Cameras in Federal Courtrooms

Campaign Reform & Political Broadcasts

Content Regulation - Indecent Programming

Content Regulation - Violent Programming

Copyright Protection - Audio & Video Flags

Copyright - Internet Radio Streaming Tax

Copyright - Performance Tax For Broadcast of Sound Recordings

Digital TV Conversion

Fairness Doctrine

First Response Broadcasters

Low Power FM Interference

Ownership

Reporter's Shield Law

Retransmission Consent

Satellite Radio Local Content

Sirius Satellite Radio/ XM Satellite Radio Merger

Tax Deferral

Unlicensed Devices On TV Channels ("White Space")

Video News Releases - Sponsor Identification

CAMERAS IN FEDERAL COURTROOMS

The Issue
While cameras and recording equipment are permitted in courtrooms in every state, most federal courtrooms remain closed to broadcast coverage. Legislation has been introduced in Congress during past sessions to provide federal judges with the discretion to allow cameras in their courtrooms.

WSAB Position
WSAB supports legislation to provide all federal courts with the authority to allow cameras and recording devices in the courtroom.

Background
Experience in state courts, including more than 30 years in Washington, has shown that it is possible to permit the public to see trials on television without imperiling the right of a defendant to a fair trial, jeopardizing the safety or privacy interests of witnesses and jurors, compromising the dignity of the court, or disrupting the orderly conduct of the proceedings. Every state in America allows cameras in its courtrooms, to varying degrees. The history of cameras in state trial courts is one of cooperation between the bench, bar and press, and the education of the public about the justice system. Hundreds of criminal and civil trials are covered every year without controversy over the media's role.

The Federal Judicial Center concluded in 1994 that there were "small or no effects of camera presence on participants in proceedings, courtroom decorum, or the administration of justice." From 1991 to 1994, the Center conducted a pilot program that allowed camera coverage of civil proceedings in certain federal trial courts, including the U. S. District Court for the Western District of Washington. In this limited program, the courts granted access to more than 200 civil proceedings. Judges and attorneys involved in the program generally observed that the cameras presented little or no impediment to courtroom proceedings. The Center reported that "overall, the attitudes of judges toward electronic media coverage of civil proceedings were initially neutral and became more favorable after experience under the pilot program."

Common concerns about cameras in the courtroom do not stand up to scrutiny.

•Defendant's Constitutional Right to a Fair Trial. The U. S. Supreme Court held in Chandler v. Florida that the mere presence of a camera in the courtroom does not deny a defendant the right to a fair trial. Moreover, the Sixth Amendment also guarantees a defendant a public trial. The courts have a long list of tools to use to ensure a trial by an impartial jury, such as in-depth voire dire, sequestration, and change of venue. Overlooked, perhaps, is the role of public scrutiny in helping to ensure a fair trial.

•Effect on Trial Participants. Studies conducted by states prior to allowing cameras in the courtroom, including in Washington, have found universally that witnesses and jurors behave the same whether or not there is a camera in the courtroom. Witnesses: Fears about witness distraction, nervousness, distortion of testimony, fear of harm and reluctance or unwillingness to testify are unfounded. Jurors: Fears about juror distraction, effect on deliberations or case outcome, making a witness seem more or less important depending on camera coverage, and reluctance to serve with cameras present are unsupported. Any legislation would give the trial judge wide discretion in protecting witnesses and jurors from exposure on camera.

•Prolonging Trials & Testimony. Cameras tend to keep trials moving. Many cases, by their very nature are complex, drawn-out affairs. But neither the California "Hillside Strangler" case which took 23 months, nor the Charles Manson trial which lasted 9 months, was televised.

•Media Circus. The camera inside the courtroom has been the unemotional carrier of truth and education about what is actually happening at the trial. Sensational trials and press coverage existed long before cameras entered the courtroom. Cameras act as an antidote to the abuses of the "circus" by allowing viewers to make their own judgments about the conduct of the trial. Some erroneously blame the camera inside the courtroom for what they don't like to see outside the courtroom, including attorneys and parties "spinning" their versions of the case.

Advances in technology have made cameras much less intrusive. Many courtrooms are now wired for audio and video with cameras mounted unobtrusively on walls. In others, the big, old, noisy film cameras on heavy tri-pods have been replaced by much smaller, silent video cameras. Digital video and photography continue to reduce the impact of cameras in the courtroom.

"Bench-Bar-Press" type Principles reduce the impact of cameras in the courtroom. Pooling requirements; advance notice of desire to cover a trial session; specific camera location requirements; and, behavior guidelines for camera operators and reporters are all typical of methods used cooperatively by the bench, bar and press under state cameras in the courtroom rules to limit the impact of camera presence. Any proposed legislation would provide federal judges with wide discretion to work with the media on these kinds of accommodations.

Camera coverage of federal court proceedings will enhance public education about the legal system and the public's trust and confidence in the legal system. Citizens must have accurate, first-hand information about the justice system in order to provide a meaningful public oversight function. The more transparent the workings of the legal system, the better the public will understand and more thoroughly and constructively participate in it. Denying access to people who either could not travel to, or get a seat in, the courtroom accomplishes nothing; but, the broadcast of the trial will further the interests of justice, enhance public understanding of the judicial system and maintain a high level of public confidence in the judiciary.

We have already lost an invaluable treasure of history-making court decisions. Picture in your mind the Watergate Hearings: Senator Ervin presiding and John Dean testifying. Picture the impeachment trial of President Clinton in the United States Senate. Vivid. Dramatic. Historic. Educational. Now, try to picture the testimony in the Timothy McVeigh trial, the Microsoft anti-trust case or the argument in Bush v. Gore. History in the making, but lost to posterity. No transcript, not even the best sketch artist, can convey the immediacy, the voice and demeanor of witness, litigator and judge that is captured by a camera in the courtroom.

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CAMPAIGN REFORM & POLITICAL BROADCASTS

The Issues
The role that broadcast political advertising plays in campaigns is central to the debate over campaign finance reform. Congress continues to wrestle with issues such as whether candidates should receive free airtime and whether broadcasters should pay a spectrum use tax to fund "free time."

WSAB Position
WSAB opposes the creation of additional “free” time, further discounted airtime for political candidates and a spectrum use tax on broadcasters to fund federal candidates' ad buys.

Background
Proponents of free airtime trivialize or ignore the substantial free time already dedicated by local stations to candidates. Washington broadcasters provide hundreds of hours free time opportunities for candidates to share their views and for voters to examine their candidacies in news and public affairs programming, interviews and debates. Unfortunately, all too often, the candidates reject many of these opportunities.

The public is satisfied with broadcasters' extensive coverage of elections. According to a survey conducted between November 3-5, 2006 by APCO Insight, 87% of voters believe local broadcasters provide either "about the right amount of coverage" (37%) or spend "too much time" (50%) covering elections. Only 6% consider paid radio and TV advertising as the “most helpful” factor in selecting a candidate.

Lowering the cost of broadcast airtime for candidates will not lower the cost of campaigning. Broadcasters already provide candidates with their lowest rates. Candidates would buy more spots with the same amount of money, or put the extra cash into additional print advertising, more yard signs, mailings, polls, consultants, or other campaign expenses; but, no less money would be spent. According to a survey conducted between November 3-5, 2006 by APCO Insight, 69% of voters believe that candidates would continue raising campaign funds, even if they did not have to spend it on political advertising, and would spend it on something else. Candidates will raise as much money as they can and spend as much money as they raise (or more), regardless of any amount of free airtime they receive.

According to the Campaign Study Group, a typical House campaign spends only about 27% of its budget for ads; a typical Senate campaign only about 40%. These percentages are relatively unchanged in more than a decade. Nearly 1,000 more candidates ran for Congress in 1996 compared to the 1994 elections; more in 1998; more in 2000, 2002, 2004 and 2006.

A report by the Committee for the Study of the American Electorate concluded that increased media costs are due to the increased use of media, not an increase in the cost of buying time.

Free time would mean more spots. The number of political candidate and ballot issue advertisements already is staggering. It is hard to imagine more political ads. If candidates are given free spots, they will simply spend the same amount and broadcast many more ads. More spots make it more difficult for any particular spot to cut through the clutter and be effective in carrying its message.

More Ads Means More Negative Campaign Ads. The public is sick of negative campaign ads. Attack ads reinforce the cynicism they exploit, driving the public away from the political process. Citizens complain about the lack of substantive issue discussion, not the lack of political ads. They do not believe attack ads help them to make informed choices. During campaigns, radio and TV stations are deluged with calls from irate viewers and listeners demanding that the stations take these kinds of ads off the air. But, of course, stations are prohibited from doing so by the Communications Act. According to a survey conducted between November 3-5, 2006 by APCO Insight, 67% of voters believe that if candidates were given free time they would use it for more ads attacking their opponents.

Free Airtime For Federal Candidates Will Crowd State & Local Candidates Off The Air. There is only so much airtime to sell or give away. Once regular advertisers, local car dealers or furniture or grocery stores, have been bumped to accommodate federal candidates' free time, the next endangered species will be state and local candidates running for Governor, the legislature, mayor or city council.

Local Advertisers Will End Up Paying Twice for Candidates' Free Airtime. First, because they will be crowded off the air and will lose valuable exposure for their products and services, for product launches, special events or sales, especially since political campaigns take up the first half of the fourth quarter when holiday advertising is at its peak. Second, because there is no free lunch. Broadcasters have bills to pay, too, and have to make up the revenue lost to campaign spots somewhere. Representative Neil Abercrombie (D-HI), during one of the debates on free airtime, said on the House floor, "What is going to happen is that the local advertisers are going to have to make up the difference. I'm not going back to my district and tell people that are trying to make a living that they have to pay more for advertising so people can listen to me!" Representative John Dingell (D-MI), in the same House debate said, "We are literally putting our hands in the pockets of local folks to get ourselves a special benefit. I do not have the arrogance to vote for a proposal of this kind, or to say that this is in the public interest."

Free Airtime is Unconstitutional. Political speech is at the core of First Amendment protection and its regulation must meet three tests: 1) substantial governmental interest; 2) narrowly tailored; and, 3) no less intrusive alternatives.
Substantial Governmental Interest: In Buckley v. Valeo the U. S. Supreme Court rejected campaign cost reduction as a substantial governmental interest. The Court has held time and again that the quality of political debate is none of the government's business.

Narrowly Tailored to Achieve Goal: Free time will not accomplish the stated goal of reducing campaign spending.

No Less Intrusive Means: Many other less intrusive alternatives exist to reduce campaign spending: Public funding, limiting the level of contributions, limiting expenditures, and lowest unit rate given only to candidates who abide by voluntary spending limits. Free airtime also fails to address other causes of increasing campaign spending, such as the escalating costs of campaign overhead.

A Tax On Radio and Television Stations' Spectrum to Fund Free Time Is Unconstitutional. Discriminatory taxes on media are unconstitutional. In Grosjean v. American Press Co., Inc., the U. S. Supreme Court held unconstitutional a tax on only one news medium (certain newspapers, but not broadcasters or other print media) that had the effect of imposing a discriminatory burden on the medium that was singled out for taxation. It was described by the Court as a "license tax for the privilege of engaging in such business," much the same as the proposed spectrum fee on broadcasters.

Free Time Constitutes a "Taking" of Broadcasters' Property and is Unconstitutional. Broadcasters enjoy no property right in the use of the spectrum. It belongs to the People. The property that broadcasters have, though, is their stock-in-trade, airtime. Free airtime for candidates forces broadcasters to give up their economically valuable inventory without compensation. In its editorial of March 29, 1998, the Seattle Post-Intelligencer said:

"Free time may seem innocuous, but it is not. It is the commandeering of an independent news organ by politicians. It should not matter that radio and television use the public spectrum. Newspaper trucks use the public streets, and our coin boxes use the public sidewalks. That does not give the City Council the right to demand free space in the B Section....A public purpose might be served for every hardware store to be forced to donate a lawnmower for the city parks. But the hardware stores would complain, as well they should."

Broadcasters Are Not "Gouging" Candidates. Lowest Unit Charge (LUC) is working exactly as Congress intended. The cost of a broadcast advertisement, and therefore the LUC which is simply the lowest cost paid by a regular advertiser, is not a static number. It changes with the level of demand for airtime. The rising tide of demand for airtime lifts all rates, including the LUC. During campaign periods candidate and ballot measure airtime purchases, as well as regular advertisers' needs, drive up demand for airtime and therefore the unit rate for all spots, from lowest to highest. Free airtime will only exacerbate the demand, while doing nothing to increase the inventory. Spots will cost even more.

Not Only Do Broadcasters Not "Profiteer" From Political Advertising, They Lose Money on Every Candidate Spot. Every LUC candidate spot runs at a huge discount from the price that a normal commercial advertiser would pay for that same spot. Many stations are normally "sold out," i.e., they could sell all of the spot airtime they have available to regular commercial advertisers at rates higher than the candidate rate. However, every LUC candidate spot replaces a full rate spot, and costs the broadcaster the difference.

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CONTENT REGULATION - INDECENT PROGRAMMING

The Issue
Congress continues to struggle with regulation of “indecent” content on the Public’s airwaves. One version of legislation would ban from the airwaves certain specific terms or phrases, or permit the broadcasting of indecent material only during a so-called “safe harbor” time period. Other proposals have included a “three strikes” provision requiring that a station’s license be automatically set for a revocation hearing.

WSAB Position
WSAB opposes the codification of a list of "dirty" words, the escalation of fines and a "3 strikes" provision. Congress, at a minimum, should protect small market radio and television stations with "culpability" language that requires the FCC to consider factors, such as whether the programming was live or recorded, and ability to pay. In addition, Congress should ensure that television stations may exercise their discretion in refusing to broadcast network programming that they deem inconsistent with their local community's standards of decency; or, are indemnified by the network where the affiliate is denied the opportunity to pre-screen the program.

Background
Local broadcasters are well able to control content they put on the air and have to answer to a much more demanding authority, their local viewers and listeners. When local stations have the ability to pre-screen network dramas and other pre-recorded or filmed programming, they are not hesitant to pre-empt programming that they do not believe matches their community's standards. Stations prepare listeners with extensive warnings and cautions whenever a program might be considered inappropriate for some viewers. Congress should allow local stations to provide programming that is suitable to their local community's standards.

The effect of the "dirty words" legislation would be to give tacit approval to far more egregious conduct. Neither the Opie & Anthony nor the Super Bowl cases included any of the proscribed words. It is easy to see how this legislation could unleash a torrent of profane and indecent content as clever performers use their creativity to avoid the prohibited words while communicating the same meaning. Codification of a list of "banned" words and phrases will only legitimize easily understood euphemisms that are equally, or more, objectionable.

A prohibited "dirty words" list does not comply with the U. S. Supreme Court's definition of "indecency." The words are included within the current FCC rule as it relates to "sexual or excretory" words or phrases when they are used in a specific manner. As required by the U. S. Supreme Court's obscenity/indecency decisions, in the FCC's assessment of whether broadcast material is patently offensive, the full context in which the material appears is critically important. This legislation would make it a violation for a station to broadcast the banned words, without respect to the context in which they were spoken, in clear contradiction to the requirements of the U. S. Supreme Court.

"3 Strikes and You're Off" is a draconian, strict liability response that is far out of proportion to the problem. A "three strikes" provision fails to meet even the most minimal requirements of due process. A station could have its license revoked for the utterance of one offending word on three separate occasions over the station's eight year license period, whether the station had taken measures to guard against the broadcast of the offending word or not. There are enough utterances of "banned words" in the movie "Saving Private Ryan" to cause a station to lose its license after one showing. The bulk of the problem has already been addressed by putting nearly all "live" programming on a video and audio tape delay of as much as five to seven minutes; and, by the existing ability to pre-screen pre-recorded or filmed programs.

The legislation would impose strict liability for off-hand comments made beyond the broadcaster's control. The broadcasts that triggered this legislation were live broadcasts made without the ability of the station to edit the content. This legislation would create strict liability for such inadvertent, off-hand live comments. The networks now have installed a 5-minute delay in their non-sports live telecasts. This legislation would put in jeopardy live sporting contests because one can never be sure that a sideline mic would not pick up a private comment by a player or coach that included a word on the list; or, where the crowd mic inadvertently picks up a fan yelling a word on the list. We could end up sitting in Safeco Field, listening to Dave Niehaus on the radio describing a play we saw five minutes ago. It would also encourage the migration of live sporting events to cable or pay-per-view, where the limitations are far less stringent.

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CONTENT REGULATION - VIOLENT PROGRAMMING

The Issue
There have been several legislative attempts to place the regulation of media content in the hands of government, using such tools as a “safe harbor” only during which violent programming may be televised; or, exempting from anti-trust laws agreements or “voluntary” guidelines within the industry concerning telecast materials, music lyrics, video games, Internet content and motion pictures.

WSAB Position
WSAB opposes government intervention in the programming relationship between local broadcasters and their communities.

Background
Broadcasters work constantly to ensure that their programming meets their obligation to serve the public interest and serve the unique needs, cultures and viewing preferences of the local communities they serve. In 1990 the broadcast industry adopted a statement of principles that addresses goals for programming depicting violence. In addition, every station has its own program standards by which it measures its programming to ensure that it meets the standards of its community. Many a station has refused to broadcast network programming that has not met its standards.

Broadcasters’ voluntary rating of programs has provided parents with an outstanding tool to guide their children’s television viewing. The V-Chip, program ratings and Parental Guidelines have given parents the ability to ensure that what their children are watching is appropriate for their family’s values. The rating icons are prominently displayed at the beginning of each program and at the beginning of subsequent program segments. The ratings are printed in TV Guide and some newspaper TV listings; and, TV stations are educating parents about the ratings system with promotional announcements.

Not everything that comes out of the household video appliance is put there by your local TV station. The word “television” is often used as a generic description for a household video appliance; or the programs that we grew up with coming out of that box, the “free, over-the-air” broadcasting service offered by your local TV stations. But today, we put in cable channels, like MTV, USA, ESPN, TNT, History Channel, CNN, and Sci-Fi Channel, among dozens of others; and, the premium channels such as HBO and Showtime, many of which let extremely violent, unedited movies out through your household video appliance, or the Pay-Per-View channels. Viewers put in violent video games and videotapes, DVDs, or whatever their camcorder has caught. A lot more comes out of that household video appliance these days than what your local broadcast TV stations put there.

“Safe harbor” legislation injects the government into the debate over definitions of violence and its acceptability. The lengthy, discordant history between the courts, the FCC and Congress over the appropriate time for, and definition of, the broadcast of indecent material would pale in comparison to the problems which would be encountered by an attempt to define and regulate violence. What is the context? Does the program show the consequences of violence? What is too graphic? Is it news? Is it sports? If government can determine when certain programs may be broadcast, then it is not a stretch for government to begin determining whether a particular program may be broadcast at all.

Drawing one, nationwide bright line separating “acceptable” media violence from “unacceptable” media violence is impossible. Each of us knows what unacceptable violence is when we see it. But, it’s harder than it looks to fashion objective regulations that have to speak with one voice for everyone, nationwide. In 1993 the Canadian Radio & TV Commission adopted a violence code that banned “gratuitous violence” and limited violence “suited for adult audiences” to after 9 p.m. What violence is “gratuitous” or “suited for adult audiences?” WSAB has been involved with this issue for many years, and has heard complaints about programming ranging from gunfights and wrestling to “mean-spirited humor in sitcoms.”

Anti-trust exemptions are “soft censorship.” They imply a threat of further governmental action if the entertainment industry fails to establish “voluntary” guidelines or if the guidelines are not deemed acceptable by Congress, the FCC or the FTC.

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COPYRIGHT PROTECTION – AUDIO & VIDEO FLAGS

The Issue
Whether Congress should mandate a technical standard for protection of intellectual property from piracy when transmitted via digital television and radio.

WSAB Position
WSAB supports the adoption of the “video flag” for the protection of digital video programming from unauthorized distribution of copyrighted video material over the Internet.

WSAB does not support, at this time, the adoption of the “audio flag” for the protection of digital audio programming from unauthorized distribution of copyrighted audio material over the Internet.

Background
The “Video Flag” is fully developed and ready for implementation, but must fully protect local news and public affairs programming. The various parties with interests in protecting video programming from copyright piracy have worked diligently over a lengthy period to create a set of standards that will permit copyright holders to be compensated fairly for their work, but at the same time will not unduly burden consumers. This standard is ready for adoption and Congress should provide the authority that the Federal Communications Commission needs to adopt a video flag standard. However, broadcasters remain concerned with an exemption contained in legislation in the 109th Congress regarding news and public affairs that would leave local news broadcasts unprotected. Local news is the hallmark of broadcasting and carries significant value to local broadcasters. It should be afforded the same content protection as other programming.

Congress must give the FCC the authority to adopt an “Audio Flag” standard when it is ready, but not mandate a timetable. Unlike the lengthy development process of the video broadcast flag, the audio flag has only recently begun to be discussed and developed. It is certain that, similar to the video flag, the Federal Communications Commission needs congressional authority to adopt a standard. The development of the video flag took lengthy negotiation and time to engineer that standard. No one can tell in advance how long an audio flag will take to develop, and with the transition to digital radio now underway, the goal may be somewhat of a moving target for an undetermined amount time. Congress should give the FCC the authority it needs to adopt a standard, but refrain from boxing-in the Commission to a statutory deadline.

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COPYRIGHT - INTERNET RADIO STREAMING TAX

The Issue
On March 2, 2007, the Copyright Royalty Board (“CRB”) issued a decision that dramatically increased royalty expenses for commercial and noncommercial webcasters, including broadcast radio stations. The new royalty rates amount to a 300% increase for the biggest webcasters and up to 1200% for small webcasters.

WSAB Position
WSAB supports legislation that would invalidate the decision of the Copyright Royalty Board, substitute royalty fees that are sustainable for small and large webcasters and broadcasters, and require the CRB to consider specific factors in setting future royalty rates.

Background
The draconian and unduly burdensome nature of the new streaming royalty fees will cause webcasters and broadcasters to stop streaming their music content on the Internet. The cost of doing business is a reality for every streaming entity, whether it is a radio station or a webcaster, for-profit or non-profit, individual or corporation. The new rates are totally unrelated to the amount of revenue that is generated from the streaming of music programming and in many cases the new royalty fees will far exceed the revenue of the webcaster or station. It will be difficult for any radio broadcaster or webcaster to justify continuing to stream music content over the Internet under these conditions.

Internet streaming of music should be encouraged, not undermined. Streaming music programming by broadcasters and webcasters as a business model is in its infancy. Congressman Ed Markey D-MA) said that the CRB’s decision “represents a body blow to many nascent Internet radio broadcasters [.]” Everyone loses if the CRB decision is permitted to take effect. Performers, Webcasters & Broadcasters, Recording companies, and especially the Public all benefit from music streaming on the Internet. No one will benefit if webcasters and stations stop streaming their music programming.

Music rights holders are entitled to fair compensation but, requiring royalty payments that far exceed the bounds of reason dramatically and adversely alters the balance between the rights holders and webcasters/broadcasters. Broadcasters and the music industry have benefited extraordinarily from their symbiotic relationship. Each provided a necessary element to the other’s success. The CRB decision fundamentally destroys that mutually beneficial partnership, replacing it with a lopsided relationship.

The cessation of music streaming by a large segment of the Internet radio community will frustrate critical efforts to increase broadband penetration. The availability of entertainment content that is incapable of access through a dial-up connection has been and will continue to be one of the most significant drivers of broadband growth. The CRB decision will substantially reduce the availability of music content, thereby reducing the demand for and growth of broadband.

What the bill does.
-Vacates the CRB’s March 2, 2007 decision;
-Provides royalty parity for Internet radio providers;
-Changes the royalty rate setting standard so that it is the same for commercial Internet radio ad it is for satellite radio, cable radio, jukeboxes and record companies;
-Sets a transition rate of 7.5% of revenue attributed to streaming as an alternative method of calculating the royalty fee through 2010;
-elates the rate for non-commercial stations back to the Small Webcasters Settlement Act and sets the station's rate at 1.5 times what the station paid in 2004;
-Provides a new rate standard for webcasters that would require the CRB to consider a number of specific factors when setting rates;
-Mandates reporting from Federal Communications Commission, the National Telecommunications and Information Administration and the Corporation for Public Broadcasting.

The Goose That Streamed Golden Eggs. ONCE UPON A TIME, the recording industry had a goose that streamed a golden egg every day. Each day record companies and super-star musicians would take the golden egg to Copyright Royalty Board and get a very handsome, multi-faceted, return on investment. One day though, they thought, why wait for the goose to stream just one golden egg each day, “let’s take all the golden eggs to the Copyright Royalty Board at once.” So, they cut open the goose looking for all the golden eggs, and of course, there were none. They were left with no golden eggs and, worst of all, no goose to stream them.

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COPYRIGHT - PERFORMANCE TAX FOR BROADCAST OF SOUND RECORDINGS

The Issue
Legislation has been introduced that would establish, as a part of copyright law, a requirement that broadcasters pay royalties to performers and record companies for the broadcast of their music.

WSAB Position
WSAB opposes a performance royalty tax for sound recordings.

Background
Performers and recording companies already receive a significant financial benefit from the broadcast of their recordings. Performers receive continual promotional exposure of their recordings with every broadcast, for which they pay nothing. The value of this publicity to performers and recording companies is enormous. Radio and television airplay is the most effective method by which a performer’s recordings are exposed to the public.

There is no need to construct an artificial market for benefits flowing from broadcasters to performers. Composers, record companies and recording artists are more than amply compensated. A performance royalty would be a payment over and above the millions of dollars that broadcasters already pay, and performers who are also songwriters receive, every year in music license fees to ASCAP, BMI and SESAC.

Radio stations’ broadcast of recorded music is not a threat to sales of recorded or downloaded music. Radio programming presents a variety of music and does not simply “track through” a recording. If the recording industry can prove that other audio services, such as digital subscriptions services, pose a threat to music sales, as they claim, then legislation should focus on those services.

Establishment of a performance right in sound recordings will not, necessarily, make funds from foreign countries which recognize such a right accessible to American performers. An American performance right ignores the significant differences between American and other countries’ broadcasting and copyright structures. Many countries radio broadcasting has been traditionally government subsidized. The performance right is simply a way for a foreign government to subsidize its culture, a system which the United States neither needs nor should create.

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DIGITAL TV CONVERSION

The Issue
No other industry has made the financial commitment that broadcasters have made to bring digital television to the public, spending upwards of $10 Million each to convert to digital TV. The conversion of Washington stations to DTV is complete, but the conversion at the consumer level faces significant hurdles, all of which are beyond the control of local broadcasters.

WSAB Position
WSAB supports 1) cable/satellite carriage of the full broadcast DTV signal; 2) down conversion of station digital signals only when a cable system also passes through the full, undegraded digital signal; 3) full must-carry status for both analog and digital television signals during the transition; 4) the ability of stations to maintain the use of their analog channel without the imposition of an analog spectrum tax, and to return their analog spectrum early in return for payment from subsequent users of that spectrum; and 5) the creation of a strong consumer awareness program about which broadcasters would report regularly to the FCC.

Background
Multi-Cast/Must-Carry: Cable Carriage of Full, Unaltered Digital Signal. It is critical that cable systems deliver each broadcast station's full digital multi-cast or High Definition signal to every consumer. Many stations are beginning to experiment with different multi-cast models for digital television programming, in addition to High Definition TV. However, the absence of cable carriage for these channels is slowing their development and depriving viewers of a multitude of programming choices. Cable systems can carry both the analog and digital signals of broadcast stations and still not exceed the maximum number of signals required to be carried under the must-carry law (up to one-third of capacity). There is no evidence that any cable network will lose audience because of must-carry for digital broadcast television signals. Only when broadcasters are guaranteed that these programs will reach the 70+% of the audience that receives its television by cable, will these new services fully evolve, and viewers will be fully served.

Serving more than 87% of American TV households, the cable and satellite television providers are the gatekeepers to all but a handful of homes receiving television. So, the real question on the multi-cast/must-carry issue is whether the public interest standard is important enough for Congress to enact a requirement that will enable all television viewers to receive all of local broadcasters’ programming in the public interest; or, whether the public interest standard really isn’t all that important, after all. Is the public interest standard important enough for all Americans to benefit from it, or just those who are unable or unwilling to subscribe to cable or satellite television? If nearly 9 out of 10 TV households cannot receive stations’ multi-cast channels, what is the point of holding them to the public interest standard, at all?

Down Conversion. Congress must protect cable subscribers who have digital sets, as well as analog set owners. Cable subscribers who do not yet have DTV sets cannot be cut off from their local television stations. However, those subscribers who have invested in digital sets should not be denied the reward of their investment; they should receive more from their cable company than a signal that has been turned back into analog. And they should be able to enjoy full High Definition broadcasts, not just digital broadcasts converted to standard definition by the cable company. Congress must ensure that any down conversion policy treats all stations in a market equitably.

Public Interest Standards. One-size fits all public interest standards will not satisfy the diverse communities of Washington state. The public interest is what the public says it is in each community. One national standard cannot possibly address the real community needs of local viewers and listeners. Local broadcasters must be free to choose the programming that reflects the concerns, need and issues of their local communities, not a consensus template imposed from Washington, D. C.

Consumer Awareness. Washington broadcasters support a strong consumer awareness program. Broadcasters have already committed millions of dollars worth of airtime to inform and educate viewers about the transition to digital television. Broadcasters are willing to submit reports regularly to the FCC that detail their public outreach and consumer awareness efforts.

Must-Carry Transitional Carriage of Both Analog & Digital Signals. Cable carriage of digital over-the-air channels will create more demand for digital programming, digital sets and converters sooner, leading to a faster transition. Broadcasters are required to complete the transition to digital television in less than two years. With nearly 70% of all households receiving their local stations via cable, carriage of both analog and digital broadcast television signals is critical to achieving a successful transition to digital television.

Analog Use Spectrum Tax. A tax on the analog use of the TV spectrum will not speed up the transition to digital. Broadcasters are working as hard and as fast as they can to convert to digital television, in compliance with the schedule adopted by the FCC. They do not need further incentives to make the transition as soon as possible. A tax on analog use of the TV spectrum will make the transition to digital more expensive and will jeopardize small stations' ability to make the transition at all. Additional payments to the government will overwhelm small broadcasters and seriously jeopardize their transition to digital TV.

Early Return of Spectrum. Broadcasters on channels 52-69 will not reap windfall profits by returning their spectrum early in return for payment from subsequent users of that spectrum. The FCC has authorized broadcasters on channels 52-69 to negotiate the early return of that spectrum, so that subsequent users may have access to the spectrum before the official give-back date. Critics have mischaracterized this program, calling it "profiteering" by broadcasters for spectrum they received for free. But, broadcasters who take advantage of this program are not being paid for the spectrum. Nor are they being paid by the government, from whom they received the use of the spectrum for free. Payment would be from the future spectrum user to the current spectrum user, the broadcaster, the sole value in this exchange being the early evacuation of the spectrum by a broadcaster, so that the next user of the spectrum may move in ahead of schedule.

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FAIRNESS DOCTRINE

The Issue
Whether Congress should codify the Fairness Doctrine rule which was abolished by the Federal Communications Commission?

WSAB Position
WSAB opposes reinstatement/codification of the Fairness Doctrine. “Balance may be a laudable goal, but there are grave dangers when the government tries to strike that balance.” FCC 1985 Fairness Doctrine Report, (Paragraph 136)

Background
Since the FCC abolished the Fairness Doctrine in 1987, discussion of controversial issues of public importance on radio and television has become a mainstay of civic discourse. In the 20 years since the repeal of the Fairness Doctrine, the astronomical growth of political talk radio, both liberal and conservative, evidences the value of the Commission’s conclusion. Such programs have become the public’s town forum, twenty-four hours a day, seven days a week. Robust civic discourse is the mainstream of many stations’ programming. Codification of the Fairness Doctrine would deprive the public of its opportunity to participate meaningfully in the discussion of important community issues.

The FCC, after an exhaustive study, concluded that the Fairness Doctrine abridged even the limited First Amendment rights of broadcasters. The Commission’s findings in the Fairness Doctrine Report of August, 1985 and its 1987 Order repealing the Doctrine, clearly and convincingly demonstrate that the Fairness Doctrine is both unconstitutional and contrary to the public interest. “…the fairness doctrine inextricably involves the Commission in the dangerous task of evaluating the merits of particular viewpoints,” the Report said. In addition, the Commission concluded that the assumption (scarcity of broadcast frequencies limiting diversity of voices) underlying the Supreme Court’s decision in Red Lion Broadcasting Co. v. FCC were no longer valid.

The FCC concluded that the Fairness Doctrine discouraged, rather than encouraged, the vigorous exchange of ideas. Whatever interests may be served by the Fairness Doctrine, they are more than outweighed by its adverse, chilling effect on public discussion of important issues. The repeal of the Fairness Doctrine has not denied the public access to programming addressing community issues. On the contrary, it has opened up the airwaves for robust discussion of controversial issues of public importance as they never were before. The practical effect of recreating the Fairness Doctrine would be to eliminate the ability of stations to devote their airtime to the Air America Network or the conservative talk programming, which would silence those networks.

The Fairness Doctrine makes the government the ultimate editor. The Fairness Doctrine would return the Commission to the constitutionally disfavored role of overseeing program content by requiring judgments as to the reasonableness of selected programs formats and spokespersons. The FCC’s 1985 Report concluded that the pervasive regulation of broadcasters, “including the intrusive power over program content occasioned by the fairness doctrine, provides governmental officials with the dangerous opportunity to abuse their position of power in an attempt to either stifle opinion with which they disagree or to coerce broadcasters to favor particular viewpoints which further partisan political objectives.” It also “has the inexorable effect of interjecting the Commission into the editorial decision making process” of the broadcaster.

The Fairness Doctrine would place an unreasonable burden on local stations. Stations incurred large legal costs defending against complaints, of which only a handful were ever sustained by the Commission. The fear of generating a complaint, with its attendant costs, made stations less willing to delve into controversial issues. KREM-TV, Spokane could find no spokesperson to present an opposing viewpoint on a local bond issue. The FCC engaged the station in a 21-month defense of its actions, costing the station more than $20,000 and 480 hours of management and executive time and ultimately exonerated the station.

The Fairness Doctrine provided enormous leverage for special interest groups to coerce broadcasters into censoring specific programming or to harass broadcasters into presenting a particular spokesperson or broadcast. When the Fairness Doctrine was in effect, broadcasters were commonly whipsawed between special interest groups. Sometimes the group really wanted its viewpoint on-the-air, more often, it wanted the opposing viewpoint off-the-air. On some occasions, the special interest group simply wanted to reach a monetary “settlement” with the broadcaster in lieu of filing a Fairness Doctrine complaint. The Fairness Doctrine required broadcasters to provide airtime only to major or significant contrasting viewpoints, which opened the door to opportunity for mischief that special interest groups found irresistible.

The obligation to air issue-responsive programming has not been changed by the FCC’s action. The experience of the past twenty years shows that broadcasters continue to provide substantial coverage of controversial issues of public importance in their communities, including contrasting viewpoints, through news, public affairs, public service, interactive and special programming. Each broadcaster must document for public inspection, every three months, the issue-related programming the station has broadcast.

Broadcasters’ obligations to candidates for public office have not been changed by the repeal of the Fairness Doctrine. Broadcasters must still provide “equal opportunities” to opposing candidates, “reasonable access” to federal candidates, and sell airtime to candidates at the “lowest unit charge.”

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FIRST RESPONSE BROADCASTERS

The Issue
Ensuring that local radio and television stations have the ability to provide critical life and property-saving information during time of emergency and disaster.

WSAB Position
WSAB supports legislation that would provide “First Response Broadcasters” with appropriate priority status for fuel, food, water and other necessary supplies to continue broadcasting during emergency conditions; and, would provide access for critical-to-air personnel to keep the station operating and gather and broadcast life and property-saving information.

Background
Washington state is vulnerable to earthquakes, tsunamis, volcanic eruptions, wildfires and other natural and human-caused disasters. Washington’s local radio and television stations have played a critical role in communicating life and property-saving information for more than 55 years, since the creation of the CONELRAD warning system, but they, too, are vulnerable.

Broadcasters are able to provide essential public information services in a disaster only if they are able to stay on-the-air. A “First Response Broadcaster” is defined as a local or television or radio broadcaster that provides essential disaster-related public information programming (such as evacuation route instructions, safety information, utility status reports, etc.) before, during or after the occurrence of a natural or manmade disaster.

During a disaster, many stations struggle to keep broadcasting - keep emergency information flowing - and could contribute significantly to disaster response efforts. Passage of this legislation will put local broadcasters on the roster of first responders so the public can receive the life-saving information that they desperately need.

In the aftermath of Hurricanes Katrina and Rita, many local broadcasters could not access fuel, water, food and other supplies critical to keeping vital public information flowing. In some cases, supplies that stations procured elsewhere were confiscated by local, state or federal authorities. Emergency services and public safety needs should take precedence over private industry interests, but broadcasters should also be given special consideration following a disaster if they maintain essential disaster-related public information services.

• This bill would, where practicable, grant First Response Broadcasters access to federal supplies of fuel, food, water and other essentials in a priority status behind that of emergency services, health care facilities and public utilities. It would also allow, where practicable and not endangering public safety, First Response Broadcasters to retain fuel, water, food and other supplies, without federal confiscation if they were obtained and employed for the purpose broadcasting essential disaster-related public information programming.

Local journalists are issued press credentials and granted access to a disaster area by local authorities; but, in the wake of Hurricanes Rita and Katrina those credentials were disputed and, in some cases, not honored by state or federal authorities operating in the same area. Further, the restoration of critical broadcast facilities in the region was also inhibited as engineers and technicians were, in many cases, denied access to their facilities in the disaster area.

• The bill would require that FEMA and other federal agencies, in coordination with state and local authorities and the National Guard, honor press access guidelines and credentials set by the local governing authority. The bill would also direct the FEMA to coordinate with local and state agencies to expedite access into the disaster area for personnel and equipment essential to restoring or maintaining critical-to-air broadcast infrastructure, similar to plans for restoring public utilities, and would include access for refueling generators and re-supplying critical facilities.

Many transmitters, towers and key broadcast facilities are not sufficiently protected against potential threats.

• To protect vital broadcast infrastructure and encourage more broadcasters to deploy disaster-resistant telecommunications equipment, the bill would create a 3-year pilot program managed by the FEMA to provide annual matching grants to qualified First Response Broadcasters for the protection and reinforcement of critical-to-air facilities and infrastructure.

A Primary Entry Point (PEP) station is a radio broadcast station designated to provide the President access the airwaves nationwide following a national emergency. These stations have protected, government-funded circuits connecting them to emergency command centers. However, there are twenty states without PEP stations, although Washington is among the states that have a PEP station (KIRO-AM, Seattle).

• The legislation would authorize $6.5 million to FEMA to set up PEP stations in the states without a PEP station, the two states with stations but requiring another station for full geographic coverage, and three in U.S. territories abroad.

This legislation supports the vision of the federal Partnership for Public Warning: “Every person shall have the information needed in an emergency to save lives, prevent injury, mitigate property loss, and minimize the time needed to return to a normal life.”

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LOW POWER FM INTERFERENCE

The Issue
When the FCC created a new service of licensed broadcast stations, Low Power FM ("LPFM"), Congress ordered the FCC to protect full power FM stations' third-adjacent channel from interference, and conduct a study of the potential for interference if such protection were eliminated. In February of 2004, the FCC released its recommendation to Congress regarding third-adjacent channel protections. Legislation has been introduced to repeal the third-adjacent channel interference protection.

WSAB Position
WSAB opposes any attempt to reduce interference protection.

Background
Full service radio stations will be unreceivable near low power stations. In order to create these new Low Power FM stations, the FCC proposed to eliminate some current interference safeguards that protect the ability of listeners to receive a listenable signal on their radios. The potential number of LPFM stations, coupled with a reduction in protection from interference on stations' third-adjacent channel, will make disruption of full service broadcasts of local news, emergency information, weather, local community events, public affairs programming and other information unavoidable. When that happens, the full service station will lose its audience in the areas where the LPFM's signal is overpowering and the full service station's coverage will begin to resemble a slice of Swiss cheese.

The FCC's MITRE Corporation study of LPFM interference failed to address adequately third-adjacent interference issues as directed by Congress.

-The FCC's study failed to test any lower-adjacent channel interference potential. Third-adjacent channels exist both above and below the station's licensed frequency. However, the study only gauged interference for the upper third-adjacent channel. Research of the Consumer Electronics Association illustrates that there are significant differences in the ability of many radios reject upper and lower adjacent channel interference.

-The FCC's study did not use a well recognized scientific norm for determining objective interference. Instead, the study used a single listener's, subjective "yes"/"no" response as to whether they heard interference. The tests were not conducted in a scientifically valid audio listening "blind" evaluation, so that the listener is unaware of the details of the listening environment, because the engineer was aware whether or not an LPFM transmitter was present.

-The FCC's study was conducted using a list of LPFM license applications that were selected solely because they were not mutually exclusive with another application. They were not selected on any validated technical or scientific testing basis, but for mere administrative convenience and, thus, could not provide a scientifically valid set of field test sites.

-The FCC study's limited number of receiver locations falls well short of the well recognized standard for reception tests. The study was limited to testing only five receiver locations at each site. Properly conducted field testing typically selects numerous sites throughout a service area to characterize interference on a radio station because of the tremendous variability of reception based on terrain, environmental interference and other factors.

-The FCC's study did not include the congressionally mandated evaluation of the economic effect of LPFM on full power stations. Despite the clear language of the "Radio Broadcasting Preservation Act of 2000" which directed the FCC to conduct the study, the FCC mistakenly assumed that the economic analysis required by the Act was not necessary because of the lack of interference found by the study. Congress did not link the economic impact analysis to interference.

Development of digital radio technology could be thwarted by the insertion of thousands of new low power stations into the FM band. Digital radio broadcasting in the United States depends on existing channel allocations. A radio broadcaster will be required to insert its new digital signal on either side of its current analog signal, leaving no margin for error if LPFM stations are not required to protect full power stations' third-adjacent channel from interference.

The FCC's proposal could have the effect of denying low income, elderly and motoring citizens clear reception of their favorite station. Inexpensive and older radio receivers are particularly vulnerable to interference. The circuitry of ordinary car radios, boom boxes, handheld radios, hotel clock/alarm radios, and the like, is not sophisticated enough to ignore interfering signals from Low Power FM radio stations. That is why the FCC established its current interference protection standards for a station's third adjacent channel, which must be maintained.

The FCC should more aggressively process the LPFM applications currently back-logged, which everyone agrees will not cause interference. There are more than 800 LPFM applications that would comply with third-adjacent channel interference protection. Instead of risking interference to hundreds of millions of people who regularly listen to their favorite full power FM station, the FCC should be moving those applications toward licensing as quickly as possible.

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OWNERSHIP

The Issues
The Telecommunications Act of 1996 and the FCC's adoption of ownership rules in 2003 appropriately updated some aspects of broadcast ownership rules. Some Members of Congress have expressed interest in repealing or revising the ownership rules adopted in the FCC's 2003 ownership rulemaking.

WSAB Positions
WSAB opposes efforts to rollback the entire FCC ownership ruling.

Background
Broadcast/Newspaper Cross-Ownership. Given the growth of the Internet and other media outlets, it makes no sense to continue restricting free, over-the-air broadcasters from owning newspapers in the same market. The rule dates back to the days when there were far fewer radio and television stations, and before the development of the current vibrant community newspaper industry. In addition, fear of a loss of editorial voices through combined broadcast/newspaper ownership has not been proved true. For example, the Spokane market, both KHQ-TV, the local NBC affiliate and The Spokesman-Review newspaper are owned by the same parent corporation and, yet, Spokane enjoys a spirited editorial competition between these two outstanding media outlets. The Seattle-Tacoma-Everett market has experienced an explosion of media editorial voices with five daily newspapers, nearly 70 radio stations, more than 10 television stations, and more than a dozen community newspapers.

Radio/TV Cross-Ownership. The radio/television cross-ownership rule adequately limits the number of stations that can be co-owned in the same market. The combination of national television ownership cap, television duopoly rule and local radio ownership limits, taken together ensure a diversity of voices in every market.

TV Duopoly. Combining the physical plants of small market TV stations by permitting two stations to be owned by one licensee will allow those stations to continue to serve their communities in the digital television age. Earlier "duopoly" relief for television stations did nothing to help the stations most in need of assistance, small market stations such as those serving, Bellingham, Yakima/Tri-Cities and Spokane. Stations in our smaller markets are being squeezed by rising operating costs, the eye-popping costs of digital conversion, a soft advertising market and decreasing financial support from the networks.

UHF Discount. The UHF television discount used in determining compliance with the national reach of television ownership cap should be retained. The FCC has committed to ending the UHF discount for the Big 4 networks upon the completion of the transition to digital television. Congress should resist efforts to eliminate the discount prematurely.

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REPORTER'S SHIELD LAW

The Issue
In recent months, reporters have come under intense pressure to reveal the identity of confidential sources, threatening the public’s right to know, and leaving the reporters open to incarceration. Legislation has been introduced that would ensure that journalists and others involved in news gathering and dissemination are not inhibited, directly or indirectly, by threat of governmental sanctions.

WSAB Position
WSAB supports legislation that would protect reporters from forced disclosure of confidential sources, unpublished reporter's notes and out takes.

Background
Ensuring the free flow of news and information, and promoting a free and unfettered atmosphere in which news can be gathered and disseminated is the highest priority of Freedom of Speech. The press is a vital link between the people and their freedom, and the ability of a free press to report the truth to the public sometimes requires the participation of those who fear for their personal or professional safety if their identities were to become known. The confidentiality standard between reporter and source is as important to the protection of personal and national freedom as are the confidentiality standards between attorneys and clients, doctors and patients, and ministers and parishioners. Reporters recognize that defense of their assurances of confidentiality represents a sacred trust held on behalf of the public.

There are countless examples of information that Americans have received because confidential sources have been willing come forward: Watergate, Whitewater, Iran-Contra, the Iraq prison scandal, Enron, WorldCom, corporate governance issues, the list is almost endless. Those with knowledge of what the public needs to know are often "insiders," fearing for their jobs, futures, reputations or safety if they were to be identified publicly as the source of news. Stripped of the ability to protect the identity of a confidential source, the reporter is nearly always denied critical information. When that happens, all Americans suffer because they are deprived of knowledge and information which affects their lives.

A federal reporter's shield law will provide uniformity of expectations throughout America for sources, reporters, law enforcement officials and parties to legal actions. 33 States, including Washington in 2007, and the District of Columbia have passed legislation that would protect a reporter from charges of contempt of court, and possible incarceration, for refusing to reveal a confidential source or other material or information sought by civil or criminal litigants.

When law enforcement officials or litigation adversaries are allowed to force the news media to be an extension of their investigation, public trust of the media as impartial providers of news is endangered. Reporters are subpoenaed frequently to appear in court and threatened with fines and/or imprisonment if they refuse to reveal a confidential source to the prosecutor or attorneys involved in the lawsuit. In some instances, the prosecutor or attorneys might also request the reporter’s notes, video out takes, or other unpublished information.

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RETRANSMISSION CONSENT

The Issue
Cable operators seek the extraordinary, government-mandated right to carry broadcast signals for free, even though they compete head-to-head with broadcasters and gain enormous economic value from carrying broadcast signals.

WSAB Position
WSAB opposes any change to the retransmission consent process.

Background
The retransmission consent system is working exactly as Congress intended it to and anticipated it would. When enacting the 1992 legislation, Congress specifically noted that some broadcasters would seek monetary compensation for use of their signals and others would seek "in kind" compensation, such as the right to program an additional channel on a cable system. That is exactly what has happened. In the decade following enactment of this legislation, cable systems were largely protected against the discipline of marketplace negotiations because of their monopolistic power. Now that competitors are appearing on the horizon, cable operators seek to be protected from the marketplace.

Following a thorough study, the FCC concluded in 2005 that “Our review of the record does not lead us to recommend any changes to the retransmission consent regime at this time.” Retransmission Consent and Exclusivity Rules: Report to Congress Pursuant to Section 208 of the Satellite Home Viewer Extension and Reauthorization Act of 2004 (“SHVERA Report”) (Sept. 8, 2005). The Commission’s Report said that the, “carefully balanced combination of laws and regulations governing carriage of television broadcast signals, with the must-carry and retransmission consent regimes” complement one another. The Report went on strongly to oppose altering the retransmission consent regime unless the entire regulatory relationship between broadcasters and cable operators is re-examined and re-structured to ensure that the careful balance established by Congress in 1992 was not disrupted.

Retransmission consent negotiations are private, market-based negotiations between broadcasters and multi-channel video programming distributors. Congress should not alter a system that has evolved to benefit consumers as well as broadcasters and cable companies. In 1992, Congress overwhelmingly adopted the retransmission consent principle to permit broadcasters to negotiate freely with their cable rivals for fair compensation for cable’s carriage of their signals. The retransmission consent principle made possible a marketplace where cable operators and stations could bargain freely. There has never been an adjudicated complaint at the FCC of any broadcaster refusing to negotiate in good faith under the retransmission consent principle.

Eliminating retransmission consent would gut Congress’ intent in the Cable Act, turning back the clock to the bad old days when cable operators simply took broadcasters’ signals and profited from them without ever compensating broadcasters. Retransmission consent has led to more program diversity for American consumers -- more local news, more local weather, more sustainable support for broadcasters’ purchase of millions of dollars of programming on the open market for their local audiences. Congress should follow the recommendation of the expert agency and let the marketplace work.

Retransmission consent does not lead to “higher consumer bills.” The continuing escalation of cable’s prices to consumers has occurred even when virtually no broadcaster received any retransmission consent payments.

Both cable operators and broadcasters derive enormous value from carriage by cable systems of local broadcasters’ signals. Despite having available scores and in some cases hundreds of channels, cable subscribers spend well over 40 percent of their time watching broadcast signals. Even more to the point, this dispute over the value of broadcast signals can and should be resolved in marketplace negotiations that the retransmission consent principle makes possible.

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SATELLITE RADIO LOCAL CONTENT

The Issue
Legislation has been introduced that would define the scope of service of Satellite Digital Audio Radio Service (“SDARS”).

WSAB Position
WSAB supports legislation that would prohibit SDARS operators from originating local programming on their terrestrial repeaters using current or future technology; and, would require the FCC to conduct a rulemaking to determine whether SDARS licensees should be permitted to provide local content on their national distribution channels.

Background
Satellite Digital Audio Radio Service (“SDARS”) is a national service designed to provide the same programming to all listeners simultaneously; not locally differentiated programming. When the FCC authorized a Satellite Digital Audio Radio Service, it intended a seamless national service that would not offer local programming. Unfortunately, the satellite radio industry has made repeated attempts to circumvent the FCC’s intent.

SDARS terrestrial repeaters were not intended to permit SDARS companies to insert local programming. The FCC was forced to license terrestrial repeaters to SDARS companies because their signals were inadequate to provide full coverage. It intended these repeaters to be used only to fill-in gaps in the national satellite footprint. SDARS companies have been evasive about their plans for the terrestrial repeaters.

SDARS companies clearly intend to provide locally differentiated programming to their subscribers, one way or another. One of the satellite companies has relentlessly pursued a patent for technology that would allow it to insert localized programming into its terrestrial repeater network. Even though it agreed in December 2003 not to use its repeaters for local programming, XM Satellite Radio has begun offering local weather and traffic reports by dedicating a full footprint national channel to specific local markets. Sirius Satellite Radio offers the same type of service, meaning that both companies are circumventing the FCC’s intent of establishing a national only satellite radio service.

This legislation would preserve the localism upon which America's free, over-the-air broadcasting system is based. It would codify the original intent of the FCC and the agreement between the radio industry and XM Satellite Radio, ensuring that satellite radio will not use its terrestrial repeaters to insert local content. It would clarify that satellite radio companies could not use future technology, either ground or satellite-based, to transmit locally differentiated programming. It would instruct the FCC to conduct a rulemaking to determine whether the licenses the FCC issued to the satellite radio companies permit them to provide locally based programming content on their national distribution channels.

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SIRIUS SATELLITE RADIO/ XM SATELLITE RADIO MERGER

The Issue
Whether America’s only two satellite radio providers, Sirius Satellite Radio and XM Satellite Radio should be permitted to merge.

WSAB Position
WSAB opposes the merger of Sirius Satellite Radio and XM Satellite Radio, which is not in the public interest, would eliminate the fundamental assumption of the FCC’s Digital Audio Radio Satellite Service. (“DARS“) licensing scheme, harm consumers and create a monopoly.

Background
In 1997 the Federal Communications Commission was justifiably fearful of a DARS monopoly and specifically prohibited the only two licensees from merging. Nothing has changed in the past 11 years to alleviate those fears.

“Even after DARS licenses are granted, one licensee will not be permitted to acquire control of the other remaining satellite DARS license. This prohibition on transfer of control will help assure sufficient continuing competition in the provision of satellite DARS service.” In the Matter of Establishment of Rules and Policies for the Digital Audio Radio Satellite Service; IB Docket 95-91; Report & Order, Paragraph 170.

The proposed merger of Sirius Satellite Radio and XM Satellite Radio is a repudiation of the fundamental basis of the FCC’s licensing scheme for DARS. The thought of a lone licensee controlling 300 or more channels in every market is beyond jaw dropping. If Sirius and XM are permitted to merge, there will be no credible argument that local broadcast ownership limits should be made more restrictive or even maintained at their present levels.

The merger of XM and Sirius would create a monopoly that would harm consumers and will not promote the public interest in any way. Monopolies are highly disfavored. There are only two DARS competitors. Their merger would subject consumers to unrestrained price increases for subscriptions fees, confusion about how to continue to listen to their favorite programming, the requirement to replace their existing and expensive satellite radios, and reductions in choices of programming. If the current satellite business model is unworkable, they need to change the model or file bankruptcy just like any other business or broadcaster. In a similar situation, only a short time ago, Federal regulators summarily rejected a merger proposal between the only two Direct Broadcast Satellite companies.

Authorization of such a merger would reward poor business decisions. When both companies obtained their licenses, it was under very specific conditions which outlined NATIONAL service from at least TWO providers. Now, after spending millions of dollars on marketing and offering outrageous compensation deals to lure talent, they find themselves the victims of a bad business model. It would be just another government bail-out of an industry that has been poorly managed.

Satellite radio companies have violated the Commission’s rules repeatedly in order to make more money, and when it has not worked, they are seeking to be bailed-out by the government.

• Neither Sirius nor XM is, or ever has been, in compliance with the requirement that their receivers be compatible with, and able to receive and play, both systems [47 CFR 25.144(a)(3)(ii)];
• Their receivers interfere with terrestrial radio receivers and provide “shock jock” content to unsuspecting listeners of non-commercial educational FM
• They have sought to use their terrestrial repeaters for insertion of locally differentiated content, in clear violation of the terms of their licenses, and when that tactic did not work, they began using some of their national footprint channels to deliver local traffic and weather reports, a clear violation of the spirit, if not the letter, of the law.

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TAX DEFERRAL

The Issue
From 1978 to 1995, the FCC's “tax certificate” program allowed broadcast owners to defer capital gains taxes for two years when a station was sold to qualified minorities or females and the proceeds re-invested in a qualified property. In 1995, Congress repealed the program.

WSAB Position
WSAB supports legislation that would revise and re-enact the tax certificate program as a way to enhance diversity of ownership in the broadcasting industry.

Background
Broadcasters and the FCC want to ensure that ownership diversity of broadcast properties continues. The tax certificate program made it easier for minority entrepreneurs to purchase broadcast properties by providing them with a bargaining chip in negotiations. It also provided benefits to station owners who sold their properties to minority entrepreneurs, by allowing a tax deferral on any gain from the sale. And, reinvestment in communications businesses provided long-term financial strength for the entire industry.

The tax certificate is an effective, non-intrusive way of increasing the number of minority owners in broadcasting, thereby furthering the nation’s policy favoring diversity in the expression of views on the nation’s airwaves. Prior to the adoption of the tax certificate program in 1978, members of minority groups owned only 40 out of 8,500 broadcast stations. During the program’s existence, the issuance of tax certificates resulted in the acquisition of 288 radio stations 43 TV stations, and 31 cable companies by members of minority groups.

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UNLICENSED DEVICES ON TV CHANNELS (“White Space”)

The Issue
Legislation has been introduced that would authorize the use of unlicensed transmitting devices, including wireless broadband devices, on TV channels 2-51 that are “unused” or “white space.”

WSAB Position
WSAB opposes legislation that would permit unlicensed devices in the TV band before the DTV transition has been completed (including Low Power TV and translators) and then only with adequate and enforceable provisions to prevent or stop interference.

Background
Unlicensed devices operating in the TV band may cause significant, harmful interference to consumers’ television reception. This interference could cause pictures on a consumer’s DTV set to freeze, break up or go blank, rather than the “snowy” picture analog receivers show in the presence of interference, even if the TV set is connected to cable. DTV converter boxes will be subject to the same RF interference as the TV sets on which they sit. This type of disruption could undermine consumer confidence in DTV and lead to the conclusion that it is unreliable. The thought of hundreds of thousands, or even millions, of unlicensed devices operating on TV channels is, in itself, reason to take all necessary precautions to ensure against interference.

Vacant TV channels are not “unused.” Local TV stations, broadcast networks, sports programming producers, sports leagues, churches, video production companies and others depend on the licensed use of wireless microphones, intercoms and other equipment on “vacant” TV channels. This equipment is integral to the production of news, sports and entertainment programming. In many markets these frequencies are already congested and wireless broadband operation would likely cause significant interference and render use of this equipment unreliable. Most TV markets, and all NFL game-day markets, employ a local “frequency coordination committee” to manage the licensed use of these devices because of the already crowded nature of the “vacant” TV channels.

Consumers have no way to determine where interference is coming from or enforce requirements that unlicensed devices not generate interference. Interference in this context is different than any interference issues that have ever arisen. Current interference problems usually stem from widespread radio signals that affect many viewers. The source of such interference is easy to pinpoint. However, the devices that are contemplated by this legislation would also include small, close-range devices; devices that will send a signal through a wall or from the next door neighbor. Consumers could never complain about interference because they would not know who is interfering with their TV reception (or even that the problem they are experiencing is interference). Those using unlicensed devices can never know that they are interfering with TV sets, or with whose TV.

Congress should not act before the FCC has the chance to complete its Rulemaking proceeding on unlicensed devices. The Commission has heard and responded to Congressional desire to speed the inception of the use of unlicensed devices in unused portions of the TV spectrum. On October 12, 2006, the FCC adopted its First Report & Order and Further Notice of Proposed Rulemaking in “In the Matter of Unlicensed Operation in the TV Broadcast Bands” ET Docket No. 04-186, in which it concluded that fixed low power devices can be allowed to operate on TV channels in areas where those frequencies are not being used for TV or other incumbent licensed services. Marketing of such devices may commence on February 18, 2009, after the digital television (DTV) transition is complete and all TV stations are in operation on their permanent DTV channels.

The FCC has never authorized a new service without field tests establishing its viability, and it should not be forced to rush to judgment now. Comments in the FCC’s rulemaking proceeding provide an extensive list of possible and probable problems that use of such devices could generate that must be resolved by the FCC before the service is authorized. Each device should be certified by the FCC as complying with its rules before it can be marketed. For example, in the Further Notice of Proposed Rulemaking, the FCC solicited additional information that is needed to determine whether personal/portable devices can operate in any of the TV channels without causing harmful interference. It also invited comment to explore whether low power devices should be permitted on TV channels 2-4, which are used by TV interface devices such as VCRs, and whether fixed low power devices can be permitted on TV channels 14-20.

The Commission reaffirmed its commitment to developing a complete record to ensure that the final rules will protect TV broadcasting and other service against harmful interference. In particular, it invited parties to submit test results showing that TV band devices will not cause harmful interference. In addition, the Commission noted that it plans to conduct extensive testing itself to assess the potential interference from low power devices operating in the TV bands before adopting final rules. Many of the devices that would qualify for use have not been invented yet. The immense potential for harm if interference avoidance techniques are not completely effective and the difficulty in undoing a mistake of this proportion demand that the use of unlicensed devices in the TV band should not be adopted until field tests have proven this technology successful in preventing interference. The DTV transition must be completed before we will know what space is “white” and what space is “occupied.”

Current proposals to use “white space” rely on technology that is not sufficiently developed, or on methods that have already proven unreliable. The current IEEE research should be allowed to proceed to conclusion before any legislation mandating unlicensed devices is adopted. IEEE, the world’s leading engineering group is studying operating unlicensed devices in the TV band. The IEEE 802.22 Working Group has refrained from adopting standards for portable devices because of the interference they generate. The 180-day implementation deadline in the legislation ignores on-going research into the technology that will make unlicensed devices in the TV band free from interference. The FCC should not be required to act until the facts are established via thorough reliable, verifiable research.

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VIDEO NEWS RELEASES – SPONSOR IDENTIFICATION

The Issue
Certain government video news releases have drawn scrutiny from Congress in the form of a bill that would require government agencies that produce video news releases to clearly label them as products of the government.

WSAB Position
WSAB opposes any further requirements that would apply to broadcasters for sponsorship identification of video news releases. If any further regulation is adopted, the responsibility for ensuring that proper sponsorship identification is included should rest with the supplier of the video news release, not with broadcasters.

Background
The FCC’s existing statutory authorization provides the Commission with all the power it needs to regulate sponsorship identification on broadcast stations. Section 73.1212 of the Commission’s Rules provides that a broadcast station must announce as “furnished by” any material that is “furnished either without or at a nominal charge for use on, or in connection with, a broadcast….” Such an announcement fully complies with the station’s obligation under the Commission’s sponsorship identification rule.

The FCC has launched its own investigation of sponsorship identification of video news releases. The Commission has issued letters of inquiry to 77 broadcasters about their use of video news releases. The inquiry seeks to determine whether the source (“sponsor”) of video news releases used by the stations was properly disclosed pursuant to the Commission’s sponsorship identification rule.

The FCC has issued a Public Notice reminding broadcasters of their responsibilities for proper sponsorship identification. “Whenever broadcast stations and cable operators air VNRs, licensees and operators generally must clearly disclose to members of their audience the nature, source and sponsorship of material that they are viewing,” the Notice said. The Notice also warned broadcasters that the Commission would take appropriate enforcement action against stations that do not comply with their sponsorship identification obligation.

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