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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.

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I wrote last week about the FCC’s announcement that broadcasters must certify in their license renewal applications that their advertising contracts have, since March 14, 2011, had a nondiscrimination clause in them. Specifically, broadcasters must certify that their “advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.” The good news from last week’s announcement was that the FCC chose to apply the advertising nondiscrimination certification (which was originally announced in 2008), prospectively, rather than announcing that stations would have to certify their contracts included such language since 2008 or 2009.

That was the good news, and what government giveth with one hand, it can taketh away with the other. Today the FCC released an FCC Enforcement Advisory and News Release emphasizing how seriously it intends to treat that certification. The FCC’s Advisory states that broadcasters unable to make that certification will need to “attach an exhibit identifying the persons and matters involved and explaining why the noncompliance is not an impediment to a grant of the station’s license renewal application.”

The Advisory goes on to state that “Licensees must have a good faith basis for an affirmative certification” and notes that “a licensee that uses a third party to arrange advertising sales is responsible for exercising due diligence to ensure that the advertising agreement contains the nondiscrimination clause and does not discriminate on the basis of race or ethnicity.”

Lawyers are perhaps unique in their ability to acknowledge the validity of a legal requirement while still questioning the logic of it. Make no mistake–this new certification is the law and broadcasters need to make sure that they can truthfully make this certification at license renewal time. The goal itself is admirable. Indeed, as Univision’s Washington counsel during the time that it grew from only seven TV stations to 162 TV and radio stations, I saw first hand the challenges of persuading advertisers (and others) that Spanish-language viewers and listeners are an important group of consumers worthy of advertisers’ dollars.

However, as I noted in last week’s post, trying to use the FCC’s authority over broadcasters as a method to modify the conduct of advertisers (who are generally beyond the FCC’s authority) is a futile approach. Advertisers aren’t too worried about a broadcaster’s license renewal. As a result, the only one to be hurt here is the broadcaster, not the discriminatory advertiser.

The FCC can counter that preventing broadcasters from accepting ads of discriminatory advertisers ensures such advertisers will cease their discriminatory ad practices if they want air time. This assertion suffers, however, from two debilitating flaws. First, if the current FCC’s view is accurate that broadband,and not broadcasting, is the way of the future, then there will be plenty of non-broadcast venues for advertisers wishing to engage in discriminatory ad buys. Indeed, the FCC’s certification will not even prevent the same advertiser from making discriminatory ad buys in non-broadcast media while avoiding such discrimination on the broadcast side.

That brings us, however, to the bigger flaw in this approach, and that is the simple fact that clauses in a contract can generally only be enforced by the parties to that contract. As a result, a broadcaster can place the required nondiscrimination clause in its contract, and if the advertiser proceeds to purchase ads in a discriminatory manner (e.g., splitting its ad buying money among all of the broadcaster’s local radio stations except the one with the Spanish-language format), the FCC can’t really do anything about it. The only party in a position to enforce the nondiscrimination clause in the contract is the broadcaster, who will understandably be hesitant to spend precious resources suing an advertiser. There is no financial incentive to spend money on litigation, and there is obviously a huge disincentive for the broadcaster to sue a revenue source that can readily take its advertising dollars elsewhere (and who won’t care what happens to the broadcaster’s license renewal application).

Even today’s FCC Enforcement Advisory seems to overlook this, asserting that “a broadcaster that learns of a violation of a nondiscrimination clause while its license renewal application is pending should update its license renewal application so that it continues to be accurate.” However, whether an advertiser has proceeded to engage in discriminatory ad buying practices in violation of the contractual nondiscrimination clause would not necessarily affect the accuracy of the broadcaster’s certification that its “advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.” The broadcaster could certainly volunteer to the FCC that it had discovered an advertiser discriminating, but the FCC has no authority to punish the advertiser, and punishing the broadcaster who uncovered the advertiser’s discriminatory efforts doesn’t make much sense. As a result, the new certification adds to the regulatory thicket surrounding broadcasters, but leaves discriminatory advertisers free to roam.

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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:

  • Florida FM Translator Fined $13,000 for Unauthorized Operations
  • Latest Public Inspection File Violation Nets Upwardly Adjusted Fine
  • Failure to Monitor Inactive Tower Results in $6,000 Penalty

Failure to Operate as Authorized Costs Florida Broadcaster an Additional $4,000

A recent FCC Notice of Apparent Liability (“NAL”) for $13,000 against a Florida broadcaster serves as a costly reminder that stations must operate in accordance with the FCC’s Rules, and more notably, as specifically authorized in their station license. According to the NAL, the Florida broadcaster failed to heed a verbal warning from Tampa field agents that its station was operating beyond the technical parameters of its authorization. The NAL stated that the Tampa field agents, pursuant to an investigation and following two complaints, took field strength measurements on five separate occasions and visited the station’s transmitter site on two separate occasions over approximately 11 months between October 2009 and September 2010. Field measurements undertaken in October 2009 and early February 2010 indicated that the station was operating with a power level well in excess of its authorization in violation of Section 74.1235(e) of the FCC’s Rules, which states, “[i]n no event shall a station authorized under this subpart be operated with a transmitter power output (TPO) in excess of the transmitter certificated rating and the TPO shall not be more than 105 percent of the authorized TPO.”

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3/18/2011
The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to their respective license renewal filing deadlines.

Noncommercial educational radio stations licensed to communities in Texas, and noncommercial television stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee, must file their Biennial Ownership Reports by April 1, 2011.

In 2009, the FCC issued a Further Notice of Proposed Rulemaking seeking comments on, among other things, whether the Commission should adopt a single national filing deadline for all noncommercial radio and television broadcast stations like the one that the FCC has established for all commercial radio and television stations. That proceeding remains pending without decision. As a result, 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.

A PDF version of this article can be found at Biennial Ownership Reports are due by April 1, 2011 for Noncommercial Educational Radio Stations in Texas, and for Noncommercial Television Stations in Delaware, Indiana, Kentucky, Pennsylvania and Tennessee.

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3/18/2011
Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in the states listed above must begin airing pre-filing license renewal announcements on April 1, 2011. License renewal applications for these stations, and for in-state FM Translator stations, are due by June 1, 2011.

Pre-filing License Renewal Announcements

Full power commercial and noncommercial radio, LPFM, and FM Translator stations whose communities of license are located in the District of Columbia, Maryland, Virginia, or West Virginia must file their license renewal applications with the FCC by June 1, 2011.

Beginning two months prior to that filing, however, full power commercial and noncommercial radio and LPFM stations must air four pre-filing announcements alerting the public to the upcoming renewal application filing. As a result, these radio stations must air the first pre-filing renewal announcement on Friday, April 1, 2011. The remaining pre-filing announcements must air once a day on April 16, May 1, and May 16, for a total of four announcements. At least two of these four announcements must air between 7:00 a.m. and 9:00 a.m. and/or 4:00 p.m. and 6:00 p.m.

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by April 10, 2011, reflecting programming aired during the months of January, February and March, 2011.

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.

For all full-power and Class A television stations, website addresses displayed during children’s programming or promotional material must comply with a four-part test or they will be counted against the commercial time limits. In addition, the contents of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations. The definition of commercial matter now includes promos for television programs that are not children’s educational/informational programming or other age-appropriate programming appearing on the same channel. Licensees must prepare supporting documents to demonstrate compliance with these limits on a quarterly basis.

Specifically, stations must: (1) place in their public inspection file one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television, and (2) complete FCC Form 398, which requests information regarding the educational and informational programming aired for children 16 years of age and under. Form 398 must be filed electronically with the FCC and placed in the public inspection file. The base forfeiture for noncompliance with the requirements of the FCC’s Children Television Programming Rule is $10,000.

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ local public inspection files by April 10, 2011, reflecting information for the months of January, February and March, 2011.

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.

To demonstrate a station’s compliance with this public interest obligation, the FCC requires a station to maintain, and place in the public inspection file, a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.

Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations. The lists also provide important support for the certification of Class A station compliance discussed below.

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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.

Introduction

April 1, 2011 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. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by April 1, 2011.

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.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, all Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, attending job fairs, and having an internship program.

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Pity the post office. Even its federal brethren have abandoned it. Today the FCC announced that, with the beginning of the broadcast license renewal cycle fast approaching, it will not be sending its traditional postcard reminders to broadcast licensees. It did say, however, that it would email reminders to broadcasters for which it has email addresses in an effort to minimize the number of enforcement actions it will need to take against those failing to file on time. The base fine for a late-filed renewal is $3,000, but because most stations that miss the filing deadline have their license expire before they realize their mistake, an additional $4,000 fine for unauthorized operation (for a total of $7,000 per station) is nearly automatic.

While those of us following the FCC’s enforcement actions have noticed a fairly dramatic upward trend in the size of FCC fines (noted in an earlier post), the Media Bureau is to be commended for taking steps to assist broadcasters in meeting their filing obligations rather than just fining those that don’t.

To accomplish this, the FCC today released a Public Notice announcing the availability of its new license renewal form, discussing the changes found in it, and providing a link to the state-by-state schedule of license renewal deadlines. The idea is to make the information readily available to broadcasters, though not by way of their mailboxes. Make no mistake, however, as the Public Notice reminds us, that broadcasters are responsible for meeting their own filing deadlines, and cannot defend a failure to timely file by claiming that the FCC didn’t remind them.

More importantly, the Public Notice is not just a procedural announcement. The FCC took the opportunity to address a critical question regarding its new requirement that license renewal applicants certify that their “advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.” This new certification was adopted as a way of preventing advertisers and ad agencies from engaging in “no urban/no Spanish” ad placement practices. In creating the certification requirement, the FCC once again used its authority over broadcasters to force a change in the conduct of those for which the FCC lacks jurisdiction (in this case, advertisers).

In an early February post, our own Dick Zaragoza raised a number of issues that broadcast license renewal applicants need to consider before making this new certification. An additional source of concern is that the FCC had not made clear how far back the certification must reach. The FCC adopted the requirement in 2008, but didn’t provide a specific date by which nondiscrimination clauses had to be incorporated into broadcasters’ advertising contracts. Many communications lawyers told their clients that the requirement had gone into effect in mid-2008, while others, including myself, noted that it could not go into effect until the FCC had taken some additional procedural steps to effectuate it, but when those steps would be completed was impossible to predict.

Thankfully, today’s Public Notice answers that three year old question, stating that the certifications must cover a period starting today, March 14, 2011, to the date a station files its license renewal application. Stations that successfully implemented this change anytime between 2008 and now will be able to make the necessary certification, and stations that were frozen by uncertainty need to implement it immediately or face the consequences at renewal time. While the license renewal process can be a stressful one, particularly for those who barely remember filing their last renewal application eight years ago, the Media Bureau today helped broadcasters by eliminating at least some of the uncertainty that can make it so stressful.

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3/10/2011
Beginning later this year, ICANN is expected to accept applications for new generic domain suffixes for industries, interests and communities, such as “.bank,” “.movie” or “.music.” In addition to the generic terms, this round also includes the potential for various geographic tags that are not country codes (e.g., “.nyc” or “.andes”), brands (“.pillsbury”) as well as non-Latin characters (e.g., “中 and 国”). ICANN is expecting to approve between 200 and 500 new gTLDs in this round and to have new application rounds approximately every two years.

For organizations considering applying for a gTLD, the process will be expensive. The initial application fee is $185,000 and ICANN also requires the provision of a bond or irrevocable line of credit equal to the operating costs to keep a domain in service for three years. Estimates of the operating costs for the first few years could be several hundred thousand dollars or more, depending on the scale of use of the domain and the services offered. (Note, the bond/line of credit would likely be for a smaller amount, as it would only have to cover the most basic domain-name services.) It will only make sense if there is a clear “business plan” for use of the domain to advance short-term or long-term goals of the brand, industry, profession, or field represented.

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