WASHINGTON, D.C.—The National Association of Broadcasters (NAB), the Multicultural Media, Telecom and Internet Council (MMTC) and the National Association of Black Owned Broadcasters (NABOB) have filed a petition for review with the U.S. Court of Appeals for the District of Columbia Circuit challenging a Federal Communications Commission (FCC) order mandating disclosures for foreign government-sponsored programming.

In the petition, the organizations argue that “the new rules impose on every broadcaster—i.e., thousands of stations, some very small, which collectively have many thousands of contracts for the lease of time to air programming—onerous requirements to make specified inquiries of, and conduct independent research on, all the entities with whom broadcasters currently or will in the future have lease agreements. The broadcaster must determine (and then announce) whether the sponsor of the programming is a foreign governmental entity or its agent, even if the leased programming (such as an infomercial or local religious broadcast) poses no colorable risk of foreign sponsorship.”

The petition argued that these requirements would be particularly burdensome to small broadcasters owned by women or people of color,

The organizations also argued that the rules would do little to address the problem of foreign interference in elections. “Those regulations are imposed only upon broadcasters, even though the problem that the Commission purports to address—the failure to identify a foreign government entity that is the source of the programming—is almost entirely associated with satellite and cable channels and, above all, with social media and the Internet,” the petition noted. 

In a separate statement to the press, the NAB, MMTC and NABOB noted that they “are deeply concerned with the FCC’s misguided attempt to develop uniform rules for disclosing foreign government-sponsored programming. The Commission’s decision to require broadcasters in all circumstances to investigate the source of leased programming exceeds its statutory authority, is arbitrary and capricious and violates the First Amendment. Broadcasters strongly oppose foreign interference in American elections, but the Commission’s order fails to even address this core objective. We look forward to presenting our case in court.”

The full petition is available here. 

WASHINGTON—The Multicultural, Media Telecom and Internet Council (MMTC) and the League of United Latin American Citizens (LULAC) have provided an outline of strategies they believe the FCC should implement to ensure multilingual populations receive critical information during emergencies, including pandemic and natural disasters.

MMTC and LULAC made two specific recommendations for the FCC to ensure that they deliver and maintain emergency communications to multilingual populations. 

The first is for communications during a pandemic, when systems are not adversely impacted. In this case, the organizations believe the FCC should survey communication providers’ resiliency, redundancy and multiple language capabilities before, during and immediately after the emergency. Based on the results, the FCC should design and implement a training regimen to assist providers in meeting the information needs of multilingual populations in the event of such an emergency.

The second recommendation focuses more on hurricanes and tornadoes that take down electric wireline or wireless grids for communication. For this MMTC and LULAC want to see the FCC adopt the “Designated Hitter” system, which ensures that at least one commercial or noncommercial full power radio station is able to remain on air during and after a hurricane with the responsibility of distributing critical multilingual information.

PLUS: FCC Releases Results of 2019 EAS Test

Here’s what the organizations wrote about the “Designated Hitter” idea:

“For communication during and after a hurricane or tornado that takes down the electric, wireline or wireless grids -- as happened with Hurricanes Andrew (1992), Katrina (2005), Maria (2017), Florence (2018), and Michael (2018) -- the commission should adopt a radio station ‘Designated Hitter’ system. When radio is the last resort for mass communication, the Designated Hitter paradigm contemplates that at least one commercial or noncommercial full power radio station, able to remain on the air during and after a hurricane, will have arranged in advance to broadcast life-saving multilingual information.

“Initially, these arrangements would be made in radio markets that have no more than one full service in-language station (defined as a commercial full power FM, or an AM with at least 1 kw day and night) and where there are more than 50,000 persons likely to speak the target language). This paradigm is necessary if one or more grids go down, leaving radio stations with generators as the only channels capable of mass communication. The ‘Designated Hitter’ concept is the only method that can pre-arrange and generally assure the provision of life-saving multilingual information during and after a hurricane or tornado.”

With the COVID-19 pandemic still impacting the country and hurricane season scheduled to start on June 1, the two groups say that a multilingual emergency communications system is needed immediately.

In addition to pandemic, hurricanes and tornadoes, MMTC and LULAC also indicate other types of emergencies that such services would be needed, including floods, bombings or terrorist attacks and nuclear meltdown or nuclear bombs.

“The Commission’s top priority should be meeting the urgent information needs of America’s

often isolated and disadvantaged multilingual populations while under COVID-19,” the letter to the FCC reads. “That means, initially, that the Commission should ensure that its regulatees possess the capabilities and expertise needed to deliver in-language service to those who will need it the most.

“We are hopeful that upon appreciating the urgency of action in light of COVID-19, the industries that provide emergency communications would consider not imposing objections, and would instead work collaboratively with MMTC and LULAC to protect those who are the most vulnerable.”

WASHINGTON—The call from broadcasters to reduce Equal Employment Opportunity rules entirely misses the point of the FCC’s efforts regarding EEO efforts, according to the Multicultural Media Telecom & Internet Council.

“The proceeding is not about how to totally eviscerate, diminish or cripple EEO enforcement,” MMTC wrote in its reply comments to the FCC’s Notice of Proposed Rulemaking on EEO. “Instead, the NPRM called for comments on how to improve the current EEO enforcement system.”

This stance is based on comments filed by the NAB and other broadcaster groups that argued for the removal or reworking of current EEO enforcement methods. One of the arguments made for this by state broadcaster associations is that there hasn’t been an indictment of a single broadcaster on discrimination since the EEO rules were instituted in 1969. However, MMTC sees that as precisely the problem.

“It is simply not the case that broadcasting is the only industry in the nation whose thousands of employers included no racial or gender discriminations in the past 50 years,” MMTC wrote. “The fact that an industry contains discriminators, but they never get prosecuted, much less held liable, is certainly not a strong argument for weakening the obviously insufficient EEO compliance program in place now.”

Other arguments made by broadcasters and those seeking to reduce or refine the EEO rules are based on cost or “burdensome” requirements. The MMTC counters by arguing that the EEO rules to avoid a potential audit only require they “recruit broadly,” which it states can be done by posting an open position online.

A specific point that MMTC said in its comments that it would like to see reinstituted as part of the EEO rules in the use of Form 395, which is designed to be able to determine and identify broadcasters who recruited broadly versus hiring through “word of mouth.”

All of this comes as a result of the FCC’s deregulation efforts of the EEO rules being denied by the U.S. Third Circuit Court of Appeals, which suggested that the FCC did not adequately gauge of the impact of its revisions—however, that ruling specifically dealt with diverse station ownership, not employment.

FCC’s ECFS has MMTC’s full comments.

The author is an attorney with Fletcher, Heald & Hildreth, on whose blog this article originally appeared.

On Dec. 12, 2018, the Federal Communications Commission issued a Notice of Proposed Rulemaking commencing the 2018 Quadrennial Review of the commission’s media ownership rules.

The FCC is required under Section 202(h) of the Communications Act to review most of its broadcast ownership rules every four years to determine whether the rules continue to be in the public interest (and to repeal any rules that no longer serve the public interest) because they ensure a competitive broadcast marketplace. (Importantly, the national television ownership cap is excluded from the quadrennial review process).

These proceedings usually involve court challenges and typically take years to complete — as demonstrated by the fact that the commission did not complete the 2010 and 2014 quadrennial reviews until 2017.

In the NPRM, the commission is specifically reviewing its local radio and television ownership rules, as well as the “dual network” rule. The FCC is also considering the adoption of several diversity-related ownership proposals proffered by the Multicultural Media, Telecom and Internet Council.

Each of these items under the commission’s consideration are reviewed below. Despite its name, the NPRM does not in fact propose any specific rules, but rather requests comment broadly on any changes that should be made to these ownership rules. Instead, Chairman Ajit Pai requested an “intellectually honest conversation” about the current state of the media marketplace, and that any changes to the rules would “follow where the facts take us.”

LOCAL RADIO OWNERSHIP RULE

The Local Radio Ownership Rule limits both the total number of radio stations an entity may own within a local market and the number of radio stations an entity may own in that market within the same service (AM or FM). Currently, the FCC divides markets into four tiers based on their size, allowing an entity to own more stations in larger markets. The rule currently permits entities to own up to five commercial radio stations in the smallest of markets (14 stations or less) — no more than three of which may be in the same service — and up to eight commercial radio stations in the largest of markets (45 stations or more) — no more than five of which may be in the same service.

The FCC requested comment on whether the Local Radio Ownership Rule should be eliminated, modified or remain the same in light of any changes to the broadcast marketplace. As in past quadrennial reviews, the commission seeks comment on whether it should modify or eliminate any, all, or none of: the relevant market definitions, market size tiers, numerical limits and AM/FM subcaps.

The commission also requested comment on the National Association of Broadcasters’ proposal that the commission relax its radio ownership limits due to increased competition for listeners and advertisers posed by other services including streaming services, satellite radio, podcasts, Facebook and YouTube.

Specifically, NAB proposes that entities in the top 75 Nielsen Audio Metro markets be permitted to own up to eight commercial FM stations and an unlimited number of AM stations. NAB proposes that all ownership limits on radio stations be eliminated in all other markets.

The FCC is also seeking comment on:

• whether the interim contour-overlap methodology should be made permanent;
• the issue of embedded market transactions;
• the impact that eliminating or modifying the rule would have on minority and female broadcast ownership; and
• whether the relevant markets should be defined as to encompass the increasing competition broadcasters face from satellite radio and online audio sources.

LOCAL TELEVISION OWNERSHIP RULE

The Local Television Ownership Rule limits the number of full-power television stations an entity may own within the same local market. The rule permits entities to own up to two television stations in the same market so long as no more than one of those stations is a “top-four” station within that market. As of last year, however, entities may request waiver of the “top-four” rule under certain circumstances.

The commission in the NPRM requested comment on whether changes in the television marketplace and the video programming distribution industry necessitate elimination, modification or retention of the current rule. Notably, in light of the evolving video marketplace, the FCC requested comment on whether:

• the local television market definition should be expanded to include non-broadcast sources of video programming such as multichannel video programming distributors and online video distributors; as well as social media platforms and Internet websites; and
• if the rule were to be maintained, the numerical limit and the “top-four” rule could be adjusted or eliminated to ensure continued competition in the television marketplace.

DUAL NETWORK RULE

The Dual Network Rule prohibits ownership of multiple television stations affiliated with two or more of the Big Four broadcast networks (ABC, CBS, Fox and NBC). A version of this rule, which effectively prohibits a merger between or among the Big Four Networks, has existed since the 1940s.

The commission requested comment on whether current competition in the television and advertising marketplace mandates the elimination, modification, or retention of this rule. Specific focus was placed on whether increased competition from OVDs necessitated changes to the rule given the commission’s previous findings regarding the promotion of broadcast localism.

MMTC PROPOSALS

The commission requested comment on MMTC’s three diversity-related proposed amendments to the media ownership rules:

1. the extension of cable procurement requirements to broadcasters;
2. the development of a model for market-based “diversity credits” to serve as an alternative to prescribed ownership limits; and
3. the adoption of formulas creating media ownership limits that promote diversity.

Under the cable procurement requirement, cable systems must encourage minority and female entrepreneurs to conduct business with all aspects of a cable system’s operations. Cable systems may accomplish this obligation by recruiting qualified entrepreneurs from a pool of sources likely to representative of female and minority interests. Specifically, the FCC requested comment on whether the Communications Act permitted the adoption of such a rule for broadcasters, and if so, whether the rule would aid in increasing broadcast ownership diversity.

MMTC also proposed that the FCC should adopt a system of “diversity credits” which could be traded between broadcasters and “redeemed” by station buyers to offset increased ownership concentrations resulting from a station acquisition.

The proposal centers on the idea that a transaction deemed to promote diversity — for example the breakup of a local radio ownership cluster or the sale of station to a socially and economically disadvantaged business — could provide the seller with “diversity credits.” These credits could then be used by the seller to have a greater concentration of media ownership than otherwise permitted by the commission’s rules. Comment was sought on whether the Communications Act provided the FCC with authority to implement such a system, and if so, whether such a system would be feasible in increasing diversity in the broadcast industry.

MMTC’s third diversity-related proposal concerned the adoption of either a “Tipping Point Formula” or “Source Diversity Formula” to be used in establishing media ownership limits and promoting broadcast ownership diversity.

The Tipping Point Formula is a methodology for determining whether a transaction would result in the reduction of the amount of available revenue for supporting independent operators in a given radio market to an unsustainable level. If so, the transaction would be barred for having a negative impact on ownership diversity in that market. In contrast, the Source Diversity Formula is not limited to the radio service. The formula, however, relies on a complicated set of variables to assess whether a market manifests strong, moderate, or only slight diversity, which would then be used to assess the permissibility of a given transaction. The FCC requested comment on the feasibility of these proposals, and whether their adoption would aid in encouraging broadcast ownership diversity.

Comment deadlines had not yet been published at press time. File comments in MB Docket No. 18-349 atwww.fcc.gov/ecfs/.

WASHINGTON--When it gets back to work after the government shutdown, the Federal Communications Commission will have a fair amount of work on its plate — including a formal vote on equal employment opportunity enforcement, which one nonprofit organization is hoping will bring about changes that it says are 14 years overdue.

The president emeritus of the Multicultural Media, Telecom and Internet Council (MMTC) asked FCC Commissioners Brendan Carr and Jessica Rosenworcel to consider additional steps beyond the FCC’s planned housekeeping vote on EEO in order to better address diversity and employment issues at broadcast stations via a series of phone calls in early January.

It was nearly a year ago that the FCC announced a Notice of Proposed Rulemaking (another piece of its ongoing media modernization efforts) that would eliminate the need for TV and radio stations to submit a mid-term report detailing their EEO practices.

The subsequent Report and Order, known as the EEO Mid-Term Report (part of Media Bureau Docket No. 18-23), would eliminate a station’s need to submit a so-called mid-term Form 397 because details about a broadcaster’s EEO compliance are now part of the FCC’s Online Public Inspection File.

But during phone calls with Commissioners Carr and Rosenworcel in early January, the MMTC’s David Honig said he reiterated to the commissioners the MMTC’s concerns about the FCC’s EEO efforts — specifically regarding the long-standing means by which racial and gender discrimination in broadcasting occur: word-of-mouth recruiting.

While the commission does discourage word-of-mouth recruiting, Honig said, the FCC has not taken enough steps to address cronyism, which “is the primary reason why key sectors of the broadcast industry remain largely closed to people of color and, often, to all but a handful of women,” he said in ex parte letters to the commission.

Honig urges the commission to use certain racial and gender data to identify stations which recruit primarily by word of mouth and require them to submit more information as part of a station’s Annual Employment Report. If not, sanctions may be in order, Honig said.

“This two-step method — first identifying those stations that recruit primarily by [word of mouth] and then having those stations submit a Form 395 in camera (in private) — will allow the commission to find and bring to justice those broadcasters that inherently discriminate, thereby fulfilling the purpose of the EEO rule,” Honig wrote.

But in its Report and Order, the FCC noted that MMTC and its filers were seeking “far-reaching substantive changes to the commission’s EEO rules, whereas this NPRM is only concerned with improvements to EEO compliance and enforcement.” As a result, the commission did not address the groups’ proposed broader changes in the item.

The commission did note, however, that it has demonstrated its commitment to EEO enforcement by the relocation of EEO enforcement staff and responsibilities to the Enforcement Bureau, as the EEO supporters suggested.

But Honig expressed concern that the commission has repeatedly avoided opportunities to address key issues impacting EEO hiring.

“[These] proposals, in only slightly different form, have been pending since 2004 [yet] the agency has repeatedly avoided opportunities to address them,” he said. “The NPRM presented members of the public with their first opportunity, in 14 years, to respond to what appeared to be a genuine indication from the commission that it intended to seriously consider the proposals at last.”

The right steps from here, Honig said, would be to put the proposals out for further comment on any specific issues that the commission feels would benefit from additional evidence or argument.

“Fifteen years have elapsed since these proposals were first lodged, and during that time minorities and women in broadcasting have had no protection against ‘cronyism,’” Honig said. Race and gender discrimination in employment is just as top-line an issue as intercarrier comp, undersea cables or retransmission consent.”

He suggested that the commission undertake to complete the proceeding no later than July 2019.

WASHINGTON—FCC Chairman Ajit Pai relied on an out-of-this-world quote to describe how his agency is addressing the real-world lack of diversity in the communications industry during remarks presented today at the MMTC 9th Annual Broadband and Social Justice Summit in Washington, D.C.

“To borrow from Yoda in ‘The Empire Strikes Back,’ ‘Try not. Do, or do not. There is no try.’ Much wisdom in that statement there is,” said Pai. 

Pai was referring to action the FCC took in November 2017 to advance a broadcast incubator program, something he described as “a personal priority” since 2014, he told his audience at the Multicultural Media, Telecom and Internet Council gathering. Last fall, the agency adopted a Notice of Proposed Rulemaking seeking advice on how to put the program together and implement it.

“Our goal is to develop an incubator program that will help address barriers to station ownership, such as lack of access to capital and the need for technical experience—and for these solutions to increase broadcast ownership diversity,” he said.

 The NPRM asks for information on topics, such as the criteria to be eligible to benefit from the program, appropriate activities of the incubator, what benefits should be available and how the program should be reviewed, monitored and enforced, said Pai.

The FCC chairman also discussed “a repugnant practice” of certain advertisers that “exclude minority focused media outlets from their ad campaigns through a so-called ‘No Urban/No Hispanic’ dictate,” he said.

While former FCC Commissioners Jonathan Adelstein and Robert McDowell and the American Association of Advertising Agencies (4As) “led the charge” against the practice, which resulted in the 4As adopting a “non-discrimination policy frame” and a review process for media complaints in 2011, the practice appears to have “arisen again,” said Pai. The 4As again have worked to end discriminatory practices and will today announce its Fair Play policy, which asks charter media agencies “to recommit to fair and equitable treatment of minority media owners,” he said.

Pai began his address by acknowledging the role MMTC has played as “one of the most respected and thoughtful voices in our community.” He described MMTC as “a key advocate” for many FCC policies enacted over the past year. For example, MMTC supported the agency discontinuing its local broadcast main studio rule. While some opponents “called this an attack on localism,” MMTC pointed out that the rule’s staffing requirements acted as an impediment to minority broadcasters from entering markets “by putting significant financial burdens” on them, he said.

He also recognized MMTC as a long-time proponent of Class C4 FM stations, a new class of stations that could increase power of hundreds of Class A stations. On Feb. 5, the Media Bureau released an NPRM on Class C4 FM stations. Pai noted that MMTC has backed authorization because it could help small and minority-owned stations to obtain the capital they need and strengthen their market position.

Pai also told MMTC that he has reconstituted the FCC’s Diversity Committee, which has the primary mission of developing recommendations on ways to empower disadvantaged communities and accelerate the entry of small businesses, including minority- and women-owned entities, into media and digital industries.

However, the place where the missions of the agency and MMTC most closely align is in closing the digital divide, he said. “Every American who wants high-speed Internet access should be able to get it,” said Pai.

The FCC’s Broadband Deployment Advisory Committee (BDAC) weeks ago submitted findings and recommendations to the commission aimed at bridging the divide. Pai called the BDAC’s report “a valuable contribution to our efforts to promote expanded availability of wired and wireless broadband.”

Pai closed his comments by recalling the words of abolitionist and social reformer Frederick Douglass, which he said “still resonate today.” Douglass’s words “[s]ome know the value of education by having it. I know its value by not having it” are echoed in an “opportunity gap in the digital age,” said Pai.

Pai seeks to change the circumstance where those “on the wrong side of the digital divide” do not have the “full ability to educate their kids,” find high-quality health care, become entrepreneurs, engage civically in their local communities “and otherwise better their lives,” he said.

WASHINGTON—As the Federal Communications Commission prepares to decide the fate of the main studio requirement, the MMTC has added its voice to a growing number of organizations calling for the eradication of the 78-year-old rule.

According to the Multicultural Media, Telecom and Internet Council (MMTC), the main studio rule offers a textbook example of a rule aimed at advancing one laudable objective — advancing localism — that actually undermines the agency’s pursuit of another equally laudable objective — that of promoting diversity.

In a letter to the FCC (which followed a same-day phone call with staff members representing Commissioners Mignon Clyburn and Jessica Rosenworcel), the MMTC reiterated its stance that the main studio rule is frankly unnecessary and noted that the rule has particularly harmful effects on minority-owned and ethnically programmed stations.

Pointing to data that it released back in 2008, the MMTC study found that minority-owned or ethnically programmed clusters had one third fewer stations per required studio.

“The [main studio rule imposes] a far greater disadvantage on broadcasters who entered the industry later and were thus unable to assemble clusters of stations which each shared the same community of license,” the MMTC said in a filing it submitted along with the data from 2008. This is in effect a “tax on Blackness and Brownness,” said David Honig, MMTC president emeritus and senior advisor, in the Oct. 17 letter.

Requiring broadcasters to keep a brick-and-mortar facility in a community of license hinders investment in minority-owned and/or ethnic programming stations, the group said.

It’s time for a change, Honig said. ’“Technology has rendered the [main studio] rule an anachronism and it is overdue for repeal,” he said.

While the FCC should continue to ensure that all broadcasters provide program service that meets local needs, “the methods by which they do so should be left to the discretion and creativity of broadcasters,” Honig said.

On Tuesday Oct. 24, the FCC plans to address just that. It will formally vote on whether to eliminate the main studio rule, which requires a TV or radio station to maintain a primary studio in its community of license. FCC Chairman Ajit Pai has said in the past that the rule was outdated and this move by the Republican-led commission is “another step toward the long-overdue modernization of rules governing the media industry,” he said in a blog post on Oct. 3.

“This requirement dates to 1939 and was enacted in part to ensure that stations would stay accessible and responsive to the public,” Pai said. “But today, this rule is unnecessary; most consumers get in touch with stations over the phone or through electronic means,” pointing to the fact that public inspection files are mostly online and technology enables stations to produce local news without a nearby studio. 

Eliminating the rule will also make it easier for new broadcast stations to operate in small towns and rural communities, Pai said, a notion that MMTC agrees with.

WASHINGTON—On Thursday the FCC released a Notice of Proposed Rulemaking that would eliminate the Main Studio Rule. In response, the Multicultural Media, Telecom and Internet Council released a statement supporting the commission’s decision.

The MMTC wrote that the FCC’s action will “favorably impact minority broadcasters by removing an archaic rule that historically has worked to their disadvantage.”

The Main Studio Rule dates back to 1946 and required that all full-power broadcasters maintain a studio either within their city of license, or at another site either within 25 miles of the city of license or within the city-grade contour of any station licensed to the same city of license as the station.

MMTC filed comments a year ago to the FCC urging it to repeal the Main Studio Rule, citing that the rule “locks in the present effects of past discrimination against minority licensees.” The organization noted that minority and ethnic broadcasters were at a disadvantage to broadcasters who were able to enter the industry earlier, as well as larger broadcasters who had a single studio for all of their stations. The MMTC also said the main studio staffing requirements were detrimental and no longer served a purpose once unattended station operation was permitted via another FCC rule.

“The Commission’s NPRM—adopted today by a vote of 3-0—is a welcome step in the direction of removing this disproportionately unfavorable, anti-minority market entry barrier,” MMTC wrote in its statement.

The full statement is available here.

WASHINGTON—The Multicultural Media, Telecom and Internet Councilhas added a new director of digital policy and engagement. Ananda Leeke will lead and develop MMTC’s digital strategy and will help to shape and communicate policy positions in the media, telecom and tech sectors, according to a press release.

“Being tapped to lead MMTC’s digital policy and engagement efforts is an extraordinary career opportunity that allows me to marry my creative writing, legal and social media expertise with my commitment to social justice,” said Leeke. “I am thrilled to work on issues that directly impact communities of color and women. Having the chance to work with and learn from a dynamic team of colleagues who care about these issues is priceless.”

Most recently, Leeke served as the digital communications director of Law Students in Court. She also established the Digital Sisterhood Network and wrote “Digital Sisterhood,” a social media and technology memoir.

Leeke’s other experience includes working as knowledge manager for investment advisor Hamilton Securities Group, with a focus on emerging markets, and as an online columnist for NetNoir women’s channel. She has also served as the senior program officer of the U.S. Committee for Refugees and Immigrants.

She regularly shares her social media expertise on “The Daily Drum,” a radio program that airs on WHUR(FM) and has spoken at various conferences.

Leeke earned her law degree from Howard University School of Law and Master of Laws in Securities and Financial Regulation from the Georgetown University Law Center.

This story first appeared on TVT's sister publication Radio World.