Broadcast Law Blog

With Barack Obama's historic victory just sinking in, all over Washington (and no doubt elsewhere in the country), the speculation begins as to what the new administration will mean to various sectors of the economy (though, in truth, that speculation has been going on for months).  What will his administration mean for broadcasters?  Will the Obama administration mean more regulation?  Will the fairness doctrine make a return?  What other issues will highlight his agenda?  Or will the administration be a transformational one - looking at issues far beyond traditional regulatory matters to a broader communications policy that will look to make the communications sector one that will help to drive the economy?  Some guesses, and some hopes, follow.

First, it should be emphasized that, in most administrations, the President has very little to do with the shaping of FCC policy beyond his appointment of the Commissioners who run the agency.  As we have seen with the current FCC, the appointment of the FCC Chairman can be the defining moment in establishing a President's communications policy.  The appointment of Kevin Martin has certainly shaped FCC policy toward broadcasters in a way that would never have been expected in a Republican administration, with regulatory requirements and proposals that one could not have imagined 4 years ago from the Bush White House.  To see issues like localism, program content requirements and LPFM become such a large part of the FCC agenda can be directly attributed to the personality and agenda of the Chairman, rather than to the President.  But, perhaps, an Obama administration will be different.

Continue Reading Posted By David Oxenford In EEO Compliance , General FCC , Programming Regulations , Public Interest Obligations/Localism | Permalink | 0 Comments | Email entry

In the FCC’s recent Report and Order on Diversity, released earlier this year, the Commission announced new requirements for all broadcast station’s advertising sales contracts. The new FCC rule requires that all advertising contracts contain clauses ensuring that there is no discrimination based on race or gender in the sale of advertising time. This new requirement, which took effect in July, not only requires broadcasters to have these non-discrimination clauses in their advertising sales contracts, but will also require that broadcasters certify as to the existence of such clauses in their next license renewal application. Thus, to be sure that you can make such certifications, you must revise your advertising contracts to include a nondiscrimination provision, such as the one set out below, if you have not done so already. 

These new measures are intended to increase participation in the broadcast industry by businesses owned by women and minorities. The Commission was concerned that some advertising contracts include either explicit or implicit “no urban/no Spanish” dictates. Such contractual limitations, the Commission explained, may violate U.S. anti-discrimination laws by either presuming that certain minority groups cannot be persuaded to buy the advertiser’s product or service, or worse, intentionally minimizing the number African Americans or Hispanics patronizing advertisers’ businesses. 

Continue Reading Posted By David Oxenford In Advertising Issues , EEO Compliance | Permalink | 6 Comments | Email entry

The FCC has released another Public Notice that it is auditing the EEO performance of a number of the entities that it regulates.  However, this time, the audits are not of broadcasters, but instead of cable companies and other multichannel video programming distributors who are subject to essentially the same EEO rules as broadcasters.  The list of MVPDs that have been hit by the audit can be found appended to the Notice.  Each company that was audited has 30 days to respond to the FCC with details of its compliance with the EEO rules, including information about the wide dissemination of information about each of its job openings and other EEO outreach efforts that it has made.  The FCC's policy is that it will audit the EEO performance of 5% of all of its broadcasters and MVPDs each year - so use this audit notice as a reminder to review your EEO program.  Details of the FCC's requirements for a broadcaster's EEO obligations can be found in Davis Wright Tremaine's advisory, here.

Posted By David Oxenford In EEO Compliance | Permalink | 0 Comments | Email entry

Last week, the FCC released a Public Notice asking for comments on whether it should begin a Section 403 investigation into the use of Arbitron's Portable People Meter ("PPM").  A coalition of broadcast groups, the "PPM Coalition," principally comprised of broadcasters providing service to minority communities, sought the investigation as a way of delaying the implementation of the PPM technology next month in a number of large broadcast markets.  In their request, which can be found on the Minority Media and Telecommunications Council website, the PPM Coalition argues that the investigation is justified based on the Commission's objectives (and various administrative and legislative mandates) to improve minority ownership in broadcasting.  The PPM Coalition contends that methodology problems in PPM implementation result in artificially low ratings for minority owned stations.  These parties argue that, if the system is implemented, a number of minority-programmed stations will disappear.  Arbitron has argued that the Commission does not have the jurisdiction to regulate ratings services (who are obviously not FCC licensees) or the methodology that they use.  Comments on the request for an investigatory hearing are due on September 24, and replies on October 6 (two days before the PPM system is to be implemented in eight markets).

Section 403 of the Communications Act gives the Federal Communications Commission the power to conduct investigations of any complaint of any violation of its rules or of provisions of the Communications Act, or to explore any other matter relating to the provisions of the Act.  Such investigations are often conducted before an Administrative Law Judge, but can be conducted before the Commission itself, and allow the FCC to use full discovery techniques (e.g. document production requests and depositions) and to conduct an evidenciary hearing.  In the past, the process was used much more frequently.  It has been used both to investigate specific complaints of possible misconduct by individual licensees, and to conduct broader inquiries into business practices in a regulated industry to decide if FCC regulation was necessary.  For instance, in the 1960s, there was an investigation into network practices to determine if those practices required FCC action to regulate the network-affiliate relationship.  In recent years, the power has been rarely used, and when used has tended to relate to specific allegations of misconduct to determine if the FCC should bring some sort of enforcement action against a regulated entity.

Continue Reading Posted By David Oxenford In EEO Compliance , General FCC , Public Interest Obligations/Localism | Permalink | 0 Comments | Email entry

In two recent actions, the FCC has evidenced its concern about the EEO performance of its licensees.  Last week, the Commission's Enforcement Bureau entered into a Consent Decree with DIRECTV, by which DIRECTV paid the FCC $150,000 in lieu of a fine for the company's failure to abide by the FCC's EEO rules by not preparing an Annual EEO Public File Report or submitting a Form 396-C for several years.  The FCC also released a Public Notice announcing changes in the racial categories to be used in FCC Form 395 - the Form breaking down the employees of a broadcaster or cable company by race and gender.  That form has not been filed for years, as its use was prohibited when the FCC EEO rules were declared unconstitutional.  In adopting new EEO rules in 2003, the FCC promised to return the form to use, but has been wrestling with the issue of whether or not the form should be publicly available or whether it should simply used internally by the FCC to collect data about industry employment trends. The adoption of new definitions for the racial categories specified on the form may signal the return of this form.  Together, these actions demonstrate that the FCC has not lessened its concern about EEO in any fashion.

The DIRECTV fine was the result of the company's failure to prepare Annual EEO Public File Reports or to submit 2003 and 2004 Form 396-C reports - reports that are more detailed versions of the Form 396 filed by broadcasters with their license renewals and the Form 397 Mid-Term Employment report.  The Form 396-C requires that multichannel video providers detail their hiring in the previous year and the outreach efforts made to fill job vacancies, the supplemental efforts that the employment unit has made to educate its community about job openings, and other details on the company's employment practices.  After review of the company's efforts, the Commission not only faulted the company for its paperwork failures, but also determined that the company had not engaged in sufficient outreach for all of its employment openings - relying solely on the Internet and on word-of-mouth recruiting for many job openings, which the Commission found to be insufficient.  Broadcasters need to make sure that they do not forget to file their required EEO forms, prepare their annual EEO Annual Public File Report, and engage in wide dissemination of information about all job openings.  Details of the FCC's EEO rules, policies and requirements applicable to broadcasters can be found in Davis Wright Tremaine's EEO Advisory.

Continue Reading Posted By David Oxenford In EEO Compliance , FCC Fines | Permalink | 0 Comments | Email entry

The FCC today issued an order extending the comment deadline in its Broadcast Diversity proceeding, extending the comment date a full month until July 30, with Reply Comments now due on August 29.  This important proceeding, about which we wrote here, will address many issues, including proposals to, among other things, repurpose television Channel 6 (and possibly Channel 5) for FM use after the completion of the television digital transition, to allow FM licensees who multicast to sell one of their multicast channels independently of the main channel, to allow certain AM stations with expanded band channels to avoid turning in one of their channels at the end of the 5 year transition period if the licensee is a designated entity (or sells one of its channels to a designated entity), and to provide Class A television stations with must-carry status.  The rulemaking proceeding will also look at whether the current definition of a designated entity (focusing on the fact that it is a small business as opposed to any review of the race or gender of its owners) is the one that the FCC should continue to use.  Thus, this is an important proceeding in which many broadcasters should be interested, and now you have more time to prepare comments on the issues that are raised. Posted By David Oxenford In AM Radio , Cable Carriage , EEO Compliance , FM Radio , Low Power Television/Class A TV , Public Interest Obligations/Localism | Permalink | 0 Comments | Email entry

The Commission today published notice in the Federal Register revising the dates for submitting comments in its rule making "In the Matter of Promoting Diversification of Ownership in the Broadcasting Services."  If you will recall, this is the rule making proceeding that seeks comment on a number of new proposals, including whether to revise the definition of "Designated Entities", possibly expanding the FM band to include TV channels 5 and 6, possibly adopting rules to allow AM expanded band stations to retain those stations or transfer them to Designated Entities, and whether Class A LPTV stations should be afforded must-carry rights on cable systems. 

Although the FCC had initially pegged the comment date at July 15th when it first published notice a couple of weeks ago, apparently that date was a miscalculation.  Thus, the dates for commenting have now been revised, and Comments in the proceeding are now due on or before June 30, 2008, and Reply Comments are due on or before July 14, 2008.  This means that interested parties have a couple of weeks less than initially thought to prepare and file comments in this proceeding, so start drafting now.  See our earlier summary of this proceeding for more information.  A copy of today's Federal Register notice can be found here. 

Posted By Brendan Holland In AM Radio , EEO Compliance , FM Radio , FM Translators and LPFM , Low Power Television/Class A TV , Multiple Ownership Rules | Permalink | 0 Comments | Email entry

June 1^st marks the deadline for two FCC EEO requirements.  First, by June 1^st, radio and television stations located in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming, must prepare their Annual EEO Public File Reports.  Specifically, stations or Station Employment Units (SEUs) in those states (and DC) with five or more full time employees (30 hours or more per week) must:  (1) prepare their Annual EEO Public File Report; (2) place it in the public inspection file of each station comprising the SEU; and (3) post the Report on the websites, if any station in the SEU has a website, all by June 1.  The Annual EEO Public File Report summarizes the hiring and EEO activities conducted by the station or SEU during the past 12 months.  The Report provides information about the full time job positions filled in the last year, the recruitment sources used to fill those positions, and the outreach activities that the station or SEU performed during the year.  In preparing their Annual Reports, stations are encouraged to carefully review their EEO activities and take the time to organize their records.  Stations should have appropriate documentation to back up each of the recruitment sources used for each job opening, as well as for each outreach activity.  This annual report is also a good time for the station or employment unit to assess the success of its outreach and the efficacy of its recruitment sources, and to make any adjustments necessary to improve EEO compliance in the coming year.  A copy of our longer EEO advisory can be found here. 

Second, in addition to preparing the Annual EEO Public File Report by June 1, larger radio stations in Michigan and Ohio (those with eleven or more full-time employees), and television stations in the District of Columbia, Maryland, Virginia, and West Virginia must also prepare and file electronically with the Commission an FCC Form 397 Mid-Term EEO Report.  The Form 397 provides the FCC with copies of the SEU's two most recent Annual EEO Public File Reports, and is an important part of both the station’s compliance with the EEO rules and the Commission’s monitoring procedures.  While normally the Annual Report is simply prepared and placed in the station's public file and on the website, at the mid-point of the license term stations must actually provide the FCC with copies of its two most recent Reports.  Notably, June 1st marks the first time that television stations will have filed the Form 397, as television renewals are staggered from radio renewals.  Following the renewal anniversaries, television stations in other states will follow later this year and next.  And again, only radio stations or SEUs located in Michigan and Ohio that have 11 or more full-time employees, and television stations in DC, Maryland, Virginia, and West Virginia with five or more full-time employees are required to file an FCC Form 397. 

Posted By Brendan Holland In EEO Compliance | Permalink | 0 Comments | Email entry

UPDATE  5-29-2008-  Please note, the Commission has revised the dates for submitting comments in this rule making proceeding.  Comments in the proceeding are now due on or before June 30, 2008, and Reply Comments are due on or before July 14, 2008.  This means that interested parties have a couple of weeks less than initially thought to prepare and file comments in this proceeding, so start drafting now.  A copy of the Federal Register correction notice can be found here. 

The FCC has published its Further Notice of Proposed Rulemaking on its efforts to encourage diversity in the broadcast media in the Federal Register, thus setting the dates for public comments.  The FCC is seeking comment on a number of ideas – some to restrict the definition of the Designated Entities that are eligible to take advantage of the rules promote diversity to minority groups and perhaps women, others to expand the universe of media outlets available to potential broadcast owners – including proposals to expand the FM band onto TV channels 5 and 6, and proposals to allow certain AM stations, which were to be returned to the FCC after their owners received construction permits for expanded band stations, to retain those stations or transfer them to Designated Entities.  There are numerous other issues to be considered that we summarized in detail here.  Check out the details, and file your comments, which are due on June 30. 

The Federal Register publication also sets the effective date for the Diversity rules that the FCC did adopt.  These rules will become effective on July 15.  We summarized the new rules here.  While many of these new rules are relatively uncontroversial, allowing certain limited exceptions to the multiple ownership rules for companies that help minority ownership, some have imposed new obligations that, in some cases, are not easily defined.  For instance, while no one would argue with the proposition that parties who discriminate based on race or gender should be penalized, the FCC adopted some rules that may need further clarification.  For instance, the FCC adopted new rules to require certifications that there has been no discrimination in all FCC applications seeking approval for the sale of a station (FCC Forms 314 and 315).  The FCC also adopted rules prohibiting dictates by advertisers that their advertising not run on urban or Spanish formatted stations ('no urban, no Spanish" dictates).  Yet, on neither of these rules did the FCC provide any specificity as to what they were prohibiting, or what the Commission would look at in enforcing these rules.  Watch for potential requests for reconsideration or clarification of these and perhaps other rules - which are due on June 15. 

Posted By David Oxenford In AM Radio , EEO Compliance , FM Radio , Multiple Ownership Rules | Permalink | 1 Comments | Email entry

In recent months, the broadcast industry has experienced one of the most active periods of regulatory activity in recent memory. Since November, the FCC has adopted enhanced disclosure obligations concerning the public interest programming of television broadcasters and requirements for an on-line public inspection file; rejected most calls for increased deregulation of broadcast ownership (allowing only the cross-ownership of broadcast stations and newspapers in the largest markets); established specific prohibitions against advertising practices that involved “no Spanish, no urban dictates”; placed mandatory disclosure obligations on television broadcasters in connection with promotion of the DTV transition; proposed rules that could favor low power FM stations over improvements in full-power broadcast services and existing FM translator licensees; and proposed sweeping regulation of broadcasters which could potentially require specific amounts of nonentertainment programming by all stations, restrict the flexibility of broadcasters' location of their main studios, require 24-7 live staffing for all stations that operate on that basis, and perhaps even evaluate the music selection process of radio operators. Rumored to be in the offing are proposals to regulate embedded advertising, to adopt enhanced rules on sponsorship identification in connection with video news releases and payola-like practices, and perhaps even expand EEO reporting requirements (as the FCC recently asked for public comment on the employee-classification information for its long-suspended requirements for the filing of FCC Form 395 – the Annual Employment Report in which stations categorize all their employees by their employment duties, race and gender). And Congress has not been idle, with proposals introduced for the adoption of a performance royalty on over-the-air radio for the use of sound recordings, hearings about potential restrictions on prescription drug advertising, and a proposal to roll back the limited ownership reform adopted by the Commission in December.

With all this activity in a six month period under a Republican administration with a Republican majority on the FCC, during a time of great turmoil in the broadcast industry itself, as television prepares for the digital transition and broadcast revenue growth is slow or nonexistent (based on a variety of factors including general economic conditions and competition from the plethora of new media choices), many broadcasters are wondering what’s going on? And some fear even more changes could come about in any new administration that may come to Washington after the November elections, no matter what the result of that election. The one candidate with the most experience in the regulation of broadcasting, Senator McCain who has chaired the Senate Commerce Committee which regulates the broadcast industry, has by no means been a captive of the broadcast industry – leading efforts to enhance the use of LPFM and at one point pushing a spectrum tax proposal for television broadcasters for the use of the digital spectrum.

Continue Reading Posted By David Oxenford In Advertising Issues , Digital Television , EEO Compliance , FM Translators and LPFM , General FCC , Multiple Ownership Rules , Programming Regulations , Public Interest Obligations/Localism | Permalink | 3 Comments | Email entry

As we wrote last week, the FCC recently admonished two major broadcasters, each of which had a station group which had not complied with the FCC's EEO rules.  In both cases, the FCC would have issued fines instead of the admonishments had it not been for renewal applications that were granted between the time of the violations and the FCC's EEO audit that uncovered the issues.  This past week, the FCC issued another list of stations that will be audited to determine their EEO compliance.  The list of stations to be audited is here.  The FCC's Public Notice of the audits is here.  As stated in the Notice, the FCC will audit 5% of all broadcast stations and all multi-channel video providers each year.  So expect more EEO audits in upcoming months.  To be sure that you are prepared to meet the FCC's requirements for EEO compliance if your station is audited, see our EEO Compliance Guide, here.

Posted By David Oxenford In EEO Compliance | Permalink | 0 Comments | Email entry

We recently wrote about the Federal Communications Commission’s actions in their Diversity docket, designed to promote new entrants into the ranks of broadcast station owners. In addition to the rules adopted in the proceeding, the FCC is seeking comment on a number of other ideas – some to restrict the definition of the Designated Entities that are eligible to take advantage of these rules, others to expand the universe of media outlets available to potential broadcast owners – including proposals to expand the FM band onto TV channels 5 and 6, and proposals to allow certain AM stations, which were to be returned to the FCC after their owners received construction permits for expanded band stations, to retain those stations or transfer them to Designated Entities. The proposals, on which public comment is being sought, are summarized below.

Definition of Designated Entity. The first issue raised by the Commission deals with whether the class of applicants entitled to Designated Entity status and entitled to take advantage of the Commission’s diversity initiatives should be restricted. One proposal is to restrict the Designated Entity status to companies controlled by racial minorities. The Commission expressed skepticism about that proposal, noting that the courts had throw out several versions of the FCC’s EEO rules, finding that there was insufficient justification offered by the FCC to constitutionally justify raced-based preferences. The Commission asked that proponents of such preferences provide a “compelling” showing of needed, as necessary for a constitutional justification for governmental race-based discrimination.

Continue Reading Posted By David Oxenford In EEO Compliance , FM Radio , Low Power Television/Class A TV , Multiple Ownership Rules , Public Interest Obligations/Localism | Permalink | 0 Comments | Email entry

In two decisions released this week by the FCC, here and here, two large broadcast group owners were admonished for failures to comply with the FCC’s EEO rules. In both cases, failures to widely disseminate information about job openings in one market were discovered by the FCC in the course of random EEO audits that selected these stations for review. In both cases, the Commission determined that the violations were serious, and imposed reporting conditions (essentially subjecting the stations to an FCC audit of their EEO annual public file reports every year for the next 3 years). And in each case, the FCC would have fined the stations for their violations, but the Commission moved too slow, as in both cases, license renewals were granted between the time of the violations and the EEO audit.  Under provisions of the Communications Act, the Commission cannot fine a station for action that occurred during a prior renewal term - so the grant of the renewals cut off the possibility of a fine in these cases.

These actions highlight the importance of complying with the Commission’s EEO rules, which we have summarized in our EEO Guide, here. In particular, in both cases, the station groups had not widely disseminated information about job openings, as required by the rules. Wide dissemination requires the use of recruitment sources designed to reach all groups within a community to allow their members to learn about the job openings at the station. The Commission's aim is to bring into the broadcast workforce employees representing diverse groups within a community rather than hiring all their employees from traditional broadcast sources.  In these cases, the stations had used only corporate websites, on-air announcements, and word of mouth recruiting. No outside sources, or sources reasonably likely to reach the entire community, were used by the broadcasters, hence the admonition and the reporting conditions. 

Continue Reading Posted By David Oxenford In EEO Compliance , FCC Fines | Permalink | 0 Comments | Email entry

Annual EEO Public File Report Deadline - April 1

Affected States:  Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas

By April 1, 2008, radio and television Station Employment Units (SEU) in the states listed above must: (1) prepare their Annual EEO Public File Report; (2) place it in the public inspection file of each station comprising the SEU; and (3) post the Report on the websites, if any station in the SEU has a website. The Annual EEO Public File Report summarizes the station's or the SEU's EEO activities during the previous 12 months, and provides information about the recruitment and outreach that the station conducted in the past year.  The states with the April 1 filing deadline are: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas.

In addition to preparing the Annual EEO Public File Report by April 1, larger radio stations in Indiana, Kentucky, and Tennessee must also prepare and file with the Commission an FCC Form 397 Mid-Term EEO Report. Please note, only radio station SEUs located in these three jurisdictions that have 11 or more full-time employees are required to file an FCC Form 397 by April 1, 2008.

Biennial Ownership Report Deadline - April 1

Affected States:   Radio: Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee; Television:  Texas 

By April 1, 2008, radio stations in Delaware, Indiana, Kentucky, Pennsylvania and Tennessee, and television stations in Texas must prepare and file an FCC Form 323 Biennial Ownership Report with the FCC. Similarly, noncommercial stations in these states must file a Biennial Ownership Report on FCC Form 323-E. Ownership Reports are filed every other year, reporting on changes in the licensee’s ownership and updating the information requested by the form.

The timing for the filing of the Biennial Ownership Report and the preparation of the Annual EEO Public File Report is based on the anniversary of the filing of the station's license renewal. In turn, the renewal cycles are organized by state and type of service, and are staggered based on the FCC's prearranged schedule. Periodically, we will remind groups of stations as to their upcoming deadlines, and stations should be vigilant to make these required filings. 

Copies of our complete reminder memos containing additional information on each of these filing requirements can be found here (Ownership) and here (EEO).

Posted By Brendan Holland In EEO Compliance , General FCC , Programming Regulations , Public Interest Obligations/Localism | Permalink | 0 Comments | Email entry

At its December meeting, at the same time as it adopted rules relaxing the newspaper-broadcast cross-ownership rules, the FCC adopted new rules to expand diversity in the ownership of broadcast stations, encouraging new entrants into such ownership.  The full text of that decision was just released last week, providing a number of specific rule changes adopted to promote diverse ownership, as well as a number of proposals for changes on which it requests further comment.  Comments on the proposed changes will be due 30 days after this order is published in the Federal Register.  As this proceeding involves extensive changes and proposals, we will cover it in two parts.  This post will focus on the rule changes that have already been made - a subsequent post will cover the proposed changes.  The new rules deal not only with ownership rule modifications, but also with issues of discrimination in the sale of broadcast stations and in the sale of advertising on broadcast stations, new rules that leave some important unanswered questions. 

The rules that the Commission adopted were for the benefit of "designated entities."  Essentially, to avoid constitutional issues of preferences based on race or gender, the definition of a designated entity adopted by the Commission is based on the size of the business, and not the characteristics of the owners.  A small business is one designated as such by the Small Business Administration classification system.  Essentially, a radio business is small if it had less than $6.5 million in revenue in the preceding year.  A television company is small if it had less than $13 million in revenues.  These tests take into account not only the revenue of the particular entity, but also entities that are under common control, and those of parent companies.  For FCC purposes, investment by larger companies in the proposed FCC licensee is permissible as long as the designated entity is in voting control of the proposed FCC licensee and meets one of three tests as to equity ownership: (1) the designated entity holds at least 30% of the equity of the proposed licensee, or (2) it holds at least 15% of the equity and no other person or entity holds more than 25%, or (3) in a public company, regardless of the equity ownership, the designated entity must be in voting control of the company.

Continue Reading Posted By David Oxenford In Advertising Issues , EEO Compliance , Multiple Ownership Rules | Permalink | 2 Comments | Email entry

Here we are, almost a full month into the new year, and a number of important dates for broadcasters are already upon us.  As we wrote here, for instance, the payment of a minimum fee to SoundExchange by radio stations streaming their signals on the Internet is due today.  Lowest unit rates are in effect in many states for upcoming Presidential and even some Congressional primaries (see our post announcing the beginning of the LUR period for Super Tuesday).  FCC filing deadlines for Annual Ownership Reports for a number of states are due on February 1, as are EEO Public File Reports for several states.  And, on February 18, full power television stations must file with the FCC a Form 387 Status Report detailing where they are in their transition to digital television in time for the February 2009 transition deadline.  How is a broadcaster to keep all these dates straight?  Check out our advisory on the Important Dates for Broadcasters in 2008, available here, which tracks many of the deadlines that will occur this year - including the dates of routine FCC filings, lowest unit rate windows for political broadcasting purposes, and digital television transition milestones.

And a reminder about February 1 deadlines.  Radio stations in Arkansas, Louisiana, Mississippi, New Jersey, and New York, and television stations in Kansas, Nebraska, and Oklahoma must prepare and file electronically an FCC Form 323 Biennial Ownership Report with the FCC.  Our Advisory on completing and filing the Ownership Report can be found, here.  And radio and television Station Employment Units in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma must place in their Public Inspection File and post on their website, if they have a website, their FCC Annual EEO Public File Report.   In addition, radio stations in Arkansas, Louisiana, and Mississippi with eleven or more full-time employees must also prepare and file electronically with the Commission an FCC Form 397 Mid-Term EEO Report.  Our Advisory on these filing requirements can be found here.  Stay on top of all these deadlines with our advisory on Important Dates for Broadcasters for 2008.

Posted By David Oxenford In Digital Television , EEO Compliance , FCC Fees , General FCC , Internet Radio , Political Broadcasting | Permalink | 0 Comments | Email entry

The FCC has released the agenda for its Open Meeting to be held on Tuesday, November 27.  The agenda is full of issues of importance to broadcasters, and several items may resolve issues that may be troubling - including issues relating to low power FM stations (LPFM) and resolving a long outstanding proceeding concerning the possibility of mandatory public interest obligations for TV stations.  The Commission also has on tap initiatives to encourage the entry of minorities and other new entrants into the broadcast business - even though comments on the Commission's proposals on this matter were received just a month ago.

First, the Commission is to release an Order on Low Power FM.  We have written about some of the issues that could be decided previously - including issues of whether or not to allow the assignment and transfer of such stations (here) and whether to give these stations preferences over translators and even improvements in full power stations (here and here).

On the TV side, the Commission seems ready to issue an order on the public interest obligations of television operators.  We wrote about the proposals - made as part of the Commission's DTV proceedings (though to be applicable to all TV stations), here.  Proposed rules included the standardization of quarterly issues programs lists, making station's public fies available on the Internet, and quantifying other public interest obligations. 

Continue Reading Posted By David Oxenford In EEO Compliance , FM Translators and LPFM , Multiple Ownership Rules , Programming Regulations , Public Interest Obligations/Localism | Permalink | 0 Comments | Email entry

Annual EEO Public File Report Deadline - October 1

Affected States:  Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Mariana Islands, Missouri, Oregon, Puerto Rico, Virgin Islands, Washington

By October 1, 2007, radio and television Station Employment Units (SEU) in the states listed above must:  (1) prepare their Annual EEO Public File Report; (2) place it in the public inspection files of all stations comprising the SEU; and (3) post the Report on the websites, if any station in the SEU has a website.  The Annual EEO Public File Report summarizes the station's or the SEU's EEO activities during the previous 12 months, and provides information about the recruitment and outreach that the station conducted in the past year.  The states with the October 1 filing deadline are:  Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Mariana Islands, Missouri, Oregon, Puerto Rico, Virgin Islands, Washington. 

In addition to preparing the Annual EEO Public File Report by October 1, larger radio stations in Florida, Puerto Rico, and the Virgin Islands must also prepare and file with the Commission an FCC Form 397 Mid-Term EEO Report.  Please note, only radio station SEUs located in these three jurisdictions with 11 or more full-time employees are required to file an FCC Form 397 by October 1, 2007.

Biennial Ownership Report Deadline - October 1

Affected States:   Radio:  Alaska, American Samoa, Florida, Guam, Hawaii, Mariana Islands, Oregon, Puerto Rico, Virgin Islands, and Washington;  Television:  Iowa and Missouri

By October 1, 2007, radio stations in Alaska, American Samoa, Florida, Guam, Hawaii, Mariana Islands, Oregon, Puerto Rico, Virgin Islands, and Washington, and television stations in Iowa and Missouri must prepare and file an FCC Form 323 Biennial Ownership Report with the FCC.  Similarly, noncommercial stations in these states must file a Biennial Ownership Report on FCC Form 323-E.  Ownership Reports are filed every other year, reporting on changes in the licensee’s ownership and updating the information requested by the form.

The timing for the filing of the Biennial Ownership Report and the preparation of the Annual EEO Public File Report is based on the anniversary of the filing of the station's license renewal.  In turn, the renewal cycles are organized by state and type of service, and are staggered based on the FCC's prearranged schedule.  Periodically, we will remind groups of stations as to their upcoming deadlines, and stations should be vigilant to make these required filings.  Copies of our complete reminder memos containing additional information on each of these requirements can be found here (Ownership) and here (EEO).

Posted By Brendan Holland In AM Radio , EEO Compliance , FM Radio , General FCC , Television | Permalink | 0 Comments | Email entry

In a Further Notice of Proposed Rulemaking, the FCC last week asked for public comment on a series of initiatives to promote the ownership of broadcast stations by minorities and other Socially Disadvantaged Businesses ("SDBs").  These proposals, which include the potential for the sale without requiring any divestitures of clusters of radio stations which exceed the multiple ownership rules now in effect, and the potential for investors to invest in stations controlled by SDBs, even if such investment would otherwise violate the existing multiple ownership rules.  The Further Notice was issued in response to a petition filed over a year ago by the Minority Media Telecommunications Council, which asked for a withdrawal of the FCC's Notice of Proposed Rulemaking on the Multiple Ownership Rules (which we summarized here) because that Notice did not address the promotion of minority ownership of broadcast stations.  MMTC claimed that the Third Circuit's remand of the 2003 Multiple Ownership decision mandated that consideration.  Comments on the Further Notice, which will be resolved as part of the current multiple ownership proceeding, are due on October 1, and replies on October 15. 

The Notice raises a number of suggestions for regulatory changes to foster the ownership of broadcast stations by minority owners and other SDBs.  In addition to allowing the transfer of grandfathered radio clusters that no longer comply with the multiple ownership rules, these include specific proposals that would accomplish the following:

• Allowing investment by exiting broadcasters and others with attributable media interests into companies controlled by minorities without the investment being counted against the ownership holdings of the investing company
• Allowing minority groups to purchase unbuilt construction permits, and get sufficient time to construct those stations, even if the construction permit is otherwise to expire as it has been outstanding and unbuilt for over three years
• Granting some non-minority owned companies waivers to exceed the multiple ownership limits if they sell stations to SDBs (including a proposal to create tradable credits for creating minority-owned stations)
• Allowing for the waiver of the alien ownership limits if the investment by foreign companies would assist a minority-owned company in getting into the broadcast business.
• Revival of the policies permitting minority distress sales (where a broadcaster against whom there were issues pending which could lead to a revocation of a license could sell their station to a minority group and avoid the revocation proceeding) and minority tax credits  (where a broadcaster who sells to a minority group could defer gains on sale if the money was reinvested into any broadcast company in the future)

Continue Reading Posted By David Oxenford In EEO Compliance , Multiple Ownership Rules | Permalink | 0 Comments | Email entry

Annual EEO Public File Report Deadline—August 1

Affected States:  California, Illinois, North Carolina, South Carolina, and Wisconsin

By August 1, 2007, radio and television Station Employment Units in the states listed above must place in their Public Inspection File and post on their website, if they have a website, their FCC Annual EEO Public File Report.  A Station Employment Unit (SEU) is a group of stations, under common control, serving a common area, and sharing at least one employee.  If an SEU includes stations in different states with different filing deadlines, the SEU can select which filing deadline it will use.  Once selected, the Annual Report filing deadline should be consistently applied for all future EEO Annual Reports.  The states with the August 1 filing deadline are:  California, Illinois, North Carolina, South Carolina, and Wisconsin.

Biennial Ownership Report Deadline—August 1

Affected States:   Radio TV- Illinois and Wisconsin - California, North Carolina, and South Carolina;

In addition, by August 1, 2007, radio stations in California, North Carolina, and South Carolina, and television stations in Illinois and Wisconsin must prepare and file an FCC Form 323 Biennial Ownership Report with the FCC.  Similarly, noncommercial stations in these states must file a Biennial Ownership Report on FCC Form 323-E. 

Continue Reading Posted By Brendan Holland In EEO Compliance , FM Radio , General FCC | Permalink | 0 Comments | Email entry

The FCC today announced another round of EEO audits of broadcast stations throughout the country.  The FCC's Public Notice of the audits, and the list of the stations that are affected, can be found here.  Broadcasters should review this list carefully, both by call letter and licensee name, as we have noted situations where the FCC's list of licensee names used in this audit is not accurate, even though the licensee is correct elsewhere in the FCC's databases.  The audit letters were dated June 12, and responses are due in 30 days.  These letters usually require answers to an extensive list of questions, as well as the submission of supporting documentation to show a licensee's compliance with the FCC's EEO rules over the last two years.  We have written a Guide to the FCC's EEO requirements, which can be found here, to help broadcasters assure their compliance with these rules.  Whether or not a broadcaster is on this audit list, this opportunity should be used to review your EEO compliance, as the Commission conducts these audits on a regular basis - so you could be next.  Posted By David Oxenford In EEO Compliance | Permalink | 0 Comments | Email entry

As we reminded broadcasters earlier this month, the first filings of FCC Form 397, the Broadcast Mid-Term EEO Report, will be due to be filed at the FCC on June 1.  This report is filed 4 years after the due date for filing of a station's license renewal application, and is to be filed by all radio station employment units with more than 10 full time employees, and all TV station employment units with five or more employees.  The first reports are due on June 1 by radio groups in Maryland, Virginia, West Virginia and the District of Columbia.  Every two months thereafter, stations in a different group of states will need to file their Mid-Term reports.  Last week, the FCC released a Public Notice clarifying some aspects of the filing process.

The Public Notice addressed two principal issues - (1) what happens when radio station clusters and their associated station employment units include stations in different states with different filing deadlines, and (2) what happens when employment units include both radio and television stations in the same state.  For radio employment units with stations in different states, the FCC reminds broadcasters that they should have made an election about which state's filing deadline to use back in 2003 when the current EEO rules were adopted, and they should have been using that election for each of their public file reports since then.  That same election would control the filing deadline for the Mid-Term report. 

Continue Reading Posted By David Oxenford In EEO Compliance | Permalink | 0 Comments | Email entry

In addition to preparing their Annual EEO Public File Report by June 1, larger radio stations in Washington, DC, Maryland, Virginia, and West Virginia must also prepare and file with the Commission an FCC Form 397 Mid-Term EEO Report.

Please note, only radio Station Employment Units located in these four jurisdictions with 11 or more full-time employees are required to file an FCC Form 397 by June 1, 2007.  The Form 397 provides the FCC with copies of the Station Employment Unit’s two most recent Annual EEO Public File Reports (the reports from this year and last year), and is an important part of both the station’s compliance with the EEO rules and the Commission’s monitoring procedures.  While normally the Annual EEO Public File Report is simply prepared and placed in the station’s public file and on its website (if it has one), at the mid-term of the license term and again at the time the station’s license renewal application is filed, stations must actually provide the FCC with its two most recent Public File Reports.  This allows the FCC and the public to review the station’s compliance with the EEO rules.  

June 1, 2007 is the first time that the Mid-Term EEO Report will be filed by any group of stations, and marks the mid-point in the license term for radio stations in DC, Maryland, Virginia, and West Virginia. Television stations in these states will file a Mid-Term EEO Report this time next year.  A copy of the FCC’s Public Notice reminding stations of this filing requirement and listing the other radio stations that will file such reports in 2007 is available here.

Posted By Brendan Holland In EEO Compliance , General FCC | Permalink | 0 Comments | Email entry

Annual EEO Public File Report Deadline—June 1

Affected States:   Arizona, District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming

By June 1, 2007, radio and television Station Employment Units in the states listed above must place in their Public Inspection File and post on their website, if they have a website, their FCC Annual EEO Public File Report.  A Station Employment Unit (SEU) is a group of stations, under common control, serving a common area, and sharing at least one employee.  If an SEU includes stations in different states with different filing deadlines, the SEU can select which filing deadline it will use.  Once selected, the Annual Report filing deadline should be consistently applied for all future EEO Annual Reports. The states with the June 1 filing deadline are:  Arizona, District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming.

Biennial Ownership Report Deadline—June 1

Affected States:   Radio- Arizona, District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, and Wyoming;  TV- Michigan and Ohio

In addition, by June 1, 2007, radio stations in Arizona, District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, and Wyoming, and television stations in Michigan, and Ohio must prepare and file an FCC Form 323 Biennial Ownership Report with the FCC.  Similarly, noncommercial stations in these states must file a Biennial Ownership Report on FCC Form 323-E.

Continue Reading Posted By Brendan Holland In EEO Compliance , General FCC | Permalink | 0 Comments | Email entry

The FCC staff seems to be under orders to act on any long pending items sitting on their desks that they can, resulting in a flurry of radio and television license renewal grants, fines, application dismissals, and other decisions, all occurring in recent weeks.  Apparently taking the view that any action is better than inaction, the staff has been granting or dismissing pending items at an unprecedented clip, sometimes to ill effect.  We've never seen so many fines issued in one month - to many stations for filing late license renewal applications, for having inadequate public files, for failure to comply with the children's television requirements of the FCC's rules, and for  violations of the FCC's EEO rules (which we recently wrote about here and here).  The Commission last week also released a number of decisions on cable carriage issues - often dismissing applications as inadequate without asking for any sort of supplemental information which might have resolved the problems with the filings.  It also has been dealing with a number of long-pending requests for extensions of the Digital Television build-out deadlines.

It is not clear if this unprecedented flurry of action is the result of Chairman Martin pushing to make the Commission more efficient and encouraging the staff to work through older items, or if it is tied to the new Democratic-controlled Congress and the concerns over oversight hearings, or if it is just early spring cleaning, but clearly the Commission has been marching to a different drummer in recent weeks.  We’ll keep watching to see if the frenzied pace keeps up, and more importantly, to see if the effort to clean up some of the long pending matters is extended to the various pending rule makings affecting broadcasting.  See our Advisory on possible broadcast issues for 2007 for a summary of all the rulemaking matters that remain pending.

Posted By Brendan Holland In Cable Carriage , Digital Television , EEO Compliance , FCC Fines , General FCC | Permalink | 0 Comments | Email entry

The FCC today released a Public Notice announcing that it had sent EEO audit letters to approximately 150 radio and television stations around the country.  The Public Notice contains a list of the stations being audited.  In its Order adopting the current EEO rules, the FCC promised to audit about 5% of all stations each year.  Thus, expect more audits as the year progresses.

As we wrote last week, the FCC recently fined a number of stations for violations of the EEO Rules discovered either as a result of audits or in the license renewal process.  Today, fines of $5000 each were issued to two stations which had not conducted broad outreach for 40% of their job openings (the stations had recruited for only 6 of 10 job vacancies reported in their renewal applications).  This decision is significant as it is one of the first times that the FCC has fined a station for something other than an almost complete failure to recruit or do the necessary paperwork.  Here, the stations had relied solely on word of mouth recruiting for 4 of 10 positions, causing the FCC to find its efforts inadequate.

Clearly, the FCC is getting very serious about enforcement of its EEO policies.  For a complete outline of the FCC's EEO requirements, read our EEO advisory, here.

Posted By David Oxenford In EEO Compliance | Permalink | 0 Comments | Email entry

The FCC has issued two significant forfeitures (fines) in recent days for violations of its Equal Employment Opportunity (“EEO”) rules and related record keeping requirements.  These fines serve as a reminder that stations must develop, implement and document their EEO programs, or face sanctions from the FCC.  Our primer on how to comply with the FCC's EEO rules can be found here.

Yesterday, the Commission issued a decision against the licensee of a cluster of radio stations for failing to comply with the Commission’s EEO initiatives, including outreach, periodic self-assessment, record keeping, and public file requirements.  The decision was the result of a random EEO audit, and a copy of the complete decision is available here.  The licensee had owned the stations for only a few years and was not entirely sure when the cluster had crossed the threshold of having five full-time employees, and thus, when it was first required to conduct a full EEO program.  Because of the complete lack of records documenting the hires made during the applicable period (covering nearly a year and a half), the Commission had a hard time assessing the licensee’s vacancy specific recruitment efforts.  But in the end, the Commission issued a proposed fine in the amount of $13,000 for violations including:  1) failing to perform any EEO initiatives; 2) failing to prepare and place in the public inspection file the required annual EEO report; 3) failing to maintain and file EEO documentation and records required by the rules; and 4) failing to adequately analyze its recruitment program.  The FCC also imposed reporting conditions requiring the licensee to file periodic reports with the FCC through 2010 so that it can monitor the stations’ EEO efforts in the future. 

The Commission continued this momentum today, with an even larger fine – this one for $20,000 – issued to a broadcast television station in Texas for, among other things, failing to widely disseminate information regarding the vast majority of its job vacancies, failing to provide notification of job openings to organizations requesting such information, failing to analyze the station’s efforts, and failing to maintain proper documentation. This enforcement action was also the result of a random EEO audit, and a complete copy of the decision is available here.   

Continue Reading Posted By Brendan Holland In EEO Compliance , FCC Fines | Permalink | 0 Comments | Email entry

In a decision released this week, the FCC fined a station group in Alaska for violations of its EEO Rules.  The station group had failed to do any outreach for about a quarter of its job openings.  However, what was notable about the decision was that the Commission also faulted the licensee for using only one website for recruiting for another quarter of its job openings.  The FCC decision stated that reliance on the Internet as the sole recruitment source for job openings was insufficient to achieve the required wide dissemination of notice of the job opening, as the FCC did not believe that the Internet was sufficiently universal to provide notice of that opening to all groups within a entire community.

While in this day and age, it is certainly questionable as to whether Internet access is less ubiquitous than newspaper readership, this is the Commission's position at this point.  Thus, stations are advised that, to be in compliance with the Commission's rules, they must rely on sources in addition to the Internet when publicizing job openings. 

For more information about achieving compliance with the FCC's EEO rules, see our advisory outlining the rules and providing model forms necessary to document that compliance.

Posted By David Oxenford In EEO Compliance | Permalink | 0 Comments | Email entry