By John M. Pelkey, Garvey Schubert Barer
“Local Marketing Agreements: Appearances are Important” (RBR/TVBR, August 16, 2013) focused on making sure that the parties to a local marketing agreement do not inadvertently give the impression that the licensee has relinquished control over the station being programmed. Appearances are important. Unless the licensee and the programmer establish designated points of contact for questions concerning the LMA, ensure that those designated points of contact are sensitive to the fact that the station is still the licensee’s station, and make sure that the station’s main studio looks, smells and feels like a main studio, questions are bound to arise as to whether the programmer has usurped control over the station.
Appearances, while important, are not enough, however. The licensee must maintain actual control over the station and, if brought to its attention, the FCC will look long and hard at the implementation of any LMA in which the licensee does not maintain actual control over the station in three key areas: programming, personnel and finances. Today’s article will focus on the need for the licensee to maintain control over programming.
Licensee control over programming is not simply a matter of including a provision in the LMA that states that the licensee has ultimate control over any programming broadcast on the station. That provision must be in the agreement, as must provisions giving the licensee the right to reject and preempt the programmer’s programming, but the presence of such provisions in the LMA will not by any means act as a substitute for real, substantive control. Presented with a complaint that the licensee has abandoned control over the station’s programming, the FCC will look behind the language in the LMA to see if the emperor has any clothes and, if all it finds is the broadcast equivalent of a naked emperor, the Commission may well find that, not only has the licensee abandoned control over station programming, but that it is also liable for a fine for indecent programming.
So, what should the licensee be doing to maintain its control over programming and to be able to convince the FCC that its control is real?
First, the licensee should routinely monitor programming on the station. The studio is required to be staffed by two licensee employees. One of the duties of at least one of those employees should be to listen to the station. If the programmer airs programming that does not comply with the licensee’s programming standards (a copy of which is frequently appended to the local marketing agreement), the licensee’s employee should bring that fact to the attention of the licensee.
There is a fine line between a licensee employee that periodically monitors the station to make sure that the programmer is not violating law or licensee policy and a licensee employee that has become a meddlesome snitch. The former can serve a real function in making sure that the LMA works the way it should; the latter is likely to be a nuisance who could upset the working relationship between the licensee and the programmer. The licensee needs to exercise some care in selecting the right type of person to act as the licensee’s “eyes and ears” at the station.
If the employee reports that the programmer is engaging in programming that is contrary to law or the licensee’s standards, the licensee should take action and alert the programmer to the fact that the programmer is in breach of the LMA.
In one case, the president of the licensee actually heard, firsthand, programming being aired by the programmer that clearly violated the licensee’s programming standards and went to the transmitter site and pulled the plug on the transmitter. While that type of licensee vigilance did not endear the licensee to the programmer, it nevertheless presented a great example of licensee control that could be used to demonstrate to the FCC that the licensee viewed the standard language in the LMA regarding licensee control as being something more than mere words.
This example highlights one other aspect of LMA implementation that is crucial to licensee control over programming: The licensee or its representative must have the continued ability to take the station silent if necessary to assert its control over programming. The licensee should not allow the programmer or its engineers to change the passwords on the remote control system so that the licensee no longer has the ability to control the transmitter.
Second, the licensee’s manager must either prepare the quarterly issues/programs list or, at a minimum, review that list to make sure that it is adequate. Either option assumes, of course, that the station is airing some public affairs programming. The manager must work with the programmer’s manager at the station to ensure that public affairs programming is aired. It can be programmer-produced public affairs programming, licensee-produced public affairs programming or a combination of the two. Regardless of the source, however, it is in the licensee’s interest to demonstrate that public affairs programming of some form is being aired by the station.
Three, make sure that political advertisements are properly handled. Not only are political advertisements a form of programming and thus an aspect of station operations over which the licensee must continue to maintain control, but they also hold a special place in the Commission’s rules by virtue of the special obligations that the political advertising rules impose upon a licensee. A licensee that fails to provide reasonable access to a federal candidate or that permits the use of its airwaves to broadcast political advertisements that do not comply with the lowest unit charge requirements faces the possibility of Commission sanction or even a lawsuit filed by an unhappy candidate. This is true even if it is the programmer, and not the licensee, who failed to provide reasonable access or charge the lowest unit charge.
To help ensure that the licensee does not find itself in a situation where it has become liable because the programmer failed to properly observe the political advertising strictures, the licensee should work with the programmer to make sure that a plan is in place for dealing with the political advertising requirements. As political season approaches, the licensee should make sure that the programmer has prepared a political advertising disclosure statement that sets forth the terms and conditions under which political time will be offered. The licensee should then periodically confer with the programmer’s personnel to make sure that any federal candidate who has requested time is provided with reasonable access and that all candidates, regardless of whether they are federal, state or local candidates, are being assessed the lowest unit charge. If the station directly receives a request for time from a political candidate, the licensee should refer that request to the programmer and follow up with the programmer to make sure that (1) the request for time is not ignored and (2) any time that is made available to the candidate adheres to the lowest unit charge rules and policies.
During his more than 30 years as a communications attorney, John Pelkey has done nearly everything that there is to do in the communications field. He co-authored the Supreme Court brief in the proceeding that sanctioned competition in long-distance telephone service. He argued both before the FCC and the court the case that led to the issuance of the nation’s first cellular authorization awarded through comparative hearing. He was co-counsel in the successful federal court proceeding that struck down the Fairness Doctrine. He represents both commercial and noncommercial broadcasters and has handled numerous broadcast sales transactions. He can be contacted at [email protected].
