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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.

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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:

Headlines:

  • TV Station Agrees to $17,500 Consent Decree for Failure to Properly Identify Children’s Programming and Other Violations
  • FCC Proposes $22,000 Fine Against Store for Operating Cell Phone Jammer
  • Marketing of Unauthorized Radio Frequency Devices Leads to $30,000 Civil Penalty

Failure to Properly Identify Children’s Programming and Related Violations Lead to $17,500 Settlement with FCC

The FCC entered into a Consent Decree with a New Jersey commercial TV station to resolve an investigation into whether the station failed to properly identify children’s programming on-air, failed to provide publishers of program guides with necessary children’s programming information, failed to report these violations in its license renewal application, and failed to provide complete and accurate information in its Children’s Television Programming Reports.

The Children’s Television Act of 1990 introduced an obligation for television broadcast stations to offer programming that meets the educational and informational needs of children, known as “Core Programming.” Section 73.671(c)(5) of the FCC’s Rules expands on this obligation by requiring that broadcasters identify Core Programming by displaying the “E/I” symbol on the television screen throughout the program. Section 73.673 of the Rules requires a commercial broadcast television station to provide the publishers of program guides with “information identifying programming specifically designed to educate and inform children,” including the age group of the intended audience. Finally, Section 73.3526 of the FCC’s Rules requires each commercial broadcast station to prepare and place in its public inspection files a Children’s Television Programming Report for each calendar quarter showing, among other things, the efforts made during that three-month period to serve the educational and informational needs of children.

The station’s license renewal application was filed in January 2015. In reviewing the application, the FCC looked at the station’s previously filed Children’s Television Programming Reports and learned that the station’s second quarter 2010 report indicated that certain Core Programming failed to display the “E/I” symbol. The FCC subsequently sent an informal inquiry to the station requesting an explanation, which eventually led to the station filing an amended license renewal application.

In its amended application, the station conceded that it: (1) failed to display the “E/I” symbol during certain Core Programming aired on its multicast streams between the fourth quarter of 2009 and the second quarter of 2015; (2) failed to provide the publishers of program guides the necessary children’s programming information between the second quarter of 2007 and the third quarter of 2016; and (3) failed to provide complete and accurate Children’s Television Programming Reports between the second quarter of 2007 and the fourth quarter of 2016. The amended application also revealed that the station failed to disclose these violations in its 2015 license renewal application.

To resolve the investigation of these violations, the station subsequently entered into a Consent Decree with the FCC under which the station: (1) admitted liability for the violations; (2) agreed to make a $17,500 settlement payment; and (3) agreed to implement a three-year compliance plan to ensure future compliance. The FCC stated that it would grant the station’s license renewal application conditioned upon the station “fully and timely satisfying its obligation to make the Settlement payment….”

Texas Store Faces $22,000 Fine for Operating Cell Phone Jammer

The FCC proposed a $22,000 fine against a Texas store for operating a cell phone jammer.

Section 301 of the Communications Act bans the use or operation of “any apparatus for the transmission of energy or communications or signals by radio” without a license. Section 302(b) of the Act states that “[n]o person shall manufacture, import, sell, offer for sale, or ship devices or home electronic equipment and systems, or use devices, which fail to comply with regulations promulgated pursuant to this section.” And Section 333 of the Act provides that “[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under this Act or operated by the United States Government.” Continue reading →

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The FCC and FEMA have established September 27, 2017 as the date for the next nationwide test of the Emergency Alert System (EAS). Like last year’s test, all EAS participants must file Form 1 a month before the test.  The Form 1 has been modified, however, requiring information that was not requested previously.  In addition, the FCC’s Emergency Test Reporting System (ETRS) has been revamped so that prior log in codes do not work and the system’s functionality is now unfamiliar to prior users.  As a result, while the Form 1 is technically due next Monday, August 28th, anyone who has not yet started the filing process should begin immediately and aim to finish the process this week.

Abandoning the ETRS log in system from the prior test, the ETRS now relies on log in information from an entirely separate FCC database, the Commission Registration System (CORES). Therefore, the first step in filing the Form 1 in the ETRS is the rather unintuitive step of establishing an FCC Username and Password in the CORES.  While this step might be simple enough in and of itself, it is important to understand that the CORES system confers control of the licensee’s Federal Registration Number (FRN) on the first person to lay claim to it.

Many broadcasters only know the FRN as the number they have to frantically search for every September when paying their Annual Regulatory Fees. But the FRN and password are increasingly used as the log in for many of the FCC’s other filing systems such as the new Licensing Management System that TV stations use for most application filings, the Universal Licensing System which is the licensing system for stations’ wireless facilities like broadcast auxiliaries and business radios, the International Bureau’s filing system for stations’ earth station facilities, and even an alternate log in for the new Online Public Inspection File.  Therefore, every station owner should establish a CORES Username and Password or have their lawyer do so on their behalf, and then claim the role of “Admin” of their FRN, even if someone else will be making their ETRS filings.

Once the licensee has claimed the Admin role for the station’s FRN, the person making the ETRS filings for the station must establish a CORES Username and Password for themselves and request that the FRN Admin associate the licensee’s FRN with their account. Only once all those steps are complete will the person making the ETRS filings be able to even draft the Form 1.

To reach the Form 1, filers should log into the ETRS using their own CORES Username and Password. A message may appear at the top of the page upon logging in saying that no FRNs are associated with the account.  If you think you have in fact associated the FRN with the account, proceed with drafting the Form 1, as the FRN may appear in the pull down menu despite that message.

Information about the station’s transmitter location, EAS equipment, and stations monitored will prefill from the Form 1 filed for the last nationwide test. This year, stations must also provide the location of their EAS receivers.  The FCC is requesting this information to be able to map where signals are received and sent so that it can better understand any communications breakdowns.  Also new this year, stations will see an instruction to file a separate Form 1 for each encoder, decoder or combination unit.  It is likely that most broadcasters have a combination unit and therefore only need to file one Form 1.  However, there may be situations where multiple filings are needed, for example where a cluster of co-owned radio stations share a studio but have to employ separate encoders and decoders to deal with stations in the group having different monitoring assignments.

So if you were procrastinating before filing the Form 1, or tried and were stymied by the FCC’s updated filing system, it’s time to get moving. Monday’s deadline is coming fast.

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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:

Headlines:

  • FCC Proposes $66,000 Fine Against Alaska Noncommercial FM Station for EAS and Other Violations
  • Man Faces $120 Million Fine for “Massive” Robocall Operation
  • FCC Proposes $1,500 Fine Against South Carolina AM Station for Late-Filed License Renewal

Alaska Noncommercial FM Station Faces $66,000 Fine for EAS and Other Violations

The FCC proposed a $66,000 fine against an Alaska noncommercial FM station for a number of violations, including actions that the FCC says “undermine the effectiveness of the Emergency Alert System (EAS).”

Section 11.15 of the FCC’s Rules requires that a copy of the EAS Operating Handbook be located “at normal duty stations or EAS equipment locations when an operator is required to be on duty.” In addition, Section 11.35(a) of the Rules states that EAS participants are responsible for ensuring that EAS equipment, such as encoders and decoders, are installed such that “monitoring and transmitting functions are available during the times the stations and system are in operation.” Also, Section 11.52(d)(1) requires EAS participants to monitor two EAS sources.

A June 2013 FCC inspection of the station’s main studio revealed several violations of the FCC’s EAS Rules. Specifically, the FCC agent found that the station (1) did not have an EAS Handbook; (2) did not have properly operating EAS equipment (because the programming and identification of the station’s EAS device was for another station); and (3) was only monitoring one EAS source.

In addition, the agent found numerous violations of the FCC’s other broadcast rules, including: (1) failure to post a valid license as required by Section 73.1230; (2) failure to maintain a public inspection file as required by Section 73.3527; (3) failure to retain the logs required by Section 73.1840; (4) failure to maintain a main studio staff under Section 73.1125(a); (5) inability to produce documentation designating a chief operator as required by Section 73.1870; and (6) failure to ensure that the station was operating in accordance with the terms of the station authorization or within variances permitted under the FCC’s technical rules, as required by Section 73.1400.

The FCC subsequently issued a Notice of Violation (“NOV”) to the station in August 2013. When the FCC did not receive a response from the station within the 20-day deadline specified in the NOV, the FCC sent a Warning Letter to the station in September 2013, and issued two additional NOVs in November 2013 and April 2016 directing the station “to provide information concerning the apparent violations described in the August 2013 NOV.” Despite signing a receipt for the April 2016 NOV, the station again failed to respond.

The base fine amounts for the apparent EAS violations, broadcast violations, and failures to respond to the NOVs total $11,000, $23,000, and $16,000 respectively. The FCC may adjust a fine upward or downward after taking into account the particular facts of each case. Here, citing the station’s failure to respond to FCC documents of four occasions, the FCC concluded that a 100 percent upward adjustment of the base fine for the failures to respond, or an additional $16,000, was warranted. As a result, the FCC proposed a total fine against the station of $66,000.

FCC Proposes $120 Million Fine for Caller ID Spoofing Operation

A Florida man’s spoofing campaign has earned him a proposed $120 million fine. The man apparently caused the display of misleading or inaccurate caller ID information (“spoofing”) on millions of calls to perpetrate an illegal robocalling campaign.

The Truth in Caller ID Act of 2009, as codified in Section 227(e) of the Communications Act and Section 64.1604 of the FCC’s Rules, prohibits any person from knowingly causing, directly or indirectly, any caller ID service to transmit or display misleading or inaccurate caller ID information with the intent to defraud, cause harm, or wrongfully obtain anything of value. Continue reading →

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This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider that provided service to at least one viewer outside the station’s local service area during 2016. These stations may be eligible to file royalty claims for compensation with the United States Copyright Royalty Board. These filings are due by July 31, 2017.

Under the federal Copyright Act, cable systems and satellite operators must pay license royalties to carry distant TV signals on their systems. Ultimately, the Copyright Royalty Board divides the royalties among those copyright owners who claim shares of the royalty fund. Stations that do not file claims by the deadline will not be able to collect royalties for carriage of their signals during 2016.

In order to file a cable royalty claim, a television station must have aired locally-produced programming of its own and had its signal carried outside of its local service area by at least one cable system in 2016. Television stations with locally-produced programming whose signals were delivered to subscribers located outside the station’s Designated Market Area in 2016 by a satellite provider are also eligible to file royalty claims. A station’s distant signal status should be evaluated and confirmed by communications counsel.

Both the cable and satellite claim forms may be filed electronically or in paper form. Paper forms may be downloaded from https://www.crb.gov/cable/; however, with the recent introduction of the Copyright Royalty Board’s new online filing system, eCRB, claimants are strongly encouraged to file claims online. Prior to filing electronically, claimants or their authorized representatives must register for an eCRB account at https://app.crb.gov/.To submit claims, stations are required to supply the name and address for the filer and for the copyright owner, and must provide a general statement as to the nature of the copyrighted work (e.g., local news, sports broadcasts, specials, or other station-produced programming). Claimants should keep copies of all submissions and confirmations of delivery, including certified mail receipts.

Those filing paper forms should be aware that detailed rules as to how the claims must be addressed and delivered apply. Claims that are hand-delivered by a local Washington, D.C. commercial courier must be delivered between 8:30 am and 5:30 pm (those hand-delivered by a private party must arrive by 5:00 pm). Claims may be sent by certified mail if they are properly addressed, postmarked by July 31, 2017, and include sufficient postage. Claims filed via eCRB must be submitted by 11:59 pm (EDT) on July 31. The Copyright Royalty Board will reject any claim filed prior to July 1, 2017 or after the deadline. Overnight delivery services such as Federal Express cannot be used. Stations filing paper claims should verify the proper procedures with communications counsel.

Please contact any of the group’s attorneys for assistance in determining whether your station qualifies to make a claim and in filing the claim itself.

A PDF version of this article can be found here.

 

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July 2017

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

August 1, 2017 is the deadline for broadcast stations licensed to communities in California, Illinois, North Carolina, South Carolina, and Wisconsin 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 August 1, 2017.

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, August 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 August 1, 2016 through July 31, 2017. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before July 31, 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 August 1, 2016 through July 21, 2017 for this year’s report (cutting it off up to ten days prior to July 31, 2017), then next year, the Nonexempt SEU must use a period beginning July 22, 2017 for its report. Continue reading →

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According to a newly-released Public Notice, the FCC has directed the U.S. Department of Treasury to pay all broadcasters who had winning bids in the recently concluded spectrum incentive auction.  The only exceptions are those broadcasters that failed to submit sufficient banking information to the Commission for payment to be made.  Since the FCC does not control the actual release of funds, it indicates it will deem the amounts as paid five business days from the release of yesterday’s Public Notice (ie, July 27).  Any broadcaster expecting to be paid that is not listed in the attachment to the Public Notice will want to promptly fix any issues with its banking information so that it too can receive payment.

The Public Notice also establishes the deadline for each category of auction winner to go off-air after getting paid. For the fewer than a dozen stations actually terminating service and going permanently dark, yesterday’s announcement is a major milestone, establishing their last day of operation as October 25, 2017.  These stations can actually cease operating as early as late August, but only if they start airing their required notices to viewers and sending their notices to MVPDs immediately.  Those needing a longer goodbye can ask for additional time to remain on air as long as they can show the FCC good cause for continuing to operate beyond the deadline.

The approximately 30 stations that elected to move to a high or low VHF channel obviously do not face a “go dark” deadline.  Instead, they will transition to their new channel much the same way as stations being involuntarily repacked.  In other words, these stations will start operations on their new channels according to the FCC’s previously-announced transition phase assignments.  They’ll just do so with lighter hearts and heavier pockets than repacked stations.

The majority of the stations listed in the Public Notice as being eligible for an auction payment indicated at the start of the auction (in their Form 177) that they had entered into or intended to enter into a channel sharing agreement for post-auction operation.  These stations have until January 23, 2018 to cease operating on their current channel and commence operations on their shared channel.  If a station’s “intention” to enter into a channel sharing agreement has not yet been realized, it will have until January 23, 2018 to get that done.  In addition, the FCC is allowing channel sharing stations to request up to two 90-day extensions (until July 2018) if they need it.

The timing of yesterday’s announcement effectively means that auction winners whose channel sharing partner was assigned to a new channel as part of the repack will have to transition twice—once to their sharing partner’s pre-transition channel, and a second time to their partner’s repacked channel.  Since the first transition phase testing period does not begin until September 14, 2018, even a channel sharee obtaining both 90-day extension periods would have to get special dispensation from the FCC or go dark for some period of time if it wants to avoid having to do a two-step transition.

While bidding in the first-ever broadcast incentive auction has been over for months now, today’s Public Notice is a major step in finally closing the book on that auction.  The U.S. Treasury will be sending auction payments out over the next few days, and once that is done, all eyes will be on the repack itself.  Given last week’s implosion of the FCC’s filing system under the strain of the initial round of repack construction permit applications and reimbursement claims, the repack promises to be a challenging endeavor for both broadcasters and the FCC.  However, for those broadcasters whose pockets are flush with auction payments, the repack might seem just a little less burdensome.

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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 July 10, 2017, reflecting programming aired during the months of April, May, and June 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 July 10, 2017, covering programming aired during the months of April, May, and June 2017. Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by July 10, 2017, reflecting information for the months of April, May, and June 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 July 10, 2017, covering the period from April 1, 2017 through June 30, 2017. All TV stations, as well as commercial radio stations in the Top-50 Nielsen Audio markets that have five or more full-time employees, must post their Quarterly Lists to the online public inspection file. Continue reading →

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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:

Headlines:

  • TV Broadcaster Agrees to $55,000 “Civil Penalty” for Airing False EAS Tones
  • Radio Broadcaster to Donate or Surrender Nine FM Stations to Resolve Investigation of Stations Being Silent for Extended Periods
  • FCC Proposes $6,000 Fine Against California TV Station for Public File and Related Violations

Broadcast of False EAS Tones Leads to $55,000 Settlement with FCC

The FCC entered into a Consent Decree with the parent company of a Florida TV station to resolve an investigation into whether the station transmitted Emergency Alert System (“EAS”) tones outside of an actual emergency.

Section 325(a) of the Communications Act prohibits any person from transmitting “any false or fraudulent signal of distress” or similar communication. Further, Section 11.45 of the FCC’s Rules prohibits transmission of “the EAS codes or Attention Signal, or a recording or simulation thereof,” unless it is “an actual National, State, or Local Area emergency or authorized test of the EAS” (emphasis added).

On August 9, 2016, the FCC received a complaint alleging that the station had “aired a commercial multiple times that improperly used the EAS data burst and tone.” The FCC subsequently began an investigation into whether the station had violated its rules governing EAS, and directed the station to respond to the allegations.  In its response, the station explained that it started airing an advertisement on August 6, 2016 for a professional football team which opened with EAS Tones, the sounds of wind and thunder, and a voiceover stating: “This is an emergency broadcast transmission. This is not a test. This is an emergency broadcast transmission. This is not a test. Please remain calm. Seek shelter.”

The station claimed that its policies and practices do not allow transmission of false EAS tones, but that it received the advertisement from an outside source and the station’s “employees apparently failed to screen the Promotion before airing it.” The station explained that when a senior member of the station’s staff saw the advertisement on August 8, 2016, he notified the general manager that it contained a prohibited use of an EAS tone, and told staff not to air it again.

The station’s parent company subsequently entered into a consent decree with the FCC to resolve the investigation, under which the company (1) admitted that the station aired material that contained simulated EAS tones absent an actual emergency or authorized test of the EAS, (2) agreed to pay a $55,000 civil penalty, and (3) agreed to implement a three-year compliance plan.

Radio Broadcaster Agrees to Donate or Surrender Nine FM Station Licenses for Failure to Operate Stations

The owner of a number of radio stations entered into a Consent Decree with the FCC to resolve an investigation into the company’s alleged failure to operate its stations during their most recent license terms.

Section 312(g) of the Communications Act prohibits extended periods of silence by licensed stations because of their obligation to serve the public by broadcasting on their allocated spectrum. Specifically, a station’s license will automatically terminate if it remains silent for twelve consecutive months unless the FCC acts to extend or reinstate the license where “the holder of the station license prevails in an administrative or judicial appeal, the applicable law changes, or for any other reason to promote equity and fairness.”  Additionally, the Act authorizes the FCC to revoke any station license for failure to operate substantially as set forth in that license, and Section 73.1740 of the FCC’s Rules establishes minimum operating requirements for broadcast stations. Continue reading →