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3/18/2011
The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to their respective license renewal filing deadlines.

Noncommercial educational radio stations licensed to communities in Texas, and noncommercial television stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee, must file their Biennial Ownership Reports by April 1, 2011.

In 2009, the FCC issued a Further Notice of Proposed Rulemaking seeking comments on, among other things, whether the Commission should adopt a single national filing deadline for all noncommercial 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 1, 2011 for Noncommercial Educational Radio Stations in Texas, and for Noncommercial Television Stations in Delaware, Indiana, Kentucky, Pennsylvania and Tennessee.

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3/18/2011
Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in the states listed above must begin airing pre-filing license renewal announcements on April 1, 2011. License renewal applications for these stations, and for in-state FM Translator stations, are due by June 1, 2011.

Pre-filing License Renewal Announcements

Full power commercial and noncommercial radio, LPFM, and FM Translator stations whose communities of license are located in the District of Columbia, Maryland, Virginia, or West Virginia must file their license renewal applications with the FCC by June 1, 2011.

Beginning two months prior to that filing, however, full power commercial and noncommercial radio and LPFM stations must air four pre-filing announcements alerting the public to the upcoming renewal application filing. As a result, these radio stations must air the first pre-filing renewal announcement on Friday, April 1, 2011. 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 a.m. and 9:00 a.m. and/or 4:00 p.m. and 6:00 p.m.

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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 April 10, 2011, reflecting programming aired during the months of January, February and March, 2011.

Statutory and Regulatory Requirements

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

For all full-power and Class A television stations, website addresses displayed during children’s programming or promotional material must comply with a four-part test or they will be counted against the commercial time limits. In addition, the contents of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations. The definition of commercial matter now includes 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. 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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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.