2009 Archives

FCC Suspends the Use of the New FCC Form 323 and Postpones the January 11, 2010 Deadline for Filing Biennial Ownership Reports by Commercial Broadcast Licensees

Posted December 23, 2009

By Richard R. Zaragoza and Christine A. Reilly

This afternoon, the Commission released an Order announcing that, due to technical difficulties, it was temporarily suspending the use of the new FCC Form 323 and, as a consequence, was postponing the January 11, 2010 deadline for the filing of Biennial Ownership Reports for commercial broadcast licensees. The Commission stated that it would announce the reactivation of the new form and the new filing deadline in a subsequent Public Notice. The Order states that the Commission "will temporarily suspend the ability to start a new biennial Form 323 during this interim suspension period but will allow filers to complete and file forms that they have already started should they wish to do so." The Order also states that the new filing deadline will be at least 90 days from the date that the new form is made available for new biennial filings.

Continue reading "FCC Suspends the Use of the New FCC Form 323 and Postpones the January 11, 2010 Deadline for Filing Biennial Ownership Reports by Commercial Broadcast Licensees"

2009 Fourth Quarter Children's Television Programming Documentation Advisory

Posted December 22, 2009

By Richard R. Zaragoza and Christine A. Reilly

December 2009
The next Children's Television Programming Report must be filed with the FCC and placed in stations' local Public Inspection Files by January 10, 2010, reflecting programming aired during the months of October, November and December 2009.

Statutory and Regulatory Requirements

As a result of the Children's Television Act of 1990 and the FCC Rules adopted under the Act, full power and Class A television stations are required, among other things, to: (1) limit the amount of commercial matter aired during programs originally produced and broadcast for an audience of children 12 years of age and younger; and (2) air programming responsive to the educational and informational needs of children 16 years of age and younger.

Continue reading "2009 Fourth Quarter Children's Television Programming Documentation Advisory"

2009 Fourth Quarter Issues/Programs List Advisory for Broadcast Stations

Posted December 15, 2009

By Richard R. Zaragoza and Christine A. Reilly

December 2009
The next Quarterly Issues/Programs List ("Quarterly List") must be placed in stations' local public inspection files by January 10, 2010, reflecting information for the months of October, November and December 2009.

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.

Continue reading "2009 Fourth Quarter Issues/Programs List Advisory for Broadcast Stations"

2009 Fourth Quarter FCC Form 388 DTV Quarterly Activity Station Report for Certain Television Stations Must Be Filed by January 10, 2010

Posted December 12, 2009

By Richard R. Zaragoza and Christine A. Reilly

December 2009
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 January 10, 2010, providing the Commission with the details of the DTV Consumer initiatives that they performed between October 1 and December 31, 2009.

By January 10, 2010, those television stations, which completed construction and commenced operation with their post-transition final DTV facilities after September 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 October, November and December 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 January 10, 2010 and posted by that date to the station's website, if it has one.

Continue reading "2009 Fourth Quarter FCC Form 388 DTV Quarterly Activity Station Report for Certain Television Stations Must Be Filed by January 10, 2010"

FCC Announces New Address for Filing of Paper Documents

Posted December 11, 2009

By Scott R. Flick and Christine A. Reilly

December 2009
Effective December 28, 2009, hand or messenger-delivered paper filings for the Commission's Secretary must be submitted at its main building: 445 12th Street, SW, Room TW-A325, Washington, DC 20554.

Previously, the FCC required that such filings be made at an address on Massachusetts Avenue, where they were subjected to radiation to prevent mail-borne contaminants from entering the Commission's main building. The Massachusetts Avenue facility will be closed.

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FCC Gives Television Broadcast Industry Little Time to Defend Its Spectrum Allocation; Comment Deadline Is Set at December 21, 2009

Posted December 10, 2009

By Richard R. Zaragoza , John K. Hane and Christine A. Reilly

December 2009
Earlier this week, the FCC released a Public Notice seeking "specific data on the use of spectrum currently licensed to broadcast television stations." According to the Public Notice, in other proceedings related to the FCC's development of a National Broadband Plan some commenters "have expressed concern that the United States will not have spectrum sufficient to meet the demand for wireless broadband services in the near future and have urged the Commission to make available more spectrum for commercial uses." In response, the Public Notice states that "the FCC is reviewing various spectrum bands to understand if all or a portion of the spectrum within these bands could be repurposed for wireless broadband services."

The Public Notice assumes that existing allocations are insufficient to meet the growing mobile broadband market, and that spectrum must be reallocated to meet this demand. The questions and issues posed in the Public Notice (re-printed below) are probing and complex, questioning whether broadcast television should be "diminished," whether multiple broadcasters can "share" a 6 MHz channel, whether the FCC can reduce the amount of spectrum assigned to advanced television licensees and what actions, including adoption of receiver standards, the FCC might take to enable broadcasters to make more efficient use of their spectrum.

Continue reading "FCC Gives Television Broadcast Industry Little Time to Defend Its Spectrum Allocation; Comment Deadline Is Set at December 21, 2009"

FCC Announces Online Availability of New FCC Form 323 Ownership Report and Provides Interim Response to Concerns Regarding Use of Social Security Number

Posted December 9, 2009

By Scott R. Flick and Christine A. Reilly

December 2009
Today, the FCC released a Public Notice announcing that as of December 9, 2009, the new FCC Form 323 will become available online in the FCC's CDBS filing system.

Additionally, the FCC announced the availability of a "Special Use FRN" option in reporting attributable interest holders on the new FCC Form 323. The FCC stated that if a filer "is unable to obtain an FRN for any specific individual required to be reported on Form 323, the electronic form contains a mechanism for generating an interim 'Special Use FRN' solely for the purposes of completing the form." The Special Use FRN is only to be used in filing biennial ownership reports on FCC Form 323 and may not be used for any other purpose at the FCC. According to the Public Notice, this option should be used only when necessary and filers should use their "best efforts" to obtain FRNs from all attributable interest holders. The FCC indicates that those who take advantage of the Special Use FRN are still expected to later obtain a "fully compliant" FRN which must be used in all future biennial ownership report filings.

Continue reading "FCC Announces Online Availability of New FCC Form 323 Ownership Report and Provides Interim Response to Concerns Regarding Use of Social Security Number"

Assessing the Impact on Radio and Television Stations of the Federal Trade Commission's Recently Revised Guidance on Endorsements and Testimonials

Posted November 30, 2009

By Lauren Lynch Flick

November 2009
On December 1, 2009, the FTC's newly-revised Guides on Endorsements and Testimonials will become effective. Broadcasters, including their on-air talent, need to know when a claim is an endorsement/testimonial, what on-air disclosures may be required, and what their obligations are to ensure that claims are truthful and not misleading. These endorsement/testimonial-related issues can arise in a variety of contexts, including when station personnel voice commercials, prepare copy for advertisers, engage in banter regarding a product or service, serve as a spokesperson for an advertiser, or provide content to their station websites.

Continue reading "Assessing the Impact on Radio and Television Stations of the Federal Trade Commission's Recently Revised Guidance on Endorsements and Testimonials"

Commercial Radio and Television Stations Given Until January 11, 2010 to File Their Biennial Ownership Reports on FCC Form 323

Posted November 22, 2009

By Richard R. Zaragoza and Christine A. Reilly

November 2009
In a Public Notice released by the FCC today, the Media Bureau has announced that it has extended to January 11, 2010, the prior December 15, 2009 deadline for commercial radio and television broadcast station licensees to file their Biennial Ownership Reports on revised FCC Form 323.

This announcement comes as a great relief to licensees of commercial broadcast stations given that the electronic version of revised FCC Form 323 is not yet available on the FCC's CDBS system for uploading of data.

Continue reading "Commercial Radio and Television Stations Given Until January 11, 2010 to File Their Biennial Ownership Reports on FCC Form 323"

Annual DTV Ancillary/Supplementary Services Report for Commercial Digital Television Stations

Posted November 13, 2009

By Scott R. Flick and Christine A. Reilly

November 2009
All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 to report whether their stations provided ancillary or supplemental services at any time during the twelve-month period ending on the preceding September 30. The FCC Form 317 is due by December 1, 2009. Electronic filing of FCC Form 317 is mandatory. Paper versions will not be accepted for filing unless accompanied by an appropriate request for waiver.

Ancillary or supplementary services are all services provided on the portion of a DTV station's digital spectrum capacity or bitstream that is not necessary to provide the required single free, over-the-air signal to viewers. Thus, any video broadcast signal provided at no direct charge to viewers is exempt. According to the FCC, examples of services that are considered ancillary or supplementary include, but are not limited to, "computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, subscription video, and the like."

Continue reading "Annual DTV Ancillary/Supplementary Services Report for Commercial Digital Television Stations"

Ninth Circuit Ruling Leads to Spike in Class Actions Over Text Messages from Retailers

Posted November 11, 2009

By Greg L. Johnson, Andrew D. Bluth and Darcy L. Muilenburg

11/11/2009
In Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009), the Ninth Circuit held that unsolicited text messages to mobile phones sent by a retailer may constitute a "call" in violation of the Telephone Consumer Protection Act (the "TCPA"). This decision has sparked an increase in consumer class actions filed against retailers who send advertisements to consumers by text message.

The TCPA makes it unlawful "to make any call" using an automatic telephone dialing system ("ATDS") to, among other things, a mobile telephone or pager. 47 U.S.C. Section 227(b)(1)(A). Congress enacted the TCPA in 1991, before text messaging was available, and intended it to prohibit automated voice calls from telemarketers to mobile phones. The U.S. Court of Appeals for the Ninth Circuit, in Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009), extended this consumer protection to text calls made using ATDSs.

Continue reading "Ninth Circuit Ruling Leads to Spike in Class Actions Over Text Messages from Retailers"

Broadcast Station EEO Advisory

Posted November 10, 2009

By Scott R. Flick and Christine A. Reilly

November 2009
This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota and Vermont, and highlights the upcoming deadlines for compliance with the FCC's EEO Rule.

Introduction
December 1, 2009 is the deadline for broadcast stations licensed to communities in the States/Territories referenced above to place their Annual EEO Public File Report in their public inspection files and post the report on their website, if they have one.

Under the FCC's EEO rule, all radio and television station employment units ("SEUs"), regardless of staff size, must afford equal employment opportunity to all qualified persons and practice nondiscrimination in employment.

Continue reading "Broadcast Station EEO Advisory"

FCC Shifts Net Neutrality Debate into High Gear

Posted October 28, 2009

By John K. Hane and Glenn S. Richards

10/28/2009
Last week the FCC launched a Notice of Proposed Rulemaking (NPRM) proposing to adopt six "open Internet" rules that would bind all broadband access providers, including those providing mobile and satellite broadband services. If adopted, the rules could have pervasive and lasting effects in many industry sectors, including broadband, voice and video service providers, infrastructure, device, chipset and other component vendors, content publishers and distributors, software publishers, and application service providers.

The NPRM abandons the "net neutrality" moniker in favor of a new phrase, "the free and open Internet." Nonetheless, views on every aspect of the debate remain highly polarized, driven by vast economic stakes in the outcome, disagreements about the factors that have made the Internet a success, philosophical differences about the nature of the Internet and disagreement over the role of the FCC in 21st century communications. The NPRM puts the FCC at center stage in the debate for now, but the federal courts and Congress may take prominent or even decisive roles. Some parties, notably including two of the five sitting FCC commissioners, question the FCC's legal authority to adopt and enforce the rules it has proposed. If the federal courts agree, the FCC will have to re-tool its approach or look to Congress to expand its jurisdiction.

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FCC Announces Filing Freeze for FM Minor Change Applications and Allotment Petitions and Creates Filing Window for Noncommercial Educational FM New Station Construction Permits

Posted October 16, 2009

By Scott R. Flick and Paul A. Cicelski

10/16/2009
The FCC issued two Public Notices today which, together: (1) impose a freeze on the filing of all FM commercial and noncommercial educational ("NCE") minor change applications from 11:59 pm, November 25, 2009, through December 18, 2009; (2) impose a freeze, beginning today, October 16, 2009, through December 18, 2009, on any applications proposing to modify the reference coordinates of 67 vacant non-reserved FM Band allotments listed on Attachment A of the Public Notice (attached hereto), as well as on any petitions or counterproposals that propose a change in the channel, class, community, or reference coordinates of those allotments; and (3) create a filing window for applications for those 67 vacant FM allotments reserved for NCE use.

With respect to the NCE filing window, the FCC announced that it will accept applications for the vacant 67 NCE FM allotments on Channels 221 through 300 from Friday, December 11, 2009, until Friday, December 18, 2009.

Continue reading "FCC Announces Filing Freeze for FM Minor Change Applications and Allotment Petitions and Creates Filing Window for Noncommercial Educational FM New Station Construction Permits"

FTC Updates Guidance on Endorsements and Testimonials in Advertising

Posted October 15, 2009

By Michael P. Heuga

10/15/2009
On October 5, 2009, the Federal Trade Commission announced that it finalized the update to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (the "Guides"), which have been in effect in their current form since 1980.1 The evolving practice of companies marketing their goods and services through bloggers and other "new media" received special attention.

The FTC's changes now make explicit that the principles in the Guides apply to a company's marketing of its products or services through third parties using "new media," such as blogs and social networks, and that both advertisers and their "sponsored" endorsers have responsibility for the content of such endorsements as well as for disclosure of commercial links that consumers would not expect to exist between the advertiser and the endorser (such as payments or free products in exchange for a blog post containing a positive product review). The update also includes a couple of changes to the old rules, including the elimination of the safe harbor originally authorized under the 1980 Guides for ads with unrepresentative consumer testimonials--in most such ads now, including a disclaimer such as "results not typical" or "results may vary" will no longer be sufficient.

Continue reading "FTC Updates Guidance on Endorsements and Testimonials in Advertising"

FCC Postpones November 1 Ownership Report Filing Deadline

Posted October 2, 2009

By Scott R. Flick and Paul A. Cicelski

10/2/2009
As we wrote in an earlier Advisory, the FCC adopted an order in April 2009 revising FCC Form 323, its Ownership Report form for commercial stations. It also expanded the types of entities and licensees required to file Form 323, announcing that owners of all commercial AM, FM, TV, LPTV and Class A TV stations would need to file the new form by November 1, 2009. The FCC later suspended its existing biennial Ownership Report filing requirement for stations that were to have filed in June, August, or October of 2009, since those stations would have to file the new Form 323 by November 1, 2009 in any event.

At this time, the Office of Management and Budget (OMB) has not yet approved the new Form 323 for use by the FCC. In response to numerous calls from station counsel and industry representatives, the FCC today announced that it is suspending the requirement that stations file the revised Form 323 by November 1, 2009. Instead, stations will be required to file the new Form 323 by a date to be later announced by the FCC that is at least thirty days after the release of a public notice of OMB approval of the new form. In the meantime, the FCC announced that it will continue to suspend the filing of biennial ownership reports on existing Form 323 until the new form is available.

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2009 Third Quarter FCC Form 388 DTV Activity Station Report Due October 10th

Posted September 28, 2009

By Richard R. Zaragoza , Paul A. Cicelski and Christine A. Reilly

September 2009
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, "FCC Adopts New DTV Consumer Education and Reporting Requirements," available on the firm's website, www.pillsburylaw.com.

Continue reading "2009 Third Quarter FCC Form 388 DTV Activity Station Report Due October 10th"

2009 Third Quarter Issues/Programs List Advisory for Broadcast Stations

Posted September 25, 2009

By Richard R. Zaragoza and Christine A. Reilly

September 2009
The next Quarterly Issues/Programs List ("Quarterly List") must be placed in stations' local public inspection files by October 10, 2009, reflecting information for the months of July, August and September 2009.

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.

Continue reading "2009 Third Quarter Issues/Programs List Advisory for Broadcast Stations"

Noncommercial Stations' Biennial Ownership Reports: Due October 1, 2009

Posted September 25, 2009

By Richard R. Zaragoza and Christine A. Reilly

September 2009

As we recently reported, the FCC has altered the schedule for the filing of Biennial Ownership Reports by commercial broadcast stations. Those Reports must now be filed by November 1, 2009 and by the same date every two years thereafter. However, the schedule for the filing of Biennial Ownership Reports for noncommercial broadcast stations remains unchanged.

Noncommercial radio stations licensed to communities in Alaska, American Samoa, Florida, Guam, Hawaii, Marianas Islands, Oregon, Puerto Rico, the Virgin Islands and Washington, and noncommercial television stations licensed to communities in Iowa and Missouri, must file their Biennial Ownership Reports by October 1, 2009.

As discussed in a Client Advisory sent earlier this month, the FCC released an Order on May 29, 2009, suspending the biennial ownership reporting requirement for licensees of commercial radio and television broadcast stations that would otherwise have been required to file their reports by June 1, August 1 or October 1, 2009. Accordingly, all commercial radio and television stations are currently scheduled to sub­mit their biennial ownership reports by November 1, 2009, and every odd numbered year by the same deadline.

Continue reading "Noncommercial Stations' Biennial Ownership Reports: Due October 1, 2009"

2009 Third Quarter Children's Television Programming Documentation

Posted September 23, 2009

By Richard R. Zaragoza and Christine A. Reilly

September 2009

The next Children's Television Programming Report must be filed with the FCC and placed in stations' local Public Inspection Files by October 10, 2009, reflecting programming aired during the months of July, August and September 2009.

Statutory and Regulatory Requirements
As a result of the Children's Television Act of 1990 and the FCC Rules adopted under the Act, full power and Class A television stations are required, among other things, to: (1) limit the amount of commercial matter aired during programs originally produced and broadcast for an audience of children 12 years of age and younger; and (2) air programming responsive to the educational and informational needs of children 16 years of age and younger. Each of these requirements translates into the obligation to pre­pare supporting documents on a quarterly basis.

Continue reading "2009 Third Quarter Children's Television Programming Documentation"

Broadcast Station EEO Advisory

Posted September 15, 2009

By Richard R. Zaragoza and Christine A. Reilly

September 2009
This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Iowa, Missouri, Alaska, Hawaii, Oregon, Washington, Guam, American Samoa, Marianas Islands, Florida, Puerto Rico and the Virgin Islands, and highlights the upcoming deadlines for compliance with the FCC's EEO Rule.

Introduction
October 1, 2009 is the deadline for certain broadcast stations licensed to communities in the States/Territories referenced above to place their Annual EEO Public File Report in their public inspection files and post the report on their website, if applicable.

Under the FCC's rule that became effective as of March 10, 2003, all radio and television station employment units ("SEUs"), regardless of staff size, must afford equal employment opportunity to all qualified persons and practice nondiscrimination in employment.

Continue reading "Broadcast Station EEO Advisory"

FY 2009 Regulatory Fees Payment Deadline: September 22, 2009

Posted September 14, 2009

By Richard R. Zaragoza and Christine A. Reilly

September 2009
Federal Communications Commission has announced that full payment of all applicable Regulatory Fees for Fiscal Year 2009 must be received no later than September 22, 2009. The price of missing the deadline is a 25% up-charge.

On August 21, 2009, the Federal Communications Commission released a Public Notice officially announcing September 22, 2009 as the deadline for payment for its annual regulatory fees for FY 2009. Licensees and permittees subject to annual regulatory fees must make their payments no later than 11:59 pm, EDT, on September 22, 2009.

The penalty for late or non-payment of the annual regulatory fee is 25% of the total amount owed and not paid. In addition, the Commission will refuse to process a licensee's/permittee's applications until full payment, including any applicable penalty, has been received. Lastly, failure to pay in full may also subject a regulatee to loss of its FCC authorizations.

This year the FCC mailed assessment notices to licensees/permittees reflecting the FCC's understanding of their required payment obligations. Those notices may not include all of your stations and do not take into account any of your auxiliary licenses for which fees are also due. Accordingly, you should not assume that the notice is correct or complete.

Continue reading "FY 2009 Regulatory Fees Payment Deadline: September 22, 2009"

Commercial Stations' Biennial Ownership Reports: File by November 1, 2009

Posted September 11, 2009

By Richard R. Zaragoza and Christine A. Reilly

September 2009
As previously reported, the FCC released an Order on May 29, 2009, suspending the biennial ownership reporting requirement for commercial radio and television broadcast stations that would otherwise have been required to file their reports by June 1, August 1 or October 1, 2009.

Accordingly, commercial radio stations licensed to communities in Alaska, American Samoa, Florida, Guam, Hawaii, Mariana Islands, Oregon, Puerto Rico, Saipan, Virgin Islands and Washington and commercial television stations licensed to communities in Iowa or Missouri need not file their Biennial Ownership Reports by October 1. Rather, they will be required to file their Biennial Ownership Reports by November 1, 2009, as will all other commercial, full-power AM, FM, TV, LPTV and Class A television stations licensed to communities in any State or Territory of the United States.

Continue reading "Commercial Stations' Biennial Ownership Reports: File by November 1, 2009"

Changes to Cuba Embargo Will Give Telecom and Satellite Providers More Opportunities

Posted September 10, 2009

By Nancy A. Fischer and Michael J. Noonan

9/10/2009
On September 8, 2009, the Office of Foreign Assets Control ("OFAC") of the Department Treasury and the Bureau of Industry and Security ("BIS") of the Department of Commerce issued final rules in the Federal Register amending the Cuba Sanctions program and the Export Administration Regulations ("EAR") to increase the range of telecommunications services that can be provided between the United States and Cuba and exports and re-exports of items to implement those services, as well as authorizing related payments and travel. These are included in a larger set of rule changes implementing the President's April 13, 2009, directive to promote contact between family members and the flow of information between the two countries.

The new OFAC rule removes the policy directive requiring individual licenses for the provision of telecom­munications services and authorizes certain telecommunications services, contracts, related payments, and travel-related transactions by general licenses. Of primary importance is the addition of satellite (including radio and TV) and cellular services as covered technologies. Certain additional transactions involving third countries and related to the provision of services between Cuba and the U.S. will now be permitted but will require specific licenses.

Continue reading "Changes to Cuba Embargo Will Give Telecom and Satellite Providers More Opportunities"

Paying the Piper: Avoiding Payola/Plugola Violations and Minimizing Liability

Posted August 25, 2009

By Scott R. Flick

August 2009
The volatile combination of broadcast employees concerned about their income and job security, and cash-strapped businesses looking for cheap and effective ways to promote themselves in difficult economic times, creates an unusually fertile ground for payola and plugola violations. Complicating matters are state efforts to prohibit "payola" activities that are legal under federal payola law. Even being accused of payola can be devastating to a broadcaster, and stations must be extremely diligent in uncovering and preventing payola and plugola violations.

Payola is the undisclosed acceptance of, or agreement to accept, anything of value in return for on-air promotion of a product or service. It is forbidden by Sections 317 and 507 of the Communications Act of 1934, and by Sections 73.1212 (broadcast) and 76.1615 (cable) of the FCC's Rules. Its sibling, Plugola, occurs when someone responsible for program selection promotes on-air a venture in which he or she has a financial interest without disclosing that interest to the station licensee and to the public. A payola or plugola violation by an employee usually results in the employer violating the FCC's sponsorship identification rule as well.

Continue reading "Paying the Piper: Avoiding Payola/Plugola Violations and Minimizing Liability"

FY 2009 Annual Regulatory Fees' Current Payment Deadline: September 22, 2009

Posted August 20, 2009

By Richard R. Zaragoza and Christine A. Reilly

August 2009
In its assessment letters to regulatees, the Commission has announced that full payment of all applicable Regulatory Fees for Fiscal Year 2009 must be received no later than September 22, 2009.

On August 11, 2009, the final FY 2009 Annual Regulatory Fee Schedule was published in the Federal Register. Accordingly, the new fees are scheduled to become effective 30 days thereafter. As the date of this Advisory, the FCC has not released a Public Notice officially announcing the deadline for payment for FY 2009 annual regulatory fees. However, in assessment letters sent to regulatees earlier this month, the Commission stated: "Regulatory fee payments are due by September 22, 2009." Accordingly, unless for some reason the new fees do not become legally effective by that date, holders of FCC authorizations that are subject to annual regulatory fees must make their Fiscal Year 2009 payments by 11:59pm EDT, on September 22, 2009.

Continue reading "FY 2009 Annual Regulatory Fees' Current Payment Deadline: September 22, 2009"

Internet Radio Royalty Dispute Reaching End--For Now

Posted August 18, 2009

Recent Settlements and Court Rulings Bring Clarity to Royalty Landscape

By Cydney A. Tune and Christopher R. Lockard

8/18/2009
The long-running battle over royalties owed by webcasters--companies that broadcast music over the Internet--took several significant leaps towards conclusion last month with important developments both inside and outside of the courtroom. Spurred by the Webcaster Settlement Act of 2009, signed by President Obama on June 30, SoundExchange and webcasters entered into a total of five Congressionally blessed settlement agreements that are open to other webcasters and are binding on all copyright owners and performers. Additionally, decisions were announced in two appellate cases. Set forth below are sum­maries of the key terms and important deadlines.

Continue reading "Internet Radio Royalty Dispute Reaching End--For Now"

FCC Sets Annual Regulatory Fees for 2009; Payment Deadline Expected in September

Posted August 17, 2009

By Richard R. Zaragoza and Christine A. Reilly

August 2009
The FCC has released its final schedule of Annual Regulatory Fees for FY 2009. It is expected that those fees will become due and payable sometime in September. We will issue a further Client Advisory as soon as the Commission issues a Public Notice announcing the applicable deadline.

The FCC has released the text of its Report and Order adopting a new schedule of annual regulatory fees. The fees for FY 2009 are almost 10% more than for FY 2008. A copy of the FCC's Report and Order, including the FY 2009 fee schedule, may be viewed by clicking this link http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-62A1.pdf. Specifically, broadcaster related fees are provided in Appendix C, pages 21 - 23, of the FCC's Report and Order. The FY 2009 regulatory fees are scheduled to become effective 30 days after publication in the Federal Register.

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Latest 9th Circuit Decision on Wireless Facilities Leaves Key Questions Unanswered

Posted August 4, 2009

By Robert S. Metzger

8/4/2009
Practitioner comment on T-Mobile USA, Inc. v. City of Anacortes (No 08-35493, slip op. (9th Cir. July 20, 2009), available at 2009 WL 2138980).

The Telecommunications Act of 1996 ("TCA") was enacted with goals that were at once complementary and contradictory--to increase competition and facilitate rapid deployment of new technology, on the one hand, while preserving the autonomy of states and municipalities, on the other. Since enactment, telecommunications service providers, and local and state governments, have resorted to the Act to suit their respective objectives. Providers, driven by technologies and market demand for new services, have continuously sought to install, upgrade and maintain telecommunications facilities upon both private and public property. State and local political leaders, motivated by changing values and community aesthetic objectives, have resisted and sought to regulate and control the installations. The TCA has proven to be an inconsistent guide, at best, to resolving this tension. More than a decade after enactment of the TCA, major questions about local right to control or deny telecommunications installations remain unanswered. Recent decisions in the Ninth U.S. Circuit Court of Appeals clarify the law as to wireless facilities but reveal remaining tension between local prerogatives and provider needs.

Lara-Beye Molina, an associate in the San Francisco office of the firm, assisted in the preparation of this Advisory.

Continue reading "Latest 9th Circuit Decision on Wireless Facilities Leaves Key Questions Unanswered"

Reminder: Biennial Ownership Reports Are Due August 1, 2009 for Select Noncommercial Educational Radio and Television Stations

Posted July 27, 2009

By Richard R. Zaragoza , Paul A. Cicelski and Christine A. Reilly

July 2009
As we recently reported, the FCC has altered the schedule for the filing of Biennial Ownership Reports by commercial broadcast stations. Those Reports must now be filed by November 1, 2009 and by the same date every two years thereafter. However, the staggered schedule for the filing of Biennial Ownership Reports for noncommercial educational broadcast stations remains unchanged for the time being, subject to a pending Further NPRM. For noncommercial radio stations in California, North Carolina and South Carolina and noncommercial television stations in Illinois and Wisconsin, the reports are due August 1, 2009.

Noncommercial educational radio stations licensed to communities in California, North Carolina or South Carolina and noncommercial educational television stations licensed to communities in Illinois or Wisconsin must file their Biennial Ownership Reports by August 1, 2009.

As discussed in a Client Advisory sent earlier this month, the FCC released an Order on May 29, 2009, suspending the biennial ownership reporting requirement for licensees of commercial radio and television broadcast stations that would otherwise have been required to file their reports by June 1, August 1 or October 1, 2009. Accordingly, all commercial radio and television stations must submit biennial ownership reports by November 1 every other year, starting in 2009.

Continue reading "Reminder: Biennial Ownership Reports Are Due August 1, 2009 for Select Noncommercial Educational Radio and Television Stations"

Advisory--Biennial Ownership Reports: Filing Deadline Changes to Nov. 1, 2009 for All Radio and TV Stations Nationwide

Posted July 20, 2009

By Richard R. Zaragoza and Christine A. Reilly

July 2009

The FCC has altered the schedule for the filing of Biennial Ownership Reports by commercial broadcast stations. August 1, 2009 is no longer the deadline for commercial radio stations in California, North Carolina, and South Carolina, or for commercial television stations in Illinois and Wisconsin to file their biennial ownership reports. Those Reports must now be filed by November 1, 2009 and by the same date every two years thereafter, by all radio and television sta­tions nationwide.

As previously reported, the FCC released an Order on May 29, 2009, suspending the biennial ownership reporting requirement for licensees of commercial radio and television broadcast stations that would other­wise have been required to file their reports by June 1, August 1 or October 1, 2009.

Accordingly, commercial radio stations licensed to communities in California, North Carolina and South Carolina and commercial television stations licensed to communities in Illinois or Wisconsin need not file their Biennial Ownership Reports by August 1. They will, however, have to file their reports by November 1, 2009, as will the licensees of all other commercial, full-power AM, FM, TV, LPTV and Class A television stations licensed to communities in any State or Territory of the United States.

Continue reading "Advisory--Biennial Ownership Reports: Filing Deadline Changes to Nov. 1, 2009 for All Radio and TV Stations Nationwide"

Drawing the Line: A Guide to Avoiding Illegal Content for the On-Air Performer

Posted July 16, 2009

By Scott R. Flick

7/16/2009
As the sources of content available to the public proliferate, attracting and retaining an audience grows more challenging. A common strategy is to use provocative or "attention-getting" on-air elements to increase station awareness among media-saturated listeners and viewers. However, stations must be mindful of the numerous legal restrictions on content, particularly given that illegal on-air content can garner fines as high as $325,000 per violation. In addition, certain types of illegal on-air content can subject a broadcaster to civil and criminal liability, as well as loss of its license.

Introduction
Familiarity with the FCC's rules regarding on-air content is not optional for on-air talent, station programmers or station management. In most cases, editorial judgments made in advance, especially in the case of syndicated or pre-recorded programming, can prevent illegal content from reaching the air. It is therefore important that those involved in airing broadcast programming be up-to-date on the boundary lines that the FCC and the courts have drawn to distinguish legal from illegal on-air content.

Continue reading "Drawing the Line: A Guide to Avoiding Illegal Content for the On-Air Performer"

Broadcast Station EEO Advisory

Posted July 10, 2009

By Richard R. Zaragoza and Christine A. Reilly

July 2009
This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: California, Illinois, North Carolina, South Carolina and Wisconsin, and highlights the upcoming deadlines for compliance with the FCC's EEO Rule.

Introduction
August 1, 2009 is the deadline for certain broadcast stations licensed to communities in the States/Territories referenced above to place their Annual EEO Public File Report in their public inspection files and post the report on their website, if applicable.

Under the FCC's rule that became effective as of March 10, 2003, all radio and television station employment units ("SEUs"), regardless of staff size, must afford equal employment opportunity to all qualified persons and practice nondiscrimination in employment.

Continue reading "Broadcast Station EEO Advisory"

FCC Announces Filing 'Windows' for New Digital-Only LPTV, TV Translator Stations in Rural Areas (Beginning August 25, 2009) and Nationwide (Beginning January 25, 2010)

Posted July 1, 2009

By Richard R. Zaragoza and Paul A. Cicelski

7/1/2009
This week, the FCC issued a Public Notice announcing that it is finally lifting the freeze on the filing of new low power television ("LPTV") and television translator stations. First, on August 25, 2009, the FCC will begin accepting applications for stations in "rural areas" for: (1) new digital-only LPTV and TV translator stations; (2) major changes to existing analog and digital LPTV and TV translator facilities; (3) and, in the case of current analog stations, for digital companion channels. "Rural areas" are defined as areas with antenna site coordinates that are located more than 75 miles from the reference coordinates of the largest 100 cities as defined by Nielsen Media Research and are listed in Appendix A of the Public Notice. Second, the Public Notice also announces that on January 25, 2010, the FCC will begin accepting the above-referenced three types of LPTV and television translator applications nationwide, without any geographic restrictions.

In all cases, applications will be considered on a first-come, first-served basis with a daily "cut off" policy, and if the FCC receives mutually exclusive (i.e., incompatible) applications, it will award the license by auction. Additionally, the Public Notice emphasizes that applications for new analog facilities will absolutely not be accepted and that applications for new digital LPTV and television translator stations and for replacement digital translators may only be filed specifying in-core channels 2-51. Applicants for digital companion stations may apply for channels 52-59, but only after certifying that a suitable in-core channel is unavailable.

Continue reading "FCC Announces Filing 'Windows' for New Digital-Only LPTV, TV Translator Stations in Rural Areas (Beginning August 25, 2009) and Nationwide (Beginning January 25, 2010)"

FCC Adopts New Regulations Allowing AM Broadcast Stations to Use FM Translator Stations For "Fill-in" Purposes

Posted June 30, 2009

By Richard R. Zaragoza and Christine A. Reilly

6/30/2009

In respond to the National Association of Broadcasters' July 14, 2006 Petition for Rule Making, and after a Notice of Proposed Rule Making Proceeding released on August 15, 2007, the FCC today released a Report and Order adopting the NAB's proposal that AM stations be allowed to use FM translators to retransmit their AM service within their AM stations' current coverage areas. The action was taken to "permit AM broadcasters to better serve their local communities and thus promote the Commission's bedrock goals of localism, competition and diversity in the broadcast media."

In response to the National Association of Broadcasters' July 14, 2006 Petition for Rule Making, and after a Notice of Proposed Rule Making Proceeding released on August 15, 2007, the FCC today released a Report and Order adopting the NAB's proposal that AM station be allowed to use FM translators to retransmit their AM service within their AM stations' current coverage areas. The action was taken to "permit AM broadcasters to better serve their local communities and thus promote the Commission's bedrock goals of localism, competition and diversity in the broadcast media."

According to the Report and Order, "AM broadcast stations will be allowed to use currently authorized FM translator stations (i.e., those now licensed or authorized in construction permits that have not expired) to rebroadcast their AM signals, provided that no portion of the 60 dBu contour of any such FM translator signal extends beyond the smaller of: (a) a 25-mile radius from the AM transmitter site; or (b) the 2 mV/m daytime contour of the AM station. In addition, AM broadcast stations with Class D facilities...will be allowed to originate programming on such FM translators during the periods when their AM station is not operating."

Continue reading "FCC Adopts New Regulations Allowing AM Broadcast Stations to Use FM Translator Stations For "Fill-in" Purposes"

FCC Proposal to Promote Rural Radio Service and Simplify Allotment/Assignment Process: Comments Due July 13, Replies Due Aug. 11

Posted June 25, 2009

By Richard R. Zaragoza and Paul A. Cicelski

6/25/2009
Through the vehicle of a Notice of Proposed Rule Making ("NPRM"), Acting Chairman Michael J. Copps, and Commissioners Jonathan Adelstein and Robert McDowell are looking to change the way the FCC decides what communities and areas deserve new or modified commercial and noncommercial, full-power AM and FM radio stations.

Because the decisions the FCC makes as a result of the NPRM may well determine whether existing, as well as newly proposed, free, over-the-air radio stations thrive or perish, the rule making is likely to have a very significant effect on the radio broadcast industry, including its ownership and program diversity, going forward. If adopted, the FCC's proposals would substantially reduce or eliminate the flexibility broadcasters currently have to locate or move small community and rural stations to areas where they can serve more listeners and/or listeners with different programming needs. Another effect of the NPRM could be to move more competing applications into an auction process which, in turn, may discourage filings altogether.

Continue reading "FCC Proposal to Promote Rural Radio Service and Simplify Allotment/Assignment Process: Comments Due July 13, Replies Due Aug. 11"

FCC Makes Available its Revised 2009 Second Quarter DTV Consumer Education Report (Form 388) for Television Stations, Which Must Be Filed by July 10, 2009

Posted June 19, 2009

By Richard R. Zaragoza and Christine A. Reilly

On March 13, 2009, and in response to the Congressional extension of the digital transition deadline from February 17 to June 12, 2009, the FCC released an R&O which, among other things, revised the rules associated with its requirements for DTV Consumer Education Initiatives. Those significant revisions, which became effective on April 1, 2009, included additional viewer notifications regarding antennas, help/walk-in centers, rescanning activities, and service loss.

The FCC has released a draft version of its most recent FCC Form 388 which includes the rule changes. A copy of the revised FCC Form 388, which has not yet received OMB approval, is available for review on the FCC's website at http://www.fcc.gov/Forms/Form388/388.pdf.

By July 10, 2009, all television stations are required to report on the DTV Education Initiatives undertaken in the months of April, May and June by electronically filing the revised FCC Form 388. The FCC Form 388 is also required to be placed in the station's public inspection file by July 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.

Continue reading "FCC Makes Available its Revised 2009 Second Quarter DTV Consumer Education Report (Form 388) for Television Stations, Which Must Be Filed by July 10, 2009"

2009 Second Quarter Children's Television Programming Documentation Advisory

Posted June 19, 2009

By Richard R. Zaragoza and Paul A. Cicelski

6/19/2009
The next Children's Television Programming Report must be filed with the FCC and placed in stations' local Public Inspection Files by July 10, 2009, reflecting programming aired during the months of April, May and June 2009.

A PDF version of this entire article can be found at 2009 Second Quarter Children's Television Programming Documentation Advisory.

FCC Recommends That Viewers With DTV Reception Problems Try 'Double Rescanning' Their Digital Converter Box or Digital TV

Posted June 17, 2009

By Richard R. Zaragoza and Paul A. Cicelski

6/17/2009
The FCC issued a Public Notice recommending that viewers having difficulty receiving any of the over-the-air digital television signals of stations in their area should "double rescan" their digital converter boxes or digital television sets.

The Public Notice can be found on the Commission's website at the following link: FCC Home Page. Specifically, the FCC recommends that viewers should use the following five steps if they are having difficulty receiving certain local stations:

  1. Disconnect their antennas from the converter box or digital TV;
  2. Rescan the converter box or digital TV without the antenna connected;
  3. Unplug the converter box or digital TV from the electrical outlet for at least one minute;
  4. Reconnect the antenna to the converter box or digital TV and plug the unit back into the electrical outlet; and
  5. Rescan the converter box or digital TV a second time to ensure that a "double rescan" takes place.

Continue reading "FCC Recommends That Viewers With DTV Reception Problems Try 'Double Rescanning' Their Digital Converter Box or Digital TV"

FCC Reminds TV Stations Transitioning on June 12 They Must Have Adequate Staff Available to Answer Viewer Phone Calls During the Cut-over and the Entire Weekend

Posted June 11, 2009

By Richard R. Zaragoza and Paul A. Cicelski

6/11/2009
In its Public Notice released earlier today, the FCC reminded stations of the requirement that television stations that have not yet made the transition to all-digital broadcasting must be prepared to answer calls about the transition immediately after they make the switch from analog to digital. The FCC noted its specific concern that stations have the appropriate staff available to answer calls after business hours and reminded stations that they should be prepared to handle the expected increase in calls, including calls forwarded directly to stations from the FCC's National Call Center, which will be staffed 24 hours a day. The Public Notice specifically requests that stations not transitioning to digital-only until June 12 should not only staff their customer referral locations the evening of June 12, but should also ensure that the phones are staffed over the following weekend, June 13 and 14.

According to the Commission, the customer referral telephone number can be staffed by individual station employees, by a group of stations in a market, or by a third party such as a state broadcasters association. In addition, the customer referral telephone number should be staffed with personnel "prepared to answer complex questions from viewers, particularly regarding necessary actions to take to get reception in specific locations, and other engineering issues."

Continue reading "FCC Reminds TV Stations Transitioning on June 12 They Must Have Adequate Staff Available to Answer Viewer Phone Calls During the Cut-over and the Entire Weekend"

FCC Issues a Notice of Inquiry Seeking Public Comment Regarding Arbitron's Use of Portable People Meters

Posted May 19, 2009

By Richard R. Zaragoza and Paul A. Cicelski

5/19/2009
The FCC's Notice of Inquiry seeks answers to the controversial question raised by "broadcasters, media organizations and others" whether Arbitron is undercounting the audience for stations that air programming targeted to minority audiences, potentially harming the financial viability of those stations. At issue is Arbitron's commercial use of equipment called the Portable People Meter ("PPM"), a mobile-phone-sized device that consumers wear throughout the day to track their radio listening. Arbitron has replaced the audience-based rating systems with PPM in certain markets and intends to replace audience-based diaries with PPM in the top 50 radio markets next year.

According to the FCC, while it has "a strong interest in encouraging innovative advancements that lead to improved information and data," it nonetheless wants to know "whether and how the PPM technological changes adversely affect diversity on the airwaves as well as the integrity and reliability of the Commission's processes that rely on Arbitron ratings data."

Continue reading "FCC Issues a Notice of Inquiry Seeking Public Comment Regarding Arbitron's Use of Portable People Meters"

FCC Proposes FY 2009 Regulatory Fees

Posted May 14, 2009

By Richard R. Zaragoza , Christine A. Reilly and Emily J. H. Daniels

5/14/2009
The Commission has announced its proposed annual regulatory fees for Fiscal Year 2009. The final fee amounts and filing deadline will be announced in a Public Notice following consideration of Comments to be filed by June 4, 2009 and Reply Comments to be filed by June 11, 2009.

The proposed Annual Regulatory Fees for FY 2009 are projected to raise more than $341 million.

Commercial VHF television stations face the prospect of the following annual regulatory fee increases: in the top 10 markets, those stations will see their annual fee rise from $71,050 to $77,575, and in markets 11 to 25, the fee increases from $53,525 to $60,550. VHF construction permit fees will increase from $5,600 to $5,950 under the FCC's proposal. Similarly, UHF television stations face fee increases: in the top 10 markets, those stations will see their annual fee rise from $21,225 to $24,250, and in markets 11 to 25, the fee increases from $19,475 to $21,525. UHF construction permit fees will increase from $1,800 to $1,950.

Consistent with past years, the FCC will not assess FY 2009 regulatory fees for both digital and analog licenses from a licensee in the process of transitioning from analog to digital. Stations that were broadcasting in both analog and digital on October 1, 2008 will be assessed FY 2009 regulatory fees for their analog licenses only. Stations that were broadcasting in digital only on October 1, 2008 will not be assessed regulatory fees for their digital license for FY 2009. Beginning in FY 2010, the FCC intends to begin collecting regulatory fees from digital television broadcasters.

Continue reading "FCC Proposes FY 2009 Regulatory Fees"

FCC Creates Digital Television Translator Service

Posted May 8, 2009

By Scott R. Flick, Christine A. Reilly and Emily J. H. Daniels

5/8/2009
On December 23, 2008, the FCC issued a Notice of Proposed Rulemaking proposing to create a new "replacement" digital television translator service.

Today, the FCC released a Report and Order creating that service, outlining the parameters of the new service, and setting forth application procedures. The purpose of the Digital Television Translator service is to permit full-power television stations to continue to provide service to viewers who have lost or will lose service as a result of a station's digital transition. As a result, only the licensees of full-power television stations are eligible to apply, and the translators are to be used solely to serve a station's analog loss areas created by the transition to digital. The FCC indicates that the service "is not intended for digital full-service stations to use in proposed digital service areas, where analog service did not formerly exist."

Continue reading "FCC Creates Digital Television Translator Service"

EEO in 2009 and Forward: A Legal Guide to the FCC's Equal Employment Opportunity Rule and Policies for Broadcasters

Posted May 1, 2009

By Clifford M. Harrington and Christine A. Reilly

5/1/2009

A PDF of this entire article can be found at >EEO in 2009 and Forward: A Legal Guide to the FCC's Equal Employment Opportunity Rule and Policies for Broadcasters.

FCC Releases Revised List of Stations that are Eligible for Statutory Analog Nightlight Program

Posted May 1, 2009

By Scott R. Flick

5/1/2009
As previously reported, the Short-term Analog Flash and Emergency Readiness Act (the "Analog Nightlight Act") required the FCC to develop a program to permit continued analog television service for 30 days after the DTV transition, thereby permitting stations to provide emergency and DTV transition information to the public in analog.

The Commission has now issued a revised list of stations that are pre-approved to participate in the analog nightlight program, as well as listing stations that have notified the Commission of their intent to participate. A total of 825 stations in 202 markets are listed, including 354 stations and 11 markets that have already completed the DTV transition. The full list of these stations is attached.

Continue reading "FCC Releases Revised List of Stations that are Eligible for Statutory Analog Nightlight Program"

Supreme Court Narrowly Rules in Favor of FCC's "Fleeting Expletives" Ban

Posted April 28, 2009

By Richard R. Zaragoza and Paul A. Cicelski

Court Ordered Remand May Force the Supreme Court to deal with the First Amendment Issue

4/28/2009
In a 5-4 decision released today, the Supreme Court upheld the FCC's so-called "fleeting expletives" policy which bans the radio and television broadcast of single so-called four-letter words that are considered indecent.

However, the narrow ruling of the Court stopped short of deciding whether the FCC's change in policy violates the First Amendment. Justice Scalia's majority opinion emphasized that it was dealing only with the question of whether the FCC's new fleeting expletives policy was "arbitrary and capricious" as a matter of law. The majority determined that the FCC's change in policy was "entirely rational" under the Administrative Procedure Act. In doing so, the Court reversed the decision of the Second Circuit Court of Appeals that had found the FCC's new policy to be arbitrary and capricious and remanded the case to the Second Circuit for further review.

Continue reading "Supreme Court Narrowly Rules in Favor of FCC's "Fleeting Expletives" Ban"

Reminder: Increased FCC Application Filing Fees Will Become Effective April 28, 2009

Posted April 27, 2009

By Richard R. Zaragoza and Christine A. Reilly

April 2009
The FCC has released a new Federal Register notice indicating that the increase in certain FCC application fees will become effective April 28, 2009.

A PDF version of this entire article can be found at Reminder: Increased FCC Application Filing Fees Will Become Effective April 28, 2009

Telecommunications Update

Posted April 16, 2009

By Glenn S. Richards

4/16/2009
Upcoming Deadlines
FCC Form 499-Q is Due by May 1, 2009
All providers of interstate telecommunications within the United States, with limited exceptions, must file a FCC Form 499-Q Telecommunications Reporting Worksheet by May 1, 2009 containing revenue information for January 1 through March 31 and projections for July 1 through September 30. The completed FCC Form 499-Q should be mailed to:

Form 499 Data Collection Agent
Attn: USAC Customer Service
2000 L St NW
Suite 200
Washington, DC 20036

Providers who have obtained a USAC Filer ID number may file the form electronically at: https://forms.universalservice.org/usaclogin/login.asp. A late fee may be imposed for failing to file or filing the worksheet after the due date.

The 499-Q form and instructions can be found on USAC's website at: http://www.universalservice.org/fund-administration/forms/. The Universal Service Fund ("USF") contribution factor for the second quarter 2009 is 11.3%.

Continue reading "Telecommunications Update"

FCC Clarifies Requirement to Publicize Local DTV Walk-In Centers

Posted April 16, 2009

By Scott R. Flick and Emily J. H. Daniels

4/16/2009
FCC Fines Texas Low Power Noncommercial Educational Station $20,000 for Airing Advertisements. The FCC issued a Public Notice late today providing guidance to broadcasters regarding the DTV walk-in center consumer education requirement it created last month. On March 13th, the FCC imposed a number of additional DTV consumer education requirements upon stations still operating in analog format or which are operating in digital format, but not with final post-transition facilities. One of those requirements is that such stations publicize the location and hours of any walk-in DTV help centers located in their market by including that information in a daily PSA or crawl.

Today, the FCC issued the attached Public Notice, which provides very specific requirements for what qualifies as a walk-in DTV help center. The FCC indicates that "walk-in centers that have the [listed] characteristics and are located in a station's designated market area (DMA) must be identified in that station's consumer education campaign." It therefore appears that stations will not be required to publicize any walk-in centers that do not meet the FCC's stringent standards, and the principal impact of today's clarification will be to reduce the number of consumer assistance facilities that broadcast stations are required to publicize under the new consumer education requirements.

Continue reading "FCC Clarifies Requirement to Publicize Local DTV Walk-In Centers"

Licensing and Royalty Requirements for Webcasters: Details and Deadlines

Posted March 24, 2009

By Cydney A. Tune and Christopher R. Lockard

3/24/2009
This Advisory is intended specifically to help guide individuals and companies, that wish to distribute recorded music over the Internet for pleasure or profit, through the maze of licenses and royalties required for such "webcasting" activities. It discusses the recent settlement agreements entered into between SoundExchange and the Corporation for Public Broadcasting ("CPB") and the National Association of Broadcasters ("NAB"). For certain commercial radio stations considering whether to take advantage of the NAB/SoundExchange settlement, April 2, 2009 is a critical "opt-in" deadline.

Music licensing has always been a complex and controversial subject. The rise of the Internet has served to take this complexity and controversy to a whole new level. The last several years have seen a multitude of developments in online music, both in the types and successes of music-related websites and in the laws and regulations governing music copyrights.

A PDF version of this entire article can be found at Licensing and Royalty Requirements for Webcasters: Details and Deadlines.

2009 First Quarter Children's Television Programming Documentation Advisory

Posted March 21, 2009

By Richard R. Zaragoza and Christine A. Reilly

March 2009
The next Children's Television Programming Report must be electronically filed with the FCC and placed in stations' local Public Inspection Files by April 10, 2009, reflecting programming aired during the months of January, February and March 2009.

Statutory and Regulatory Requirements

As a result of the Children's Television Act of 1990 and the FCC Rules adopted under the Act, full power and Class A television stations are required, among other things, to: (1) limit the amount of commercial matter aired during programs originally produced and broadcast for an audience of children 12 years of age and younger; and (2) air programming responsive to the educational and informational needs of children 16 years of age and younger. Each of these requirements translates into the obligation to prepare supporting documents on a quarterly basis.

A PDF version of this entire article can be found at 2009 First Quarter Children's Television Programming Documentation Advisory

2009 First Quarter FCC Form 388 DTV Quarterly Activity Station Report Advisory for Broadcast Stations

Posted March 20, 2009

By Richard R. Zaragoza and Christine A. Reilly

March 2009
The next FCC Form 388 DTV Quarterly Activity Station Report must be electronically filed via CDBS and placed in stations' local public inspection files by April 10, 2009, reflecting information for the months of January, February, and March 2009.

As we have previously advised, on March 3, 2008, the FCC released a Report and Order outlining new requirements for the education of consumers regarding the February 17, 2009, transition to digital television service. As a result of this Public Notice, stations were required to ensure that they elected one of the compliance "Options" contained in the Report and Order and began airing DTV consumer education announcements pursuant to their chosen "Option" no later than Monday, March 31, 2008.

A PDF version of this entire article can be found at 2009 First Quarter FCC Form 388 DTV Quarterly Activity Station Report Advisory for Broadcast Stations.

2009 First Quarter Issues/Programs List Advisory for Broadcast Stations

Posted March 15, 2009

By Richard R. Zaragoza and Christine A. Reilly

March 2009
The next Quarterly Issues/Programs List ("Quarterly List") must be placed in stations' local public inspection files by April 10, 2009, reflecting information for the months of January, February, and March 2009. The FCC's action adopting the new program report Form 355, which is intended to replace the Quarterly Issues/Programs Lists for full-power and Class A television stations, is not yet effective and thus will not have any effect on this first quarter public file requirement.


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.

A PDF version of this entire article can be found at 2009 First Quarter Issues/Programs List Advisory for Broadcast Stations .

Broadcast Station EEO Advisory

Posted March 9, 2009

By Richard R. Zaragoza and Christine A. Reilly

March 2009
This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee and Texas, and highlights the upcoming deadlines for compliance with the FCC's EEO Rule.


April 1, 2009 is the deadline for stations licensed to communities in the States/Territories referenced above to place their Annual EEO Public File Report in the public inspection file and post the report on the station's website, if applicable.

Under the FCC's rule that became effective as of March 10, 2003, all radio and television station employment units ("SEUs"), regardless of staff size, must afford equal employment opportunity to all qualified persons and practice nondiscrimination in employment.

A PDF version of this entire article can be found at Broadcast Station EEO Advisory.

Biennial Ownership Reports Due By April 1, 2009, for Certain Radio and Television Broadcasters

Posted March 7, 2009

By Richard R. Zaragoza and Christine A. Reilly

March 2009
Commercial and noncommercial Radio stations licensed to communities in Texas must electronically file their Biennial Ownership Reports with the FCC by April 1, 2009. Commercial and noncommercial Television stations licensed to communities in the States of Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee must also electronically file their Biennial Ownership Reports by the same deadline.

As radio and television stations in the same State/Territory file their renewals one year apart, broadcast stations in the above-referenced states which are not subject to the April 1, 2009, deadline will be required to file their Biennial Ownership Reports by April 1, 2010.

A PDF version of this entire article can be found at Biennial Ownership Reports Due By April 1, 2009, for Certain Radio and Television Broadcasters.

FCC Enforcement Monitor

Posted March 5, 2009

By Scott R. Flick

March 2009

FCC Fines a Michigan Radio Station for Broadcasting a Telephone Conversation Without Prior Notice.

FCC Fines Pennsylvania Noncommercial Educational Television Station $2,500 for Airing Advertisements.

FCC Fines AM Radio Station $6,000 for Conducting a Contest Without Describing All Material Terms.

A PDF version of this entire article can be found at A FCC Enforcement Monitor.

Managing Debt Covenants in Hard Times

Posted March 4, 2009

By Scott R. Flick and >Miles S. Mason

TVNewsDay

3/4/2009
To say that current economic conditions are challenging for broadcasters is akin to noting that the Ice Age was chilly.

Like many industries, consolidation and growth was fueled by the easy availability of capital, and now broadcasters struggling under the weight of reduced advertising sales and large debt payments must also struggle to meet their loan covenants.

For those of us involved in both the regulatory and transactional sides of the industry, 2009 threatens to be the year that bankruptcies, loan workouts and alternative financing arrangements exceed all other major transactions.

In working with both broadcasters and their creditors seeking to navigate these dark waters, we have crafted some basic "rules of the road" that make it easier to both assess and preserve your options going forward.

At the outset, the most obvious piece of advice -- and advice that is too often ignored -- is that in today's difficult financial environment, broadcasters need to continually focus on their relationships with their lenders.

Rather than avoiding such conversations as the risk of violating a loan covenant grows, broadcasters should actively engage their lenders, even if they find such discussions uncomfortable.

Continue reading "Managing Debt Covenants in Hard Times"

President Obama Signs DTV Delay Act Into Law

Posted February 20, 2009

By Scott R. Flick and Christine A. Reilly

DTV Transition Date Officially Moved to June 12, 2009

February 2009
President Obama signed into law the DTV Delay Act that serves to move the digital television transition from February 17th to June 12th.
Irrespective of this delay, many stations will proceed with the termination of analog operation on February 17th. Additional information regarding the procedures for termination of analog service may be found in the group's prior advisories on the subject, which may be accessed via the links provided below:

A PDF version of this entire article can be found at President Obama Signs DTV Delay Act Into Law.

FCC Issues Order Extending February 17, 2009 Expiration Dates and Allowing Certain Stations to Withdraw February 9, 2009 Notices of Intent to Terminate Analog Operation

Posted February 14, 2009

By Scott R. Flick and Christine A. Reilly

February 2009
On February 13, 2009, the FCC released a Report and Order implementing the DTV Delay Act. Pursuant to the Report and Order, the following authorizations are modified as noted:

  • Analog Television Licenses: expiration date extended from February 17, 2009, to June 12, 2009, (11:59:59 PM local time);
  • Post-Transition DTV Construction Permits: expiration date extended from February 17, 2009, to June 12, 2009, (11:59:59 PM local time);
  • Special Temporary Authority grants for analog reduction related to the DTV transition: expiration date extended from February 17, 2009 to June 12, 2009 (11:59:59 PM local time);
  • Special Temporary Authority grants for operation of pre-transition digital facilities at variance to pre-tran­sition license or construction permit: expiration date extended from February 17, 2009 to June 12, 2009, (11:59:59 PM local time);
  • Authority to commence post-transition digital operation: moved from February 18, 2009 to June 13, 2009, (12:00 AM local time).

Continue reading "FCC Issues Order Extending February 17, 2009 Expiration Dates and Allowing Certain Stations to Withdraw February 9, 2009 Notices of Intent to Terminate Analog Operation"

FCC Identifies Stations Which Must Undertake Additional DTV Transition-Related Information/Assistance Efforts in Order to Terminate Analog Service on February 17, 2009

Posted February 13, 2009

By Scott R. Flick and Christine A. Reilly

February 2009
Pursuant to the FCC's February 5th Public Notice, "Procedures Regarding Termination of Analog Television Service On or After February 17, 2009," any station wishing to early terminate analog operation was required to notify the FCC no later than February 9th. On February 10, the FCC released a list of the 491 stations that had filed this notification indicating their intent to terminate analog operations on February 17th. Yesterday evening, February 11th, the FCC announced that 123 of these stations will be required to undertake supplemental public interest initiatives in order to proceed with analog termination on February 17th. A copy of this list is attached.

As outlined in the attached Public Notice, any station listed that wishes to proceed with analog termination on February 17th must file a "Certification/Alternate Showing: Analog termination on February 17, 2009" form with the FCC no later than 6:00 EST Friday, February 13th representing that a number of additional DTV-related information/assistance efforts will be undertaken. Stations that certify to these conditions will be permitted to cease analog operation without receiving any additional authorization from the FCC.

Continue reading "FCC Identifies Stations Which Must Undertake Additional DTV Transition-Related Information/Assistance Efforts in Order to Terminate Analog Service on February 17, 2009"

FCC Releases List of Stations that Intend to Terminate Analog Operation On or Before February 17, 2009

Posted February 10, 2009

By Scott R. Flick and Christine A. Reilly

February 2009
Pursuant to the FCC's February 5th Public Notice, "Procedures Regarding Termination of Analog Television Service On or After February 17, 2009," any station wishing to "early" terminate analog operation was required to notify the FCC no later than February 9th of their intent to do so.

On February 10th, the FCC released a list of the 491 stations that filed this notification indicating their intent to terminate analog operation on February 17th. The list also reflects the 190 stations that have already terminated analog operations or intend to do so prior to February 17th.

Continue reading "FCC Releases List of Stations that Intend to Terminate Analog Operation On or Before February 17, 2009"

Supplement to February 5th Advisory Entitled "FCC Issues Procedures Relating to Delay of DTV Transition to June 12, 2009"

Posted February 6, 2009

By Scott R. Flick and Christine A. Reilly

2/6/2009
Members of our Communications Group sought and received clarification from the FCC staff regarding ambiguities in the FCC's February 5th Public Notice on Procedures Regarding Termination of Analog Television Service On or After February 17, 2009.

Continue reading "Supplement to February 5th Advisory Entitled "FCC Issues Procedures Relating to Delay of DTV Transition to June 12, 2009""

Webinar - Retrans Agreements: What the Other Side Knows...That You May Not

Posted February 5, 2009

On Wednesday, February 4th, John Hane, Counsel in Pillsbury's Communications practice, participated in a Webinar session entitled "Retrans Agreements: What the Other Side Knows...That You May Not."

Retransmission agreements are growing more complex and retransmission fees are becoming a bigger share of broadcast revenue. As business approaches and technology evolve, broadcasters are packing more content into their signals and expanding their web offerings. Some cable operators are asking for more than simple retransmission rights when they pay cash to broadcasters. This can have a big impact on broadcast operations.

The Webinar session addressed the changing face of retransmission consent, and what station and station group executives need to know before their next round of negotiations. The Webinar also discussed post-agreement issues, including the mechanics of fee computation.

Questions addressed included:

  • How can retransmission agreements restrict broadcast business opportunities?
  • Can both sides benefit from deployment of new technologies like mobile video and interactive broadcasting?

Continue reading "Webinar - Retrans Agreements: What the Other Side Knows...That You May Not"

FCC Issues Procedures Relating to Delay of DTV Transition to June 12, 2009

Posted February 5, 2009

By Scott R. Flick and Christine A. Reilly

2/5/2009
Stations seeking to end analog operations on or before February 17, 2009 must file a NEW notice with the FCC not later than Monday, February 9, and air certain required viewer notifications.

Continue reading "FCC Issues Procedures Relating to Delay of DTV Transition to June 12, 2009"

Digital TV's Big Deadline, or Delay?

Posted January 27, 2009

By Lauren Lynch Flick

A Q&A with Pillsbury's Lauren Lynch Flick

1/27/2009
Consumer advocates want to push back the February 17, 2009 jump to digital broadcasting, but an extension may do more to simply postpone feared disruptions than prevent them.


Next to the Internet, perhaps no consumer technology platform is evolving faster than television. For more than a generation, channel surfing was a relatively simple decision from a service standpoint. Analog broadcasts dated back to the 1940's, while competing cable and satellite-based subscription services gained popularity in the ensuing decades. Today, these traditional choices are being revamped by the growing popularity of more sophisticated high definition (HD) TV equipment and myriad set-top receiver options from service providers and consumer electronics manufacturers that provide greater access and control over content. Yet, just as the nation is poised to embrace a major step forward in the evolution of over-the-air television, concerns for the nation's readiness to do so threaten the government's long-standing proposal to terminate analog broadcasts in favor of digital television (DTV) on February 17, 2009.

Already implemented in regional test markets, this massive digital "switchover" has revealed several important lessons and issues unanticipated by consumers. In this Q&A, Pillsbury Communications law partner Lauren Lynch Flick answers persistent questions consumers have regarding how they can stay informed and tuned-in.

Q: Let's start with the big switch to digital TV signals, who does this affect and why is it happening?

A: In short, many of the frequencies, or channels, that broadcasters use today for the free, "over the air" television stations that we are all familiar with and used to being able to receive, are being reallocated for public safety, such as assuring that police and fire crews can communicate with one another on the same frequencies in an emergency, as well as for new wireless services by phone and data carriers. In the past year, the Federal Communications Commission (FCC) auctioned these old analog TV frequencies off to the highest bidding companies in anticipation of television broadcasters vacating the channels by the Congressionally-mandated deadline of February 17, 2009.

The switch to newer, digital TV (DTV) signals allows broadcasters to provide viewers with additional programming streams, as well as greatly increased picture and sound quality. Nevertheless, the challenge of making sure that all households, especially those with older sets, can receive the new signals, is daunting.

Continue reading "Digital TV's Big Deadline, or Delay?"

Options for Television Stations: Navigating the Uncertainty of a Delay in the DTV Transition Date

Posted January 26, 2009

By Richard R. Zaragoza , Lauren Lynch Flick and Paul A. Cicelski

1/26/2009
Legislation has been introduced in the United States Senate which, if enacted, would delay the current February 17, 2009 DTV transition deadline for a period of four months, or until June 12, 2009. A delay in the transition date will inevitably cause uncertainty and raise many questions, such as whether a station's decision to cease analog operations before the proposed deadline may still go forward as planned.

Continue reading "Options for Television Stations: Navigating the Uncertainty of a Delay in the DTV Transition Date"

Enforcement Monitor: FCC Finds Six Broadcasters Apparently Liable for Violations of Equal Employment Opportunity Rule

Posted January 16, 2009

By Richard R. Zaragoza and Scott R. Flick

January 2009
In late December 2008, the Federal Communications Commission ("FCC") released a series of six Notices of Apparent Liability for Forfeiture against broadcasters asserting violations of the FCC's Equal Employment Opportunity rule ("EEO rule"). In a joint statement appended to each of the six cases, FCC Commissioners Michael J. Copps (now Acting FCC Chairman) and Jonathan S. Adelstein (the "Commissioners") signaled their strong desire that enforcement of EEO matters be stepped up by the Commission. The Commissioners noted that "Commission enforcement of EEO rules has been inconsistent and, as one consequence, employment in broadcasting does not reflect America." Specifically, the Commissioners noted that while 251 cases resulted in 86 forfeitures between 1994 and 1997, only 10 cases resulting in 8 forfeitures were released between 2004 and 2007.

Continue reading "Enforcement Monitor: FCC Finds Six Broadcasters Apparently Liable for Violations of Equal Employment Opportunity Rule"

2009 Broadcaster's Calendar

Posted January 15, 2009

By Richard R. Zaragoza , Christine A. Reilly and Emily J. H. Daniels

January 2009
The following deadlines are based on information known by us as of the date hereof, may or may not apply to a particular broadcaster, are for general informational purposes only, and should be double-checked for currency close to each pertinent date/deadline. Actions by the FCC, Congress, or the courts could affect any of these deadlines by, for example, eliminating a particular reporting/filing obligation altogether or modifying the form used, content, deadline, fee, or manner of reporting/filing, such as requiring the posting of a report on the Internet or filing a report with the FCC electronically. It should also be noted that any FCC filing date which falls on a weekend or federal holiday, as a general rule, causes the filing deadline to be shifted to the immediately following business day. Furthermore, the listing of deadlines is not intended to be complete or exhaustive of all regulatory and non-regulatory deadlines that may apply to a given broadcaster year-to-year. Accordingly, broadcasters should seek the advice of communications counsel in each instance to assure timely and proper filing. This edition of our annual "Broadcasters' Calendar" supercedes all prior editions and accordingly any prior editions should no longer be used.

Continue reading "2009 Broadcaster's Calendar"

Biennial Ownership Reports Due by February 1, 2009 for Certain Radio and Television Broadcasters

Posted January 12, 2009

By Richard R. Zaragoza and Christine A. Reilly

January 2009
Commercial and noncommercial Radio stations licensed to communities in Kansas, Nebraska and Oklahoma must file their Biennial Ownership Reports with the FCC by February 1, 2009. Commercial and noncommercial Television stations licensed to communities in the States of Arkansas, Louisiana, Mississippi, New Jersey and New York must also file their Biennial Ownership Reports by the same deadline.

Continue reading "Biennial Ownership Reports Due by February 1, 2009 for Certain Radio and Television Broadcasters"

Telecommunications Update

Posted January 12, 2009

By Glenn S. Richards

January 2009:

Upcoming Deadlines


  • FCC Form 499-Q is Due by February 1, 2009

  • Customer Proprietary Network Information Certification is Due by March 1, 2009


Enforcement Matters:

  • Telecommunications Carrier Enters Into $10,080,600 Consent Decree for CPNI and Universal Service Fund Violations

  • Telecommunications Carrier Found Apparently Liable for More than $650,000 for Failure to Register and Obtain 214 Approval and Failure to Comply with USF Requirements

Continue reading "Telecommunications Update"

FCC Issues Procedures Relating to Delay of DTV Transition to June 12, 2009

Posted January 9, 2009

By Scott R. Flick and Christine A. Reilly

1/9/2009
Stations seeking to end analog operations on or before February 17, 2009 must file a NEW notice with the FCC not later than Monday, February 9, and air certain required viewer notifications.

Continue reading "FCC Issues Procedures Relating to Delay of DTV Transition to June 12, 2009"

2008 Fourth Quarter Issues/Programs List Advisory for Broadcast Stations

Posted January 6, 2009

By Richard R. Zaragoza and Christine A. Reilly

1/6/2009
The next Quarterly Issues/Programs List ("Quarterly List") must be placed in stations' local public inspection files by January 10, 2009, reflecting information for the months of October, November and December 2008. The FCC's action adopting the new program report Form 355, which is intended to replace the Quarterly Issues/Programs Lists for full-power and Class A television stations, will not have any effect on this fourth quarter public file requirement.

Continue reading "2008 Fourth Quarter Issues/Programs List Advisory for Broadcast Stations"

2008 Fourth Quarter FCC Form 388 DTV Quarterly Activity Station Report Advisory for Broadcast Stations

Posted January 6, 2009

By Richard R. Zaragoza and Christine A. Reilly

1/6/2009
The next FCC Form 388 DTV Quarterly Activity Station Report must be filed via CDBS and placed in stations' local public inspection files by January 10, 2009, reflecting information for the months of October, November and December 2008.

Continue reading "2008 Fourth Quarter FCC Form 388 DTV Quarterly Activity Station Report Advisory for Broadcast Stations"

2008 Fourth Quarter Children's Television Programming Documentation Advisory

Posted January 6, 2009

By Richard R. Zaragoza and Christine A. Reilly

1/6/2009
The next Children's Television Programming Report must be filed with the FCC and placed in stations' local Public Inspection Files by January 10, 2009, reflecting programming aired during the months of October, November and December 2008.

Continue reading "2008 Fourth Quarter Children's Television Programming Documentation Advisory"

Beginning January 5, 2009, the FCC Will Accept Applications for Fill-in Digital Television Translator Stations and Requests for Special Temporary Authority to Avoid Loss of Service in Connection With the Digital Transition

Posted January 4, 2009

By Richard R. Zaragoza

January 2009
On December 23, 2008, the Federal Communications Commission ("FCC") issued a Notice of Proposed Rulemaking ("NPRM") proposing creation of a new replacement digital television translator service. This service will permit full-power television stations to continue to provide service to viewers who have lost or will lose service as a result of a station's digital transition. In the NPRM, the FCC announced that it will begin accepting applications in the coming days, although processing of these applications will be withheld pending the outcome of the proceeding. In the interim, the FCC proposed that stations could request Special Temporary Authority ("STA") to operate replacement television translator facilities during the pendency of the rulemaking proceeding.

Continue reading "Beginning January 5, 2009, the FCC Will Accept Applications for Fill-in Digital Television Translator Stations and Requests for Special Temporary Authority to Avoid Loss of Service in Connection With the Digital Transition"