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:

  • Faith-Based Station Settles With FCC After Preempting KidVid Programming With Fundraising
  • Arizona LPFM Gets License Reinstated in Consent Decree
  • Christmas Tree’s Harmful Interference Results in Consent Decree With LED Company

Gotta Have Faith: Washington TV Station That Preempted Children’s Programming With Fundraising Settles With FCC

The FCC recently entered into a Consent Decree with the licensee of a faith-based Washington TV station for inaccurate Children’s Television Programming Reports and for failing to provide a sufficient amount of “core” children’s educational programming.

Pursuant to the Children’s Television Act of 1990, the FCC’s children’s television programming (“KidVid”) rules require TV stations to provide programming that “serve[s] the educational and informational needs of children.”  Under the KidVid guidelines in place at the time of the alleged violations, stations were expected to air an average of at least three hours per week of “core” educational children’s programming per program stream.  To count as “core” programming, the programs had to be regularly-scheduled, at least 30 minutes in length, and broadcast between the hours of 7:00 a.m. and 10 p.m.  A station that aired somewhat less than the averaged three hours per week of core programming could still satisfy its children’s programming obligations by airing other types of programs demonstrating “a level of commitment” to educating children that is “at least equivalent” to airing three hours per week of core programming.  The FCC has since acknowledged that this alternative approach resulted in so much uncertainty that stations rarely invoked it.

Stations must file a Children’s Television Programming Report (currently quarterly, soon to be annually) with the FCC demonstrating compliance with these guidelines.  The reports are then placed in the station’s online Public Inspection File.  Upon a station’s application for license renewal, the Media Bureau reviews these reports to assess the station’s performance over the previous license term.  If the Media Bureau determines that the station failed to comply with the KidVid guidelines, it must refer the application to the full Commission for review of the licensee’s compliance with the Children’s Television Act of 1990.  As we have previously discussed, the FCC recently made significant changes to its KidVid core programming and reporting obligations, much of it having gone into effect earlier this month.

During its review of the station’s 2014 license renewal application, the Media Bureau noticed shortfalls in the station’s core programming scheduling and inaccuracies in the station’s quarterly KidVid reports over the previous term.  It therefore issued a Letter of Inquiry to the station to obtain additional information.  In response, the station acknowledged that it had in fact preempted core programming with live fundraising, but asserted that it still met its obligations through other “supplemental” programming, albeit outside of the 7 a.m. to 10 p.m. window for core programming.  Inaccuracies in its reports were blamed on “clerical errors.”

The Media Bureau concluded that the station’s supplemental programming did not count toward the station’s core programming requirements.  Without getting into the merits of the programming itself, the Media Bureau found the programming insufficient because it was aired outside of the core programming hours.  The Media Bureau also concluded that the station had provided inaccurate information on several of the quarterly reports.

In response, the FCC and the station negotiated a Consent Decree under which the station agreed to pay a $30,700 penalty to the U.S. Treasury and implement a three-year compliance plan.  In return, the FCC agreed to terminate its investigation and grant the station’s pending 2014 license renewal application upon timely payment of the penalty, assuming the FCC did not subsequently discover any other “impediments” to license renewal.

Radio Reset: LPFM License Reinstated (for Now) in Consent Decree Over Various Licensing and Underwriting Violations

In response to years of ownership, construction, and other problems that culminated in its license being revoked in 2018, the licensee of an Arizona low power FM (“LPFM”) station entered into a Consent Decree with the Media Bureau and the Enforcement Bureau. Continue reading →

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

Content of the Quarterly List

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

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

Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations. The lists also provide important support for the certification of Class A television station compliance discussed below. We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness. Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during the license term. Stations should include in the Quarterly Lists as much issue-responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs. Taking extra time now to provide a thorough Quarterly List will help reduce risk at license renewal time.

It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their Public Inspection File. The FCC’s base fine for missing Quarterly Lists is $10,000.

Preparation of the Quarterly List

The Quarterly Lists are required to be placed in the Public Inspection File by January 10, April 10, July 10, and October 10 of each year. The next Quarterly List is required to be placed in stations’ Public Inspection Files by October 10, 2019, covering the period from July 1, 2019 through September 30, 2019. Continue reading →

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

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

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

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

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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.

October 1 is the deadline for broadcast stations licensed to communities in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, the Mariana Islands, Missouri, Oregon, Puerto Rico, the Virgin Islands, and Washington 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 application submissions due on October 1.

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the Public Inspection Files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application. The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities. 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. This publication is available at: http://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

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

Consistent with the above, October 1, 2019 is the date by which Nonexempt SEUs of radio and television stations licensed to communities in the states identified above, including Class A television stations, must (i) place their Annual EEO Public File Report in the Public Inspection Files of all stations comprising the SEU, and (ii) post the Report on the websites, if any, of those stations. LPTV stations are also subject to the broadcast EEO Rule, even though LPTV stations are not required to maintain a Public Inspection File. Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request. Therefore, if an LPTV station has five or more full-time employees, or is otherwise part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file.

These Reports will cover the period from October 1, 2018 through September 30, 2019. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before September 30, 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 October 1, 2018 through September 21, 2019 for this year’s report (cutting it off up to ten days prior to September 30, 2019), then next year, the Nonexempt SEU must use a period beginning September 22, 2019 for its report. Continue reading →

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

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

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Earlier today, the FCC released a Notice of Apparent Liability for Forfeiture against CBS for false EAS alerting, which is FCC-speak for “CBS, tell us why we shouldn’t fine you $272,000 for airing a fake EAS alert tone.”  We’ve written on a number of occasions about FCC fines for airing false EAS alert tones (see, for example, here, here and here).  We’ve also written about false EAS alerts that were unintentionally aired, with my personal favorite in that category being EAS Alerts and the Zombie Apocalypse Make Skynet a Reality.  However, fines for airing false EAS tones have become sufficiently common in recent years that we have largely stopped writing about them.

Today’s decision was a bit different, however.  Section 11.45 of the FCC’s Rules provides that “No person may transmit or cause to transmit the EAS codes or Attention Signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency or authorized test of the EAS….” False EAS alerts have typically popped up in commercials as a way of getting jaded viewers’ and listeners’ attention, which makes them challenging to successfully defend.  After all, the advertiser in that scenario is typically counting on the alert tone to draw attention to the ad for reasons entirely unconnected to public safety.  While the advertiser might claim that this prohibition violates its First Amendment rights, that’s not likely a winning argument since commercial speech receives reduced First Amendment protection (which is why, for example, the Federal Trade Commission can prohibit false advertising).

But what happens when the use of the alert tone is not in an ad?  In the case of CBS, the FCC succinctly describes the offending content (which you can also view here) as:

CBS admits that it transmitted the program Young Sheldon on April 12, 2018, which included a “tornado warning sound effect integral to a story line about a family’s visceral reaction to a life‐threatening emergency and how surviving a tornado changed family relationships.”

While the FCC acknowledged that CBS made efforts to ensure the tone was a simulation that did not trigger EAS equipment, the FCC noted that Section 11.45 still prohibits simulations of an EAS tone.  Among other defenses CBS raised in response to the FCC’s assertion that the broadcast violated Section 11.45, it argued that no viewer would be so confused as to think it was a real emergency, and that the broadcast is protected by the First Amendment to boot.  That’s where this case gets interesting.

The FCC is effectively claiming that CBS falsely yelled “fire” in a crowded theater, which is the well-established exception to First Amendment protections.  CBS, on the other hand, is countering that it only yelled “boogeyman”, and that any reasonable viewer isn’t going to panic, because the public knows the difference between real and fictional things.

For students of the First Amendment, the part that first catches the eye is the absolutism of the Commission’s decision.  Only very rarely does the First Amendment permit blanket bans on particular speech in all circumstances.  While you may be prosecuted for yelling “fire” in a crowded theater, you can, for example, say it if you are in command of a firing squad.

The FCC’s treatment of the EAS tone as sacrosanct admittedly makes it difficult for a drama to realistically depict an emergency and people’s reaction to it.  Whenever a particular type of content is forbidden in all circumstances except where the government specifically authorizes it, First Amendment issues inevitably arise.

In today’s decision, the FCC presented three reasons to justify the blanket prohibition.  These would be to “(1) prevent consumer confusion at the moment of a broadcast of the Tones, (2) prevent the inadvertent technical triggering of additional EAS warnings, and (3) prevent the accretion of non-emergency uses of the Tones that will dull consumers’ attentiveness to the public-safety import of the sounds.”  While the FCC had to concede that CBS’s efforts to modify the tone had been successful in preventing the triggering of additional EAS warnings, it was not convinced that consumer confusion could not have occurred, and was certainly concerned about the public getting alert fatigue.

But it’s not really the fact that the FCC rejected CBS’s arguments that is of interest to broadcasters, but how it was done.  First, the Commission noted the now archaic (but admittedly not yet overruled) court precedent that content on broadcast stations receives a lower level of First Amendment protection than all other media.  Whether that still makes sense in the modern era, the FCC’s argument creates the very real possibility that false EAS alert tones could be forbidden on broadcast TV, where the legal standard of First Amendment review is “intermediate scrutiny”, but be constitutionally protected on cable TV, where restrictions on content must meet the far tighter “strict scrutiny” standard.  Since EAS alerts are also transmitted by cable systems, however, the risk of public confusion and alert fatigue is the same on cable as it is on broadcast TV.  That raises the question of how strong the government’s interest in prohibiting false EAS alert tone simulations on broadcast TV can be if those same false alert tones might be constitutionally protected on cable TV programs.

Seeing that trap, the FCC tried to avoid it by arguing that even though First Amendment protections are reduced for CBS as a broadcaster, it doesn’t matter, because the government’s interest in preventing public confusion and alert fatigue is so compelling as to survive strict scrutiny under the First Amendment, allowing the rule to also be enforced against cable TV providers.

Public safety can certainly be a compelling government interest.  However, to survive strict scrutiny, a regulation must also be “narrowly tailored” to further the government’s compelling interest, and be the “least restrictive means” for doing so.  A blanket government ban on using even a simulation of the EAS tone would probably have a tough time surviving strict scrutiny under the First Amendment, but if the FCC could argue to a court that there is something uniquely valuable about the public hearing the tone only when there is an actual emergency, a court might well agree.

But that’s where the FCC may have undercut its own argument.  In July 2018, the FCC modified its rules to allow the airing of “the EAS Attention Signal and a simulation of the EAS codes as provided by FEMA” where they are used in EAS Public Service Announcements provided by “federal, state, and local government entities or non-governmental organizations, to raise public awareness about emergency alerting.”  To avoid confusion, such messages must state that the tone is being presented in the context of a PSA for the purpose of educating the public about EAS.

It would be challenging for the FCC to successfully argue in court that a single use of a simulated EAS tone creates listener fatigue when it has just authorized unlimited use of the actual tone in PSAs.  Similarly, the FCC weakened its argument that any non-emergency use of the tone inevitably leads to public confusion, when, by requiring the PSAs to contain a disclaimer letting the public know it is not an emergency, the FCC concedes that it is possible to present the tone (or a simulation thereof) in a manner that does not confuse the public.

That would seem to make it a a finding of fact as to whether a particular use of a simulated tone is likely to cause public confusion versus public education, and to be candid, a dramatic representation of a family reacting to an EAS tone probably conveys the importance of the tone far better than a PSA that most viewers will fast-forward past (or miss while getting a sandwich).  Admittedly, that is a slippery slope, but First Amendment analysis perpetually lives on that slope.

Regardless of how a court might balance these competing interests, the real irony of the whole affair is that Young Sheldon is set in Texas circa 1989-90.  The Emergency Alert System was not activated until 1997, meaning that a realistic portrayal of a tornado watch in 1990 would have featured the much different twin-frequency monotone Attention Signal of the earlier Emergency Broadcast System.  What’s the irony, you say?  The FCC’s restrictions on using the EBS tone outside of an emergency were eliminated twenty years ago.  Young Sheldon could have been both historically accurate and FCC-compliant had it just used the EBS tone instead.

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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:

  • Big-4 Network, Among Others, Settles With FCC Over Emergency Alert Tone Violations
  • Despite Self-Disclosure, Sponsorship ID Violations Land $233,000 Proposed Fine
  • Topeka TV Licensee Enters Into Consent Decree Over Late-Filed KidVid Reports

False Alarm: FCC Enters Into Multiple Consent Decrees Over Emergency Alert Tone Violations

In a single day last week, the FCC announced four separate Consent Decrees in response to unauthorized uses of the Emergency Alert System (“EAS”) tone across various media outlets.  The parent companies of a Big-4 broadcast network and two cable channels, as well as the licensee of two southern California FM stations, each agreed to significant payments to settle investigations into violations of the FCC’s EAS rules.  According to the Consent Decrees, unauthorized emergency tones have reached hundreds of millions of Americans in the past two years alone.

The Emergency Alert System is a nationwide warning system operated by the FCC and the Federal Emergency Management Agency that allows authorized public agencies to alert the public about urgent situations, including natural disasters and other incidents that require immediate attention.  Once the system is activated, television and radio broadcasters, cable television operators, and other EAS “participants” begin transmitting emergency messages with distinct attention tones.  These tones consist of coded signals that are embedded with information about the emergency and are capable of activating emergency equipment.  Wireless Emergency Alerts (“WEA”), which deliver messages to the public via mobile phones and other wireless devices, also use attention signals.

Emergency tones may not be transmitted except in cases of: (1) actual emergencies; (2) official tests of the emergency system; and (3) authorized public service announcements.  In an accompanying Enforcement Advisory published on the same day as the Consent Decrees, the FCC’s Enforcement Bureau noted that wrongful use of the tones can result in false activations of the EAS, as well as “alert fatigue,” in which “the public becomes desensitized to the alerts, leading people to ignore potentially life-saving warnings and information.”

For the Big-4 network, it all started with a joke.  Around the time of last year’s nationwide EAS test, a late-night network talk show parodied the test in a sketch that incorporated emergency tones.  According to the Consent Decree, the network’s programming reaches almost all US television households through hundreds of local television affiliates, as well as through the network’s owned and operated stations.  Shortly after the episode aired, the company removed the offending portions of the program from its website and other streaming sites and did not rebroadcast the episode.  Despite these remedial actions, the damage was already done; in response to the Enforcement Bureau’s investigation, the network’s parent company agreed to pay a $395,000 “civil penalty.”

The parent companies of two major cable channels entered into similar agreements.  In one instance from this past year, an episode of a popular show set in a zombie-infested post-apocalyptic world used simulated EAS tones on multiple occasions over the course of an hour.  That episode was transmitted on eight separate occasions over a two-month period.  According to the Consent Decree, within weeks of the episode’s debut, the Enforcement Bureau reached out to the network regarding the unauthorized uses of the tone and, after a brief investigation, the network’s parent company agreed to pay $104,000 to resolve the matter. Continue reading →

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

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

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

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

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

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

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

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

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

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

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

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As we noted in last week’s post, television stations eligible to file 2018 distant signal copyright royalty claims with the United States Copyright Royalty Board must do so by July 31, 2019.  While that due date still seems far away (especially to those accustomed to the FCC’s real-time electronic filing options) we remind filers to build in extra time well ahead of the end of the month.

Prior to filing electronically, eligible stations (i.e. 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 2018) or their representatives must first request to register for an account with the Copyright Royalty Board’s online filing system (“eCRB”).  After submitting an initial registration request, filers should expect to wait at least 1-2 business days before receiving a verification email allowing them to activate their eCRB account.  Only then can filers begin submitting claims electronically.  As a result, e-filers who expect to register on July 31 or even the day or two leading up to that date will almost certainly miss the filing window.  To complicate matters further, July 27-28 is a weekend, which will not count toward the registration wait time.

To avoid missing the filing cutoff, our recommendation for e-filing should come as no surprise to longtime readers: register and file as soon as possible!  Claimants that are unable to file electronically must adhere to the Copyright Royalty Board’s strict delivery rules, which include a narrow daily window for hand delivery and prohibit the use of overnight delivery services like FedEx.  As a result, the best bet is to submit a registration request today and file electronically no later than Monday, July 29, leaving room to file a physical copy should the need arise for any reason.

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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 application submissions due on August 1.

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the Public Inspection Files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application. The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities. 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. This publication is available at: http://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

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

Consistent with the above, August 1, 2019 is the date by which Nonexempt SEUs of radio and television stations licensed to communities in the states identified above, including Class A television stations, must (i) place their Annual EEO Public File Report in the Public Inspection Files of all stations comprising the SEU, and (ii) post the Report on the websites, if any, of those stations. LPTV stations are also subject to the broadcast EEO Rule, even though LPTV stations are not required to maintain a Public Inspection File. Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request. Therefore, if an LPTV station has five or more full-time employees, or is otherwise part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file.

These Reports will cover the period from August 1, 2018 through July 31, 2019. 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, 2018 through July 22, 2019 for this year’s report (cutting it off up to ten days prior to July 31, 2019), then next year, the Nonexempt SEU must use a period beginning July 23, 2019 for its report. Continue reading →