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Today the Federal Communications Commission released its annual Public Notice setting the deadline for paying annual regulatory fees.  Payments can be made via the FCC’s Commission Registration System (CORES) beginning today through 11:59 p.m. Eastern Time on September 20, 2023.

In addition to marking this deadline on their calendars, broadcasters should note with some satisfaction that despite the FCC’s overall budget increasing by more than $8,000,000, regulatory fees for broadcasters decreased by between 5 and 8%.  That decrease results from years of effort by broadcasters’ state and national trade associations, who have repeatedly argued that the FCC’s methodology for allocating regulatory fees does not accurately reflect how the work of the FCC has changed since the regulatory fee regime was instituted more than 30 years ago.

The FCC’s fee-setting methodology divides its workforce into what it calls direct and indirect FTEs (“Full Time Employees” or “Full Time Equivalents”).  Direct FTEs are those who work directly for one of the four “core” licensing bureaus: the International Bureau, the Wireless Telecommunications Bureau, the Wireline Competition Bureau, and the Media Bureau.  (The core bureaus will be updated next year to reflect the creation of the new Space Bureau.)  Indirect FTEs are all other FTEs of the FCC, which are treated the same as FCC “overhead” (e.g., rent) in setting fees.

The FCC allocates its budget among the regulatees of each of the four core licensing bureaus in proportion to the number of direct FTEs working in that particular bureau.  Since the Media Bureau houses approximately 32% of all the direct FTEs, its regulatees, including broadcasters, have to pay 32% of all agency overhead (which includes indirect FTEs) as well.

In recent years, only about one-quarter of the agency’s total FTEs have been considered direct, while the remaining three-quarters are considered indirect.  As a result, the determination as to which regulatees must pay the lion’s share of the FCC’s total budget is based on the categorization of those relatively few direct FTEs.  This impact is further exacerbated by the existence of indirect FTEs that are housed outside of the four core licensing bureaus, but whose work benefits specific industries.  Since they do not work in one of the core bureaus, they are not treated as a direct cost of the industries their work actually benefits, but as just more FCC overhead to be paid for by broadcasters and other industries that do not benefit from their work.

So, what changed this year?  In response to an influx of comments the FCC received in response to a Notice of Inquiry and a Notice of Proposed Rulemaking, the FCC reexamined the work performed by FTEs in certain of its indirect bureaus and offices, including the Office of Economics and Analytics, the Office of General Counsel, and the Public Safety and Homeland Security Bureau.  Based on this review, the FCC reallocated a large number of these previously indirect FTEs to direct FTE status. Continue reading →

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The FCC announced this afternoon that due to continuing difficulties with its Licensing Management System (LMS) and Online Public Inspection File (OPIF) filing systems, the deadlines to file or upload a number of documents are being extended. The new deadline for these documents will be February 28, 2023.

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The deadline to file the 2022 Annual Children’s Television Programming Report with the FCC is January 30, 2023, reflecting programming aired during the 2022 calendar year. In addition, commercial stations’ documentation of their compliance with the commercial limits in children’s programming during the 2022 calendar year must be placed in their Public Inspection File by January 30, 2023.

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The FCC announced late this afternoon that all items required to be placed in the Online Public Inspection File (“OPIF”) between January 1 and January 31, 2023 may now be uploaded to the OPIF by January 31, 2023 and be considered timely.  The FCC released a Public Notice today announcing that the OPIF filing system has been experiencing technical difficulties since at least January 1, 2023, necessitating the extension.

This extension impacts, among other things, broadcasters’ Quarterly Issues-Programs Lists, normally due on January 10, 2023, and television stations’ 2022 annual certification of compliance with the commercial limits in children’s programming, which would normally be due on January 30, 2023.  Note that the extension does not affect the filing deadline for television stations’ 2022 Annual Children’s Television Programming Report due on January 30, 2023, because that filing is submitted via the FCC’s Licensing and Management System and then is automatically transferred into the OPIF.  Accordingly, television stations should be sure to file that Report by the normal January 30th deadline.

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The FCC’s Public Safety & Homeland Security Bureau has announced that technical updates to the EAS Test Reporting System (“ETRS”) have been completed and the ETRS is open and available to accept filings of Form One by EAS participants. Under the FCC’s EAS Rules, EAS participants must update their identifying information annually via a Form One filing. This is typically done in connection with a nationwide EAS test. However, the Federal Emergency Management Agency did not conduct such a test in 2022, and has not yet announced a 2023 nationwide test. Therefore, the Form One must be submitted independently of a test to comply with the annual updating requirement.

All broadcasters are generally required to submit a Form One, including low power FM stations, Class D noncommercial educational FM stations, and stations that are silent pursuant to a grant of Special Temporary Authority. Certain broadcasters are exempt from filing a Form One, including:

  • TV translator stations;
  • FM booster stations;
  • FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations; and
  • Stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point). Note that the hub station (or common studio or control point) must file a Form One.

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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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This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider that provided the station’s signal to at least one viewer outside the station’s local service area during 2021.  These stations may be eligible to file royalty claims for compensation with the United States Copyright Royalty Board.  These filings are due by August 1, 2022.

Under the federal Copyright Act, cable systems and satellite operators must pay license royalties to carry distant TV signals on their systems.  Ultimately, the Copyright Royalty Board divides the royalties among those copyright owners who claim shares of the royalty fund.  Stations that do not file claims by August 1, 2022 will not be able to collect royalties for carriage of their signals during 2021.  While claims are typically due July 31, that date falls on a Sunday this year.  Stations will therefore have until the first business day in August to file.

In order to file a cable royalty claim, a television station must have aired locally-produced programming of its own and had its signal carried outside of its local service area by at least one cable system in 2021.  Television stations with locally-produced programming whose signals were delivered to subscribers located outside the station’s Designated Market Area in 2021 by a satellite provider are also eligible to file royalty claims.  A station’s distant signal status should be evaluated and confirmed by communications counsel.

Cable and satellite claim forms can no longer be filed in paper form through mail or courier, and instead must be filed electronically via eCRB, the Copyright Royalty Board’s online filing system. Prior to filing electronically, claimants or their authorized representatives must register for an eCRB account.  First-time electronic filers should register for an account as soon as possible, as there is a multiple day waiting period between initial registration and when a user may submit claims.  Also, because accounts can become locked due to inactivity, filers who already have an eCRB account should confirm that their login credentials still work.

To submit claims, stations are required to supply the name and address of the filer and of the copyright owner, and must provide a general statement as to the nature of the copyrighted work (e.g., local news, sports broadcasts, specials, or other station-produced programming).  Claims must be submitted by 11:59 pm ET on August 1, and claimants should keep copies of all submissions and confirmations of delivery.

Please contact any of the group’s attorneys for assistance in determining whether your station qualifies to make a claim and in filing the claim itself.

A PDF version of this article can be found here.

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The deadline to file the 2021 Annual Children’s Television Programming Report with the FCC is January 30, 2022, reflecting programming aired during the 2021 calendar year.  Note that because this deadline falls on a weekend, this filing may be made on January 31, 2022.  In addition, commercial stations’ documentation of their compliance with the commercial limits in children’s programming during the 2021 calendar year must be placed in their Public Inspection File by January 30, 2022.

Overview

The Children’s Television Act of 1990 requires full power and Class A television stations 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 under, and (2) air programming responsive to the educational and informational needs of children 16 years of age and under.  In addition, stations must comply with paperwork requirements related to these obligations.

In 2019, the FCC adopted a number of changes to its children’s television programming rules.  Substantively, the new rules provide broadcasters with additional flexibility in scheduling educational children’s television programming, and modified some aspects of the definition of “core” educational children’s television programming.  Those portions of the revisions went into effect in 2019.  Procedurally, the new rules eliminated quarterly filing of the commercial limits certifications and the Children’s Television Programming Report in favor of annual filings.  Those revisions went into effect in 2020. As a result, the Children’s Television Programming Report and commercial limits documentation filed in 2022 will be the second year that annual filings are submitted.

Commercial Television Stations

Commercial Limitations

The FCC’s rules require that stations limit the amount of “commercial matter” appearing in programs aimed at children 12 years old and younger to 12 minutes per clock hour on weekdays and 10.5 minutes per clock hour on the weekend.  The definition of commercial matter includes not only commercial spots, but also (i) website addresses displayed during children’s programming and promotional material, unless they comply with a four-part test, (ii) websites that are considered “host-selling” under the Commission’s rules, and (iii) program promos, unless they promote (a) children’s educational/informational programming, or (b) other age-appropriate programming appearing on the same channel.

Licensees must upload supporting documents to the Public Inspection File to demonstrate compliance with these limits on an annual basis by January 30 each year, covering the preceding calendar year.  Documentation to show that the station has been complying with this requirement can be maintained in several different forms.  It must, however, always identify the specific programs that the station believes are subject to the rules, and must list any instances of noncompliance.

Core Programming Requirements

To help stations identify which programs qualify as “educational and informational” for children 16 years of age and under, and determine how much of that programming they must air to demonstrate compliance with the Children’s Television Act, the FCC has adopted a definition of “core” educational and informational programming, as well as three different safe harbor renewal processing guidelines that establish the minimum amount of core programming stations must air to receive a staff-level license renewal grant.  Stations should document all core children’s programming that they air, even where it exceeds the safe harbor minimums, to best present their performance at license renewal time.

Under these rules, the FCC generally defines “core programming” as television programming that has as a significant purpose serving the educational and informational needs of children 16 years old or under and which is aired between 6:00 a.m. and 10:00 p.m.  In addition, commercial stations must also identify each core program by displaying an “E/I” symbol onscreen throughout the program.  Licensees must also provide information identifying each core program they air to publishers of program guides, though they no longer need to indicate a program’s intended age range.

There are three ways to satisfy the Commission’s processing guidelines:

  • Category A1: Stations can meet their obligation by airing at least three hours per week (as averaged over a six-month period) of core programming, all of which is regularly scheduled, weekly, and at least 30 minutes in length.  To satisfy Category A1’s three-hour-per-week minimum, at least two hours must air on the primary stream and up to one hour may air on a multicast stream.
  • Category A2: Stations can meet their obligation by airing at least 156 hours of core programming per year, including at least 26 hours per quarter that is regularly scheduled, weekly, and 30 minutes in length, and up to an additional 52 hours of programming throughout the year that is not provided on a regularly scheduled basis, but is at least 30 minutes in length.  To the extent a station airs more than two hours per week of regularly scheduled core programming, it has the flexibility to air such additional regularly scheduled programming on a multicast stream.  However, all non-regularly scheduled programming aired to satisfy the Category A2 minimum must air on the primary stream.
  • Category B: Stations can meet their obligation by airing at least 156 hours of core programming per year, including at least 26 hours per quarter that is regularly scheduled, weekly, and 30 minutes in length, and up to an additional 52 hours of programming throughout the year that is not provided on a regularly scheduled basis, and may be less than 30 minutes in length, such as PSAs and interstitials. To the extent a station airs more than two hours per week of regularly scheduled core programming, it has the flexibility to air such additional regularly scheduled programming on a multicast stream.  However, all non-regularly scheduled programming aired to satisfy the Category B minimum must air on the primary stream.

These processing guidelines, as well as other changes the Commission introduced regarding rebroadcasts and the rescheduling of preempted programming, provide stations greater flexibility in scheduling children’s television programming.  However, they require that stations understand these requirements and document them accurately in their Annual Children’s Television Programming Report filings.

Filing the Children’s Television Programming Report

The next Children’s Television Programming Report must be filed electronically with the FCC by January 31, 2022 (because, as noted above, the actual January 30 due date falls on a weekend).  Broadcasters must file their Children’s Television Programming Reports via the Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.  Once filed, the FCC’s electronic filing system will automatically place the Children’s Television Programming Report into the station’s Public Inspection File.  However, each station should confirm that has occurred to ensure that its Public Inspection File is complete.

Noncommercial Educational Television Stations

Because noncommercial educational television stations are precluded from airing commercials, the commercial limitation rules do not apply to them.  Accordingly, noncommercial television stations have no obligation to place commercial limits documentation in their Public Inspection File.  Similarly, though noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and under, they do not need to complete Children’s Television Programming Reports.  They must, however, maintain records of their own in the event their performance is challenged at license renewal time.  In the face of such a challenge, a noncommercial station will be required to have documentation available that demonstrates its efforts to meet the needs of children.

Please do not hesitate to contact the attorneys in the Communications Practice for specific advice on compliance with these rules or for assistance in preparing any of the above documentation.

A PDF version of this article can be found at Meeting Your Annual Children’s Television Programming Reporting Obligations.

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Full power commercial and noncommercial radio, LPFM, and FM Translator stations, licensed to communities in Alaska, Hawaii, Oregon, Washington, Guam, Mariana Islands, and American Samoa and full power TV, Class A TV, LPTV, and TV Translator stations licensed to communities in Iowa and Missouri, must file their license renewal applications by October 1, 2021.

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Each year with the end of summer comes an announcement from the FCC as to how it is divvying up its operating costs to then charge its regulatees in the form of regulatory fees. This annual ritual, required by Congress, makes the FCC virtually unique among federal agencies in funding its operations by passing the hat among those it regulates (and then charging them a fee to process each application to boot).

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