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From Broadcast Law Blog Archive

Many stations seem unsure of how to apply the recent FCC guidance  that no charge spots given to advertisers to help them through the pandemic do not need to be counted in computing a station’s Lowest Unit Charge, as long as the no-charge spots are not part of paid advertising contracts and are not otherwise considered bonus spots.  We wrote about that guidance last week when it was first released by the FCC, here.  Because this issue can get complicated quickly, we recommend that individual stations talk to their counsel about any specific application of the FCC’s Public Notice to their situation.  However, as we were involved in seeking the guidance from the FCC, what follows are some general thoughts as to issues that stations should keep in mind in applying the FCC’s decision.

To be exempt from Lowest Unit Charge calculations, any no-charge spots should not be added to any existing advertising package, nor should they be used as a direct incentive to buy a new package, e.g., no promises should be made to give 20 no-charge spots to an advertiser if they buy a paid schedule of 20 spots.  The whole idea is that these spots are gifts to the advertiser to help them through the crisis, separate and apart from any commercial advertising transaction – while at the same time building goodwill for the station and helping the station fill holes in their inventory that have resulted from cancelled advertising.  These gifts should be viewed as a temporary measure to get through the crisis.  Because these no-charge spots cannot be tied to paid packages, stations should be careful on how they promote them to advertisers.  Here are some ideas:

  • Don’t call them “bonus spots” in any communications.  Call them “goodwill spots” or “covid-19 spots” or something else, but you do not want to imply that they are a bonus associated with another package.
  • Don’t give them in strict proportion to any existing contract, e.g., don’t give an advertiser 10% of its paid schedule in “goodwill spots.”  That also makes it look too much like they are part of a paid schedule.
  • Don’t list them on the same invoice or affidavit of performance that you provide to an advertiser showing its paid spots.  There is no requirement that you provide specific documentation to advertisers of what you run, but if you do, keep it apart from the documentation of paid schedules.
  • The spots should be preemptible.  Don’t make any promises or guarantees of any specific number of spots that will be provided and remind advertisers that this situation is temporary and simply an expression of good will on your station’s part during these difficult times for everyone.  You also should not guarantee any particular audience size or reach or frequency.
  • While not required, having a unique message relating to the pandemic, or packaging multiple advertisers together in spots to promote local businesses, can help differentiate these spots from normal paid schedules that are still subject to LUC consideration.

This is a unique solution for a unique time, but one that some stations may be able to employ as a win-win for both the stations and their communities.  Talk to your counsel for more details on how to employ this kind of program without running afoul of the FCC guidance.

Courtesy Broadcast Law Blog

The FCC on  Friday released a Public Notice announcing that they are giving stations more time in which to upload their Quarterly Issues Programs lists to their online public file and to file their first Annual Children’s Television Report.  In our list of April regulatory dates for broadcasters last week, we had highlighted both of those filings.  Because of the disruption of the schedules of so many people, and the lack of access to many broadcast stations, the FCC appears to have decided that broadcasters should get more time to meet these regulatory obligations.

Quarterly Issues Programs lists are required to be uploaded to the online public inspection file of all full-power stations every quarter – and would normally be required to be in the public file by April 10.  While urging stations to upload those lists as soon as possible, the Commission has given stations until July 10 (when the next quarter’s lists will be due) to upload this quarter’s report.  So the two reports could be uploaded at the same time.

The first-ever Annual Children’s Television Report was to be filed with the FCC by March 30, reporting on educational and informational programming directed to children since the effective date of the new children’s television rules (see our blog article here about the revised rules).  The report would normally be due in January, but was delayed until March 30 to give broadcasters time to become familiar with the new forms (see our article here).  Now, those reports must be filed by July 10, 2020.

In the Public Notice, the FCC notes that other public file and FCC filing obligations remain in place.  For instance, the FCC has not extended the date for filing license renewal applications by radio stations in Tennessee, Kentucky and Indiana, due on April 1.  The Commission has expressed its willingness to be lenient in granting extensions of these filings and others upon request, but the deadlines remain unless specifically extended.  Similarly, other public file obligations (including the requirement to upload information about political ad sales and other candidate uses) remain in effect.

The two extensions granted on Friday are additional indications that the FCC recognizes the disruption caused by the COVID-19 pandemic.  These follow other actions we’ve written about, including relief for stations in Phase 9 of the television repacking, guidance on the impact of special flights of free advertising spots on lowest unit rates, and relief for newsgathering activities exempting temporary pooling arrangements from public file requirements under shared services agreement rules and liberalized waivers of attribution rules for TV news sharing agreements that exceed 15% of a station’s programming time.  The FCC is doing its best to assist broadcasters in coping with the sudden realities of today’s business in these most unusual times.

 

Courtesy Broadcast Law Blog

Yesterday, the FCC released two public notices reflecting its attempts to assist broadcasters coping with the COVID-19 crisis.  The first public notice deals with the attempts of several broadcasters to support their advertisers while at the same time filling advertising inventory holes that have been created by the cancellation of other advertising schedules.  Broadcasters who we represented requested that they be permitted to schedule no-charge advertising for some of their clients where those spots were not part of negotiated advertising packages, without those spots affecting lowest unit charges in the political windows (likely to be opening in many states in the coming weeks).  The FCC agreed that free spots provided to merchants that are not part of an existing commercial contract or otherwise are not provided as a bonus tied to any contract would not affect lowest unit rates.  This is a limited ruling for broadcasters to use to build up good will with advertisers, and to provide them with assistance in this time of crisis.  It is a limited, nuanced ruling that you should discuss with your counsel – but it does provide broadcasters with the opportunity to be creative in helping support their advertisers in this most unusual time.

In addition to the lowest unit rate issue, the FCC issued another public notice about TV Local Marketing Agreements and similar agreements.  In TV (as in radio), if one broadcaster programs more than 15% of the programming time of another station in their market, the station to which they provide programming becomes “attributable” for multiple ownership purposes, i.e., it counts in determining compliance with the ownership rules.  In markets where one owner cannot own an additional station, news-sharing agreements where one station provides news to another are permissible, as long as those agreements do not constitute more than 15% of the programming time of the second station.  The notice released yesterday indicated that, if the brokering station wants to expand news coverage on the brokered station during this crisis time, the FCC will be liberal in granting waivers to permit the agreement to exceed 15% of the airtime of the brokered station – though prior FCC approval is required.  The waiver will be limited to the period of time that the COVID-19 outbreak remains a national emergency.  The public notice provides email addresses to which such requests should be sent.  These two decisions provide more evidence of the welcome flexibility and relief that the FCC is providing broadcasters in helping to deal with this current crisis.

Courtesy Broadcast Law Blog

An auction of new FM channels was scheduled to begin in late April (see our posts here and here).  Yesterday, the FCC issued a Public Notice indefinitely delaying that auction. Apparently, the FCC needs to have staff physically present in its Washington, DC building in order to conduct an auction, and with the current teleworking situation, the auction processes cannot function.  With other wireless auctions scheduled for the latter half of the year, there was apparently no way to find time this year to conduct the auction.  Thus, the auction is postponed indefinitely.  Seemingly concluding that it was unfair to hold onto the upfront auction payments for an indeterminate time, the FCC agreed to refund those upfront payments – and the Public Notice provides instructions for securing such a refund.  As business conditions may well have changed significantly whenever the auction is rescheduled, the FCC decided to return all of the “short-form” applications that were filed and to lift all restrictions on “prohibited communications” between competing applicants.  Thus, the auction will start anew, with new applicants, at some later date, likely in 2021.

Courtesy Broadcast Law Blog

FCC business marches on in this time of social distancing and mandatory lockdowns, though with modifications caused by the circumstances in which we find ourselves.  The FCC released a Public Notice yesterday announcing that its monthly open meeting scheduled for March 31 will be held by teleconference rather than live in the FCC meeting room.  It can be viewed on the FCC’s website and on its YouTube channel.  Most of the action items will have already been voted on by the Commissioners through the “circulation” process.  This means that the votes will be taken on the written orders without any formal presentations by FCC staff members explaining the actions, and without orally-delivered statements by any of the Commissioners – though the Commissioners can certainly make their feelings known in written statements on the items on which they will have voted.  The meeting itself is likely to consist of Commission announcements and statements by the Commissioners on the current state of affairs.

Issues that were to be considered at the meeting of interest to broadcasters include the adoption of a Notice of Proposed Rulemaking on Distributed Transmission System technology for TV stations – making it easier for TV stations to fill in their market coverage with multiple transmitters spread throughout the market, rather than a single big transmitter in the center of the market – a technology made easier as stations transition to the new ATSC 3.0 transmission system (see the draft NPRM here).  FCC Notices of Proposed Rulemaking on significantly viewed TV stations (draft NPRM here) and cable carriage disputes (draft Further Notice of Proposed Rulemaking here) are also on the agenda.

Speaking of Commission meetings, it appears that Commissioner O’Rielly will continue to be a fixture of these meetings in the future.  Last week, it was announced that the President had nominated the Commissioner to serve another term on the FCC.  Of course, that nomination needs to be approved by the Senate when they have a moment’s break from considering coronavirus relief packages.  Commissioner O’Rielly has taken the lead on several broadcast initiatives, notably including crackdowns on pirate radio (see our articles here and here) and on the revision of the children’s television rules (see our articles here and here).  Look for this familiar face to remain at the FCC for the foreseeable future.

Watch for more from the FCC on these matters in coming days as it continues to function in these trying times.

Courtesy Broadcast Law Blog

Life has been upended for most Americans due to the spread of the coronavirus and that tumult is, of course, reaching broadcasters as it reaches others throughout the country.  As we wrote here, like many agencies and businesses, as part of its COVID-19 response, the FCC has moved most of its workforce to teleworking in an attempt to keep FCC staff and their families safe.  With most FCC forms and filings being submitted electronically, and remote work already being routine for many FCC employees, there should be minimal disruption to broadcasters’ routine daily dealings with the Commission.  Broadcasters should continue to comply with all FCC rules, including meeting filing deadlines, though it does appear that the FCC is willing to be flexible with some deadlines, especially when a broadcaster can point to virus-related reasons that the deadline cannot be met.  Check with your attorney on specific deadlines.  And check our article from yesterday highlighting some issues to consider while preparing for whatever comes next.

While there is much disruption to normal routines, the routines of regulatory life largely carry on.  For instance, before moving on to April deadlines, we should remind TV broadcasters that, if they have not already done so, their first Annual Children’s Television Report is due to be submitted to the Commission by March 30.  See our articles here and here on that new report.

Other routine FCC filings appear to be continuing without interruption, and the operation of the online public file remains generally unaffected.  That means that all full-power stations need to upload to their online public inspection file, by April 10, their Quarterly Issues Programs lists.  As we have written many times (see for example, our articles here and here), these lists are the only official Commission documents that show how a station has met its public interest obligations to its community.  Incomplete or missing quarterly lists have led to many fines in recent years.  The lists should identify the most important issues facing the station’s community and the programming broadcast by the station to address those issues.  With COVID-19 on everyone’s mind, stations should have at least one issue that they know was important to their community that can be addressed in these Quarterly Issue Programs lists.  Make sure that they are uploaded by April 10.

AM, FM, LPFM, and FM translator stations licensed to communities in Indiana, Kentucky, and Tennessee must file their license renewal application by April 1, 2020.  Beginning on April 1, 2020, stations that filed their renewals by that date must begin airing a series of six post-filing announcements (one announcement each on April 1April 16May 1May 16June 1, and June 16).

Full-power AM, FM, LPFM, and FM translator stations in Michigan and Ohio and full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia (the first TV window in the current license renewal cycle) are due to file license renewal applications by June 1.  Before that, those stations must air a series of announcements alerting listeners to their upcoming license renewal filing.  The first of four of these pre-filing announcements begins on April 1, with further required pre-filing announcements to air on April 16May 1, and May 16.  For more on pre-filing announcements, including the timing of the announcements and sample text to use, visit the FCC’s radio license renewal page here and the TV license renewal page here.

April 1 also brings the obligation for full-power radio and television stations in DelawareIndianaKentuckyPennsylvaniaTennessee, and Texas with five or more full-time employees in their station employment unit to place in their online public file and on their station website their Annual EEO Public Inspection File Report documenting their hiring from April 1, 2019 to March 31, 2020.

We have written several times before (see, for example, here, here, and here) about efforts, as part of the FCC’s media modernization initiative, to allow AM broadcasters to transition voluntarily to all-digital transmission.  Comments in this proceeding (MB Docket No. 19-311) were due March 9, and about two dozen comments were filed by interested parties.  Should you wish to file reply comments, they are due by April 6.

An auction for new FM channels is supposed to begin on April 28.  See our articles here and here on that auction.  While upfront payments in that auction were made last week, we will see if the FCC actually proceeds with the auction as scheduled in light of the current situation.  Watch for more information about the auction in coming days.

The FCC in late February released a Public Notice seeking public comment on the State of Competition in the Communications marketplace.  We wrote about the Public Notice here.  The FCC will use public comments to craft the report that it must submit to Congress every even-numbered year.  That report is then used to inform the FCC’s and Congress’s views on the communications marketplace when writing legislation and rules and regulations, including rules on broadcast ownership (see our article here).  Comments on the report are due April 13, with reply comments due by May 13.

The National Association of Broadcasters, in coordination with various other broadcast groups, and the Solicitor General of the United States, on behalf of the FCC, each filed applications in March with the U.S. Supreme Court requesting more time in which to ask the Supreme Court to review the judgment of the U.S. Court of Appeals for the Third Circuit in Prometheus Radio Project v. FCC.  Readers of this blog recognize this case as the one in which the Third Circuit’s decision forced the FCC to abandon its 2017 media ownership reforms and return to its prior rules.  We wrote about the different stages of this case here, here, and here.  The time extension for both parties was granted in mid-March, so NAB and the solicitor general have until April 18, 2020 to decide on whether to seek this review by the Supreme Court.  As of the publishing of this post, the Supreme Court building is closed to the public, but official business is still being conducted.

Many of us will miss one routine April event as the NAB announced that April’s NAB Show in Las Vegas is canceled.  The NAB Show has been held annually since 1923 (with one postponement in 1945 due to World War II).  In an effort to provide an avenue for exhibitors to showcase their products and services and connect virtually with industry members, the NAB will launch NAB Show Express in April.  This online-only experience will include educational content that NAB Show attendees have come to expect from the in-person gathering.  Additionally, NAB Show New York, which takes place in the fall, will be expanded.  NAB’s press release says more details will be announced in the near future.

These are just a few of the upcoming important dates broadcasters should be aware of.  Be sure to watch this blog and other industry sources and consult with your own counsel on deadlines  that may affect your operations.

Courtesy Broadcast Law Blog

With more and more states, municipalities, and other authorities issuing shelter-in-place warnings or other restrictions on travel, and with more station facilities likely to be closed temporarily because of exposure to the COVID-19 virus, broadcasters need to be planning on how to continue to operate their facilities in the new world we are all facing.  I participated in an online conference last week with over 100 college broadcasters who are perhaps on the front lines of this problem, as so many operate from campus buildings that were closed early after (and in some cases before) the declaration of the pandemic.  We’ve had calls from many other broadcasters about the issues that they are facing in their operations, as communities take actions to enforce the personal distancing urged by medical organizations.  Many commercial broadcasters may be seeing in the upcoming days greater restrictions on unnecessary travel, perhaps impacting access to their facilities and studios.  Planning and coordination among broadcasters – and with broadcasters and local officials – is already underway in many cities and with many state broadcast associations.  But it also needs to be considered by individual broadcasters everywhere.

One of the most basic questions is one of access.  Questions are arising every day as to whether local officials can block access to broadcast stations or to the coverage of news events during the emergency.  Will broadcasters be shut down like so many other businesses?  There has been much written in the trade press and elsewhere about broadcasters being “essential services” that should be allowed access to their facilities and to news events during any crisis.  There is in fact statutory language in the US code to that effect (see, for instance, this section that tells federal officials not to limit access or facilities to radio and TV broadcasters in an emergency).  But that statute restricts the actions of federal officials to block broadcaster access and is silent as to actions by state and local officials.  Even if state laws have similar provisions, those provisions are only helpful if someone in a position of authority has the time and inclination to look at the legal niceties that apply to a given situation.  Coordination with state and local officials is paramount in a situation like the current one that affects everyone, everywhere.  Stations should already be in touch with state and local authorities to see how they can help in the current crisis.  At the same time, they should also be discussing and planning with these officials to ensure access to studios and transmitter sites, and exemptions from travel restrictions for news coverage, so that they can continue to provide their important services to the public.

Stations should also be planning for the worst-case scenario where access to their studios becomes problematic because of infections among their staffs.  We’ve already seen disruptions to major broadcast networks as the infections spread.  Smaller stations should be making plans for remote operations.  These days, with audio and video available anywhere there is an Internet connection, getting programming together may be the least of a station’s issues.  Being able to remotely control the station’s technical facilities is possible for many stations who can already monitor and control their stations remotely to operate without on-site staffing during late-night or weekend hours.  Stations can also operate with an “unattended operation” where automatic facilities can cease station operations within 3 hours if the station begins to operate outside its licensed parameters and cannot be repaired (or three minutes if notified of interference to broadcast or other non-broadcast communications facilities).  Also, remember to make provisions for EAS monitoring and activation.  And, of course, monitor tower lights if approved automatic monitoring systems are not in place.

We’ve had numerous questions about whether a station can lock its studio doors to the public – and last week we wrote this article reminding broadcasters that a staffed main studio is no longer an FCC requirement, as the Commission two years ago essentially eliminated its main studio and studio staffing requirements.  So prohibiting public access to the studio is not an issue.  The FCC has also already been relaxing some other requirements – working with TV stations permitting pooling arrangements to cover virus-related events without the need for public file documentation (see our article here) and postponing deadlines for TV stations in Phase 9 of the post-incentive auction repacking (see our article here).

No matter how much planning is done, there may well be situations where stations have to be taken silent during this crisis.  Some college stations have already gone off the air as students are barred from campus locations. The FCC has agreed that college stations do not need to meet their minimum operating schedules when on-campus classes are not meeting (see our post here).  Commercial stations that go off the air need to notify the FCC within 10 days of the fact that they are off the air and ask for Special Temporary Authority to remain silent if they stay off the air for 30 days or more.  Don’t forget that any station that remains off the air for one year or more will have its license automatically cancelled unless the FCC makes an affirmative determination that the public interest supports its continued operation (see our articles here and here).  In addition, long periods of silence interrupted only by brief periods of operation may have an adverse effect on a station’s license renewal (see our articles here and here). The FCC has not yet indicated that the virus will result in any exceptions to these rules, so keep them in mind when making operational decisions.

At this point, other regulatory deadlines continue, particularly those that involve uploading material to the public inspection file.  Tomorrow, we plan to post our regular update on next month’s regulatory deadlines, which will include Quarterly Issues Programs lists for stations nationwide, due in the public file by April 10.  While the FCC building is shut down for normal business, the FCC itself is open and continuing to function with its employees teleworking.  I have had several calls and messages from various FCC employees in the last week, so I know that they are continuing to do their jobs while coping with the same disruption to normal routines that the rest of us face.  So watch these and other regulatory deadlines – and consult your own station attorney about issues for unmanned operations that we may not have considered here.

Courtesy Broadcast Law Blog

The FCC yesterday issued a Public Notice addressing news sharing or “pooling” agreements between television stations that are coming together as a result of the COVID-19 pandemic.  Stations may be faced with fewer crews to cover local events as infections and self-quarantines take place, and because of the general obligation to maintain physical distancing from other people, no one wants a crowd of camera crews and reporters at every news event.  The FCC’s notice yesterday states that such agreements entered into during the crisis for news sharing do not need to be in writing and do not need to be in the public file – an exemption to the normal obligation to reduce any sharing agreement between TV stations to writing and add it to the online public file.  That obligation exempts “on-the-fly” arrangements during breaking news events and those precipitated by unforeseen or rapidly developing events.  The FCC concluded that pandemic-related agreements fit into that category.

Ordinarily, the obligation to include sharing agreements between TV stations in the public file is a very broad one.  We wrote about that obligation here.  The rule grew out of concerns by the FCC that stations could be using sharing agreements to skirt the FCC’s ownership rule limitations and wanted such agreements to be public so that it, and the public, could review their provisions to determine if any FCC action was necessary.

Obviously, that concern has nothing to do with the current agreements that are being set up to facilitate news coverage during the pandemic.  But stations need to note that the exemption described in the Public Notice yesterday was limited to temporary shared news-gathering efforts related to COVID-19 news coverage.  If agreements are meant to last beyond the current emergency, or are otherwise unrelated to the current pandemic circumstances, they should be in writing and included in the public file.  As the dividing line may not be clear, talk to your own counsel for guidance as to when these news-sharing agreements need to be evidenced by a written document and included in your public file.

We also note that there may be other considerations not involving the FCC that can arise from these agreements.  For instance, there may be copyright implications if stations agree to share content that they did not create.  Similarly, there may be questions about how long shared content can be used and re-used.  For instance, there may be questions about whether it can be used in a retrospective on the crisis once it is over.  Thus, stations may well want to put these agreements into writing to make sure that everyone understands the extent of the permissible sharing.  Again, talk to your own attorneys about these issues.

Courtesy Broadcast Law Blog

Despite the telework restrictions in place at the FCC, regulatory life goes on, with the Commission continuing to process applications and deliver decisions every day.  One of those decisions released yesterday clarified the FCC’s rural radio policy, and its application to noncommercial FM stations.  The rural radio policy was adopted a decade ago to preserve program diversity in rural areas by restricting the move of radio stations into more urbanized areas through city of license changes.  The policy restricts rural stations from changing their city of license to a location from which the station could place a principal city contour over 50% of any urbanized area (see our articles here and here for more details on this policy).  The decision yesterday upheld prior decisions in the same proceeding which concluded that, for noncommercial reserved-band stations, the appropriate contour to analyze is the 60 dBu contour.  If that contour would cover more than 50% of an urbanized area after a city of license change, the change will generally be prohibited for any station not now providing such coverage over an urbanized area.

The licensee in this case had argued that this decision was illogical, as the rural radio prohibition for commercial stations is only triggered when the 70 dBu contour covers more than 50% of the urbanized area – not the 60 dBu contour.  The FCC rejected that argument, saying that the policy being advocated was more appropriately raised in a rulemaking, not in an application case like this.  The FCC’s finding in this case would mean that two broadcasters, one commercial and one noncommercial, could propose moves from rural locations to the same new city of license and propose to operate from the exact same antenna with the exact same power levels and height above average terrain, and the noncommercial application would be denied as it would be deemed an application for the urbanized area because its 60 dBu contour covered more than 50% of that area, while the commercial station would be granted as its 70 dBu did not reach 50% of the urbanized area.  Two stations providing exactly the same service to the same urbanized area would be treated differently – one as if it serves the urbanized area, the other as if it would not.

The rural radio prohibition has been subject to much criticism over the years (see, for instance, our articles here, here and here).  We’ve suggested from time to time that this policy is one that might be considered by the FCC in its modernization of media regulation proceeding.  The prohibition was meant to protect program diversity in rural markets, even if there was no economic base to support that rural service.  Moreover, in recent years, there has developed a multiplicity of programming options available in rural areas through national services like satellite radio.  The policy has also had the effect of freezing competition in urban markets, where stations have in many cases already been consolidated into commonly owned clusters.  New entrants, whose most cost-effective way of entering a market may be to move a rural station into that market, find it difficult to do so because of the rural radio policy.  That is one of the reasons that many advocacy groups for minority ownership have called for the repeal of this policy (see, for instance, the comments of MMTC in the modernization of media docket).  Yesterday’s decision might just create more supporters for the demise of this policy among noncommercial licensees.

Courtesy Broadcast Law Blog

In recent days, we have seen Presidential primaries delayed by the coronavirus in at least six states – including Ohio which was originally set to vote yesterday but has postponed its primary until June 2.  We expect that additional states will be looking at extensions in the coming days.  As lowest unit rate windows had already opened in many of these states, the postponement will result in the Presidential candidates getting another 45-day window for those low rates in advance of the rescheduled primary date.  But, with the primaries now being scheduled for a later date, there is no FCC requirement that stations continue in the original window period to charge lowest unit rates to the candidates – under FCC rules, stations can wait to make those rates available until the 45-day period before the new primary date.  With so much changing on a daily basis, keep track of these changing deadlines in your state.

Courtesy Broadcast Law Blog