Articles Posted in Television

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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:

  • Streaming Service Agrees to Pay $3.5 Million for Violating FCC’s Closed-Captioning Rules
  • FCC Enters Consent Decree with Kentucky Broadcaster for Failing to Timely File License Renewal Application
  • Alabama Television Station Fined for Late Issues/Programs Lists

Streaming Service Enters Into Consent Decree for Violating Closed Captioning Rules

The FCC’s Enforcement Bureau and a multinational entertainment company entered into a Consent Decree to resolve an investigation into whether a streaming service owned by the company violated the FCC’s Rules pertaining to the closed captioning of video programming. To settle the matter, the company agreed to admit to violating the Internet Protocol Closed Captioning Rules, implement a compliance plan, and pay a $3,500,000 penalty.

The FCC’s Rules pertaining to the closed captioning of IP-delivered Video Programming require that all “nonexempt full-length video programming delivered using Internet Protocol must be provided with closed captions if the programming is published or exhibited on television in the United States with captions.” Most nonexempt full-length Video Programming delivered using Internet Protocol has to be provided with closed captioning if that programming aired with captions on television in the United States after September 30, 2013. For uncaptioned programming that is later aired on television with captions, video programming distributors have 15 days after that airing to add captions.

Section 79.4 of the FCC’s Rules requires that Video Programming Distributors “[e]nable the rendering or pass through of all required captions to the end user” and maintain the quality of the captions provided by the programming owner, as well as transmit the captions in a way that will reach the user with that same level of quality. Video Programming Distributors providing a device to receive their programming also need to comply with Section 79.103. That provision requires that such devices format captions in such a way as to permit viewers to control the display by changing the font, character size, or background color of the captioning. Video Programming Distributors are also required to “[m]ake contact information available to end users for receipt and handling of written closed captioning complaints.”

Beginning in January 2018, the FCC received consumer complaints about the closed captioning on the streaming service. Initially, the FCC’s Consumer and Governmental Affairs Bureau sought to informally resolve the complaints by requiring the company to submit progress reports. In May 2019, the company filed a Petition for Waiver of Section 79.4. It eventually filed a Request to Withdraw its Petition for Waiver in September 2021, and the Media Bureau granted that request at the same time it adopted the Consent Decree.

While the public comment period on the Petition for Waiver was ongoing, the Enforcement Bureau issued a Letter of Inquiry to the company in February 2020, which the company then responded to the following month. An investigation found that the company continued to offer programming that did not comply with the closed captioning rules after it had been reminded of its captioning obligations and even after it had received and responded to the Letter of Inquiry. Ultimately, the FCC concluded that the company failed to (1) enable the rendering or pass through of all required captions to the end user as required by Section 79.4, (2) implement the closed captioning functionality requirements of Section 79.103, and (3) make contact information available to end users wishing to complain about captioning.

To resolve the investigation, the company agreed to enter into a Consent Decree under which it will designate a compliance officer, implement a multi-part compliance plan, including developing a compliance manual and compliance training program, disclose within fifteen days any violations of the Consent Decree or the captioning requirements, file annual compliance reports for the next three years, and pay a $3.5 Million civil penalty.

Kentucky AM Station Pays $4,500 for Late-Filed License Renewal Application and Related Violations

A Kentucky broadcaster recently agreed to enter into a Consent Decree with the FCC for failing to timely file its license renewal application, failing to submit an EEO Program Report, and failing to place Quarterly Issues/Programs Lists in its online Public Inspection File throughout the license term.

Section 73.3539(a) of the FCC’s Rules requires that license renewal applications be filed no later than “the first day of the fourth full calendar month” before the license expires. As a result, an application to renew a Kentucky radio license needed to have been filed by April 1, 2020. However, the AM station did not file its license renewal application until July 20, 2020.

Additionally, Section 73.2080(f)(1) of the FCC’s Rules requires broadcast stations to file an EEO Program Report in connection with their license renewal application filings. In this case, the broadcaster did not do so. Finally, in its late license renewal application, the broadcaster certified compliance over the license term with the Public Inspection File rule, but had failed to place any Quarterly Issues/Programs Lists in its Public Inspection File during the license term.

As a result, the broadcaster elected to enter into a Consent Decree with the FCC to resolve the matter rather than face an extended FCC investigation. In it, the broadcaster admitted to the violations and agreed to pay a civil penalty of $4,500. The Consent Decree also requires the broadcaster to file an EEO Program Report within thirty days, implement and maintain a compliance program, including appointment of a compliance officer, development of a compliance manual, implementation of a training program, filing of a compliance report with the FCC a year after entering into the Decree, and reporting to the FCC any violations of either the Consent Decree or the Public File Rule within ten days of discovering such violation.

FCC Proposes Fine for Alabama Television Station with Late-Filed Issues/Programs Lists

The FCC fined an Alabama television station for failing to timely upload all of its Quarterly Issues/Programs Lists to its Public Inspection File. The station recently filed a license renewal application, and an FCC staff review of the stations’ Public Inspection File revealed that the station uploaded fourteen of the Lists late during the license term.

Section 73.3526(e)(11)(i) of the FCC’s Rules requires every commercial television station to place in its Public Inspection File “a list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period.” The list must include a brief narrative of the issues addressed, as well as the date, time, duration, and title of each program addressing those issues. The list must be placed in the Public Inspection File on a quarterly basis within ten days of the end of each calendar quarter.

The FCC noted that five of the Lists were uploaded more than one year late, four Lists were between one month and one year late, and five Lists were uploaded between one day and one month late. When the licensee failed to provide an adequate explanation for the late uploads, the Commission concluded that the licensee willfully and repeatedly violated Section 73.3526 of the FCC’s Rules.

Section 1.80(b)(10) of the FCC’s Rules establishes a base fine of $10,000 for Public Inspection File violations. However, the Commission may adjust the amount upwards or downwards based upon factors such as the “nature, circumstances, extent and gravity of the violation,” in addition to the licensee’s “degree of culpability” and “any history of prior offenses.”  Taking those factors into account, the FCC proposed a fine of $9,000 as appropriate. Noting that the violation did not constitute a “serious violation” nor a pattern of abuse that would prevent renewal of the station’s license, the FCC indicated it would grant the license renewal application in a separate proceeding if no other issues arose.

A PDF version of this article can be found at FCC Enforcement ~ October 2021.

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by October 10, 2021, reflecting information for the months of July, August, and September 2021.

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 their 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.

The FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have complete Quarterly Lists in their Public Inspection File or which have failed to timely upload such lists when due.  The FCC’s base fine for missing Quarterly Lists is $10,000. Continue reading →

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Full power commercial and noncommercial radio, LPFM, and FM Translator stations, licensed to communities in Alaska, Hawaii, Oregon, Washington, Guam, Mariana Islands, and American Samoa and full power TV, Class A TV, LPTV, and TV Translator stations licensed to communities in Iowa and Missouri, must file their license renewal applications by October 1, 2021.

October 1, 2021 is the license renewal application filing deadline for commercial and noncommercial radio and TV broadcast stations licensed to communities in the following states:

Full Power AM and FM, Low Power FM, and FM Translator Stations:
Alaska, Hawaii, Oregon, Washington, Guam, Mariana Islands, and American Samoa

Full Power TV, Class A, LPTV, and TV Translator Stations:
Iowa and Missouri

Overview

The FCC’s state-by-state license renewal cycle began in June 2019 for radio stations and in June 2020 for television stations.  Radio and TV stations licensed to communities in the respective states listed above should be moving forward with their license renewal preparation.  This includes becoming familiar with the requirements for the filing itself, as well as being aware of changes the FCC has made to the public notice procedures associated with the filing (discussed below).

The license renewal application (FCC Form 2100, Schedule 303-S) primarily consists of a series of certifications in the form of Yes/No questions.  The FCC advises that applicants should only respond “Yes” when they are certain that the response is correct.  Thus, if an applicant is seeking a waiver of a particular rule or policy, or is uncertain that it has fully complied with the rule or policy in question, it should respond “No” to that certification.  The application provides an opportunity for explanations and exhibits, so the FCC indicates that a “No” response to any of the questions “will not cause the immediate dismissal of the application provided that an appropriate exhibit is submitted.”  An applicant should review any such exhibits or explanations with counsel prior to filing.

When answering questions in the license renewal application, the relevant reporting period is the licensee’s entire 8-year license term.  If the licensee most recently received a short-term license renewal, the application reporting period would cover only that abbreviated license term.  Similarly, if the license was assigned or transferred via FCC Form 314 or 315 during the license term, the relevant reporting period is just the time since consummation of that last assignment or transfer.

Schedule 303-S: Application for Renewal of Radio and TV Broadcast Station Licenses

Parties to the Application

Some of the certifications an applicant is asked to make in Schedule 303-S relate solely to the station, and some—such as character certifications—relate to any “party to the application.”  A party to the application is any individual or entity that has an attributable interest in a station.  This includes all parties whose ownership interest, positional interest (i.e., an officer or director), or other relation to the applicant confers on that party a sufficient degree of influence or control over the licensee to merit FCC attention.

For a corporation, this typically includes all officers, directors, and shareholders with a 5% or greater voting interest; for an LLC, its officers and members; and for a partnership, all partners.  However, each form of entity comes with its own caveats, limitations, and unique rules for determining attributable interest holders.  For example, limited partners are normally attributable interest holders unless they have been “insulated” from partnership decisions pursuant to very specific FCC requirements.  Filers should reach out to counsel prior to filing if there are any questions about who the FCC would consider a party in interest to the license renewal application.

Character Issues, Adverse Findings and FCC Violations

Pursuant to the FCC’s statutory obligation to consider any serious rule violations or patterns of abuse, each licensee must certify that neither it nor any party to the application has had “any interest in or connection with an application that was or is the subject of unresolved character issues.”  Where the applicant is unable to make this certification, it must include an exhibit identifying the party involved, the call letters and location of the station (or file number of the FCC application or docket), and describe the party’s connection to the matter, including all relevant dates.  The applicant must also explain why the unresolved character issue “is not an impediment” to grant of the license renewal application.

Applicants must also certify whether the licensee or any party to the application has been the subject of an adverse finding in any civil or criminal proceeding involving a felony, a mass-media related antitrust or unfair competition charge, a false statement to another governmental entity, or discrimination.  The applicant must report adverse findings from the past ten years and include an exhibit explaining the matter in detail and why it should not be an impediment to a grant of the license renewal application.  Note, however, that a station does not need to report an adverse finding that was disclosed to the FCC in the context of an earlier station application where it was subsequently found by the FCC to be not disqualifying.

The application form also asks the applicant to certify that “there have been no violations by the licensee of the Communications Act of 1934, as amended, or the rules or regulations of the Commission during the preceding license term.”  The instructions to the form make clear that this question is only asking the applicant to certify that there have been no formal findings of a violation by the FCC or a court, such as a Notice of Apparent Liability, Notice of Violation, or similar finding of a rule violation.  Applicants should not use this section to self-disclose any violations not previously identified by the FCC.

Foreign Ownership and Control

The applicant must also certify that the licensee has complied with Section 310 of the Communications Act regarding foreign influence over the station.  Section 310 generally prohibits the FCC from issuing a license to an alien, a representative of an alien, a foreign government or the representative thereof, or a corporation organized under the laws of a foreign government. It also prohibits a license being issued to an entity of which more than 20% of the capital stock is owned or voted by aliens, their representatives, a foreign government or its representative, or an entity organized under the laws of a foreign country, or, absent a special ruling from the FCC, to an entity whose parent company  has more than 25% of its capital stock owned or voted by aliens, their representatives, a foreign government or its representative, or an entity organized under the laws of a foreign country.

Station Operations

The license renewal application also requires stations to certify that they are currently operational, as the FCC will not renew the license of a station that is not broadcasting.

In a similar vein, Section 73.1740 of the FCC’s Rules sets forth the minimum operating hours for commercial broadcast stations, and Section 73.561 of the Rules establishes minimum operating hours for noncommercial educational FM stations.  In the license renewal application, stations must certify that they were not silent or operated less than the required minimum number of hours for a period of more than 30 days during the license term.  If they cannot, they must include an exhibit disclosing the relevant details and explaining why it should not adversely affect the station’s license renewal.

Stations must also certify as to several statements regarding Radiofrequency Electromagnetic (RF) exposure of the public and workers at the transmitter site.  Stations that were previously renewed and which have had no changes at their transmitter site since their last renewal application will generally be able to certify compliance with this statement.  Stations that have had a material change in the RF environment at their transmitter site must assess the impact of that change before certifying RF compliance and may need to submit an exhibit demonstrating the station’s compliance with RF requirements.

Related Filings and Materials

 Other Certifications

Successfully navigating the license renewal application also requires stations to certify that the rest of their regulatory house is in order.  For example, applicants must certify that they have timely made other regulatory filings, such as the Biennial Ownership Report on FCC Form 2100, Schedule 323 or 323-E, and confirm that their advertising agreements do not discriminate on the basis of race or gender and contain non-discrimination clauses.   Applicants must also certify that they have placed all items required to be in the station’s Public Inspection File in the File, and that they have done so on a timely basis.  Public File violations have traditionally been a significant cause of fines at license renewal time.  As the Public Inspection File is now online, stations are reminded that third parties are now able to easily review and confirm the timeliness of Public File documents.  As with all other certifications in the application form, stations must accurately respond and be prepared to provide documentation supporting their certifications if later requested by the FCC.

EEO

Depending on staff size, one of the items stations must certify is that they have timely placed in their Public Inspection File, as well as on their website, the annual Equal Employment Opportunity (“EEO”) Public File report.

Generally, a station that is part of a Station Employment Unit that employs fewer than five full-time employees is exempt from these requirements.  However, at license renewal time, all stations, regardless of staff size, must file FCC Form 2100, Schedule 396, the Broadcast EEO Program Report.  Stations in a Station Employment Unit with fewer than five full-time employees will only need to complete part of the form before filing it.  As a practical matter, because of the mechanics of the FCC’s filing system, an applicant will generally be unable to file its license renewal application until it can provide in that form the file number generated by the FCC when the station’s completed Schedule 396 is filed.

Certifications for Full Power TV and Class A TV Stations Only

While there is significant overlap between the certifications included in both the radio and TV license renewal applications, an important portion of the form specific to full power TV and Class A TV stations concerns certifications regarding the station’s children’s television programming obligations.

The Children’s Television Act of 1990 requires commercial full power TV and Class A TV stations to: (1) limit the amount of commercial matter aired during programming designed for children ages 12 and under, and (2) air programming responsive to the educational and informational needs of children ages 16 and under.  While stations have been required to submit Children’s Television Programming Reports and commercial limits certifications demonstrating their compliance with these requirements on a quarterly or annual basis,[1] the license renewal application requires applicants to further certify that these obligations have been satisfied and documented as required over the entire license term and to explain any instances of noncompliance.  Stations can find additional information on the children’s television programming and reporting obligations in our most recent Children’s Television Programming Advisory.

Although noncommercial TV stations are not subject to commercial limitations or required to file Children’s Television Programming Reports, such stations are required to air programming responsive to children’s educational and informational needs.  In preparation for license renewal, such stations should therefore ensure they have documentation demonstrating compliance with this obligation in the event their license renewal is challenged.

For Class A television stations, in addition to certifications related to children’s television programming, the application requires certification of compliance with the Class A eligibility and service requirements under Section 73.6001 of the FCC’s Rules.  Specifically, such stations must broadcast a minimum of 18 hours a day and average at least three hours per week of locally produced programming each quarter to maintain their Class A status.  Applicants must certify that they have and will continue to meet these requirements.

Post-Filing License Renewal Announcements

In prior license renewal cycles, stations were required to give public notice of a license renewal application both before and after the filing of that application. For the current cycle, the FCC eliminated the pre-filing public notices and modified the procedures for post-filing notices.  These changes modify the timing and number of on-air announcements required, replace newspaper public notice requirements with an online notice, and revise the text of the announcements themselves.

As such, full power commercial and noncommercial radio and LPFM stations, and full power and Class A TV stations, as well as LPTV stations capable of local origination, must broadcast a total of six post-filing license renewal announcements over four consecutive weeks, with at least one airing each week and no more than two airing in any week (each of which must air on different days).  The first such announcement must air within five business days after the FCC has issued a Public Notice announcing its acceptance of the application for filing.

On-air post-filing announcements must be broadcast on a weekday (Monday through Friday) between 7:00 am and 11:00 pm local time based on the applicant station’s community of license.  The text of the announcement is as follows:

On [date], [applicant name], licensee of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license.  Members of the public wishing to view this application or obtain information about how to file comments and petitions on the application can visit publicfiles.fcc.gov, and search in [station call sign’s] public file.

For those types of stations that do not have Public Inspection Files, the on-air post-filing announcement should instead be:

On [date], [applicant name], licensee of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license.  Members of the public wishing to view this application or obtain information about how to file comments and petitions can visit www.fcc.gov/stationsearch, and search in the list of [station call sign’s] filed applications.

For television broadcast stations, when these on-air announcements are presented aurally, the public notice text must also be presented visually onscreen.

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 contact counsel regarding how to give the required public notice.

Certification of Compliance

Within seven days of the broadcast of the last required announcement, full power radio and TV station and Class A TV station license renewal applicants should complete the attached Statement of Compliance and place it in the station’s Public Inspection File.  LPFM and LPTV license renewal applicants should complete the attached Statement of Compliance and place it in their station records file.

Online Public Notice Required for FM Translator, TV Translator, and Certain LPTV Stations

FM translator, TV translator, and LPTV stations not capable of local origination are not required to broadcast post-filing announcements, and have typically been required to publish public notices in a local newspaper instead.  The FCC has eliminated the newspaper publication requirement in favor of online notices, requiring such stations to publish written notice on a station-affiliated website upon filing a license renewal application.

A prominently displayed link or tab that reads “FCC Applications” must be posted on the station website homepage, and link to a separate page containing the following notice:

On [date], [applicant name], [permittee / licensee] of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license. Members of the public wishing to view this application or obtain information about how to file comments and petitions on the application can visit [insert hyperlink to application link in applicant’s online Public Inspection File or, if the station has no online Public Inspection File, to application location in the Media Bureau’s Licensing and Management System].

This separate page must also include the date the page was last revised.  The notice and corresponding link to the renewal application must be posted within five business days after the FCC has issued a Public Notice announcing its acceptance of the application for filing and remain on the station’s website for 30 consecutive days.  At the end of the 30-day period, the notice can be removed, and if no other applications requiring online notice are pending, the webpage should be updated to include the following text instead:

There are currently no applications pending for which online public notice is required.

The rules contain specific requirements as to where station applicants that do not have websites should post their announcement. These stations should consult with counsel on the proper online notice procedures.

After publishing the notice, the licensee should complete and execute a Statement of Compliance regarding that publication and place the Statement of Compliance in its Public Inspection File.  While FM translator, TV translator, and LPTV station licensees are not required to keep a Public Inspection File, they are required to maintain and make available to FCC representatives a station records file that contains their current authorization and copies of all FCC filings and correspondence with the Commission.  For them, the completed Statement of Compliance should be included in their station records file. 

[1] Note that in 2019, the FCC changed the obligation to file the Children’s Television Programming Report and place the commercial limits certification in the Public Inspection File from a quarterly requirement to an annual obligation.

The full article, along with examples of compliance statements, can be found at License Application Renewal Reminder.

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For those racing to meet tonight’s deadline to file your 2021 Regulatory Fees, we have some good news.  The FCC just released a Public Notice announcing that the deadline for submitting those fees has been extended to 11:59pm on September 27, 2021.  The Notice is silent as to whether the extension is based on filing system problems or other causes.  However, it was apparently released in a rush as it doesn’t include the FCC’s standard language specifying that the deadline is 11:59pm Eastern Daylight Time (for those wishing to file at 11:59pm Pacific Time, we wouldn’t advise it).

So if you have already paid your regulatory fees, congratulations, you got in ahead of whatever issue is driving this extension.  If not, now you have something to do this weekend.

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Each year with the end of summer comes an announcement from the FCC as to how it is divvying up its operating costs to then charge its regulatees in the form of regulatory fees.  This annual ritual, required by Congress, makes the FCC virtually unique among federal agencies in funding its operations by passing the hat among those it regulates (and then charging them a fee to process each application to boot).

Being told how much broadcasters must pay to be regulated is never welcome news, but this year there is at least some upside, as broadcasters’ fees will be nearly 10% less than originally proposed, with most broadcasters’ 2021 fees being the same or less than last year’s.  The FCC’s Public Notice announcing the fee deadline and procedures is available here: https://docs.fcc.gov/public/attachments/DA-21-1112A1.pdf

Here are the highlights:

  • Annual regulatory fees are due by September 24, 2021.
  • Annual regulatory fees must be filed electronically at fcc.gov/feefiler.
  • Annual regulatory fee increases originally proposed for broadcasters were rolled back under intense lobbying pressure from trade associations representing broadcasters.
  • The FCC has commenced a proceeding to examine how it can more equitably implement the congressionally-mandated obligation to collect its entire appropriation from those that benefit from its operations.

Taking these points in turn, it is imperative that regulatees who owe more than $1,000 in regulatory fees file and pay those fees, or seek a waiver or exemption from doing so, by September 24.  Late or unpaid fees incur a 25% late penalty, plus interest and fees.  Those whose total regulatory fees are $1,000.00 or less are exempt.  Payments must be made in a single transaction.  Remember that the FCC’s daily limit on a party’s credit card transactions is $24,999.99, so payors that owe more than that amount must use one of the other methods available, including VISA/Mastercard Debit cards, ACH or wire transfers.  Wire transfers must be initiated early enough that they are credited by September 24 or they will be considered late.  Payors who cannot make their regulatory fee payments may seek a waiver or deferral of the fee payment obligation, which requires a showing of financial hardship.

The regulatory fee payment process involves two steps.  Payors must first sign into the FCC’s Fee Filer database using their Federal Registration Number (“FRN”) and password and electronically submit information about the fees they are paying.  This information may pre-populate with data from prior years’ payments and the FCC’s information about the facilities associated with the FRN.  However, payors are responsible for verifying that the information is accurate, including adding any facilities that may be missing.  Fee payors must then pay the fee amount indicated using one of the permitted online payment methods via the Fee Filer database or by wire transfer.

Broadcasters will notice that their regulatory fees this year are very close to or even less than last year.  In May 2021, the FCC released its proposed fee amounts, which included fee increases of 5% to 15% for the various categories of broadcasters.  Most of this proposed increase was due to the FCC’s decision to charge to “overhead” its special $33 billion appropriation for the Broadband DATA Act.  Through the Broadband DATA Act, Congress directed the FCC to use employees in certain of the FCC’s Bureaus to create accurate maps of broadband availability in the U.S.  Under the FCC’s fee methodology, overhead costs are paid for by all regulatory fee payors and divided among regulatees based on the size of the staff of the bureau that regulates them.  Since the Media Bureau has the largest staff, regulatees of the Media Bureau were slated to pay the largest portion of the $33 billion, despite the fact that broadcasters receive no benefit from the FCC’s broadband mapping activities and Media Bureau employees were not among those tasked by Congress to implement the mapping.

The NAB and State Broadcasters Associations filed comments in the proceeding and lobbied all of the Commissioners’ offices, urging the FCC to withdraw its proposal to charge broadcasters for the costs of its activities under the Broadband DATA Act and to reform its fee methodology to more accurately assign the responsibility of paying for the FCC’s activities to those who benefit from them, as required by law.

The broadcasters’ efforts were successful, with their 2021 fees generally being the same or lower than 2020 fees, and the FCC launching a proceeding to reform its regulatory fee methodology more generally.  Over the more than two and a half decades that broadcasters have been paying annual regulatory fees, the communications landscape in the U.S. has changed dramatically, with many new entrants, products and business models having been introduced.  Much of that change has been made possible through rulemaking and spectrum reallocation activities of the FCC, including many that reduced the spectrum available for broadcasting and/or increased interference to broadcasters.

Because of their position as licensees, however, broadcasters have had to pay for the FCC’s operating expenses while many of their unlicensed competitors do not.  Given the stakes for the future, it is important for broadcasters to remain engaged for this rulemaking proceeding, as it represents the greatest chance of altering a fee methodology that has consistently overcharged broadcasters in comparison to other FCC beneficiaries.

Only part of the solution rests with the FCC, however.  Because the regulatory fee obligation originates from Congress, it is important for broadcasters to be conversant on the subject and prepared to address it with legislators.  Broadcasters wishing to better understand the congressional regulatory fee mandate as implemented by the FCC may wish to read the summary of the State Broadcasters Associations’ ex parte meeting with Acting Chairwoman Rosenworcel, or their Joint Reply Comments in this year’s regulatory fee proceeding.

In the meantime, make sure your regulatory fees are paid by midnight (East Coast time) on September 24, 2021.

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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:

  • Broadcasters Fined for Late-Filed Issues/Programs Lists
  • Cable Sports Network Receives Proposed Fine of $20,000 for EAS Violation
  • FCC Enters Consent Decrees with Wireless Providers for Engaging in Prohibited Communications During Spectrum Auction

FCC Proposes Stiff Fines for Two TV Stations With Late-Filed Issues/Programs Lists

The FCC fined a Louisiana and a Georgia television station for failing to timely upload quarterly Issues/Programs Lists to their Public Inspection Files. Both stations recently applied for renewal of their licenses, and an FCC staff review of the stations’ Public Inspection Files revealed that one station uploaded 16 Lists late and the other uploaded 21 Lists late.

Section 73.3526(e)(11)(i) of the FCC’s Rules requires every commercial television licensee to place in its online Public Inspection File “a list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period.” The list must include a brief narrative of the issues addressed, as well as the date, time, duration, and title of each program addressing those issues. The list must be placed in the online Public Inspection File on a quarterly basis within ten days of the end of each calendar quarter.

In addition to the lists having been filed late, the FCC noted that most of the lists were actually filed over a year late. The Commission therefore concluded that each broadcaster had willfully and repeatedly violated Section 73.3526 of the FCC’s Rules. Section 312(f)(1) of the Communications Act defines “willful” as “the conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate” the law, and “repeated” as applying where an act occurs more than once or, if an act is continuous, for more than one day. Though each broadcaster indicated that the Lists were uploaded late due to station staffing issues or their staff’s lack of familiarity with the Public File rule, the FCC noted that employee acts such as clerical errors in failing to file required forms do not excuse a violation.

In determining the amount of a proposed fine, the FCC may adjust its base fine amount for such a violation upward or downward based upon the nature, circumstances, extent, and gravity of the violation, in addition to the licensee’s degree of culpability and any history of prior offenses. Section 1.80(b)(10) of the Commission’s rules establishes a base fine of $10,000 for Public Inspection File violations.

In both instances, the FCC determined that the amount should be adjusted upward due to the large number of late-filed lists. The broadcaster that filed 16 Lists late faces a $15,000 proposed fine, while the broadcaster that filed 21 Lists late faces a $20,000 fine. However, in neither case did the FCC find that the violation would constitute a “serious violation” or pattern of abuse preventing renewal of the stations’ licenses. Barring other issues arising, the FCC indicated that both license renewal applications would be granted in separate Commission actions upon conclusion of the stations’ respective forfeiture proceedings.

FCC Proposes $20,000 Fine Against Cable Sports Network for Violating EAS Rule

The FCC issued a Notice of Apparent Liability for Forfeiture (NAL) to a cable sports network for violating the Commission’s Emergency Alert System (EAS) rules. Specifically, Section 11.45 of the Commission’s Rules prohibits the transmission of false or deceptive EAS tones.

The EAS is a nationwide public warning system designed to alert the public in case of emergencies, such as severe weather warnings or AMBER alerts. In order to maintain the effectiveness of such emergency alerts, EAS tones may only be aired for specific uses, such as actual emergencies, authorized tests, and qualified public service announcements (PSAs). Section 11.45 strictly prohibits airing the EAS tones, or simulations thereof, except in connection with of one of those permitted uses.

In October 2020, the FCC became aware that a cable network had transmitted during a program EAS tones that were not connected to an emergency, authorized test, or qualified PSA. The Commission’s Enforcement Bureau sent a Letter of Inquiry to the network seeking information regarding the inclusion of EAS tones in the program. The network responded, admitting that it aired the tones in the context of a television show depicting a weather event. While there was no actual emergency occurring at the time, the network noted that the show featured a dramatic retelling of an actual weather event. The network also explained that the tones lasted less than two seconds and did not include keying tones, so they could not have triggered any automated EAS relay equipment.

Rejecting this explanation, the FCC found that the network willfully violated Section 11.45 of the Commission’s Rules, stating that whether the EAS rule was violated does not turn on the length of time the tones were aired, nor whether EAS data was embedded within the tones. The FCC also noted that while it has issued its base fine of $8,000 for past violations of the EAS rule, it may upwardly adjust the fine for violations that are particularly egregious, intentional, repeated, cause substantial harm, or generate substantial economic gain for the violator.

In this instance, the FCC noted the seriousness of the matter given the potential to undermine the integrity of the EAS system when the tones are used outside of true emergencies or tests. The Commission also considered other factors, such as the number of times the false EAS tone was transmitted, the length of time over which the violations occurred, the audience reach (nationwide), and the extent of the public safety impact. Finally, the FCC noted that the network had previously been fined for violating the same rule.

Given the nationwide scope of the audience, the serious public safety implications, and the prior history of EAS violations, the FCC concluded that an upward adjustment was warranted, proposing a total fine of $20,000. The company has 30 days from release of the NAL to pay the fine or file a written statement seeking reduction or cancellation of the proposed fine.

FCC Fines Wireless Providers for Violating Rules Against Communicating Bidding Strategies During FCC Spectrum Auction

Two Internet service providers recently agreed to enter into consent decrees with the FCC for engaging in prohibited communications regarding their bids and bidding strategies with other FCC Auction 105 participants.

Section 1.2105(c)(1) of the Commission’s Rules forbids FCC auction applicants from conveying certain information to other auction applicants during the “quiet period.” This “quiet period” begins on the deadline for filing a short-form application to participate in the auction and ends on the deadline for winning bidders to submit downpayments. The rule applies to any communication by an applicant regarding its own, or any other applicant’s, bids or bidding strategies.

While an applicant may state that it has applied to participate in a spectrum auction, a public statement by a party that it does not intend to place bids (or that it intends to stop bidding) can violate Section 1.2105(c)(1).

Additionally, Section 1.2105(c)(4) requires applicants to disclose to the FCC if it makes or receives a communication that appears to violate section 1.2105(c). Applicants must disclose potential violations in writing to the Commission immediately, and no later than five business days after the communication occurred.

In one case, a company official expressed to a Wireless Internet Service Providers Association members email group his company’s intent to cease participating in the auction. This email group included other auction participants, at least one of whom timely reported the communication to the FCC as required by Section 1.2105(c)(4).  The company itself self-reported the disclosure, and ultimately elected to enter into a consent decree with the FCC to resolve the matter.  While the consent decree did not include an admission of guilt, the company did agree to institute a training and compliance program, file annual compliance reports with the FCC for the next three years, and pay a civil penalty of $30,000.

In a separate matter, an officer of another potential bidder posted a statement to a Facebook group saying that the company did not intend to place any bids in the auction. Another auction participant saw and timely reported the communication to the FCC, but in this case, the potential bidder that posted the message did not self-report the communication to the FCC.

When the FCC commenced an investigation, the potential bidder elected to enter into a consent decree with the Commission to conclude the matter.  In this case, however, the consent decree included an admission that the party violated Section 1.2105(c)(4) by not reporting the prohibited communication. Along with committing to a training and compliance program, and submitting annual compliance reports to the FCC for the next three years, the potential bidder agreed to pay a civil penalty of $50,000 to conclude the investigation.

A PDF version of this article can be found at FCC Enforcement ~ August 2021.

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Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others.  This month’s issue includes:

  • FCC Asserts Violation of Prohibition Against Owning Two Top-Four Stations in the Same Market and Proposes $518,283 Fine
  • FCC Admonishes Indiana Broadcaster for Failing to Timely File License Renewal Application
  • Noncommercial Broadcaster Fined $9,000 for Late-Filed Issues/Programs Lists

Alaska TV Duopoly Violation Draws Large Proposed Fine

The FCC issued a Notice of Apparent Liability for Forfeiture (NAL) to a television licensee for violating the Commission’s Duopoly Rule. That rule prohibits a party from owning two of the four highest-rated full-power TV stations in a Designated Market Area (DMA).

Section 73.3555(b)(1) of the FCC’s Rules allows an entity “to directly or indirectly own, operate, or control two television stations licensed in the same Designated Market Area” only if those stations’ service contours do not overlap or if, at the time the application to acquire the second station is filed, at least one of the stations is not ranked among the top four stations in the DMA.

Particularly relevant here is Note 11 to that rule, which was adopted in 2016. Note 11 prohibits the common ownership of two overlapping stations where one is a top-four rated station and the second station acquires a top-four rated station’s network affiliation from that station’s owner. In this instance, the buyer acquired most of the non-license assets of the third-party station, including its network affiliation, and moved that affiliation to the buyer’s non-top-four station.

According to the FCC, such transactions “serve as the functional equivalent of a transfer of control or assignment of license.”

The FCC noted the buyer did not contact Commission staff regarding the permissibility of the transaction nor seek a waiver of Section 73.3555 prior to closing the sale. In calculating the fine, the FCC explained that the licensee willfully and repeatedly violated Section 73.3555 of the FCC’s Rules. Section 312(f)(1) of the Communications Act defines willful as “the conscious and deliberate commission or omission of [any] act, irrespective of any intent to violate” the law, and “repeated” when an act occurs more than once or, if an act is continuous, for more than one day. By continuously operating the station for over seven months, the FCC found the licensee’s behavior to be conscious and deliberate, and thus willful.

When determining the amount of a proposed fine, the Commission may adjust its base fine for such a violation upward or downward based upon the nature, circumstances, extent, and gravity of the violation, in addition to the licensee’s degree of culpability and any history of prior offenses. In this instance, the FCC found that because the violation resulted in substantial economic gain, an upward adjustment was appropriate, particularly in light of the licensee’s significant ability to pay.

While the FCC noted it had not previously issued a fine for a Note 11 violation, it looked at fines issued in similar instances for guidance. The Commission found that its base fine of $8,000 for unauthorized transfers of control was sufficiently similar to use as a guidepost. As the Communications Act and the FCC’s rules contemplate a separate fine for each day of a continuing violation, the result would have been $8,000 multiplied by the 215 days the violation persisted, for a total fine of $1,720,000.

However, the FCC’s ability to assess fines is capped at $518,283 for a single act or failure to act, even when it is a continuing violation. Were it not for this statutory cap, the FCC indicated there would have been a number of reasons to upwardly adjust the fine. The licensee has 30 days from release of the NAL to pay the fine or file a written statement seeking reduction or cancellation of it.

Untimely Indiana License Renewal Application Results in Admonishment Despite FCC Technical Issues

The FCC’s Media Bureau recently released an Order admonishing the licensee of an FM translator for failing to timely file a license renewal application by the April 1, 2020 deadline. The Commission initially issued a fine but later cancelled it and instead issued the admonishment.

In February 2021, the Media Bureau issued an Order and NAL fining the licensee $1,500 for failing to timely file a license renewal application. The FCC referenced its Forfeiture Policy Statement, which sets a base fine of $3,000 for failing to file a required form. In this case, however, the FCC felt that because the licensee filed the renewal application before the station’s license expired, a fine of $1,500 was sufficient, noting that as a translator, the station was providing a secondary service.

The licensee was given 30 days from the release of the NAL to either pay the fine or file a written statement seeking reduction or cancellation of it. The licensee submitted a response, explaining that its inability to timely file the license renewal application was because of a technical issue with the FCC’s filing database, LMS.

According to the licensee, LMS incorrectly listed the expiration date of the station’s license as July 2021, rather than August 2020. Because the expiration date listed was too far in the future, LMS would not accept a license renewal application for the station. The licensee’s engineer reached out to FCC staff in February 2020 to have the expiration date corrected and was later told the error had been fixed. However, the erroneous date had in fact not been corrected and the station continued to be unable to file its license renewal application. The engineer reached out to the FCC again in July 2020 to have the problem fixed. The LMS error was resolved by the FCC on July 23, 2020 and the licensee filed its license renewal application that same day.

Despite the LMS error and the FCC’s failure to correct the problem originally, the FCC stated that the station’s failure to timely file was “due to Licensee’s own lack of diligence” and admonished the licensee for violating Section 73.3539 of the FCC’s Rules regarding license renewal filing deadlines. The FCC compared the situation to a prior case where a licensee was granted a waiver of the deadline after experiencing technical issues, but then acted diligently and kept in constant contact with FCC staff to resolve the issue and file the application. Ultimately though, the Commission acknowledged that it did not correct the LMS issue in February 2020 when the licensee raised the issue, and on its own motion cancelled the NAL.

FCC Fines Virginia Noncommercial Broadcaster for Late-Filed Issues/Programs Lists

The FCC fined a noncommercial broadcaster for failing to timely upload the quarterly issues/programs lists for two of its TV stations. The FCC found from a review of the stations’ online Public Inspection Files that a total of sixteen reports were uploaded late.

Section 73.3527(e) of the FCC’s Rules requires every noncommercial educational television licensee to place in its online Public Inspection File “a list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period.” The list must include a brief narrative of the issues addressed, as well as the date, time, duration, and title of each program addressing those issues. The list must be placed in the online Public Inspection File on a quarterly basis within ten days of the end of each calendar quarter.

The broadcaster filed applications to renew the stations’ licenses in 2020. An associated FCC staff review of the stations’ Public Inspection Files revealed that one station uploaded seven lists late and the other uploaded nine lists late. The FCC further pointed out that of these late-filed lists, some were more than a year late.

The FCC found that the failure to timely upload sixteen lists between the two stations constituted a willful and repeated violation of its rules. Though the broadcaster indicated the error was due to administrative oversight, the FCC noted that employee acts such as clerical errors in failing to file required forms do not excuse a violation.

The base fine for a Public Inspection File violation is $10,000. In determining whether the amount should be adjusted upward or downward based upon the facts of the case, the FCC found that the broadcaster’s failure did not constitute a “serious violation” or pattern of abuse that would prevent renewal of the stations’ licenses. However, it proposed a $9,000 fine as appropriate given the nature of the violations. The broadcaster must now either pay that amount within 30 days or file a written statement seeking reduction or cancellation of the proposed fine.

A PDF version of this article can be found at FCC Enforcement ~ July 2021.

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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.

August 1 is the deadline for broadcast stations licensed to communities in California, Illinois, North Carolina, South Carolina, and Wisconsin to place their Annual EEO Public File Report in their Public Inspection File and post the report on their station website.  In addition, certain of these stations, as detailed below, must submit their two most recent EEO Public File Reports along with FCC Form 2100, Schedule 396 as part of their license renewal applications due by August 2. 

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,[1] (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term.  These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the Public Inspection Files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application.  The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities.  As discussed below, nonexempt SEUs must submit to the FCC their two most recent Annual EEO Public File Reports when they file their license renewal applications.

For a detailed description of the EEO Rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters published by Pillsbury’s Communications Practice Group.

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

Consistent with the above, August 1, 2021 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 its station records file.

These Reports will cover the period from August 1, 2020 through July 31, 2021.  However, Nonexempt SEUs may “cut off” the reporting period up to ten days before July 31, so long as they begin the next annual reporting period on the day after the cut-off date used in the immediately preceding Report.  For example, if the Nonexempt SEU uses the period August 1, 2020 through July 21, 2021 for this year’s report (cutting it off up to ten days prior to July 31, 2021), then next year, the Nonexempt SEU must use a period beginning July 22, 2021 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 and which are 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 and which are 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 in which a station’s community of license is located, 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 California, North Carolina, and South Carolina must earn at least the required minimum number of Menu Option credits during the two year “segment” between August 1, 2019 and July 31, 2021, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt radio station SEUs licensed to communities in Illinois and Wisconsin must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between August 1, 2020 and July 31, 2022, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Illinois and Wisconsin must earn at least the required minimum number of Menu Option credits during the two-year “segment” between August 1, 2019 and July 31, 2021, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in California, North Carolina, and South Carolina must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between August 1, 2020 and July 31, 2022, as well as during the previous two-year “segments” of their license terms.

Additional Obligations for Stations Whose License Renewal Applications Are Due by August 2, 2021 (Radio Stations Licensed to Communities in California, and Television Stations Licensed to Communities in Illinois and Wisconsin)

August 2, 2021 is the date by which radio stations in California and television stations in Illinois and Wisconsin must file their license renewal applications.  In conjunction with that filing, these stations must submit Schedule 396 of FCC Form 2100.  Nonexempt SEUs must include in their Schedule 396 filing their two most recent EEO Public File Reports and a narrative discussing their EEO Program over the past two years.

Recommendations

It is critical that every SEU maintain adequate records of its performance under the EEO Rule and that it practice overachieving when it comes to earning the required number of Menu Option credits.  The FCC will not give credit for Menu Option initiatives that are not duly reported in an SEU’s Annual EEO Public File Report or that are not adequately documented.  Accordingly, before an Annual EEO Public File Report is finalized and made public by posting it on a station’s website or placing it in the Public Inspection File, the draft document, including supporting material, should be reviewed by communications counsel.

Finally, note that the FCC is continuing its program of EEO audits.  These random audits check for compliance with the FCC’s EEO Rule, and are sent to approximately five percent of all broadcast stations each year.  Any station may become the subject of an FCC audit at any time.  For more information on the FCC’s EEO Rule and its requirements, as well as practical advice for compliance, please contact any of the attorneys in Pillsbury’s Communications Practice.

[1] In light of the significant layoffs and workforce reductions caused by the COVID-19 pandemic, the FCC has waived the requirement that broadcasters engage in broad outreach when rehiring employees that were laid off in connection with the COVID-19 pandemic, but only where the employee is rehired within nine months of being laid off.  Additional information on this limited waiver of EEO obligations can be found in our CommLawCenter article on this subject.

A PDF of this article can be found at EEO Public File Deadline

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This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider that provided service to at least one viewer outside the station’s local service area during 2020. These stations may be eligible to file royalty claims for compensation with the United States Copyright Royalty Board. These filings are due by August 2, 2021.

Under the federal Copyright Act, cable systems and satellite operators must pay license royalties to carry distant TV signals on their systems. Ultimately, the Copyright Royalty Board divides the royalties among those copyright owners who claim shares of the royalty fund. Stations that do not file claims by August 2, 2021 will not be able to collect royalties for carriage of their signals during 2020. While claims are typically due July 31, that date falls on a Saturday this year. Stations will therefore have until the first business day in August to file.

In order to file a cable royalty claim, a television station must have aired locally-produced programming of its own and had its signal carried outside of its local service area by at least one cable system in 2020. Television stations with locally-produced programming whose signals were delivered to subscribers located outside the station’s Designated Market Area in 2020 by a satellite provider are also eligible to file royalty claims. A station’s distant signal status should be evaluated and confirmed by communications counsel.

Cable and satellite claim forms can no longer be filed in paper form through mail or courier, and instead must be filed electronically via eCRB, the Copyright Royalty Board’s online filing system. Prior to filing electronically, claimants or their authorized representatives must register for an eCRB account. First-time electronic filers should register for an account as soon as possible, as there is a multiple day waiting period between initial registration and when a user may submit claims. Also, because accounts can become locked due to inactivity, filers who already have an eCRB account should confirm that their login credentials still work.

To submit claims, stations are required to supply the name and address of the filer and of the copyright owner, and must provide a general statement as to the nature of the copyrighted work (e.g., local news, sports broadcasts, specials, or other station-produced programming). Claims must be submitted by 11:59 pm ET on August 2, and claimants should keep copies of all submissions and confirmations of delivery.

Please contact any of the group’s attorneys for assistance in determining whether your station qualifies to make a claim and in filing the claim itself.

A PDF version of this article can be found here.

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Full power commercial and noncommercial radio, LPFM, and FM Translator stations, licensed to communities in California and full power TV, Class A TV, LPTV, and TV Translator stations licensed to communities in Illinois and Wisconsin, must file their license renewal applications by August 2, 2021.

August 2, 2021 is the license renewal application filing deadline for commercial and noncommercial radio and TV broadcast stations licensed to communities in the following states:

Full Power AM and FM, Low Power FM, and FM Translator Stations:
California

Full Power TV, Class A, LPTV, and TV Translator Stations:
Illinois and Wisconsin

Overview

The FCC’s state-by-state license renewal cycle began in June 2019 for radio stations and in June 2020 for television stations.  Radio and TV stations licensed to communities in the respective states listed above should be moving forward with their license renewal preparation.  This includes becoming familiar with the requirements for the filing itself, as well as being aware of changes the FCC has made to the public notice procedures associated with the filing (discussed below).

The license renewal application (FCC Form 2100, Schedule 303-S) primarily consists of a series of certifications in the form of Yes/No questions.  The FCC advises that applicants should only respond “Yes” when they are certain that the response is correct.  Thus, if an applicant is seeking a waiver of a particular rule or policy, or is uncertain that it has fully complied with the rule or policy in question, it should respond “No” to that certification.  The application provides an opportunity for explanations and exhibits, so the FCC indicates that a “No” response to any of the questions “will not cause the immediate dismissal of the application provided that an appropriate exhibit is submitted.”  An applicant should review any such exhibits or explanations with counsel prior to filing.

When answering questions in the license renewal application, the relevant reporting period is the licensee’s entire 8-year license term.  If the licensee most recently received a short-term license renewal, the application reporting period would cover only that abbreviated license term.  Similarly, if the license was assigned or transferred via FCC Form 314 or 315 during the license term, the relevant reporting period is just the time since consummation of that last assignment or transfer.

Schedule 303-S: Application for Renewal of Radio and TV Broadcast Station Licenses

Parties to the Application

Some of the certifications an applicant is asked to make in Schedule 303-S relate solely to the station, and some—such as character certifications—relate to any “party to the application.”  A party to the application is any individual or entity that has an attributable interest in a station.  This includes all parties whose ownership interest, positional interest (i.e., an officer or director), or other relation to the applicant confers on that party a sufficient degree of influence or control over the licensee to merit FCC attention.

For a corporation, this typically includes all officers, directors, and shareholders with a 5% or greater voting interest; for an LLC, its officers and members; and for a partnership, all partners.  However, each form of entity comes with its own caveats, limitations, and unique rules for determining attributable interest holders.  For example, limited partners are normally attributable interest holders unless they have been “insulated” from partnership decisions pursuant to very specific FCC requirements.  Filers should reach out to counsel prior to filing if there are any questions about who the FCC would consider a party in interest to the license renewal application.

Character Issues, Adverse Findings and FCC Violations

Pursuant to the FCC’s statutory obligation to consider any serious rule violations or patterns of abuse, each licensee must certify that neither it nor any party to the application has had “any interest in or connection with an application that was or is the subject of unresolved character issues.”  Where the applicant is unable to make this certification, it must include an exhibit identifying the party involved, the call letters and location of the station (or file number of the FCC application or docket), and describe the party’s connection to the matter, including all relevant dates.  The applicant must also explain why the unresolved character issue “is not an impediment” to grant of the license renewal application.

Applicants must also certify whether the licensee or any party to the application has been the subject of an adverse finding in any civil or criminal proceeding involving a felony, a mass-media related antitrust or unfair competition charge, a false statement to another governmental entity, or discrimination.  The applicant must report adverse findings from the past ten years and include an exhibit explaining the matter in detail and why it should not be an impediment to a grant of the license renewal application.  Note, however, that a station does not need to report an adverse finding that was disclosed to the FCC in the context of an earlier station application where it was subsequently found by the FCC to be not disqualifying.

The application form also asks the applicant to certify that “there have been no violations by the licensee of the Communications Act of 1934, as amended, or the rules or regulations of the Commission during the preceding license term.”  The instructions to the form make clear that this question is only asking the applicant to certify that there have been no formal findings of a violation by the FCC or a court, such as a Notice of Apparent Liability, Notice of Violation, or similar finding of a rule violation.  Applicants should not use this section to self-disclose any violations not previously identified by the FCC.

Foreign Ownership and Control

The applicant must also certify that the licensee has complied with Section 310 of the Communications Act regarding foreign influence over the station.  Section 310 generally prohibits the FCC from issuing a license to an alien, a representative of an alien, a foreign government or the representative thereof, or a corporation organized under the laws of a foreign government. It also prohibits a license being issued to an entity of which more than 20% of the capital stock is owned or voted by aliens, their representatives, a foreign government or its representative, or an entity organized under the laws of a foreign country, or, absent a special ruling from the FCC, to an entity whose parent company  has more than 25% of its capital stock owned or voted by aliens, their representatives, a foreign government or its representative, or an entity organized under the laws of a foreign country.

Station Operations

The license renewal application also requires stations to certify that they are currently operational, as the FCC will not renew the license of a station that is not broadcasting.

In a similar vein, Section 73.1740 of the FCC’s Rules sets forth the minimum operating hours for commercial broadcast stations, and Section 73.561 of the Rules establishes minimum operating hours for noncommercial educational FM stations.  In the license renewal application, stations must certify that they were not silent or operated less than the required minimum number of hours for a period of more than 30 days during the license term.  If they cannot, they must include an exhibit disclosing the relevant details and explaining why it should not adversely affect the station’s license renewal.

Stations must also certify as to several statements regarding Radiofrequency Electromagnetic (RF) exposure of the public and workers at the transmitter site.  Stations that were previously renewed and which have had no changes at their transmitter site since their last renewal application will generally be able to certify compliance with this statement.  Stations that have had a material change in the RF environment at their transmitter site must assess the impact of that change before certifying RF compliance and may need to submit an exhibit demonstrating the station’s compliance with RF requirements.

Related Filings and Materials

 Other Certifications

Successfully navigating the license renewal application also requires stations to certify that the rest of their regulatory house is in order.  For example, applicants must also certify that they have timely made other regulatory filings, such as the Biennial Ownership Report on FCC Form 2100, Schedule 323 or 323-E, and confirm that their advertising agreements do not discriminate on the basis of race or gender and contain non-discrimination clauses.   Applicants must also certify that they have placed all items required to be in the station’s Public Inspection File in the File, and that they have done so on a timely basis.  Public File violations have traditionally been a significant cause of fines at license renewal time.  As the Public Inspection File is now online, stations are reminded that third-parties are now able to easily review and confirm the timeliness of Public File documents.  As with all other certifications in the application form, stations must accurately respond and be prepared to provide documentation supporting their certifications if later requested by the FCC.

EEO

Depending on staff size, one of the items stations must certify is that they have timely placed in their Public Inspection File, as well as on their website, the annual Equal Employment Opportunity (“EEO”) Public File report.  Certain stations must also certify that they filed their EEO Mid-Term Report with the FCC.

Generally, a station that is part of a Station Employment Unit that employs fewer than five full-time employees is exempt from these requirements.  However, at license renewal time, all stations, regardless of staff size, must file FCC Form 2100, Schedule 396, the Broadcast EEO Program Report.  Stations in a Station Employment Unit with fewer than five full-time employees will only need to complete part of the form before filing it.  As a practical matter, because of the mechanics of the FCC’s filing system, an applicant will generally be unable to file its license renewal application until it can provide in that form the file number generated by the FCC when the station’s completed Schedule 396 is filed.

Certifications for Full Power TV and Class A TV Stations Only

While there is significant overlap between the certifications included in both the radio and TV license renewal applications, an important portion of the form specific to full power TV and Class A TV stations concerns certifications regarding the station’s children’s television programming obligations.

The Children’s Television Act of 1990 requires commercial full power TV and Class A TV stations to: (1) limit the amount of commercial matter aired during programming designed for children ages 12 and under, and (2) air programming responsive to the educational and informational needs of children ages 16 and under.  While stations have been required to submit Children’s Television Programming Reports and commercial limits certifications demonstrating their compliance with these requirements on a quarterly or annual basis,[1] the license renewal application requires applicants to further certify that these obligations have been satisfied and documented as required over the entire license term and to explain any instances of noncompliance.  Stations can find additional information on the children’s television programming and reporting obligations in our most recent Children’s Television Programming Advisory.

Although noncommercial TV stations are not subject to commercial limitations or required to file Children’s Television Programming Reports, such stations are required to air programming responsive to children’s educational and informational needs.  In preparation for license renewal, such stations should therefore ensure they have documentation demonstrating compliance with this obligation in the event their license renewal is challenged.

For Class A television stations, in addition to certifications related to children’s television programming, the application requires certification of compliance with the Class A eligibility and service requirements under Section 73.6001 of the FCC’s Rules.  Specifically, such stations must broadcast a minimum of 18 hours a day and average at least three hours per week of locally produced programming each quarter to maintain their Class A status.  Applicants must certify that they have and will continue to meet these requirements.

Post-Filing License Renewal Announcements

In prior license renewal cycles, stations were required to give public notice of a license renewal application both before and after the filing of that application. For the current cycle, the FCC eliminated the pre-filing public notices and modified the procedures for post-filing notices.  These changes modify the timing and number of on-air announcements required, replace newspaper public notice requirements with an online notice, and revise the text of the announcements themselves.

As such, full power commercial and noncommercial radio and LPFM stations, and full power and Class A TV stations, as well as LPTV stations capable of local origination, must broadcast a total of six post-filing license renewal announcements over four consecutive weeks, with at least one airing each week and no more than two airing in any week (each of which must air on different days).  The first such announcement must air within five business days after the FCC has issued a Public Notice announcing its acceptance of the application for filing.

On-air post-filing announcements must be broadcast on a weekday (Monday through Friday) between 7:00 am and 11:00 pm local time based on the applicant station’s community of license.  The text of the announcement is as follows:

On [date], [applicant name], licensee of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license.  Members of the public wishing to view this application or obtain information about how to file comments and petitions on the application can visit publicfiles.fcc.gov, and search in [station call sign’s] public file.

For those types of stations that do not have Public Inspection Files, the on-air post-filing announcement should instead be:

On [date], [applicant name], licensee of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license.  Members of the public wishing to view this application or obtain information about how to file comments and petitions can visit www.fcc.gov/stationsearch, and search in the list of [station call sign’s] filed applications.

For television broadcast stations, when these on-air announcements are presented aurally, the public notice text must also be presented visually onscreen.

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 contact counsel regarding how to give the required public notice.

Certification of Compliance

Within seven days of the broadcast of the last required announcement, full power radio and TV station and Class A TV station license renewal applicants should complete the attached Statement of Compliance and place it in the station’s Public Inspection File.  LPFM and LPTV license renewal applicants should complete the attached Statement of Compliance and place it in their station records file.

Online Public Notice Required for FM Translator, TV Translator, and Certain LPTV Stations

FM translator, TV translator, and LPTV stations not capable of local origination are not required to broadcast post-filing announcements, and have typically been required to publish public notices in a local newspaper instead.  The FCC has eliminated the newspaper publication requirement in favor of online notices, requiring such stations to publish written notice on a station-affiliated website upon filing a license renewal application.

A prominently displayed link or tab that reads “FCC Applications” must be posted on the station website homepage, and link to a separate page containing the following notice:

On [date], [applicant name], [permittee / licensee] of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license. Members of the public wishing to view this application or obtain information about how to file comments and petitions on the application can visit [insert hyperlink to application link in applicant’s online Public Inspection File or, if the station has no online Public Inspection File, to application location in the Media Bureau’s Licensing and Management System].

This separate page must also include the date the page was last revised.  The notice and corresponding link to the renewal application must be posted within five business days after the FCC has issued a Public Notice announcing its acceptance of the application for filing and remain on the station’s website for 30 consecutive days.  At the end of the 30-day period, the notice can be removed, and if no other applications requiring online notice are pending, the webpage should be updated to include the following text instead:

There are currently no applications pending for which online public notice is required.

The rules contain specific requirements as to where station applicants that do not have websites should post their announcement. These stations should consult with counsel on the proper online notice procedures.

After publishing the notice, the licensee should complete and execute a Statement of Compliance regarding that publication and place the Statement of Compliance in its Public Inspection File.  While FM translator, TV translator, and LPTV station licensees are not required to keep a Public Inspection File, they are required to maintain and make available to FCC representatives a station records file that contains their current authorization and copies of all FCC filings and correspondence with the Commission.  For them, the completed Statement of Compliance should be included in their station records file.

[1] Note that in 2019, the FCC changed the obligation to file the Children’s Television Programming Report and place the commercial limits certification in the Public Inspection File from a quarterly requirement to an annual obligation.

The full article, along with examples of compliance statements, can be found at License Application Renewal Reminder.