Broadcast Law Blog

Broadcast Law Blog

FCC Extends Filing Deadline for Biennial Ownership Reports Until March 2, 2018, But Will Require Reporting of Station Ownership as of October 1, 2017 Even By Those Who Sold Stations

Posted in AM Radio, Assignments and Transfers, FM Radio, General FCC, Noncommercial Broadcasting, Television

The FCC on Friday announced that they were extending the deadline for filing Biennial Ownership Reports by broadcasters from December 1 to March 2, 2018 to be sure that the new version of the form in the FCC’s LMS database will be up and ready to be used. The FCC will open the window for filing these ownership reports on December 1 (which was to be the deadline). However, the reports will still report on the ownership of each broadcast station as of October 1, 2017, meaning that station owners who sell their station between October 1 and the new deadline are being told by the FCC that they will need to file their own biennial reports – even if they no longer own any broadcast stations.

We have written about these reports in the past, and about the particular controversy about whether noncommercial broadcasters needed to obtain an FCC Registration Number (FRN) for each of its owners (see our article here about the FCC decision to not require that information). This is the first time that noncommercial entities will be filing their Biennial Reports at the same time as commercial broadcasters. Noncommercial broadcasters previously filed on the anniversary date of their license renewal filing, a system put on hold last year in anticipation of this year’s filing deadline.

Remember FCC Rules on Underwriting Limitations – And that They Don’t Apply to Spots Bought By Nonprofit Entities

Posted in Advertising Issues, Noncommercial Broadcasting

Last week, the FCC reached a consent decree with a noncommercial broadcaster, where the broadcaster paid an $8000 penalty for, among other things, running underwriting spots that were too promotional. While the consent decree and its implementing order provide no details on the underwriting violations by the broadcaster, we can assume that the broadcaster ran spots that somehow crossed the line – giving price information about a sponsor’s products, or including a call to action suggesting that listeners somehow patronize the sponsor, or making qualitative claims about the sponsor or its products or services. We have written about similar violations many times (see, for instance, our articles here, here, here, here and here) and I have conducted seminars for numerous noncommercial broadcasting organizations talking about specifics as to what is permitted in underwriting acknowledgements and what will get a noncommercial station into trouble (see for instance, the presentations mentioned here and here). Obviously, it is important that noncommercial stations pay attention to these restrictions. But, last week, I received a question that indicated that not all noncommercial stations realize that, while their ability to promote a commercial enterprise is limited, these same restrictions do not apply to on-air spots for other nonprofit organizations.

About 35 years ago, Congress changed the provisions of the Communications Act to redefine what a noncommercial station can and cannot do. Noncommercial stations obviously cannot run commercials. But the language of the statute makes clear that commercials are promotional announcements for profit businesses. In looking at that statutory change, after much discussion, the FCC concluded that the restrictions on underwriting announcements that apply to these noncommercial businesses do not apply to promotional announcements for nonprofit entities. Continue Reading

More and More Actions on Pirate Radio – What is Next?

Posted in FCC Fines, FM Radio, Programming Regulations

It seems like virtually every day, the FCC announces that it has sent numerous Notices to pirate radio operators warning them that their operations are illegal and that, if the operations do not cease, legal penalties may follow. Yesterday, the FCC released ten such Notices, including ones sent to operators of pirate radio stations themselves (see notices here and here) and to the owners of buildings in which pirate radio operations have been tracked (see notices here and here). These Notices have been common over the past several months, seemingly signaling a new focus on pirate radio operations by the FCC’s Enforcement Bureau. In the past, some broadcasters had believed that the FCC had other priorities for their Enforcement Bureau, and was less willing to contact and confront pirate radio operators. That seems to have changed.

As we have written before, Commissioner O’Rielly in particular has worried that the FCC still does not have the enforcement tools to really crack down on pirate radio operations. In that article, we wrote about tools that could be useful to the FCC, including a Congressional clarification of its authority to go after building owners who house pirate radio operations and a more robust authorization to actually seize pirate radio equipment without involving other government agencies. Even imposing more penalties quicker would seem to send a message that pirate radio operations will not be tolerated (see the FCC’s most recent actions proposing $15000 fines on pirate radio operators here and here). We look forward to watching the next actions from the FCC in this seeming crackdown on pirate radio.

Effective Date for Elimination of Last Remnant of Rule on Keeping Correspondence in Broadcast Public Inspection File

Posted in General FCC, License Renewal, Programming Regulations, Public Interest Obligations/Localism, Television

Earlier this year, the FCC eliminated the requirement that broadcasters maintain, in their public inspection files, copies of letters from the public about station operations (see our article summarizing that action here). One aspect of that rule change did not become immediately effective, as it was subject to review by the Office of Management and Budget under the Paperwork Reduction Act, was the elimination of the requirement that television broadcasters report, in their license renewal applications, about letters complaining about violent television programming. The elimination of that requirement is scheduled to be published in the Federal Register tomorrow, and that will trigger the effective date of that part of the rule change – making that total elimination of all obligations to retain letters from the public in the public inspection file.

September Regulatory Dates for Broadcasters – Including Reg Fees, Nationwide EAS Test, Must-Carry Letters, Lowest Unit Rate, Translator and Repack Deadlines and GMR License Extension

Posted in Advertising Issues, AM Radio, Broadcast Performance Royalty, Cable Carriage, Emergency Communications, FCC Fees, FM Radio, FM Translators and LPFM, General FCC, Incentive Auctions/Broadband Report, Intellectual Property, Music Rights, Political Broadcasting, Television

Summer is coming to an end, but the legal obligations never take a vacation, and September brings another list of regulatory deadlines for broadcasters. While the month is one of those without the usual list of EEO Public File obligations or quarterly FCC filing obligations, there still are a number of other regulatory deadlines for which broadcasters need to be prepared.

For commercial broadcasters, the September date that should be on everyone’s mind is the deadline for the payment of annual regulatory fees. As we wrote here, there is an FCC order circulating among the Commissioners that should be released any day, setting the amounts of the regulatory fees and the deadline for their payment. These fees will almost certainly be due in September, prior to the start of the government’s fiscal year on October 1. So stay alert for the announcement of the window for paying these “reg fees.” Continue Reading

Reminder – ETRS Form One to be Filed by August 27 By All EAS Participants – Including Broadcasters – In Anticipation of September Nationwide EAS Test

Posted in AM Radio, Emergency Communications, FM Radio, Television

All EAS Participants – including all full-power broadcasters – must complete the 2017 ETRS Form One on or before August 28, 2017.  We wrote about this obligation here. The filing deadline was set for next week as the ETRS system is used so that stations can report on the results of nationwide EAS tests. With the next Nationwide EAS Test set for September 27, the accounts and basic information for all EAS participants need to be in the system to allow for that reporting. Each EAS Participant should file a separate copy of Form One for each of its EAS decoders, EAS encoders, and units combining such decoder and encoder functions. .

The FCC put out a reminder on the upcoming EAS deadlines and the Nationwide EAS test here. Be sure that you are on file so that you will be ready to report on the results of the EAS test to be run next month. This system is supposed to be able to monitor who filed – so you don’t want to stick out as missing the required filing when the FCC reviews the results of the test that are submitted through the ETRS system. And, while you are at it, make sure that your EAS equipment is in working order so that you can post positive results after the test (see our warning here about the fines for non-functional EAS equipment).

Complaints Filed Against TV Stations for Public File Violations on Political Issue Ads

Posted in Advertising Issues, Political Broadcasting, Television

Earlier this week, the Campaign Legal Center and Issue One, two political “watchdog” organizations, filed FCC complaints against two Georgia TV stations, alleging violations of the rules that govern the documents that need to be placed into a station’s public inspection file regarding political “issue advertising” (see their press release here, with links to the complaints at the bottom of the release). FCC rules require that stations place into their public files information concerning any advertising dealing with controversial issues of public importance including the list of the sponsoring organization’s chief executive officers or directors. Section 315 of the Communications Act requires that, when those issues are “matters of national importance,” the station must put into their public file additional information similar to the information that they include in their file for candidate ads, including the specifics of the schedule for the ads including price information and an identification of the issue to which the ad is directed. The complaints allege that, while the stations included this additional information in their public file, the form that was in the public file stated that the sponsors of the ads did not consider the issues to be ads that addressed a matter of national importance, despite the fact that they addressed candidates involved in the recent highly contested election for an open Congressional seat in the Atlanta suburbs.

Section 315(e)(1)(b) states that an issue of national importance includes any advertising communicating any message directed to “any election to Federal office.” The stations against which the complaints were filed used the NAB form that asks political and issue advertisers to provide the information necessary for the public file, as do many broadcast stations. The FCC does not require that the NAB form be used but, as it is designed to gather the required information, many stations use it. Some simply take the form and place it into their public file with a copy of their advertising order form specifying the rates and advertising schedule and assume that their FCC obligation is complete. But, here, the complaints allege that the advertisers, in response to a question on the form that asks whether the advertising was directed to an issue of national importance, checked the box that said that the ad was not a Federal issue ad despite the fact that the ad addressed candidates or issues involved in the election for the open Congressional seat. The form was apparently then simply put into the public file in that way without additional notation or correction by the station. Continue Reading

Looking at Music Royalty Issues for Radio and TV Broadcasters

Posted in Advertising Issues, Broadcast Performance Royalty, Intellectual Property, Internet Radio, Music Rights

Last week, I participated in a discussion about music royalties for broadcasters at the Texas Association of Broadcasters Annual Convention in Austin. Speaking on the panel with me were the heads of the Radio Music License Committee and the TV Music Licensing Committee. These are the organizations that represent most commercial broadcasters in their negotiations with ASCAP, BMI and SESAC for public performance licenses for “musical works” or “musical compositions” – the underlying words and music to any song. In our discussion, there was a general summary of the licenses needed for the use of music by broadcasters, a summary of the status of some of the current royalty negotiations, and questions about other issues in music licensing. As this discussion raised a number of issues that I have covered in articles posted on this blog, I thought that it might be worth highlighting some of that past coverage so that those interested in any topic can read a bit more on these subjects.

The TV industry seems to have far fewer issues than radio, perhaps because radio is so much more music-dependent. While there is music in many TV programs, some of it is cleared (i.e. licenses have been negotiated) by the program providers (including some networks), so that stations need only worry about licenses for programming where the music has not been pre-cleared. Thus, TV stations have alternatives of blanket licenses for all programming (principally used by affiliates of networks where music has not been pre-cleared) or per-program fees where stations pay for music only in programs or program segments where music has not been licensed by the program suppliers. Continue Reading

Looking for a New FM? – FCC Releases a Potential “Shopping List” of Channels that Will Be Available in a Future Auction

Posted in Broadcast Auctions, FM Radio

It has been over two years since the last window allowing applicants to file for new FM stations (see our article here). There had been some speculation that the number of requests for new allotments was decreasing, leaving the FCC with few FM channels to auction off and thereby breaking what had been an almost yearly start of a new FCC auction for new FM channels. But, yesterday, the FCC released an Order noting numerous vacant FM channels, though this time they are not newly allotted channels, but instead ones that had previously been awarded to applicants who either did not pay the amount they bid in the auction, or who received a CP and then did not construct the station. Even included on this list is the FM channel of the station that had its license designated for hearing as the station had been silent for almost its entire renewal term (see our article here), a hearing that never had to happen as the licensee surrendered its license rather than trying to litigate over whether its renewal should be granted.

Of course, many of these channels may have some inherent issues leading those who initially sought them not to construct. The issues could be location specific (e.g. no readily available transmitter sites for a price that made construction feasible) or there could be issues with the applicant not being able to fulfill its initial plans. Interested parties should do their investigation. When will the channels be available? Continue Reading

Preparing for Annual Regulatory Fee Filing – Order on This Year’s Fees Circulating at the FCC

Posted in AM Radio, FCC Fees, FM Radio, Television

About this time each year, broadcasters and other entities regulated by the FCC prepare to find out the amount of their annual FCC regulatory fees. These fees are likely to be paid in September, before the October 1 start of the new government fiscal year. Last week, the FCC added to its list of “items on circulation” (FCC orders that have been written and are circulating among the Commissioners for a vote) an order to establish the specifics of this year’s regulatory fees, and to propose some additional changes to be considered next year. We wrote in late May about the proposal for this year’s fees that were advanced in a Notice of Proposed Rulemaking. Among the proposals were ones to reduce the relative contribution of smaller stations to the total amount to be paid by the broadcast industry by increasing the contribution of larger stations in larger markets. Also proposed was a reduction in the amount to be paid by TV satellite stations, and increasing the exemption for “de minimis” obligations – allowing those companies with a total fee obligation of less than $1000 to avoid paying fees altogether (an increase from the $500 in previous years). We will see when the order on circulation is released whether any of these proposals will be implemented for the fees to be paid this year.

Once the FCC releases the order on circulation deciding the policy issues about the fees, there usually follows a public notice setting the actual dates for payment, and fee guides from each of the FCC’s Bureaus providing details of the payment process for each FCC-regulated service. At that point, broadcast companies will be able to determine the specific amount of the fees that they will owe for this year. Failing to pay the fees on time can lead to substantial late fees, and can put the processing of applications by a licensee on hold. So be ready – the order should be out soon and the deadline for the payment of fees is fast approaching.