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By Lauren Lynch Flick and Christine A. Reilly

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by July 10, 2011, reflecting programming aired during the months of April, May and June, 2011.

Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 and the FCC Rules adopted under the Act, full power and Class A television stations are required, among other things, to: (1) limit the amount of commercial matter aired during programs originally produced and broadcast for an audience of children 12 years of age and younger; and (2) air programming responsive to the educational and informational needs of children 16 years of age and younger.

For all full-power and Class A television stations, website addresses displayed during children’s programming or promotional material must comply with a four-part test or they will be counted against the commercial time limits. In addition, the contents of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations. The definition of commercial matter now include promos for television programs that are not children’s educational/informational programming or other age-appropriate programming appearing on the same channel. Licensees must prepare supporting documents to demonstrate compliance with these limits on a quarterly basis.

Specifically, stations must: (1) place in their public inspection file one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television; and (2) complete FCC Form 398, which requests information regarding the educational and informational programming aired for children 16 years of age and under. The Form 398 must be filed electronically with the FCC and placed in the public inspection file. The base forfeiture for noncompliance with the requirements of the FCC’s Children Television Programming Rule is $10,000.

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Hope everyone had a great July 4th! With the long weekend now behind us, I wanted to remind readers that July 10th represents a significant filing deadline for radio and television stations. Below is a brief summary of the quarterly deadlines, as well as links to our Client Alerts describing the requirements in more detail.

Children’s Television Programming Documentation

All commercial full-power television stations and Class A LPTV stations must prepare and file with the FCC a Form 398 Children’s Programming Report for the second quarter of 2011, reflecting children’s programming aired during the months of April, May, and June, 2011. The Form 398 must be filed with the FCC and placed in stations’ public inspection files by July 10, 2011.

In addition to requiring stations to air programming responsive to the educational and informational needs of children, the FCC’s rules limit the amount of commercial material that can be aired during programming aimed at children. Proof of compliance with the children’s television commercial limitations for the second quarter of 2011 must also be placed in stations’ public inspection files by July 10, 2011.

For a detailed discussion of the children’s programming documentation and filing requirements, please see our Client Alert here.

Quarterly Issues Programs Lists

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems. Radio and television broadcast stations, whether commercial or noncommercial, must prepare and place in their public inspection files by July 10, 2011, a list of important issues facing their communities, and the programs which aired during the months of April, May, and June, 2011 dealing with those issues. For a detailed discussion of these requirements, please see our Client Alert here.

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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 Fines FM Broadcaster an Extra $5,000 For Inaction
  • Inaccurate Tower Ownership Information Ends in $3,000 Fine

Failure to Heed an FCC Warning Regarding Public Inspection File Violations Results in $15,000 Fine
Following a routine inspection in April 2010, the Enforcement Bureau’s Pennsylvania Field Office issued a Letter of Inquiry (“LOI”) regarding the contents of a Pennsylvania FM station’s public inspection file. According to a recently released Notice of Apparent Liability (“NAL”), all of the station’s issues/programs lists for the current license term, a total of 15 quarters, were unaccounted for in the station’s public inspection file at the time of the inspection. Section 73.3526(e)(12) of the FCC’s Rules requires broadcasters to place in their public inspection file each quarter a list of programs that have provided the station’s most significant treatment of community issues. The base forfeiture for violations of Section 73.3526 is $10,000.

In its response to the LOI, the FM broadcaster admitted that the quarterly issues/programs lists were unavailable on the day of the inspection. The FM broadcaster indicated that it was evident “a person or persons had gone through the file and that some of the items had been removed” and was “committed” to bringing the station’s public inspection file into compliance.

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By Glenn S. Richards and Christine A. Reilly

In a series of actions within the last five days, the FCC has focused its enforcement attention on cramming — the unauthorized placement of fees onto a consumer’s monthly phone bill by its own phone provider or an unaffiliated third party. These charges could be for telecommunications products and services but could also be for cosmetics or diet products. At an event in Washington, DC on June 20th, FCC Chairman Julius Genachowski announced the launch of a major new effort to educate consumers about cramming and plans for a proceeding that will empower consumers to better protect themselves from cramming. The FCC estimates that up to 20 million Americans may be victims of cramming each year.

In a series of Notices of Apparent Liability (NAL) released last week, the FCC issued fines between $1.5 and $4.2 million against four telephone service providers for cramming. These charges usually range from $1.99 to $19.99 per month and may go undetected for months. To reinforce its concerns about cramming, the FCC also released an Enforcement Advisory stating that “it has acted on four major investigations involving cramming” which it said is an “unjust and unreasonable” practice under Section 201(b) of the Communications Act. The Advisory also stated that the telecom providers “had apparently engaged in constructive fraudulent activity as part of a plan to place charges on consumers’ phone bills for services that the consumers neither requested nor authorized.”

According to a News Release issued last week, the four telecom providers, all headquartered in Pennsylvania, defrauded consumers by billing them for unauthorized dial-around services (a form of long distance service that allows a customer to use a different carrier than the one presubscribed to the telephone number). According to the News Release, 99.9% of the billing charges levied by the alleged violators were bogus. In one NAL, the FCC stated that one of the telecom providers billed “as many as 18,571 consumers monthly, during which time no more than 22 consumers (or 0.1 percent) ever actually used its service.”

According to the NALs, all four telecom providers employed identical Internet-only solicitation and online enrollment for services utilizing the same billing aggregator. The telecom providers practiced the same method of customer verification, which did not include sending “reply required” confirmation e-mails. When consumers later challenged the monthly charges, the telecom provider stated that as part of its customer verification process, it merely confirmed that the consumer’s name and/or address contained on the online enrollment form matched the telephone number provided on the online enrollment form, or confirmed that the IP address provided on the online enrollment form was within a 100 mile radius of the name, address and telephone number included in the online registration.
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Last week, the FCC released its long-awaited Third Further Notice of Proposed Rulemaking, the goal of which is to modify Part 11 of the FCC’s Rules in order to allow for Common Alerting Protocol (CAP) delivery of the “next generation” Emergency Alert System (EAS). A copy of the NPRM can be found here.

EAS Participants (e.g., radio and television stations, wired and wireless cable television systems, DBS and SDARS services) have been anxiously waiting for the FCC to release this NRPM since at least the end of last year. The primary reason for this, as we previously reported here and here, is that CAP-compliant EAS encoders/decoders must be purchased, installed and operational by September 30 of this year. The hope of EAS Participants has been that this proceeding will provide them with much needed guidance to make informed decisions regarding what equipment they should obtain and install to ensure compliance with CAP and the revised Part 11 rules. The NPRM also gives EAS Participants the opportunity to comment on the proposed rules and to provide input regarding how CAP and next generation EAS will impact their operations going forward.

The NPRM is a lengthy 203 paragraphs (with an additional 18 pages of proposed new rules) and it asks for public comment on many items related to revising and streamlining the FCC’s Part 11 rules and how the FCC should codify the requirements for processing emergency alerts using CAP. A few of the NPRM’s highlights are summarized below.

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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 Fines FM Broadcaster for Excessive Power and RF Radiation Levels
  • Forfeiture More Than Triples After Consent Decree Default

Missing Fence Yields $10,000 Fine for Utah FM Broadcaster
During a routine inspection in April 2010, Denver field agents cited a Utah FM broadcaster for excess radio frequency radiation (“RFR”) exposure and failure to operate the station as authorized by the FCC. The citations resulted in a combined $14,000 fine.

According to the Notice of Apparent Liability (“NAL”), the station and its antenna tower were located at the top of a hill easily accessible by foot and all terrain vehicles. The station and tower were enclosed by a chain link fence, but access from the base of the hill to the station’s fence was unobstructed. The field agents visited the station on two separate occasions and determined that the station was exceeding permitted RFR exposure levels, with actual RFR ranging from 165 to 315% of the legally acceptable levels at distances between 12 and 28 feet outside the chain link fence. At the time of the inspection, Denver field agents did not observe any posted RFR warning signs on or near the site. Failure to maintain acceptable levels of public RFR exposure is a direct violation of Section 1.1310 of the FCC’s Rules, which mandates that broadcasters comply with the RFR exposure limits established by the National Council on Radiation Protection and Measurements as outlined in the tables provided in the FCC’s Rules.

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The staggered deadlines for filing Biennial Ownership Reports by noncommercial educational radio and television stations remain in effect and are tied to the anniversary of stations’ respective renewal filing deadlines.

Noncommercial educational radio stations licensed to communities in Arizona, District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, and Wyoming, and noncommercial educational television stations licensed to communities in Michigan and Ohio must file their Biennial Ownership Reports by June 1, 2011.

In 2009, the FCC issued a Further Notice of Proposed Rulemaking seeking comments on, among other things, whether the Commission should adopt a single national filing deadline for all noncommercial educational radio and television broadcast stations like the one that the FCC has established for all commercial radio and television stations. That proceeding remains pending without decision. As a result, noncommercial educational radio and television stations continue to be required to file their biennial ownership reports every two years by the anniversary date of the station’s license renewal filing.

A PDF version of this article can be found at: Biennial Ownership Reports are due by June 1, 2011 for Noncommercial Educational Radio Stations in Arizona, District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, and Wyoming and for Noncommercial Educational Television Stations in Michigan and Ohio

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Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in the states listed above must begin airing pre-filing license renewal announcements on June 1, 2011. License renewal applications for these stations, and for in-state FM Translator stations, are due by August 1, 2011.

Pre-filing License Renewal Announcements

Full power commercial and noncommercial radio, LPFM, and FM Translator stations whose communities of license are located in North Carolina and South Carolina must file their license renewal applications with the FCC by August 1, 2011.

Beginning two months prior to that filing, however, full power commercial and noncommercial radio and LPFM stations must air four pre-filing announcements alerting the public to the upcoming license renewal application filing. As a result, these radio stations must air the first pre-filing renewal announcement on Wednesday, June 1, 2011. The remaining pre-filing announcements must air once a day on June 16, July 1, and July 16, for a total of four announcements. At least two of these four announcements must air between 7:00 a.m. and 9:00 a.m. and/or 4:00 p.m. and 6:00 p.m.

The text of the pre-filing announcement is as follows:

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FCC Commissioner Meredith Attwell Baker made the surprise announcement yesterday that she will leave the FCC on June 3 to become Senior Vice President of Government Affairs at NBC-Universal. Baker’s departure will leave Commissioner Robert McDowell as the only Republican Commissioner at the FCC for the time being. It is unlikely that President Obama will be in any hurry to name a replacement, leaving Democrats with a 3-1 political advantage at the FCC once Baker leaves. Her departure comes as a surprise because, although her current term at the FCC is up in June, she was expected to be nominated for another term.

It certainly appears to have caught her colleagues at the Commission by surprise, all of whom quickly released very brief statements of congratulations. Despite the warm wishes from her colleagues, the brevity of those statements makes clear that they didn’t have much time to prepare them.

This being Washington, DC, the Commissioner’s move did not come without controversy. The trade press reported that many found it disconcerting that the Commissioner was joining NBC-Universal just a few months after voting in favor of Comcast’s contested multi-billion dollar purchase of that company. For example, Free Press’s website reports that Free Press President and CEO Craig Aaron has stated that “Less than four months after Commissioner Baker voted to approve Comcast’s takeover of NBC Universal, she’s reportedly departing the FCC to lobby for Comcast-NBC. This is just the latest — though perhaps most blatant — example of a so-called public servant cashing in at a company she is supposed to be regulating.”

Others, including National Association of Broadcasters President and CEO Gordon Smith, publicly supported the Commissioner’s move, stating in a news release that “With a winning combination of integrity, intellect and experience, Meredith Baker will be a key player for NBCUniversal, and I know that her in-depth knowledge of broadcast issues, deep understanding of the D.C. landscape and strong leadership abilities will make her an important resource for the entire broadcast industry.” Indeed, Commissioner Baker’s excellent reputation in Washington, earned at both the NTIA and the FCC, will do much to deflect, although certainly not silence, criticism regarding the timing of the move.

The eventual appointment of the Commissioner’s replacement is likely to be a hotly debated issue, with such big ticket items as net neutrality, spectrum auctions, the potential repacking of broadcast spectrum, and retransmission consent battles on the FCC’s plate. Unlike Commissioner Baker’s surprise announcement yesterday, however, it is a surprise to no one that the political maneuvering in Washington over the future composition of the FCC has already begun in earnest.

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Earlier today, the FCC wrapped up a seminar on complying with its new ex parte rules, which govern the public disclosures that must be made following a meeting with FCC personnel. The new rules are designed to increase the transparency of the FCC’s decision-making process, and go into effect in a few short weeks (June 1, 2011). Unfortunately, the price of increased transparency is more paperwork and the risk of being assessed fines by the Enforcement Bureau, which has been granted authority to police the new rules and issue fines to those who run afoul of them.

Fortunately, the FCC’s General Counsel, Austin Schlick, indicated at the seminar that while the Enforcement Bureau now has the authority to levy fines for ex parte violations, the FCC will not use its new ex parte rules as an administrative “speed trap” to generate revenue from fines. While his statement is not binding on the FCC, it does provide some comfort to those unfamiliar with the process and requirements for conducting meetings with the FCC that inadvertent errors won’t necessarily be costly ones.

A complete copy of the order establishing the new rules can be found here, but some of the more noteworthy changes include:

  1. Under the new rules, all ex parte notice letters must be filed electronically with the FCC in machine-readable format (e.g., DOC, PPT or searchable-PDF files). There are a number of exceptions to this rule, including for hardship and documents containing confidential information.
  2. All presentations will require ex parte filings, even those in which parties merely reiterate arguments or data already in the record. Such ex parte filings must provide details regarding the facts that were discussed, the arguments made, and the support offered for those arguments during the presentation. Alternatively, parties may provide detailed citations to prior filings containing that information.
  3. Because of these added complexities, the filing deadline for submitting an ex parte notice will now be two full business days after the presentation (rather than one). However, during the “Sunshine Period” prior to an FCC vote, the notice must be filed on the same business day in which the presentation is made.

On a related note, the FCC this week published in the Federal Register a request for comments establishing the comment deadlines for those wishing to provide input on when and how real parties-in-interest must be disclosed in ex parte filings. A copy of the request for comments can be found here.

In particular, the FCC is interested in whether disclosure requirements should apply to other types of filings in addition to ex parte notices, whether disclosures should be made in only some or all types of FCC proceedings, whether different disclosure requirements should be applicable to different types of entities (such as trade associations or non-profit groups), and whether a party should be deemed to have made adequate disclosure if its filing references information appearing on the Internet or available from the FCC’s databases. Comments are due by June 16, 2011 and Reply Comments are due by July 18, 2011.