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From Broadcast Law Blog Archive

This weekend, the New York Times ran an article seemingly critical of Facebook for not rejecting ads  from political candidates that contained false statements of factWe have already written that this policy of Facebook matches the policy that Congress has imposed on broadcast stations and local cable franchisees who sell time to political candidates – they cannot refuse an ad from a candidate’s authorized campaign committee based on its content – even if it is false or even defamatory (see our posts here and here for more on the FCC’s “no censorship” rule that applies to broadcasting and local cable systems).  As this Times article again raises this issue, we thought that we should again provide a brief recap of the rules that apply to broadcast and local cable political ad sales, and contrast these rules to those that currently apply to online advertising.

As stated above, broadcast stations and local cable systems cannot censor candidate ads – meaning that they cannot reject these ads based on their content.  Commercial broadcast stations cannot even adopt a policy that says that they will not accept ads from federal candidates, as there is a right of “reasonable access” (see our article here, and as applied here to fringe candidates) that compels broadcast stations to sell reasonable amounts of time to federal candidates who request it.  Contrast this to, for instance, Twitter, which decided to ban all candidate advertising on its platform (see our article here).  There is no right of reasonable access to broadcast stations for state and local candidates, though once a station decides to sell advertising time in a particular race, all other rules, including the “no censorship” rule, apply to these ads (see our article here).  Local cable systems are not required to sell ads to any political candidates but, like broadcasters with respect to state and local candidates, once a local cable system sells advertising time to candidates in a particular race, all other FCC political rules apply.  National cable networks (in contrast to the local systems themselves) have never been brought under the FCC’s political advertising rules for access, censorship or any other requirements – although from time to time there have been questions as to whether those rules should apply.  So cable networks, at the present time, are more like online advertising, where the FCC rules do not apply.

Disclosure is another place where the government-imposed rules are different depending on the platform.  Broadcast and local cable systems have extensive disclosure obligations, in online public files, that detail advertising purchases by candidates and other issue advertisers.  We recently wrote (here and here) about the new enhanced disclosure rules for federal issue advertising (including ads supporting or attacking federal political candidates purchased by groups other than the candidate’s own campaign committee).  Cable networks and online platforms do not have federal disclosure obligations.  Some have voluntarily adopted their own disclosure policies.  In addition, some states have imposed obligations on these platforms (see, for instance, our article here), but as we wrote last month, at least one appellate court has determined, in connection with Maryland’s online political advertising disclosure obligations, that such rules are unconstitutional when imposed on platforms rather than on advertisers.

Certainly it can be argued that there are technical differences in the platforms that justify different regulation and different actions by the platforms themselves.  Online platforms clearly have the potential to target advertising messages to a much more granular audience.  The purpose of this article is not to argue one way or the other – just to point out that these differences exist.  As we are already well into the political season with advertising running for the 2020 election, we are unlikely to see significant changes in these rules for this election – but watch for more discussions on these differences in the future in terms of how various platforms treat political advertising, and whether this differing treatment should continue.

Courtesy Broadcast Law Blog

The PIRATE Act, to crack down on pirate radio, passed the Senate this week after having passed in the House of Representatives last year.  It now goes to the President for signature.  We’ve written about this legislation several times before (see for instance, our articles here and here).  In this final version, it provides more tools for the FCC to crack down on pirate radio operators more quickly, plus it imposes obligations on the FCC to make more regularized enforcement efforts against pirate radio operators, although without necessarily providing any more resources with which to do so.

The bill increases the fine for pirate radio to a maximum of $100,000 per day of operation, to a maximum of $2,000,000.  Fines can be imposed on anyone who “knowingly does or causes or suffers to be done any pirate radio broadcasting.”  This would seemingly allow the FCC to go after not just the operators themselves, but also those who “suffer to be done” any pirate radio operation, which could possibly implicate landlords who knowingly allow pirate radio operations on their premises, consistent with some recent FCC cases (see, for instance, the one we wrote about here).  In addition, the bill allows the FCC to immediately issue a Notice of Apparent Liability (a notice of a proposed fine) without having to first issue a Notice of Violation (a notice suggesting that there is a violation of the rules, but allowing the person accused of violating the rule to first respond before the FCC can issue the proposed fine).  The accused party will still be able to argue that no fine should be imposed when it receives the Notice of Apparent Liability (e.g., the party could argue that it had a license or that it did not really broadcast at all, or at a power level that requires FCC approval), but the two-step process currently needed before issuing a proposed fine would no longer be required, thus speeding up enforcement efforts. 

Under the bill, the FCC would also need to conduct an annual “enforcement sweep” of the top 5 radio markets based on the amount of reported pirate radio activity in the market, with follow-up monitoring 6 months after each sweep to assess whether the pirates have in fact ceased operations.  These sweeps would need to be conducted without disrupting normal pirate radio enforcement activity in other markets.  The bill requires all pirate radio enforcement activity to be cataloged and submitted in a report to Congress each year.

The bill would also prohibit the FCC from taking any action to preempt any state law that targets pirate radio, such as the laws in Florida, New Jersey, and New York which make such activity illegal under state law.  The bill also directs the FCC to coordinate with the US Attorney’s Offices and the US Marshall’s office to collect fines and seize equipment – powers that already have been used by the FCC to act against pirate radio operators (see, for instance, our article here about the seizure of pirate radio equipment).

Bigger fines and quicker enforcement actions, plus calls for the closer monitoring of FCC action so that future FCC administrations cannot retreat from the commitment to enforcement shown by the current FCC, seem to bode well for broadcasters looking for protection against pirate radio operators.  We’ll watch as these new penalties are rolled out when the Act becomes law.

Courtesy Broadcast Law Blog

Here we are, more than a week into the New Year, and already we’ve written about a host of regulatory issues that will be facing broadcasters in the first month of the year (see for instance our articles here and here).  But what about the rest of the year?  As we do most years, we’ve put together a Broadcaster’s Regulatory Calendar for 2020, here.  While this calendar can’t be seen as an exhaustive list of every regulatory date that your station will face, it highlights many of the most important dates for broadcasters in the coming year – including dates for license renewal actions, EEO Public Inspection File Report preparation, Quarterly Issues Programs lists, children’s television obligations and much more.  It also provides the dates that the lowest unit charge windows open for most of the Presidential primaries and caucuses, as well as for the November general election.  Certainly, there will be plenty more dates to be aware of.  Follow our blog, read other newsletters and trade publications and consult your own attorney to stay on top of your regulatory obligations.  But, hopefully, our 2020 Broadcasters Regulatory Calendar will give you a good start on spotting some of the important dates that may affect your operations.

Courtesy Broadcast Law Blog

The FCC’s proposal to allow AM stations to voluntarily transition into all-digital operations (see our post here for a summary of the FCC’s proposal) was published in the Federal Register today.  That sets the comment deadlines in this proceeding – with initial comments due March 9, 2020 and reply comments due by April 6.  AM stations interested in making this voluntary conversion should file their supporting comments in this filing window.

As we wrote last week, this proposal could, in some instances, tie in nicely with the FCC’s proposal to change their rules that currently prohibit AM stations serving the same geographic area from duplicating more than 25% of their programming.  Were that rule to be changed, an AM station transitioning to digital could theoretically acquire (subject to multiple ownership rule limitations) another local AM to continue to broadcast an analog signal – giving an operator a beachhead in the new digital technology while still serving audiences who do not have digital AM receivers.  We will see how the comments play out in the coming months – but if you are interested in filing, pay attention to these comment dates that have now been set.

Courtesy Broadcast Law Blog

While many of us were trying to enjoy the holidays, the world of regulation kept right on moving, seemingly never taking time off.  So we thought that we ought to highlight some of the actions taken by the FCC in the last couple weeks and to also remind you of some of the upcoming January regulatory deadlines.

Before Christmas, we highlighted some of the regulatory dates for January – including the Quarterly Issues Programs Lists due to be placed in the online public file of all full-power stations by January 10.  Also on the list of dates in our post on January deadlines are the minimum SoundExchange fees due in January for most radio stations and other webcasters streaming programming on the Internet.  January also brings the deadline for Biennial Ownership Reports (postponed from their normal November 1 filing deadline).

In that summary of January regulatory dates, we had mentioned that the initial filing of the new Annual Children’s Television Programming Report would be due this month.  But, over the holiday week, the FCC extended that filing deadline for that report until March 30 to give broadcasters time to familiarize themselves with the new forms.  The FCC will be doing a webinar on the new form on January 23.  In addition, the FCC announced that many of the other changes in the children’s television rules that were awaiting review under the Paperwork Reduction Act had been approved and are now effective.  See our article here for more details.

Our summary of the January regulatory dates also mentioned the filing window that opens on January 29 for the April auction of new FM channels.  The deadline for applications to participate in the auction is February 11 at 6 PM EST (see our article here).  We did not mention another filing window falling in January, including one for amendments to pending applications for new LPTV stations or TV translators that had their proposals blocked by changes made during the repacking of the television band following the incentive auction.  These applicants can amend their applications to remove these conflicts with repacked channels by January 31.  See the FCC Public Notice of this filing window here.

New comment dates in rulemaking proceedings were also recently announced for January.  Comments are due on January 22 on the FCC’s proposal to change the rules that preclude radio stations in one service (AM or FM) from duplicating programming on another station in that same service if the two stations serve substantially the same area.  See our article here on the FCC’s questions about possible changes in this rule.  Comments are also due on the FCC’s inquiry as to whether to allow “Franken FMs” – LPTV stations on Channel 6 providing analog audio programming that can be received on FM 87.7 – to continue to generate an analog audio signal to continue the FM services after the otherwise mandatory end of analog television broadcasting on July 13, 2021.  See our article here on some of the issues raised by the FCC, and the Federal Register publication of this notice here setting the comment dates.

Also announced over the holidays was the FCC’s procedural reaction to the Third Circuit decision overturning its 2017 changes in the ownership rules – including the repeal of the broadcast-newspaper cross-ownership rules and the rules that allowed TV duopolies even in markets with fewer than 8 independent voices from those owning or programming stations in that market.  With these and other rules back in effect after the Court’s decision, the FCC now requires applicants for a renewal of license or for the acquisition of a station through an assignment or transfer to demonstrate that they meet the ownership restrictions that were in effect prior to the 2017 changes.  For more details on what is now required, see our post here.

It is also worth reminding stations that they should have updated their EAS certifications that expired back in November to authenticate EAS alerts transmitted through the IPAWs online alert system.  The updated certification to authenticate these alerts was late in coming out, so the FCC gave stations until January 7 to have their systems updated.  If you can’t meet that deadline, an STA is required.  See our article here on this issue.

Finally, stations need to remember that we are in political season.  Lowest unit rate windows are already open for ads targeting voters in Iowa and New Hampshire.  These rates kick in on January 8 for the Democratic caucuses in Nevada, and on January 15 for the South Carolina primary.  Only 3 days later, lowest unit rates for Presidential primaries or caucuses begin in Super Tuesday states including Alabama, American Samoa (D), Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia.  Later this month, lowest unit charge windows for these presidential contests open in Puerto Rico, Hawaii, Idaho, Michigan, Mississippi, Missouri, North Dakota (D), Washington, US Virgin Islands, West Virginia, Guam (R), N. Mariana Islands (D) and Wyoming.  Watch for the exact dates in your state – as well as the lowest unit rate windows for Congressional, state and local races in your communities.  See our article here on the opening of the lowest unit rate windows.

Obviously, there are plenty of deadlines and other regulatory obligations coming up early this year.  This is but a summary of some of the obligations we see as generally significant to broadcasters – but check with your own counsel to see if there are other deadlines that apply to your own station.  Happy New Year – and good luck navigating the regulatory landscape of 2020.

Courtesy Broadcast Law Blog

The FCC recently proposed modifying its rules prohibiting a radio station in one service (either AM or FM) from duplicating more than 25% of the weekly programming of another station in the same service if there is more than 50% overlap of the principal community contour of either of the stations.  The FCC this week issued a Public Notice announcing that the Notice of Proposed Rulemaking setting out the proposed changes has now been published in the Federal Register, setting January 22 as the comment deadline in this proceeding, with replies due by February 6.

In the NPRM, the FCC notes that the broadcast industry has significantly changed since the rule was adopted, with over 19,000 commercial operating radio stations today, up almost 8000 from 1992 when the rule was adopted. In addition, there are noncommercial stations, LPFMs, and all sorts of digital audio services that did not exist in 1992.  In light of these industry changes, the Commission asks many questions on which they seek input from the public.  Are there public interest reasons to allow for more duplication, e.g. allowing economically challenged stations to combine rather than ceasing operations?  Will market forces prevent too much consolidation of programming by stations in the same market?  Will allowing more duplication affect diversity of broadcast ownership?  Is 50% overlap the appropriate standard, or are there reasons to use a different measure of overlap?  Should AM duplication be treated differently from FM duplication?  While not explicitly stated by the FCC, a relaxation of this rule could be particularly important for AM radio, as it could allow for a transition to digital by one AM station in a market (another proposal recently advanced by the FCC), while allowing another AM station in the same market to continue to air the same programming in an analog format for listeners who have not yet acquired digital AM receivers.  If a change in this rule could assist your operations, note the January 22 comment deadline.

Courtesy Broadcast Law Blog

The FCC gave a present to TV broadcasters at the end of the week before Christmas by issuing a Public Notice announcing the effective date of the remaining changes to the children’s television rules, and postponing the filing date for the initial Children’s Television Programming Report, which was to be filed by January 30, to March 30.  This will give broadcasters more time to become familiar with the new report.  The annual Children’s Programming Report takes the place of the Quarterly Children’s Television Programming Reports, and are designed to report on the educational and informationalcore programming” broadcast by a television station to meet its obligations for such programming.  Also announced in the Public Notice is an FCC webinar on January 23 from 1:30 to 2:30 pm ET to review the new form.

Other provisions of the rule that became effective following the pre-Christmas publication in the Federal Register of the approval of the rule changes by the Office of Management and Budget (following the required review under the Paperwork Reduction Act of the changes in the paperwork burdens imposed by the modifications of the rules) include the following:

  • The elimination of the requirement for noncommercial stations to display the E/I symbol during core programming (retaining the requirement for commercial TV stations);
  • The elimination of the requirement to provide publishers of program guides the age group for which each core program is intended;
  • The revision of the rescheduling and viewer notification rules for core programming that is preempted;
  • The adoption of revised reporting periods for children’s TV commercial limit certifications from quarterly to annually (the last quarterly certification being due in stations’ public files by January 10 for the last quarter of 2019 – with the first annual certification for 2020 being due by January 30, 2021).
  • The elimination of the requirement to publicize the existence and location of a station’s Children’s Television Programming Report.

These changes follow the FCC order this summer adopting the new rules, and prior public notice on the effective date of the Annual Children’s Programming Report.  See our posts here and here.  Be sure to note these changes in your operations.

Courtesy Broadcast Law Blog

With many Americans using the holiday season to rest and recharge, broadcasters should do the same but not forget that January is a busy month for complying with several important regulatory deadlines for broadcast stations.  These include dates that regularly occur for broadcasters, as well as some unique to this month.  In fact, with the start of the lowest unit rate windows for primaries and caucuses in many states, January is a very busy regulatory month.  So don’t head off to Grandma’s house without making sure that you have all of your regulatory obligations under control.

One date applicable to all full-power stations is the requirement that, by Friday, January 10, 2020, all commercial and noncommercial radio and television stations must upload to their online public file their quarterly issues/programs list for the period covering October 1 – December 31, 2019.  The issues/programs list demonstrates the station’s “most significant treatment of community issues” during the three-month period covered by each quarterly report.  We wrote about the importance of these reports many times (see, for instance, our posts here and here).  With all public files now online, FCC staff, viewers or listeners, or anyone with an internet connection can easily look at your public file, see when you uploaded your Quarterly Report, and review the contents of it.  In the current renewal cycle, the FCC has issued two fines of $15,000 each to stations that did not bother with the preparation of these lists (see our posts here and here on those fines).  In past years, the FCC has shown a willingness to fine stations or hold up their license renewals or both (see here and here) over public file issues where there was some but not complete compliance with the obligations to retain these issues/programs lists for the entire renewal term.  For a short video on the basics of the quarterly issues/programs list and the online public inspection file, see here.

On January 1, 2020 and January 16, 2020, radio stations in Arkansas, Louisiana and Mississippi must air pre-filing announcements tied to their license renewal filing date of February 3, 2020.  Radio stations in Alabama and Georgia must air post-filing announcements about their license renewals that were due by December 2, 2019.  Stations are required to air pre-filing announcements in the two months prior to the month in which their license renewal application is due, and to air post-filing announcements in the three months after their renewal application is due.

One of the biggest changes of the last year to the broadcast regulatory landscape is the modification of the programming and reporting requirements for children’s television programming.  Stations are no longer required to submit quarterly reports documenting their compliance with the children’s TV rules.  Instead, reporting will now be done annually, and stations must file their first annual report—FCC Form 2100, Schedule H—electronically through LMS by Thursday, January 30, 2020.  For a deeper look at how to comply with the new programming and reporting changes, see our posts here, here, here, and here.  We are still waiting for further guidance from the FCC about the quarterly certifications regarding compliance with commercial limits and websites during children’s programming.  Unless the FCC staff issues guidance to the contrary, stations should probably plan on uploading those certifications by January 10, 2020.

By Friday, January 31, 2020, commercial and noncommercial stations must complete and submit through LMS their Biennial Ownership Report (Form 323 for commercial stations; Form 323-E for noncommercial stations).  The reports were originally due by December 1, 2019, but the FCC extended the deadline to the end of January to update LMS.  The information in the report needs to reflect the licensee’s ownership as of October 1, 2019.  Don’t wait until the last minute to file these reports, as there can be technical slowdowns in the LMS system when there are major filing dates.  The January 31 deadline is already an extended one and unlikely to be further extended, so make sure that you meet the FCC’s deadline.

The repacking of the broadcast TV band, made necessary by the FCC’s broadcast incentive auction, continues across the country.  Stations assigned to Phase 7 must complete the transition to their new channels by January 17, 2020.  One day later, on January 18, 2020, stations assigned to Phase 8 of the repack may begin testing and operating on their new channels.

As we wrote earlier this week, Presidential primaries and caucuses are right around the corner, including the election-heavy day in March often dubbed Super Tuesday.  This means stations in more than two dozen states will soon find themselves within the 45-day primary/caucus political window, which brings with it special obligations like lowest unit rates for candidates.  With lowest unit charge windows opening on December 20, 2019 (Iowa), December 28, 2019 (New Hampshire), January 8, 2020 (Nevada), January 15, 2020 (South Carolina), January 18, 2020 (Alabama, American Samoa, Arkansas, California, Colorado, Maine, Massachusetts, Minnesota, North Carolina, Oklahoma, Tennessee, Texas, Utah, Vermont, and Virginia), January 23, 2020 (Puerto Rico), January 25, 2020 (Hawaii, Idaho, Michigan, Mississippi, Missouri, North Dakota, and Washington State), January 27, 2020 (U.S. Virgin Islands and West Virginia), and January 29, 2020 (Guam, N. Mariana Islands and Wyoming), stations should plan ahead to be sure station employees understand the requirements that go along with political advertising, including lowest unit charge and the expanded public file disclosure obligations issued by the FCC in mid-October.  For more guidance on navigating election season, see our Political Broadcasting Guide for Broadcasters.

Speaking of the expanded public file disclosures, earlier this month, we wrote about the FCC seeking comment on a petition for reconsideration of those new requirements filed by the National Association of Broadcasters and a group of TV station owners.  The petition asks the FCC to reconsider imposing the political issue ad disclosure rules that it clarified following complaints against 11 TV stations by two public interest groups.  The clarified rules require broadcasters who accept ads on federal issues of national importance to disclose in their public file each and every federal issue and federal candidate mentioned in the ad, many times requiring the identification of multiple candidates and issues for each ad.  Additionally, broadcasters must now specifically reach out to the organization sponsoring an issue ad or the agency who placed the ad for the names of any additional officers or directors, if the organization only submitted one name as constituting the entire board in its initial disclosure.  Comments in this proceeding are due by Monday, December 30, 2019, with the FCC just yesterday issuing an order extending the reply comments deadline to January 28, 2020.

Those looking to file for one of the 130 new FM channels due to be auctioned off by the FCC in April 2020 can begin to file the “short-form” applications needed to participate in the auction in the window opening on January 29 and closing at 6 PM Eastern Time on February 11.  We wrote about the upcoming auction here and here.  The FCC will impose a filing freeze on all FM minor changes during this short-form window, so plan accordingly if you need to file a minor change application in the near future.

Commercial and noncommercial (note that special rules apply to public radio) stations that stream music programming must pay the minimum fee to SoundExchange by Friday, January 31, 2020.  For commercial stations, the minimum fee is $500 per station/channel, not to exceed $50,000.  For noncommercial stations, the minimum fee is $500 per station/channel, which covers the first 159,140 aggregate tuning hours per month.  For more information on the minimum fee, including how to pay it, and other 2020 rate information, visit the SoundExchange website here.

Looking ahead on the calendar to early February, we mentioned above the February 3 license renewal filing deadline for radio stations (including LPFMs) in Arkansas, Louisiana and Mississippi.  Station employment units (a station employment unit is a station or group of commonly owned stations in the same market that share at least one employee) with five or more full-time employees in several states have EEO reports due Saturday, February 1, 2020.  Stations must place their EEO report in their public file on the anniversary of their license renewal filing deadline.  So stations in Kansas, Nebraska, New Jersey, New York, Arkansas, Louisiana, Mississippi and Oklahoma must have the reports in their files by Saturday, February 1, 2020.

As always, we have just highlighted some of the upcoming regulatory deadlines for January.  Check with your own station’s counsel for more information about deadlines that may apply to your operation.

Courtesy Broadcast Law Blog

While political broadcasting never seems to be totally off the airwaves, the 2020 election season is about to click into high gear, with the window for lowest unit rates to begin on December 20 for advertising sales in connection with the January Iowa caucuses. That means that when broadcasters sell time to candidates for ads to run in Iowa, they must sell them at the lowest rate that they charge commercial advertisers for the same class of advertising time running during the same time period. For more on issues in computing lowest unit rates, see our articles here, here and here (this last article dealing with the issues of package plans and how to determine the rates applicable to spots in such plans), and our Political Broadcasting Guide, here.

The beginning of the LUR (or LUC for “lowest unit charge”) window in Iowa is but the first of a rapid many political windows that will be opening across the country as the presidential primaries move across the country. These windows open 45 days before the primary election (or caucus, in states where there is a caucus system that is open to the public for the selection of candidates) and 60 days before general elections. For the Presidential election, New Hampshire of course comes next, with their LUR window opening on December 28.   January will bring the opening of a slew of LUR windows for states with primaries and caucuses in late February and early March, including all of the Super Tuesday states. But it is important to remember that these are not the only LUR windows that broadcasters will have to observe in 2020.

In most states, there will be a separate primary window in which contenders for seats in the US House of Representatives will be selected. A third of the Senate is also up for election – meaning primaries in most of those states. Plus there will be primaries for state and local elections – and in some states municipal primaries and elections may be held at times different than those for the US Congress and even different from other state offices. For each of these primaries held at different times, there will be a window during which lowest until charges will apply, but only to those candidates running in the race to be decided in that particular election.

As we have noted before (see our articles here and here), state and local candidates do not need to be sold time by broadcast stations – the “reasonable access” rules don’t apply. But once a station decides to sell them advertising time, all of the other political rules apply – including lowest unit rates. The right to these rates cannot be waived by state and local candidates.

Even before the windows open in your state, your station needs to engage in significant planning to make sure that you are charging candidates the correct rates and observing all of the other political advertising rules. We’ve written about some of those issues here. Reasonable access and equal opportunities apply even outside the window. That means that federal candidates have a right to buy time on your stations, even outside the window. Once they buy time, the “no censorship” rules apply (see our articles here and here), meaning that you cannot censor a candidate’s message. Equal opportunities means that if you sell ads to one candidate, you must sell them to another. And if you have a candidate on the air outside of an exempt program (see our articles here and here on exempt programs), you must give the other candidate equal time if they request it within 7 days. That goes for on-air appearances of station employees who decide to run for office (see our articles herehere and here) and for commercial advertisers who appear in their own spots and become political candidates (see our article here).

Third party ads, from PACs, political parties and other advocacy groups will no doubt accompany the increase in candidate spending. These ads, while not entitled to lowest unit charges, nevertheless present their own unique challenges. As these ads can be edited or rejected based on their content, stations can theoretically have liability for their content if that content is defamatory or raises other legal issues (see our article here on dealing with challenges to the truth of these third-party political ads). Plus, the FCC’s recent decision about the public file obligations that go with third-party political ads (and other federal issue ads) provide yet another layer of complexity for broadcasters (see our articles here and here).

These are just some of the issues that stations will need to deal with as the election season kicks into high gear. So study up, get prepared, and do your best to cope with the upcoming onslaught of political advertising that may be coming your way.

Courtesy Broadcast Law Blog

Last week, the FCC adopted an order making numerous changes to its processes for selecting winning applicants among mutually-exclusive applicants for new noncommercial broadcast stations, including noncommercial, reserved band full power FM stations and LPFMs. Applicants are “mutually exclusive” when their technical proposals are in conflict – meaning that if one is granted it would create interference to the other so that the other cannot also be allowed to operate. The changes adopted by the FCC, which we wrote about when first proposed here, affect not only the process of applying for new noncommercial stations and the system for resolving conflicts, but also address the holding period for new stations once construction permits are granted, and the length of permits for LPFM stations.

In cases involving mutually exclusive applications for new noncommercial stations, the FCC uses a “points system” to determine which of the mutually-exclusive applicants should have its application granted. The point system relies on paper hearings to determine which applicant has the most points, awarding preferences on factors such as whether they have fewer interests in other broadcast facilities, whether they are local organizations, and whether they are part of state-wide networks.

The changes to the FCC process are described below.

  • The FCC eliminated the current requirement that NCE applicants include in their governing documents specific provisions obligating the applicant to maintain localism and diversity in order to receive points as “established local applicants” and for “diversity of ownership.”  The current obligation requires that, in order to receive a “diversity credit” in their application, applicants need to have articles of incorporation or bylaws that specifically state that they cannot acquire new stations that would affect the credit they received in the FCC review of the applications. Localism must be maintained by provisions in organizational documents restricting the residence of board members. The FCC determined that including provisions in governing documents was unnecessary – the actual conduct of the applicant can be weighed by the FCC whether or not the company’s governing documents contain explicit restrictions.
  • The FCC will impose new transmitter site certification obligations on applicants for new stations – requiring applicants to certify on their application that they have received reasonable assurance of the availability of their proposed transmitter sites, and to provide a contact person for the entity that has provided such assurance. This decision merely clarifies an obligation that is already imposed on noncommercial applicants (see our articles here and here).
  • The FCC changed the NCE tie-breaker process by adding a new criterion favoring the grant of applications that were unsuccessful in receiving stations in prior FCC filing windows, if an applicant has no other broadcast interests. This criterion will be applied last, if all other tie-breaking criteria have not broken the points system tie.
  • It also changed the process for establishing mandatory time-sharing plans where ties in the comparative process remain after the points system was applied. Currently, full-power NCE station applicants who are tied in the FCC points system end up in a tie-breaker process (see, for instance, our article here that discusses the process). Where that process does not produce a clear winner, parties are often allowed to negotiate for years over the terms of a time-sharing agreement before the FCC intervenes to force a sharing arrangement. The FCC’s order sets a 90-day period in which such negotiations are to occur before mandatory time-sharing is imposed by the FCC. If there are more than three applicants, those that have the longest continuous period of existence will be included in the time share, with other applications dismissed.
  • The FCC modified the “holding period” during which NCE permittees must maintain the characteristics for which they received comparative credit. Specifically, if an applicant receives a “307(b) preference” for serving areas that have no noncommercial service or service from only one other noncommercial station, the applicant in the past has been forbidden from changing transmitter sites where it would lose service to some or all of the areas of proposed coverage for which it received a preference, even if that lost service is made up by service to new noncommercial white or grey areas. This restriction has prevented some successful noncommercial applications from constructing their new stations when proposed transmitter sites became unavailable and no alternative sites covering the exact same underserved areas were available. The Commission decided to do away with the prohibition, and will allow winning applicants to change sites as long as the underserved area in the new service area is as great as that from the site at which the permit was initially granted.
  • The FCC decided to reclassify as “minor” (1) all ownership changes to governmental applicants, provided that the change has little or no effect on such applicant’s mission, and (2) gradual board changes in non-stock and membership LPFM and NCE applicants.  This eliminates issues that sometimes arise with long-pending applications when gradual Board changes result in a majority of the governing board of an applicant changing, which under FCC processing rules would result in dismissal of an application. The FCC has from time to time been forced to waive that rule (for instance in connection with the processing of applications from the 2003 FM translator window that ended up being dealt with in settlements more than a decade after they were filed). In the case of existing NCE stations, the FCC has taken the position that gradual changes in the Board of an applicant do not require a “long-form” transfer application that would otherwise apply to a major change in ownership (see our article here). The FCC decided to apply the same rules to the processing of applications for new stations.
  • The FCC eliminated certain tolling notification requirements and will toll NCE and LPFM broadcast construction deadlines without notification from the permittee, based on certain pleadings pending before, or actions taken by, the agency, including the need for international coordination (often an issue with applications in the Southwestern portion of the country where Mexican authorities are sometimes slow to clear proposals for new stations near the border that could impact current or planned Mexican stations). Currently, an applicant must ask the FCC for tolling to stop the clock on the time before the expiration of a construction permit. Inexperienced applicants acting without counsel often don’t realize that they need to request tolling, as do applicants who wrongly think that a tolling event may be able to be resolved quickly. By forgetting to ask for tolling, these permittees can lose out on potential time in which to construct their new stations. That will no longer be an issue with this change in the rules.
  • The FCC decided to extend LPFM construction permits from 18-months to a full three years, the same period that applies to other construction permits (a construction period which LPFM permittees can currently receive – but they have to timely request such extensions at the end of the initial 18-month construction period).
  • The FCC eliminated the current rules prohibiting the sale of unbuilt LPFM construction permits and requiring a 3-year holding period for newly licensed LPFM stations. The FCC instead will allow the assignment/transfer of LPFM permits and stations after an 18-month holding period as long as certain safeguards are met – including that there is no profit in the sale and as long as the new owner satisfies all FCC eligibility criteria (including offering the same comparative attributes as the original applicant if the CP was granted after a point-system analysis).

Obviously, there are many other details to these changes that should be carefully reviewed by any potential applicant for a new noncommercial station. These changes will become effective after the later of 60 days after publication in the Federal Register or after review under the Paperwork Reduction Act. But, once effective, these new rules should allow the FCC to once again open windows for applications for new noncommercial FM stations, something that has not occurred in many years.

Courtesy Broadcast Law Blog