Posted on January 21, 2011 by David Oxenford

EEO Public File Reports Due By February 1 For Broadcasters in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma - David Oxenford Conducts Webinar to Refresh Kansas Broadcasters on Their EEO Obligations

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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Posted on December 19, 2009 by Brendan Holland

FCC Continues Review of Media Ownership Rules with Workshop on Financial Issues

The Commission has announced the next in its series of media ownership workshops, this one to address financial issues facing the media industry.  The workshop, part of the Commission's 2010 quadrennial review of its ownership rules, will be held on January 12, 2010 at the FCC, and will address, in the FCC's words:  "the current financial and economic conditions and marketplace factors affecting the media industry and how the FCC should take these into account as it conducts its review process."  While the Commission has not identified the forum participants, today's Public Notice states that the session will consist of two panels, one to hear from smaller broadcasters in smaller markets, as well as the financial institutions that serve them, and the second to address larger broadcasters in larger markets and the institutions that serve the larger broadcasters.

Given the seemingly increasing pressures on the broadcast industry, it would seem critical that broadcasters actively participate in both this workshop and the Commission's 2010 review of its ownership rules to ensure that the FCC has an accurate picture of the state of the media landscape as it reviews its ownership rules.  This forum, and indeed the rule making proceeding as a whole, is meant to examine whether and how the FCC's media ownership rules affect the financial health of broadcasters, the consideration that lending institutions give to the rules when making funding determinations, and how to consider the financial conditions when setting Commission policy in this area.  A copy of today's Public Notice announcing the upcoming forum can be found here. 

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Posted on November 16, 2009 by Brendan Holland

DTV Station Reminder: FCC Form 317 Reporting of Ancillary Services Due Dec. 1st

By December 1, 2009, all commercial and noncommercial digital television (DTV) stations must electronically file a FCC Form 317 with the Commission reporting on whether the station has provided any ancillary and supplementary services over their digital spectrum during the twelve-month period ending on September 30, 2009.

Under the Commission's Rules, in addition to providing free over-the-air broadcast television, DTV stations are permitted to offer services of any nature, consistent with the public interest, convenience, and necessity, on an ancillary or supplementary basis.  Some examples of the kinds of services that may be provided include computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, and subscription video.

All DTV stations -- regardless of whether the station holds a DTV license or is operating pursuant to Special Temporary Authority (STA), program test authority (PTA), or some other authority -- must file a Form 317 reporting whether or not it provided such services and whether it generated any income from such services. If the station did provide such ancillary services, then the FCC wants to know about it. More importantly, if the station generated revenue from the provision of those services, then the FCC wants its 5% cut of the gross revenues derived from such service.  The Form 317 is very brief, soliciting information about the license and the types of services provided, if any, and must be filed electronically through the CDBS filing system.

Some have noted recently in the ongoing debate regarding the future use of television spectrum (see our earlier blog) that Congress and the Commission have already given broadcasters the flexibility to use or lease their spectrum for virtually any purpose, so long as they continue to provide a free, over-the-air video programming stream, and remit 5% of the gross revenues derived from such ancillary services to the government.   Arguably then, the current rules already give broadcast stations the incentive and the ability to lease out any excess capacity to the highest bidder and for the marketplace to influence the optimal usage of the television spectrum.  And in exchange, the government will recoup a percentage of the revenue generated by such use of the spectrum.  So to the extent that parties seek to open the broadcast television spectrum to other possible uses and to ensure that the government benefits from the upside of such leasing, the rules for achieving that goal already seem to be in place.  Now it just remains to be seen whether there is a viable market for leasing television spectrum for such ancillary services.  To date, I think that the number of stations offering ancillary services, leasing their spectrum, and generating revenue from these ventures has been quite small. 
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Posted on September 1, 2009 by David Oxenford

David Oxenford Updates Kansas Broadcasters on Washington Legal Issues

David Oxenford provided a legal update on Washington issues to the Kansas Association of Broadcasters Annual Convention in Topeka on October 19, 2009.  His presentation - What Broadcasters Need to Know About What to Expect from Washington in 2009-2010 - discussed issues including the proposed broadcast performance royalty, localism and multiple ownership proceedings at the FCC, LPFM changes, and advertising and sponsorship identification policies.

A copy of Dave's PowerPoint presentation is available here.   

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Posted on July 29, 2009 by David Oxenford

A Full Five Person FCC - What's Next For Broadcasters?

For the first time since the term of FCC Commissioner Tate expired and Chairman Martin resigned, the FCC will be back to full strength with the Senate's approval of new FCC Commissioners Mignon Clyburn and Meredith Attwell Baker.  What issues of importance to broadcasters will the Commission, now headed by Chairman Julius Genachowski, take up in coming months?   The new Chairman, who gave a number of interviews last week with the trade and popular press, emphasized the importance of the broadband rollout.  Beyond that, his priorities for the broadcast media were not detailed.  He did, however, emphasize, that any broadcast regulation (specifically referencing the mandatory review of the broadcast ownership rules that must begin next year), would have to take into account the realities of the marketplace - including the current economic conditions.

Beyond that, there were few clues as to the new FCC's priorities in the broadcast world.  But, even though there are no indications of the FCC's priorities, there are many open broadcast issues that the Commission will, sooner or later, need to resolve.  Some involve fundamental questions of priorities - trying to decide which user of the spectrum should be preferred over others.  Other issues deal with questions of what kind of public service obligations broadcasters will face.  And yet another set of issues deal with just the nitty gritty technical issues with which the FCC is often faced.  Let's look at some of these open issues that may affect the broadcast industry. 

In the first category - the issues of priorities of one type of service over another, issues include the following:

  • The priorities between LPFM stations and FM translators and full power stations (see our posts here and here on that issue)
  • Final resolution of the White Spaces issues - implementing the FCC's decision to make TV spectrum available for use by wireless devices, or reconsidering that decision based on the pending appeals by the television industry
  • Deciding whether to take TV channels 5 and 6 and change them into radio channels (see our post here), when a limited number of full power TV stations, as well as a number of LPTV stations are currently using the channels
  • Making a decision about increased HD radio power, which some other FM stations that rely on service at the fringes of their protected contours or or beyond worry would interfere by such power increases

In the second category of issues - the question of what public interest regulations the Commission should impose on broadcasters, issues include:

  • Dealing with the Petitions for Reconsideration of the FCC's decisions to require TV stations to put their public files on line and to complete the Form 355 detailing all of their public service programming in minute detail - rules adopted in late 2006 but never implemented or even sent to the Office and Management and Budget for review of their compliance with the Paperwork Reduction Act
  • Resolution of the FCC's localism proceeding proposing regulations including:
    • A return to mandatory main studios in the station's city of license
    • Manned main studios during all hours of station operations
    • Mandatory public service obligations for broadcasters
    • Consideration of the process for the selection of music on broadcast stations and whether more local music should be required
    •   Potential extension of the TV public file and Form 355 obligations set out above to radio
  • Issues about the Arbitron PPM and whether it discriminates against minority owned stations
  • Resolution of the rural radio proceeding which includes questions about what kind of service stations need to provide to their city of license
  • Decisions on the proposals to mandate stricter sponsorship identification rules allegedly to protect the consumer from being influenced by undisclosed sponsors

Other more technical or procedural issues are also pending before the Commission, including:

And, of course, there are those issues that never go away.  Indecency cases are still pending before the Courts, so the Commission may once again have to face that issue.  And there is that little question of the Fairness Doctrine that just refuses to go away.  I'm sure that there are other issues that have escaped my mind while I'm writing this - but even if there were not, it is clear that the new Commission has plenty to keep it busy without even needing to bring up any new issues for the broadcaster.  And Congress can always give the FCC new things to do, like reregulating children's television programming or restricting prescription drug advertising.  Let's hope that these keep the Commission plenty busy for now, and that they don't have time to start anything new. 
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