Noncommercial Operation Category

Biennial Ownership Reports are due by August 1, 2014 for Noncommercial Radio Stations in Illinois and Wisconsin and Noncommercial Television Stations in California, North Carolina, and South Carolina

Scott R. Flick Lauren Lynch Flick

Posted August 1, 2014

By Lauren Lynch Flick and Scott R. Flick

July 2014
The staggered deadlines for noncommercial radio and television stations to file Biennial Ownership Reports remain in effect and are tied to each station's respective license renewal filing deadline.

Noncommercial radio stations licensed to communities in Illinois and Wisconsin and noncommercial television stations licensed to communities in California, North Carolina, and South Carolina must electronically file their Biennial Ownership Reports by August 1, 2014. Licensees must file using FCC Form 323-E and must also place the form as filed in their stations' public inspection files. Television stations must assure that a copy of the form is posted to their online public inspection files at https://stations.fcc.gov.

In 2009, the FCC issued a Further Notice of Proposed Rulemaking seeking comments on whether the Commission should adopt a single national filing deadline for all noncommercial radio and television broadcast stations like the one that the FCC established for all commercial radio and television stations. In January 2013, the FCC renewed that inquiry. Until a decision is reached, noncommercial radio and television stations continue to be required to file their biennial ownership reports every two years by the anniversary date of the station's license renewal application filing deadline.

A PDF version of this article can be found at Biennial Ownership Reports are due by August 1, 2014 for Noncommercial Radio Stations in Illinois and Wisconsin and Noncommercial Television Stations in California, North Carolina, and South Carolina.


FCC Form 323-E Biennial Ownership Report Due

Posted April 1, 2014

Noncommercial radio stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, or Tennessee and noncommercial television stations licensed to communities in Texas (other than sole proprietorships or partnerships composed entirely of natural persons) must electronically file by this date their biennial ownership reports on FCC Form 323-E, unless they have consolidated this filing date with that of other commonly owned stations licensed to communities in other states. FCC Form 323-E does not require a filing fee. The form as filed must be placed in stations' public inspection files.


Copyright Royalty Fee: Monthly Usage Statement of Account Form Due

Posted March 17, 2014

Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending January 31, 2014.


Copyright Royalty Fee: Monthly Usage Statement of Account Form and Quarterly Report of Use Form Due

Posted February 14, 2014

Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending December 31, 2013.


FCC Form 323-E Biennial Ownership Report Due

Posted February 1, 2014

Noncommercial radio stations licensed to communities in Arkansas, Louisiana, Mississippi, New Jersey, and New York, and noncommercial television stations licensed to communities in Kansas, Nebraska, and Oklahoma (other than sole proprietorships or partnerships composed entirely of natural persons) must electronically file by this date their biennial ownership reports on FCC Form 323-E, unless they have consolidated this filing date with that of other commonly owned stations licensed to communities in other states. FCC Form 323-E does not require a filing fee. The form as filed must be placed in stations' public inspection files. Note that since this filing deadline falls on a weekend, the submission of this item to the FCC may be made on February 3.


Copyright Royalty Fee: Annual Minimum Fee Statement of Account Form Due

Posted January 31, 2014

By this date, most commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must submit the Minimum Fee Statement of Account Form and the annual copyright royalty fee to SoundExchange. January 31 is also the date by which certain webcasters and simulcasters are eligible to make elections affecting their royalty rates and reporting requirements for the upcoming year. If your radio broadcast station is simulcast or rebroadcast over the Internet, we encourage you to consult qualified counsel with regard to your obligations.


Copyright Royalty Fee: Monthly Report of Use and Monthly Usage Statement of Account Forms Due

Posted January 14, 2014

Commercial and noncommercial webcasters and online simulcasters must file Monthly Report of Use and Monthly Usage Statement of Account forms for the month ending November 30, 2013.


FCC Enforcement Monitor

Scott R. Flick Paul A. Cicelski

Posted March 29, 2013

By Scott R. Flick and Paul A. Cicelski

March 2013

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:

  • Delay in Providing Access to Public Inspection File Leads to Fine
  • FCC Fines Broadcaster for Antenna Tower Fencing, EAS and Public Inspection File Violations
Radio Station Fined $10,000 for Not Providing Immediate Access to Public File

This month, the Enforcement Bureau of the FCC issued a Notice of Apparent Liability for Forfeiture and Order ("NAL") in the amount of $10,000 against a Texas noncommercial broadcaster for failing to promptly make its public inspection file available. For the delay of a few hours, the Commission proposed a fine of $10,000 and reminded the licensee that stations must make their public inspection file available for inspection at any time during regular business hours and that a simple request to review the public file is all it takes to mandate access.

According to the NAL, an individual from a competitor arrived at the station at approximately 10:45 a.m. and asked to review the station public inspection file. Station personnel informed the individual that the General Manager could give him access to the public files, but that the General Manager would not arrive at the station until "after noon." The individual returned to the studio at 12:30 p.m.; however, the General Manager had still not arrived at the studio. According to the visiting individual, the receptionist repeatedly asked him if he "was with the FCC." Ultimately, the receptionist was able to reach the General Manager by phone, and the parties do not dispute that at that time, the individual asked to see the public file. During that call, the General Manager told the receptionist to give the visitor access to the file. According to the visitor, when the General Manager finally arrived, he too asked if the individual was from the FCC, and then proceeded to monitor the individual's review of the public file.

After the station visit, the competitor filed a Complaint with the FCC alleging that the station public files were incomplete and that the station improperly denied access to the public inspection files. The FCC then issued a Letter of Inquiry to the station, requesting that the station respond to the allegations and to provide additional information. The station denied that any items were missing from the public file and also denied that it failed to provide access to the files.

Continue reading "FCC Enforcement Monitor"


Copyright Royalty Fee: Monthly Usage Statement of Account Form and Quarterly Report of Use Form Due

Posted February 14, 2013

Commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must by this date submit the Monthly Report of Use and Monthly Usage Statement of Account forms to SoundExchange for the month ending December 31, 2012.


FCC Form 323-E Biennial Ownership Report Due

Posted February 1, 2013

Noncommercial radio stations licensed to communities in Kansas, Nebraska or Oklahoma, and noncommercial television stations licensed to communities in Arkansas, Louisiana, Mississippi, New Jersey or New York (other than sole proprietorships or partnerships composed entirely of natural persons) must electronically file by this date their biennial ownership reports on FCC Form 323-E, unless they have consolidated this filing date with that of other commonly owned stations licensed to communities in other states. FCC Form 323-E does not require a filing fee. The form as filed must be placed in stations' public inspection files.


Copyright Royalty Fee: Annual Minimum Fee Statement of Account Form Due

Posted January 31, 2013

By this date, most commercial and noncommercial webcasters and those simulcasting radio programming over the Internet must submit the Minimum Fee Statement of Account Form and the annual $500 copyright royalty fee to SoundExchange. January 31 is also the date by which certain webcasters and simulcasters are eligible to make elections affecting their royalty rates and reporting requirements for the upcoming year. If your radio broadcast station is simulcast or rebroadcast over the Internet, we encourage you to consult qualified counsel with regard to your obligations.


Copyright Royalty Fee: Monthly Report of Use and Monthly Usage Statement of Account Forms Due

Posted January 14, 2013

Commercial and noncommercial webcasters and online simulcasters must file Monthly Report of Use and Monthly Usage Statement of Account forms for the month ending November 30, 2012.


FCC Enforcement Monitor

Scott R. Flick

Posted May 31, 2012

By Scott R. Flick and Lauren A. Birzon

May 2012
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 Noncommercial Educational Station $12,500 for Ads
  • Public Inspection File Violations Lead to Three Short Term License Renewals
  • Main Studio Violations and Unauthorized Operations Garner $21,500 Fine

Noncommercial Educational Station Airs Expensive Ads
A recent fine against a noncommercial educational station serves as a warning to noncommercial licensees to be mindful of on-air acknowledgements and advertisements. In concluding a preceding that began in 2006, the FCC issued a $12,500 fine against a California noncommercial FM licensee for airing commercial advertisements in violation of the FCC's rules and underwriting laws.

In August 2006, agents from the Enforcement Bureau inspected the station and recorded a segment of the station's programming. During the inspection, the agent determined that the recorded programming included commercial advertisements on behalf of for-profit entities. In January 2007, the Bureau issued an initial Letter of Inquiry ("LOI") regarding the station's commercial advertisements and additional technical violations. At the same time, the Bureau referred the matter to the Investigations and Hearings Division for additional investigation. The Division issued additional LOIs in 2008 and 2009, to which the licensee responded three times. In its responses, the licensee admitted to airing four commercial announcements over 2,000 times in total throughout an eight-month period in 2006. It also acknowledged that it had executed contracts with for-profit entities to broadcast the announcements in exchange for monetary payment.

According to Section 399(b) of the Communications Act and the FCC's Rules, noncommercial educational stations are not permitted to broadcast advertisements, which are defined as program material that is intended to promote a service, facility, or product of a for-profit entity in exchange for remuneration. Noncommercial stations may air acknowledgments for entities that contribute funds to the station, but the acknowledgments must be made for identification purposes only. Specifically, such acknowledgments should not promote a contributor's products or services and may not contain comparative or qualitative statements, price information, calls to action, or inducements to buy or sell. In addition to these rules, the FCC requires that licensees exercise "good faith" judgment in airing material that serves only to identify a station contributor, rather than to promote that contributor.

In this case, the FCC determined that the materials aired were prohibited advertisements because they favorably distinguished the contributors from their competitors, described the contributors with comparative or qualitative references, and included statements intended to entice customers to visit the contributors' businesses. As a result, the FCC proposed a $12,500 fine in June 2010.

In response, the licensee argued that the FCC should reduce or cancel the fine because (1) the announcements complied with the FCC's Rules and "good faith" precedent, (2) the announcements did not contain a "call to action," and (3) the FCC had not previously prohibited the language used in the announcements. The licensee also claimed that the investigation of the station was improper because the FCC had previously indicated it would not monitor stations for underwriting violations, but would respond solely to complaints.

The FCC refused to cancel or reduce the fine, finding that both the fine and the investigation were warranted given the licensee's violations. In its Order, the FCC defended its determination that the materials aired by the station were promotional advertisements because they contained comparative phrasing, qualitative statements, and aimed to encourage the audience to purchase the goods or services of the for-profit entities. In addition, the FCC rejected the notion that the investigation was in any way improper, noting that the FCC has broad authority to investigate the entities it regulates, including through field inspections.

Here, as in other underwriting cases, the FCC's decision to issue a fine came down to a necessarily subjective interpretation of language--is a given statement promotional in nature or does it merely identify a source of funding? The FCC has acknowledged that it is sometimes difficult to distinguish between the two, hence the requirement that licensees exercise "good faith" judgment in airing underwriting announcements. Noncommercial educational stations must therefore carefully review the content of their on-air announcements to ensure the language is not unduly promotional in order to avoid a fate similar to the licensee in this case.

Continue reading "FCC Enforcement Monitor"


Court of Appeals Finds Prohibition on Political Ads on Noncommercial Stations Unconstitutional

Clifford M. Harrington

Posted April 12, 2012

By Clifford M. Harrington

A panel of the United States Court of Appeals for the Ninth Circuit in San Francisco today ruled, in a 2 - 1 decision, that the long-standing prohibition on the carriage of paid political and issue advertising by noncommercial television and radio stations is unconstitutional and may no longer be enforced by the FCC.

The majority opinion in Minority Television Project Inc v. FCC was authored by Judge Carlos Bea, a George W. Bush appointee, and joined in by Judge John Noonen, a Reagan appointee; Judge Richard Paez, a Clinton appointee, wrote a dissenting opinion. The case arose when Minority Television Project, licensee of noncommercial television station KMTP-TV was fined $10,000 by the FCC for violating the prohibition in Section 399B of the Communications Act against noncommercial stations carrying paid advertising for commercial entities. According to the FCC, KMTP-TV had carried over 1,900 advertisements for entities such as State Farm, Chevrolet and Asiana Airlines in the period from 1999-2002. Minority Television Project paid the fine, but filed suit in District Court for reimbursement of the fine and declaratory relief. After its arguments were rejected by the District Court, Minority Television Project brought this appeal.

The Court of Appeals focused on whether the statutory prohibitions on paid advertising in Section 399B are consistent with the U.S. Constitution. It concluded that the statute contains content-related restrictions that must be reviewed under the standard of "intermediate scrutiny," which provides that the government must show that the statute "promotes a substantial governmental interest" and "does not burden substantially more speech than necessary to further that interest."

The Court found that the prohibition on broadcasting paid commercial advertising on behalf of for-profit entities, the primary focus of Minority Television Project's appeal, was narrowly tailored and promotes the substantial governmental goal of preventing the commercialization of educational television. As a result, the fine imposed on Minority Television Project was upheld. However, the Court went on to address the prohibition on carriage of paid candidate and paid issue advertising by noncommercial stations. It found no legitimate governmental goal underlying that prohibition. The Court reviewed the Congressional record developed when the prohibition on political and issue advertising was adopted, and failed to find any evidence to support the provision. It therefore held that aspect of the law to be unconstitutional.

The decision leaves open many important questions as to how to implement it. For example, the questions of whether or how the lowest unit charge provision of Section 315 of the Communications Act will apply to noncommercial stations are not addressed. Similarly, the Decision does not consider whether federal candidates will be entitled to
"reasonable access" rights on noncommercial stations, permitting federal candidates to buy advertising on noncommercial stations that do not want to accept political advertising. While the reasonable access provision of the Communications Act appears to exempt noncommercial educational stations from that requirement, it is a content-related law, and therefore raises questions as to whether the disparate treatment of commercial and noncommercial stations for this purpose is constitutional. Other practical questions, such as the application of equal opportunities rights, political file obligations, and the like will also have to be resolved if this decision is implemented. More broadly, if the decision stands, it could have a fundamental impact on the nature and funding of noncommercial broadcasting.

The Ninth Circuit's decision only applies to states located within the jurisdiction of that Court (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington). The FCC and the Justice Department may seek review by the entire Ninth Circuit, sitting en banc, or seek review by the U.S. Supreme Court. As that drama plays out during an active political season, a lot of noncommercial stations will be scratching their heads trying to figure out what they can, can't, and must do in light of the decision. Conversely, a lot of commercial stations aren't going to be happy if they find that their political advertising revenues are being diverted to noncommercial stations. One thing is certain--if upheld, the implications of this decision for both noncommercial and commercial stations will be far reaching.


Pre-Filing and Post-Filing License Renewal Announcement Reminder for TV Stations in Maryland, Virginia, West Virginia, and Washington DC

Scott R. Flick Lauren Lynch Flick

Posted March 1, 2012

By Lauren Lynch Flick and Scott R. Flick

March 2012

TV, Class A TV, LPTV, and TV translator stations licensed to communities in Maryland, Virginia, West Virginia, and Washington DC must begin airing pre-filing license renewal announcements on April 1, 2012. License renewal applications for these stations are due by June 1, 2012.

Pre-Filing License Renewal Announcements

Stations in the video services that are licensed to communities in Maryland, Virginia, West Virginia, and Washington DC must file their license renewal applications by June 1, 2012.

Beginning two months prior that filing, full power TV, Class A TV, and LPTV stations capable of local origi┬Čnation must air four pre-filing renewal announcements alerting the public to the upcoming license renewal application filing. These stations must air the first pre-filing announcement on April 1, 2012. The remaining announcements must air on April 16, May 1, and May 16, for a total of four announcements. A sign board or slide showing the licensee's address and the FCC's Washington DC address must be displayed while the pre-filing announcements are broadcast.

For commercial stations, at least two of these four announcements must air between 6:00 pm and 11:00 pm. Locally-originating LPTV stations must broadcast these announcements as close to the above schedule as their operating schedule permits. Noncommercial stations must air the announcements at the same times as commercial stations; however, noncommercial stations need not air any announcements in a month in which the station does not operate. A noncommercial station that will not air some announcements because it is off the air must air the remaining announcements in the order listed above, i.e. the first two must air between 6:00 pm and 11:00 pm.

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