Articles Posted in Radio

Published on:

By and

The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ local public inspection files by January 10, 2011, reflecting information for the months of October, November and December, 2010.

Content of the Quarterly List

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station. The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.

To demonstrate a station’s compliance with this public interest obligation, the FCC requires a station to maintain, and place in the public inspection file, a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.

Continue reading →

Published on:

By

Given the many distractions during the holiday season, I thought it would be a good idea to remind readers that January 10 represents a busy quarterly deadline for all radio and television stations. Below is a brief summary of the deadlines, as well as links to our Client Alerts describing the requirements in more detail.

Children’s Television Programming Documentation

All commercial full-power television stations and Class A LPTV stations must prepare and file with the FCC an FCC Form 398 Children’s Programming Report for the fourth quarter of 2010, reflecting children’s programming aired during the months of October, November, and December, 2010. The Form 398 must be filed with the FCC and placed in stations’ public inspection files by January 10, 2011.

In addition to requiring stations to air programming responsive to the educational and informational needs of children, the FCC’s rules limit the amount of commercial material that can be aired during programming aimed at children. Proof of compliance with the children’s television commercial limitations for the fourth quarter of 2010 must be placed in stations’ public inspection files by January 10, 2011.

For a detailed discussion of the children’s programming documentation and filing requirements, please see our Client Alert here.

Quarterly Issues Programs Lists

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. All radio and television broadcast stations, whether commercial or noncommercial, must prepare and place in their public inspection files by January 10, 2011, a list of important issues facing their communities, and the programs which aired during the months of October, November, and December, 2010, dealing with those issues. For a detailed discussion of these requirements, please see our Client Alert here.

DTV Quarterly Activity Station Reports

Those television stations that have not yet completed construction or commenced operation of their final post-transition DTV facilities must continue the required general DTV Consumer Education Initiatives until they commence operation on their post-transition DTV facilities. Such stations will be required to file FCC Form 388 by January 10, 2011, providing the Commission with the details of the DTV Consumer initiatives that they performed between October 1 and December 31, 2010. For a detailed discussion of this filing requirement, please see our Client Alert here.

Published on:

By

A trend we see in FCC enforcement actions is the FCC attributing multiple rule violations to a single act or omission, and then peppering stations with multiple fines. This trend is confirmed in two EEO enforcement actions released in the waning hours of 2010. These cases demonstrate, among other things, why it is a good time for broadcasters to undertake the EEO self-assessment activities required by the FCC’s Rules.

The first of these recent cases resulted from a 2008 random audit of a six-station radio group in Joplin, Missouri. The second case arose from the 2005 license renewal applications of a four-station radio group located in and around Medford and Grant’s Pass, Oregon. Since the license renewal applications remain pending due to an unrelated complaint, the FCC was able to examine these stations’ EEO data from 2003 until 2009.

In each case, the stations relied solely on walk-ins, word-of-mouth, and employee and business referrals as the sources of interviewees for about 25% of their job openings. Based on this, the FCC found that the stations had failed to conduct any recruitment at all for these positions, as they had only used non-public recruitment sources which do not further the FCC’s goal of assuring that stations achieve broad outreach in recruiting. The Joplin stations had also aired generic on-air announcements about broadcast employment and working for the licensee company, but the FCC did not give them any credit for these announcements because they were not specific to a particular job opening. The FCC also found that the Oregon stations did not recruit broadly enough for nearly all of their remaining hires because they relied exclusively on either Internet-based referral sources or on advertisements on their own stations.

Each group of stations also had EEO paperwork and reporting problems. The Joplin stations listed the job title for seven hires as “Other” in an annual EEO public file report. The FCC said that since the EEO public file report was missing the required job title information, the stations’ public inspection files (where the reports are placed) were missing it as well.

Similarly, the FCC found the Oregon stations failed to retain records on the number and referral sources of interviewees for their job openings. As a result of this recordkeeping violation, the FCC said that the stations’ EEO public file report, and by extension, their public inspection files, were incomplete.

To top it all off, the FCC found that “[t]hese failures reveal a continuing lack of self-assessment” of the stations’ recruitment programs, creating yet another rule violation. In all, the Joplin stations were fined $8,000.00, of which $5,000.00 was for the failure to recruit for 25% of their openings, and three fines of $1,000 each were for the stations’ incomplete annual EEO public file report, their incomplete public files, and their failure to self-assess their EEO program. The Oregon stations were fined a total of $20,000, of which $16,000.00 was attributable to their failure to recruit for 25% of their vacancies and their failure to recruit broadly enough for nearly all other vacancies, and four fines of $1,000.00 each were for the stations’ failure to retain required records, failure to have a complete annual EEO public file report, failure to have complete public inspection files, and failure to self-assess their EEO program. All of the stations must, for the next three years, submit to the FCC for scrutiny copies of their annual EEO reports and copies of all job vacancies announcements, advertisements and other evidence of recruitment outreach for the year.

While the stations in these two cases were fined for not undertaking the required self-assessment of the recruitment portion of their EEO programs, broadcasters should remember that the FCC’s Rules also require licensees to regularly examine all of their employment policies to assure that they are not discriminatory. This means examining the processes by which stations recruit, hire, promote, fire, and compensate employees to be sure that they do not have a discriminatory impact.

So while you have the employment files out, and other employment issues like raises and promotions are fresh in your mind, take some extra time to review how you are making those decisions and their impact on your staff. While you’re at it, check the public file and station website to be sure your annual EEO public file reports are up to snuff as well.

Published on:

By

Earlier this month we posted our 2011 Broadcasters Calendar on CommLawCenter as well as on our Pillsbury web page. We have been annually publishing the Broadcasters Calendar, which contains much information regarding broadcast station deadlines and legal requirements, for as long as I can recall. It has always been one of our most popular publications, and I usually get calls beginning in early November asking when next year’s calendar will be available. The “easy to read” pdf version of the Calendar can be found here, and a text-searchable version is available here.

Even a brief review of the 2011 Broadcasters Calendar reminds us that 2011 will be a busy year for not just broadcasters, but for cable and satellite operators as well. October 1, 2011 is the deadline by which broadcasters qualifying for must-carry need to notify cable and satellite operators of their election between must-carry status and retransmission consent. Recent retransmission disputes once again remind us that retransmission negotiations and their associated revenue are critical to the future of broadcast television. However, the sheer volume of negotiations and carriage disputes likely to occur following the October 1 election deadline will almost certainly make this holiday season look tranquil by comparison.

Adding to the action will be continued efforts by the cable and satellite industries to draw Congress and the FCC into the fray, introducing legislative and regulatory uncertainties into an already complex negotiation process. Their chances for success will depend greatly upon how much disruption in carriage of broadcast programming occurs in 2011, and the public’s perception of who is at fault for that disruption. Regardless of the outcome of this particular Washington confrontation, look for 2011 to be the year where economics force cable and satellite providers to more tightly link the number of viewers a program service attracts with the amount they agree to pay for that service. Overpaying for niche cable networks that don’t pull in large numbers of viewers is so “last decade”.

2011 also marks the beginning of the FCC’s next eight-year license renewal cycle, with radio stations in DC, Maryland, Virginia, and West Virginia starting pre-filing announcements in April for their upcoming license renewal applications. The filing cycle will continue state by state until it concludes with television stations in Delaware and Pennsylvania running their last post-filing announcements on June 16, 2015.

However, many stations haven’t had their last license renewal application granted because of indecency complaints still pending against them. The FCC has pretty much ceased processing indecency complaints while it awaits guidance from the courts as to whether it can legally enforce the prohibition on broadcast indecency, and if so, how it will be allowed to do that. I have been told that there are literally hundreds of thousands of indecency complaints now pending at the FCC, so unless the courts do the FCC the favor of finding the prohibition on indecency completely unconstitutional, it will take the FCC years to sift through these complaints in an effort to apply any refined indecency standard announced by the Supreme Court.

It is therefore reasonable to predict that indecency complaints will continue to play a large role in the processing of upcoming license renewal applications. 2011 will hopefully be the year when the courts tell us exactly how large (or small) that role will be. If the prohibition on indecency survives this latest round of judicial scrutiny, broadcasters and the FCC can expect a lot of complaint investigations and litigation as both struggle with where the line on content is being drawn.

Of course there are numerous other events that will contribute to 2011 being one of the busiest years in memory for broadcasters. A rebounding economy is slowly lifting most boats in the broadcast industry, with the obvious exception being those that burned their critical assets for fuel during the lean times, and don’t have much boat left.

With a growing amount of money to fight over, the fights will begin in earnest (see “Retrans” above). Negotiations between the NAB and the recording industry over performance royalties will continue, and “performance tax” legislation will again rise in Congress with the same certainty that the slasher in a horror film returns for unending sequels.

Broadcasters and the FCC will also be implementing the latest generation of the Emergency Alert System in 2011, and the FCC will continue its efforts to repurpose broadcast spectrum for mobile broadband use, leading to new rules permitting multiple broadcasters to share a single channel, and potentially to legislation allowing participating broadcasters to share in the proceeds of broadband spectrum auctions. As with most of the items discussed above, there is both opportunity and peril for broadcasters here, and those that are inattentive risk missing the former and being battered by the latter.

Yes, 2011 will be a very busy year.

Published on:

By

Members of the Communications Industry that don’t keep up with legal and political developments in Washington aren’t in the industry for long. That truism has been particularly apt in the past few months, starting with the President’s October signing of the Twenty-First Century Communications and Video Accessibility Act of 2010 which, among other things, cleared the way for reinstatement of the FCC’s former Video Description rules for television broadcasters, extended closed captioning of video programming to the Internet, and required the FCC to examine methods of increasing the accessibility of emergency information.

Normally, the weeks before a congressional election and the lame duck session afterwards are not a fertile environment for communications legislation, which has a tendency to be controversial because of the stakes involved (can you say “net neutrality”?). However, the Twenty-First Century Communications and Video Accessibility Act, which was spurred to passage by a congressional desire to commemorate the 20th anniversary of the Americans with Disabilities Act, was merely the beginning.

The lame duck session has now generated several more pieces of successful legislation. Last week the President signed the first of these, the Commercial Advertisement Loudness Mitigation Act, which requires television stations to transmit at a consistent volume level (rather than make viewers lunge for their mute button at every commercial break). Congress followed the CALM Act with passage of the Truth in Caller ID Act of 2009, which is now awaiting the President’s signature. This legislation prohibits manipulation of caller ID information with intent to defraud or harm others.

Apparently building steam, Congress proceeded to adopt the Local Community Radio Act of 2010 this past weekend, which reduces the extent of interference protection that full power radio stations will receive from Low Power FM stations, thus clearing the way for many more LPFM stations to be wedged into the FM radio band. This legislation is also now waiting for the President’s signature.

So, is there something in the DC drinking water that has a lame duck Congress suddenly tackling communications issues as though “gridlock” was only a term from morning traffic reports? Maybe. But the truth is more complicated than that. With regard to the CALM Act, controversy about loud television commercials dates back decades. The FCC long ago considered adopting rules to prohibit such “variable volume” broadcasting, but concluded in 1984 that “due to the subjective nature of many of the factors that contribute to loudness, it would be virtually impossible to craft new regulations that would be effective.” However, the transition to digital television has made it far more feasible to craft and enforce objective technical standards for loudness, lessening somewhat broadcasters’ concerns that regulation would lead to free-roaming loudness police second-guessing a station’s engineering practices.

Similarly, the LPFM interference issue has been simmering for a decade, with a succession of bills trying and failing to eliminate the requirement that LPFM stations protect full power stations’ third-adjacent channels from interference. However, what finally put the Local Community Radio Act over the top was a legislative compromise that, among other things, assured full power broadcasters that LPFM will be categorized as a secondary service to full power stations. This means that full power broadcast stations can continue to modify their facilities to improve their audience reach without finding themselves blocked by the interference such a modification might cause local LPFM stations. In light of this and other modifications to the bill, broadcasters were able to offer their support for its adoption, finally breaking the longstanding impasse.

So what’s next? Well, Congress remains keenly interested in communications issues, as evidenced by the lively discussion (and legislative threats) surrounding the FCC’s upcoming net neutrality order. Broadcasters, however, are hoping that this lame duck session concludes quickly, leaving the Performance Rights Act and its goal of requiring broadcasters to pay royalties to the recording industry the subject of continued inter-industry negotiations, rather than the latest statutory mandate emerging from the twilight hours of the 111th Congress.

Published on:

By

Below is the text of our 2011 Broadcasters’ Calendar, which lists deadlines that broadcasters should be aware of for 2011. If you would prefer to read the PDF version of the calendar, it can be found here.

Items of Note in 2011

1. Applications for Renewal of License: June 1, 2011 is the first filing date of the three-year period during which the licensees of all commercial and noncommercial AM, FM and FM Translator stations throughout the United States and its territories will be required to file their applications for renewal of broadcast station license. Licensees in the television services will commence this process in 2012. The date on which a station’s application is due depends on the state or territory of its community of license. All licensees should familiarize themselves now with the dates associated with this important filing, including the dates on which public notice announcements must air in advance of the renewal filing; the filing date itself, which is approximately four months before the date of license expiration; and the dates on which post-filing announcements must air.
2. Biennial Ownership Report Filing Requirements for Commercial Radio and Television Stations: Licensees of commercial, full-power radio and television stations as well as Class A television and low power television stations should be ready to file their biennial ownership reports on FCC Form 323 by the new, uniform filing date of November 1, 2011. While these licensees may have filed a biennial report as recently as the summer of 2010, that report fulfilled the reporting obligation for the period that ended on November 1, 2009. Only because of difficulties with the FCC’s electronic filing system was the November 1, 2009 deadline ultimately extended to July 8, 2010.

Continue reading →

Published on:

By and

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:

  • Failure to Heed Warning by FCC Field Agent Costs Broadcaster $10,000
  • FCC Fines AM Broadcaster $6,000 for Excessive Nighttime Power Levels
  • AM Broadcaster’s Limited Disclosure of Contest Rules Nets $4,000 Fine

FCC Fines Pennsylvania Broadcaster $10,000 for Repeated Failure to Employ Adequate Personnel

In keeping with lasts month’s “meaningful management and staff presence” Notice of Apparent Liability (“NAL”), the FCC again upwardly adjusted a fine, totaling $10,000, against a Pennsylvania broadcaster for repeated failure to maintain at least one management level and one staff level employee at the main studio during regular business hours as required by Section 73.1125 of the FCC’s Rules. At the time of the initial inspection by a local Enforcement Bureau Field Agent, the “main studio”, which was located within a church, was unattended and locked.

The FCC requires that licensees maintain a “meaningful management and staff presence” at a station’s main studio. Based on a 1991 FCC decision, the FCC defines “meaningful” as at least one management level employee and one staff level employee generally being present “during normal business hours.”

Continue reading →

Published on:

By

As Scott Flick reported in a previous post, our firm filed a Petition on behalf of an unlikely coalition of broadcast and cable associations and their allies, including 46 of the state broadcasters associations, the National Association of Broadcasters, the National Cable and Telecommunications Association, the Society of Broadcast Engineers, the American Cable Association, the Association for Maximum Service Television, National Public Radio, the Association of Public Television Stations, and the Public Broadcasting Service. The parties joined forces to ask the FCC to extend the deadline for all EAS Participants to acquire and install the equipment necessary to use the Common Alerting Protocol (CAP) standard for Emergency Alert System alerts. The unified effort paid off, as today the FCC released an Order waiving Part 11.56 of its Rules and extending the CAP deadline from March 29, 2011 to September 30, 2011.

Last September 30, FEMA announced the adoption of the CAP v1.2 standard, which triggered a 180-day deadline for implementation. In a post found here, I described CAP and what the CAP compliance deadline requires of EAS Participants.

The extension means that the estimated 25,000 to 30,000 EAS Participants now have more time to acquire the new and sophisticated equipment they need to become CAP-compliant, while giving FEMA more time to certify CAP-compliant EAS equipment. The six-month delay will also allow equipment manufacturers to test their CAP products and to make any changes needed to meet the certification requirements. This process, in turn, will give EAS Participants the certainty they need to make better informed decisions regarding what equipment they should obtain and install to ensure compliance with CAP. Finally, the extension will give all parties, including noncommercial broadcasters, smaller cable systems, and rural broadcasters more time to budget for the purchase of new equipment.

The FCC acknowledged that if it failed to extend the 180-day deadline, it could “lead to an unduly rushed, expensive, and likely incomplete process.”

The Order also leaves open the possibility of extending the CAP deadline beyond September 30, 2011. This is because the FCC will soon be conducting a rulemaking proceeding to incorporate CAP into its Part 11 Rules, and at this point it is unclear what specific Part 11 rule changes will be made as a result of the new CAP standard. According to the FCC, it plans to complete that rulemaking prior to September 30, 2011, but will ask for comments on “whether the extension for CAP acceptance by EAS Participants granted in this waiver order is sufficient, and reserves the right to further extend the date for CAP reception in any new rule we may adopt.” Given that the outcome of the rulemaking proceeding will likely result in a number of significant revisions to the FCC’s EAS Rules, another extension of the deadline is certainly plausible in order to give parties enough time to come into compliance with the new rules.

In other words, stay on alert, as we will definitely be hearing much more about CAP in the near future.

Published on:

By

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. In fact, FCC Enforcement Monitor actually predates the creation of the FCC’s Enforcement Bureau, which came into being just a few months after the first issue was published. This month’s issue includes:

  • FCC Increases Fine to $25,000 for Broadcaster’s Violations Related to Time Brokerage Agreement
  • Upward Adjustment in EAS Portion of Multiple Violation Fine Results in Total Forfeiture of $25,000
  • Noncommercial Broadcaster Fined $7000 for Late-Filed License Renewal Application


FCC Fines Florida Broadcaster $25,000 for Repeated Failure to Maintain Full-Time Personnel and Make Available a Complete Public Inspection File at Brokered Station

In September 2009, following a complaint, agents from the Enforcement Bureau’s Tampa Field Office conducted an inspection of a Florida AM station. According to the Notice of Apparent Liability (“NAL”) issued by the FCC, the AM broadcaster failed, for the second time within three years, to maintain the required number of full-time employees at its main studio in violation of Section 73.1125(a) of the FCC’s Rules, and to maintain a complete public inspection file, which violates Section 73.3526 of the FCC’s Rules.

Continue reading →

Published on:

By

Along with all of the other activities of the coming holidays, December 1 represents a busy filing deadline for digital television stations and many commercial and non-commercial radio stations, depending upon their location. For those affected, below is a brief summary of the applicable deadlines, as well as links to our recent client alerts and advisories describing the requirements in more detail.

December 1 Noncommercial Ownership Reports

Noncommercial educational radio stations licensed to communities in Colorado, Minnesota, Montana, North Dakota and South Dakota, and noncommercial educational television stations licensed to communities in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont must file their Biennial Ownership Reports by December 1, 2010. For a detailed discussion of the filing requirements, please see our Client Alert here.

December 1 EEO Deadlines

Radio and television stations licensed to communities in: Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota and Vermont have a number of December 1, 2010 deadlines for compliance with the FCC’s EEO Rule. For a detailed discussion of the requirements, please see our Client Advisory here.

December 1 DTV Ancillary/Supplementary Services Report

All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 by December 1, 2010. For a detailed discussion of this requirement, please see our Client Advisory here.