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The FCC recently issued two separate Notices of Apparent Liability for Forfeiture (NALs), found here and here, for a combined sum of $40,000 against the licensee of a Class D AM radio station for failing to make available a complete public inspection file, and submitting what the FCC concluded was incorrect factual information concerning the station’s public inspection file. According to the FCC, the station submitted the incorrect information without having a reasonable basis for believing that the information it provided to the Commission was accurate. What is most significant about this case is that this latest in fines is in addition to a $25,000 fine the FCC issued less than a year ago and included the same violation, bringing the licensee’s collective contribution to the U.S. Treasury to $65,000 in the last 12 months.

By way of background, during a routine FCC inspection of an AM radio station in Texas back in December 2010, agents from the FCC’s Enforcement Bureau’s Houston Office found that the station failed to maintain a main studio with a meaningful full-time management and staff presence, determined that the station’s public inspection file was missing a current copy of the station’s authorization, its service contour map, the station’s most recent ownership report filing, the Public and Broadcasting manual, and all issues-programs lists, and refused to make the public inspection file available. As a result, in June of last year, the Bureau issued an NAL in the amount of $25,000 for violating the FCC’s main studio rule and public inspection file rules, and also required the licensee to “submit a statement signed under penalty of perjury by an officer or director of the licensee that . . . [the Station’s] public inspection file is complete.” In response to the FCC’s directive, last August the licensee submitted a certification stating that “[i]n coordination with [an independent consultant], all missing materials cited have been placed in the Station’s Public Inspection File, and the undersigned confirms that it is complete as of the date of this response.”

Agents from the Enforcement Bureau’s Houston Office returned to inspect the station’s public inspection file last October and it turned out that once again the file did not contain any issues-programs lists. The agents also determined that none of the station employees present had knowledge of the station having ever kept issues-programs lists in the public inspection file.

In response to a Letter of Inquiry from the Enforcement Bureau regarding the missing lists, the licensee told the FCC that that the issues-programs folder was empty due to an “oversight” and that the licensee believed that the public file contained daily program logs of the programming aired by the party brokering time on the station. The licensee also stated in its response that it had hired an outside consultant to review the public file, who apparently indicated to the licensee that the public file “was complete.”

Based on that follow-up visit, the Bureau released its first of two NALs issued on June 14, 2012, and cited the AM station for a failure to exercise “even minimal diligence prior to the submission” of its August certification stating that it was in full compliance with the FCC’s Public Inspection File Rules. In addressing the licensee’s violations, the Bureau noted that in 2003 the FCC expanded the scope of violations of Section 1.17 which states that no person should provide, in any written statement of fact, “material factual information that is incorrect or omit material information that is necessary to prevent any material factual statement that is made from being incorrect or misleading without a reasonable basis for believing that any such material factual statement is correct and not misleading.”

As a result, information provided to the FCC – even if not intended to purposefully mislead the FCC – can result in fines if the licensee does not have “a reasonable basis for believing” that the information submitted is accurate. Licensees therefore need to be aware that an intent to deceive the Commission is not a prerequisite to receiving a fine; inaccurate statements or omissions that are the result of negligence can be costly as well.

As if that were not enough, the Bureau issued a second NAL on the same day in which it assessed a further fine against the licensee in the amount of $15,000 for failing to make available a “complete public inspection file.” In determining the amount of this forfeiture, the Bureau noted that although the base forfeiture amount is $10,000 for public file rule violations, given the previous inspection by the agents from the Bureau’s Houston Office, the licensee had a history of prior offenses warranting an upward adjustment in the forfeiture amount. The Bureau therefore concluded that because the licensee had violated the public inspection file rule twice within a one-year period – including after being informed that it had violated the Commission’s rule – “its actions demonstrate[ed] a deliberate disregard for the Commission’s rules and a pattern of non-compliance,” warranting a $5,000 upward adjustment in the forfeiture amount.

This case is noteworthy because it demonstrates that parties dealing with the Commission must be mindful that, prior to submitting any application, report, or other filing to the FCC, it is important to ensure that the information being provided is accurate and complete in all respects. It also is significant for the high dollar amount of the fines the FCC issued to the licensee of a Class D AM station in a period of less than 12 months based on fairly common public file and main studio rule violations.

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If all goes well, next week I’ll fulfill one of my secret ambitions: to discuss how retransmission consent is affecting the business of television distribution. I’ve participated in many panel discussions on retransmission consent policy (because I work in Washington, and policy is what we talk about here).

On Tuesday I’ll be in New York at the SNL Kagan TV and Radio Finance Summit where I’ll finally have a chance to talk about the business, financial and investment aspects of retransmission consent (because that’s what they talk about in New York). To me, those are the far more intriguing topics, because if you don’t totally understand the market, you can’t credibly defend your policy positions.

SNL has assembled an all-star panel, including senior execs from Fisher Communications, SJL Broadcast Management Corporation, Communications Corporation of America, Moodys, and the resident FCC Media Bureau Chief, Bill Lake. SNL’s Robin Flynn (who always comes armed with thoughtful and well-presented data) will moderate. So Robin, here are some of the questions I’d like to hear debated by my fellow panelists, and I may have an opinion of my own here and there.

  • Why are retransmission fees still so low relative to viewing and why aren’t they rising faster? What should the government do to help bring sports programming back to broadcast television?
  • According to SNL research, some groups get much higher retransmission rates than others. Does this reflect real differences or reporting anomalies? Will this differential continue? How will it affect the market?
  • What are the biggest negotiation and deal mistakes groups make?
  • Is there any way to protect against the unexpected, like Aereo and Ad Hopper?
  • Is Aereo really a “retrans killer”? What happens to different market segments if it is? Could some broadcasters be better off if Aereo prevailed?
  • Has retransmission consent fundamentally changed the network-affiliate model, or simply adjusted the dollar flow?
  • Is cord-cutting equally bad for all programmers?
  • Apart from retransmission consent, is there a growth case for broadcast groups?
  • Do rising retrans fees really make the pie bigger (and drive up consumer costs), or do they just move the slices around? Which networks will benefit most long term?
  • And most important: What happens to the price of a Happy Meal when corn futures triple (and what does this tell us about retransmission consent?)
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A panel of the United States Court of Appeals for the Ninth Circuit in San Francisco today ruled, in a 2 – 1 decision, that the long-standing prohibition on the carriage of paid political and issue advertising by noncommercial television and radio stations is unconstitutional and may no longer be enforced by the FCC.

The majority opinion in Minority Television Project Inc v. FCC was authored by Judge Carlos Bea, a George W. Bush appointee, and joined in by Judge John Noonen, a Reagan appointee; Judge Richard Paez, a Clinton appointee, wrote a dissenting opinion. The case arose when Minority Television Project, licensee of noncommercial television station KMTP-TV was fined $10,000 by the FCC for violating the prohibition in Section 399B of the Communications Act against noncommercial stations carrying paid advertising for commercial entities. According to the FCC, KMTP-TV had carried over 1,900 advertisements for entities such as State Farm, Chevrolet and Asiana Airlines in the period from 1999-2002. Minority Television Project paid the fine, but filed suit in District Court for reimbursement of the fine and declaratory relief. After its arguments were rejected by the District Court, Minority Television Project brought this appeal.

The Court of Appeals focused on whether the statutory prohibitions on paid advertising in Section 399B are consistent with the U.S. Constitution. It concluded that the statute contains content-related restrictions that must be reviewed under the standard of “intermediate scrutiny,” which provides that the government must show that the statute “promotes a substantial governmental interest” and “does not burden substantially more speech than necessary to further that interest.”

The Court found that the prohibition on broadcasting paid commercial advertising on behalf of for-profit entities, the primary focus of Minority Television Project’s appeal, was narrowly tailored and promotes the substantial governmental goal of preventing the commercialization of educational television. As a result, the fine imposed on Minority Television Project was upheld. However, the Court went on to address the prohibition on carriage of paid candidate and paid issue advertising by noncommercial stations. It found no legitimate governmental goal underlying that prohibition. The Court reviewed the Congressional record developed when the prohibition on political and issue advertising was adopted, and failed to find any evidence to support the provision. It therefore held that aspect of the law to be unconstitutional.

The decision leaves open many important questions as to how to implement it. For example, the questions of whether or how the lowest unit charge provision of Section 315 of the Communications Act will apply to noncommercial stations are not addressed. Similarly, the Decision does not consider whether federal candidates will be entitled to
“reasonable access” rights on noncommercial stations, permitting federal candidates to buy advertising on noncommercial stations that do not want to accept political advertising. While the reasonable access provision of the Communications Act appears to exempt noncommercial educational stations from that requirement, it is a content-related law, and therefore raises questions as to whether the disparate treatment of commercial and noncommercial stations for this purpose is constitutional. Other practical questions, such as the application of equal opportunities rights, political file obligations, and the like will also have to be resolved if this decision is implemented. More broadly, if the decision stands, it could have a fundamental impact on the nature and funding of noncommercial broadcasting.

The Ninth Circuit’s decision only applies to states located within the jurisdiction of that Court (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington). The FCC and the Justice Department may seek review by the entire Ninth Circuit, sitting en banc, or seek review by the U.S. Supreme Court. As that drama plays out during an active political season, a lot of noncommercial stations will be scratching their heads trying to figure out what they can, can’t, and must do in light of the decision. Conversely, a lot of commercial stations aren’t going to be happy if they find that their political advertising revenues are being diverted to noncommercial stations. One thing is certain–if upheld, the implications of this decision for both noncommercial and commercial stations will be far reaching.

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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:

  • A discussion of a number of forfeitures issued by the FCC fining individuals up to $25,000 for operating unlicensed radio stations.

FCC Sends Warning to Unlicensed Radio Operators

The FCC has recently been taking an active stance against unlicensed radio operations, as further evidenced by four recently issued penalties for violations of the Communications Act. Radio stations operating without a license should take this as a warning of future enforcement actions against such illegal operations.

In the first two instances involving the same individual in San Jose, California, the Enforcement Bureau issued two separate Notices of Apparent Liability for Forfeiture (“NAL”) for $25,000 each to the operator for unlicensed broadcasting on various FM band frequencies and for a failure to allow inspection of an unlicensed broadcast station. After several months, the operator failed to respond to either of the NALs. As a result, the Enforcement Bureau issued the two $25,000 Forfeiture Orders against the individual.

In a second case, a Florida man was found apparently liable for $15,000 for operating an unlicensed FM radio transmitter in Miami. In September 2011, the Enforcement Bureau, following up on a complaint lodged by a national telecommunications carrier, discovered two antennas used for unlicensed operations on the frequency 88.7 MHz on the roof of a building. During the site visit, the building’s owner indicated that the equipment was located in a rooftop suite rented by a tenant. The Enforcement Bureau agents left a hand-delivered Notice of Unlicensed Operations (“NOUO”) with the building owner, who indicated that he would deliver the NOUO to the tenant. On three subsequent occasions, agents from the Miami Field Office determined that the antennas in question were the source of radio frequency transmissions in excess of the limits of Part 15 of the FCC’s rules, therefore requiring a license for operation.

When the agents were finally able to interview the tenant, he admitted to owning the transmitter and operating the station. He also stated that he had been employed as a disc jockey for a station previously authorized to operate on 88.7 and was “aware he needed a license to operate the station.”

The base forfeiture amount under the FCC’s rules for operation without an authorization is $10,000. In this case, the FCC concluded that a $5,000 upward adjustment of the NAL was warranted because the operator was aware that his operations were unlawful prior to and after receipt of the NOUO.

Though the FCC issued the multiple hefty penalties for unlicensed operations described above, the FCC was ultimately more sympathetic to a third unlicensed operator. In September 2011, the Enforcement Bureau’s San Juan Office issued a NAL against the operator of an unlicensed radio transmitter in Guayama, Puerto Rico for $15,000. In response to the NAL, the operator argued that he believed his broadcast operations were legal, and he submitted financial information to support the claim that he was unable to pay the full amount of the NAL. Though the FCC affirmed its claims that the operator willfully violated the FCC’s rules, the FCC nevertheless lowered the fine to $1,500 due to the operator’s inability to pay.

After issuing multiple fines against unlicensed operators this month, the FCC is likely to continue issuing similar penalties in the future. Radio operators should be mindful of the equipment used in their operations and the signal levels transmitted during operations to avoid facing similar consequences.

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The FCC today issued a Public Notice officially launching the television station license renewal cycle. The Public Notice, however, also contains an unusual new request. Specifically, the FCC asks that television station licensees or their counsel log into their accounts in the FCC’s Consolidated Database System (CDBS) and update the licensee’s and its counsel’s contact information using the Account Maintenance function. The FCC will use this information to e-mail stations a reminder that their license renewal application is due. This is a new use of the CDBS system and makes one wonder how else the FCC will be able to use CDBS to communicate with licensees in the future.

Licensees that do not have a CDBS account must create one, since, as the FCC notes, all renewal filings must be made electronically. Licensees creating new accounts, however, must both create the new account and immediately use it to file a Change in Official Mailing Address form, which is found by clicking on the link labeled “Additional non-form Filings.” Existing account holders making changes to their contact information must also follow this procedure.

The Public Notice announces that license renewal applications can be filed beginning on May 1, 2012. The first stations to file will be television stations licensed to communities in Maryland, Virginia, West Virginia, and the District of Columbia, which must begin airing pre-filing announcements starting on April 1, and file their renewal applications by June 1, 2012. We note that even though the FCC has announced that applications can be filed as early as May 1, stations should not file in advance of the schedule for their state, and that full power licensees in the first group of stations will still be airing pre-filing announcements until May 16 and should file their applications after that date.

The FCC’s Public Notice also contained some other pointers to jog memories, since most stations have not had to file this particular application in eight years. Specifically, it noted that the obligation to file a renewal application applies to all TV, Class A TV, LPTV, and TV Translator stations (even those that may still be waiting for their last renewal application to be granted), that a Form 396 EEO filing must also be made, and that noncommercial licensees must submit an Ownership Report on Form 323-E as well. Finally, the FCC reminded stations that they will need to respond to a new question which asks them to certify whether their advertising sales contracts have contained a non-discrimination clause since March 14, 2011.

The major point of the Public Notice, though, was unmistakeable. “Failure to receive a notice does not excuse a licensee from timely compliance with the Commission’s license renewal requirements.”

We’re here to help.

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March 2012

The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.

Noncommercial radio stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee, and television stations licensed to communities in Texas must electronically file their Biennial Ownership Reports by April 2, 2012, as the filing deadline of April 1 falls on a Sunday. Licensees must file using FCC Form 323-E, and must place the form as filed in their stations’ public inspection files.

In 2009, the FCC issued a Further Notice of Proposed Rulemaking seeking comments on whether the Commission should adopt a single national filing deadline for all noncommercial 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 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 application filing.

A PDF version of this article can be found at Biennial Ownership Reports are due by April 2, 2012 for Noncommercial Radio Stations in Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee, and for Noncommercial Television Stations in Texas

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March 2012

Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in Michigan and Ohio must begin airing pre-filing license renewal announcements on April 1, 2012. License renewal applications for these stations, and for in-state FM translator stations, are due by June 1, 2012.

Pre-Filing License Renewal Announcements

Full power commercial and noncommercial radio, LPFM, and FM Translator stations whose communities of license are located in Michigan and Ohio must file their license renewal applications with the FCC by June 1, 2012.

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 renewal application filing. As a result, these radio stations must air the first pre-filing renewal announcement on April 1. The remaining pre-filing announcements must air once a day on April 16, May 1, and May 16, for a total of four announcements. At least two of these four announcements must air between 7:00 am and 9:00 am and/or 4:00 pm and 6:00 pm.

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

On [date of last renewal grant], [call letters] was granted a license by the Federal Communications Commission to serve the public interest as a public trustee until October 1, 2012. [Stations that have not received a renewal grant since the filing of their previous renewal application should modify the foregoing to read: “(Call letters) is licensed by the Federal Communications Commission to serve the public interest as a public trustee.”]
Our license will expire on October 1, 2012. We must file an application for renewal with the FCC by June 1, 2012. When filed, a copy of this application will be available for public inspection during our regular business hours. It contains information concerning this station’s performance during the last eight years [or other period of time covered by the application, if the station’s license term was not a standard eight-year license term].

Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this station has operated in the public interest should file comments and petitions with the Commission by September 1, 2012.

Further information concerning the FCC’s broadcast license renewal process is available at [address of location of station’s public inspection file] or may be obtained from the FCC, Washington, DC 20554.

Article continues . . .

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March 2012

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee and Texas, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Introduction

April 1, 2012 is the deadline for broadcast stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas to place their Annual EEO Public File Report in their public inspection files and post the report on stations’ websites.

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, all Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, attending 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 FCC 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. Stations must also submit the two most recent Annual EEO Public File Reports at the midpoint of their license terms and with their license renewal applications.

Exempt SEUs – those with fewer than 5 full time employees – do not have to prepare or file Annual or Mid-Term EEO Reports.

For a detailed description of the EEO rule and practical assistance in preparing a compliance plan, broadcasters should consult “Making It Work: A Broadcaster’s Guide to the FCC’s Equal Employment Opportunity Rules and Policies” published by the Communications Practice Group. This publication is available at: https://www.pillsburylaw.com/siteFiles/Publications/CommunicationsAdvisoryMay2011.pdf.

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March 2012

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local public inspection files by April 10, 2012, reflecting programming aired during the months of January, February, and March 2012.

On 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.

These two obligations, in turn, require broadcasters to comply with two paperwork requirements 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 the station has aired for children 16 years of age and under. 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’s Television Programming Rule is $10,000.

Article continues . . .

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March 2012

The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ local inspection files by April 10, 2012, reflecting information for the months of January, February, and March 2012.

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 a 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. Article continues . . .