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The state-by-state license renewal cycle for radio stations that will take place over the next three years commenced on April 1, 2019.  That was when the first batch of radio broadcasters (DC, MD, VA, and WV) began airing their pre-filing announcements ahead of the June 1, 2019[1] filing date for their license renewal applications.  The cycle then repeats, with a license renewal application deadline (based on state) occurring on the first day of every other month until 2022, by which time all full power, FM translator, and LPFM stations should have filed applications seeking a new eight-year license term.  Stations can determine their license renewal date by reviewing the FCC’s state-by-state license renewal timeline.

The FCC’s license renewal application form (FCC Form 2100, Schedule 303-S) may at first appear straightforward, consisting mostly of yes/no questions.  However, appearances can be deceiving, as evidenced by the countless fines, consent decrees, and other enforcement actions levied against stations that either failed to verify the accuracy of their certifications before filing, failed to timely file their license renewal application, or whose failure to comply with the FCC’s rules over their eight-year license term became apparent at license renewal time.

Those risks have increased significantly in this license renewal cycle, as it will be the first one in which all broadcast station Public Inspection Files are online.   The ability of the FCC, petitioners, and anyone else to review a station’s Public Inspection File online, at any time of day or night, and to peruse the electronic time stamps indicating exactly when documents were uploaded, creates a regulatory minefield for any applicant that has not been fastidious in preparing for its license renewal and in completing its license renewal application.

The bulk of the license renewal application consists of certifications whereby the applicant confirms its compliance with various FCC rules and requirements.  If an applicant certifies it has complied with those rules and requirements, and that assertion is not contested by a petitioner or the FCC’s own records, the FCC will generally not request additional evidence of compliance and will grant the station’s license renewal application.  Where the application is challenged by a petitioner with evidence that one or more of the station’s certifications is false, the FCC may ask the applicant for additional information to determine if grant of the license renewal application will serve the public interest.

One of the certifications that carries the highest risk of generating a fine is the certification that the station has timely placed all required documents in its Public Inspection File.  The base fine for a Public Inspection File violation is $10,000, and the FCC can adjust that amount upward if it finds multiple or egregious violations have occurred.

That means a station whose online Public Inspection File is not complete is already subject to a sizable fine. Falsely certifying compliance in the license renewal application creates the risk of additional fines, and in extreme cases, may persuade the FCC that license renewal is simply not in the public interest.

As a result, before completing the license renewal application, stations should thoroughly review their Public Inspection File to ensure it is complete and that the time stamps indicate all documents were timely uploaded.  If the Public Inspection File is not complete, stations should upload the missing documents as quickly as possible and be prepared to disclose that fact in their license renewal application.  With the Public Inspection File now online, it is easy for the FCC or a petitioner to challenge the accuracy of a station’s license renewal certifications—quite different from the days when a broadcast employee might reach retirement age without ever encountering a Public Inspection File visitor.  It is therefore even more important to a station’s well-being during this renewal cycle to fix any problems spotted as promptly as possible rather than just pretending those problems don’t exist when certifying rule compliance in the license renewal application.

The License Renewal Process

The first point to note is that a license renewal application is just that—an application—and not a guarantee of a new license term.  The Communications Act of 1934, as amended (the “Act”) requires all radio broadcasters to obtain from the FCC an authorization to operate.  By filing Schedule 303-S, an applicant requests its authorization be extended for another eight years.  The Act requires the FCC to grant such an application only if it finds that during the preceding license term: (1) the station has served the public interest, convenience, and necessity; (2) the licensee has not committed any serious violations; and (3) there have been no other violations by the licensee of the FCC’s rules and regulations which, taken together, would constitute a pattern of abuse.  To this end, the FCC invites petitions to deny, informal objections, and comments from the public for every license renewal application, and will review the application and these other submissions to make a determination as to whether the station at issue is deserving of license renewal. Continue reading →

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This Pillsbury Broadcast Station Advisory is directed to radio and television stations in the areas noted above, and highlights upcoming deadlines for compliance with the FCC’s EEO Rule.

June 1 is the deadline for broadcast stations licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming to place their Annual EEO Public File Report in their Public Inspection File and post the report on their station website.  In addition, certain of these stations, as detailed below, must submit their two most recent EEO Public File Reports along with FCC Form 2100, Schedule 396 as part of their license renewal application submissions due on June 3.

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, 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, participating in 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 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.  As discussed below, nonexempt SEUs must submit to the FCC their two most recent Annual EEO Public File Reports when they file their license renewal applications.

For a detailed description of the EEO Rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters published by Pillsbury’s Communications Practice Group.  This publication is available at: http://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

Deadline for the Annual EEO Public File Report for Nonexempt Radio and Television SEUs

Consistent with the above, June 1, 2019 is the date by which Nonexempt SEUs of radio and television stations licensed to communities in the states identified above, including Class A television stations, must (i) place their Annual EEO Public File Report in the Public Inspection Files of all stations comprising the SEU, and (ii) post the Report on the websites, if any, of those stations.  LPTV stations are also subject to the broadcast EEO Rule, even though LPTV stations are not required to maintain a Public Inspection File.  Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request.  Therefore, if an LPTV station has five or more full-time employees, or is otherwise part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file.

These Reports will cover the period from June 1, 2018 through May 31, 2019. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before May 31, so long as they begin the next annual reporting period on the day after the cut-off date used in the immediately preceding Report.  For example, if the Nonexempt SEU uses the period June 1, 2018 through May 22, 2019 for this year’s report (cutting it off up to ten days prior to May 31, 2019), then next year, the Nonexempt SEU must use a period beginning May 23, 2019 for its report. Continue reading →

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Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in North Carolina and South Carolina must begin airing pre-filing license renewal announcements on June 1, 2019.  License renewal applications for these stations, and for in-state FM translator stations, are due by August 1, 2019.

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 June 1.  The remaining pre-filing announcements must air once a day on June 16, July 1, and July 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 December 1, 2019.  [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 December 1, 2019.  We must file an application for renewal with the FCC by August 1, 2019.  When filed, a copy of this application will be available for public inspection at www.fcc.gov.  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 FCC by November 1, 2019.

Further information concerning the FCC’s broadcast license renewal process is available at [address of location of the station][1] or may be obtained from the FCC, Washington, DC 20554, http://www.fcc.gov/.

If a station misses airing an announcement, it should broadcast a make-up announcement as soon as possible and contact counsel to further address the situation.  Special rules apply to noncommercial educational stations that do not normally operate during any month when their announcements would otherwise be due to air, as well as to other silent stations.  These stations should also contact counsel regarding how to give the required public notice.

Post-Filing License Renewal Announcements

Once the license renewal application has been filed, full power commercial and noncommercial radio and LPFM stations must broadcast six post-filing renewal announcements.  These announcements must air, once per day, on August 1, August 16, September 1, September 16, October 1, and October 16, 2019.  At least three of these announcements must air between 7:00 am and 9:00 am and/or 4:00 pm and 6:00 pm.  At least one announcement must air in each of the following time periods: between 9:00 am and noon, between noon and 4:00 pm, and between 7:00 pm and midnight.

The text of the post-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 December 1, 2019.

Our license will expire on December 1, 2019. We have filed an application for renewal with the FCC.

A copy of this application is available for public inspection at www.fcc.gov.  It contains information concerning this station’s performance during the last eight years [or such other period of time covered by the application, if the station’s license term was other than a standard eight-year 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 FCC by November 1, 2019.

Further information concerning the FCC’s broadcast license renewal process is available at [address of location of the station] or may be obtained from the FCC, Washington, DC 20554, www.fcc.gov. Continue reading →

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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:

  • FCC Revokes License for Unpaid Regulatory Fees; Warns Other Stations of Similar Fate
  • Texas Station Warned Over Multiple Tower and Transmission Violations
  • FCC Nabs Massachusetts Pirate While Commission Continues to Push for Anti-Piracy Legislation

Winter Comes for FM Station With Unpaid Regulatory Fees

The FCC’s Media Bureau published a trio of orders this month relating to the unpaid regulatory fees of three unrelated FM stations.  In the most severe case, the Media Bureau revoked the license of a Massachusetts station, ordering it to cease operations immediately.  The Bureau also initiated license revocation proceedings for overdue fees from stations in Illinois and Louisiana.

The Communications Act requires the FCC to assess and collect regulatory fees for certain regulated activities, including broadcast radio.  The FCC assesses a 25 percent penalty on any late or missing payments.  Failure to pay these regulatory fees or related penalties is grounds for license revocation.

The Media Bureau initially sent the Massachusetts licensee several Demand Letters requiring payment of delinquent fees.  The licensee did not respond to them.  Subsequently, in November 2018, the Media Bureau issued an Order to Pay or to Show Cause, which required the licensee to either pay its overdue fees or demonstrate why it did not owe them.  As we discussed at the time, between fiscal years 2014 and 2018, the licensee had accumulated a debt to the FCC of $9,641.73 in unpaid fees and related charges.  After the licensee failed to respond to the November Order, the Media Bureau issued a Revocation Order.  This “death sentence” terminates the licensee’s authority to operate the station and deletes the station’s call sign from FCC databases.

Shortly after releasing the Revocation Order, the Media Bureau issued two separate Orders to Pay or to Show Cause to the licensees of FM stations in Louisiana and Illinois.  According to the Media Bureau, the Louisiana licensee owes the FCC $11,386.77 in regulatory fees, interest, penalties, and other charges for fiscal years 2009, 2011-2014, and 2017, and the Illinois licensee owes $17,296.21 for fiscal years 2007, 2009, 2010, 2012, and 2013.  The Media Bureau had previously sent various notices and Demand Letters to the licensees regarding the overdue amounts without success.

The Louisiana and Illinois licensees each have 60 days in which to submit evidence showing that either full payment has been made, or that payment should be waived or deferred, lest they suffer the same fate as the Massachusetts FM station.

Who Monitors the Monitoring Points?  FCC Warns Texas AM Station Over Multiple Tower and Transmission Violations

The FCC’s Enforcement Bureau issued a Notice of Violation (“NOV”) against the tower owner and licensee of a Dallas-area AM station for improper tower painting and lighting and for operating at variance from its license. Continue reading →

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ Public Inspection Files by April 10, 2019, reflecting programming aired during the months of January, February and March 2019.

Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 (“Act”) 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 under, and (2) air programming responsive to the educational and informational needs of children 16 years of age and under.

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) submit 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.  The FCC automatically places the electronically filed Form 398 filings into the respective station’s Public Inspection File.  However, each station should confirm that has occurred to ensure that its Public Inspection File is complete.  The base fine for noncompliance with the requirements of the FCC’s Children’s Television Programming Rule is $10,000.

Broadcasters must file their reports via the Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.

Noncommercial Educational Television Stations

Because noncommercial educational television stations are precluded from airing commercials, the commercial limitation rules do not apply to such stations.  Accordingly, noncommercial television stations have no obligation to place commercial limits documentation in their Public Inspection Files.  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 FCC Form 398.  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. Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by April 10, 2019, reflecting information for the months of January, February and March 2019.

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 the 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.

Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations.  The lists also provide important support for the certification of Class A television station compliance discussed below.  We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness.  Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during the license term.  Stations should include in the Quarterly Lists as much issue-responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs.  Taking extra time now to provide a thorough Quarterly List will help reduce risk at license renewal time.

It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their Public Inspection File.  The FCC’s base fine for missing Quarterly Lists is $10,000.

Preparation of the Quarterly List

The Quarterly Lists are required to be placed in the Public Inspection File by January 10, April 10, July 10, and October 10 of each year.  The next Quarterly List is required to be placed in stations’ Public Inspection Files by April 10, 2019, covering the period from January 1, 2019 through March 31, 2019. Continue reading →

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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:

  • Oregon LPFM Station Warned Over Emergency Alert System Violations
  • Pennsylvania Man Accused of Interfering With Local Fire Department Operations
  • Earth Station Transmission Problems Lead to Warning Against Florida Wireless Licensee

This is Not a Test: Low Power FM Station Warned Over Emergency Alert Violations

The FCC’s Enforcement Bureau presented a Notice of Violation (“NOV”) to the licensee of a Portland, Oregon low-power FM radio station for a number of violations relating to the Emergency Alert System. The licensee is a local cultural community center that broadcasts Russian-language programming to the area’s Eastern European community.

The Emergency Alert System (“EAS”) is a nationwide warning system that allows authorized state and national public agencies to alert the public about urgent situations, including natural disasters and other incidents that require immediate attention.  The EAS is jointly operated by the FCC, the Federal Emergency Management Agency, and the National Oceanographic Atmospheric Administration.  Local radio stations make up a vital component of the system by monitoring authorized sources for alerts and rapidly relaying these emergency messages.  Such stations are referred to as “EAS participants.”  Each state is responsible for creating a state EAS plan, which includes designating in-state stations that other stations must constantly monitor for alerts.

Section 11.15 of the FCC’s Rules requires that a copy of the EAS Operating Handbook be located “at normal duty stations or EAS equipment locations when an operator is required to be on duty.”  Section 11 of the Rules also requires EAS participants to monitor two sources, which are specified in each state’s respective EAS plan.

In February 2019, Enforcement Bureau agents inspected the Portland station and discovered two violations of the EAS Rules.  According to the NOV, the station was unable to produce its copy of the EAS Operating Handbook.  The agents also discovered a monitoring error.  The most recent Oregon State Emergency Alert Plan required the station to monitor two specific Portland area FM stations.  During the inspection, the agents found the LPFM station had instead been monitoring a different station.

The licensee has 20 days to respond to the NOV.  In its response, it must provide: (1) an explanation of each violation; (2) a description of the licensee’s corrective actions; and (3) a timeline for completion of these actions.  The FCC will then consider the licensee’s responses and all relevant information to determine what, if any, enforcement action it will take against the licensee for the violations.

State Your Emergency: FCC Accuses Pennsylvania Man of Interfering With Safety Services

In a Notice of Unlicensed Operation and Notification of Harmful Interference (“Notice”), the FCC accused a man of using a two-way radio to cause harmful interference to a local emergency services operation by making unauthorized transmissions on a frequency reserved for public safety.

As we discussed last year, Chairman Pai has noted that protecting public safety and emergency response communications is of the utmost importance.  The Enforcement Bureau has recently responded aggressively to interference complaints from first responders and emergency service departments, including issuing multi-thousand dollar fines.

Section 301 of the Communications Act prohibits the transmission of radio signals without prior FCC authorization.  Section 90.20 of the Rules establishes the requirements for obtaining authorization to use public safety frequencies.  The FCC reserves certain bands for first responders as “public safety spectrum.” Unauthorized transmissions on such bands can pose a threat to first responders and the general public by interfering with local emergency service operations, including police, EMS, or in this case, the fire department.

The Enforcement Bureau began its investigation after being contacted by an eastern Pennsylvania county’s Emergency Management Association.  According to the complaint, harmful interference and unauthorized transmissions were occurring on 155.190 MHz, a frequency used for local fire department communications.  The Enforcement Bureau identified a local individual as the source of the interfering transmissions.

According to the Notice, the individual admitted to operating a VHF-UHF two-way radio at 155.190 MHz, despite not being authorized to operate on that frequency.

The individual was given 10 days to respond to the Notice.  In his response, the individual must explain the steps he is taking to avoid operating on unauthorized frequencies and causing harmful interference.  It will then be up to the FCC to determine whether further enforcement action, including fines or other sanctions, is appropriate. Continue reading →

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This Pillsbury Broadcast Station Advisory is directed to radio and television stations in the areas noted above, and highlights upcoming deadlines for compliance with the FCC’s EEO Rule.

April 1, 2019 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 File and post the report on their station website.  In addition, certain of these stations, as detailed below, must also electronically file an EEO Mid-Term Report on FCC Form 397 by April 1.[1]

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, 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, participating in 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 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.  Nonexempt SEUs must submit to the FCC the two most recent Annual EEO Public File Reports when they file their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with 11 or more full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the mid-point of their eight-year license term along with FCC Form 397—the Broadcast Mid-Term EEO Report.

Exempt SEUs—those with fewer than five 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 The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters published by Pillsbury’s Communications Practice Group.  This publication is available at: http://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

Deadline for the Annual EEO Public File Report for Nonexempt Radio and Television SEUs

Consistent with the above, April 1, 2019 is the date by which Nonexempt SEUs of radio and television stations licensed to communities in the states identified above, including Class A television stations, must (i) place their Annual EEO Public File Report in the Public Inspection Files of all stations comprising the SEU, and (ii) post the Report on the websites, if any, of those stations.  LPTV stations are also subject to the broadcast EEO Rule, even though LPTV stations are not required to maintain a Public Inspection File.  Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request.  Therefore, if an LPTV station has five or more full-time employees, or is otherwise part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file.

These Reports will cover the period from April 1, 2018 through March 31, 2019.  However, Nonexempt SEUs may “cut off” the reporting period up to ten days before March 31, so long as they begin the next annual reporting period on the day after the cut-off day used in the immediately preceding Report.  For example, if the Nonexempt SEU uses the period April 1, 2018 through March 21, 2019 for this year’s report (cutting it off up to ten days prior to March 31, 2019), then next year, the Nonexempt SEU must use a period beginning March 22, 2019 for its report.

Deadline for Performing Menu Option Initiatives

The Annual EEO Public File Report must contain a discussion of the Menu Option initiatives undertaken during the preceding year.  The FCC’s EEO Rule requires each Nonexempt SEU to earn a minimum of two or four Menu Option initiative-related credits during each two-year segment of its eight-year license term, depending on the number of full-time employees and the market size of the Nonexempt SEU.

  • Nonexempt SEUs with between five and ten full-time employees, regardless of market size, must earn at least two Menu Option credits over each two-year segment.
  • Nonexempt SEUs with 11 or more full-time employees, located in the “smaller markets,” must earn at least two Menu Option credits over each two-year segment.
  • Nonexempt SEUs with 11 or more full-time employees, not located in “smaller markets,” must earn at least four Menu Option credits over each two-year segment.

The SEU is deemed to be located in a “smaller market” for these purposes if the communities of license of the stations comprising the SEU are (1) in a county outside of all metropolitan areas, or (2) in a county located in a metropolitan area with a population of less than 250,000 persons.

Because the filing date for license renewal applications varies depending on the state to which a station is licensed, the time period in which Menu Option initiatives must be completed also varies.  Radio and television stations licensed to communities in the states identified above should review the following to determine which current two-year segment applies to them:

  • Nonexempt radio station SEUs licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania and Tennessee must earn at least the required minimum number of Menu Option credits during the two year “segment” between April 1, 2018 and March 31, 2020, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt radio station SEUs licensed to communities in Texas must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between April 1, 2017 and March 31, 2019, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Texas must earn at least the required minimum number of Menu Option credits during the two-year “segment” between April 1, 2018 and March 31, 2020, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania and Tennessee must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between April 1, 2017 and March 31, 2019, as well as during the previous two-year “segments” of their license terms.

Continue reading →

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Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in the District of Columbia, Maryland, Virginia, and West Virginia must begin airing pre-filing license renewal announcements on April 1, 2019.  License renewal applications for these stations, and for in-state FM translator stations, are due by June 1, 2019.

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, 2019.  [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, 2019.  We must file an application for renewal with the FCC by June 1, 2019.  When filed, a copy of this application will be available for public inspection at www.fcc.gov.  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, 2019.

Further information concerning the FCC’s broadcast license renewal process is available at [address of location of the station][1] or may be obtained from the FCC, Washington, DC 20554.

If a station misses airing an announcement, it should broadcast a make-up announcement as soon as possible and contact counsel to further address the situation.  Special rules apply to noncommercial educational stations that do not normally operate during any month when their announcements would otherwise be due to air, as well as to other silent stations.  These stations should also contact counsel regarding how to give the required public notice.

Post-Filing License Renewal Announcements

Once the license renewal application has been filed, full power commercial and noncommercial radio and LPFM stations must broadcast six post-filing renewal announcements.  These announcements must air, once per day, on June 1, June 16, July 1, July 16, August 1, and August 16, 2019.  At least three of these announcements must air between 7:00 am and 9:00 am and/or 4:00 pm and 6:00 pm.  At least one announcement must air in each of the following time periods: between 9:00 am and noon, between noon and 4:00 pm, and between 7:00 pm and midnight.

The text of the post-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, 2019.

Our license will expire on October 1, 2019.  We have filed an application for renewal with the FCC.

A copy of this application is available for public inspection at www.fcc.gov.  It contains information concerning this station’s performance during the last eight years [or such other period of time covered by the application, if the station’s license term was other than a standard eight-year 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, 2019.

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

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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:

Headlines:

  • FCC Fines Kentucky Men $144,344 for Illegally Operating LPTV Station for 18 Years
  • North Carolina Radio Station Settles With FCC Over Decades of Unauthorized Transfers
  • Connecticut Radio Station Warned for Inspection and Antenna Violations

Pay Up: FCC Fines Two Kentucky Men for Illegally Operating LPTV Station for 18 Years

The FCC issued a Forfeiture Order imposing a $144,344 penalty against the operators of a Kentucky unlicensed low-power television (“LPTV”) station.  The station had been operating without FCC authorization since 1998.  The Communications Act prohibits the operation of a broadcast station without FCC authorization.  As we reported in 2017, the FCC previously adopted a Notice of Apparent Liability (“NAL”) against the individuals.  This Forfeiture Order affirms the NAL.

The first individual (“Individual 1”) initially applied for and was granted the LPTV license in 1990, as well as a subsequent renewal term that ran from July 1993 through August 1998.  By the time that term expired, however, the individual licensee had failed to file a license renewal application or seek special temporary authorization to operate the station, and by August 1998, the station was operating without any FCC authorization.  In 2004, the FCC’s Media Bureau sent a letter to the individual asking whether he had filed a license renewal application.  Receiving no response, the Media Bureau sent a letter notifying the licensee that the station’s license had been cancelled.

Fast forward eight years, to 2016, when the Media Bureau learned that the station might still be operating.  The matter was referred to the Enforcement Bureau, which confirmed that the station was still on the air.  During the investigation, Enforcement Bureau field agents interviewed Individual 1 as well as a second individual who identified himself as the station’s studio manager and operations manager (“Individual 2”).  During their meeting with Individual 2 at the station, the agents issued a Notice of Unlicensed Radio Operation (“NOUO”) demanding the station cease operations and warning of possible further enforcement action.  In Individual 2’s response to the NOUO, he argued that the station was actually still licensed and referred to the NOUO as only a “request” to shut down.

Field agents returned a few months later to find the station still operating.  The Enforcement Bureau subsequently issued the NAL.

Both men responded individually to the NAL.  Individual 1 claimed, among other things, that the license should still be in effect because he filed a license renewal application in 2004 and included $1,155 to cover license renewal fees for three of his stations through 2022.  He further claimed that the station should remain on air because of the benefits it provides to local residents.  At the same time, however, Individual 1 also claimed to have “never operated a TV station” in the area and had not visited the station in over 15 years.  Finally, Individual 1 sought a reduction in the proposed penalty due to an inability to pay.

The FCC outright rejected all of Individual 1’s claims.  Regarding the late license renewal application, besides filing the application six year late, the filing would only have covered the preceding license term.  Further, the Media Bureau could not have accepted the application because while the funds could have covered the stations’ accumulated annual regulatory fees, Individual 1 did not include application processing fees, without which the Media Bureau cannot review an application.

In response to the claims about benefiting the local community, the FCC stated that any alleged benefit from operations “does not absolve [the operator] from liability.”  The FCC also rejected Individual 1’s claim that he never operated the station, noting that the claim conflicted with the evidence, which included filings and statements made by both individuals to the contrary.

Individual 2’s response to the NAL similarly did not gain much traction with the FCC, despite a few novel theories.  In his response, Individual 2 claimed that the FCC lacks jurisdiction over the station because its signal was not intended to reach beyond the state of Kentucky.  Further, Individual 2 included a petition signed by over 100 local residents urging the FCC to allow the station to continue operating.  Individual 2 also claimed that he lacked the financial resources to pay the penalty.

The FCC rejected Individual 2’s federalism argument as contradicting the plain language of the Communications Act, which prohibits making unauthorized intrastate or interstate transmissions.  Further, the Commission gave no weight to the station’s “community support,” as it had no bearing on the unlicensed operation of a broadcast station.

The FCC also declined to reduce the penalty amount for either party, who it found jointly and individually liable.  Beyond a lack of evidence of inability to pay, the FCC determined that the severity of the violation warranted the penalty, which was calculated by multiplying the $10,000 per day base penalty amount by 22 days of unauthorized operations.  In fact, the Forfeiture Order states that the only reason the penalty was not greater is because $144,344 is the statutory maximum permitted under the Communications Act for a continuing violation.  The FCC also reminded the parties that an ability to pay is only one consideration in adjusting a penalty amount.  Here, the violation lasted over 18 years, and the parties were notified or directly warned at several points over that period about the consequences of operating without a license.

History of an Error: North Carolina Licensee Settles with FCC Over Decades of Unauthorized Transfers and Missing Ownership Reports

The Media Bureau entered into a Consent Decree with the licensee of a North Carolina AM radio station and FM translator station for violating the FCC’s rules governing transfers of control and the filing of ownership reports.

Section 310 of the Communications Act and Section 73.3540 of the FCC’s Rules prohibit the transfer of control of broadcast licenses from one individual, entity, or group to another without prior FCC approval.  In the case of full-power broadcast stations, parties must file FCC Form 315 applications and receive FCC consent before a transfer of control can be consummated.

The transfer of control applications ultimately leading to the Consent Decree were filed with the FCC in April 2018, but the licensee’s problems began over thirty years earlier, shortly after the FCC approved an assignment of the AM station’s license.  The FCC believes that, in 1986, the licensee had five attributable shareholders (the FCC states in a footnote that it is unable to locate the licensee’s original assignment application).  However, over the next few years, over 50% of the licensee’s stock changed hands without FCC consent.  Again, in 1992, more than 50% of the licensee’s stock was transferred without consent, and new directors were appointed to control the licensee.  In 1994, another unauthorized transfer transpired when a minority shareholder acquired a 66% interest in the licensee without prior Commission approval. Continue reading →