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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:

  • Broadcaster Receives $518,283 Fine for Local TV Ownership Rule Violation
  • Ohio LED Sign Manufacturer Enters $47,600 Consent Decree for Marketing Unauthorized Devices
  • FCC Reduces Fine to $3,400 for Washington LPTV Licensee’s Unauthorized Operation and Untimely License Applications

TV Broadcaster Receives Statutory Maximum Fine for Violating FCC Multiple Ownership Rule

A large multi-market television company (the “Company”) was fined $518,283 for violating the FCC’s rule prohibiting one entity from owning two top-four rated TV stations in the same Nielsen Designated Market Area (“DMA”).  This Forfeiture Order follows a July 2021 Notice of Apparent Liability (“NAL”), which we wrote about here.

In July 2020, the Company acquired the non-license assets and network affiliation of a top-four rated station in the Anchorage, Alaska DMA and placed the network’s programming on a non-top-four rated station that was already owned by the Company.  At the time of the transaction, the Company owned one top-four station in the market and one that it claimed organically improved its ratings to join the top four and therefore was not in violation of 47 C.F.R. 73.3555, which includes the Local Television Ownership Rule (the “Rule”).  The Rule prohibits an entity from owning two full-power television stations in the same DMA if both commonly owned stations are ranked among the top-four rated stations in the market.  However, the Rule permits a top-four duopoly if one of the stations was outside the top four and organically improved its ratings to join the top four.  Note 11 (the “Note”), which was added to the Rule in 2016, bars the common ownership of two top-four stations with overlapping contours in the same DMA through the acquisition of a network affiliation and says:

An entity will not be permitted to directly or indirectly own, operate, or control two television stations in the same DMA through the execution of any agreement (or series of agreements) involving stations in the same DMA, or any individual or entity with a cognizable interest in such stations, in which a station (the “new affiliate”) acquires the network affiliation of another station (the “previous affiliate”), if the change in network affiliations would result in the licensee of the new affiliate, or any individual or entity with a cognizable interest in the new affiliate, directly or indirectly owning, operating, or controlling two of the top-four rated television stations in the DMA at the time of the agreement.

The FCC found that the transaction—acquiring the network affiliation and placing that programming on a lower-rated station—was the functional equivalent of a license transfer or assignment and effectively turned the station into a top-four station in violation of the Rule.  The Forfeiture Order noted that the Company had not sought a waiver of the Rule or contacted FCC staff about the permissibility of the transaction.

In response to the NAL, the Company argued that (1) because one of its stations had improved its ratings and already achieved top-four status prior to the transaction, the “plain language” of the Note was not implicated by the transaction; (2) the Company lacked notice that the Note prohibits purchases of network affiliations, rather than just affiliation swaps; and (3) the FCC’s interpretation of the Note constitutes impermissible regulation of the Company’s content choices for its station.  The FCC rejected these arguments.  It found that the relevant ratings showed the station as the fifth-ranked (not top four, as the Company contended) station in the market before the network’s programming caused it to enter the top four.  It also found that the Company could not rely on an exemption to the Rule that allows a network to offer an affiliation to a duopoly owner (one top-four station and one non-top-four station) if the network is unhappy with its current affiliate and the proposed affiliate has “demonstrated superior station operation.”  In this case, the Company indicated it declined an offer from the network to acquire the affiliation and instead bought the affiliation from the current affiliate.  The FCC also pointed to its Second Report and Order that provided more detail on affiliation acquisitions as notice of permissible transactions and stood by its finding that the Rule and accompanying Note 11 do not regulate a Company’s content choices, but merely market concentration.

The FCC concluded that the appropriate fine would be $8,000 for each day the violation persisted, which would result in a total fine of $1,720,000.  However, the statutory cap on fines for a single violation is $518,283.  As a result, the Commission reduced the proposed fine to that amount and indicated it did not see a justification for any further reduction when considering the nature and duration of the violation and the Company’s ability to pay.

LED Sign Manufacturer Settles Equipment Marketing Investigation for $47,600

The FCC entered into a Consent Decree with an Ohio-based sign manufacturer, resolving an investigation into whether the manufacturer unlawfully marketed light-emitting diode (“LED”) signs in the United States.  The entity manufactures, advertises, and sells fully assembled LED signs.  The investigation found, and the manufacturer admitted, that it marketed several unauthorized LED signs without the required FCC equipment authorization, labeling, and user manual disclosures and failed to retain required test records in violation of the Communications Act and the FCC’s Rules. Continue reading →

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Full power TV, Class A TV, LPTV, and TV Translator stations licensed to communities in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont must file their license renewal applications by December 1, 2022.

December 1, 2022 is the license renewal application filing deadline for commercial and noncommercial TV broadcast stations licensed to communities in the following states:

Full Power TV, Class A, LPTV, and TV Translator Stations:
Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont

Overview

The FCC’s state-by-state license renewal cycle began in June 2019 for radio stations and in June 2020 for television stations. 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 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. 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 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 should be mindful that third parties are 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 a result, 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 provide the required public notice.

Certification of Compliance

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

Online Public Notice Required for TV Translator and Certain LPTV Stations

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 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 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.

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

[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.

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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.

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, 2022 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, 2021 through November 30, 2022.  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, 2021 through November 20, 2022 for this year’s report (cutting it off up to ten days prior to November 30, 2022), then next year, the Nonexempt SEU must use a period beginning November 21, 2022 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, 2021 and November 30, 2023, as well as during the previous two-year “segments” of their license terms.
  • 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 terms.
  • 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, 2021 and November 30, 2023, as well as during the previous two-year “segments” of their license terms.
  • 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 30, 2022, as well as during the previous two-year “segments” of their license terms.

Additional Obligations for Stations Whose License Renewal Applications Are Due by December 1, 2022 (Television Stations Licensed to Communities in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont)

December 1, 2022 is the date by which television stations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont 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.

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

[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.

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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:

  • FCC Seeks $20,000 Fine for Long-Term Unauthorized Operations at California AM Station
  • Failure to File License Applications Brings $13,000 Proposed Fine for Washington LPTV Stations
  • FM Translator’s Violation of Program Origination Rules Leads to $1,500 Fine

AM Station’s Years-Long Unauthorized Modification of Nighttime Facilities Results in $20,000 Proposed Fine

The FCC’s Media Bureau issued a $20,000 Notice of Apparent Liability for Forfeiture (“NAL”) to the licensee of a California AM station for the station’s ongoing operation outside its licensed parameters.  This action comes as the FCC is evaluating the station’s August 2021 license renewal application.  That evaluation requires the FCC to consider whether during its license term: (1) the station has served the public interest, convenience, and necessity; (2) there have been any serious violations by the station of the Communications Act or FCC Rules; and (3) there have been any other violations by the station which, taken together, constitute a pattern of abuse.  The alleged violations at issue were not disclosed in the station’s license renewal application.

Since 1970, the station has been authorized to operate a directional signal at night at a power level of 5 kW.  In 1993, the licensee received special temporary authority (“STA”) from the FCC to operate the station at night in non-directional mode at a reduced power of 1 kW.  That authority was last extended in late October 1996, with a warning that the station needed to “return to licensed operation or to file FCC Form 301 for modification of its nighttime facilities.”  The licensee did not return to licensed operation or file a Form 301.  Following a 2016 complaint and an admission by the licensee, the Enforcement Bureau learned that the station had continued to operate non-directionally at night at 1 kW.  The FCC again warned the licensee that it had to either apply for an STA and then return the station to licensed operation, or apply to modify the station’s license to reflect its actual operation.  The licensee did not request an STA or apply to modify the station’s license.

Four years later, another complaint against the station alleged that the station had been operating non-directionally at 1 kW for more than 30 years.  When contacted, the licensee confirmed this and said that directional operation causes significant loss to the station’s coverage area and that, because the station had not received any consumer or broadcaster complaints, it would not be in the public interest, convenience and necessity for its signal to not cover roughly 75% of the population it seeks to serve.  The licensee also highlighted the public safety role the station has played since it went on the air almost 75 years ago.

Last month, the licensee requested an STA to continue operating non-directionally at night with reduced power.  The Media Bureau denied the request due to the licensee’s lack of justification for needing to operate with an alternate antenna system and at reduced power.  The STA request also did not include any engineering studies proving the proposed facility would protect co-channel and first adjacent stations.  An FCC interference study found that the proposed facility would in fact interfere with multiple stations.  In the STA denial, the Media Bureau ordered the station to immediately terminate its unauthorized non-directional nighttime operation and either resume its licensed directional operation at night or file an application to modify its nighttime operation so as to eliminate the interference being caused by its unauthorized nighttime operation.

The FCC cited several rules it believed the station had violated.  Section 301 of the Communications Act and Sections 73.1350(a), and 73.1745(a) of the FCC’s Rules each require licensees to operate according to their FCC-granted authorizations.  Section 73.1560(a)(1) requires AM stations to maintain their antenna input power “as near as practicable to the authorized antenna input power” and “not [] less than 90 percent nor greater than 105 percent of the authorized power,” which the station would have violated by operating at reduced power without authorization.  The NAL stated that the licensee also violated Sections 73.1635 and 73.1690(b) of the FCC’s Rules, which set out the circumstances under which a station must request an STA to operate at variance and when it must apply for a construction permit to alter the station’s facilities.

Ultimately, the FCC decided an upward adjustment of the $13,000 base fine to $20,000 was appropriate, pointing to the station’s prolonged and intentional unauthorized operation and the licensee’s argument that it, not the FCC, is better positioned to judge how the station can best serve the public interest.  In situations where violations have occurred over many years, the FCC is generally prohibited by the Communications Act from considering any violation that occurred prior to the station’s current license term, which here began in late 2013.  Once this enforcement action is resolved, the FCC indicated it intends to renew the station’s license for two years instead of the typical eight-year term.  This shorter renewal term will give the Commission an opportunity to review the station’s rule compliance and determine whether it is operating in the public interest two years from now.

FCC Proposes $13,000 Fine for Washington LPTV Licensee That Failed to File License Applications for Modifications

A Washington state broadcaster failed to timely file license to cover applications and allegedly engaged in unauthorized operation of two low power televisions stations as a result.  In response, the FCC’s Media Bureau issued an NAL proposing a $13,000 fine.

The stations’ digital channels were displaced in the Broadcast Spectrum Incentive Auction, and they were granted construction permits for new displacement channels in June 2018.  The licensee was also granted STAs to begin temporary operations on the displacement channels.  The displacement permits expired in June 2021.  While the stations claimed to have completed construction to operate on their new channels by October 2018 and December 2018, respectively, both stations failed to file applications for licenses to operate permanently on their new channels before their permits expired.

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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:

  • Tower Owners Cited for Unsafe and Improperly Registered Tower
  • FCC Fines LPFM for Unauthorized Operation, Failure to Admit FCC Agents, and EAS Violations
  • Violations of Environmental, Historic Preservation, and Antenna Structure Registration Rules Lead to $38,000 Fine

FCC Cites Owners of Improperly Lit Tower

Owners of an Illinois tower were cited for failing to maintain required obstruction lighting, failing to check the structure’s lighting visually at least once every 24 hours or use an automatic alarm system to detect a lighting outage, failing to notify the FAA of lighting outages, failing to repaint the structure to maintain good visibility, and failing to notify the FCC of a change in ownership of the tower.  Such failures violate Part 17 of the FCC’s Rules, which governs antenna construction, marking, and lighting.  The FCC noted that it may only impose monetary fines against non-regulatees after issuing a citation (as it did here), the violator is given a reasonable opportunity to respond, and the violator subsequently still engages in the conduct described in the citation.  If the owners are later found to remain in violation of the rule provisions detailed in the citation, the FCC may consider both the conduct that led to the citation and the conduct following the citation in assessing a fine.

Following a 2018 complaint reporting a lighting outage for the tower, the FCC asked the FAA to issue a 90-day NOTAM (Notice to Air Missions) alerting pilots of the hazard.  Chicago FCC agents contacted the then-owner of the structure and were told the lighting issues would be corrected.  A field inspection revealed that the structure was over 200 feet in height, that the structure was being used for radio transmissions, that it lacked the required flashing red light, and that the remaining obstruction lighting was extinguished.  The FCC again contacted the structure’s owner and followed up with a Notice of Violation (“NOV”).  There is no record that the owner responded to the NOV.  Future field inspections revealed that the paint on the tower was severely faded and chipped.  An entity leasing the tower and two FCC licensees collocated on it were subsequently contacted in an effort to bring the tower into compliance.

By 2022, the parcel of land on which the tower sits was sold to the current owners.  Two months prior to that sale, an FCC agent again visited the site and observed that the structure had not been repainted and that all of the red obstruction lights were extinguished.  The agent also concluded that no licensees or users were operating from the tower.  Under the applicable FAA advisory, the structure, because it exceeds 200 feet in height, must be painted and have at its top at least one red flashing beacon to ensure an unobstructed view of at least one light by a pilot, along with two or more steady burning red lights mounted at the one-fourth and three-fourth levels of the overall height of the tower, and two red flashing beacons at the mid-level of the structure.  The tower must also be marked with alternate sections of aviation orange and aviation white paint and repainted as necessary.  These safety requirements must be met until the structure is dismantled, even if the tower is no longer being used for transmissions.  The FCC noted that any lighting outage must be reported to the FAA, and that failing to update the tower’s Antenna Structure Registration interferes with the FCC’s ability to identify the owner when attempting to remedy lighting outages.

The current owners of the tower must respond to the citation within 30 days and provide a written statement describing how they acquired the tower, provide a copy of any agreements regarding conveyance of the structure, provide current antenna structure ownership information, describe the actions they have taken to prevent future violations of the FCC’s rules, and provide a timeline by which they will complete any corrective actions.

LPFM Station Fined $25,000 for Unauthorized Operation, Failure to Admit FCC Agents, and Violating EAS Rules

Following an October 2020 Notice of Apparent Liability for Forfeiture (“NAL”), a Florida low power FM licensee must now pay $25,000 after the FCC found no reason to change the originally proposed fine amount.  The Commission found that the licensee violated Section 301 of the Communications Act (failing to operate a station in accordance with its license) and Sections 73.840 (operating a station outside of the permitted transmitter power output parameters), 73.845 (maintaining an LPFM station in compliance with the LPFM technical rules), 73.878(a) (making a broadcast station available for inspection by FCC representatives), and 11.11(a) (participation by broadcast stations in the Emergency Alert System (“EAS”)) of the FCC’s Rules. Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by October 10, 2022, reflecting information for the months of July, August, and September 2022.

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, 2022, covering the period from July 1, 2022 through September 30, 2022.

Stations should keep the following in mind:

  • Stations should maintain routine outreach to the community to learn of various groups’ perceptions of community issues, problems, and needs. Stations should document the contacts they make and the information they learn. Letters to the station regarding community issues should be made a part of the station’s database.
  • There should be procedures in place to organize the information that is gathered and bring it to the attention of programming staff with a view towards producing and airing programming that is responsive to significant community issues. This procedure and its results should be documented.
  • Stations should ensure that there is some correlation between the station’s contacts with the community, including letters received from the public, and the issues identified in their Quarterly Lists. A station should not overlook significant issues. In a contested license renewal proceeding, while the station may consider what other stations in the market are doing, each station will have the burden of persuading the FCC that it acted “reasonably” in deciding which issues to address and how.
  • Stations should not specify an issue for which no programming is identified. Conversely, stations should not list programs for which no issue is specified.
  • Under its former rules in this area, the FCC required a station to list five to ten issues per quarter. While that specific rule has been eliminated, the FCC has noted that such an amount will likely demonstrate compliance with the station’s issue-responsive programming obligations. However, the FCC has indicated that licensees may choose to concentrate on fewer than five issues if they cover them in considerable depth. Conversely, the FCC has noted that broadcasters may seek to address more than ten issues in a given quarter, due perhaps to program length, format, etc.
  • The Quarterly List should reflect a wide variety of significant issues. For example, five issues affecting the Washington, DC community might be: (1) the fight over statehood for the District of Columbia; (2) fire code violations in DC school buildings; (3) clean-up of the Anacostia River; (4) reforms in the DC Police Department; and (5) proposals to increase the use of traffic cameras on local streets. The issues should change over time, reflecting the station’s ongoing ascertainment of changing community needs and concerns.
  • Accurate and complete records of which programs were used to discuss or treat which issues should be preserved so that the job of constructing the Quarterly List is made easier. The data retained should help the station identify the programs that represented the “most significant treatment” of issues (e.g., duration, depth of presentation, frequency of broadcast, etc.).
  • The listing of “most significant programming treatment” should demonstrate a wide variety in terms of format, duration (long-form and short-form programming), source (locally produced is presumptively the best), time of day (times of day when the programming is likely to be effective), and days of the week. Stations should not overlook syndicated and network programming as ways to address issues.
  • Stations should prepare each Quarterly List in time for it to be placed in their Public Inspection File on or before the due date. If the deadline is not met, stations should give the true date when the document was placed in the Public Inspection File and explain its lateness.
  • Stations should show that their programming commitment covers all three months within each quarter.

These are just some suggestions that can assist stations in meeting their obligations under the FCC’s rules. The requirement to list programs providing the most significant treatment of issues may persuade a station to review whether its programming truly and adequately educates the public about community concerns.

Below is a sample format for a “Quarterly Issues/Programs List” to assist stations in creating their own Quarterly List. Please do not hesitate to contact the attorneys in the Communications Practice for specific advice on how to ensure your compliance efforts in this area are adequate.

Class A Television Stations Only

Class A television stations must certify that they continue to meet the FCC’s eligibility and service requirements for Class A television status under Section 73.6001 of the FCC’s Rules. While the relevant subsection of the Public Inspection File rule, Section 73.3526(e)(17), does not specifically state when this certification should be prepared and placed in the Public Inspection File, we believe that since Section 73.6001 assesses compliance on a quarterly basis, the prudent course for Class A television stations is to place the Class A certification in the Public Inspection File on a quarterly basis as well.

Sample Quarterly Issues/Programs List[1]

Below is a list of some of the significant issues responded to by Station [call sign], [community of license], [state of license], along with the most significant programming treatment of those issues for the period [date] to [date].  This list is by no means exhaustive.  The order in which the issues appear does not reflect any priority or significance.

2nd-Quarter-Issues

[1] This sample illustrates the treatment of one issue only.

A PDF version of this article can be found at 2022 Third Quarter Issues/Programs List Advisory for Broadcast Stations

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The FCC released its Report and Order adopting the final amounts that regulatees must pay in annual regulatory fees for FY2022, and opened the filing window for making those payments. The window closes at 11:59 p.m. Eastern Time on September 28, 2022.

If paying the fees wasn’t challenging enough, as part of its continuing rollout of the Commission Registration System (CORES), the FCC has retired the familiar Fee Filer system that regulatees previously used to make these payments. As a result, regulatory fee payments must now be made through CORES, meaning that payors will have to contend with a new fee filing system for this year’s regulatory fees. Given the initial reactions of some that attempted to submit their regulatory fees since the window first opened, regulatees would be wise to start the process early, ensuring they have enough time to deal with the inevitable filing hiccups and still meet the September 28, 2022 deadline.

In the past, a party owing regulatory fees signed into the FCC’s Fee Filer system using the Federal Registration Number (FRN) of the licensee and the password established for that FRN. If a filer lost either the FRN or password they had used in prior years to pay the station’s fees, they could create a new account or reset the password on the spot to get their payments on file in a timely manner. The new filing system, however, uses a more cumbersome two-step process that is not conducive to overcoming last-minute issues involving a lost FRN or password, and has the potential to trip up those unaccustomed to it.

This is the same two-step process that broadcasters first had to navigate to file their Forms 1, 2 and 3 in the EAS Test Reporting System (ETRS) in connection with nationwide tests of the EAS, which we wrote about back in 2017. That two-step process proved difficult for many and prevented some broadcasters from timely making their required filings, so we are describing the individual steps in detail below. However, stations should also be aware that if their engineer or lawyer completed this process in connection with the ETRS filings in 2017, they may now be considered by the FCC’s system as the Administrator of the licensee’s FRN.  If so, they will need to be consulted to get the station’s regulatory fees on file this year.

To begin the process, the individual making the regulatory fee payment on behalf of the licensee must create a personal account in CORES here using their email address and a password of their choosing. This account is personal to the filer, not the licensee, and identifies who is making the filing on the licensee’s behalf.

Next, the filer must sign in to CORES here using that new account and choose the option to “Associate Username to FRN” on the main screen to be able to make filings under the licensee’s FRN. As noted, if someone else has already done this, that person will be the Administrator and must grant the “associate” request before the submission can proceed, delaying the regulatory fee filing until that person responds to a request to approve the association (assuming they respond at all if they have retired, departed, etc.).

Once the filer’s account is associated with the licensee’s FRN, the filer must sign into CORES and select the “Manage Existing FRNs/FRN Financial/Bill and Fees” option on the main screen.

On the next screen, they must select the “Regulatory Fee Manager” option.

Finally, they need to select the licensee’s FRN from a dropdown list of all FRNs associated with the account and click the “Find Assessments” button. The next screen should display the licensee’s name and a total fee due amount.

Licensees should click the link labeled “View” to see the details of what stations and fees are included in the total shown. Errors in importing prior year data are common, especially where a licensee has used multiple FRNs in the past, and early reports indicate that the system-generated fee totals are sometimes missing stations, putting those licensees at risk of interest and penalties if they do not add the missing stations/fees before filing. If fees or stations are missing, the licensee must click the button labeled “Add More Manually” to add the missing stations/fees. If all fees are accounted for, the filer clicks on the “Continue to Pay” button to complete the payment process.

As for the fee amounts themselves, broadcasters can review the Commission’s Media Services Regulatory Fees Factsheet summarizing the fees due in each Media Service category and look up the fees due for individual broadcast call signs here. The FCC notes that “[i]n some instances, it may be necessary to clear your browser before logging onto the website” to look up fees. Fees for authorizations in other services such as transmit earth stations can be found in the Factsheets for those services on the FCC’s regulatory fee page here. Information about seeking deferrals or exemptions from paying the fees (for those who might qualify) can be found here.

The bottom line is that broadcasters should act quickly to begin the FY2022 regulatory fee payment process because it will look very different from how it appeared in the past, and late or missed payments can incur significant interest and penalties.

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Full power TV, Class A TV, LPTV, and TV Translator stations licensed to communities in Alaska, Hawaii, Oregon, Washington, Guam, Mariana Islands, and American Samoa must file their license renewal applications by October 3, 2022.

October 3, 2022 is the license renewal application filing deadline for commercial and noncommercial TV broadcast stations licensed to communities in the following states:

Full Power TV, Class A, LPTV, and TV Translator Stations:
Alaska, Hawaii, Oregon, Washington, Guam, Mariana Islands, and American Samoa

Overview

The FCC’s state-by-state license renewal cycle began in June 2019 for radio stations and in June 2020 for television stations. 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. Continue reading →

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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 applications due by October 3. 

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, October 1, 2022 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 October 1, 2021 through September 30, 2022.  However, Nonexempt SEUs may “cut off” the reporting period up to ten days before September 30, so long as they begin the next annual reporting period on the day after the cut-off date used in the immediately preceding Report.  For example, if the Nonexempt SEU uses the period October 1, 2021 through September 20, 2022 for this year’s report (cutting it off up to ten days prior to September 30, 2022), then next year, the Nonexempt SEU must use a period beginning September 21, 2022 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 Alaska, American Samoa, Florida, Guam, Hawaii, the Mariana Islands, Oregon, Puerto Rico, the Virgin Islands, and Washington must earn at least the required minimum number of Menu Option credits during the two year “segment” between October 1, 2021 and September 30, 2023, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt radio station SEUs licensed to communities in Iowa and Missouri must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2020 and September 30, 2022, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Iowa and Missouri must earn at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2021 and September 30, 2023, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Alaska, American Samoa, Florida, Guam, Hawaii, the Mariana Islands, Oregon, Puerto Rico, the Virgin Islands, and Washington must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2020 and September 30, 2022, as well as during the previous two-year “segments” of their license terms.

Additional Obligations for Stations Whose License Renewal Applications Are Due by October 3, 2022 (Television Stations Licensed to Communities in Alaska, American Samoa, Guam, Hawaii, the Mariana Islands, Oregon, and Washington)

October 3, 2022 is the date by which television stations in Alaska, American Samoa, Guam, Hawaii, the Mariana Islands, Oregon, and Washington 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

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Broadcast stations face a September 15 deadline to ensure that all programming aired on their stations complies with the FCC’s foreign sponsorship disclosure requirements.

The Foreign Sponsorship Disclosure Rule was adopted by the FCC in April 2021, targeting airtime lease agreements between broadcasters and foreign governments or their representatives. The rule requires stations to take specific steps to ensure that the public is made aware of any programming aired that is provided, funded, or distributed by “governments of foreign countries, foreign political parties, agents of foreign principals, and United States-based foreign media outlets.”

Specifically, broadcasters are required to notify program suppliers leasing airtime or providing free programming to the station for airing that there is a disclosure requirement that applies to programming provided by foreign government entities or their agents, and to affirmatively ask whether the programmer is a foreign government entity or an agent of one, as well as whether a foreign government entity or an agent of one was involved in the preparation, funding, or distribution of the programming.

That inquiry must be documented by the broadcaster, and the broadcaster must retain that documentation for the remainder of the station’s license term, or one year, whichever is longer. If the inquiry results in a determination that the programming was in fact prepared, funded, or distributed by a foreign government entity or an agent of one, then a disclosure notice must air at the beginning and end of the program, stating: “The [following/preceding] programming was [sponsored, paid for, or furnished], either in whole or in part, by [name of foreign governmental entity] on behalf of [name of foreign country].  If the program length is five minutes or less, a single announcement can be aired either at the beginning or end of it, and if it is longer than an hour, the announcement must also air at regular intervals, airing at least once per hour.  Note that the FCC specifically excluded agreements to air short-form advertising from its definition of leasing agreements covered by the Rule.

In addition to airing the disclosure, the station must upload a copy of the disclosure, along with the name of the affected program and the dates and times it aired, to its Public Inspection File on a quarterly basis.  These materials should be uploaded to the standalone file folder titled “Foreign Government-Provided Programming Disclosures.”

The Foreign Sponsorship Disclosure Rule went into affect for new airtime leasing arrangements on March 15, 2022.  However, because the Rule applies to both newly-entered and existing airtime leasing arrangements, the FCC provided a six-month period for stations to complete the inquiry/documentation process for airtime arrangements created prior to March 15, 2022.

That grace period ends on September 15, 2022, at which point stations should have completed their inquiries for all programming arrangements (not just pre-March 15, 2022 leasing agreements), documented those inquiries, and commenced airing on-air disclosures for any content that must be identified as having foreign government-connected sponsorship. Therefore, to the extent they have not already done so, stations with existing airtime leasing agreements should reach out to the program provider to determine whether a disclosure is required.

For new airtime agreements going forward, broadcasters may want to consider making the notice and inquiry part of the leasing agreement, integrating language into the leasing agreement forms to include a discussion of the disclosure requirement and requiring the programmer to affirmatively verify whether an on-air disclosure is required. To the extent that the programmer discloses that it is a foreign government entity or agent, then the agreement should note that the station will be running the required disclosure.

That approach of course doesn’t work for agreements that were previously created (unless done as an amendment to the original contract), so stations needing to document their inquiries relating to agreements that predated March 15, 2022 will need to separately document the inquiry, and then ensure that any program content determined to require a disclosure commences airing with the disclosure no later than September 15.

As noted, the Rule applies to all agreements to lease airtime to third parties. Therefore, to the extent that they have not already done so, broadcasters should be sure to complete their inquiries, document them, and commence airing the required disclosures.  Stations should also be careful not to forget to upload those disclosures to their Public Inspection File each quarter.