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The FCC announced yesterday that repacked and band-changing television and Class A television stations will have the opportunity to file applications to specify a new channel or expand their proposed facilities between October 3 and November 2.

By way of background, in April of 2013, in preparation for the Broadcast Incentive Auction, the FCC froze the filing of modification applications by full power and Class A television stations that would expand coverage in any direction.  With the conclusion of the Broadcast Incentive Auction, stations that were involuntarily repacked or that elected to change bands in exchange for compensation were required to file applications to transition to their newly-assigned channels.

However, apart from some flexibility to increase coverage in any one direction by up to 1%, those applications could only replicate the coverage a station had before the auction.  A small group of stations that had special situations such as those that were unable to build on their assigned repack channel or which were predicted to receive excessive interference as a result of the repack were allowed to modify their facilities in what the FCC called the “First Priority” window, which closed last Friday.  For the vast majority of stations, however, the window announced yesterday will be their first opportunity in more than four years to expand coverage without requiring a waiver of the freeze.

This “Second Priority” window is limited to repacked and band changing stations.  Eligible stations can change their currently assigned channel or make minor modifications to the facilities currently proposed in their repack construction permit (if already granted), or pending repack application.  Stations seeking a new channel must remain within their currently assigned band (e.g., a UHF station that was paid in the spectrum auction to move to a VHF channel cannot now file to move back to the UHF band).

Applications filed in this window must protect all applications filed in the initial 90-day repack window, the just-concluded First Priority window, and those filed prior to the April 2013 application freeze.  An application seeking a new channel will be handled as a major modification, requiring a 30-day public notice and comment period at the FCC, along with local public notice in the community of license.  Stations seeking to modify their facilities while remaining on their assigned channel must still meet the FCC’s requirements for a minor modification application.

Additional costs caused by building expanded or different-channel facilities are not eligible for repack reimbursement, and stations are therefore not allowed to amend their Form 399 estimates to include those additional amounts.

Filing fees will be required for modification applications filed in this window, and station applications that are mutually exclusive with another application filed during the window will have a 90-day period to resolve the mutual exclusivity or both applications will be dismissed.  The FCC will treat all applications filed during the window as having been filed on the same day, so the precise date of filing will not be relevant in determining whether applications filed during this window are mutually exclusive.

After years of television stations having their fate dictated by the outcome of the Broadcast Incentive Auction and the FCC-designed repack, this window represents the first opportunity in a long time for stations to take control of their own destinies.  Stations will now have the opportunity to obtain what they used to take for granted–the ability to adapt their facilities to changing communities and needs while enhancing their coverage in a post-repack world.  That is an opportunity that should not be missed.

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by October 10, 2017, reflecting information for the months of July, August, and September 2017.

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 the 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 television station compliance discussed below. We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness. Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during the license term. Stations should include in the Quarterly Lists as much issue-responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs. Taking extra time now to provide a thorough Quarterly List will help reduce risk at license renewal time.

It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their public inspection file. The FCC’s base fine for missing Quarterly Lists is $10,000.

Preparation of the Quarterly List

The Quarterly Lists are required to be placed in the public inspection file by January 10, April 10, July 10, and October 10 of each year. The next Quarterly List is required to be placed in stations’ public inspection files by October 10, 2017, covering the period from July 1, 2017 through September 30, 2017. Continue reading →

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by October 10, 2017, reflecting programming aired during the months of July, August, and September 2017.

Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 (“Act”) 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 under, and (2) air programming responsive to the educational and informational needs of children 16 years of age and under.

These two obligations, in turn, require broadcasters to comply with two paperwork requirements. Specifically, stations must: (1) place in their online public inspection file one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television, and (2) submit FCC Form 398, which requests information regarding the educational and informational programming the station has aired for children 16 years of age and under. Form 398 must be filed electronically with the FCC. The FCC automatically places the electronically filed Form 398 filings into the respective station’s online public inspection file. However, each station should confirm that has occurred to ensure that its online public inspection file is complete. The base fine for noncompliance with the requirements of the FCC’s Children’s Television Programming Rule is $10,000.

Broadcasters must file their reports via the Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.

Noncommercial Educational Television Stations

Because noncommercial educational television stations are precluded from airing commercials, the commercial limitation rules do not apply to such stations. Accordingly, noncommercial television stations have no obligation to place commercial limits documentation in their public inspection files. Similarly, though noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and under, they do not need to complete FCC Form 398. They must, however, maintain records of their own in the event their performance is challenged at license renewal time. In the face of such a challenge, a noncommercial station will be required to have documentation available that demonstrates its efforts to meet the needs of children.

Commercial Television Stations
Commercial Limitations

The Commission’s rules require that stations limit the amount of “commercial matter” appearing in children’s programs to 12 minutes per clock hour on weekdays and 10.5 minutes per clock hour on the weekend. In addition to commercial spots, website addresses displayed during children’s programming and promotional material must comply with a four-part test or they will be considered “commercial matter” and counted against the commercial time limits. In addition, the content of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations. Program promos also qualify as “commercial matter” unless they promote 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.

For commercial stations, proof of compliance with these commercial limitations must be placed in the online public inspection file by the tenth day of the calendar quarter following the quarter during which the commercials were aired. Consequently, this proof of compliance should be placed in your online public inspection file by October 10, 2017, covering programming aired during the months of July, August, and September 2017.

Documentation to show that the station has been complying with this requirement can be maintained in several different forms:

  • Stations may, but are not obligated to, keep program logs in order to comply with the commercial limits rules. If the logs are kept to satisfy the documentation requirement, they must be placed in the station’s public inspection file. The logs should be reviewed by responsible station officials to be sure they reflect compliance with both the numerical and content requirements contained in the rules.
  • Tapes of children’s programs will also satisfy the rules, provided they are placed in the station’s public inspection file and are available for viewing by those who visit the station to examine the public inspection file. The FCC has not addressed how this approach can be utilized since the advent of online public inspection files.
  • A station may create lists of the number of commercial minutes per hour aired during identified children’s programs. The lists should be reviewed on a routine basis by responsible station officials to be sure they reflect compliance with both the numerical and content requirements contained in the rule.
  • The station and its network/syndicators may certify that as a standard practice, they format and air the identified children’s programs so as to comply with the statutory limit on commercial matter, and provide a detailed listing of any instances of noncompliance. Again, the certification should be reviewed on a routine basis by responsible station officials to ensure that it is accurate and that the station did not preempt programming or take other action that might affect the accuracy of the network/syndicator certification.
  • Regardless of the method a station uses to show compliance with the commercial limits, it must identify the specific programs that it believes are subject to the rules, and must list any instances of noncompliance. As noted above, commercial limits apply only to programs originally produced and broadcast primarily for an audience of children ages 12 and under.

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This Broadcast Station Advisory is directed to radio and television stations in the areas noted above, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

October 1, 2017 is the deadline for broadcast stations licensed to communities in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands to place their Annual EEO Public File Report in their public inspection file and post the report on their station website. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by October 2, 2017 (because October 1 falls on a Sunday this year, the Form 397 filing deadline rolls to the next business day).

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal 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, 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, participating in job fairs, and having an internship program.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the public inspection files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application. The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities. Nonexempt SEUs must submit to the FCC the two most recent Annual EEO Public File Reports with their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with more than ten full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the midpoint of their eight-year license term along with FCC Form 397—the Broadcast Mid-Term EEO Report.

Exempt SEUs—those with fewer than five full-time employees—do not have to prepare or file Annual or Mid-Term EEO Reports.

For a detailed description of the EEO rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters published by Pillsbury’s Communications Practice Group. This publication is available at: http://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

Deadline for the Annual EEO Public File Report for Nonexempt Radio and Television SEUs.

Consistent with the above, October 1, 2017 is the date by which Nonexempt SEUs of radio and television stations licensed to communities in the states identified above, including Class A television stations, must (i) place their Annual EEO Public File Report in the public inspection files of all stations comprising the SEU, and (ii) post the Report on the websites, if any, of those stations. LPTV stations are also subject to the broadcast EEO rules, even though LPTV stations are not required to maintain a public inspection file. Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request. Therefore, if an LPTV station has five or more full-time employees, or is part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file.

These Reports will cover the period from October 1, 2016 through September 30, 2017. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before September 30, so long as they begin the next annual reporting period on the day after the cut-off day used in the immediately preceding Report. For example, if the Nonexempt SEU uses the period October 1, 2016 through September 20, 2017 for this year’s report (cutting it off up to ten days prior to September 30, 2017), then next year, the Nonexempt SEU must use a period beginning September 21, 2017 for its report.

Deadline for Performing Menu Option Initiatives.

The Annual EEO Public File Report must contain a discussion of the Menu Option initiatives undertaken during the preceding year. The FCC’s EEO rules require each Nonexempt SEU to earn a minimum of two or four Menu Option initiative-related credits during each two-year segment of its eight-year license term, depending on the number of full-time employees and the market size of the Nonexempt SEU.

  • Nonexempt SEUs with between five and ten full-time employees, regardless of market size, must earn at least two Menu Option credits over each two-year segment.
  • Nonexempt SEUs with 11 or more full-time employees, located in the “smaller markets,” must earn at least two Menu Option credits over each two-year segment.
  • Nonexempt SEUs with 11 or more full-time employees, not located in “smaller markets,” must earn at least four Menu Option credits over each two-year segment.

The SEU is deemed to be located in a “smaller market” for these purposes if the communities of license of the stations comprising the SEU are (1) in a county outside of all metropolitan areas, or (2) in a county located in a metropolitan area with a population of less than 250,000 persons.

Because the filing date for license renewal applications varies depending on the state to which a station is licensed, the time period in which Menu Option initiatives must be completed also varies. Radio and television stations licensed to communities in the states identified above should review the following to determine which current two-year segment applies to them:

  • Nonexempt radio station SEUs licensed to communities in Iowa and Missouri must have earned at least the required minimum number of Menu Option credits during the two year “segment” between October 1, 2016 and September 30, 2018, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt radio station SEUs licensed to communities in Alaska, Florida, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan and the Virgin Islands must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2015 and September 30, 2017, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Alaska, Florida, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan and the Virgin Islands must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2016 and September 30, 2018, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Iowa and Missouri must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2015 and September 30, 2017, as well as during the previous two-year “segments” of their license terms.

Deadline for Filing EEO Mid-Term Report (FCC Form 397) for Radio Stations Licensed to Communities in Alaska, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, and Saipan and Television Stations Licensed to Communities in Iowa and Missouri.

October 1, 2017 is the mid-point in the license renewal term of radio stations licensed to communities in Alaska, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, and Saipan and Television stations licensed to communities in Iowa and Missouri. If a station in one of these respective groups belongs to a Radio SEU with more than ten full-time employees or a television SEUs with five or more full-time employees, it must electronically file the Form 397 Report by October 2 (as October 1 falls on a Sunday). Licensees subject to this reporting requirement must attach copies of the SEU’s two most recent Annual EEO Public File Reports to their FCC Form 397 Report.

Note that SEUs that have been the subject of a prior FCC EEO audit are not exempt and must still file FCC Form 397 by the deadline. Electronic filing of FCC Form 397 is mandatory. A paper version will not be accepted for filing unless accompanied by an appropriate request for waiver of the electronic filing requirement.

Recommendations

It is critical that every SEU maintain adequate records of its performance under the EEO Rule and that it practice overachieving when it comes to earning the required number of Menu Option credits. The FCC will not give credit for Menu Option initiatives that are not duly reported in an SEU’s Annual EEO Public File Report or that are not adequately documented. Accordingly, before an Annual EEO Public File Report is finalized and made public by posting it on a station’s website or placing it in the public inspection file, the draft document, including supporting material, should be reviewed by communications counsel.

Finally, note that the FCC is continuing its program of EEO audits. These random audits check for compliance with the FCC’s EEO Rule, and are sent to approximately five percent of all broadcast stations each year. Any station may become the subject of an FCC audit at any time. For more information on the FCC’s EEO Rule and its requirements, as well as practical advice for compliance, please contact any of the attorneys in the Communications Practice.

A PDF of this article can be found at Annual EEO Report, October 2017.

 

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[Breaking News: Moments before the release of this post, the FCC issued a Public Notice announcing an extension of time to the end of the government’s fiscal year for regulatory fee payors in areas affected by Hurricanes Harvey and Irma to make their regulatory fee payments.  Regulatees in Florida, Puerto Rico, the US Virgin Islands, and affected portions of Texas, Louisiana, Alabama, and Georgia have until midnight on September 29, 2017 to file and pay their fees.  While that only provides an additional three days to pay, the FCC indicates that anyone needing additional relief can file a request using the Commission’s established deferral/reduction request procedures.]

With the end of the government’s fiscal year comes the obligation to pay the annual regulatory fees that defray the cost of FCC activities for which a separate fee, such as an application processing fee, is not paid.  These activities include, ironically enough, rulemaking and enforcement activities that regulatees might prefer not to fund.

Each year, the FCC is required to conduct a proceeding determining how to allocate the cost of its operations among the various industries and types of entities it regulates.  After soliciting comments on each year’s proposed fees, the FCC releases a final order stating how it will apportion the fees among various regulatee categories for the fiscal year.  Thereafter, it issues a Public Notice announcing the deadline for paying the fees, and releases Fact Sheets for each category of regulatee providing more detailed information about how to pay those particular fees.

Over the course of last week, the FCC released its Report and Order setting this year’s annual regulatory fee amounts and almost immediately thereafter announced that annual regulatory fees are due by September 26, 2017.  It also announced that its Fee Filer system is now open to receive payments.  For Media Bureau regulatees, the FCC released this Fact Sheet setting forth the fees for each class and category of broadcast license.  Licensees subject to the fees must file a report listing the fees they owe through the Fee Filer system and then pay that amount by 11:59 pm (ET) on September 26.

This year’s Regulatory Fee Order contained at least some good news for certain broadcasters in the form of reduced fees.  Specifically, television stations in all market sizes saw modest decreases in their fees over last year, although the FCC continues to question whether there are television stations paying the lower satellite station fee that are not entitled to do so and whether the fee for satellite television stations should be increased substantially next year.

On the radio side, all radio broadcasters with a population served of 75,000 or less also saw a decrease in their fees.  However, that was balanced by an increase in fees for radio stations serving a population of more than 3,000,000, with some of those fees increasing by as much as $5,000.  Radio stations between these two extremes received a mixed bag of increases and decreases, apparently as a result of the FCC’s efforts to make the increments between tiers more proportional.

The Regulatory Fee Order contained particularly good news for some small market “singleton” stations.  The FCC increased the de minimis fee exemption from $500 (it had been $10 before 2014) to $1,000.  When it was $500, the exemption only helped a few licensees of stand-alone translator, booster and low power television stations.  With a $1,000 exemption, many stand-alone AM and some stand-alone FM stations in smaller markets are now also relieved of both the obligation to file the report of fees owed and to pay those fees.  Note that in determining whether the exemption applies, the FCC adds together all of the regulatory fees owed by a regulatee, so a small market licensee will lose the exemption if it has other regulatory fees due that, along with the radio station regulatory fee, add up to more than $1,000.

Regulatees who owe less than $25,000 can pay using a credit card.  Those owing $25,000 or more must use wire transfer, debit card, or bank ACH to pay.  Department of Treasury rules prohibit a single entity from paying more than $24,999.99 to a single government agency in a single day by credit card.  This limit applies whether the payment is made as a single payment or as a series of smaller payments that together add up to $25,000 or more.

Failure to timely pay regulatory fees brings with it a 25% penalty, administrative fees, and should the fees remain unpaid for any length of time, rather merciless fee collection activity from outside collection agencies.  Failure to pay regulatory fees at all (as opposed to paying them late) can bring even greater woes, up to and including loss of license.

So, unless you are in a hurricane-affected area, mark September 26th on your calendar as “Reg Fee Day”.  Like death and taxes, annual regulatory fees have become another certainty of life for those regulated by the FCC.  Unlike death, however, some may qualify for an exemption.

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The FCC announced on Friday afternoon that it would push back the December 1, 2017 deadline for commercial and noncommercial broadcast stations to file their biennial ownership reports.  Rather than opening the filing window on September 1 and closing it on December 1, the FCC will open the window on December 1 and close it on March 2, 2018.  The Commission stressed that it is only changing the filing due date, not the period of time covered by the report.  That is, all reports, regardless of when in the window they are filed, must be accurate as of October 1, 2017.  If a station is sold after October 1, 2017, the former ownership of the station must still be reported when the form is finally filed.

This biennial ownership filing cycle is the first one in which both commercial and noncommercial stations file on the new consolidated filing date, which was to be December 1 of odd numbered years.  In addition, it will be the first one to use new ownership report forms accessed and filed through the FCC’s new Licensing Management System (“LMS”), rather than the CDBS filing system that is being phased out.

In its comments in the FCC’s proceeding to reduce or eliminate regulatory burdens on broadcasters, the NAB had requested that the Commission suspend the December 1, 2017 filing date while it considers comments the NAB and others filed seeking a reduction in the frequency and burden of ownership reporting.  NAB followed that request up with a letter asking that the Commission allow additional time specifically for broadcasters to test the new filing system and revised ownership reporting forms to avoid the debacle that occurred in 2009-2010 when the FCC last updated the form for commercial stations, causing multiple delays and suspensions of the filing deadlines.

In delaying this year’s ownership report filing, the FCC said that it was acting of its own accord to permit adequate time for the integration of the new ownership report forms with the FCC’s LMS filing database.  Whatever the technical issues the FCC faces in that process, there is plenty for broadcasters to do during this delay.  For radio broadcasters, the LMS is an entirely new filing system with which they will need to become familiar.  As broadcasters’ recent experience with the unexpected and dramatic redesign of the Emergency Test Reporting System (ETRS) showed, the learning curve surrounding a new filing system can be very steep and frustrating.

In addition, the FCC requires that all reportable interest holders be identified in the ownership report by one of three types of unique identifiers.  As we have explained before, reportable interest holders must secure a Federal Registration Number (the CORES FRN, not to be confused with the CORES Username and Password needed to access the ETRS), and to do so must provide the FCC with their full Social Security Number.  To address the backlash from those concerned about providing their SSNs, the Commission created a Restricted Use FRN, or RUFRN, that can be used only in ownership reports and requires reporting the interest holder’s name, date of birth, residential address and last four digits of their SSN.  Finally, if an interest holder refuses to release the information needed to secure a CORES FRN or a RUFRN, the licensee may secure a Special Use FRN without revealing any SSN information upon a showing that it made a good faith effort to secure a CORES FRN or RUFRN.

Most recently, the Commission exempted interest holders in noncommercial licensees, many of whom are volunteers, from the CORES FRN/RUFRN requirement going forward, and those licensees may use SUFRNs for their reportable interest holders without having to make a showing of good faith efforts to collect interest holders’ SSNs.

Still, all licensees have some administrative work to do in advance of the ownership report filing, determining which of their interest holders already have a CORES FRN, creating RUFRNs for any interest holders needing them, and determining whether use of the SUFRN is permitted or appropriate for any interest holders.

While the delay will provide broadcasters with more time to address the difficulties of using the new form and filing system, the recent experience with ETRS gives broadcasters plenty to think about as they prepare for their next ownership filing.