Articles Posted in Low Power & Class A Television

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The FCC announced the opening of a new filing window to modify pending applications proposing new digital Low Power TV and TV translator service in rural areas.  This filing window will permit applicants with long-pending applications who have subsequently been displaced by the Incentive Auction and the repacking process to submit amended proposals, subject to certain conditions.

In June 2009, the FCC announced a filing window for new digital LPTV and TV translator stations to serve rural areas.  The window opened on August 25, 2009, and the plan was for the FCC to permit similar new, non-rural proposals to be filed starting on January 25, 2010.  However, at the same time that the FCC was accepting applications for new rural LPTV and TV translator stations, it was also considering the adoption of the National Broadband Plan, which, inter alia, proposed to re-purpose a portion of the UHF television spectrum.  The FCC first delayed, and then cancelled, the “non-rural” filing window, and imposed a freeze on the filing and processing of the rural proposals.

As a result, there are now a significant number of pending applications for new LPTV and TV translator stations to serve rural areas that have been frozen since 2010.  The new filing window, which will be open between December 2, 2019 and January 31, 2020, will permit applicants to submit amendments that (i) specify a new digital channel in the revised TV band and/or (ii) propose a change in transmitter site of 48 kilometers or less.  The amendments must protect full-power, Class A television and LPTV/translator stations that have been licensed or that hold valid construction permits, along with any previously-filed applications for those services.  Moreover, any amendment must continue to qualify as a rural service proposal.

After the window closes on January 31, 2020, the FCC will provide mutually-exclusive applicants the opportunity to resolve conflicting proposals through settlement or engineering amendments.  If an engineering conflict cannot be resolved, the FCC will conduct an auction.  The FCC will dismiss all pending applications that do not submit an in-core amendment during the filing window.

Given the holiday season and the short turnaround on filing amendments, applicants with long-pending applications should move quickly to find a new channel and/or tower site that will permit the FCC to process their application.

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The Federal Communications Commission released a Public Notice reminding broadcast licensees that the filing window for Broadcast Biennial Ownership Reports (FCC Form 323 and 323-E) will open on November 1, 2019.  All licensees of commercial and noncommercial AM, FM, full-power TV, Class A Television and Low Power Television stations must submit their ownership reports by January 31, 2020.

We previously reported that the FCC had modified the dates for the filing window.  At that time, the FCC explained that there would be “additional technical improvements” that required the FCC to delay the opening of the filing window.  Now, we know more about those improvements.

In particular, the FCC modified its filing system to permit parties to validate and resubmit previously-filed ownership reports, so long as those reports were submitted through the current filing system.  Further, filers will be able to copy and then make changes to information included in previously-submitted reports.  The FCC also created a new search page dedicated solely to reviewing submitted ownership reports.

As a reminder, biennial ownership reports submitted during this filing window must reflect the ownership interests associated with the facility as of October 1, 2019, even if an assignment or transfer of control was consummated after October 1, 2019.

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Quarterly documentation of stations’ compliance with their obligations under the Children’s Television Act of 1990 for the Third Quarter of 2019 is due to be placed in stations’ Public Inspection Files by October 10, 2019, and in the case of educational children’s television programming, to be filed electronically with the FCC on that same date. 

Interim Filing Procedures Regarding Educational Children’s Television Programming

The Children’s Television Act of 1990 requires full power and Class A television stations 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.  On July 12, 2019, the FCC adopted a number of changes to its children’s television programming rules, primarily with respect to the educational television programming requirements.  Substantively, the new rules provide broadcasters with additional flexibility in scheduling educational children’s television programming, and modify some aspects of the definition of “core” educational children’s television programming.  These portions of the revisions went into effect on September 16, 2019.

Procedurally, the new rules eliminate quarterly filing of the Children’s Television Programming Report in favor of an annual filing, and change other information collection and reporting provisions.  Unfortunately, the rule changes that affect broadcasters’ reporting requirements have not yet been approved by the Office of Management and Budget, and the report form itself has not been updated to reflect the new substantive requirements.

As a result, for purposes of the quarterly Children’s Television Programming Report due on October 10, 2019, broadcasters should answer all questions regarding such programming that aired prior to September 16, 2019, and should not respond to the question concerning what programming will be aired in the upcoming quarter.  When calculating the average number of hours per week of educational children’s television programming aired, broadcasters should only consider the first 11 weeks of the quarter.  Programming aired on or after September 16, 2019 is to be reported on the station’s next report.

The next report will be broadcasters’ first “annual” Children’s Television Programming Report and will cover the period from September 16, 2019 through December 31, 2019.  That report must be filed by January 30, 2020.

Summary of Changes 

Prior to September 16, 2019, the FCC’s educational children’s television programming rules generally required that a station air an average of 3 hours of “core” educational children’s television programming per week on each of its streams, averaged over a six-month period, to receive staff-level license renewal approval.  To be considered a “core” program, the program had to be specifically designed to meet the educational and informational needs of children 16 years of age and under; be identified as such on-air with the “E/I” symbol displayed throughout the airing of the programming; be identified to publishers of program guides along with the target age range of the program; be “program-length,” that is, at least 30 minutes in length; and be regularly scheduled to air on a weekly basis between the hours of 7:00 a.m. and 10:00 p.m.  In addition, broadcasters had to identify the educational purpose of the program in their quarterly Children’s Television Programming Report and advertise the availability and location of that report to the public.  Further provisions applied with regard to preempting and making good educational children’s television programming and the treatment of educational children’s programming airing on two of a station’s programming streams during a quarter.

The FCC’s new rules revise both the three hour per week renewal processing guideline and the definition of core children’s television programming.  Specifically, as of September 16, 2019, stations can continue to meet their obligation by airing an average of 3 hours per week of regularly-scheduled, weekly, program-length educational programming on their primary stream, but are not required to air additional children’s television programming on their multicast streams.  As an alternative to airing 3 hours per week of regularly-scheduled educational programming, stations may now air 26 hours per quarter (2 hours per week) of regularly scheduled, weekly, program-length educational programming, and air an additional 52 hours of programming throughout the year that is not provided on a regularly-scheduled basis (such as educational specials or other non-weekly programming) which is at least 30 minutes in length.   Alternatively, these 52 hours of non-regularly-scheduled programming can be educational programming that is less than 30 minutes in length, such as PSAs or interstitials.

Under any scenario, licensees may move up to 13 hours per quarter of their regularly-scheduled, program-length educational children’s television programming to a multicast stream, but any station opting to air 52 hours per year of programming that it is not regularly-scheduled must air that programming on the station’s primary stream.  In addition, broadcasters are permitted to count as regularly-scheduled any children’s educational program episode that was preempted but made good within seven days before or after the date on which it was originally scheduled to air.

For purposes of compliance with the new rules in the Fourth Quarter of 2019, stations must therefore either air 45 hours of regularly-scheduled weekly core programming on their primary stream from September 16 through December 31, 2019, or they must air at least 30 hours of such programming (at least 4 hours on or before September 30) and an additional 15 hours of core programming that is not regularly-scheduled and which may be less than 30 minutes in length.  Of those 30 hours, up to 2 hours can air on the station’s multicast streams on or before September 30 and up to 13 hours can air on the station’s multicast streams from November 1 to December 31.  All of the remaining 15 hours of non-regularly-scheduled or short form programming must air on the station’s primary stream.

Third Quarter 2019 Filing Requirements

Turning back to the Third Quarter 2019 Report due on October 10, broadcasters must 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 the Children’s Television Report (FCC Form 2100, Schedule H, which is often referred to by its former designation as Form 398), which requests information regarding the educational and informational programming the station has aired for children 16 years of age and under.  The Children’s Television Programming Report must be filed electronically with the FCC.  The FCC automatically places the electronically filed Children’s Television Programming Report 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. Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by October 10, 2019, reflecting information for the months of July, August and September 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 October 10, 2019, covering the period from July 1, 2019 through September 30, 2019. Continue reading →

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Each full power and Class A TV station being repacked must file its next quarterly Transition Progress Report with the FCC by October 10, 2019. The Report must detail the progress a station has made in constructing facilities on its newly-assigned channel and in terminating operations on its current channel during the months of July, August and September 2019.[1]

Following the 2017 broadcast television spectrum incentive auction, the FCC imposed a requirement that television stations transitioning to a new channel in the repack file a quarterly Transition Progress Report by the 10th of January, April, July, and October of each year. The first such report was due on October 10, 2017.

The next quarterly Transition Progress Report must be filed with the FCC by October 10, 2019, and must reflect the progress made by the reporting station in constructing facilities on its newly-assigned channel and in terminating operations on its current channel during the period from July 1 through September 30, 2019. The Report must be filed electronically on FCC Form 2100, Schedule 387 via the FCC’s Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.

The Transition Progress Report form includes a number of baseline questions, such as whether a station needs to conduct a structural analysis of its tower, obtain any non-FCC permits or FAA Determinations of No Hazard, or order specific types of equipment to complete the transition. Depending on a station’s response to a question, the electronic form then asks for additional information regarding the steps the station has taken towards completing the required item. Ultimately, the form requires each station to indicate whether it anticipates that it will meet the construction deadline for its transition phase. Continue reading →

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The FCC’s Media Bureau today announced changes to the filing window for submitting Biennial Ownership Reports for commercial and noncommercial stations.  The opening of the filing window will be delayed from October 1, 2019 to November 1, 2019, and the window will now close on January 31, 2020, rather than the previously-announced deadline of December 1, 2019.

According to the announcement, the reason for the one-month delay in opening the filing window relates to the implementation of “additional technical improvements” to the form, which will include “burden-reducing capabilities.”  In particular, the Media Bureau indicated that filers will have the ability to pre-fill certain forms, and copy and paste already-entered information from other forms.  In light of the one-month delay in opening the window, the Media Bureau extended the deadline for filing as well, and provided additional time due to the intervening holidays.  Even though the window will not open until November 1st, the Media Bureau made clear that the “as-of” date for the information to be reported will remain October 1st.

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The FCC has released its finalized schedule of annual Regulatory Fees for Fiscal Year 2019, and thanks to the collective efforts of all 50 State Broadcasters Associations and the National Association of Broadcasters, there is some good news for radio stations and satellite television stations.

But before we get to that, some information for you from the FCC’s Public Notice released today on filing requirements.  Fees will be due by 11:59 p.m. EDT on September 24, 2019.  You must file via the FCC’s Fee Filer system, which is available for use now.  You may pay online via credit card or debit card, or submit payment via Automated Clearing House (ACH) or wire transfer.  Remember that $24,999.99 is the daily maximum that can be charged to a credit card in the Fee Filer system.  As a result, many stations may have to pay their fees using the other methods.

Television broadcast stations will see an unfamiliar number in the “Quantity” box when they go to pay.  This relates to the FCC’s phase-in of a population-based methodology for calculating television station fee amounts.  It cannot be changed and should not be a cause for concern.  Regulatees whose total fee amount is $1,000 or less are once again exempt and do not need to pay.

In most years, the outcome of the annual Regulatory Fee battle ends with the FCC’s various regulatees rolling their collective eyes and murmuring “just tell me how much I have to fork over.”  This year’s Regulatory Fee proceeding had some surprises, however.  When the proposed fee amounts were first announced, they contained a dramatic increase in year-over-year fee amounts for most categories of radio stations.  Yet, the reason for this sudden increase was neither addressed by the FCC nor readily apparent from the FCC’s brain-numbing summary of its calculation process.

In response, all 50 State Broadcasters Associations and the NAB filed comments pressing the FCC to revisit its fee methodology and to explain or correct what appeared to be flawed data used to calculate broadcast Regulatory Fee amounts.  In particular, they pressed the FCC to explain why the estimated number of radio stations slated to cover radio’s share of the FCC’s budget had inexplicably plummeted between 2018 and 2019, resulting in each individual station having to shoulder a significantly higher fee burden.

In its regulatory fee Order, the Commission acknowledged that its estimate of the number of radio stations that would be paying Regulatory Fees in 2019 had been “conservative”, and failed to include 553 of the nation’s commercial radio stations.  Once these stations were added to the total number of radio stations previously anticipated to pay Regulatory Fees, the impact was to reduce individual station fees from those originally proposed by 9% to 13%, depending on the class of radio station.

This adjustment prevented what would have otherwise been a roughly $3 million dollar overpayment by radio stations nationwide, significantly exceeding the FCC’s cost of regulating radio stations in FY 2019.  The fact that the FCC listened to the concerns of broadcasters, investigated the discrepancy between 2019 station data and that of prior years, and made appropriate changes to fix the problem, is heartening, particularly given that stations’ only options are paying the fees demanded, seeking a waiver, or turning in their license.

Terrestrial satellite TV stations also received a requested correction to their fee calculations.  As noted above, the FCC is transitioning from a DMA-based fee calculation methodology to a population-based methodology for TV stations.  To phase in this new methodology, the Commission proposed to average each station’s historical and population-based Regulatory Fee amounts and use that average for FY 2019 before moving to a fully population-based fee in FY 2020.

In calculating the average of the “old” and “new” fees, however, the FCC neglected to use the reduced fee amount historically paid by TV satellite stations, which is much lower than that paid by non-satellite TV stations in the same DMA.  As a result, a TV satellite station might have seen its 2019 fees jump by tens of thousand of dollars over FY 2018, only to see them drop again in FY 2020.  The FCC acknowledged that its intent in adopting the phase-in was not to unduly burden TV satellite stations in FY 2019, and it therefore recalculated those fees using the lower historical fee amounts traditionally applied to such stations.

While these reductions are a rare win against ever-increasing regulatory fees, there remain big picture issues that Congress and the FCC need to address in the longer term.  Significant among these is the FCC’s reliance on collecting the fees that support its operations from the licensees it regulates (a burden not a benefit), while charging no fees to those that rely on the FCC’s rulemakings to launch new technologies on unlicensed spectrum or obtain rights against other private parties via the FCC’s rulemaking processes (a benefit not a burden).  Such a narrow approach to funding the FCC makes little sense, particularly where it unduly burdens broadcasters, who, unlike most other regulatees, have no ability to just pass those fees on to consumers as a line item on a bill.

We live in a time of disruption.  Disruption affects all areas of the economy, but surely the most affected has to be the communications sector.  If any government agency can claim to be the regulator of this disruption, it must surely be the FCC.  Yet despite the FCC’s position at the forefront of these changes, its Regulatory Fee process is mired in a system in which broadcasters are left holding the bag for more than 35% of the FCC’s operating budget (once again, burden not benefit).  Even as the FCC spends more of its time and resources on rulemakings, economic analysis, and technical studies surrounding new technologies and new entrants into the communications sector whose main goal is to nibble away at broadcasters’ spectrum, audience, and revenue, it still collects regulatory fees only from the licensees and regulatees of its four “core” bureaus – the International Bureau, Wireless Telecommunications Bureau, Wireline Competition Bureau, and Media Bureau.  It’s an old formula, and it no longer works.

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Each full power and Class A TV station being repacked must file its next quarterly Transition Progress Report with the FCC by July 10, 2019.  The Report must detail the progress a station has made in constructing facilities on its newly-assigned channel and in terminating operations on its current channel during the months of April, May and June 2019.[1]

Following the 2017 broadcast television spectrum incentive auction, the FCC imposed a requirement that television stations transitioning to a new channel in the repack file a quarterly Transition Progress Report by the 10th of January, April, July, and October of each year.  The first such report was due on October 10, 2017.

The next quarterly Transition Progress Report must be filed with the FCC by July 10, 2019, and must reflect the progress made by the reporting station in constructing facilities on its newly-assigned channel and in terminating operations on its current channel during the period from April 1 through June 30, 2019.  The Report must be filed electronically on FCC Form 2100, Schedule 387 via the FCC’s Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html. Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by July 10, 2019, reflecting information for the months of April, May and June 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 July 10, 2019, covering the period from April 1, 2019 through June 30, 2019.

Stations should keep the following in mind: 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 July 10, 2019, reflecting programming aired during the months of April, May and June 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.

Commercial Television Stations

Commercial Limitations

The FCC’s rules require that stations limit the amount of “commercial matter” appearing in children’s programs to 12 minutes per clock hour on weekdays and 10.5 minutes per clock hour on the weekend.  In addition to commercial spots, website addresses displayed during children’s programming and promotional material must comply with a four-part test or they will be considered “commercial matter” and counted against the commercial time limits.  In addition, the content of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations.  Program promos also qualify as “commercial matter” unless they promote (i) children’s educational/informational programming, or (ii) other age-appropriate programming appearing on the same channel.  Licensees must prepare supporting documents to demonstrate compliance with these limits on a quarterly basis. Continue reading →