The FCC has released its agenda for its December 18 meeting - and it promises to be one of the most important,and potentially most contentious, in recent memory. On the agenda is the Commission's long awaited decision on the Chairman's broadcast multiple ownership plan relaxing broadcast-newspaper cross-ownership rules (see our summary here). Also, the FCC will consider a Further Notice of Proposed Rulemaking on Localism issues (pending issues summarized here) following the conclusion of its nationwide hearings on the topic, as well as an Order and Further Notice of Proposed Rulemaking on initiatives to encourage broadcast ownership by minorities and other new entrants (summary here). For cable companies, the Commission has scheduled a proposed order on national ownership limits. And, in addition to all these issues on ownership matters, the FCC will also consider revising its sponsorship identification rules to determine if new rules need to be adopted to cover "embedded advertising", i.e. product placement in broadcast programs. All told, these rules could result in fundamental changes in the media landscape.

The broadcast ownership items, dealing with broadcast-newspaper cross-ownership, localism and diversity initiatives, all grow out of the Commission's attempts to change the broadcast ownership rules in 2003. That attempt was largely rejected by the Third Circuit Court of Appeals, which remanded most of the rules back to the FCC for further consideration, including considerations about their impact on minority ownership. The localism proceeding was also an outgrowth of that proceeding, started as an attempt by the Commission to deal with consolidation critics who felt that the public had been shut out of the process of determining the rules in 2003, and claiming that big media was neglecting the needs and interests of local audiences.

The cable ownership item has also been hanging around for years, after previous attempts at rule changes were rejected by the courts. Broadcast local ownership caps, including the rules that prohibit the common ownership of two television stations in the same market ("TV duopoly") unless there are eight independent television owners (and forbidding any combination of any of stations in the top 4 in audience ratings in a market), have also been thrown out by the Courts as being insufficiently justified, yet these rules were not mentioned in the Chairman's proposal as to the resolution of this proceeding. See our memo here for a discussion of other broadcast ownership issues not discussed in the Chairman's proposals. We will see if these issues are discussed in the final order in this adopted in this proceeding.

Finally, the Commission will consider an issue that only recently has jumped into play - the initiation of a proceeding to determine if the FCC's sponsorship identification rules are sufficient to deal with product placement in broadcast programming. With the recent proliferation of TiVos and other digital video recorders ("DVRs"), some broadcast programmers have taken to including products in the body of programs so that they will still be seen even if the viewer fast-forwards through the true commercial message. While we will not know the specifics of the FCC proposal until the meeting next week, we can expect that the Commission will want to consider tougher disclosure requirements to let the public know who is trying to persuade them to buy a product.

With all of these crucially important and very controversial items on the agenda, the meeting will be one worth watching. And, with the Commission's recent track record of starting controversial meetings hours after their scheduled time (the last meeting starting after 9 PM), interested parties may want to bring a sleeping bag and some provisions in case the Commission again gets a late start on its work.

David Oxenford

David Oxenford is a partner in the Washington, DC office of the law firm of Davis Wright Tremaine LLP. This post originally appeared on DWT's Broadcast Law Blog, and is posted on DMW with the author’s permission. This information is provided for educational purposes only and should not be relied on as legal advice, and should not substitute for competent legal advice from your own attorney."

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