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April is one of those months in which many FCC obligations are triggered for broadcasters. There are the normal obligations, like the Quarterly Issues Programs lists, that need to be in the public file of all broadcast stations, radio and TV, commercial and noncommercial, by April 10. Quarterly Children's television reports are due to be submitted by TV stations. And there are renewal obligations for stations in many states, as well as EEO Public File Reports that are due to be placed in station's public files and on their websites. The end of March also brings the obligation for television broadcasters to start captioning live and near-live programming that is captioned on air, and then rebroadcast on the Internet. Finally, there are comment deadlines on the FCC's proposal to relax the foreign ownership limits, and an FM auction and continuing FM translator filing requirements.

Radio stations in Texas and television stations in Tennessee, Kentucky and Indiana have renewal applications due on April 1. The license renewal pre-filing broadcast announcements for radio stations in Arizona, Idaho, Nevada, New Mexico, Utah and Wyoming, and for TV stations in Michigan and Ohio, must begin on April 1. All of these stations will be filing their renewals by June 1. EEO Annual Public file reports for all stations (radio and TV) with five or more full-time employees, which are located in Texas, Tennessee, Kentucky, Delaware, Pennsylvania or Indiana, must be placed in their public files (which are now online for TV broadcasters) by April 1.   Noncommercial radio stations in Texas, and noncommercial TV stations in Tennessee, Indiana Delaware, Pennsylvania, and Kentucky must also file their Biennial Ownership Reports by April 1. 

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Both radio and TV broadcasters either have recently completed the license renewal process, or will be doing so in the next few years. Many broadcasters think that, once their broadcast licenses are renewed, so too are all of the other communications licenses that are operated in connection with their station. While that may be true for broadcast auxiliary licenses, like Studio Transmitter Links and Remote Pickups, there are other FCC authorizations that are not covered by the broadcast license renewal process, and are also not covered by the applications on FCC Forms 314 and 315 for the sale of a broadcast station. If a broadcaster does not pay attention to the expiration dates for these nonbroadcast licenses, or forgets to separately file an application for permission to assign these licenses during a sale of their broadcast station, a fine like the $18,000 fine that was just issued to a radio broadcaster who forgot that earth station licenses are different from a main broadcast license or a broadcast auxiliary license, may occur.

In this case, the broadcaster sold its radio station in 2003, including in a list of auxiliary licenses in its FCC application for the sale of the station, the call letters of the earth station. While the FCC granted the assignment application with the statement that the seller was authorized to assign the station and all authorized auxiliaries, the Commission makes clear in this order that the sale of an earth station is not a broadcast auxiliary, but instead needs a separate authorization from the FCC's International Bureau before it can be sold. As that authorization was not granted, when the buyer took control of the station (and earth station), it operated that earth station without FCC approval for almost 10 years – without seeking a renewal of the license in 2006 – until the new licensee finally discovered the error and applied for an STA and new license to cover its operations. The FCC determined that the length of the violation required an upward adjustment of the normal $10,000 fine for operating an unlicensed station.

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Earlier today, we wrote about the FCC's reminder that TV broadcasters must, by February 4, complete the upload to their FCC-mandated online public inspection file all materials from the current renewal term that were created prior to the August 2 effective date of the online public inspection file requirement.  We noted that the FCC had not addressed the question of stations that had outstanding renewals from the last renewal term - which could potentially mandate that some stations upload as much as 16 years worth of material to their online files.  Well, today, the FCC issued another decision waiving its rules so that stations only need to post Quarterly Issues Programs lists from the current license term on their online public files - subject to some caveats.

There are certain limits on this waiver.  If the limits are not met, then all Quarterly Issues Programs lists, back to the last granted renewal, have to be posted to the online public file.  The limits include the following:

1. The last renewal cannot have been opposed by a member of the public.
2. The delay in the renewal cannot have been caused by issues relating to the public interest service of the station to its local service area
3. The station must continue to keep the Quarterly Issues Programs lists from the last renewal cycle at the station in a paper public file.

This decision does not relieve stations from all obligations to post materials from prior renewal terms, as described below.

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The six months that the FCC gave to television stations to upload the contents of their paper public files to their new online public file seemed like a long time back in August, when the deadline was announced and the online public file rule became effective. But that deadline is upon us, and the FCC yesterday issued a reminder that television broadcasters (full power and Class A stations) need to have all of their required documents uploaded to their online public file by Monday, February 4.  The 6 month deadline actually falls on the weekend, so the FCC has given stations to the end of the day on Monday to come into compliance. The Commission has even offered to have people at the FCC over the coming weekend to answer questions about the uploading process for all those waiting until the last-minute to comply. 

As made clear in the public notice, no broadcasters need to upload contents of their political files that existed prior to the August 2 effective date of the rules. TV Broadcasters who are affiliates of the Big 4 networks in the Top 50 markets should already be uploading new political file material onto their online files, while other TV broadcasters have until July 1, 2014 before they are subject to the requirement that they upload their new political materials to the online file. In neither case do stations have to upload political file materials that precede the date that the obligation applies to their station. 

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February is almost upon us, and it brings a host of regulatory obligations for broadcasters – as well as the filing deadline for those interested in pursuing new FM channels in an upcoming auction, and a number of opportunities to comment on important FCC proceedings. The week before last, TV NewsCheck published our latest quarterly update on the regulatory issues facing television broadcasters – and these include several with February dates. Most importantly (at least in the short term), there is the obligation for television broadcasters to upload to their Online Public Inspection file all documents created before the August 2 effective date of the rules (but for documents relating to political broadcasting).   So documents that had been kept in paper – like Annual EEO Public Inspection File Reports and Quarterly Issues Programs Lists – need to be in the Online Public File by the beginning of the month. 

In the longer term, while not due in February, comments to be filed this Friday (January 25) on the television incentive auction process, will need to be analyzed in preparation for the Reply comments due on March 12 in this most important proceeding which may well define the composition of over-the-air television in the coming years. Comments on the FCC proceeding on expanding the information gathered in the Form 323 Biennial Ownership Reports are also due in February – just in time for Valentine's Day on the 14^th. 

 

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As personal marijuana use becomes decriminalized in the states of Washington and Colorado, we once again repeat our warning to broadcasters who may be looking to pot sales as a new source of advertising revenue – remember that the Federal government still thinks that the drug is illegal. The US Attorney's Office in Seattle has reportedly issued a statement reminding residents in Washington State of that fact, and told Washingtonians that the Department of Justice plans to enforce Federal law on all Federal properties in the state. How does this affect broadcasters? 

Broadcasters are Federal licensees. Thus, there still is a concern that advertising for an activity that is considered a felony under Federal law might present problems if a license renewal is challenged or a complaint is filed.  It is Federal law, of course, that governs the issuance and renewal of FCC licenses. No FCC official has been willing to say that advertising medical marijuana is permissible (and, as we wrote last year, a US attorney in California threatened to prosecute media outlets advertising medical marijuana clinics and to possibly seize property used for such advertising). As Washington state officials discuss how to license stores to sell pot under its new laws, some broadcasters may eye these stores, once authorized, as a potential new source of advertising revenue.  Especially with license renewal now underway for radio stations in Colorado, and soon coming up for TV stations in Colorado and for broadcasters in Washington, now is probably not the time to press the limits of advertising a product with such an ambiguous legal status. 

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In three proposed fines issued in the last few weeks, the FCC proposed $10,000 fines for the failure of stations to have all of their required Quarterly Issues Programs Lists in their public files.  In one case, the deficiency was discovered by an FCC inspector, filing random reports missing from 2007-2009.  In two others (here involving a noncommercial station and here), the missing reports were reported by the stations in their renewal applications, and the missing reports also just covered parts of the renewal cycle.  All three cases resulted in the $10,000 fine.  What began as a $3000 fine in the last renewal cycle has escalated over the last 8 years to become the violation of the broadcast rules that seemingly carries the biggest fine - even though the public file is rarely if ever visited by the public.  As we've written before, it would seem to us that there are plenty of more serious issues that should demand closer attention by the FCC (and bigger fines), yet the public file seems to be the one that has attracted the Commission's attention most often, and with the biggest fines.  Obviously, with the attention over online public files that will only intensify with the expected FCC decision on that issue this Friday, this issue does not seem to be going away anytime soon.  

For more information about the required contents of the Public File, see our advisory here.  For our last advisory on the Quarterly Issues Programs lists which stations should have placed in their public file on or before April 10, see our advisory here.   

Update - 4/24/12, 4:00 PM - Two more $10,000 fines for missing Quarterly Issues Programs lists were issued today, both for violations voluntarily revealed at license renewal time, reinforcing the "new normal."  See the FCC decisions here and here. 

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In every license renewal application, applicants must certify that their operations are in compliance with the RF radiation standards set out in Section 1.1310 of the Commission’s rules. In connection with the renewal applications of two Hawaii FM stations, the FCC issued short-term one-year renewals of the station’s licenses, rather than the normal 8 year renewals. The Commission’s decision chronicles a period that spanned several years where the FCC twice found the stations to be in violation of the RF radiation rules, responding to complaints from those who worked nearby. The first time the station had reported that the problem was corrected, the FCC inspected and found that it still existed. Finally, after these inspections and FCC fines for noncompliance, the stations moved to new sites that resolved the issues.

Beyond the demonstration of how seriously the FCC takes its RF radiation rules, and how broadcasters need to be truthful and accurate in reporting on the state of their compliance, the decision shows the FCC’s process of evaluating penalties when deciding whether to issue a license renewal to an applicant with a history of rule violations. The FCC has several choices when confronted at license renewal time with violations of its rules. In many cases (like public file violations that we wrote about last week), the FCC will simply issue a fine. As in this case, the FCC can issue a short-term renewal. But, in the case of serious violations, the FCC can “designate a case for hearing”, meaning that they send the renewal application to an administrative law judge (a judge who is part of the FCC) to hold a trial-type hearing to determine if the license should be revoked. When is that most serious option pursued?

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Just a reminder to broadcast stations in certain states of several upcoming February obligations.  First up, February 1st is the deadline for Radio Stations in Arkansas, Louisiana, and Mississippi to file their FCC Form 303-S license renewal applications seeking a renewal of their broadcast licenses.  (See our earlier license renewal advisory for more information about the FCC's license renewal process.)  Accordingly, radio stations in those state/territories will also need to begin their License Renewal Post-Filing Announcements on February 1st to inform their communities of the renewal filing.  Specific language for the announcements can be found on the Commission's website here, and the post-filing announcements continue on Feb. 16, Mar. 1, Mar. 16, April 1, and April 16.

Second, the next batch of radio license renewals -- which will be filing their renewals on April 2nd -- is Indiana, Kentucky, and Tennessee, which means that Radio Stations licensed to those states, must begin their License Renewal Pre-Filing Announcements on February 1.  The precise language of the pre-filing announcements—which is again dictated by the FCC’s Rules—can be found here. The pre-filing announcements for these stations continue on Feb. 16, Mar. 1, and Mar. 16. 

Third, by February 1, Radio and Television Station Employment Units (SEUs) in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York and Oklahoma must prepare and place in their public inspection file their Annual EEO Public File Report.  Stations that have websites must also post the Annual Report on their 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.  A copy of our recent reminder advisory with more information can be found here.  In addition, Radio Stations in Arkansas, Louisiana, and Mississippi will also be filing an FCC Form 396 EEO Report by February 1 in connection with their license renewal filing.

Finally, February 1st is the deadline for Noncommercial radio stations in Arkansas, Louisiana, Mississippi, New Jersey and New York, and Noncommercial television stations in Kansas, Nebraska and Oklahoma to prepare and file an FCC Form 323-E Biennial Ownership Report with the FCC.  Please note, this filing date applies only to noncommercial radio and TV stations in the states noted above. The FCC has revised its rules regarding the reporting of ownership interests for commercial broadcast stations, as well as revised the commercial Ownership Report—Form 323. Accordingly, commercial stations now file biennial ownership reports on one unified filing date, which will next occur on Nov. 1, 2013.  A copy of our recent reminder to noncommercial stations about the February 1 filing deadline can be found here.

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What's up for broadcasters in 2012?  What dates do they need to keep on their radar to make sure that they are in legal compliance?  Our broadcaster calendar for 2012 is now available and ready for your review.  It's an especially busy year - with television license renewals beginning and radio renewals continuing, lowest unit charge windows for primary and general elections, as well as the normal regulatory deadlines - EEO public file reports, quarterly programs/issues lists, children's television reports, noncommercial ownership reports, regulatory fee filing deadlines, and children's television reports.  We've even thrown in the dates for the upcoming auction of new FM channels, and a reminder about the the filing dates in connection with SoundExchange royalties for audio streaming.  Check out our broadcaster's calendar, and be ready for the year ahead. 

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All commercial broadcasters (AM/FM/TV and even LPTV) have to file their Biennial Ownership Reports on December 1, beginning a very busy month in the broadcaster's regulatory world.  December 1 is also the deadline for noncommercial ownership reports to be filed by noncommercial radio stations in Alabama, Connecticut, Georgia, Massachusetts, Maine, New Hampshire, Rhode Island and Vermont, and noncommercial television stations in Colorado, Minnesota, Montana, North Dakota and South Dakota (see our Advisory here).  Annual EEO Public File reports are also due to be in station files for stations in all of the states where noncommercial stations have ownership filings (see our Advisory on the EEO Public File Report here).  License renewals for radio broadcasters in Georgia and Alabama are also due on that date (see our License Renewal advisory here) , as are the Commission’s cut of the ancillary and supplementary revenues made by digital television broadcasters (our summary here).  And all full-power broadcasters need to file their reports on the results of the recent Nationwide EAS Test by December 27 (see our post here).

December also brings a Commission meeting, at which the CALM Act rules will be adopted according to the tentative agenda for the December 12 meeting.   The CALM Act is intended to eliminate loud commercials.  These rules are required by statute to be adopted in December (see our summary of the proposed rules here).  Comments on a number of other FCC proposals in rulemaking proceedings are also due. The FCC just announced  that comments in the proceeding to determine if FM digital operations using the IBOC technology (so-called HD Radio) can operate with different power levels on each side of the main channel are due by December 19 (see our summary of this proceeding here). Comments on the controversial proposal for the online public inspection file for television stations are due on December 22.

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The tenuous legal status of marijuana advertising on broadcast stations just got a little more tenuous as a Federal prosecutor in Southern California has reportedly indicated an intent to prosecute radio and TV stations, as well as newspapers and magazines, that advertise medical marijuana clinics.  As we have written before, advertising such clinics was always a legal grey area, as marijuana use and possession is still a Federal felony, even though many states have passed laws to decriminalize the use of medical marijuana.  While the Federal Department of Justice had indicated that marijuana prosecutions were a low priority for prosecution, as the number of medical marijuana clinics have mushroomed in many states, and the controls exercised over them by state authorities have been lax, some Federal prosecutors have seemingly taken action on their own (as we warned was possible in a prior article on medical marijuana advertising).  The prosecutor in Southern California has indicated an interest in going after property owners who lease space to clinics, and now seemingly has expanded her interest into going after media outlets who advertise for such clinics. 

Whether or not these prosecutions will be successful on their own may be subject to debate, but broadcasters, as Federal licensees, need to be particularly careful in their actions.  There is rumored to be at least one complaint pending at the FCC against a broadcaster who ran medical marijuana ads.  As an agency of the Federal government, whose Justice Department has said that pot is not a legal drug, the FCC would be hard-pressed to say that it is alright for a station to advertise for a marijuana clinic.  With license renewals now pending or about to be filed by all broadcast stations, the opportunities for more objections, and sanctions based on any such complaint, are many.  So, once again, we caution restraint when a broadcast station is offered the opportunity to make a few dollars from a clinics ads.  The dollars you make may be far overshadowed by the dollars you spend defending a legal action - whether it be before the FCC or before a Federal court.  So think twice!

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Online public files, detailed reports about virtually every program aired on a television station as to its source and whether it addressed various types of perceived community interests, and other paperwork requirements that would have required most television stations to hire a new employee just to deal with the burden, were all part of mandatory television public interest reporting requirements adopted by the FCC back in 2007 (see our articles here and here on these reports on FCC Form 355).  Similar obligations were also proposed for radio but never adopted.  The TV "enhanced disclosure" rules have never been implemented, however, and were apparently never even submitted to the Office of Management and Budget  for approval of their compliance with the Paperwork Reduction Act.  The numerous petitions for reconsideration filed against these rules are on the tentative agenda for the next FCC meeting, to be held on October 27.  Not only is the disposition of these petitions on the agenda, but a proposal for a further proceeding to look at new requirements for an online public file, to be hosted by the FCC, is to be considered at the same time.  What can broadcasters expect to happen?

In the Future of Media Report issued by the Commission earlier this year (actually renamed the Report on the Information Needs of Communities), the FCC study group recommended abolishing these 2007 rules, and terminating the proceeding looking at imposing them on radio (see our summary here).  The Report seemed to recognize that the reports were far too burdensome on licensees, and were not reasonably related to the current FCC rules on programming.  In essence, the reports required the collection of lots of information, without any regulatory purpose for the information collected.  In light of these findings, and the 4 year delay in implementing the rules already adopted, it seems safe to conclude that the 2007 rules are probably on their way out.  But the accompanying notice suggesting that the FCC will begin a new rulemaking to look at the online public inspection files, to be hosted by the FCC, raises questions about what will replace the 2007 rules.

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Just a reminder to broadcast stations in certain states of several upcoming October obligations.  First up, October 3rd is the deadline for Radio Stations in Florida, Puerto Rico, and the U.S. Virgin Islands to file their FCC Form 303-S license renewal applications seeking a renewal of their broadcast licenses.  (See our earlier license renewal advisory here.)  Accordingly, radio stations in those state/territories will also need to begin their License Renewal Post-Filing Announcements on October 1st to inform their communities of the renewal filing.  Please note, October presents a strange situation in that the deadline for filing the renewal application is not until October 3rd (because Oct. 1 is a weekend, the filing deadline rolls to Monday the 3rd), but the FCC's rules dictate that the first post-filing announcement occur on Oct. 1st.  Stations that have already filed by Saturday Oct. 1st won't have an issue, but for those stations waiting until Monday to file their Form 303-S, they will need to nonetheless air the first post-filing announcement (referring to the Oct. 3rd renewal filing) on Oct. 1st.  Specific language for the announcements can be found on the Commission's website here, and the post-filing announcements continue on Oct. 16, Nov. 1, Nov. 16, Dec. 1, and Dec. 16.

Second, the next batch of radio license renewals -- which will be filing their renewals on December 1st -- is Georgia and Alabama, which means that Radio Stations licensed to those states, must begin their License Renewal Pre-Filing Announcements on October 1.  The precise language of the pre-filing announcements—which is again dictated by the FCC’s Rules—can be found here. The pre-filing announcements for these stations continue on Oct. 16, Nov. 1, and Nov. 16. 

Third, by Oct. 1, Radio and Television Station Employment Units (SEUs) in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Mariana Islands, Missouri, Oregon, Puerto Rico, the U.S. Virgin Islands and Washington (*whew*) must prepare and place in their public inspection file their Annual EEO Public File Report.  Stations that have websites must also post the Report on their 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.  A copy of our recent reminder advisory with more information can be found here.  In addition, Radio Stations in Florida, Puerto Rico, and the U.S. Virgin Islands will also be filing an FCC Form 396 EEO Report by October 3 in connection with their license renewal filing.

Finally, Oct. 3rd is the deadline for Noncommercial Radio Stations in Alaska, American Samoa, Florida, Guam, Hawaii, Mariana Islands, Oregon, Puerto Rico, Virgin Islands, and Washington, and Noncommercial Television Stations in Iowa and Missouri to prepare and file an FCC Form 323 Biennial Ownership Report with the FCC.  Please note, this filing date applies only to noncommercial radio and TV stations in the states noted above. The FCC has revised its rules regarding the reporting of ownership interests for commercial broadcast stations, as well as revised the commercial Ownership Report—Form 323. Accordingly, commercial stations now file biennial ownership reports on one unified filing date, which will be later this year.  A copy of our recent reminder to noncommercial stations about the Oct. 3 requirement can be found here.

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Just a reminder to broadcast stations in certain states of several upcoming August 1st obligations.  Specifically, on Aug. 1, radio stations in certain states must commence pre-filing or post-filing announcements (depending on the state in which they are located) in connection with the license renewal cycle.  In addition, Annual EEO Public File Reports must be prepared and placed in the public files by August 1st for stations in certain states.  And finally, noncommercial stations in certain states must file a biennial ownership report by August 1st.  Further details about these various deadlines -- which again are specific to particular states and services -- are below. 

First up, August 1st is the deadline for Radio Stations in North Carolina and South Carolina to file their FCC Form 303-S license renewal applications seeking a renewal of their broadcast licenses.  (See our earlier license renewal advisory here.)  Accordingly, radio stations in those two states will also need to commence their License Renewal Post-Filing Announcements on August 1st to inform their communities of the renewal filing.  Specific language for the announcements can be found on the Commission's website here, and the post-filing announcements continue on August 16, Sept. 1, Sept. 16, Oct. 1, and Oct. 16.

Second, the next batch of radio license renewals -- which will be filing their renewals on October 3rd -- is Florida, Puerto Rico, and the Virgin Islands, which means that Radio Stations licensed to those three states (or rather commonwealths, territories, islands, etc., as the case might be), must begin their License Renewal Pre-Filing Announcements on August 1.  The precise language of the pre-filing announcements—which is again dictated by the FCC’s Rules—can be found here. The pre-filing announcements for these stations continue on Aug. 16, Sept. 1, and Sept. 16. 

Third, by Aug. 1, Radio and Television Station Employment Units (SEUs) in California, Illinois, North Carolina, South Carolina and Wisconsin must prepare and place in their public inspection file their Annual EEO Public File Report.  Stations that have websites must also post the Report on their 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.  A copy of our recent reminder advisory with more information can be found here.  In addition, Radio Stations in North Carolina and South Carolina will also be filing an FCC Form 396 EEO Report by August 1 in connection with their license renewal filing.

Finally, Aug. 1 is the deadline for Noncommercial Radio Stations in California, North Carolina and South Carolina, and Noncommercial Television Stations in Illinois and Wisconsin to prepare and file an FCC Form 323 Biennial Ownership Report with the FCC.  Please note, this filing date applies only to noncommercial radio and TV stations in the states noted above. The FCC has revised its rules regarding the reporting of ownership interests for commercial broadcast stations, as well as revised the commercial Ownership Report—Form 323. Accordingly, commercial stations now file biennial ownership reports on one unified filing date, which will be later this year.  A copy of our recent reminder to noncommercial stations about the Aug. 1 requirement can be found here.

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In March, we cautioned broadcasters against the airing of ads for medical marijuana.  Our concerns stemmed not only from a complaint pending at the FCC, but also because, despite the widespread belief that the Federal government no longer cared about medical marijuana use and sale, the Department of Justice had only said that prosecution was no longer a priority, not that it was no longer illegal.  In recent months, our concerns seem more and more justified.  We had worried about some local Federal prosecutor deciding that he or she had time to prosecute offenses, even though DOJ headquarters did not think it to be a priority.  But, based on press reports and DOJ's own press releases, it looks like there has been at least some rethinking of the policies in Washington, DC as well.  The DOJ appears to be backtracking on medical marijuana, now saying only that it won't prosecute individuals who use medical marijuana, but that dispensaries, even if set up under the color of state laws, are still illegal under Federal law and subject to Federal prosecution.  Thus, broadcasters, as Federal licensees, need to exercise extreme care in advertising such dispensaries.

In the last few days, NPR has broadcast stories about the Department of Justice writing letters to authorities in Rhode Island and Arizona, in both cases saying that the Federal government still considers the sale of marijuana, even medical marijuana, to be a Federal felony subject to prosecution.  Both states are now reconsidering their laws that would otherwise allow for the operation of medical marijuana dispensaries.  The DOJ, on its website, cites a US Attorney in Washington State who has written to the landlords of medical marijuana dispensaries, warning them of the penalties that they may face if they allow these dispensaries to continue to operate, going so far as to warn them that they may face the forfeiture of their property to the government as it is being used to distribute prohibited drugs.  As this letter states, “We intend to use the full extent of our legal remedies to enforce the law.”  This language should serve as a warning to broadcasters of the Federal government's attitude toward marijuana dispensaries.

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Just a reminder that radio stations in North Carolina and South Carolina are up next in the license renewal cycle, which means that pre-filing announcements for radio stations in these states must start on June 1st.  The announcements continue on June 16, July 1, and July 16, for a total of four pre-filing announcements.  These announcements give notice to the local community that the station will be filing a license renewal application with the Commission and invite participation in the renewal process.  The precise language of the pre-filing announcements—which is dictated by the FCC’s Rules—can be found here.

The announcements should be aired in the primary language used on the station, so if the station broadcasts primarily in a foreign language, the announcements should be broadcast in that language. For commercial radio stations, at least two of the required pre-filing announcements must air on the station between 7 a.m. and 9 a.m., or 4 p.m. and 6 p.m. local time. If the station does not operate between 7 a.m. and 9 a.m. or between 4 p.m. and 6 p.m., then at least two of the required announcements must be made during the first two hours of broadcast operations. For noncommercial educational stations, the timing of the announcements is the same as for commercial stations, except that such stations need not broadcast the announcements during any month during which the station does not operate.

For more details about the pre-filing announcements and the license renewal process for radio stations, please see our recent advisory which will help radio stations prepare for the process.  A copy of the advisory is available here.  And next up in the queue will be radio stations in Florida, Puerto Rico, and the Virgin Islands, who will start their pre-filing announcements on August 1st in advance of filing their renewal applications on October 1st. 

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The FCC has issued a flurry of fines against broadcast stations in the past week or two.  While a number of these fines were for the operation of unlicensed pirate radio stations, several of the fines were for public inspection file violations, stations broadcasting with excessive power or failing to reduce power at nighttime, or for other technical violations.  Agents from the Commission's field offices have been busy visiting stations, and licensees are urged to heed these recent forfeiture actions and review their own operations to ensure compliance with the Commission's rules, starting with the main studio rules and public inspection file requirements, about which we've written often in the past.  (See here, here, and here, for example.)

While the main studio and public inspection file requirements seem basic, the failure to properly follow these rules can be quite costly.  Today's FCC releases carries news of two such fines, one for $24,000 and one for $25,000.  In the first case involving two AM stations, the Commission fined the licensee $12,000 per station for failing to maintain a local public inspection file.  A copy of the decision is available here.  The FCC increased the forfeiture from the base fine of $10,000 based on its finding of violations at other stations operated by the licensee, which in the FCC's view may indicate a "systemic compliance issue".  In the second case, available here, the Commission fined two other AM stations operated by the same licensee a total of $25,000 for public inspection file violations, failure to operate consistent with the terms of the station's license, and failure to make required annual measurements. 

Of particular note, one of the AM stations had failed to conduct the required annual equipment performance measurements, and had failed to switch from its authorized Daytime pattern to its authorized Nighttime directional pattern during the month of April.  Section 73.1590(a)(6) of the Commission's rules requires that AM stations make annual equipment performance measurements, and that the details of those measurements be kept on file at the transmitter or remote control point for two years and be made available to the FCC upon request.  These measurements ensure that the station and transmitter are operating properly and are not causing any spurious or harmonic emissions, and must be conducted every year with no more than 14 months between measurements. In the case issued today, the station had no record of the measurements and had apparently not conducted the annual equipment performance measurements. 

These fines should be a clear warning to broadcast stations -- particularly AM stations -- to review their operations and ensure that they are in compliance with the Commission's rules and their authorized parameters.  And AM stations should make sure to make their annual equipment performance measurements and retain the proper documentation in their files. 

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With the kick-off of the FCC's broadcast license renewal cycle comes some additional obligations for licensees, this time in the form of an FCC Form 396 Broadcast EEO Report.  The Form 396 is filed only at renewal time and serves to: 1.) confirm the licensee's commitment to EEO, 2.) provide a narrative statement about how the station has achieved wide outreach in the preceding two years, and 3.) provide copies of the station's two most recent Annual EEO Public File Reports (assuming that it is not exempt from the Commission's EEO rules).  By June 1st, radio stations in the first batch of license renewals -- those located in Maryland, Virginia, Washington, DC, and West Virginia -- must file an FCC Form 396 EEO Report electronically with the Commission.  A Form 396 must be filed by every station, even if the station has fewer than five full time employees and is thus, generally exempt from the FCC's EEO Rules.  In that case, if the station has fewer than five employees, it will basically just check the box to indicate that and will not need to provide anything further.  Larger stations will need to complete the entire Form. 

And please note, the Form 396 Report must be filed before the Form 303-S License Renewal application can be submitted, as Question 2(a) in Section III of the Form 303-S requires that applicants cross-reference and specify the FCC filing number of the previously submitted Form 396 EEO Report.  For more information about the EEO Annual Public File Reports and the June 1st deadline please see our recent advisory. 

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In less than a month, a four year cycle of radio and television license renewal applications begins with the filing, on or before June 1, of license renewals by radio stations in Maryland, Virginia, West Virginia and the District of Columbia.  To help stations prepare for their upcoming renewals, I conducted a webinar, sponsored by the Michigan Association of Broadcasters and joined by broadcasters from 9 other state associations, discussing issues that broadcasters should be considering.   Slides from that presentation, setting out the renewal process, and various issues that should be considered by broadcasters, including: public file issues, technical matters, EEO and other nondiscrimination matters.  Copies of the slides used in the presentation are available here.

In addition to those slides, we have many other resources available for a broadcaster thinking about their license renewal application.  These include the following:

• A primer on the issues to be considered in preparing for license renewal, available here.  In that memo, there are links to the texts of the required pre-filing and post-filing announcements that broadcasters must air to inform their listeners about the filing of the renewal application
• A memo that sets out the materials that should be kept in a commercial station's public file, and the retention period for those materials, here.
• A memo generally describing the requirements of the FCC's EEO rules, here, and a second memo, reminding broadcasters of their yearly EEO public file report obligations, a sample of which is here.  Remember, FCC Form 396 report must be filed with the license renewal application, and that form requires the submission of the station's last two years public inspection file reports
• An advisory, here, summarizing the requirements for a station's quarterly programs issues lists.
• Recent blog entries on the FCC's requirement for a nondiscrimination certification in their advertising contracts, here and here.

FCC Sources of information for the renewal filing are also available.  A version of the FCC Form 303S - the license renewal form - can be viewed here.  The form contains a good set of instructions as to what information the FCC is seeking from licensees.  The FCC also has its own webpage on license renewal, here.  Dates for radio license renewals are available here, and the dates for TV renewals are here.

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Last week, we wrote about the new requirement for a nondiscrimination clause in all broadcast advertising contracts.  In the new license renewal applications, broadcasters must certify that they do not discriminate in the sale of advertising time and that their contracts contain the required certification.  Today, the Enforcement Bureau of the FCC issued an Enforcement Advisory, answering questions about the new requirement.  Unfortunately, that advisory really does little but reiterate what the FCC has already said - that the Commission is concerned about "No Urban, no Spanish dictates", and that broadcasters must make sure that there is no discrimination in the purchase of advertising time on their stations.  But, the Commission does make clear in an accompanying News Release, through a statement from Chairman Genachowski, that the Commission "will vigorously enforce its rules against discrimination in advertising sales contracts."  The advisory does highlight one new matter - that stations that use advertising rep firms or other sales agents must make sure that these agents have nondiscrimination clauses in their own contracts used to sell advertising time on the station. 

This policy has raised several questions from broadcasters.  Many have asked what they should do if they have no advertising contracts.  Apparently, many broadcasters, especially in smaller markets or when dealing with regular customers, book advertising through emails or phone calls - not formal contracts.  The FCC does not address how this should be handled.  We've suggested that broadcasters include the nondiscrimination clause in the exchanges that essentially form the contract - e.g. the email confirming the schedule, the rate cards offering the spots for sale, or other communications between the station and the advertiser.  We also suggest that stations adopt written contracts, as these contracts can cover issues that are important to broadcasters, e.g. indemnifications from advertisers that they have the rights to all the music and other material used in their ads, statements that the broadcaster reserves the right to preempt ads if they don't like the content or if the broadcaster needs to run something more important, that advertising sold to one party should not be re-sold to anyone else, that the broadcaster is not liable for any consequential damages if an ad does not run for technical or other reasons, and similar issues.

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The FCC today released a Public Notice announcing new provisions in its license renewal Form 303S - the form that radio and television stations will be using to file license renewal applications, starting with license renewals for radio stations in DC, Virginia and West Virginia in June.  The Notice addressed several changes in the license renewal form - including the addition of certifications concerning whether a station was off the air at any point during the license term for a period of more than 30 days, whether principals of the licensee have interests in daily newspapers in the same area, and whether the station is in compliance with the RF radiation rules.  Two other issues of note were raised in the Public Notice - one dealing with stations that have not received a license renewal from the last license cycle, and one dealing with the newly required certification that stations must make - that their advertising contracts contain a nondiscrimination provision to assure that advertisers are not purchasing advertising on the station for a discriminatory purpose. 

We've written about the advertising anti-discrimination certification before, suggesting language that stations include in their contracts.  What is new in today's notice is that the FCC has clarified that the certification only covers the period from today's notice until the filing of the license renewal application.  So stations that do not have such certifications can still get them into their contracts now to avoid certification issues later.  In our previous articles on this subject, we've noted that this is a confusing requirement, and that even its supporters have urged the FCC to clarify it. Today's Notice only says that stations must avoid advertising purchases made on the basis of "no urban, no Spanish" dictates, but does not go any further in interpreting the requirements of this policy. 

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As the next broadcast license renewal cycle is about to begin in June (see our post here about that process), the last renewal cycle still has not ended despite the fact that the last renewal application due in that cycle was to have been submitted almost 5 years ago. At the NAB State Leadership Conference held in Washington, DC yesterday, FCC Commissioner Robert McDowell provided statistics about the hundreds of renewals still pending – principally due to indecency complaints against the stations. The FCC will not grant a license renewal application when there is an indecency complaint pending, as the grant of the renewal could preclude the FCC from taking action against the licensee on the complaints filed before the renewal grant. But with indecency enforcement in a holding pattern pending the final resolution of the pending court cases challenging the FCC’s renewal policy (with no immediate end in sight to the uncertainty that surrounds that policy), these renewals are still in limbo. The Commissioner did, however, provide some good news on the indecency front, noting that the Enforcement Bureau had started weeding through all of the pending complaints, dismissing those that were clearly without merit.

The dismissal of indecency complaints that were without merit is a seemingly small, but nevertheless significant, step in weeding out the backlog of renewal applications. The Enforcement Bureau has traditionally not looked deeply into the merits of each of the pending indecency complaints while the Court challenges to the policy were pending, presumably to avoid a waste of resources were the standards to change based on the Court review. But that avoided weeding out some clearly meritless complaints – ones that complained of content that was broadcast during the 10 PM to 6 AM indecency safe harbor, or complaints that were focused on issues that were not prohibited under the FCC’s policy and precedent – such as complaints that really centered on violence, or ones that dealt with innuendo rather than the use of prohibited words or the depiction of prohibited body parts. Up until now, except when there was a sale of a station pending, there was no pressing reason for the FCC to dispose of the complaints. Stations continued to operate, and the pending complaints had little day to day impact.  But, with the renewal cycle soon to begin again, the resolution of these issues takes on some urgency.

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On February 8, 1996, the Telecommunications Act of 1996 was signed into law by President Bill Clinton.  While the Act had significant impact throughout the communications industry, the impact on broadcasters was profound, and is still being debated.  The Act made changes for broadcasters in several major areas:

• Lengthened license renewals to 8 years for both radio and TV, and eliminated the "comparative renewal"
• For radio, eliminated all national caps on the number of radio stations in which one party could have an attributable interest and increased to 8 stations the number one party could own in the largest radio markets
• For television, raised national ownership caps to having stations that reached no more than 35% of the national audience, with no limits on the number of stations that could be owned as long as their reach was under that cap.
• Allocated spectrum that resulted in the DTV transition

Obviously, the DTV spectrum began the profound changes in the way television is broadcast, and led to the current debate as to whether over-the-air television should be further cut back in order to promote wireless broadband (see our recent post on the FCC's current proceeding on this issue).  While the other changes have now been in effect for 15 years, the debate over these provisions continue.  Some argue that the renewal and ownership modifications have created too much consolidation in the broadcast media and lessened the broadcaster's commitment to serving the public interest.  Others argue that, in the current media world, these changes don't go far enough. Broadcasters are under attack from many directions, as new competitors fight for local audiences (often with minimally regulated multi-channel platforms, such as those delivered over the Internet) and others attack broadcasters principal financial support - their advertising revenue. Even local advertising dollars, traditionally fought over by broadcasters and newspapers (with some competition from billboards, direct mail and local cable), is now under assault from services such as Groupon and Living Social, and from other new media competitors of all sorts.  With the debated continuing on these issues in the current day, it might be worth a few looking back at the 1996 changes for broadcasters, and their impact on the current broadcast policy debate.

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February 1 is the deadline by which broadcast stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma must place into their Public Inspection files their Annual EEO Public Inspection File Report.  The report must also be available on these stations' websites, if they have such sites.  The Annual EEO Public Inspection File Report provides information about the full-time jobs filled at the station in the previous year; the sources used by the station to recruit potential employees to fill the open positions; and the additional "supplemental efforts" conducted by the station, whether or not they had any employment openings, to educate and inform their communities about broadcast employment.   This obligation extends to all "station employment units" (groups of commonly controlled stations, serving a common geographical area, with at least one common employee) with 5 or more full-time employees (a full-time employee, for FCC purposes, being one working 30 or more hours per week).  Our firm's Advisory detailing the requirements for this report can be found here, with a model for the report at Appendix A of that advisory.  More information about Broadcasters' EEO obligations generally can be found in our Primer on the FCC's EEO Rules, here.

Yesterday, I conducted a webinar for the Kansas Association of Broadcasters to provide a refresher on broadcasters' EEO obligations under FCC rules, regulations and policies.  The slides used in that presentation can be viewed here.  With the next cycle of license renewal applications beginning later this year, stations need to be especially vigilant about EEO obligations to avoid scrutiny at renewal time, which could delay the processing of renewal applications (and potentially of any sale that might be underway at that time, see our post here) and possibly lead to fines or other penalties.    Radio stations in Arkansas, Louisiana and Mississippi will file renewals on February 1, 2012;  radio stations in Kansas, Oklahoma and Nebraska will file their renewals on February 1, 2013; and those in New York and New Jersey will file by February 1, 2014.  TV stations will file one year later than radio stations located in their states.  As two years worth of public inspection file reports must be submitted with the license renewal applications, the hiring process used this year will be scrutinized by the FCC during the renewal process for stations in most of these states.  So make sure that you are following the rules, and documenting your EEO efforts for the FCC to avoid renewal-time problems. 

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With only four and a half months until the start of the first radio license renewal cycle, broadcasters need to start to consider the processing time for license renewal applications and its implications - particularly if they are considering the purchase or sale of the station with a license renewal due in the near future.  The FCC has a processing policy that, in most cases, will forbid the closing of the sale of a broadcast station once the license renewal for that station has been filed - delaying any closing until the renewal has been granted.  Given that routine processing of a license renewal will take an absolute minimum of 90 days, and the processing can take much longer if there is a protest or other problem, closing of a contract for the sale of a broadcast station which is signed too close to the license renewal filing may be significantly delayed by the license renewal process.  Parties need to plan for such delays. 

As we wrote several months ago, the first set of license renewals are to be filed on or before June 1 of this year - for radio stations in  Virginia, West Virginia, Maryland and the District of Columbia.  Owners planning a station sale in those states should be looking to finalize any deal have any plans to sell their station in the very near future to allow for the processing time necessary to get an FCC application approved and the transaction closed before the renewal is filed.  For instance, if a seller is thinking of selling his or her station in one of these states, and is in the process of negotiating a contract right now, the process contract would need to be completed very soon, and processing would need to run without a hitch, for a closing after "finality" of the FCC approval of the transaction to be possible before the renewal is granted.  Otherwise, the parties will need to be willing to wait until at least September to close.  To demonstrate, here is the likely timeline for an application for the sale of a station if the contract was signed by February 1, and an FCC application was filed by February 4.  The application would likely be on an FCC public notice late in the second week of February, triggering the required 30 day public comment period.  The end of the public comment period would be in mid-March, most likely putting an FCC grant in late March - if the application was uncontested, non-controversial and otherwise processed quickly by the FCC.  That would put finality (40 days after the public notice of the initial staff grant of the application, assuming no petitions for reconsideration of the grant, other appeals, or decisions by the FCC Commissioners to review the application) in mid-May. 

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In a speech given last week, FCC Commissioner Michael Copps called for a new regime to review the public interest performance of broadcasters - suggesting that license renewal become a more rigorous exercise for radio and television operators.  In his address called "Getting Media Right, A Call to Action", given to the Columbia University School of Journalism, Copps specifically suggested a "Public Value Test" for broadcasters when they file their license renewals.  If the broadcaster passes the test, the broadcaster would get a renewal.  If the broadcaster did not pass - if it does not show that it has "earned" the right to "use the people's airways" - then the licensee would get a one year probation period to prove that it should keep its license.  If it does not improve, then the license would be taken and given to "someone who will use it to serve the public interest."

So what would this Public Value Test look like?  The Commissioner suggested that the following factors would be reviewed: 

1. A Meaningful Commitment to News and Public Affairs Programming - an increased commitment to news, local public affairs, election debates and issues oriented programming would be reviewed according to some quantitative benchmarks.
2. Enhanced Disclosure - requiring broadcasters to provide more information about their programming performance, on the Internet, as the Commissioner believes that information in the public file is "laughable", and also requiring that the FCC review that information at renewal time
3. Political Advertising Disclosure - requiring more information about the sponsors of political ads
4. Reflecting Diversity - looking to increase the gender, ethnic and racial ownership of broadcast stations
5. Community Discovery - requiring that broadcasters be required to, in some formal way, communicate with their communities to determine local programming needs and the interests of various groups within a station's community
6. Local and independent programming - requiring that broadcasters provide more local and independent programming instead of "homogenized music and entertainment from huge conglomerates - the Commissioner suggesting 25% of local programming being dedicated to local and independent programs.  More local PSAs too.
7. Public Safety - requiring that all broadcasters have a plan to address emergencies and be either staffed during all hours of operation or be otherwise able to respond immediately to any local emergency.

 What's likely to happen to these proposals?

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The nuts and bolts of legal issues for broadcasters were highlighted in two sessions in which I participated at last week's joint convention of the Oregon and Washington State Broadcasters Associations, held in Stephenson, Washington, on the Columbia River that divides the two states.  Initially, I conducted a seminar for broadcasters providing a refresher on their EEO recruiting obligations set out under FCC rules.  With some public interest groups calling for stricter enforcement of a broadcaster's EEO obligations, and with the license renewals for Oregon and Washington State radio broadcasters coming up in 2013 (with TV the next year), broadcasters cannot slack off on these important obligations to widely disseminate information about job openings and to educate their communities about broadcast employment issues as required by the FCC rules.  Slides from my PowerPoint presentation on a broadcaster's EEO obligations are available here.  Broadcasters looking for more information on EEO obligations can review the Davis Wright Tremaine Guide to the EEO rules, here, and our most recent reminder about the obligations for the annual EEO public inspection file report, here.

At a second session, we discussed the variety of legal issues facing broadcasters in the current environment.  Many of the same issues discussed in this session were also discussed in my Top Ten List of Legal Issues to Keep Broadcasters Awake at Night, details of which can be found here.  Some specific questions were raised during the Oregon-Washington session include questions about the FCC rules covering contests that stations conduct, and the rules that apply to such contests.  See our blog post on some of those issues here and here.  The obligations for the public file of broadcasters are also set out in our advisory, here.  Another issue that broadcasters should remember is the new obligation for their advertising contracts to include terms that state that advertising is not sold for any discriminatory purpose, to avoid no-urban, no Spanish dictates (see our post here for details).  As we wrote recently in connection with fines issued to a couple of stations for multiple day-to-day violations of the FCC rules, the attention to these details now will avoid major financial headaches for broadcasters later, and potentially long-term issues at license renewal time as well. 

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Are you ready to file your next license renewal application?  It seems like the last license renewal cycle just ended (in fact, the last cycle is not over, as evidenced by the fact that the FCC in the last week has released several decisions dealing with late-filed renewals from the last cycle, and many TV stations still have license renewals that have not been granted due to pending indecency issues).  Nevertheless, a whole new cycle of Form 303 license renewal applications will soon be upon us - beginning in less than a year. The cycle begins with radio stations in Virginia, West Virginia, Maryland and the District of Columbia, who are due to file their license renewal applications on June 1, 2011.  Then, every two months thereafter, stations in another group of states files applications, until April 1, 2014 when radio stations in Pennsylvania and Delaware bring the radio renewal cycle to a close.  Television station renewal applications will be due on a state-by-state basis beginning one year later - starting with TVs in DC and the same three states in 2012.  A schedule for the radio renewal filings is available here.  With these deadlines almost upon us, what should stations be doing now to get ready? 

In the last renewal cycle, the biggest source of problems dealt with public file issues.  Remember, stations need to certify in their renewal applications that their public file is complete and accurate and, if it is not, to specify areas where there are deficiencies.  In the last cycle, many stations in particular had issues with Quarterly Programs Issues Lists that were missing from the files, in many cases incurring fines of $10,000 or more where there were many such reports missing from the files.  These reports are also very important, as they are the only required official records to demonstrate the programming that a station broadcast to serve the public interest needs of its service area.  If that service is ever challenged, you will need the reports to demonstrate how your station's programming met the needs and interests of your city of license and the surrounding area.  Check out our last advisory on the Quarterly Programs Issues Lists, here.

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