agenda for Thursday’s FCC meeting were approved and won’t be part of Thursday’s session, agency officials said in interviews. An item involving proposed rules for broadcaster channel sharing was released Wednesday after being approved by the full commission. Rules on interference after the auction between wireless carriers in the 600 MHz band and broadcasters, and an item defining when broadcasters and unlicensed users need to vacate their spectrum to make way for the new wireless owners, have also been approved, they said.
Broadcast deals are happening in the shadow of the looming incentive auction, but they aren't a reaction to it, broadcasters, attorneys and analysts told us. Deals such as Gray/Schurz (see 1510010020) involve stations and groups that mostly won't be participating, while other transactions -- such as the ongoing dance among Nexstar, Media General and Meredith (see 1510150071) -- stem from discussions that started before the auction was so imminent, analysts and broadcasters told us. The auction and its accompanying communication prohibitions and repacking add some risk and complications to transactions happening now, the experts said.
A draft NPRM on relaxing foreign ownership rules (see 1510010042) is expected to be approved at Thursday’s FCC meeting, and it could be a unanimous vote, agency and industry officials told us Monday. The NPRM seeks comment on rule changes that would apply largely to situations involving foreign ownership of broadcasters, but some that also apply to common carriers, an agency official said. Relaxation of rules making it difficult for foreign investment in broadcasting was spoken of favorably in blog posts from Commissioner Mike O'Rielly and Chairman Tom Wheeler (here and here) in recent months, and previous efforts to relax the rules met no opposition, broadcast attorneys said. The proposals in the NPRM are widely supported by broadcasters, industry attorneys said.
Incentive auction-eligible broadcasters now know the highest bid their stations will receive, and that they have to decide whether to participate by Dec. 18, after the agency released a pair of public notices on application procedures and opening bids Thursday and Friday. “We’ve fired the starting gun,” Chairman Tom Wheeler said in a statement. The FCC also indicated that the window for carriers and other forward auction bidders to submit their short-form applications is Jan. 14-28.