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With many of their employees either off today or working a half-day in preparation for the Thanksgiving holiday, broadcasters were settling in for what would hopefully be a couple of slow news days and a long weekend.  However, as so often happens, the path out of the station to a Thanksgiving feast has been blocked by a regulatory development.  Fortunately, it is one that has a relatively easy fix.

With the Internet omnipresent, and the FCC working hard to make sure broadband connections are available across the country, the Commission has increasingly integrated the Internet into its age-old regulations.  With most FCC filings now being done online, application public notices having moved from newspapers to online, and the Public Inspection File now an online database, the Internet has become an essential part of stations’ regulatory compliance obligations.  Whether it is posting a link on the station website to your most recent Annual EEO Program Report, posting a link to a pending application, posting your station’s latest contest rules, or timely uploading documents to your Public Inspection and Political Files, broadcasters are increasingly at the mercy of the Internet’s quirks.

Which means that the ability of the Internet to generate widespread problems from tiny tweaks has also increased dramatically.

Broadcasters woke up to that reality this morning when they suddenly found themselves technically out of compliance with the requirement that they post a link to their online Public Inspection File on their station website.  The URL link on their home page suddenly didn’t work, resulting in an FCC “404 – Not Found” message instead.  Admittedly, it’s one of the more attractive 404 pages you might encounter, but not something any broadcaster wants to see when you click on the FCC-mandated link to your Public File.

A little investigatory work by the various state broadcasters associations quickly discerned the issue.  The FCC has apparently been doing some technical work on its Public Inspection File database, and somewhere in that process, required that the part of the URL for each station’s Public Inspection File containing a station’s call sign be in capital letters.  So if the link on your station website to its online Public Inspection File contains — as most URLs do — all lower case letters, your Public File link is broken.  However, if you change your call sign in the URL to capital letters (“WPIF” rather than “wpif”) it will magically start working again.

We have reached out to the FCC to see if whatever system update created this issue can be rolled back, but in the meantime, the simple fix is to update your Public File link to capitalize the station call sign.  Just one more unexpected obstacle to overcome on the road to regulatory compliance.  Then you can head home and start cleaning your house for tomorrow’s Thanksgiving feast.

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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 Broadcaster Pays $20,000 for Unauthorized Tower Construction Work
  • Colorado Broadcaster Issued Notice of Violation for Operating FM Translator on Wrong Frequency
  • Telecommunications Company Receives Cease-and-Desist Letter From FCC for Transmitting Illegal Robocalls

FCC Fines Florida Broadcaster $20,000 for Commencing Tower Construction Prior to Completing Required Environmental Review

The FCC’s Enforcement Bureau and a Florida broadcaster entered into a Consent Decree to resolve an investigation into whether the broadcaster began clearing land for a wireless telecommunications tower before it completed the required environmental review. Environmental reviews are required by the FCC’s Rules, including rules implementing the National Environmental Policy Act of 1969 (NEPA). To settle the matter, the broadcaster admitted violating the FCC’s environmental and antenna structure rules, and agreed to implement a compliance plan while making a $20,000 penalty payment.

The FCC’s Environmental Rules require applicants and licensees to assess whether proposed facilities may significantly affect the environment. Under Section 1.1307(a)(3) of the Commissions Rules, an applicant must prepare an Environmental Assessment for facilities that could have a significant environmental effect. When considering whether an action may have a significant environmental effect, one of the factors an applicant must consider is whether the proposed site may affect threatened or endangered species or designated critical habitats.

Additionally, the FCC’s Antenna Structure Registration (ASR) rules require the owner of a proposed or existing antenna structure to follow registration procedures prior to constructing or altering a tower. If an Environmental Assessment is required by the rules, it must be included in the ASR application.

In July and August of 2020, the broadcaster hired contractors to perform the necessary environmental review and construct a wireless communications tower located within the designated critical habitat of the endangered Florida bonneted bat. When the broadcaster filed its ASR application in November 2020, it included an Environmental Assessment depicting premature clearing and admitted to preconstruction activities.

Although the environmental review was later completed and the FCC authorized construction of the tower, the FCC issued a Letter of Inquiry to the broadcaster in April 2021 asking a series of questions related to its compliance with the Commission’s Environmental and ASR rules. The broadcaster responded in July 2021, admitting that it began construction by clearing vegetation from the tower site around August 3, 2020 – before it prepared an Environmental Assessment and before applying for an ASR.

To resolve the investigation, the broadcaster agreed to enter into a Consent Decree in which it admitted its actions violated the FCC’s Environmental and ASR rules. As part of the Decree, the broadcaster must designate a compliance officer, implement a multi-part compliance plan, including developing a compliance manual and compliance training program, disclose within fifteen days any violations of the Consent Decree or the Environmental and ASR rules, file annual compliance reports with the FCC for the next three years, and pay a $20,000 civil penalty.

FCC Issues Notice of Violation to Colorado Licensee for Operating FM Translator on Unauthorized Frequency

Earlier this month, the FCC issued a Notice of Violation to the licensee of a Colorado FM Translator asserting violations of Sections 1.903(a) and 74.14(a) of the FCC’s Rules by operating a station on a channel for which it wasn’t licensed.

Section 1.903(a) requires stations to be used and operated only in accordance with the rules applicable to their particular service and with a valid authorization granted by the Commission. Pursuant to Section 74.14(a), once an FM Translator has been built in accordance with the terms of its construction permit and a license application has been filed showing the station is in satisfactory operating condition, it may commence service or program tests.

On three different dates between October 2020 and January 2021, an agent of the Denver Office of the FCC’s Enforcement Bureau observed the FM Translator operating on Channel 282 despite being licensed to operate on Channel 272. While the licensee had obtained a construction permit authorizing it to modify the station to operate on Channel 282, at the time of the three separate observations, it had not yet filed an FM Translator License Application. Until a license application is filed, the facility lacked authority to operate with the parameters outlined in the construction permit, and any such operation would violate Section 74.14(a).

The Notice of Violation seeks additional information from the broadcaster concerning these apparent violations. It instructs the broadcaster to submit within 20 days a written response fully explaining each apparent violation and all relevant surrounding facts and circumstances, including the specific actions taken to correct any violations and prevent them from recurring. The Notice also requires the broadcaster to include a timeline for completing any pending corrective actions.

FCC Issues Cease-and-Desist Letter to Telecommunications Company for Transmitting Illegal Robocalls

The FCC’s Enforcement Bureau issued a cease-and-desist letter to a telecommunications company for apparently transmitting illegal robocalls. The letter instructs the company to investigate, and if necessary, cease transmitting any illegal robocall traffic immediately and take steps to prevent its network from being used to transmit illegal robocalls.

The Enforcement Bureau issued the letter after an investigation revealed the company apparently originated multiple illegal robocall campaigns. The Bureau works closely with the USTelecom Industry Traceback Group (“Traceback Consortium”), which is the consortium selected pursuant to the TRACED Act to conduct tracebacks. The Traceback Consortium investigated prerecorded voice message calls that voice service providers and customers of YouMail flagged as illegal robocalls made without consent of the called party.

Between August 24, 2021 and October 15, 2021, the Traceback Consortium conducted tracebacks and concluded that the company originated over 80 calls that appeared to be illegal robocalls, including substantial numbers of government imposter scam calls such as posing as the Social Security Administration and the Federal Reserve, as well as calls threatening utility discontinuation, offering fake credit card rate reductions, and arrest warrant scams. Furthermore, the Traceback Consortium notified the company about the calls and provided access to supporting data identifying each call prior to the cease-and-desist letter being sent.

The FCC noted that in addition to the Traceback Consortium previously notifying the company, the numerous tracebacks to the company as an originator indicated that the company is apparently knowingly or negligently originating illegal robocall traffic. The letter instructs the company to take steps to “effectively mitigate illegal traffic within 48 hours” and inform the FCC and the Traceback Consortium within 14 days of the date of the letter of the steps it has taken to “implement effective measures” to prevent customers from using the network to make illegal calls.

If the company fails to properly take the actions listed in the letter or fails to take sufficient mitigating actions to prevent customers from using its network to make illegal robocalls, downstream U.S.-based providers may block calls transmitted by the company. Additionally, the FCC may find that the company’s certification in the Robocall Mitigation Database is deficient and direct the removal of its certification from the database. If its certification is removed from the Robocall Mitigation Database, all intermediate and terminating voice service providers would be required to immediately cease accepting calls from the company.

A PDF version of this article can be found at FCC Enforcement ~ November 2021.

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Digital television stations that provided ancillary or supplementary services between October 1, 2020 and September 30, 2021 must file an FCC Form 2100, Schedule G by December 1, 2021. TV stations that provided such services must pay to the FCC 5% of the gross revenues derived from providing such services. If, however, the station reporting revenue is a noncommercial TV station, the fee is reduced from 5% to 2.5% for that portion of the gross revenues derived from ancillary or supplementary services “which are nonprofit, noncommercial, and educational.”

Ancillary or supplementary services are all services provided on any portion of a TV station’s digital spectrum that is not necessary to provide free, over-the-air program streams. Examples of services that are considered ancillary or supplementary include, but are not limited to, “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, [and] subscription video.” Video broadcast services provided with no direct charge to viewers are not considered ancillary or supplementary.

As we previously noted, the FCC eliminated in 2018 the obligation that all television stations file these reports annually, instead requiring only those stations that actually provided ancillary or supplementary services during the past year to file. Stations which did not provide ancillary or supplementary services during the 12-month period ending on September 30, 2021 are not required to submit the form.

Form 2100, Schedule G can be filed in the FCC’s Licensing and Management System (LMS) and the FCC has provided visual instructions for the filing procedures. Should you need assistance in preparing and making this filing, please contact your Pillsbury counsel or any of the attorneys in Pillsbury’s Communications Practice.

A PDF version of this article can be found at December 1, 2021 Filing Deadline for DTV Stations Providing Ancillary or Supplementary Services.

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The filing window for broadcast Biennial Ownership Reports (FCC Form 323 and 323-E) opened on October 1, 2021. All licensees of commercial and noncommercial AM, FM, full-power TV, Class A Television and Low Power Television stations must submit their ownership reports by December 1, 2021.

To save parties from preparing an ownership report from scratch, the filing system permits parties to validate and resubmit previously filed ownership reports, so long as those reports were submitted through the current filing system and remain accurate.  Parties also have the ability to copy and then make changes to information included in previously submitted reports.  There is also a search page which allows a party to search for and review previously-submitted Ownership Reports.

For additional information on preparing and filing a biennial ownership report, the FCC hosted a video information session which is available at Information Session on Filing Biennial Ownership Reports, Forms 323 and 323-E and a PDF copy of the presentation is available here.

As a reminder, Biennial Ownership Reports submitted during this filing window must reflect the ownership interests associated with the station as they existed on October 1, 2021, even if an assignment or transfer of control was consummated after October 1, 2021. Should you need assistance preparing and filing your Biennial Ownership Report, please contact your Pillsbury counsel or any of the attorneys in Pillsbury’s Communications Practice.

A PDF of this article can be found at Biennial Ownership Reports Are Due by December 1, 2021 for All Broadcast Stations.

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Full power commercial and noncommercial radio, LPFM, and FM Translator stations, licensed to communities in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont and full power TV, Class A TV, LPTV, and TV Translator stations licensed to communities in Colorado, Minnesota, Montana, North Dakota, and South Dakota, must file their license renewal applications by December 1, 2021.

December 1, 2021 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:
Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont

Full Power TV, Class A, LPTV, and TV Translator Stations:
Colorado, Minnesota, Montana, North Dakota, and South Dakota

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 becoming familiar with the requirements for the filing itself, as well as being aware of 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.

Schedule 303-S: Application for Renewal of Radio and TV Broadcast Station Licenses

Parties to the Application

Some of the certifications an applicant is asked to make in Schedule 303-S relate solely to the station, and some—such as character certifications—relate to any “party to the application.” A party to the application is any individual or entity that has an attributable interest in a station. This includes all parties whose ownership interest, positional interest (i.e., an officer or director), or other relation to the applicant confers on that party a sufficient degree of influence or control over the licensee to merit FCC attention.

For a corporation, this typically includes all officers, directors, and shareholders with a 5% or greater voting interest; for an LLC, its officers and members; and for a partnership, all partners. However, each form of entity comes with its own caveats, limitations, and unique rules for determining attributable interest holders. For example, limited partners are normally attributable interest holders unless they have been “insulated” from partnership decisions pursuant to very specific FCC requirements. Filers should reach out to counsel prior to filing if there are any questions about who the FCC would consider a party in interest to the license renewal application.

Character Issues, Adverse Findings and FCC Violations

Pursuant to the FCC’s statutory obligation to consider any serious rule violations or patterns of abuse, each licensee must certify that neither it nor any party to the application has had “any interest in or connection with an application that was or is the subject of unresolved character issues.” Where the applicant is unable to make this certification, it must include an exhibit identifying the party involved, the call letters and location of the station (or file number of the FCC application or docket), and describe the party’s connection to the matter, including all relevant dates. The applicant must also explain why the unresolved character issue “is not an impediment” to grant of the license renewal application.

Applicants must also certify whether the licensee or any party to the application has been the subject of an adverse finding in any civil or criminal proceeding involving a felony, a mass-media related antitrust or unfair competition charge, a false statement to another governmental entity, or discrimination. The applicant must report adverse findings from the past ten years and include an exhibit explaining the matter in detail and why it should not be an impediment to a grant of the license renewal application. Note, however, that a station does not need to report an adverse finding that was disclosed to the FCC in the context of an earlier station application where it was subsequently found by the FCC to be not disqualifying.

The application form also asks the applicant to certify that “there have been no violations by the licensee of the Communications Act of 1934, as amended, or the rules or regulations of the Commission during the preceding license term.” The instructions to the form make clear that this question is only asking the applicant to certify that there have been no formal findings of a violation by the FCC or a court, such as a Notice of Apparent Liability, Notice of Violation, or similar finding of a rule violation. Applicants should not use this section to self-disclose any violations not previously identified by the FCC.

Foreign Ownership and Control

The applicant must also certify that the licensee has complied with Section 310 of the Communications Act regarding foreign influence over the station. Section 310 generally prohibits the FCC from issuing a license to an alien, a representative of an alien, a foreign government or the representative thereof, or a corporation organized under the laws of a foreign government. It also prohibits a license being issued to an entity of which more than 20% of the capital stock is owned or voted by aliens, their representatives, a foreign government or its representative, or an entity organized under the laws of a foreign country, or, absent a special ruling from the FCC, to an entity whose parent company  has more than 25% of its capital stock owned or voted by aliens, their representatives, a foreign government or its representative, or an entity organized under the laws of a foreign country.

Station Operations

The license renewal application also requires stations to certify that they are currently operational, as the FCC will not renew the license of a station that is not broadcasting.

In a similar vein, Section 73.1740 of the FCC’s Rules sets forth the minimum operating hours for commercial broadcast stations, and Section 73.561 of the Rules establishes minimum operating hours for noncommercial educational FM stations. In the license renewal application, stations must certify that they were not silent or operated less than the required minimum number of hours for a period of more than 30 days during the license term. If they cannot, they must include an exhibit disclosing the relevant details and explaining why it should not adversely affect the station’s license renewal.

Stations must also certify as to several statements regarding Radiofrequency Electromagnetic (RF) exposure of the public and workers at the transmitter site. Stations that were previously renewed and which have had no changes at their transmitter site since their last renewal application will generally be able to certify compliance with this statement. Stations that have had a material change in the RF environment at their transmitter site must assess the impact of that change before certifying RF compliance and may need to submit an exhibit demonstrating the station’s compliance with RF requirements.

Related Filings and Materials

 Other Certifications

Successfully navigating the license renewal application also requires stations to certify that the rest of their regulatory house is in order. For example, applicants must certify that they have timely made other regulatory filings, such as the Biennial Ownership Report on FCC Form 2100, Schedule 323 or 323-E, and confirm that their advertising agreements do not discriminate on the basis of race or gender and contain non-discrimination clauses. Applicants must also certify that they have placed all items required to be in the station’s Public Inspection File in the File, and that they have done so on a timely basis. Public File violations have traditionally been a significant cause of fines at license renewal time. As the Public Inspection File is now online, stations are reminded that third parties are now able to easily review and confirm the timeliness of Public File documents. As with all other certifications in the application form, stations must accurately respond and be prepared to provide documentation supporting their certifications if later requested by the FCC.

EEO

Depending on staff size, one of the items stations must certify is that they have timely placed in their Public Inspection File, as well as on their website, the annual Equal Employment Opportunity (“EEO”) Public File report.

Generally, a station that is part of a Station Employment Unit that employs fewer than five full-time employees is exempt from these requirements. However, at license renewal time, all stations, regardless of staff size, must file FCC Form 2100, Schedule 396, the Broadcast EEO Program Report. Stations in a Station Employment Unit with fewer than five full-time employees will only need to complete part of the form before filing it. As a practical matter, because of the mechanics of the FCC’s filing system, an applicant will generally be unable to file its license renewal application until it can provide in that form the file number generated by the FCC when the station’s completed Schedule 396 is filed.

Certifications for Full Power TV and Class A TV Stations Only

While there is significant overlap between the certifications included in both the radio and TV license renewal applications, an important portion of the form specific to full power TV and Class A TV stations concerns certifications regarding the station’s children’s television programming obligations.

The Children’s Television Act of 1990 requires commercial full power TV and Class A TV stations to: (1) limit the amount of commercial matter aired during programming designed for children ages 12 and under, and (2) air programming responsive to the educational and informational needs of children ages 16 and under. While stations have been required to submit Children’s Television Programming Reports and commercial limits certifications demonstrating their compliance with these requirements on a quarterly or annual basis,[1] the license renewal application requires applicants to further certify that these obligations have been satisfied and documented as required over the entire license term and to explain any instances of noncompliance. Stations can find additional information on the children’s television programming and reporting obligations in our most recent Children’s Television Programming Advisory.

Although noncommercial TV stations are not subject to commercial limitations or required to file Children’s Television Programming Reports, such stations are required to air programming responsive to children’s educational and informational needs. In preparation for license renewal, such stations should therefore ensure they have documentation demonstrating compliance with this obligation in the event their license renewal is challenged.

For Class A television stations, in addition to certifications related to children’s television programming, the application requires certification of compliance with the Class A eligibility and service requirements under Section 73.6001 of the FCC’s Rules. Specifically, such stations must broadcast a minimum of 18 hours a day and average at least three hours per week of locally produced programming each quarter to maintain their Class A status. Applicants must certify that they have and will continue to meet these requirements.

Post-Filing License Renewal Announcements

In prior license renewal cycles, stations were required to give public notice of a license renewal application both before and after the filing of that application. For the current cycle, the FCC eliminated the pre-filing public notices and modified the procedures for post-filing notices. These changes modify the timing and number of on-air announcements required, replace newspaper public notice requirements with an online notice, and revise the text of the announcements themselves.

As such, full power commercial and noncommercial radio and LPFM stations, and full power and Class A TV stations, as well as LPTV stations capable of local origination, must broadcast a total of six post-filing license renewal announcements over four consecutive weeks, with at least one airing each week and no more than two airing in any week (each of which must air on different days). The first such announcement must air within five business days after the FCC has issued a Public Notice announcing its acceptance for filing of the application.

On-air post-filing announcements must be broadcast on a weekday (Monday through Friday) between 7:00 am and 11:00 pm local time based on the applicant station’s community of license. The text of the announcement is as follows:

On [date], [applicant name], licensee of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license. Members of the public wishing to view this application or obtain information about how to file comments and petitions on the application can visit publicfiles.fcc.gov, and search in [station call sign’s] public file.

For those types of stations that do not have Public Inspection Files, the on-air post-filing announcement should instead be:

On [date], [applicant name], licensee of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license. Members of the public wishing to view this application or obtain information about how to file comments and petitions can visit www.fcc.gov/stationsearch, and search in the list of [station call sign’s] filed applications.

For television broadcast stations, when these on-air announcements are presented aurally, the public notice text must also be presented visually onscreen.

Special rules apply to noncommercial educational stations that do not normally operate during any month when their announcements would otherwise be due to air, as well as to other silent stations. These stations should contact counsel regarding how to give the required public notice.

Certification of Compliance

Within seven days of the broadcast of the last required announcement, full power radio and TV station and Class A TV station license renewal applicants should complete the attached Statement of Compliance and place it in the station’s Public Inspection File. LPFM and LPTV license renewal applicants should complete the attached Statement of Compliance and place it in their station records file.

Online Public Notice Required for FM Translator, TV Translator, and Certain LPTV Stations

FM translator, TV translator, and LPTV stations not capable of local origination are not required to broadcast post-filing announcements, and have typically been required to publish public notices in a local newspaper instead. The FCC has eliminated the newspaper publication requirement in favor of online notices, requiring such stations to publish written notice on a station-affiliated website upon filing a license renewal application.

A prominently displayed link or tab that reads “FCC Applications” must be posted on the station website homepage, and link to a separate page containing the following notice:

On [date], [applicant name], [permittee / licensee] of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license. Members of the public wishing to view this application or obtain information about how to file comments and petitions on the application can visit [insert hyperlink to application link in applicant’s online Public Inspection File or, if the station has no online Public Inspection File, to application location in the Media Bureau’s Licensing and Management System].

This separate page must also include the date the page was last revised. The notice and corresponding link to the license renewal application must be posted within five business days after the FCC has issued a Public Notice announcing its acceptance for filing of the application and remain on the station’s website for 30 consecutive days. At the end of the 30-day period, the notice can be removed, and if no other applications requiring online notice are pending, the webpage should be updated to include the following text instead:

There are currently no applications pending for which online public notice is required.

The rules contain specific requirements as to where station applicants that do not have websites should post their announcement. These stations should consult with counsel on the proper online notice procedures.

After publishing the notice, the licensee should complete and execute a Statement of Compliance regarding that publication and place the Statement of Compliance in its Public Inspection File. While FM translator, TV translator, and LPTV station licensees are not required to keep a Public Inspection File, they are required to maintain and make available to FCC representatives a station records file that contains their current authorization and copies of all FCC filings and correspondence with the Commission. For them, the completed Statement of Compliance should be included in their station records file.

[1] Note that in 2019, the FCC changed the obligation to file the Children’s Television Programming Report and place the commercial limits certification in the Public Inspection File from a quarterly requirement to an annual obligation.

The full article, along with examples of compliance statements, can be found at License Application Renewal Reminder.

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December 1 is the deadline for broadcast stations licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont 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 applications due by December 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.

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

Consistent with the above, December 1, 2021 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 Rule, 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 otherwise part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in its station records file.

These Reports will cover the period from December 1, 2020 through November 30, 2021. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before November 30, so long as they begin the next annual reporting period on the day after the cut-off date used in the immediately preceding Report. For example, if the Nonexempt SEU uses the period December 1, 2020 through November 20, 2021 for this year’s report (cutting it off up to ten days prior to November 30, 2021), then next year, the Nonexempt SEU must use a period beginning November 21, 2021 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 Rule requires 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 and which are 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 and which are 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 in which a station’s community of license is located, 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 Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont must earn at least the required minimum number of Menu Option credits during the two year “segment” between December 1, 2019 and November 30, 2021, as well as during the previous two-year “segments” of their license term.
  • Nonexempt radio station SEUs licensed to communities in Colorado, Minnesota, Montana, North Dakota, and South Dakota must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between December 1, 2020 and November 30, 2022, as well as during the previous two-year “segments” of their license term.
  • Nonexempt television station SEUs licensed to communities in Colorado, Minnesota, Montana, North Dakota, and South Dakota must earn at least the required minimum number of Menu Option credits during the two-year “segment” between December 1, 2019 and November 30, 2021, as well as during the previous two-year “segments” of their license term.
  • Nonexempt television station SEUs licensed to communities in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between December 1, 2020 and November 31, 2022, as well as during the previous two-year “segments” of their license term.

Additional Obligations for Stations Whose License Renewal Applications Are Due by December 1, 2021 (Radio Stations Licensed to Communities in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont, and Television Stations Licensed to Communities in Colorado, Minnesota, Montana, North Dakota, and South Dakota)

December 1, 2021 is the date by which radio stations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont and television stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota must file their license renewal applications. In conjunction with that filing, these stations must submit Schedule 396 of FCC Form 2100. Nonexempt SEUs must include in their Schedule 396 filing their two most recent EEO Public File Reports and a narrative discussing their EEO Program over the past two years.

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 Pillsbury’s Communications Practice.

[1] In light of the significant layoffs and workforce reductions caused by the COVID-19 pandemic, the FCC has waived the requirement that broadcasters engage in broad outreach when rehiring employees that were laid off in connection with the COVID-19 pandemic, but only where the employee is rehired within nine months of being laid off. Additional information on this limited waiver of EEO obligations can be found in our CommLawCenter article on this subject.

A PDF of this article can be found at EEO Public File Deadline