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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, 2011 is the deadline for broadcast stations licensed to communities in the States/Territories referenced above to place their Annual EEO Public File Report in their public inspection files and post the report on their website, if they have one. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by April 1, 2011.

Under the FCC’s EEO rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal employment 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.

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On March 3, 2011, the FCC released a Notice of Proposed Rulemaking (“NPRM”) setting forth proposed rules to implement the video description requirements contained in the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”), which became law in October 2010. The CVAA mandates that the FCC take a number of steps to ensure that new communications technologies are accessible to individuals with vision or hearing impairment, including reinstating the video description rules for television broadcasters that had been thrown out by the United States Court of Appeals for the District of Columbia Circuit in 2002. The CVAA directs that the reinstated video description requirements apply to programming that is “transmitted for display in digital format” and authorizes the FCC to extend the video description requirements to stations and situations that were not covered by the prior rules. Accordingly, the FCC is using this NPRM to take a fresh look at the rules.

The Fifty Hour Minimum and Pass-Through Obligations

Video description, which is confusingly sometimes referred to as audio description, assists those who are blind or have impaired vision to view video programming by providing, during a pause in a program’s dialogue, a verbal description of the key visual elements being shown.

As was the case under the FCC’s former rules, all network-affiliated television stations (including non-commercial stations) must pass through video descriptions when the network provides them and the station has the technical capability to air them. For stations that have multiple broadcast streams, the FCC proposes to require the pass-through of video descriptions on each stream. The pass-through obligation also applies to multichannel video programming distributors (“MVPDs”) that have the technical capability to pass through video-described programming on the channel containing the video-described programming. As noted below, the FCC is seeking comments on how it should determine whether a particular station or MVPD has the technical capability to pass through descriptions.

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On February 22, 2011, US District Court Judge Naomi Reice Buchwald of the Southern District of New York issued a 59-page decision enjoining ivi TV, Inc. from streaming the programming of various network-affiliated television stations on the Internet without their permission. The judge’s opinion articulates a basic principle of copyright law — that the creator of the content holds a bundle of rights which, with very few exceptions, it alone controls. Therefore, even in this age of proliferating distribution platforms, the fact that the copyright owner has made its content available via a number of different technologies does not diminish its ability to control whether and how to make it available on a new platform. The case will likely yield more examination of this issue, as ivi TV has sought a stay of the injunction.

Background
ivi TV began Internet streaming of the signals of several network affiliated television stations located in Seattle and New York in September 2010, and thereafter announced plans to add stations from Chicago, Los Angeles and San Francisco in the future. It offered subscribers located throughout the United States the ability to receive these television signals via an Internet connection for a monthly fee. Subscribers downloaded a player, chose the signals to watch, and the signals were delivered in an encrypted form. In anticipation of the content owners’ lawsuit, ivi TV sought a Declaratory Ruling from a US District Court in Seattle that the company was not infringing the copyrights in the programming, but the court dismissed that case as an anticipatory filing. A consortium of television stations, the producers of programming shown on the stations, and Major League Baseball later commenced a lawsuit for copyright infringement in New York, seeking an injunction to prevent any further retransmissions of their content by ivi TV.

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No, the FCC has not instituted an early-filing program so licensees can get that pesky license renewal out of the way. Instead, in 2010 it cleaned up television license renewal applications that had been hanging around since the last renewal cycle, issuing nearly $350,000.00 in children’s television fines to some 20 licensees. So, like the year-end EEO self-assessment we recently reminded stations to undertake here, today we tee up a kidvid requirement that stations often overlook, but which the FCC does not.

The FCC’s rules require that television stations “publicize in an appropriate manner the existence and location of” their quarterly Children’s Television Programming Reports on FCC Form 398. While the FCC’s rules do not actually say that stations must publicize the existence of the reports on-air, the FCC’s staff has advised since the rule was adopted that some on-air announcements must be made to fulfill this “publicizing” obligation. The FCC’s enforcement actions bear out this admonition.

When confronted by the FCC, some broadcasters have argued that they fulfilled the “publicizing” obligation by placing the reports themselves on their website. Others have argued that they aired announcements publicizing the existence of their public inspection file (which contained the reports). None of these broadcasters liked the outcome of their encounters with the FCC. The FCC rejected the suggestion that posting the reports is an adequate substitute for publicizing their existence in the first instance or that advertising the location of the public inspection file is adequate to inform viewers that the Children’s Television Programming Reports will be found there. It is only where the broadcaster changed its practice and began airing announcements publicizing both the existence and location of the public file and noting that the Children’s Television Programming Reports are located in it that the FCC was satisfied.

So why is now a particularly good time to think about this? Many television broadcasters schedule a year-long contract in their traffic system as a mechanism for ensuring that announcements about the existence and location of the Children’s Television Programming Reports are regularly aired. However, as reflected in the FCC’s enforcement actions, many stations forget to “renew” those contracts at the beginning of a new year, or fail to reinstate the contracts after installing new traffic equipment. Also, stations sometimes overlook educating new employees about the requirement, which increases the likelihood that reinstatement of the spot schedule for the next year will be missed.

The problem is then compounded when stations continue to certify in their quarterly Children’s Television Programming Reports that they are airing the announcements when they are not. The result is that at license renewal time, stations discover too late that they failed to air the announcements for a considerable period of time, and falsely certified to the FCC that they had complied with the requirement.

Fines of $10,000.00 and even $20,000.00 have been levied for this violation. To avoid a similar fate, stations should take the time now to verify that they have renewed the spot schedule in their traffic systems, and are running the required announcements, with the required content, on a regular schedule. Renew that annual contract. You’ll be glad you did at license renewal time.

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by January 10, 2011, reflecting programming aired during the months of October, November and December, 2010.

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.

To demonstrate their compliance with these requirements, 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.

In a recent series of decisions, the FCC issued fines of between $25,000 and $70,000 to stations that had failed to comply with one or more of the FCC’s children’s television requirements, with $270,000 in fines being issued in a single day.

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ local public inspection files by January 10, 2011, reflecting information for the months of October, November and December, 2010.

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.

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Television stations that have not yet completed construction or commenced operation of their final post-transition DTV facilities must continue the required general DTV Consumer Education Initiatives until they commence operation on their post-transition DTV facilities. Such stations will be required to file another FCC Form 388 by January 10, 2011, providing the Commission with the details of the DTV Consumer initiatives that they performed between October 1 and December 31, 2010.

By January 10, 2011, those television stations that completed construction and commenced operation with their post-transition final DTV facilities after September 30, 2010, or have not yet completed construction and commenced operation of their post-transition digital facilities, are required to report on the DTV Consumer Education Initiatives undertaken in the months of October, November and December by electronically filing the FCC Form 388. The FCC Form 388 is also required to be placed in the station’s public inspection file by January 10, 2011 and posted by that date to the station’s website, if it has one.

Stations which completed construction of their fully-authorized, post-transition digital facilities prior to September 30, 2010 were not required to continue with the general DTV Consumer Education announcements and are not required to submit any additional FCC Forms 388 filings.

For assistance in preparing and completing any of this documentation, please contact the lawyers in the Communications Practice Section.

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A trend we see in FCC enforcement actions is the FCC attributing multiple rule violations to a single act or omission, and then peppering stations with multiple fines. This trend is confirmed in two EEO enforcement actions released in the waning hours of 2010. These cases demonstrate, among other things, why it is a good time for broadcasters to undertake the EEO self-assessment activities required by the FCC’s Rules.

The first of these recent cases resulted from a 2008 random audit of a six-station radio group in Joplin, Missouri. The second case arose from the 2005 license renewal applications of a four-station radio group located in and around Medford and Grant’s Pass, Oregon. Since the license renewal applications remain pending due to an unrelated complaint, the FCC was able to examine these stations’ EEO data from 2003 until 2009.

In each case, the stations relied solely on walk-ins, word-of-mouth, and employee and business referrals as the sources of interviewees for about 25% of their job openings. Based on this, the FCC found that the stations had failed to conduct any recruitment at all for these positions, as they had only used non-public recruitment sources which do not further the FCC’s goal of assuring that stations achieve broad outreach in recruiting. The Joplin stations had also aired generic on-air announcements about broadcast employment and working for the licensee company, but the FCC did not give them any credit for these announcements because they were not specific to a particular job opening. The FCC also found that the Oregon stations did not recruit broadly enough for nearly all of their remaining hires because they relied exclusively on either Internet-based referral sources or on advertisements on their own stations.

Each group of stations also had EEO paperwork and reporting problems. The Joplin stations listed the job title for seven hires as “Other” in an annual EEO public file report. The FCC said that since the EEO public file report was missing the required job title information, the stations’ public inspection files (where the reports are placed) were missing it as well.

Similarly, the FCC found the Oregon stations failed to retain records on the number and referral sources of interviewees for their job openings. As a result of this recordkeeping violation, the FCC said that the stations’ EEO public file report, and by extension, their public inspection files, were incomplete.

To top it all off, the FCC found that “[t]hese failures reveal a continuing lack of self-assessment” of the stations’ recruitment programs, creating yet another rule violation. In all, the Joplin stations were fined $8,000.00, of which $5,000.00 was for the failure to recruit for 25% of their openings, and three fines of $1,000 each were for the stations’ incomplete annual EEO public file report, their incomplete public files, and their failure to self-assess their EEO program. The Oregon stations were fined a total of $20,000, of which $16,000.00 was attributable to their failure to recruit for 25% of their vacancies and their failure to recruit broadly enough for nearly all other vacancies, and four fines of $1,000.00 each were for the stations’ failure to retain required records, failure to have a complete annual EEO public file report, failure to have complete public inspection files, and failure to self-assess their EEO program. All of the stations must, for the next three years, submit to the FCC for scrutiny copies of their annual EEO reports and copies of all job vacancies announcements, advertisements and other evidence of recruitment outreach for the year.

While the stations in these two cases were fined for not undertaking the required self-assessment of the recruitment portion of their EEO programs, broadcasters should remember that the FCC’s Rules also require licensees to regularly examine all of their employment policies to assure that they are not discriminatory. This means examining the processes by which stations recruit, hire, promote, fire, and compensate employees to be sure that they do not have a discriminatory impact.

So while you have the employment files out, and other employment issues like raises and promotions are fresh in your mind, take some extra time to review how you are making those decisions and their impact on your staff. While you’re at it, check the public file and station website to be sure your annual EEO public file reports are up to snuff as well.

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After we published our Advisory reminding licensees of the deadline to electronically file the Quarterly Children’s Television Programming Report on FCC Form 398 for the Third Quarter of 2010, the FCC disclosed that it has modified its electronic filing system to require the entry of a Federal Registration Number (“FRN”) and password as the final step before the report can be filed. The FCC issued no advance public notice of this requirement, but instead placed the following notice on its webpage dedicated to the Children’s Television Act of 1990, although NOT on the page that licensees visit to prepare and file the report itself:

To enhance the security and integrity of the KidVid database, we now require authentication with an FRN and password associated with the broadcast facility for each Form 398 filing. After you have completed Form 398, you will be prompted to enter this information. You must enter your FRN and password to complete the form. If you have forgotten your FRN password, please contact the CORES helpdesk at 877-480-3201.

Because of the potential for surprises associated with the implementation of this new requirement, we recommend that, if possible, licensees complete their Form 398 filings in advance of the filing deadline. The filing deadline for this quarter falls on Tuesday, October 12, 2010 due to the Columbus Day holiday, so Friday, October 8, 2010 is a good target date for completing the Form 398. This will allow additional time for station personnel to address any issues that arise, such as determining which FRN and password combination(s) will be accepted by the filing system, and, if necessary, to locate the correct information.

Should you have any questions regarding this Alert or the FCC’s children’s programming requirements in general, please contact any of the attorneys in the Communications practice section.

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September 2010

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by October 10, 2010, reflecting programming aired during the months of July, August and September, 2010.

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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