Articles Posted in Television

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Yesterday, the FCC released its Fourth Report and Order, Order on Reconsideration, and Second Further Notice of Proposed Rulemaking in its Review of the Commission’s Broadcast and Cable Equal Employment Opportunity Rules and Policies docket, which was first opened in 1998.

The Report and Order portion of the document reinstates the requirement that broadcasters file FCC Form 395-B, the Annual Employment Report.  The FCC will then make the reports publicly available on a station by station basis on its website.

Since the FCC suspended use of the form in 2001 following adverse court decisions, it has been updated to require stations to first sort employees into ten job categories (Executive/Senior Level Officials and Managers, First/Mid-Level Officials and Managers, Professionals, Technicians, Sales Workers, Administrative Support Workers, Craft Workers, Operatives, Laborers and Helpers, and Service Workers), then indicate the number of employees in each of those job categories who are Male/Female; Hispanic/Latino; or Non-Hispanic White, Black/African American, Native Hawaiian/Other Pacific Islander; Asian, American Indian/Alaska Native, or Two or More Races.

In addition, the FCC will modify the Form 395-B to add “a mechanism to account for those who identify as gender non-binary.”  As a result, the form will require a new approval by the Office of Management and Budget before its use can resume.  The report will be due each year on September 30.  The data is to be taken from one payroll period between July and September, with the same payroll period used each year.  The Order indicates that the Media Bureau will announce filing procedures by a separate Public Notice when OMB clearance is received.

The FCC also amended its EEO rule and adopted some clarifications requested by state broadcasters associations twenty years ago in a Petition for Reconsideration, amending its rules to specifically state that the information in the Form 395-B “will be used only for purposes of analyzing industry trends and making reports to Congress. Such data will not be used for the purpose of assessing any aspect of an individual broadcast licensee’s or permittee’s compliance with the nondiscrimination or equal employment opportunity requirements….”  However, in seeking to defend the constitutionality of the requirement, the FCC pointedly noted that “any attempt by a non-governmental third party to use the publicly available Form 395-B data to pressure stations in a non-governmental forum would not implicate any constitutional rights of the station.”

The FCC rejected arguments by broadcasters that the FCC should not collect this data at all, and that if collected, the FCC should not release it publicly or on a station-attributable basis due to the risk of third-party pressure on stations with regard to their employment practices, which was found to create unconstitutional harms in two separate cases by the United States Court of Appeals for the District of Columbia Circuit more than 20 years ago.  The FCC responded that it has a significant public interest in employment in the industry and that Congress, in the Communications Act of 1992 (which predated the court decisions) “ratified” the FCC’s authority to collect such data by mandating that the then-existing EEO regulations and forms as applied to television stations not be modified.  The FCC stated that public release of the data will ensure that it is accurate, maximize its utility, and alleviate concerns about the FCC’s accidental release of confidential data (by making it not confidential).  It claimed that there was no record evidence of Form 395-B data being used to pressure broadcasters (despite two court decision to the contrary), and stated that the Commission “will make every effort to dismiss as quickly as possible any petitions, complaints, or other filings that rely on a station’s Form 395-B filing….”

In the Further Notice of Proposed Rulemaking portion of the document, the FCC proposed reinstating and making the same sorts of changes to the Form 395-A as it adopted for the Form 395-B.  The Form 395-A is similar to the Form 395-B, but applies to MVPDs rather than broadcasters.

The two Republican Commissioners dissented from the item, saying that had the Commission simply agreed to broadcasters’ request that the information not be released publicly in an attributable manner, they would have voted in favor of reinstating the form.  Each pointed to foreseeable or existing record evidence of pressure likely to be placed on broadcasters by third parties that find fault with a station’s staff demographics after public release of the information, and concluded that the Order raises the same constitutional concerns as the prior FCC rules that were invalidated by the D.C. Circuit more than 20 years ago.

The new requirement will apply to Station Employment Units with five or more full time employees.  The FCC notes that stations should use the time they have while OMB is reviewing the modifications to the form to develop whatever surveys or recordkeeping procedures they will need to gather the information requested by the form.  The instructions to the currently-approved version of the form (to which the Order links) state that employee self-identification of racial and ethnic information is the preferred method.  If an employee refuses to  provide that information, the instructions state that employment records or “observer identification” can be used instead.

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February 1 is the deadline for broadcast stations licensed to communities in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma to place their Annual EEO Public File Report in their Public Inspection File and post the report on their station website. 

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.

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. Continue reading →

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

  • TV Broadcaster Faces $150,000 Fine for Failure to Negotiate Retransmission Consent in Good Faith
  • Sponsorship ID and Political File Violations Lead to $500,000 Consent Decree for Radio Broadcaster
  • $26,000 Fine for Georgia Radio Station EEO Rule Violations

 FCC Finds That TV Broadcaster Failed to Negotiate Retransmission Consent in Good Faith

Responding to a complaint by a cable TV provider, the Federal Communications Commission found that a broadcaster failed to negotiate retransmission consent for its New York TV station in good faith.  The enforcement action involves a Notice of Apparent Liability for Forfeiture (NAL) proposing a $150,000 fine against the broadcast licensee.  The licensee was represented in the negotiations by another broadcaster who provides services to the station at issue.

Under Section 325 of the Communications Act of 1934, as amended (the Act), TV stations and multichannel video programming distributors (i.e., cable and satellite TV providers) have a duty to negotiate retransmission consent agreements in good faith.  In a 2000 Order, the FCC adopted rules relating to good faith negotiations, setting out procedures for parties to allege violations of the rules.  The Order established a two-part good faith negotiation test.  Part one of the test is a list of objective negotiation standards, the violation of any of which is deemed to be a per se violation of a party’s duty to negotiate in good faith.  Part two of the test is a subjective “totality of the circumstances” test in which the FCC reviews the facts presented in a complaint to determine if the combined facts establish an overall failure to negotiate in good faith.

In this case, the cable provider complained that the broadcaster, through its negotiator, proposed terms for renewal of the parties’ agreement that would have prohibited either party from filing certain complaints with the FCC after execution of the agreement.  For its part, the broadcaster did not dispute that it proposed the terms in question, but argued that (1) “releasing FCC-related claims or withdrawing FCC complaints is not novel,” (2) “parties typically agree to withdraw good faith negotiation complaints once retransmission consent agreements have been reached,” and (3) no violation could have occurred since the proposed term was not included in the final agreement reached.

The FCC disagreed, stating that its 2000 Order made clear that proposing terms which foreclose the filing of FCC complaints is a presumptive violation of the good faith negotiation rules.  The FCC also disagreed with the broadcaster’s contention that terms not included in a final agreement could not violate the good faith rules.  Finally, while the licensee argued that it was not responsible for actions taken by the party negotiating on its behalf, the FCC reiterated that licensees are responsible for the actions of their agents, and the licensee in this case delegated negotiation of the agreement to its agent.

Relying upon statutory authority and its Forfeiture Policy Statement, the FCC arrived at a proposed fine of $150,000.  The Forfeiture Policy Statement establishes a base fine of $7,500 for violating the cable broadcast carriage rules, and the FCC asserted that the alleged violations continued for 10 days (the time period from first proposing the terms at issue and the signing of the agreement without them), yielding a base fine of $75,000.  The FCC then exercised its discretion to upwardly adjust the proposed fine to $150,000, asserting that the increase was justified based on the licensee’s financial relationship with a large TV company, its prior rule violations, and the FCC’s view that a larger fine was necessary to serve as a meaningful deterrent against future violations.

Repeated Violations of Sponsorship ID and Political File Rules Lead to $500,000 Consent Decree

A large radio station group entered into a consent decree with the FCC’s Media Bureau, agreeing to pay a $500,000 civil penalty for two of its stations’ violations of sponsorship identification laws and the Political File rule.

Section 317(a)(1) of the Act and Section 73.1212(a) of the FCC’s Rules require broadcast stations to identify the sponsor of any sponsored content broadcast on the station.  This requirement applies to all advertising, music, and any other broadcast content if the station or its employees received something of value for airing it.  The FCC has said that the sponsorship identification laws are “grounded in the principle that listeners and viewers are entitled to know who seeks to persuade them . . . .” Continue reading →

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The deadline to file the 2023 Annual Children’s Television Programming Report with the FCC is January 30, 2024, reflecting programming aired during the 2023 calendar year.  In addition, commercial stations’ documentation of their compliance with the commercial limits in children’s programming during the 2023 calendar year must be placed in their Public Inspection File by January 30, 2024.

Overview

The Children’s Television Act of 1990 requires full power and Class A television stations to: (1) limit the amount of commercial matter aired during programs originally produced and broadcast for an audience of children 12 years of age and under, and (2) air programming responsive to the educational and informational needs of children 16 years of age and under.  In addition, stations must comply with paperwork requirements related to these obligations.

Since its passage, the FCC has refined the rules relating to these requirements a number of times.  The current rules provide broadcasters with flexibility that prior versions of the rules did not in scheduling educational children’s television programming, and modify some aspects of the definition of “core” educational children’s television programming.  Quarterly filing of the commercial limits certifications and the Children’s Television Programming Report have been eliminated in favor of annual filings.

Commercial Television Stations

Commercial Limitations

The FCC’s rules require that stations limit the amount of “commercial matter” appearing in programs aimed at children 12 years old and younger to 12 minutes per clock hour on weekdays and 10.5 minutes per clock hour on the weekend.  The definition of commercial matter includes not only commercial spots, but also (i) website addresses displayed during children’s programming and promotional material, unless they comply with a four-part test, (ii) websites that are considered “host-selling” under the Commission’s rules, and (iii) program promos, unless they promote (a) children’s educational/informational programming, or (b) other age-appropriate programming appearing on the same channel.

Licensees must upload supporting documents to the Public Inspection File to demonstrate compliance with these limits on an annual basis by January 30 each year, covering the preceding calendar year.  Documentation to show that the station has been complying with this requirement can be maintained in several different forms.  It must, however, always identify the specific programs that the station believes are subject to the rules, and must list any instances of noncompliance.

Core Programming Requirements

To help stations identify which programs qualify as “educational and informational” for children 16 years of age and under, and determine how much of that programming they must air to demonstrate compliance with the Children’s Television Act, the FCC has adopted a definition of “core” educational and informational programming, as well as three different safe harbor renewal processing guidelines that establish a minimum of 156 hours of Core Programming that stations must air each year to receive a staff-level license renewal grant.  Stations should document all Core Programming that they air, even where it exceeds the safe harbor minimums, to best present their performance at license renewal time. Continue reading →

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If there was any doubt that the late-2023 confirmation of Anna Gomez as the fifth commissioner would bring a flurry of FCC activity in 2024, the FCC has laid those questions to rest. In addition to a $150,000 good faith NAL, $500,000 sponsorship ID consent decree, $26,000 EEO report NAL, and some public file NALs, the FCC this week released two Notices of Proposed Rulemaking of potential interest to broadcast licensees.

Continue reading →

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With the Iowa Republican Caucus happening in mid-January and dozens of additional primaries and caucuses to follow before the 2024 general election, broadcasters need to be aware of the use of artificial intelligence (AI), deepfakes and synthetic media in political advertising and the various laws at play when such content is used. These laws seek to ensure that viewers and listeners are made aware that the person they are seeing or the voice they are hearing in political advertising may not be who it looks like or sounds like. Campaigns, political committees, super PACs, special interest groups and other political advertisers are using AI, deepfakes and synthetic media in advertisements, making it easier to mislead and misinform viewers and listeners.

Continue reading →

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Bookending the Christmas weekend, the FCC’s long-awaited 2018 Quadrennial Review Report and Order was adopted on Friday, December 22 and released Tuesday, December 26.  The Commission is required by Congress to conduct a regulatory review of its broadcast ownership rules every four years and was directed by the U.S. Court of Appeals for the D.C. Circuit to conclude this particular review no later than December 27 (or to show cause why that couldn’t be done).

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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:

  • Mobile Service Provider Enters $23.5 Million Consent Decree to Resolve Lifeline and Emergency Broadband Benefit Program Investigation
  • Texas TV Station Receives $13,000 Penalty for Unauthorized Operation and Late License Application
  • Radio Station License Revoked Over Eight Years of Unpaid Regulatory Fees

Investigation Into Lifeline and Emergency Broadband Benefit Program Violations Leads to $23.5 Million Penalty for Mobile Phone Provider

A major mobile virtual network operator and mobile wireless telecommunications services provider entered into a Consent Decree with the FCC’s Enforcement Bureau (the “Bureau”) resolving an investigation into whether the provider violated the Commission’s rules for its Lifeline and/or Emergency Broadband Benefit (EBB) programs by claiming credit for subscribers that were ineligible for these programs.  These programs federally subsidize the cost of providing various services to qualifying subscribers.  The company provided Lifeline telephone service as an Eligible Telecommunications Carrier (ETC) and broadband internet access service under the EBB program.

The Bureau investigated whether the phone service provider (a) improperly sought and/or obtained Lifeline or EBB financial support from the government for ineligible subscribers, or failed to de-enroll subscribers who lacked eligibility documentation or whose applications were supported by falsified tax forms; (b) sought and/or obtained Lifeline support/EBB support for subscribers who didn’t use a Lifeline-supported/EBB-supported service; and (c) directly or indirectly compensated field enrollment representatives based on earning a commission, rather than being paid on an hourly basis.

Under the Commission’s Lifeline rules, ETCs must satisfy specific requirements to be eligible to receive federal Lifeline dollars, and may only receive such support “based on the number of actual qualifying low-income customers listed in the National Lifeline Accountability Database that the eligible telecommunications carrier serves directly as of the first of the month.”  Similarly, EBB providers may claim government financial support for providing discounted broadband internet access service during the emergency period of the EBB program based on the number of qualifying low-income households that the provider serves each month.

As part of these programs, participating providers were required to develop policies and procedures to ensure that their EBB households were indeed eligible to receive the discount benefit.  For example, two criteria for EBB qualification are whether the household income falls below a certain threshold or whether at least one member of the household has experienced a documented substantial loss in income during the emergency period.

Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by January 10, 2024, reflecting information for the months of October, November, and December 2023.

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.

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 January 10, 2024, covering the period from October 1, 2023 through December 31, 2023. Continue reading →

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The origins of the annual Pillsbury Broadcasters’ Calendar have been lost to time, but it’s safe to say the new 2024 version is at least the 50th edition of this guidebook for the broadcast industry.  While your own personal calendar may be full of “happy dates” like vacations and graduations,  the 2024 Broadcasters’ Calendar is full of deadlines that prevent your happy dates from becoming very, very sad dates.  Keeping close track of these dates and their impact permits a licensee to remain a licensee, and a broadcast employee to remain an employee, allowing you to keep taking those vacations and paying those school tuition bills.

The good news for broadcasters is that while 2024 will be a major year for political advertising (and the extensive Political File paperwork that comes with it; notice how everything positive in broadcasting comes with a regulatory cloud?), it is an off-year for regulatory deadlines.  2024 marks a brief respite between FCC license renewal cycles, the off-year for biennial ownership reports, and television broadcasters completed their three-year must-carry elections in 2023.

Of course, that still leaves dozens of deadlines of all kinds that broadcasters must meet in the coming year, and it is certainly possible that some of those may be moved and a few new ones added before it is time for the 2025 Broadcasters’ Calendar.  Until then, keep a copy of the 2024 edition handy, and an eye on CommLawCenter for changes the coming year may bring.