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Nevada Broadcasters Association

From Broadcast Law Blog Archive

David is a partner at the law firm of Wilkinson Barker Knauer LLP, practicing out of its Washington, DC office. He has represented broadcasters for over 30 years on a wide array of matters from the negotiation and structuring of station purchase and sale agreements to regulatory matters. His regulatory expertise includes all areas of broadcast law including the FCC’s multiple ownership limitations, the political broadcasting rules, EEO policy, advertising issues, and other programming matters and FCC technical rules.

The FCC issued a Public Notice today, announcing that its regulatory fee filing system was now taking payments – and that payments are due by 11:59 PM Eastern Time, on September 24. Yesterday, we indicated that the fees were due on September 30. We based that on a sentence in the FCC’s Order that said that was the deadline for the fees – but the FCC must have been talking about its deadline for collecting the fees, not the deadline for fee filers to pay the fees – as today’s Public Notice makes clear. So make sure you file before September 24 to avoid big penalties.

Broadcasters should review the Media Bureau’s Fee Filing Guide, available here.

Once upon a time, August was a quiet month in Washington, when everyone went on vacation. Sure, there are plenty of vacations that will happen this coming month, but it seems that regulatory activity no longer takes a break. For example, August 1 is the due date for the filing with the FCC of license renewals for all radio stations (including translators and LPFM stations) in North and South Carolina, and the filing of associated EEO forms for all full power radio stations in those states. With the renewal filing comes the obligation that these stations start airing, on August 1 and August 16, their post-filing announcements informing the public about the submission of the license renewal applications. Radio stations in Maryland, Virginia, West Virginia and the District of Columbia, who filed their renewals on or before June 2, also need to keep running their post-filing announcements on these same dates. Radio stations in Florida, Puerto Rico and the Virgin Islands, who are in the next license renewal group with their renewal applications to be filed by October 1, need to start broadcasting their pre-filing announcements this month, also to run on the 1st and 16th of the month. See our post here on pre-filing announcements.

Commercial and noncommercial full power and Class A Television Stations and AM and FM radio stations in California, Illinois, North Carolina, South Carolina, and Wisconsin that are part of an employment unit with five or more full-time employees must place their annual EEO public inspection file reports in their online public file. Links to those reports should also be placed on the home pages of these station’s websites, if they have a website. The effectiveness of these EEO public file reports, and the EEO programs of which they are a part, are being reviewed by the FCC in a proceeding started by a Notice of Proposed Rulemaking about which we wrote here. Comments on this notice asking for suggestions about how to make the EEO rules more effective are due August 21, with reply comments due by September 5.

August 1 is also the date for the next FCC open meeting, where the FCC will consider a rulemaking on changes to certain LPFM rules. The draft Notice of Proposed Rulemaking also proposes to phase out protections to Channel 6 TV stations from all FM stations, including LPFMs, that operate on the noncommercial portion of the FM band. The FCC thinks that TV digital operations have lessened the need for the protections to be afforded the Channel 6 TV stations from FM stations operating in the adjacent noncommercial FM band. We will write more about this proceeding assuming the FCC adopts the NPRM later this week as expected.

August 7 brings the next Nationwide Test of the EAS system. This test will concentrate on the “daisy chain” system used by broadcasters to relay alerts from one station to another across the country (see our post here). Thus, broadcasters’ performance will be under close scrutiny. Be sure that your system is working, and that you file the post-test ETRS Form 2 on August 7, reporting on whether or not your station successfully received and relayed the test message.

August 9 is the date for filing comments on the Department of Justice’s inquiry into whether changes should be made in the antitrust consent decrees that govern the operations of ASCAP and BMI.We wrote about that proceeding here. It is important to broadcasters because the consent decrees require these performing rights organizations to treat all broadcasters in the same manner, and to impose rates that are reasonable (and provide for court review if ASCAP or BMI cannot come to an agreement with broadcast groups as to whether their rates are reasonable). This is an important proceeding that could have significant financial ramifications on the broadcast industry.

Parts of the FCC’s new FM translator interference resolution process, including allowing translators to change to any available channel to resolve an interference complaint, will take effect on August 13. Other portions of the new rules (including the requirement that complaints about interference come from inside a full-power station’s 45 dbu contour and setting out the minimum number of complaints needed to sustain an interference complaint, require prior approval from the Office of Management and Budget before they can take effect.

Later in the month, we would also expect that the FCC will release its final decision on annual regulatory fees to be paid by broadcasters and all other FCC-regulated entities. As we wrote last month, the fees that the FCC initially proposed are being challenged by broadcasters as the proposed radio fees would increase significantly this year without evident explanation. This year TV regulatory fees are moving to a population coverage-based fee, instead of one based on the DMA in which the station operates. That has resulted in some stations’ proposed fees – especially some VHF stations in major markets – to significantly increase. We will be looking for this fee decision soon, as the fees need to be paid in September, before the October 1 start of the next government fiscal year.

As always, these are just some highlights of the regulatory issues that broadcasters will be looking at this month. Check with your own counsel or legal adviser to make sure that we have not omitted any dates that could be important to your operations this month.

The FCC yesterday released two public notices about the procedures to be used in the upcoming radio license renewal cycle. These actions were previewed by the FCC at the NAB Convention last week (see our article here). As we wrote here and here, the license renewal cycle begins with the filing of license renewal applications by stations in Maryland, the District of Columbia, Virginia and West Virginia that must be submitted by June 3 (as the June 1 deadline falls on a weekend, the deadline is extended to the next business day). Stations in these states should already be running their Pre-Filing Announcements on the 1st and 16thof the 2 months preceding the renewal filing (see our articles here and here).

The first of yesterday’s notices announces that the renewals will be filed in the FCC’s LMS database which was first used by radio broadcasters in connection with the filing of their last set of Biennial Ownership Reports. In addition to the license renewal form (now FCC Form 2100, Schedule 303-S), broadcasters will also have to submit a Broadcast Equal Employment Opportunity Program Report (LMS Form 2100, Schedule 396). The Public Notice says that the forms will be available by May 1. It also notes that, over time, other radio forms will migrate to the LMS database as the FCC leaves behind CDBS, the database that it has used for broadcasting for well over a decade.

The second Public Notice provides some more details about the renewal process. It makes clear that all stations, whether or not they have 5 full-time employees, will need to file both Schedule 303-S and Schedule 396. In connection with the EEO filing, stations with fewer than 5 full-time employees are only certifying that they have that number of employees, and reporting on whether there have been any EEO proceedings filed against them. The FCC also reminds broadcasters of their pre-filing announcement obligations referenced above and of their general duty to keep their online public file complete and up to date, confirming that if the online file is not complete by renewal time, fines are possible (see our articles here and here). For stations in the first renewal group, applications can be submitted any time after May 1.

Radio station operators should carefully review these new forms and their revised instructions and familiarize themselves with the workings of LMS if they have not already used that system. The upcoming renewal period is rapidly approaching, and these public notices make clear that the FCC will be closely monitoring your compliance with its rules.

The Notice of Proposed Rulemaking in the next Quadrennial Review of the FCC’s ownership rules was adopted in December and was published today in the Federal Register, starting the 60 day period for public comments. Comments on the NPRM will be due on April 29 with reply comments due on May 29. The FCC is looking at numerous issues, including one issue, the rules setting out the limits on the number of radio stations that one company can own in a market, that has not been reviewed in depth in recent Quadrennial Reviews. On the TV side, the FCC is again looking at local TV ownership (specifically combinations of Top 4 stations in a market and shared services agreements) and also at the dual network rule restricting common ownership of two of the Top 4 TV networks. In addition, the FCC is reviewing additional ideas on how to increase diversity in broadcast ownership. Today, let’s look at the FCC’s questions on the local radio ownership rules.

The review of the radio ownership rules may well be the most fundamental issue facing the Commission in this proceeding, as no real changes have been made in those rules since they were adopted as part of the 1996 Telecommunications Act. As we wrote here, the marketplace has certainly changed since 1996 – which was at least a decade before Google and Facebook became the local advertising giants that they now are; and before Pandora, Spotify, YouTube and many other web services offered by tech giants became competitors for the audience for music entertainment. And spoken word entertainment competition was also virtually non-existent – “audiobooks” were a niche product and the concept of a “podcast” would have been totally foreign when the current rules were written. So what are some of the questions about the radio ownership rules that are being asked by the FCC?

The current rules allow one entity to own up to 8 stations (no more than 5 of which can be in one “service” – either AM or FM – the “subcaps“) in the largest markets – markets with 45 or more stations. The limits on station ownership, and ownership in any service, decrease in steps depending on the number of stations in the market. In any market no matter how small, one owner can hold an AM and an FM, but once past that minimum, in the smallest markets, one owner cannot own more than half the stations in the market. Most fundamentally, the FCC asks in the NPRM if these limits are still justified or whether some other limits would be more appropriate. The NAB, for instance, has proposed that there be no limits on AM ownership at all, nor any limits on ownership of stations in markets below the Top 75 rated markets. In the Top 75 markets, the NAB proposes that one owner be allowed to own up to 8 FM stations, and up to 2 more if it successfully incubates a new broadcast owner (see our article here for more on the NAB proposal, and our article here for more on the FCC’s incubator rules).

In connection with this broader question of the limits to adopt, the FCC asks for comments on many more specific issues including:

  • Most fundamentally, the FCC asks whether “broadcast radio” is the relevant market to review when assessing whether the ownership limits still operate in the public interest, or if radio is no longer its own silo, but instead part of a broader media marketplace. In short, do radio stations only compete against other radio stations, or do they compete for listeners and advertising dollars with other media?
  • How do consumers view digital media? Do they see it as a substitute for local radio? Is it just free digital services that compete with radio, or are subscription services also competitors?
  • Would greater consolidation give broadcasters the ability to compete with other media, particularly digital media for listeners and advertisers? If so, how would more consolidated ownership promote more competition with the new media?
  • Would allowing one owner to acquire more stations in a market promote local programming or would it result in less localism?
  • Does In-Band-On-Channel Radio (more commonly known as HD radio, allowing one station to broadcast multiple digital program streams) already provide an effective way for broadcasters to get more voices in a market?
  • If the current limits on ownership are not retained, what limits should be substituted? Should ownership limits be based on numerical caps in markets with a particular number of stations, or should some other limitation (e.g. market or revenue share) be used? Should all stations count the same toward any limits (e.g. should a lower power Class A station count the same as a high power Class C FM station)? Should AM count the same as FM?
  • What effect would any change have on minority ownership of broadcast stations?
  • What would be the costs and financial benefits of allowing one owner to own more stations in a single market?

Obviously, the FCC is raising many issues in this proceeding, and parties have 60 days to provide the FCC with information to help guide its decision. The FCC asks for specific examples to illustrate the changes in the marketplace, and empirical data to back up assertions made in the proceeding. Expect the review of the radio ownership rules, where many broadcasters feel very strongly about the issues and the need for reform, to be a hot topic in Washington for the remainder of the year.

And watch for our summary of the other issues in the Quadrennial Review NPRM in the next few days.

As we wrote here, at the FCC’s December meeting, the FCC was scheduled to adopt an order eliminating the requirement that broadcasters post a physical copy of their licenses and other instruments of authorization at their control points or transmitter sites. In fact, the Commission adopted that order before the meeting, and it today published the order in the Federal Register, meaning that it is effective as of today. This order was adopted as part of the FCC’s Modernization of Media Regulation initiative. As a station’s licenses are now generally available online, the FCC stated that they saw no reason to require that they be posted at station locations not normally accessible to the public. So there is now one less regulatory requirement for broadcasters to worry about.

Yesterday, we wrote about upcoming deadlines for broadcasters, and noted that the FCC was going to be releasing an order providing further details on the deadlines for pleadings and other documents that were due during the government shutdown. That Public Notice was released on Tuesday, and further postponed many filing deadlines which fell during the shutdown. Filings that were due at the very beginning of the shutdown, from January 3-7, will still be due today, January 30, as noted in prior FCC releases. However, for documents due January 8 and after (in fact, through February 7), the new filing deadline will now be February 8. There is also a new deadline for updates to the online public file, including the Quarterly Issues Programs lists that were due in station’s public inspection filed by January 10, which will now be due by February 11. Quarterly Children’s Television reports to be filed at the FCC would presumably be due on the 8th, with other children’s television documents (including information about compliance with advertising limits in children’s programs), which are only placed in the public file, would have the February 11 deadline. Comments in proceedings such as the FCC’s proceeding on Class A AM stations will be covered by the new February 8 filing deadline. Responsive pleadings addressing any of the documents extended by this FCC order will also be extended to follow these new revised filing deadlines.

At the same time, the FCC announced that it would move the date of its February meeting up one week – the be held on February 14. The agenda for that February meeting is here – addressing all the issues that had been teed up for the January meeting. The January 30 meeting (now scheduled to begin at 12:30 pm ET) will end up being comprised of nothing more than announcements. For broadcasters, as we wrote yesterday, the FCC will likely abolish the need for filing the FCC Form 397 EEO mid-term report at its February 14 meeting. The FCC will also vote on a Notice of Proposed Rulemaking looking at the process for issuing new construction permits to noncommercial broadcast stations and LPFMs. Presumably, the February 14 date was to insure that the meeting would occur before the next potential shutdown, which could occur on February 15 if no budget deal is reached. So, for now, broadcasters have some more time to file documents that were delayed by this year’s first government shutdown.

Updated; 1/30/2019, 10:10 AM to note the different deadline for public file updates.

Just back from the shutdown, the FCC released an order denying the appeal of two LPFM advocacy groups who had appealed the denial of their petition seeking to block hundreds of new FM translators that will rebroadcast AM stations. We wrote about prior rejections of this petition by the Media Bureau here and here. Yesterday’s order rejected the petitioners’ application for review seeking consideration by the full Commission of the Bureau’s decisions. The petitioner had based their claim on an allegation that new translators could put undue limits on LPFM stations changing transmitter sites. But the petitioner never showed that any translator would specifically affect any LPFM station seeking to change site (and likely could not, as many new translators are in relatively rural areas where there are likely to be plenty of available spectrum for both translators and LPFM uses). As there had been no specific showing of any harm created by any of the challenged translator applications, and the petitioners had not shown that they represented any LPFM adversely affected by any translator application, the petition was again rejected for lack of standing. Given that so many AM stations are relying on these translators (and likely many have already been granted and built), this action should come as a relief to licensees who received grants of these translator applications.

With the reopening of the Federal government (at least for the moment), regulatory deadlines should begin to flow in a more normal course. All of those January dates that we wrote about here have been extended by an FCC Public Notice released yesterday until at least Wednesday, January 30 (except for the deadlines associated with the repacking of the TV band which were unaffected by the shutdown). So Quarterly Issues Programs lists should be added to the online public file by January 30, and Children’s Television Reports should be submitted by that date if they have not already been filed with the FCC. Comments on the FCC’s proceeding on the Class A AM stations are also likely due on January 30 (though the FCC promised more guidance on deadlines that were affected by the shutdown – such guidance to be released today).

February will begin with a number of normal FCC EEO deadlines. Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, NewJersey, NewYork, and Oklahoma that are part of an Employment Unit with 5 or more full-time employees need to include in their public files by February 1 the Annual EEO Public Inspection File Reports. TV stations in New Jersey and New York in Employment Units with 5 or more full-time employees also need to file their FCC Form 397 Mid-Term EEO Reports. While the FCC appears ready to abolish that form (see our article here), it will remain in use for the rest of this year, so New Jersey and New York TV stations still need to file. Note that the FCC considers an “employment unit” to be one or more commonly controlled stations serving the same general geographic area and sharing at least one common employee.

As we wrote here, February 4 also brings the date for filing a petition to participate in the Copyright Royalty Board proceeding looking to set rates for the public performance of sound recordings by noninteractive webcasters for 2021-2025. These are the royalties paid to SoundExchange by webcasters – including broadcasters who stream their signals on the Internet and through other digital platforms (see, for instance, our article here about how these royalties include streams played by Alexa and other smart speakers).

The FCC should also have its open meeting this month, currently scheduled for February 21. Certainly, we can expect the broadcast items that the FCC had initially intended to include on its January agenda – the abolition of the Form 397 and a Notice of Proposed Rulemaking looking at the process for issuing new construction permits to noncommercial broadcast stations and LPFMs.

It is possible that we could also see the Federal Register publication of the FCC’s Notice of Proposed Rulemaking in its next Quadrennial Review of the FCC multiple ownership rules. That NPRM was adopted in December (here), and addresses issues including the potential relaxation of the local radio ownership rules. Comments will be due 60 days after publication in the Federal Register, and reply comments will be due 30 days later.

There will no doubt be other important dates both to broadcasters generally and to specific stations. Be sure to stay in touch with your legal counsel to make sure that you do not miss any dates that may be particularly relevant to your station.

The FCC last month released a Notice of Proposed Rulemaking suggesting a lessening of the interference protections afforded to Class A AM stations – what are commonly known as the “clear channel” stations. That NPRM was published in the Federal Register today setting a deadline for filing comments on the FCC’s proposals of January 22 and a deadline for reply comments of February 19. We summarized the FCC’s proposals here.

As we wrote in our initial summary of the proposal, this proceeding is likely to be controversial, as licensees of Class A stations fear that the reduction in interference could lessen these stations’ appeal to advertisers, potentially adversely impacting some of the few remaining successful AM stations. The importance of these stations to rural residents and the transmission of EAS alerts are other public interest factors cited by these licensees. On the other side are the many local AM operators who might be able to increase power, especially at night, to provide better service to their communities. No matter which side of the debate you may fall on, make your thoughts known in the upcoming comment period.