Articles Posted in Low Power & Class A Television

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Death, taxes, and ownership reports: all three are unavoidable, but broadcasters had a brief respite from the last one. That respite has now come to an end.

One of the joys of being a broadcast licensee is filing biennial ownership reports detailing the extended ownership structure of each station. These reports used to be called Annual Ownership Reports and were filed, appropriately enough, annually. In an effort to reduce the amount of paperwork flowing between licensees and the FCC, the requirement changed in 1999 from an annual to a biennial one. That created endless confusion, as any particular station’s filing deadline was generally dictated by where it was located. Radio stations in one state would file by April 1 of odd-numbered years, while radio stations in a different state would be required to file by June 1 of even-numbered years. In fact, even TV and radio stations in the same state were required to file in different years.

Because of exceptions to the general rule on filing deadlines (too boring to discuss here), even the FCC had difficulty determining whether a station had been properly filing its ownership reports on time. As a result, the FCC adopted new filing rules in May 2009 establishing November 1 of odd-numbered years as the national ownership report filing date for all commercial broadcast stations. It also introduced a new form requiring more detailed information than in the past, required formerly exempt entities to file reports, and required that the information be entered electronically and repeatedly into the FCC’s filing system for each attributable owner in the ownership chain.

Previously, licensees with complex ownership structures would create a single exhibit describing the complete ownership structure and other media ownership interests, which was then attached to the ownership report for every entity in the chain of ownership. Because the new electronic ownership report form would not allow such attachments, stations (well, let’s be honest; station’s lawyers) were required to reenter the data for each and every ownership report. The reports for even midsize station groups could take months to complete. Initially, the FCC postponed the filing deadline (twice!) to give licensees time to fill out the voluminous reports, but as the FCC’s electronic filing system started to whimper from the volume of data being entered, the FCC postponed the deadline until the form could be reworked to solve the worst of the problems. For those interested, you can read our advisories and alerts from the time here, here, here, here, here, and here (you begin to appreciate the scope of the problem!).

A few hours ago, the FCC announced that a revamped ownership report form is now available which resolves the repetitive data entry issue by incorporating a spreadsheet that, once filled out, can be copied into multiple ownership reports. With the availability of the new form, the FCC also announced that all commercial broadcast stations, including Class A and LPTV stations, must file their reports on the new form by July 8, 2010. For those interested in the details of the new Form 323 and spreadsheet, you can read our Client Alert on the new form, and ponder whether a similar eight month postponement of death or taxes might also be possible.

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4/8/2010
The FCC’s Media Bureau has announced that a new version of the Biennial Ownership Report Form for commercial broadcast stations, FCC Form 323, will be available on its website as of April 9, 2010. All commercial broadcast station owners must file their biennial ownership reports using the new form by July 8, 2010. However, the data used to complete the form must be accurate as of November 1, 2009.

The FCC originally announced its intent to implement a new version of the Form 323 in an Order released in May 2009 as part of its Promoting Diversification in the Broadcasting Services proceeding. The revision required, among other things, that each holder of a direct or indirect attributable interest in a licensee secure an FCC-issued Federal Registration Number (“FRN”). The revision also mandated that information regarding attributable interest holders and their other broadcast interests be reported repeatedly and in a precisely structured manner. As a result, the number of reports and the time to complete each report increased dramatically for many broadcasters with the ultimate result that the FCC’s electronic filing system ground to a near halt and did not reliably save information entered into it. Based on these technical difficulties, the FCC stayed the filing obligation until it could improve the functioning of the form to account for these difficulties.

The FCC sent its revisions to the form to the Office of Management and Budget (“OMB”) for approval on March 25, and OMB approved the modified form on March 26. The revised form uses a new XML Spreadsheet template that will allow information to be entered into the spreadsheet and then uploaded to the form, thereby reducing the time and effort needed to enter the data. The spreadsheet must be downloaded from the FCC form and comes with detailed instructions regarding the proper use of the XML Spreadsheet. Of particular note are the following:

  • The XML Spreadsheet comes with 25 empty rows for data entry that contain embedded validation codes necessary for the proper functioning of the form. Any licensee needing more than 25 lines must copy and paste the original 25 lines as many times as necessary and not create new lines.
  • The XML Spreadsheet must be saved with an .xml extension, not the .xls or .xlsx extensions that the Excel program will assign by default.
  • Licensees must not change or delete any data in Cell B1.
  • Information must be entered in all capital letters.

The new version of the form also retains the requirement that each attributable interest holder secure an FRN. The instructions state that where, after a good faith effort, a licensee is unable to secure an interest holder’s social security number, which is needed to complete the FRN registration process, a button on the form will allow the licensee to secure a Special Use FRN. The instructions to the form state that the Special Use FRN can only be used for the Biennial Ownership Report filing, and not for any other filing, such as a post-consummation Ownership Report filing.

The Commission’s May 2009 Order also adopted November 1 as a new uniform reporting date for all commercial stations nationwide, regardless of the station’s license renewal filing anniversary (the deadline previously used by the FCC). Because the original November 1, 2009 filing requirement was stayed while the form was revised, the reports filed by the new July 8, 2010 deadline must still reflect the ownership data as it existed November 1, 2009.

The substantial difference in time between the new filing deadline and the time for which ownership information is being reported leads to some interesting questions. For example, where a station has been sold since November 2009, should the report be filed under the name of the new licensee or the prior licensee. If it is to be filed by the new licensee, how will the FCC deal with the fact that the new licensee may not have any personal knowledge of the prior licensee’s November 2009 ownership structure? These questions may be answered by a follow up public notice from the FCC, but if not, we will be pursuing them with the FCC’s staff.

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3/25/2010
Amendments must be filed by May 24, 2010. A $705 filing fee is required.

The FCC released a Public Notice today identifying several hundred pending applications for new analog LPTV or TV Translator stations that must be amended to specify digital operation. A copy of the FCC public notice is available at http://hraunfoss.fcc.gov/edocs_public/attachmatch/DA-10-496A1.pdf. The Public Notice indicates that applications that are not amended will not be processed. The amendments must be filed electronically, along with a filing fee of $705.00 per application. Most of the listed applications were filed in a window held in 2000 and were filed in paper. The deadline to amend these applications is May 24, 2010.

The Public Notice states that this action is being taken in furtherance of the nationwide transition to digital television. However, the staff’s National Broadband Plan released last week urged the FCC to set a dead¬line by which all analog LPTV and TV Translator stations must convert to digital operation. This action appears to be a first step in that process. Accordingly, LPTV and TV Translator stations should be alert to the possibility of a further Public Notice establishing a similar transition requirement for existing stations.

A PDF version of this article can be found at Pending Applications for New Analog Low Power Television and TV Translator Stations Must Be Amended to Specify Digital Operation.

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This afternoon, the Commission released an Order announcing that, due to technical difficulties, it was temporarily suspending the use of the new FCC Form 323 and, as a consequence, was postponing the January 11, 2010 deadline for the filing of Biennial Ownership Reports for commercial broadcast licensees. The Commission stated that it would announce the reactivation of the new form and the new filing deadline in a subsequent Public Notice. The Order states that the Commission “will temporarily suspend the ability to start a new biennial Form 323 during this interim suspension period but will allow filers to complete and file forms that they have already started should they wish to do so.” The Order also states that the new filing deadline will be at least 90 days from the date that the new form is made available for new biennial filings.

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December 2009
Today, the FCC released a Public Notice announcing that as of December 9, 2009, the new FCC Form 323 will become available online in the FCC’s CDBS filing system.

Additionally, the FCC announced the availability of a “Special Use FRN” option in reporting attributable interest holders on the new FCC Form 323. The FCC stated that if a filer “is unable to obtain an FRN for any specific individual required to be reported on Form 323, the electronic form contains a mechanism for generating an interim ‘Special Use FRN’ solely for the purposes of completing the form.” The Special Use FRN is only to be used in filing biennial ownership reports on FCC Form 323 and may not be used for any other purpose at the FCC. According to the Public Notice, this option should be used only when necessary and filers should use their “best efforts” to obtain FRNs from all attributable interest holders. The FCC indicates that those who take advantage of the Special Use FRN are still expected to later obtain a “fully compliant” FRN which must be used in all future biennial ownership report filings.

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November 2009
In a Public Notice released by the FCC today, the Media Bureau has announced that it has extended to January 11, 2010, the prior December 15, 2009 deadline for commercial radio and television broadcast station licensees to file their Biennial Ownership Reports on revised FCC Form 323.

This announcement comes as a great relief to licensees of commercial broadcast stations given that the electronic version of revised FCC Form 323 is not yet available on the FCC’s CDBS system for uploading of data.

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September 2009
Federal Communications Commission has announced that full payment of all applicable Regulatory Fees for Fiscal Year 2009 must be received no later than September 22, 2009. The price of missing the deadline is a 25% up-charge.

On August 21, 2009, the Federal Communications Commission released a Public Notice officially announcing September 22, 2009 as the deadline for payment for its annual regulatory fees for FY 2009. Licensees and permittees subject to annual regulatory fees must make their payments no later than 11:59 pm, EDT, on September 22, 2009.

The penalty for late or non-payment of the annual regulatory fee is 25% of the total amount owed and not paid. In addition, the Commission will refuse to process a licensee’s/permittee’s applications until full payment, including any applicable penalty, has been received. Lastly, failure to pay in full may also subject a regulatee to loss of its FCC authorizations.

This year the FCC mailed assessment notices to licensees/permittees reflecting the FCC’s understanding of their required payment obligations. Those notices may not include all of your stations and do not take into account any of your auxiliary licenses for which fees are also due. Accordingly, you should not assume that the notice is correct or complete.

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August 2009
The FCC has released its final schedule of Annual Regulatory Fees for FY 2009. It is expected that those fees will become due and payable sometime in September. We will issue a further Client Advisory as soon as the Commission issues a Public Notice announcing the applicable deadline.

The FCC has released the text of its Report and Order adopting a new schedule of annual regulatory fees. The fees for FY 2009 are almost 10% more than for FY 2008. A copy of the FCC’s Report and Order, including the FY 2009 fee schedule, may be viewed by clicking this link http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-09-62A1.pdf. Specifically, broadcaster related fees are provided in Appendix C, pages 21 – 23, of the FCC’s Report and Order. The FY 2009 regulatory fees are scheduled to become effective 30 days after publication in the Federal Register.

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7/1/2009
This week, the FCC issued a Public Notice announcing that it is finally lifting the freeze on the filing of new low power television (“LPTV”) and television translator stations. First, on August 25, 2009, the FCC will begin accepting applications for stations in “rural areas” for: (1) new digital-only LPTV and TV translator stations; (2) major changes to existing analog and digital LPTV and TV translator facilities; (3) and, in the case of current analog stations, for digital companion channels. “Rural areas” are defined as areas with antenna site coordinates that are located more than 75 miles from the reference coordinates of the largest 100 cities as defined by Nielsen Media Research and are listed in Appendix A of the Public Notice. Second, the Public Notice also announces that on January 25, 2010, the FCC will begin accepting the above-referenced three types of LPTV and television translator applications nationwide, without any geographic restrictions.

In all cases, applications will be considered on a first-come, first-served basis with a daily “cut off” policy, and if the FCC receives mutually exclusive (i.e., incompatible) applications, it will award the license by auction. Additionally, the Public Notice emphasizes that applications for new analog facilities will absolutely not be accepted and that applications for new digital LPTV and television translator stations and for replacement digital translators may only be filed specifying in-core channels 2-51. Applicants for digital companion stations may apply for channels 52-59, but only after certifying that a suitable in-core channel is unavailable.

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