CommLawCenter

Posted January 5, 2012

By Scott R. Flick

Around this time last year, I wrote about developments to watch for in 2011 in a piece entitled "A Look Ahead at 2011 Reveals an Interesting Year for Retrans, Renewals, and Indecency". Fortunately for me, 2011 didn't disappoint (at least in that regard), with indecency now sitting before the U.S. Supreme Court (oral arguments coming next week), the flurry of retrans negotiations at the end of 2011 bringing a fundamental change in the nature of retrans negotiations that I hope to write about soon, and license renewals being a hot button issue for radio broadcasters in 2011 that will expand to television broadcasters in 2012.

This year, I've decided to expand my predictions to include well over 50 events that will affect broadcasters across the country in 2012, and to even go so far as to predict the exact dates on which each of these events will occur in 2012. So with that introduction, I present our 2012 Broadcasters' Calendar, chock full of useful information for broadcasters and those who work with them. No need to guess at FCC and other government deadlines anymore (which turns out to be a very bad way to achieve regulatory compliance), since you can now tell at a glance what deadlines are coming up for stations in your state and broadcast service.

Using the latest in aerospace materials and technology, and innovatively organized by date, the 2012 Broadcasters' Calendar is new and improved over our 2011 Broadcasters' Calendar, principally because it covers events coming up in 2012, as opposed to events that already happened last year (which, again, turns out to be not as useful in a calendar).

So if you are a broadcaster, please join me in greeting 2012 with confidence in your upcoming regulatory obligations, and the warm feeling that comes from knowing that (one more prediction!) 2012 will be a monster year for political advertising buys (see 2012 Broadcasters' Calendar - Nov. 6 - U.S. General Election).

Posted December 15, 2011

By Lauren Lynch Flick

At its October Open Meeting, the FCC announced that it was moving ahead on two proposals to "standardize" and "enhance" television stations' public reporting regarding the programming they air, and their business and operational practices. The first of those items to be released related to the Online Public Inspection File, which we report on in detail here and here. The Further Notice of Proposed Rulemaking in that proceeding has already been published in the Federal Register and the first round of comments in that proceeding are due on December 22, 2011.

The second item, which deals with the new disclosure form to replace television stations' current Quarterly Issues Programs Lists and the FCC's prior failed attempt to standardize and enhance station disclosures on FCC Form 355, has now appeared in the Federal Register. We discuss this proposed form in detail here. The publication of this item establishes the deadline for comments on the new form, which are due on January 17, 2012, with Reply Comments due on January 30, 2012.

The FCC has moved swiftly in getting these items published, thereby commencing the public input process on these proposals, and has indicated that they are a high priority at the Commission. Broadcasters' best opportunity to influence how these proposals take shape is now. As a result, stations should review the proposed form and our analysis of both it and the related Online Public File to understand the impact these new requirements could have on their operations.

We previously noted that the proposed form is highly duplicative of portions of the Online Public File proposal. Regardless of what information is collected, having to disclose it twice, in two different formats, is a burden on broadcasters that the FCC appears to have not acknowledged. In addition, the new form being put forth by the FCC for comment, far from merely standardizing the way programming information is disclosed, could well end up standardizing what programming is actually aired, intruding on licensee programming discretion.

Broadcasters that fail to participate in these proceedings do so at their own peril, as the resulting regulatory requirements could well be the proverbial lump of coal that TV broadcasters find in their stocking this year.

Posted November 22, 2011

By Lauren Lynch Flick

The FCC has announced the comment and reply comment deadlines for its recently-announced Further Notice of Proposed Rulemaking (FNPRM), which proposes to replace nearly all of a television station's paper public inspection file with a more expansive online file hosted by the FCC. Comments are due at the FCC by December 22, 2011, with Reply Comments due by January 6, 2012. In addition, the public can also submit comments to the Office of Management and Budget regarding the proposal's impact under the Paperwork Reduction Act by January 23, 2012.

This is an important proceeding as it involves far more than simply moving public files online. The goal of this proceeding, and the separate proceeding also commenced recently to replace television station Quarterly Issues Programs Lists with a new form (which we discussed here) is to create fully searchable databases of uniform information about broadcast stations and their programming that researchers, advocates and policy makers can cite in support of a particular regulatory theory, proposal, or complaint. Beyond the burden on TV stations in populating this database, broadcasters are justifiably leery of the long term impact on licensee discretion.

Historically, there has been a strong correlation between the FCC gathering information on the amount of programming being aired of a particular type, and demanding that more (or sometimes less) of it be aired in the future. Based upon this history, broadcasters can be forgiven if they feel a First Amendment chill down their collective spine when the FCC seeks more information about their programming decisions, and worse yet, declares that such information should be instantly available to anyone with an Internet connection.

As we have seen in the indecency context where the FCC has been buried by email complaints, some against stations that never actually aired the program at issue but which were incorrectly reported on the Internet as having aired it, making station information available by Internet risks drowning out the voices of local viewers and listeners with the shrill cries of distant agitators.

More to the point, given the power of the FCC over broadcasters' license renewals, and the stress and expense of defending against even baseless complaints at the FCC, the path of least resistance for a broadcaster is to succumb to the pressure and program in a way that makes the government happy. The government may try to exert this pressure subtly (usually not), but like water passing over a stone, it inexorably wears the broadcaster down. The details of the FNPRM provide an indication of how much regulatory water the FCC is proposing to send broadcasters' way.

In adopting these proposals as mere disclosure requirements, the FCC can implicitly denote what it considers to be a suspect program or practice without having to adopt a rule specifically prohibiting that particular program/practice and facing judicial scrutiny of the prohibition. Taken together, the online public file and program reporting proposals appear to be an exercise in "regulation by raised eyebrow," with the modern twist of enlisting the Internet community to crowdsource station monitoring and complaints to ensure adequate pressure on broadcasters to get with the program.

Broadcasters as a whole recognize, and are dedicated to, meeting the needs of their local community. The FNPRM's suggestion that they should also meet the needs of the global Internet community merely distracts from that fundamental mission. The reason public inspection files are so rarely visited by the public is that local viewers and listeners are already very knowledgeable about their local stations' service to their community. All they have to do is turn on their TV or radio to find out more. They have traditionally shown little need for, or interest in, the public file.

Contributing to that disinterest is the anachronistic nature of the file itself. For example, what is the utility of a contour map to the average viewer/listener when TV stations are carried throughout the DMA by cable, satellite, translators and boosters, and radio stations are streamed throughout their market and beyond? While a good case could be made for scaling back the public file rule, the FNPRM's effort to sprint in the opposite direction is difficult to fathom, particularly given how strained station resources already are in the current economy.

All television broadcasters (and frankly, radio broadcasters with an eye to the future) should carefully consider how the changes proposed in the FNPRM would affect their ability to function and serve their communities, and ensure that they let the FCC know just what that impact would be.

Posted November 22, 2011

By Lauren Lynch Flick and Paul A. Cicelski

All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 by December 1, 2011.

The FCC requires all digital television stations, including all commercial and noncommercial educational full power television stations, digital low power television stations, digital translator television stations, and digital Class A television stations, to submit FCC Form 317 each year. The report details whether stations provided ancillary or supplemental services at any time during the twelve-month period ending on the preceding September 30. It is important to note that the FCC Form 317 must be submitted regardless of whether stations offered any such services. FCC Form 317 must be filed electronically, absent a waiver, and is due on December 1, 2011.

Ancillary or supplementary services are all services provided on the portion of a station's digital spectrum that is not necessary to provide the required single free, over-the-air signal to viewers. Any video broadcast service that is provided with 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."

If a station provided ancillary or supplementary services during the 12-month time period ending on September 30, 2011, it must pay the FCC 5% of the gross revenues derived from the provision of those services. This payment can be forwarded to the FCC's lockbox at the U.S. Bank in St. Louis, Missouri and must be accompanied by FCC Form 159, the Remittance Advice. Alternatively, the fee can be paid electronically using a credit card on the FCC's website. The fee amount must also be submitted by the December 1, 2011 due date.

Posted November 14, 2011

By Lauren Lynch Flick

As promised at its last Open Meeting, the FCC has released a Notice of Inquiry focused on replacing television stations' Quarterly Issues/Programs Lists with an online, standardized and searchable programming disclosure form. The effort seeks, depending on your point of view, to reform or to reinstate the failed FCC Form 355 that the FCC adopted in 2007, but which never went into use because of numerous legal challenges attacking the form's onerous reporting requirements and overt programming mandates.

While the FCC claims that it is starting anew, as opposed to merely revising the old Form 355, it is not starting from scratch. Instead, the FCC punts on crafting a new form and asks whether the form that the Public Interest, Public Airwaves Coalition ("PIPAC") has presented to the FCC will do the trick. That form would collect information regarding a television station's programming in the following categories:

• Local News: "programming that is locally produced and reports on issues about, or pertaining to, a licensee's community of license";
• Local Civic/Governmental Affairs: "broadcasts of interviews with or statements by elected or appointed officials and relevant policy experts on issues of importance to the community, government meetings, legislative sessions, conferences featuring elected officials, and substantive discussions of civic issues of interest to local communities or groups";
• Local Electoral Affairs: "candidate-centered discourse focusing on the local, state and United States Congressional races for offices to be elected by a constituency within the licensee's broadcast area";
• Closed Captioning and Video Description: whether programming reported on the form is captioned and what type of captioning is used, as well as ALL programming that is not captioned and the basis for its exemption; and
• Emergency Accessibility Complaints: the number of complaints a station receives during the reporting period that its emergency programming is not accessible to those with disabilities.

The FCC asks for comment on a wide range of issues relating to these categories, such as whether broadcasters should report on individual segments within programs or only on entire programs, what constitutes a segment, and whether any additional categories should be added. The FCC also asks "what is an issue?," which of course goes to the very heart of a licensee's First Amendment discretion to determine what qualifies as suitable programming for its audience. It was the government's concern about stepping on broadcasters' First Amendment rights in the first place that led to the adoption of the more flexible Quarterly Issues/Programs List the FCC now seeks to replace.

As a replacement for the Quarterly Issues/Programs List, PIPAC is urging the FCC to randomly select dates during each quarter, and then require broadcasters to compile information regarding the programming aired in the above categories on those dates. As a practical matter, however, this would encourage broadcasters to focus their resources on small and numerous news stories over major investigative efforts, since a station that airs fewer but more complex and thoroughly investigated news stories runs the risk of getting no FCC credit if such stories don't happen to fall on one of the "sample" days chosen by the FCC.

With respect to local election coverage, PIPAC proposes that broadcasters report all such programming aired during the lowest unit rate window (45 days before a primary and 60 days before a general election). Alternatively, the FCC asks whether it should use a composite week or two actual weeks as the appropriate reporting period and how it should give notice to broadcasters of its random selections. One proposal -- that the FCC notify broadcasters within a day or two of the date it randomly chooses -- would have the FCC perpetually announcing dates for which broadcasters must preserve information about election programming aired.

Despite the FCC proposing that the online disclosure form be kept as part of a television station's new online public inspection file, the PIPAC form requests a great deal of information that would be entirely duplicative of that public file. This includes having a link to the online public inspection file (in which the reporting form would be found in the first place), as well as links to the station's most recent ownership report and children's television programming report (each of which the FCC has proposed to include as part of the online public file), station contact information (which the FCC has already proposed be kept as part of the online public file), information about whether reported programs aired as part of a local marketing or other agreement or required sponsorship identification information (which information is already included in the online public file proposal), as well as such basic information as whether the station is commercial or noncommercial, the DMA in which it is located, and its network affiliation.

PIPAC created its form before the FCC released the proposal for a new online public file, and it is readily apparent that the PIPAC form is in many ways redundant with the FCC's proposal. Oddly, however, the FCC seems to be considering the PIPAC form as a complement to an online public file, rather than as merely a duplicative addition to that file. As we noted earlier, there is a worrisome undercurrent in these proceedings that the FCC's focus is on facilitating the efforts of distant policy advocates and academicians to hold a broadcaster "accountable" for its programming choices rather than on ensuring that stations serve the needs of their local audiences.

Organizations that have to be told online what a station's affiliation or television market is, or whether it operates commercially or noncommercially, obviously are in a poor position to know the needs and interests of that station's local community, much less whether the station is meeting those needs and interests. Instead, these proposed requirements seem aimed at merely providing a mechanism for pressuring stations to air more of a particular type of programming favored by the government or by a distant advocacy group. As Commissioner McDowell pointed out today in his concurring statement, it appears that stations' local communities will benefit little from these proposed new requirements.

Posted August 24, 2011

By Paul A. Cicelski

In 2009, the FCC adopted an Order which expanded the types of commercial broadcast licensees required to file ownership reports on FCC Form 323 biennially. The FCC also established November 1 (of odd-numbered years) as the single national ownership report filing date for all commercial broadcast stations. As a result, all commercial full-power AM, FM, TV, and Class A and LPTV stations, as well as entities with attributable interests in those stations, were due to file their next biennial ownership reports on November 1 of this year. However, the Media Bureau issued an Order yesterday which moves the November 1, 2011 filing deadline to December 1, 2011. The FCC indicates that despite the change in filing date, the ownership reports should still include a snapshot of station ownership as it existed on October 1, 2011.

Keep in mind that the ownership report filing requirement does not apply to TV translators, FM translators, or low power FM stations. The FCC's action also does not affect noncommercial stations, which continue to file their biennial reports on FCC Form 323-E by a filing deadline determined based upon the state in which they are licensed (rather than a single national date).

According to the FCC, the filing date was moved because "some licensees and parent entities of multiple stations may be required to file numerous forms and the extra
time is intended to permit adequate time to prepare such filings." Despite providing the extra time, the FCC is still encouraging parties to prepare and file their ownership reports as soon as possible.

Having provided the extra filing time, the FCC will not be too pleased with broadcasters that fail to meet this new deadline. Broadcasters should therefore accept the FCC's advice and try to avoid last minute ownership filings, which increase the likelihood of technical and other problems that can interfere with a successful filing.

Posted August 22, 2011

By Scott R. Flick

The FCC this morning announced a "temporary" freeze on the filing and processing of applications for full power and low power television stations on Channel 51. The freeze was announced in response to a petition filed in March by CTIA - the Wireless Association and the Rural Cellular Association asking the FCC to take steps to "prevent further interference caused by TV broadcast stations on channel 51" to wireless broadband services in the Lower 700 MHz A Block. More specifically, the petition urged the FCC to "(1) revise its rules to prohibit future licensing of TV broadcast stations on channel 51, (2) implement freezes, effective immediately, on the acceptance, processing and grant of applications for new or modified broadcast facilities seeking to operate on channel 51, and (3) accelerate clearance of channel 51 where incumbent channel 51 broadcasters reach voluntary agreements to relocate to an alternate channel."

What is odd about the FCC's announcement, however, is that freezes are normally implemented to "lock down" the engineering database to permit the FCC to analyze various engineering solutions using a stable database. For example, during the DTV transition, the FCC issued numerous freezes as it attempted to engineer a DTV channel plan that would allow each full power station both a digital and an analog channel to operate during the transition. That task would have been much harder if the database had kept changing during that time.

Here, however, the FCC is not freezing Channel 51 applications to give it time to resolve a Channel 51 engineering issue. Instead, it is freezing Channel 51 applications to ostensibly give it time to determine whether to freeze Channel 51 applications. That is a novel use for a freeze, and seems to prejudge the ultimate question of whether the FCC should grant the underlying petition.

Of particular interest is the fact that today's notice goes farther than just a freeze, as it "(1) announces a general freeze, effectively [sic] immediately, on the filing of new applications on channel 51 and the processing of pending applications on channel 51; (2) lifts the existing freeze as applied to, and will accept, petitions for rulemaking filed by full power television stations seeking to relocate from channel 51 pursuant to a voluntary relocation agreement; and (3) opens a 60-day window for parties with pending low power television station applications on channel 51 to amend their applications to request a voluntary channel assignment."

Typically, when the FCC issues a freeze, it is only on the filing of new applications. As a matter of fairness, the FCC will normally process applications already on file when a freeze is announced since such an applicant has already expended its resources to file an application that was fully grantable before the freeze was announced. That makes this freeze unusual, as it freezes even pending applications, and in doing so, pretty much "temporarily" grants the wireless industry's petition.

That last aspect is particularly odd. In contrast to a freeze designed to "lock in" the current engineering situation while options are assessed, the freeze notice does the opposite, specifically encouraging Channel 51 applicants and licensees to amend their applications and modify their facilities to change the current Channel 51 engineering terrain. In other words, it is a freeze that is not designed to lock in the current situation, but to actively change the current situation.

If it wasn't already clear where the FCC is heading, establishing a 60-day "window" for low power applicants to clear off of Channel 51 in response to only a "temporary" freeze would make no sense if the FCC didn't intend the freeze to be permanent. A low power station that fails to file a displacement application during those 60 days could well be deprived of a subsequent opportunity to amend when the FCC adopts a permanent Channel 51 freeze. Otherwise, there would be no point in limiting such applications to a 60-day window. In that regard, the assertion in the freeze notice that the FCC's action is purely procedural and therefore "not subject to the notice and comment and effective date requirements of the Administrative Procedure Act" will be of little comfort to the low power applicant who waits to see what "permanent" action the FCC takes in this proceeding.

While the freeze does leave the FCC staff some wiggle room to grant waivers for modification applications by existing Channel 51 stations where necessary to maintain service to the public (thank you Media Bureau!), it is apparent that the FCC has decided to begin winding down use of Channel 51, even though the wireless entities that bid on the adjacent spectrum knew that they were subject to interference from Channel 51 stations when they bought it.

Broadcasters not affected by this freeze should derive little comfort from that fact. The FCC has made clear its desire to recover 120 MHz of contiguous broadcast spectrum, which means that all channels higher than 30 would disappear. This Channel 51 freeze merely establishes the template for those future FCC actions, and soon the bell could be tolling for far more than just Channel 51.

Posted August 16, 2011

By Richard R. Zaragoza and Christine A. Reilly

8/15/2011

The FCC has announced that full payment of all applicable Regulatory Fees for Fiscal Year 2011 must be received no later than September 14, 2011.

As of this date, the FCC has not released a Public Notice officially announcing the deadline for payment of FY 2011 annual regulatory fees. However, the FCC's website indicates that the 2011 annual regulatory fees must be paid no later than 11:59 pm (EST) on September 14, 2011.

As reported in July 2010, beginning in 2011, the Commission has discontinued mailing assessment notices to licensees/permittees. It is the responsibility of each licensee/permittee to determine what fees are due and to pay them in full by the deadline. Information pertaining to the annual regulatory fees is available online at http://transition.fcc.gov/fees/regfees.html.

Annual regulatory fees are owed for most FCC authorizations held as of October 1, 2010 by any licensee or permittee which is not otherwise exempt from the payment of such fees. Licensees and permittees may review assessed fees using the FCC's Media Look-Up website - http://www.fccfees.com. Certain entities are exempt from payment of regulatory fees, including, for example, governmental and non-profit entities. Section 1.1162 of the FCC's Rules provides guidance on annual regulatory fee exemptions. Broadcast licensees that believe they qualify for an exemption may refer to the FCC's Media Look-Up website for instructions on submitting a Fee-Exempt Status Claim.

Continue reading "Client Alert: FCC Sets September 14, 2011 as the Deadline for Payment of FY 2011 Annual Regulatory Fees"

Posted August 2, 2011

By Paul A. Cicelski

As we reported previously, in an atypical display of unity among broadcasters and the cable industry, the parties found common ground and filed a Petition with the FCC seeking to extend the deadline for implementing the Common Alerting Protocol (CAP) standard.

Last week, that unified front continued when we filed a further extension request with the FCC on behalf of an even greater assembly of EAS Participants, including the State Broadcasters Associations, representing all fifty States and the District of Columbia, the National Association of Broadcasters, the Broadcast Warning Working Group, the National Cable and Telecommunications Association, the American Cable Association, National Public Radio, the Association of Public Television Stations, and the Public Broadcasting Service. The Petition asks the FCC to grant a further extension of at least 180 days beyond the current September 30, 2011 CAP compliance deadline, with the 180 days to run from the effective date of the Commission's amendment of its Part 11 rules pursuant to its recently released Third Further Notice of Proposed Rulemaking. (Our discussion of the Third Further Notice can be found here).

In granting the earlier request for an extension of the CAP deadline, the FCC acknowledged that if it failed to extend the 180-day deadline, it could "lead to an unduly rushed, expensive, and likely incomplete process." As a result, the Commission issued its Order giving EAS Participants until September 30, 2011, to acquire and install equipment able to accept CAP-formatted EAS messages.

In their Petition seeking a further extension of the CAP deadline, the broadcast and cable industries assert that a later deadline is warranted given the regulatory uncertainty that remains regarding CAP compliance. The Petition notes the nearly unanimous view of those who commented on the Third Further Notice that the deadline should be further extended because the FCC has not yet decided whether it will itself conduct EAS equipment certification in addition to the certification being done by FEMA. The Petition also notes that the Third Further Notice may lead to Part 11 rule changes altering the current obligations of EAS Participants in ways that would affect the purchase, installation and operation of new EAS equipment.

The Petition also states that a further extension will allow participants in the scheduled November 9, 2011, National EAS Test to focus their limited engineering resources on ensuring the success of the nationwide test. (We previously reported on the first National EAS Test here and here).

It remains to be seen whether a further extension will be granted, but if the Petition and the majority of comments recently filed in response to the FCC's Third Further Notice in the EAS proceeding are any indication, EAS Participants -- including broadcasters, cable operators and many others -- feel strongly that a further extension of the deadline is essential.

Posted July 26, 2011

By Lauren Lynch Flick

The FCC has released a Report and Order which includes its final determinations as to how much each broadcast licensee will have to pay in Annual Regulatory Fees for fiscal year 2011 (FY2011). The FCC collects Annual Regulatory Fees to offset the cost of its non-application processing functions, such as its rulemaking function.

Each year, the FCC issues a Notice of Proposed Rulemaking setting forth the amounts it proposes to assess each type of license. After taking comments, the FCC releases the final amounts due for that year. It is common for the FCC to adopt its proposed fees without revision, although last year, the FCC significantly increased the fees on Commercial UHF Television Stations and erased promised reductions for radio stations. In contrast, this year, the FCC adopted the fees almost entirely as it had proposed them in the Notice of Proposed Rulemaking put out in May.

Nevertheless, for FY2011, Commercial UHF Television Station fees again increased across the board from the amounts those stations paid in FY2010. Commercial VHF Television Station fees for those stations outside the top 25 markets decreased across the board. In addition, satellite television stations and LPTV, Class A television, TV Translator, TV Booster, FM Translator and FM Booster stations all had their fee amounts reduced from their FY2010 levels. The fees for most categories of radio stations increased modestly. A chart reflecting the fees for the various types of licenses affecting broadcast stations is attached here.

The FCC will release an additional Public Notice announcing the dates of the filing window for the fees and other details; however, it will accept payment beginning immediately. The FCC will not mail the hard copy assessments it has sent to broadcast stations in the past. Therefore, stations must be prepared to file and pay their fees without a specific reminder from the FCC.

As has been the case for the past few years, stations must make an online filing using the FCC's Fee Filer system to report to the FCC the types and amounts of fees they are obligated to pay. Once they have done that, they can pay their fees electronically or by separately submitting payment to the FCC's Lockbox.

Finally, the FCC reiterated its committment to opening a Further Notice of Proposed Rulemaking before the end of 2011 to examine whether it should revise the manner in which it allocates the fee burden among the different industries it regulates, as well as to account for new sectors that have arisen since it first started collecting Annual Regulatory Fees in 1994. Commercial VHF Television Station licensees have previously complained that the FCC assigns too much of the Annual Regulatory Fee burden for media services to VHF stations. Licensees in other services have also objected to the manner in which their fees are calculated. Stations wishing to comment on the rebalancing of the fee obligations will have an opportunity to file Comments once the Further Notice of Proposed Rulemaking is released.

Posted July 21, 2011

By Lauren Lynch Flick

Every year, television stations whose signals were carried outside of their markets by a cable or satellite television provider during the prior year have the opportunity to obtain copyright royalties for that carriage. However, the claims process contains many rigid requirements. One is that claims must be filed no later than 5:00 pm in Washington, DC on July 31. Since July 31 is a Sunday this year, stations get one additional day, until 5:00 pm on August 1, 2011, to file (4:00 pm for courier-delivered claims).

Stations that aired locally produced programming in 2010 and were carried on cable systems located outside of their DMAs or were delivered to subscribers for home viewing outside of their DMAs by a satellite carrier should review the requirements for eligibility and submission of their claim. If a station's claim is not filed using an approved method, including the specific addresses for mail and hand deliveries, or if the claim is not filed by the deadline, the station will not be able to seek any copyright royalties for its programming carried out of market in 2010. Stations that successfully file their claims will be asked at a later date to provide additional information to establish the amount of reimbursement to which they may be entitled.

The firm's Advisory on making copyright royalty claims can be found here, and provides additional information for stations interested in pursuing a claim.

Posted July 15, 2011

By Scott R. Flick and Lauren Lynch Flick

If you have an LPTV station operating on a channel higher than 51, you have until September 1 of this year to file an application to change to digital operation on channel 51 or below. Failure to file an application by that deadline means the station's authority to operate will terminate on December 31 of this year, which is the deadline announced late today by the FCC for ending all LPTV operations on channels 52-69.

By establishing this rapid deadline for moving LPTV stations out of channels 52-69, the FCC is seeking to clear the way for the immediate use of that spectrum by wireless operators and public safety systems. Stations that are unable to locate a workable channel below channel 52 and get a modification application on file in the next six weeks will have to shutter their operations by the end of this year.

In the order released today, the FCC also established a hard date of September 1, 2015 for all analog LPTV broadcasting to cease, regardless of channel. The FCC stated that setting the date some four years in advance will allow low power operators ample time to plan for the transition and prepare for the impact of the National Broadband Plan on spectrum availability.

Continue reading "FCC Announces Deadlines for Ending All Analog and Channel 52-69 LPTV Operations"

Posted June 30, 2011

By Scott R. Flick and Christine A. Reilly

Pillsbury's communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month's issue includes:

• FCC Fines FM Broadcaster an Extra $5,000 For Inaction


• Inaccurate Tower Ownership Information Ends in $3,000 Fine

In its response to the LOI, the FM broadcaster admitted that the quarterly issues/programs lists were unavailable on the day of the inspection. The FM broadcaster indicated that it was evident "a person or persons had gone through the file and that some of the items had been removed" and was "committed" to bringing the station's public inspection file into compliance.

Continue reading "FCC Enforcement Monitor"

Posted May 19, 2011

By Lauren Lynch Flick

During the last license renewal cycle, the FCC handed out an unprecedented number of fines to broadcasters who failed to file their license renewal applications on time. In some cases, a station only learned of its failure to file because the FCC sent it a letter notifying it that the FCC had deleted the station's call sign from the official records and that the station's operating authority had been terminated. For a broadcaster, that can ruin your whole day.

Such letters usually lead to an immediate call to the station's counsel to try and fix the problem before the station's business, goodwill, and call sign are lost permanently. The associated fines and legal costs to try to resuscitate the station's license provide further incentive to avoid placing yourself in this situation. Because of this, it is no wonder that some broadcasters are anxious to get their license renewal applications on file well in advance of their filing deadline.

There is, however, such as thing as being too early. The FCC has already returned at least four license renewal applications because they were filed too early. Some were radio broadcasters whose stations are licensed to communities in DC, Maryland, Virginia or West Virginia. They are required to file their applications by June 1st, and are the first to use the new version of the renewal form, which the FCC announced it would begin accepting on May 2. At least one of these stations has already refiled its application, this time waiting for the May 2nd official opening of renewal season.

These stations are not alone, however, with numerous other broadcasters also having filed prematurely. Among these early filers are low power television stations whose renewal applications are not due for a year or more from now. Because many FCC compliance obligations are connected to a station's license renewal cycle, a station that is off on its renewal filing date by such a margin that its application is filed in the wrong year likely has numerous other FCC issues that need to be examined and addressed.

Compounding the danger is the FCC database's admonition that it does not generate an automatic dismissal letter notifying the applicant that its renewal application has been dismissed. As a result, these early filers may believe they have discharged their license renewal filing obligations only to later find out that their authority to operate has been terminated.

The window within which a station can file a compliant license renewal application is actually quite small. For most stations in the full power services, as well as LPFM stations, the FCC's rules require that four pre-filing announcements be aired on specific dates and in specific time periods alerting the public that the station will be filing a license renewal application. Once the application is filed, six more announcements must air noting that the application has been filed, again on a prescribed time schedule. Because the last of the pre-filing announcements must air on the 16th (with the license renewal application due on the 1st of the following month), stations that file before that date will be airing an inaccurate public notice. In addition, the EEO portion of the license renewal application, which is submitted separately using FCC Form 396, requires that all but the smallest stations attach their two most recent annual EEO Public Inspection File reports to the filing. However, the FCC's EEO rule requires that each annual report cover a time period ending no earlier than 10 days before the anniversary of that station's license renewal filing deadline. A station can't comply with that requirement if it files its renewal materials before that 10 day period commences.

Therefore, while May 2nd, 2011 has now passed and renewal season has officially begun, stations filing more than a week or two before their license renewal application deadline are likely creating a potential problem for themselves. This goes double for the 396 EEO form. So far in 2011, more than 70 of these forms have been filed at the FCC by stations whose licenses are nowhere near ready for a license renewal review. To avoid this, stations need to familiarize themselves with the license renewal filing and notice dates applicable to them, and not simply mimic what stations in other states or services are doing.

To give that effort a little boost, you can look at our latest post regarding license renewals, which addresses the upcoming license renewal compliance deadlines (beginning June 1) for radio stations in North Carolina and South Carolina. If you are not a radio station licensee in North or South Carolina, don't worry, your time is coming. When it does, make sure you are ready early; just not too early.

Posted March 31, 2011

By Paul A. Cicelski and Lauren Lynch Flick

Last Fall, the FCC adopted final rules allowing Part 15 unlicensed Television Band Devices (TVBDs) to operate in "white spaces", the slivers of unused spectrum in the television band. To find available slivers of spectrum, the TVBDs will consult a database that is intended to contain information about every use being made of TV spectrum throughout the United States. However, certain users of television spectrum have only until April 5, 2011, to ask the FCC to grant a waiver in order to be included in the interference protection database or risk debilitating interference.

Any facility, including a cable headend, satellite receive facility, TV translator, Class A television station, low power television station or broadcast auxiliary station, that picks up an over-the-air broadcast signal at a point located more than 80 kilometers outside the originating station's protected contour must file a waiver request with the FCC by April 5, 2011 seeking to have that use included in the white spaces database and protected from interference.

At a later date, the FCC will allow users to register without a waiver those receive sites that are located within the 80 kilometer zone (but outside the station's protected contour) for interference protection. They cannot do so now because the database is still being developed. In the meantime, waiver requests for locations located outside of the 80 kilometer zone must be filed now and should include the coordinates of the receive site, the call sign of the originating station received over-the-air, and an indication of how potential white space devices would disrupt existing service. According to the FCC, it will accept public comment on waiver requests prior to making a decision on whether or not to grant them.

As a result, any cable headend that has built a tower with a directional receive antenna to pick up particularly distant television station signals, or any broadcaster or TV translator that uses over-the-air signals or a UHF microwave backbone to connect a series of translator facilities, will be prevented from registering such sites outside the 80 kilometer zone unless they seek a waiver by the April 5 deadline. Unintended interference to a cable system's ability to receive a television station's signal could result in the television station being dropped from the cable system. Interference to a single link in a long microwave backbone could interrupt signal delivery to all sites further down the line.

While the 80 kilometer "no waiver" zone may seem large, one multiple system cable operator has already filed a waiver request with the FCC indicating that it has headends receiving over-the-air television signals outside that zone in eleven different locations spread across multiple states, including Alabama, Arizona, Illinois, Iowa, Michigan and Minnesota. Thus, if a station is being carried by a far off cable or satellite system, it would be wise for cable and satellite operators as well as TV licensees to double check how and where the TV station's signal is being received. For TV signals being picked up over-the-air more than 80 kilometers from their protected contour, a waiver request now will be required to ensure continued interference-free signal delivery.

Although receive sites located within the 80 kilometer zone do not face the April 5, 2011 waiver deadline, they will still be affected by the implementation of the white spaces database. Because the data that will be used to populate the database will be taken from the FCC's existing records, it is important that parties review the data in the FCC's databases to make sure it is accurate to avoid potential interference from future white space operations.

In January, the FCC's Office of Engineering and Technology (OET) conditionally designated nine companies as white-space device database administrators: Comsearch, Frequency Finder Inc., Google Inc., KB Enterprises LLC/LS Telcom, Key Bridge Global LLC, Neustar Inc., Spectrum Bridge Inc., Telcordia Technologies, and WSdb LLC. The FCC held a training session for these entities earlier this month. Thus, the rollout of these databases will soon be at hand. OET recently stated that it intends to "exercise strong oversight of the TV bands databases and administrators." That said, parties should still exercise their own diligence in reviewing the FCC's databases, registering receive sites, and applying for any needed waivers if they want to avoid interference problems down the road.