The MBA would like to extend its gratitude to Congressman Mike Capuano for his continued support of local broadcasters!

From NAB:

OPPOSITION TO RIAA PERFORMANCE TAX TOPS 250 IN HOUSE, REACHES 25 IN SENATE — Local Radio Freedom Act supported by 251 House members, 25 Senators–

WASHINGTON, DC — A bipartisan group of 251 House members and 25 U.S. Senators are now on record in opposition to a performance tax, NAB announced today. The overwhelming Congressional opposition comes as the Recording Industry Association of America (RIAA) continues to lobby in support of legislation that would require local radio stations to pay an additional fee for every song aired free to listeners. Meanwhile, Universal Music sent an email this week to local radio stations, thanking them for the free airplay provided for musicians Taylor Swift and Jaysean. “Thank You Radio For Simultaneous #1 Tracks @ Top 40 and Rhythm!” reads the email. The record label’s recognition of the unparalleled promotional value of radio airplay contradicts statements made by recording industry representatives in Washington who have characterized radio airplay as “a form of piracy.” “Support in both the House and Senate for free and local radio continues to grow, despite an unprecedented lobbying campaign by RIAA,” said NAB Executive Vice President Dennis Wharton. “We’re hopeful that Congress ultimately rejects this bill and preserves the ability of local radio to freely expose new artists and new music to 235 million listeners every week.” Sens. Mary Landrieu (LA) and John Thune (SD) and Reps. Dennis Cardoza (CA-18), John Boccieri (OH-16), Brian Baird (WA-3), Joe Sestak (PA-7) and Daniel Lungren (CA-3) are the most recent co-sponsors of The Local Radio Freedom Act (H. Con. Res. 49, S. Con. Res. 14), a bipartisan resolution expressly opposing the record label-led performance tax effort. The Local Radio Freedom Act is now supported by a group of 251 House members and 25 U.S. Senators. “Congress should not impose any new performance fee, tax, royalty, or other charge relating to the public performance of sound recordings on a local radio station for broadcasting sound recordings over-the-air, or on any business for such public performance of sound recordings,” reads The Local Radio Freedom Act, which was unveiled at a February Capitol Hill event hosted by the Free Radio Alliance. The resolution was introduced by Reps. Gene Green (TX-29) and Mike Conaway (TX-11) in the House and by Sens. Blanche Lincoln (AR) and John Barrasso (WY) in the Senate.

As previously reported, stations that have not yet completed construction or commenced operation of their final post-transition DTV facilities must continue the required general DTV Consumer Education Initiatives until they commence operation on their post-transition DTV facilities.  Such stations will be required to file another FCC Form 388 by October 10, 2009, providing the Commission with the details of the DTV Consumer initiatives that they performed between July 1 and September 30, 2009.   

By October 10, 2009,  those television stations, which completed construction and commenced operation with their post-transition final DTV facilities after June 30, 2009 or have not yet completed construction and commenced operation of their post-transition digital facility, are required to report on the DTV Education Initiatives undertaken in the months of July, August and September by electronically filing the FCC Form 388.  The FCC Form 388 is also required to be placed in the station’s public inspection file by October 10, 2009 and posted by that date to the station’s website, if it has one.  Details of the FCC’s DTV Consumer Education requirements can be found in our Advisory posted on our website by clicking the link below.  

Stations which completed construction of their fully-authorized, post-transition digital facilities  prior to June 30, 2009 were not required to continue with the general DTV Consumer Education announcements and are not required to submit any additional FCC Forms 388 after their July 10, 2009 filing.

Content of the Quarterly List

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station.  The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming. 

To demonstrate a station’s compliance with this public interest obligation, the FCC requires a station to maintain, and place in the public inspection file, a Quarterly List reflecting the “licensee’s most significant programming treatment of community issues.”  By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.

Given the fact that program logs are no longer officially mandated by the Commission, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations.  The lists also provide important support for the certification of Class A compliance that is discussed below and which must be produced by Class A applicants and licensees.

We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness.  Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during the license term.  Stations should include in the Quarterly Lists as much issue responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs.  Taking extra time now to provide a fully complete Quarterly List will help to reduce risk at license renewal time.

It should be noted that the FCC has emphasized the importance of the Quarterly Lists.  For example, the FCC concluded a hearing concerning the license renewal of a noncommercial educational station that, among other things, misrepresented that its public inspection file contained Quarterly Lists when in fact the public inspection file contained only lists of programming aired on the station without reference to any issues to which the programming was responsive.  The FCC granted a short-term renewal of the station’s license and also assessed a $10,000 fine for the violations in total.  The case emphasizes the importance of maintaining complete public inspection files, including timely filing all Quarterly Lists.

Preparation of the Quarterly List

The Quarterly Lists are required to be placed in the public inspection file by January 10, April 10, July 10, and October 10 each year.  The next Quarterly List is required to be in the station public inspection file by October 10, 2009.

In preparing this Quarterly List, stations should keep the following in mind:

n  The Quarterly List will be very important “evidence” in the station’s defense if the station’s license renewal is ever contested, so each station should approach the preparation process very carefully.

n  Stations should maintain some type of routine outreach practice for getting out into the community to talk with various community segments and groups to learn their perceptions of community issues, problems, and needs.  The fact that such contacts were made and the information learned from them should be documented and saved.  Letters to the station about community issues should be made a part of the station’s database.

n  There should be some station procedure to organize the information that is gathered and bring it to the attention of program production staff with a view toward producing and airing programming dealing with the significant community issues.  This procedure and its results should be documented and saved.

n  Stations should ensure that there is some correlation between the contacts the station has had in the community and the letters received from the public, on the one hand, and the issues they have identified in their Quarterly Lists on the other.  A station should not overlook significant issues.  While the station may take into consideration what other stations in the market are doing, each station will have the burden of persuading the Commission, in a contested license renewal proceeding, that it has acted “reasonably.”

n  Stations should not specify an issue for which no programming is identified.  Conversely, stations should not list programs for which no issue is specified.

n  Under its former rules in this area, the FCC required a station to list five to ten issues per Quarterly List.  While that rule has been eliminated, the FCC has noted that such an amount will likely demonstrate compliance with the station’s issue responsive programming obligation.  However, the Commission has also noted that some licensees may choose to concentrate on fewer than five issues if they cover them in considerable depth in any given quarter.  Conversely, the FCC has noted that still other broadcasters may address more than ten issues in a given quarter, due perhaps to program length, format, etc.

n  The Quarterly List should reflect a wide variety of subject matters.  For example, five issues affecting the Washington, DC community where this firm is located might be:  (1) the fight over statehood for the District of Columbia; (2) fire code violations in DC school buildings;  (3) clean-up of the Anacostia River; (4) reforms in the DC Police Department; and (5) debate over needle exchange programs for IV drug users.  The issues should vary over time, reflecting the station’s ongoing ascertainment of community needs and concerns.

n  Accurate and complete records of which programs were used to discuss or treat which issues should be preserved so that the job of constructing the Quarterly List is made easier.  The data retained should help the station identify the programs that represented the “most significant treatment” of issues, e.g., duration, depth of presentation, frequency of broadcast, etc.

n  The listing of “most significant programming treatment” should demonstrate a wide variety in terms of format, duration, source (local is presumptively the best), time of day (times of day when the programming is likely to be effective), and days of the week.  Stations should not overlook syndicated and network programming as ways to treat issues. 

n  Stations should prepare each Quarterly List in time for it to be placed in their public inspection file on or before the due date.  If the deadline is not met, stations should give the true date when the document was placed in the public inspection file and explain its lateness.  Stations should avoid creating the appearance that it was timely filed when it was not.

n  Stations should show that their programming commitment covers all three months within each quarter.

These are just some of the more significant suggestions that can assist stations in meeting their obligations under the Commission’s rules.  It may be that the requirement to list programs providing the most significant treatment of issues will have the effect of persuading a station to review the adequacy of its programming overall to see whether it treats issues of community concern in a way that truly informs and educates the public.

Attached is a sample format for a “Quarterly Issues/Programs List” to assist stations in filling out the Quarterly List.  Please do not hesitate to contact any of the lawyers in the Communications Practice Section for specific advice on determining precisely how to ensure the adequacy of your efforts in this area.

Class A Television Stations Only

Class A television stations should also note that they are required to certify that they continue to meet the FCC’s eligibility and service requirements for Class A television status under Section 73.6001 of the Commission’s rules.  While the subsection of the public inspection file rule, Section 73.3526(e)(17), does not specifically state when this certification should be prepared and placed in the public inspection file, we believe that since Section 73.6001 assesses compliance on a quarterly basis, the prudent course for Class A television stations is to place the certification in the public inspection file on a quarterly basis as well.

Accordingly, we recommend that the certification be prepared and placed in the public inspection file at the same time that the Quarterly Issues/Programs List is due to be placed in the public inspection file.

New Filing Requirement

On January 24, 2008, the FCC released a Report and Order stating that a new standardized form of programming report will replace the Quarterly Issues/Programs List for full-power and Class A television stations.  As of this writing, OMB has not approved the new Form 355.  In any event, that FCC action is not likely to eliminate the requirement that the Quarterly Issues/Programs List be placed in the public file by October 10, 2009.  If approved by OMB, and not stayed and overturned by the Court, FCC Form 355 will have to be completed,  filed with the FCC, and placed in the station’s public file and posted on its website, on a quarterly basis.  The form will require television stations to list information such as local civic programming, local electoral affairs programming, public service announcements, and independently produced programming.  The form will also require television stations to include information about closed captioning, video described content, the provision of emergency information for the disabled, and about the station’s efforts to ascertain the programming needs of various segments of the local community.

Periodically, we will provide an update about the status of FCC Form 355.

National Fallen Firefighters Memorial Service to Honor Fallen Massachusetts Firefighter

EMMITSBURG, MD. – The 28^th Annual National Fallen Firefighters Memorial Service will honor a Massachusetts firefighter who died in the line of duty in 2008. He will be among the 98 men and 5 women from 36 states remembered at the official national service held at the National Fire Academy in Emmitsburg. Nineteen firefighters who died in previous years will also be honored.

Firefighter John Clasby, age 45, of the Hull Fire Department died on November 11, 2008, as a result of complications from a line-of-duty injury suffered at a structure fire in June 1999.

The National Fallen Firefighters Foundation (NFFF) and the Department of Homeland Security will sponsor the official national tribute on October 4, 2009. This ceremony marks the beginning of National Fire Prevention Week designated by President Obama to focus national attention on the destruction of property and loss of life caused by fire.

As first responders to all natural and manmade emergencies, fire service personnel are in constant danger. During 2008, 103 firefighters died in the line of duty, making firefighting one of the nation’s most dangerous occupations.

More than 5,000 people, including Members of Congress, Administration officials and other dignitaries, members of the fire service, and families and friends of the fallen firefighters will attend the event. Families receive flags flown over the U. S. Capitol and the National Memorial. Honor guard units and fire service personnel from across the U.S. will participate in the National Tribute.

Many fire departments across the country will conduct simultaneous services, lower flags to half-staff, sound sirens at noon, and observe a moment of silent tribute.

For more information, visit Weekend.FireHero.org. The website includes a complete list of this year’s honored fallen firefighters, a video introduction to the Memorial weekend, images of previous memorial services, satellite coordinates for broadcast, and more.

About the National Fallen Firefighters Foundation (NFFF) The United States Congress created the NFFF to lead a nationwide effort to remember America’s fallen firefighters. Since 1992, the nonprofit foundation has developed and expanded programs to honor fallen fire heroes and assist their families and coworkers. For more information on the Foundation and its programs contact us at 301-447-1365 or visit www.FireHero.org.

 For more photos, click here.