New Fall Season for Regulation, Too

Everything from digital conversion to Janet Jackson’s breast on the docket

September is shaping up to be rush hour on the Beltway for media issues as legislators return from their August break. The Janet Jackson reveal finally gets its day in court, the FCC prepares some big-ticket items for its September meeting and the Federal Election Commission tries to give candidates and broadcasters a better handle on the do’s and don’ts of issue advertising. If that’s not enough, the countdown continues in earnest toward the launch of the digital-to-analog converter box subsidy program in January.

The transition to digital will get a lot of attention. Various sources say both the House and Senate commerce committees will hold hearings in September on the progress of the transition. House Commerce Committee Chairman John Dingell (D-Mich.) and Telecommunications & Internet Subcommittee Chairman Ed Markey (D-Mass.) have promised close oversight of the process.

The National Telecommunications & Information Administration (NTIA), which is overseeing the coupon program, has scheduled a Sept. 25 gabfest and expo on DTV education issues, including showcasing the converter box.

NTIA spokesman Todd Sedmark says that there will be an analog set hooked up to an antenna and then to a converter box, and that the difference in picture quality, not to mention the additional digital channels, “sells the issue and the product.”

There could be fireworks the day after the NTIA event when the FCC hosts its own DTV education forum and expo, which will give a variety of consumer groups a chance to weigh in with comments and criticisms about the pace of the industry education effort. That campaign is scheduled to launch in the fall, only weeks before the coupon program launches.

But DTV transition fans may not have to wait until the end of the month for a flare up. At its Sept. 11 meeting, the FCC is likely to vote on a proposal by FCC Chairman Kevin Martin to require cable systems that have not gone all-digital by February 2009 to deliver analog and digital versions of TV stations that elect government-mandated carriage of their primary channel.

The meeting is also expected to include a vote to renew the program access rules for another five years. Those rules prevent exclusive programming contracts between vertically integrated media companies and distributors—cable or satellite—in which they have a financial interest.

The commission is also expected to seek comment on whether programmers should be allowed to make carriage deals for big-ticket networks contingent on carrying TV stations or lesser cable networks owned by the same company. Martin has concerns about program bundling, as witness his push for a la carte cable offerings.


But not all eyes will be on the FCC Sept. 11, even if both those marquee items make the agenda. That is because oral arguments in the Janet Jackson 2004 Super Bowl incident are scheduled for the same day in the U.S. Third Circuit Court of Appeals. Depending on the outcome, it could lead to a challenge of the FCC’s entire indecency enforcement regime before the Supreme Court. While the appeals court isn’t allowing TV cameras, C-SPAN will air an audio transcript.

Elsewhere on the indecency front, the FCC has given CBS until Sept. 14 to explain the steps it took to investigate its airing of Without a Trace, which the FCC found indecent. The Parents Television Council has challenged the license renewal of the station and the FCC wants to know whether CBS took steps it agreed to as a part of a consent decree.

Finally, although the hearing won’t be until Oct. 17, the Federal Election Commission has proposed two alternatives to rewriting its rules on issue advertising, with the comment period open throughout September.

The rewrite initiative is a result of a Supreme Court ruling earlier in the summer that if a TV or radio ad can be interpreted as opposing an issue rather than a candidate, it can mention that candidate without triggering federal prohibitions on using corporate or union treasury funds for that. Robert Bauer, a partner in the law firm Perkins Coie, argues that the decision still clearly prevents ads that “take a position on a candidate’s character, qualifications, or fitness for office.” But it also could be interpreted to loosen those rules substantially.

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