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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:

  • Pennsylvania AM Radio Station’s Tower Marking and Lighting Violations End With Consent Decree
  • Unauthorized Transfer of Control Costs Nevada FM Radio Licensee $8,000
  • Arizona Translator Station Violates Construction Permit Terms and Receives $15,000 Penalty

AM Station Enters Into Consent Decree to Settle Tower Marking and Lighting Case

The Enforcement Bureau entered into a Consent Decree with a Pennsylvania AM radio licensee and tower owner to resolve a years-long investigation into violations of the Commission’s tower lighting and marking rules.

Under Part 17 of the FCC’s Rules and in accordance with Federal Aviation Administration (FAA) requirements, tower owners must comply with various painting, lighting, and notification requirements.  These rules are critical to maintaining air traffic safety, and the FCC imposes    strict requirements regarding tower painting and lighting maintenance.  Specifically, the FCC’s rules require that tower owners: (1) clean and repaint tower structures as frequently as is necessary to maintain good visibility; (2) ensure tower structures conform to the painting and lighting requirements prescribed in their FCC registration; and (3) notify the FAA of any lighting outages.

In response to an anonymous complaint, FCC investigators made several on-site visits in late 2015 and early 2016 to inspect a broadcaster’s antenna structures located in Pennsylvania, and observed faded paint markings and lighting outages on two of the four structures.  In February 2016, the FCC issued a Notice of Violation for the station’s failure to: (1) clean and paint the antenna structures so that their colored markings were sufficiently visible;  (2) keep the structures lit in accordance with the terms of their FCC registration; and (3) timely notify the FAA of the lighting outage.

When presented with the Notice of Violation, the station responded by acknowledging that it was aware of the lighting outage issues and was taking steps to make the needed painting and lighting repairs.  It also claimed that it had tried to notify the FAA about the lighting outage only to find that the FCC investigators had already filed a notification.

Returning for a reinspection several months later, FCC investigators found that the station had still not remedied any of the violations.  As a result, the FCC issued a Notice of Apparent Liability (NAL) in December 2016  proposing a $25,000 fine, and instructed the station to either pay the amount in full or submit to the Enforcement Bureau justification for a reduction or cancellation of the fine.

The station followed up with numerous filings at the FCC, including a submission to the Commission’s Office of Managing Director seeking reconsideration of the NAL, but the filings failed to properly respond to the Enforcement Bureau, as directed in the NAL.  In July 2019, the FCC issued a Forfeiture Order, noting these procedural failures and ordering payment of the full $25,000 fine.  The station submitted a petition seeking reconsideration of the Forfeiture Order in August 2019.

To finally resolve the matter, the FCC entered into a Consent Decree with the station owner under which the station will pay a reduced $1,900 penalty, certify that each of its antenna structures complies with Part 17 of the FCC’s Rules, and adopt a comprehensive compliance plan to prevent future violations.

Nevada FM Licensee Hit with $8,000 Penalty for Improper Transfer of Control

In a recently adopted Consent Decree, the Media Bureau settled an investigation into an FM radio licensee for conducting a transfer of control without prior Commission approval.

Section 310(d) of the Communications Act prohibits the transfer of control of a station license without first obtaining FCC approval.  Under Section 73.3540 of the FCC’s Rules, a licensee seeking such approval must file an application on FCC Form 315 at least 45 days before the anticipated effective date of the transfer of control. Continue reading →

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October 1, 2020 is the deadline for TV stations to (1) upload to their online Public Inspection Files their must-carry/retransmission consent carriage election statements for the three-year cycle covering January 1, 2021 to December 31, 2023, and (2) notify MVPDs of any changes to their election status.

As we previewed in May, the upcoming October 1 deadline marks the first under the FCC’s new electronic notice system, which replaces the previous requirement that eligible broadcasters mail paper notices to cable and satellite providers regarding carriage elections by October 1 every three years. This year, the FCC’s new procedures simplify this notification process.

Under the new approach, commercial TV stations must place statements electing either must-carry or retransmission consent in their online Public Inspection File by October 1 every third year.  A separate notice to MVPDs is only required when the station wishes to change the status it elected in the prior three-year cycle.  Similar to the obligation imposed on broadcasters (discussed in more detail here), the new rules require cable providers to maintain up-to-date contact information for carriage-related issues in the FCC’s Cable Operations and Licensing System (COALS) database (which the FCC makes available in the online Public Inspection Files of cable providers).  Satellite providers must place such information directly in their online Public Inspection File, making it easier for broadcasters to identify the appropriate contact for election notices.

To that end, stations opting to change their election with respect to any MVPD must send notice of the change to the e-mail address provided by the relevant MVPD, with a copy to the FCC at ElectionNotices@FCC.gov, and attach a copy of the election change notice to the election statement uploaded to the station’s online Public Inspection File.  In response, MVPDs are supposed to confirm receipt of the change notice.  The FCC has said that if broadcasters fail to receive such confirmation, and are unable to reach anyone at the phone number provided by the MVPD, the change notice will still be considered timely if placed in the station’s Public Inspection File, and the proper FCC e-mail address copied, by the October 1 deadline.

Similarly, the FCC simplified the election process for noncommercial educational (“NCE”) stations by eliminating the triennial election notice requirement after October 1, 2020.  As a result, once NCE stations place their election statements requesting carriage in their online Public Inspection File by the October 1, 2020 deadline, no further triennial notices will be required.  While separate carriage notification procedures were adopted for low power television stations and NCE translator stations that qualify for must-carry status, but which do not have a Public Inspection File, the FCC yesterday waived the carriage notice requirement with regard to NCE educational translators.  In doing so, it noted the unique challenges sending such notices would pose for these stations, as they merely rebroadcast rather than originate programming.

For veterans of the cumbersome certified mail approach previously used for many years, the new approach seems almost too easy.  If only that were true of all FCC rule changes.

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

October 1 is the deadline for broadcast stations licensed to communities in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, the Mariana Islands, Missouri, Oregon, Puerto Rico, the Virgin Islands, and Washington 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 submit their two most recent EEO Public File Reports along with FCC Form 2100, Schedule 396 as part of their license renewal application submissions due by October 1. 

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,[1] (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.  As discussed below, nonexempt SEUs must submit to the FCC their two most recent Annual EEO Public File Reports when they file their license renewal applications.

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.

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by October 10, 2020, reflecting information for the months of July, August, and September 2020.

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 their 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.

The FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have complete Quarterly Lists in their Public Inspection File or which have failed to timely upload such lists when due.  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, 2020, covering the period from July 1, 2020 through September 30, 2020. Continue reading →

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Full power commercial and noncommercial radio stations and LPFM stations, licensed to communities in Iowa and Missouri, and full power TV and Class A TV stations, as well as LPTV stations capable of local origination, licensed to communities in Florida, Puerto Rico, and the Virgin Islands, must file their license renewal applications by October 1, 2020.

October 1, 2020 is the license renewal application filing deadline for commercial and noncommercial radio and TV broadcast stations licensed to communities in the following states:

Full Power AM and FM, Low Power FM, and FM Translator Stations:
Iowa and Missouri

Full Power TV, Class A, LPTV, and TV Translator Stations:
Florida, Puerto Rico, and the Virgin Islands

Overview

The FCC’s state-by-state license renewal cycle began in June 2019 for radio stations and in June 2020 for television stations.  Radio and TV stations licensed to communities in the respective states listed above should be moving forward with their license renewal preparation.  This includes familiarizing themselves with not only the filing deadline itself, but with the requirements for this important filing, including recent changes the FCC has made to the public notice procedures associated with the filing (discussed below).

The license renewal application (FCC Form 2100, Schedule 303-S) primarily consists of a series of certifications in the form of Yes/No questions.  The FCC advises that applicants should only respond “Yes” when they are certain that the response is correct.  Thus, if an applicant is seeking a waiver of a particular rule or policy, or is uncertain that it has fully complied with the rule or policy in question, it should respond “No” to that certification.  The application provides an opportunity for explanations and exhibits, so the FCC indicates that a “No” response to any of the questions “will not cause the immediate dismissal of the application provided that an appropriate exhibit is submitted.”  An applicant should review any such exhibits or explanations with counsel prior to filing.

When answering questions in the license renewal application, the relevant reporting period is the licensee’s entire 8-year license term.  If the licensee most recently received a short-term license renewal, the application reporting period would cover only that abbreviated license term.  Similarly, if the license was assigned or transferred via FCC Form 314 or 315 during the license term, the relevant reporting period is just the time since consummation of that last assignment or transfer.

Stations can find more detail on the FCC’s license renewal application process in our most recent Advisory on the subject. Continue reading →