Articles Posted in Radio

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Last April, the broadcast industry was abuzz with the need to register previously unlicensed earth stations in order to reduce the chance of future displacement.  In April 2018, the deadline for submitting the registrations was announced, and after two extensions, all fixed-satellite service (FSS) earth stations in use prior to April 19, 2018 that operated in the 3.7 to 4.2 GHz band were to be registered with the FCC by October 31, 2018.

Subsequent to the April 2018 announcement, the FCC adopted an Order and Notice of Proposed Rulemaking regarding the potential for re-purposing the 3.7-4.2 GHz band.  Since then, most of the focus (over 400 submissions thus far) has been on various proposals for reallocating the spectrum band for 5G use.  Simultaneously, the FCC has worked to implement the Order’s information collection requirements.

In particular, the Order required all FSS earth station operators in the 3.7-4.2 GHz band (either licensed or registered) to submit a certification which confirmed that the information currently contained in the FCC’s records is accurate and complete.  The Order also sought additional information from both (i) operators of temporary fixed or transportable earth stations (i.e., satellite news gathering trucks) and (ii) operators of FSS space stations (or grantees of U.S. market access).

On April 11, 2019, the FCC released a Public Notice outlining the procedures for submitting the required certifications and related information by May 28, 2019.  Operators of FSS earth stations that were licensed or in use prior to April 19, 2018, must therefore submit the following information:

  • Relevant call sign(s);
  • File numbers;
  • Applicant or registrant name; and
  • Signed certification statement: “The undersigned, individually and for the applicant, licensee, or registrant, hereby certifies that all information reflected in his or her licenses or registrations in IBFS, including any attached exhibits, are true, complete and correct to the best of his or her knowledge and belief, and have been made in good faith.”

Additionally, all operators of temporary-fixed or transportable FSS earth stations (regardless of when the stations were licensed and/or registered) must also submit the following information for each licensed or registered facility:

  • Earth station call sign (or IBFS file number if a registration filed between April 19, 2018 and October 31, 2018 is pending);
  • Address where the equipment is typically stored;
  • The area within which the equipment is typically used;
  • How often the equipment is used and the duration of such use (i.e., examples of typical deployments, such as operation x days a week at sports arenas within a radius of y miles of its home base);
  • Number of transponders typically used in the 3.7-4.2 GHz band and extent of use on both the uplink and downlink; and
  • Licensee/registrant and point of contact information.

Interestingly, the FCC did not create a new electronic submission form for these filings.  Instead, the required information must be submitted through the International Bureau’s filing system as a pleading, which will provide additional flexibility for operators in preparing their submissions.  However, given the short period of time to file, we suggest that operators start working on gathering the required information as soon as possible.

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Embedded in the Music Modernization Act signed into law in 2018 was a provision that extended most federal copyright protections to pre-1972 sound recordings.  Prior to the enactment of the MMA, sound recordings made prior to February 15, 1972, may have been protected under state law, but federal copyright law protections did not apply.

While the MMA extended federal copyright protections to this subset of sound recordings, it also included language that provided an opportunity for digital audio service providers (i.e., streamers and podcasters) that play pre-1972 songs to avoid statutory damages and payment of attorney’s fees should the provider be found to have infringed the artist’s copyright.

On March 22, 2019, the Copyright Office adopted its final rule, requiring interested digital audio service providers to file a form with the Copyright Office providing contact information for the provider, and payment of a filing fee of $105 per digital audio platform.  The online form must be filed (and the payment submitted) no later than Tuesday, April 9, 2019.

As described in the Copyright Office’s adopting order:

Under the Act, rights owners must also provide specific notice of unauthorized use to certain entities that were previously transmitting Pre-1972 Sound Recordings before pursuing certain remedies against them. To be entitled to receive direct notice of unauthorized activity from a rights owner, an entity must have been publicly performing a Pre-1972 Sound Recording by means of digital audio transmission at the time of enactment of section 1401 and must file its contact information with the Copyright Office within 180 days of enactment, that is, by April 9, 2019. Where a valid notice of contact information has been filed, the rights owner may be eligible to obtain statutory damages and/or attorneys’ fees only after directly sending the transmitting entity a notice stating that it is not legally authorized to use the Pre-1972 Sound Recording, and identifying the Pre-1972 Sound Recording in a schedule conforming to the requirements by the Office for filing Pre-1972 Schedules. For any eligible transmitting entities that do not file contact information by April 9, 2019, rights owners may seek statutory damages and/or attorneys’ fees resulting from unauthorized uses by those entities after filing Pre-1972 Schedules as described above.

So once the form is filed, an artist who alleges that the digital audio provider has infringed the artist’s pre-1972 copyright must first provide notice of the allegation to the individual listed in the form.  Should the digital audio service provider resolve the alleged infringement within 90 days, the provider will be not be found liable for statutory damages ($150,000 per recording) or for the artist’s attorney’s fees arising from enforcement of the artist’s copyright.

Those that already pay SoundExchange for the right to play pre-1972 sound recordings may balk at the additional effort to submit the Notice of Contact form and pay a fee when, hopefully, they have at all times been in compliance with the SoundExchange-related requirements in that regard.  However, given the simple, straight-forward form, the relatively nominal fee of $105.00 per platform, and the legal minefield that pre-1972 recordings have shown themselves to be over the past several years, streaming platforms that feature classic jazz, oldies, or similar recordings from before February 15, 1972 may find filing the form a worthwhile effort to minimize future infringement hassles.

 

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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 →

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At its February 14th meeting, the FCC gave a rather significant Valentine’s Day gift to broadcasters, eliminating the requirement that larger radio and television stations submit the EEO Mid-Term Report (FCC Form 397) at the midpoint of their license terms.  While the FCC will continue to conduct EEO mid-term reviews, it determined that filing the EEO Mid-Term Report was no longer necessary, as most of the information required for an EEO mid-term review is already available in a broadcaster’s Online Public Inspection File.

Specifically, the EEO Mid-Term Report required broadcasters to provide three pieces of information: (i) the number of full-time employees; (ii) the point of contact for the station(s) that is responsible for compliance with the EEO rules; and (iii) the two most recent Annual EEO Public File reports.  In eliminating the obligation to file the EEO Mid-Term Report, the FCC reasoned that the point of contact information and the Annual EEO Public File reports are already kept in a broadcaster’s Online Public Inspection File.  As such, the additional requirement of filing an EEO Mid-Term Report with the FCC was unnecessary.

To gather the third piece of information requested in the EEO Mid-Term Report—the current number of full-time employees—the FCC will require that radio station employment groups indicate when uploading their Annual EEO Public File Reports whether or not they have 11 or more full-time employees (the number which triggers the need for an EEO mid-term review in radio).  Because TV licensees are subjected to EEO mid-term reviews when the station employment group only has five or more full time employees—the same number that triggers the requirement to file Annual EEO Public File Reports—the FCC deemed such a requirement for TV licensees unnecessary (i.e., if a TV station is filing Annual EEO Public File Reports, the FCC already knows the station employment group is large enough to qualify for an EEO mid-term review).

The change in rules will be effective on May 1, 2019.  The FCC noted that television stations in Delaware and Pennsylvania will therefore still be required to file their EEO Mid-Term Reports on April 1, 2019.

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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:

  • Alabama FM Licensee Admits to On-Air Contest and Unauthorized Transfer of Control Violations
  • Silicon Valley Start-Up Agrees to Pay $900,000 Penalty for Unauthorized Satellite Launches
  • Michigan AM Licensee Faces Proposed $18,000 Fine and Reduced License Term for a Variety of Violations

No-Win Situation: FM Licensee Settles with FCC Over On-Air Contest and Unauthorized Transfer of Control Violations

The FCC’s Enforcement Bureau entered into a Consent Decree with the licensee of an Alabama FM radio station for violating the FCC’s rules governing on-air contests and transfers of control.

The FCC regulates licensee-conducted contests in order to protect the public against deceptive and misleading practices.  Section 508 of the Communications Act (“Act”) prohibits a licensee from knowingly deceiving the public by manipulating or predetermining the results of a contest.  Section 73.1216(a) of the FCC’s Rules requires a licensee to “fully and accurately disclose the material terms of the contest” and the contest must be conducted in accordance with those announced terms.

Section 310 of the Act and Section 73.3540 of the FCC’s Rules prohibit the transfer of control of a broadcast license without prior FCC approval.  A de facto transfer occurs when a licensee no longer retains ultimate control over vital aspects of a station’s operations, including its programming, personnel, and finances.

In August 2016, the FCC received a complaint alleging that the licensee “prematurely ended” an on-air contest and failed to award the advertised prizes. According to the complaint, the station instead kept the prizes and provided them to its own employee.

The Enforcement Bureau responded nearly a year later by issuing a Letter of Inquiry (“LOI”) to the licensee seeking information about the contest. In its response, the licensee denied any knowledge of the contest nor was it was able to find any records related to the contest.  According to the Consent Decree, the licensee’s professed lack of knowledge about the contest “raised questions about the Licensee’s control over the Station.”  As a result, in July 2018, the Enforcement Bureau issued a supplemental LOI to the licensee investigating the apparent de facto unauthorized transfer of control to the third party that conducted the contest, who had a time brokerage agreement with the station.  According to the FCC, it had not approved, nor had the licensee applied for, a transfer of control of the license.

To resolve the FCC’s investigation, the licensee entered into a Consent Decree with the Enforcement Bureau.  Under the terms of the Consent Decree, the licensee agreed to (1) admit liability for violations of the FCC’s contest and unauthorized transfer of control rules; (2) pay a $12,000 civil penalty; and (3) develop and implement a compliance plan to prevent further violations of the FCC’s Rules.

Space Oddity: Start-Up Agrees to Pay $900,000 to Settle Investigation into Unauthorized Satellite Operations

After a bizarre string of events involving unauthorized communications satellites, space launches from India, and experimental weather balloons over California, the FCC entered into a Consent Decree with a Silicon Valley satellite start-up.

Section 301 of the Act and Section 25.102 of the FCC’s Rules prohibit the operation of any device for the transmission of energy, communications, or signals by space or earth stations unless in accordance with an FCC authorization.  Section 25.113 of the FCC’s Rules requires FCC authorization before deployment and operation of a space satellite. Continue reading →

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Late today, the FCC released a Public Notice further extending the deadlines for filings that it extended yesterday, which it had already extended by a Public Notice released before the FCC shutdown on January 3 (did you follow that?).  Skipping over those intermediate steps, the final result now boils down to this general rule:  filings that were due between January 3 and January 7 will still be due tomorrow, January 30.  However, filings that otherwise would have been due between January 8 and February 7 are now due by February 8.

HOWEVER, the FCC has established additional deadlines for specific proceedings and classes of proceedings, including:

  • Online Public Inspection File – As an update to our post yesterday,  all public inspection quarterly submissions that were due on January 10, as well as any other filings that were required to be placed in a station’s Online Public Inspection File between January 3 and January 28, are now due by February 11.  Apparently in response to the demo online public file snafu we brought to light a few weeks ago, the FCC cryptically added that any online public file uploads that were made during the shutdown “will need to be resubmitted to the proper Online Public Inspection File site at https://publicfiles.fcc.gov.”
  • EEO Reports – Broadcasters in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma must still place their annual EEO Public File Reports in the Online Public Inspection File by the original due date of February 1.  Because the annual EEO Public File Report is not an FCC “filing” (qualifying for the general filing extension) nor a quarterly report (qualifying for the first type of Public File extension), nor was it required to be placed in the public file by January 28 (qualifying for the second type of Public File extension), it does not fall into any of the further deadline extension categories.  On the other hand, the EEO Mid-Term Report on FCC Form 397 is an FCC filing, and therefore broadcasters in New Jersey and New York will have until February 8 to file it under the general deadline extension described above.
  • ULS Filings – All ULS applications and notifications that were due to be filed between January 3 and February 8 are now due by February 8.  This does not apply to filings related to the incentive auction, which were permitted to be filed during the FCC shutdown and therefore are unaffected by the various deadline extensions.  All ULS filings that were submitted between the commencement of the shutdown and today will be considered received as of today, January 29.

While too voluminous to list here, readers should also be aware that the Public Notice sets additional new deadlines for informal consumer complaints, responsive pleadings, comments in the Carriage Election Notice Modernization proceeding, STA requests, fee filings, and filings in the Tower Construction Notification System and the Antenna Structure Registration System, among other things.  Those potentially affected should review the Public Notice carefully to determine what new deadlines may apply.  In addition, the Public Notice indicates that the FCC will also “consider requests for further extensions in individual matters as appropriate.”  So even now, we may not be done extending the extensions.

Published on:

With the partial government shutdown mercifully at an end (for now), broadcasters must hurry to update their Online Public Inspection File and make up for a month’s worth of missed filings.

As we wrote earlier this month, filing deadlines that landed during the shutdown were extended (with a few exceptions) via a January 2 FCC Public Notice. The new deadline was to have been the second day of normal FCC operations (which would have made those filings due tomorrow, Tuesday, January 29).  However, in a Public Notice released a few minutes ago, the FCC extended that deadline an additional day, meaning that FCC filings whose due dates fell from January 3 to January 29 are now due by Wednesday, January 30, 2019.  All public file documents that could not be uploaded to the Online Public Inspection File while it was unavailable during the shutdown should be uploaded as soon as possible, and certainly no later than the January 30 extended deadline for FCC filings.

Backlogged uploads and filings include:  fourth quarter children’s television programming reports on Form 398 (if not already filed in LMS), fourth quarter commercial limits certifications, fourth quarter issues/programs lists, Class A TV continuing eligibility certifications, and NCE fundraising reports.

Because the government is funded for at least the next three weeks, broadcasters in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma will be able (and expected!) to timely upload their annual EEO public file reports in the Online Public Inspection File by Friday, February 1See our recent advisory for more information on this obligation.

Broadcasters should also take stock of any other filings that, but for the shutdown, would have been due earlier this month (e.g., Special Temporary Authority requests and extensions).  As noted in an earlier post, the shutdown did not affect the post-incentive auction broadcast repack, and any filings related to the repack should have been filed as scheduled.

Open Meeting “Lite”

On a related note, now that the FCC is open for business again, the January 30 Open Meeting will take place in person instead of via teleconference.  Of course, most of the staff that normally prepare the agenda items and assist the commissioners are just now getting back to work after having been furloughed for several weeks.  The show must go on, given the FCC’s statutory obligation to hold a meeting at least once a calendar month, but instead of reviewing the items announced on the Tentative Agenda, the FCC will use this meeting to go over what it calls “Commission announcements.”

The decision to delay votes on matters originally on the FCC’s meeting agenda for January affects two items of interest to broadcasters.  First, broadcasters are going to have to wait even longer before they can cease thinking about the now-redundant EEO Mid-Term Report on Form 397.  The FCC was prepared to vote on a Report and Order that would have eliminated this reporting requirement.  The impact of the delay will be fairly limited, however.  According to an advance draft of the Report and Order, the substantive changes would not have gone into effect until May 1, 2019.  Given that the last round of EEO Mid-Term Reports for this license renewal cycle are due on April 1, 2019, and the cycle does not resume until 2023, the delay in voting on the item will have no practical impact on stations unless the delay drags on for years.

Also originally up for a vote at the January meeting was a Notice of Proposed Rulemaking seeking several changes in the way the FCC currently processes competing (also known as “mutually exclusive”) license applications for noncommercial educational (“NCE”) FM and television stations and low power FM (“LPFM”) stations.  In this proceeding, the FCC is seeking to improve its review process by eliminating certain requirements for NCE applicants, amending its rules governing the “holding period” during which licensees must maintain certain station characteristics, and generally updating rules that are deemed confusing or unnecessarily time-consuming.  With this item now off the January meeting agenda, action on it will also have to wait, likely until the February Open Meeting (assuming the federal government remains open through then).

Until then, broadcasters should work on meeting their accrued regulatory obligations that couldn’t be fulfilled during the shutdown, and might do well to expedite any planned future filings.  You never know when the next FCC shutdown will occur.