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March 2012

TV, Class A TV, LPTV, and TV translator stations licensed to communities in Maryland, Virginia, West Virginia, and Washington DC must begin airing pre-filing license renewal announcements on April 1, 2012. License renewal applications for these stations are due by June 1, 2012.

Pre-Filing License Renewal Announcements

Stations in the video services that are licensed to communities in Maryland, Virginia, West Virginia, and Washington DC must file their license renewal applications by June 1, 2012.

Beginning two months prior that filing, full power TV, Class A TV, and LPTV stations capable of local origination must air four pre-filing renewal announcements alerting the public to the upcoming license renewal application filing. These stations must air the first pre-filing announcement on April 1, 2012. The remaining announcements must air on April 16, May 1, and May 16, for a total of four announcements. A sign board or slide showing the licensee’s address and the FCC’s Washington DC address must be displayed while the pre-filing announcements are broadcast.

For commercial stations, at least two of these four announcements must air between 6:00 pm and 11:00 pm. Locally-originating LPTV stations must broadcast these announcements as close to the above schedule as their operating schedule permits. Noncommercial stations must air the announcements at the same times as commercial stations; however, noncommercial stations need not air any announcements in a month in which the station does not operate. A noncommercial station that will not air some announcements because it is off the air must air the remaining announcements in the order listed above, i.e. the first two must air between 6:00 pm and 11:00 pm.

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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.

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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.

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The Comment and Reply Comment dates have been set for the FCC’s Notice of Proposed Rulemaking in the Congressionally-mandated Quadrennial Regulatory Review of the FCC’s broadcast ownership rules. Comments are due on March 5, 2012 and Reply Comments are due on April 3, 2012.

As discussed in more detail in our Advisory, the NPRM can fairly be described as the regulatory equivalent of moonwalking–appearing to go forward with deregulation while actually going backward–and it is important for broadcasters to step up and get involved.

While the FCC tentatively has concluded that, other than minor tweaks that may not be so minor, it will make almost no changes to any of its broadcast ownership rules, the NPRM asks many questions about the future of the media marketplace. In particular, the NPRM seeks to scrutinize many contractual relationships among broadcasters, such as Local News Services (“LNS”) agreements and Shared Services (“SSA”) agreements, that currently fall outside of the FCC’s ownership rules, and asks whether those rules should be modified to make such agreements attributable ownership interests.

The commissioners’ separate statements regarding the NPRM make clear that the lack of definitive forward movement is the result of significant differences among the commissioners along the traditional regulatory/deregulatory fault line. This fault line is particularly apparent with regard to the suggestion that the ownership rules be expanded to encompass a wide array of contractual and operational practices in the industry.

When the FCC released the Notice of Inquiry in 2010 that commenced this proceeding, it did not ask for comment regarding whether any contractual arrangements should be deemed attributable under the FCC’s ownership rules. The FCC’s sudden interest now is therefore the result of comments filed by public advocacy groups in response to the Notice of Inquiry. These comments follow on the heels of calls for disclosure of such agreements in other proceedings, such as the proceedings concerning online public inspection files and quarterly public interest programming report requirements for television broadcasters, and the FCC’s report on the Information Needs of Communities. These advocacy groups assert that inter-broadcaster agreements result in layoffs, lower the quality of news programming, reduce the number of diverse voices in a market, and allow a station to have as much control over another station’s programming and operations as a Local Marketing Agreement (“LMA”), which the FCC already regulates under its ownership rules.

The FCC notes in the NPRM that its attribution rules are intended to restrict any arrangement which confers such influence or control over a station that it has the potential to impact programming or other “core” functions of that station. The FCC asks whether LNS and SSA arrangements confer a level of influence similar to an LMA, and if so, whether they should therefore be regulated like LMAs. Related to this question, the FCC asks whether the amount of local news programming available in a market would be reduced if LNS and SSA agreements are restricted in the same manner as LMAs.

While the FCC’s future treatment of such agreements is only one of many consequential matters presented by the NPRM, it is one that will have a significant impact on how broadcasters operate in the future. Although the FCC’s NPRM may itself be an exercise in regulatory moonwalking, broadcasters now need to put their best foot forward, or face the prospect of more regulation from this “deregulatory” proceeding.

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By Lauren Lynch Flick and Lauren A. Birzon

Certain stations must also file proxy paperwork and additional fee to avoid usage reporting for the year.

As January comes to a close, don’t forget that annual minimum copyright royalty fees for webcasting and internet simulcasting of radio programming, along with the corresponding forms, are due to SoundExchange by January 31, 2012.

With the exception of certain eligible noncommercial broadcasters (those that are affiliated with NPR, APM, PRI or certain other organizations and have timely elected the rates and terms negotiated with SoundExchange by the Corporation for Public Broadcasting), commercial and noncommercial webcasters and broadcasters streaming content on the Internet must submit the appropriate Annual Minimum Fee Statement of Account, along with a minimum fee payment of $500.00 per stream. For webcasters with multiple streams, the total fee is capped at $50,000.00.

January 31st is also the deadline for certain filers to elect “proxy” reporting, which allows the streamer to pay an additional $100 fee and avoid having to submit regular reports of use to SoundExchange during 2012. This option is only available to certain categories of streamers. “Small Broadcasters” (broadcasters with fewer than 27,777 aggregate tuning hours in 2011), “Noncommercial Educational Webcasters” (noncommercial educational webcasters with fewer than 55,000 monthly aggregate tuning hours in 2011) and “Noncommercial Microcasters” (noncommercial webcasters other than educational webcasters with fewer than 44,000 aggregate tuning hours in 2011) may choose this exemption by filing the appropriate Notice of Election and a $100.00 fee by January 31st, 2012. Certain other filers that are not eligible for a reporting waiver must still file the Notice of Election to elect an alternative to the standard Copyright Royalty Board rates.

Annual Minimum Fee Statements of Account, Notices of Election, and payments should be sent to SoundExchange, Inc., 1121 Fourteenth Street, NW, Suite 700, Washington, DC 20005, Attn: Royalty Administration.

A PDF version of this article can be found at Reminder: Annual Minimum Fee Statements for Streaming Due to SoundExchange by January 31, 2012.

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At its October Open Meeting, the FCC announced that it was moving ahead on two proposals to “standardize” and “enhance” television stations’ public reporting regarding the programming they air, and their business and operational practices. The first of those items to be released related to the Online Public Inspection File, which we report on in detail here and here. The Further Notice of Proposed Rulemaking in that proceeding has already been published in the Federal Register and the first round of comments in that proceeding are due on December 22, 2011.

The second item, which deals with the new disclosure form to replace television stations’ current Quarterly Issues Programs Lists and the FCC’s prior failed attempt to standardize and enhance station disclosures on FCC Form 355, has now appeared in the Federal Register. We discuss this proposed form in detail here. The publication of this item establishes the deadline for comments on the new form, which are due on January 17, 2012, with Reply Comments due on January 30, 2012.

The FCC has moved swiftly in getting these items published, thereby commencing the public input process on these proposals, and has indicated that they are a high priority at the Commission. Broadcasters’ best opportunity to influence how these proposals take shape is now. As a result, stations should review the proposed form and our analysis of both it and the related Online Public File to understand the impact these new requirements could have on their operations.

We previously noted that the proposed form is highly duplicative of portions of the Online Public File proposal. Regardless of what information is collected, having to disclose it twice, in two different formats, is a burden on broadcasters that the FCC appears to have not acknowledged. In addition, the new form being put forth by the FCC for comment, far from merely standardizing the way programming information is disclosed, could well end up standardizing what programming is actually aired, intruding on licensee programming discretion.

Broadcasters that fail to participate in these proceedings do so at their own peril, as the resulting regulatory requirements could well be the proverbial lump of coal that TV broadcasters find in their stocking this year.

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The FCC has announced the comment and reply comment deadlines for its recently-announced Further Notice of Proposed Rulemaking (FNPRM), which proposes to replace nearly all of a television station’s paper public inspection file with a more expansive online file hosted by the FCC. Comments are due at the FCC by December 22, 2011, with Reply Comments due by January 6, 2012. In addition, the public can also submit comments to the Office of Management and Budget regarding the proposal’s impact under the Paperwork Reduction Act by January 23, 2012.

This is an important proceeding as it involves far more than simply moving public files online. The goal of this proceeding, and the separate proceeding also commenced recently to replace television station Quarterly Issues Programs Lists with a new form (which we discussed here) is to create fully searchable databases of uniform information about broadcast stations and their programming that researchers, advocates and policy makers can cite in support of a particular regulatory theory, proposal, or complaint. Beyond the burden on TV stations in populating this database, broadcasters are justifiably leery of the long term impact on licensee discretion.

Historically, there has been a strong correlation between the FCC gathering information on the amount of programming being aired of a particular type, and demanding that more (or sometimes less) of it be aired in the future. Based upon this history, broadcasters can be forgiven if they feel a First Amendment chill down their collective spine when the FCC seeks more information about their programming decisions, and worse yet, declares that such information should be instantly available to anyone with an Internet connection.

As we have seen in the indecency context where the FCC has been buried by email complaints, some against stations that never actually aired the program at issue but which were incorrectly reported on the Internet as having aired it, making station information available by Internet risks drowning out the voices of local viewers and listeners with the shrill cries of distant agitators.

More to the point, given the power of the FCC over broadcasters’ license renewals, and the stress and expense of defending against even baseless complaints at the FCC, the path of least resistance for a broadcaster is to succumb to the pressure and program in a way that makes the government happy. The government may try to exert this pressure subtly (usually not), but like water passing over a stone, it inexorably wears the broadcaster down. The details of the FNPRM provide an indication of how much regulatory water the FCC is proposing to send broadcasters’ way.

In adopting these proposals as mere disclosure requirements, the FCC can implicitly denote what it considers to be a suspect program or practice without having to adopt a rule specifically prohibiting that particular program/practice and facing judicial scrutiny of the prohibition. Taken together, the online public file and program reporting proposals appear to be an exercise in “regulation by raised eyebrow,” with the modern twist of enlisting the Internet community to crowdsource station monitoring and complaints to ensure adequate pressure on broadcasters to get with the program.

Broadcasters as a whole recognize, and are dedicated to, meeting the needs of their local community. The FNPRM’s suggestion that they should also meet the needs of the global Internet community merely distracts from that fundamental mission. The reason public inspection files are so rarely visited by the public is that local viewers and listeners are already very knowledgeable about their local stations’ service to their community. All they have to do is turn on their TV or radio to find out more. They have traditionally shown little need for, or interest in, the public file.

Contributing to that disinterest is the anachronistic nature of the file itself. For example, what is the utility of a contour map to the average viewer/listener when TV stations are carried throughout the DMA by cable, satellite, translators and boosters, and radio stations are streamed throughout their market and beyond? While a good case could be made for scaling back the public file rule, the FNPRM’s effort to sprint in the opposite direction is difficult to fathom, particularly given how strained station resources already are in the current economy.

All television broadcasters (and frankly, radio broadcasters with an eye to the future) should carefully consider how the changes proposed in the FNPRM would affect their ability to function and serve their communities, and ensure that they let the FCC know just what that impact would be.

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All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 by December 1, 2011.

The FCC requires all digital television stations, including all commercial and noncommercial educational full power television stations, digital low power television stations, digital translator television stations, and digital Class A television stations, to submit FCC Form 317 each year. The report details whether stations provided ancillary or supplemental services at any time during the twelve-month period ending on the preceding September 30. It is important to note that the FCC Form 317 must be submitted regardless of whether stations offered any such services. FCC Form 317 must be filed electronically, absent a waiver, and is due on December 1, 2011.

Ancillary or supplementary services are all services provided on the portion of a station’s digital spectrum that is not necessary to provide the required single free, over-the-air signal to viewers. Any video broadcast service that is provided with no direct charge to viewers is exempt. According to the FCC, examples of services that are considered ancillary or supplementary include, but are not limited to, “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, subscription video, and the like.”

If a station provided ancillary or supplementary services during the 12-month time period ending on September 30, 2011, it must pay the FCC 5% of the gross revenues derived from the provision of those services. This payment can be forwarded to the FCC’s lockbox at the U.S. Bank in St. Louis, Missouri and must be accompanied by FCC Form 159, the Remittance Advice. Alternatively, the fee can be paid electronically using a credit card on the FCC’s website. The fee amount must also be submitted by the December 1, 2011 due date.