Comcast continues to rally in FCC dispute with Tennis Channel

Cable giant Comcast Corp. appears to be headed for a tie-breaker in its long-running dispute with the small, independently owned Tennis Channel.

In December, a Federal Communications Commission administrative judge issued a tentative ruling that Comcast had discriminated against the Tennis Channel by putting it at a competitive disadvantage.

After winning that ruling, the Santa Monica network demanded that Comcast immediately add the channel to Comcast's most widely distributed programming package. The move, which Comcast has been resisting, would make Tennis Channel available to nearly all of Comcast's 22 million cable subscribers. 

But on Wednesday the FCC general counsel said that the full FCC would decide the matter and that Comcast was not required to move Tennis Channel at this time.

The dispute, which began nearly three years ago, centers on Comcast's refusal to move the Tennis Channel to a less exclusive environment.

The Philadelphia company has said it placed the Tennis Channel in the sports tier as part of an agreement between the two companies when Comcast agreed to provide carriage.  However, Comcast appeared to run afoul of the rules because it offers the sports channels that it owns, the Golf Channel and NBC Sports (formerly known as Versus), in the basic programming package.

The Tennis Channel has argued that its location unfairly limits its revenue potential because channels receive fees from cable operators based on number of subscribers. 

If Comcast loses the case, it would be the first time that a cable operator was found in violation of federal anti-discrimination program carriage rules, which were established by the agency in 1993. Comcast lost a similar dispute Wednesday, this one with Bloomberg. 

On Wednesday, the FCC General Counsel Austin C. Schlick said the full commission should settle the Tennis Channel score.  It was not clear when the commission would make the final call. 

"The interim stay granted by the Office of General Counsel regarding the Tennis Channel is a welcome development, and we hope the full commission will follow suit," Comcast said in a statement. "There were procedural and substantive flaws in the [administrative judge's] decision, and we continue to believe it should not be upheld."

For its part, the Tennis Channel said the interim stay didn't change the administrative judge's findings. Instead, it was "simply a continuation of the status quo while the commission decides the procedural question.... We are pleased that the commission continues to move forward in resolving this dispute." 

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-- Meg James

Photo: Tennis Channel's Bill Macatee and Martina Navratilova, center, interview Ana Ivanovic. Credit: Fred Mullane 

FCC votes to require online disclosure of political ad spending

The Federal Communications Commission voted on Friday to require local television stations to put detailed information about political advertising including the cost of specific commercials on their websites.

While such material is already required to be made available to the public, anyone seeking to know how much candidates are spending and on what programs typically has to visit a local television station and make a request to see what's known as the "public files."

FCC Chairman Julius Genachowski had pushed hard for this requirement, which had failed to pass the first time the FCC advocated it several years ago. He called it a "common sense" move.

But broadcasters fought against certain parts of the new rule. While having no problem with posting political ad spending by candidates and campaigns in the aggregate, they balked at having to include specific rates for individual advertisements.

They fear that will make confidential information available to commercial advertisers as well as rival stations. Even though said information was already available, the general consensus in the industry is that advertisers rarely took the initiative to go on a fact-finding mission. Now, though, the same information will be available at the click of a button.

The National Assn. of Broadcasters, the primary lobbying arm of the television industry, said in a statement that the new rule "jeopardizes the competitive standing of stations."

Broadcasters are also peeved that the new rules won't apply to cable or other media platforms.

Under the rules passed by the FCC, initally only ABC, NBC, CBS and Fox television stations in the top 50 markets will have to put the political files online. Starting in 2014, all TV stations will be required to post the files.

Media watchdogs and public policy groups cheered the decision.

“Television broadcasters stand to rake in more than $3 billion in political ads this year," said Corie Wright, senior policy counsel for Free Press, a nonprofit media watchdog. "Access to information about the money and special interests behind these ads will enable the public and journalists to track the political advertising flooding the airwaves."

The FCC did say it would review its decision in a year to see if broadcasters have suffered any financial damage from the enhanced disclosure of political spending.

Political advertising information isn't the only thing broadcasters will be putting online. The FCC also said most other public file documents are to be moved to the Web -- from records regarding their children's programming efforts to those regarding public affairs programming.

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-- Joe Flint

Photo: FCC Chairman Julius Genachowski. Credit: Andrew Harrer/Bloomberg.

Broadcasters balk at FCC plan for online political ad disclosure

Every election year, politicians spend hundreds of millions of dollars buying commercials. It's a big part of their election-year bottom line.

"It may not be good for the country but it’s going to be good for CBS," joked CBS Chief Executive Leslie Moonves during an investors' conference last fall.

It's no secret how much politicians spend on advertising. Television stations are required to not only keep records on every commercial bought by a candidate, but that information is also available to the public. The only catch is that anyone interested in seeing the stats has to visit a TV station and ask to look at the public file to get access to how much money a local station is getting in election dollars.

On Friday, the Federal Communications Commission is scheduled to vote on whether to require TV stations to put that same information on their websites. While it may not seem like a big deal to take already public files and put them online, the broadcasters are not happy.

The issue is not putting what a candidate spent on commercials online. But broadcasters are concerned about listing what specific commercials on specific shows cost. Even though by law candidates get the lowest rate available for commercials in the weeks leading up to an election, broadcasters worry that other advertisers could use that information to leverage their own negotiations.

"One poker player would, in effect, have had at least a partial glance at the other's hand," broadcast networks CBS, NBC, ABC Fox and Univision wrote in comments filed jointly at the FCC.

There is also fear that one station could learn what another is charging and then undercut its rates with advertisers. On top of that, broadcasters think it is unfair that political advertising on cable is not required to be disclosed. That, too, may change down the road, Washington insiders say.

FCC Chairman Julius Genachowski has a different opinion. In a speech at the National Assn. of Broadcasters convention last week, he said broadcasters resisting the commission's proposals, are "against technology, against transparency and against journalism."

Media watchdogs and academics also think the broadcasters are overreacting. Andrew Schwartzman, senior vice president of the Media Access Project, said it is ironic that "broadcasters, who as journalists advocate for freedom of information laws, now want secrecy when it comes to their own operations."

For more on the debate, please see the story in Thursday's Los Angeles Times.

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-- Joe Flint

 Photo: FCC Chairman Julius Genachowski. Credit: Alex Wong/Getty Images.

FCC's Genachowski pushes putting TV political ad costs online

LAS VEGAS — Federal Communications Commission Chairman Julius Genachowski said broadcasters who resist the regulatory agency's efforts requiring television stations to put detailed information online about political advertising are "against technology, against transparency and against journalism."

Genachowski, speaking at the National Assn. of Broadcasters convention here, was making the case for a proposal that the FCC will vote on later this month that would require stations to post online the rates they charge politicians for commercials.

Congress already requires TV stations to make such information available to the public, but the idea of moving it from the file cabinet to the Internet is proving to be a hard sell with broadcasters.

"Despite the proud history of broadcast journalism and the many innovative products broadcasters deploy today to harness digital technology to inform, explain as well as entertain, broadcasters and a few others have strongly resisted online disclosure," Genachowski said.

The FCC chairman also took issue with those who have questioned whether the agency has the authority to force broadcasters to disclose what a candidate paid for a specific ad.

"Congress explicitly requires broadcasters to 'maintain, and make available for public inspection, a complete record of a request to purchase broadcast time that is made by or on behalf of a legally qualified candidate,'" Genachowski told a packed room, adding that the FCC is "explicitly charged" with enforcing those rules.

Initially, only TV stations that are affiliates of or owned by ABC, CBS, NBC and Fox in the top-50 markets will be required to put political spending data on the Web. The new rule, if passed, would go into effect by late summer or early fall at the latest, still in time for the 2012 general election.

Other stations in smaller markets around the country would have up to two years after the rule change goes into effect to post political advertising information online.

Many broadcasters are against disclosing specific commercial rates online for fear it will hurt them competitively. Even though such information is already available to the public, NAB President Gordon Smith said "it is a fundamentally different thing when you keep it in your station versus putting it online." Smith, a former Republican senator from Oregon, added that if the FCC wants full transparency, then cable and online platforms should also be required to disclose commercial rates.

Alan Frank, the president of Post-Newsweek Stations, said broadcasters are trying to find a compromise by providing information on how much candidates and political action committees spend on TV stations without saying what specific shows were bought at what price.

"We think it will create more confusion than it will help," Frank said of providing the nitty-gritty of specific program rates. He questioned the significance of whether a spot was bought on the "six o' clock news" or on "Wheel of Fortune."

Broadcasters seem resigned to the increasing likelihood that they will lose this battle.

"Who can be against mom, apple pie and the American way of transparency?" cracked Smith.

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— Joe Flint

 

Spanish-language stations left out of campaign spending rule

Although Hispanic voters will play a big part in the 2012 election, Spanish-language stations have been left out of a proposed rule from the Federal Communications Commission requiring big city television stations to put detailed information online about what candidates are spending on the upcoming presidential race.

Later this month the FCC will vote on whether television stations should be required to publish  information online about how much politicians are spending on TV advertising. Such information is already available to the public, but anyone wanting to see it must visit a TV station and make a formal request. FCC Chairman Julius Genachowski has called making political advertising information readily available a common-sense update to what is already the law of the land.

Initially though, only stations that are affiliates of ABC, CBS, NBC and Fox in top-50 markets will be required to put political spending information on the Web. The rule tweak, which is expected to pass, would go into effect by late summer or early fall at the latest, still in time for the 2012 general election.

Other stations in smaller markets around the country would have up to two years to do so after the rule change goes into effect.

Media watchdogs are concerned that the rule change leaves out Univision and Telemundo stations as well as other Spanish-language outlets. Lots of money is expected to be spent on the Hispanic vote for the 2012 contest in cities such as New York, Los Angeles, Miami and Dallas with large Spanish-speaking populations.

"This really needs to be fixed," said Corie Wright, an attorney with Free Press, a nonprofit media watchdog group. "If you are drawing a line at the top markets, you want to include the stations that are reaching a large number of households in those markets." Wright added that it is unfair of the FCC not to give Spanish voters the same access to political advertising information that it is providing to the rest of the electorate.

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Photo: FCC Chairman Julius Genachowski. Credit: Andrew Harrer/Bloomberg.

FCC can auction spectrum, but will broadcasters sell?

When it comes to parting with their spectrum, many broadcasters have the same attitude Charlton Heston had when it came to his rifle: The government can pry it from their “cold dead hands.”

On Friday, Congress cleared the way for the Federal Communications Commission to auction off some of the airwaves that broadcasters use to transmit their programming to wireless companies.

The proceeds would go toward building a new national network for law enforcement and public safety workers and toward paying for an extension of payroll tax and unemployment benefits.

Now comes the hard part: actually getting the spectrum, which has been valued at $25 billion, back from broadcasters to sell.

Even though the potential cut for broadcasters from the sale is $1.75 billion, there doesn't seem to be a whole lot of excitement about the idea.

“We have no intention of giving up spectrum,” said Alan Frank, president and chief executive of Post-Newsweek Stations, a broadcasting group that owns stations in several big cities, including Detroit, Houston and Miami.

David Smith, CEO of Sinclair Broadcast Group Inc., which operates 74 stations around the country, said he “hasn't heard of any broadcaster who has said they have anything for sale.”

The big networks seem to share that view. Although none would comment publicly, executives at Fox and NBC indicated they had no desire to sell any of their airwaves. CBS Chief Executive Leslie Moonves has previously said his company wants to keep all its spectrum.

“It would hurt our business,” Moonves said when asked last year at the National Assn. of Broadcasters convention if he would consider parting with some of CBS' airwaves.

Some broadcasters of independent and small-market stations could be game. Bert Ellis, president of Titan Broadcasting, which owns KDOC-TV Channel 56 in Los Angeles, told the House Subcommittee on Communications and Technology last June that his company might be willing to sell some of its spectrum.

In Los Angeles, there are several small independent stations that cater to ethnic groups including Asians and Latinos. The National Assn. of Broadcasters worries that if they sell, local communities would suffer.

“The stations likely to sell — if any — are the ones that offer truly niche programming serving a melting pot of immigrant populations,” said Dennis Wharton, a spokesman for the broadcasters group. “The notion that an ABC or CBS affiliate would voluntarily choose to go out of business to help solve an alleged spectrum crunch is ludicrous.”

Not everyone paints such a grim picture. The Wireless Assn. and the Consumer Electronics Assn. said this week that “only a very small percentage of the nation’s broadcast stations need participate in the auction in order to address the nation’s broadband spectrum shortage.”

Philip Weiser, dean of the University of Colorado Law School and a former telecommunications advisor for the Obama administration, said he expects smaller broadcasters to try to have their cake and eat it too by sharing spectrum.

For example, one TV station could sell its spectrum and then partner with another station and share airwaves. Although that would not appeal to a big broadcaster, smaller mom-and-pop TV stations might be more willing to embrace such an option.

“It is a huge opportunity for them,” said Weiser, adding that such a practice would allow for a more efficient use of spectrum and would give broadcasters who choose to sell a “hefty profit.”

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Image: CBS Chief Executive Leslie Moonves at the Producers Guild Awards. Credit: Associated Press

FCC to review NFL's TV blackout rules

A coalition of angry sports fans has succeeded in getting the Federal Communications Commission to weigh in on the National Football League's so-called blackout rules.

The blackout rules prohibit the showing of a football game on television in the home team's city if the game is not sold out. In other words, if a San Diego Chargers game does not pack the stadium, the game will not be available on television in San Diego.

When the rules took effect some four decades ago, they applied to local broadcasters. However, as more customers got their television through pay-TV services, the FCC passed a rule that requiring cable and satellite operators to comply as well. That means that if the local TV station can't carry a game, the local cable or satellite operator can't carry it either. 

The Sports Fan Coalition, which is leading the charge at the FCC, is looking to gut the cable portion of the blackout rules, which is the only part the regulatory agency has any control over. In its petition against the rule, the coalition argued that the rising cost of going to a football game, coupled with the bad economy, makes getting to the stadium a challenge for average Americans.

FCC Commissioner Robert McDowell is on board with the idea.

“I am delighted that the Media Bureau is requesting comment on a petition seeking elimination of the commission’s rules that prohibit multichannel video programming distributors from carrying a sporting event in a community if it is blacked out by the local broadcast station," he said.

The NFL is no fan of getting rid of the blackout rules. A spokesman noted that it's the only sports league that broadcasts all its regular-season and playoff games on free over-the-air television. (Although cable channels ESPN and NFL Network carry games, if the Chargers and the Bills are playing, the game would be available in the teams' hometowns of San Diego and Buffalo.) Only 6% of the games this season were blacked out, the NFL said.

Although local over-the-air stations wouldn't mind if the blackout rule goes away, they are not likely to cross the NFL and will almost certainly join the league in fighting any push by the government to allow cable and satellite operators to do what they cannot do.

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Photo: Denver Broncos quarterback Tim Tebow. Credit: Chris Schneider / Associated Press

Fox lawyer says radio, TV should have different indecency rules

So much for one for all and all for one.

The broadcasting industry usually tries to stick to together when it comes to fights with the government. That seemed to change during the U.S. Supreme Court hearing Tuesday on the constitutionality of the government's rules regarding indecent programming when a lawyer for Fox suggested broadcast television should be free of content regulation -- but not over-the-air radio.

While being questioned by Supreme Court Justice Samuel A. Alito Jr., Fox's outside counsel, Carter Phillips, suggested radio didn't deserve the same 1st Amendment protections as broadcast television.

"Absolutely, they are fundamentally different media,” Phillips said after Alito asked whether radio should have to play by the current rules but not television. "The court has recognized that media has to be evaluated individually."

 Fox does not own radio stations.

A few minutes after throwing radio under the bus, Phillips contradicted himself when he suggested that it was wrong for cable television -- which does not have to comply with the FCC's rules regarding indecent content because it does not use the public airwaves -- to get one playbook and broadcasters another.

"First of all, the notion that one medium operates in a certain way in the exercise of its 1st Amendment rights can be used as an explanation for taking away or for restricting the 1st Amendment rights of another medium is flatly inconsistent with what this court has said across the board in the 1st Amendment context," Phillips said. "You don't balance off one speaker against another and give one favored status and give another unfavored status."

Unless, apparently, it's radio.

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-- Joe Flint

Photo: Supreme Court Justice Samuel A. Alito Jr. Credit: Charles Dharapak / Associated Press.

 

Broadcasters try to persuade Supreme Court to gut indecency rules

Broadcast networks had their day in court Tuesday, asking the government to get out of the content regulation business, but it doesn't appear that they made much headway.

During a Supreme Court hearing to decide the fate of the Federal Communications Commission's indecency rules, the justices expressed a preference to keep broadcast television cleaner than cable, where the expletives fly and a bare body part pops up every now and then.

Broadcasters use the public airwaves, and the “government can insist on a certain modicum of decency,” said Justice Antonin Scalia. Chief Justice John Roberts added, “All we are asking for is for a few channels” where parents can be assured that their kids will not hear profanity or see sex scenes.

The broadcast industry has been battling the FCC over these rules for decades. Howard Stern's infamous fights with the FCC ultimately played a part in driving the shock jock to unregulated satellite radio. Television broadcasters have clashed with the FCC over issues ranging from brief flashes of nudity to the occasional swear word.

These current arguments involve ABC and Fox, though NBC and CBS are also in favor of gutting the indecency rules and support their competitors in this fight.

ABC's case grew out of a $1.4-million fine the FCC levied on the network and some of its affiliates in 2008 for a 2003 episode of the police drama "NYPD Blue," in which the buttocks of actress Charlotte Ross were visible to viewers. ABC fought the fine, and last January, the U.S. 2nd Circuit Court of Appeals in New York threw it out.

Fox's fight has to do with profanity incidents in 2002 and 2003, when Cher and Nicole Richie cursed during live awards shows. The curses were not bleeped. In 2004, the FCC ruled that Fox could be fined for indecency violations in cases in which a vulgarity was broadcast during a live program. While the FCC never followed through with a fine, Fox has fought that ruling and -- as was the case with ABC -- the 2nd Circuit Court sided with the network.

The FCC then appealed both rulings to the Supreme Court, which tied the cases together.

For broadcasters, being free of content regulations would allow them air more racy content. Cable networks such as HBO and FX are not regulated by the FCC, and their programming is more adult in language and nudity. The willingness of cable TV to push the envelope in ways broadcast TV can't has allowed them to syphon away both viewers and advertising dollars.

"We're hopeful [the case] will go our way," said ABC Entertainment President Paul Lee, when asked about the case Tuesday at the semiannual Television Critics Assn. Press Tour in Pasadena.

Some media watch dogs fear the worst if the high court either tosses the rules or makes it tougher for the FCC to enforce them.

"If the Supreme Court rules in favor of the networks, the American people are going to get a rude awakening when broadcast TV becomes indistinguishable from Cinemax, HBO or something even more explicit," said Tim Winter, president of the Parents Television Council, which is in favor of tougher enforcement of the FCC's indecency rules. "Children, parents, families and indeed all Americans deserve better use of the airwaves that they own.”

Broadcasters have already become much more permissive regarding content. While not as extreme as cable in regard to language and nudity, shows such as CBS's "Two Broke Girls" and ABC's "Desperate Housewives" are fairly provocative.

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Photo: The Supreme Court. Seated are Clarence Thomas, from left, Antonin Scalia, John Roberts, Anthony M. Kennedy and Ruth Bader Ginsburg. Standing are Sonia Sotomayor, from left, Stephen Breyer, Samuel Alito Jr. and Elena Kagan. Credit: Pablo Martinez Monsivais / Associated Press

 

 

 

Broadcasters take on FCC indecency rules in Supreme Court showdown

The broadcast industry will try next week to persuade the Supreme Court to tell the government to back off when it comes to regulating content.

On Tuesday, the high court will hear arguments from News Corp.'s Fox and Walt Disney Co.'s ABC that the Federal Communications Commission's rules regarding indecent programming and the way they are enforced by the agency are both vague and unconstitutional.

The Fox and ABC cases have been working their way through the courts for years. In indecency cases, the FCC typically fines the TV stations that use the public airwaves to carry the networks' programming. However, many stations are owned by networks, which usually fight the fines on behalf of their affiliates.

ABC's case stems from a $1.4-million fine the FCC levied on the network and some of its affiliates in 2008 for a 2003 episode of the police drama "NYPD Blue," in which the buttocks of actress Charlotte Ross were visible to viewers. ABC fought the fine and, last January, the U.S. 2nd Circuit Court of Appeals in New York threw it out.

Fox's fight grew out of incidents in 2002 and 2003, when Cher and Nicole Richie cursed during live awards shows. The curses were not bleeped. In 2004 the FCC ruled that Fox could be fined for indecency violations in cases when a vulgarity was broadcast during a live program. While the FCC never followed through with a fine, Fox has fought that ruling and -- as was the case with ABC -- the 2nd Circuit sided with the network.

The FCC then appealed both rulings to the Supreme Court, which tied the cases together. NBC and CBS are not parties to the case but are interveners and supporting Fox and ABC.

Arguing for ABC is Seth Waxman, a partner at WilmerHale and a former solicitor general during the Clinton administration. Fox's lawyer is Sidley & Austin's Carter Phillips. Both have argued before the Supreme Court dozens of times.

Carrying the ball for the FCC will be Solicitor General Don Verrilli. Interestingly, Verrilli has argued cases for the TV industry before the Supreme Court when he was in private practice and has a strong background in telecommunications and media law.

The networks ideally would like to see the indecency rules tossed. A more realistic scenario, according to one network executive watching the case, is that the FCC's methods of enforcing the rules will be called into question. If that happens, the likely result would be that the FCC would be asked to clarify its rules and be more transparent in how it enforces them.

That would be seen as a huge victory for the broadcasters because it would make it more difficult for the FCC to go after TV stations for airing racy material. Indecency rules do not apply to cable networks such as HBO or FX because they do not use the public airwaves to broadcast content.

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Photo: "NYPD Blue" stars Dennis Franz and Charlotte Ross. Credit: ABC