Posted on August 24, 2010 by David Oxenford

FCC License Renewal Application Cycle Begins in Less Than A Year - What Stations Should Be Doing to Get Ready

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.

Mandatory EEO filings are another source of documentation that can cause issues for stations.  Stations should have their EEO Annual Public File Reports in their public inspection file for every year of this renewal term, and should have their most recent Annual Report posted on their website (if they have a site).  For television stations with 5 or more employees, and for radio employment units with more than 10 employees, you should have also filed a Form 397 Mid-Term EEO Report with the FCC at the mid-point of your license term (all but TV stations in the last few renewal windows should have already filed that report).  Details of your EEO obligations (including the slides from a recent presentation summarizing the EEO rules), and links to various EEO advisories that our firm has published, are available here.

Recent FCC Form 323 ownership reports should also be in the public file.  Our reminder on the ownership reports that all commercial stations should have filed at the beginning of July can be found here.  Noncommercial stations need to remain alert to their mandatory biennial reports, which are due every two years, computed from the date on which your state's license renewal application should have been filed.

There are other issues that come up in connection with the broadcast public inspection file.  For our Davis Wright Tremaine advisory on the Basics of the Public Inspection file for Commercial Broadcasters, setting out all of the documents that are required for inclusion in the public file, you can go here.

Now is the time for stations to review other compliance issues.  RF radiation issues are considered at renewal time so, especially if there have been changes at your transmitter site since the last renewal, check to be sure that you are in compliance with all limits there.

Check your licenses to make sure that all of your operating facilities are authorized.  Make sure that stations have licenses for all STLs, remote pick-ups and other auxiliary facilities, and that (especially if there has been a recent sale of your station) all such licenses are now listed in the current licensee's name.  Make sure that the FCC has the correct mailing address for your station on file, so that any notices go to the correct place.

Also remember that, for the first time this year, the license renewal application is supposed to have a certification that stations are not discriminating in the sale of advertising time. We have written about this requirement before (see our posts here and here).  This requirement is one on which the FCC has never provided much guidance.  The Commission has said that station advertising contracts should have certifications that state that advertisers are not making their buying decisions for discriminatory purposes, an example of such a certification we provided here.  But consult with your attorneys to make sure that you are ready for this new license renewal question.

This is a good time for stations to make sure that their operations are in good order in all respects.  Correct issues that might exist, so that you don't need to scramble to do so when the license renewal is due.  And make sure that your stations are serving their communities, and doing their best to address any criticisms that may be coming their way from their listeners.  At renewal time, you want friends who will verify how well your station serves your community, not enemies who may be ready to complain to the FCC about your performance.  Stations should obviously be doing this at all times but, with the renewal season soon to be upon us, be sure that these efforts are not put in the "to do" pile, but are instead action items for immediate attention.   Your license renewal application will be due sooner than you think, no matter whether your station is in Virginia and filing next year, or in Pennsylvania where that four year delay can pass very quickly.  Be ready. 
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Posted on February 21, 2010 by David Oxenford

David Oxenford Conducts Seminar for Utah Broadcasters on Political Broadcasting, FCC EEO Rules and Other Legal Issues Facing Radio and Television Broadcasters

On February, 18, 2010, David Oxenford conducted a seminar for the Utah Broadcasters Association on legal issues that affect radio and television broadcasters.  First, David summarized the various broadcasting legal and policy issues pending before the FCC and Congress.  David's PowerPoint presentation is available here.  Broadcasters interested in Washington issues that may affect them this year may also want to read our blog post from early January where we presented our legal predictions for 2010.

David then conducted a refresher course on political broadcasting issues that may arise in this election year.  His PowerPoint on political issues for broadcasters can be viewed here.  Broadcasters wanting more information on the FCC's political broadcasting rules and policies should review the Davis Wright Tremaine Political Broadcasting Guide.  A discussion of the issues for broadcasters raised by the recent Citizen's United case is available here.

Finally, David discussed recent developments in enforcement of the FCC's EEO policies.  The PowerPoint used in this session can be seen here .  Our Advisory on EEO rules and policies is available here, with forms and recordkeeping suggestions attached to that memo.  Our most recent EEO Public Inspection File Report advisory, with a model report attached, is available here.  Finally, our description of one of the recent FCC fines for noncompliance with the EEO policies is available here. 

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Posted on January 13, 2010 by David Oxenford

Broadcaster Calendar for 2010 - Important Regulatory Dates to Remember

Each year poses a new set of regulatory deadlines, and to help you remember all of those deadlines, the Davis Wright Tremaine Broadcast Group has prepared a calendar setting out the dates that broadcasters need to remember in 2010.  The calendar can be found here, and sets out FCC imposed deadlines for, among other things, Ownership Report filings (for noncommercial stations for now, until the status of the Form 323 for commercial stations is resolved), for quarterly issues programs lists, for EEO public file and Mid-Term reports, and for children's TV reports.   The calendar also provides reminders about the dates of SoundExchange filings and payment obligations, and for the political windows during which lowest unit rates apply for the Federal elections to be held in 2010 (for the House of Representatives in all states, and for the Senate in over a third of the states).  Lots of dates to remember - so check out the DWT Broadcasters Calendar.

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Posted on January 11, 2009 by David Oxenford

FCC Fines Multiple Broadcast Stations for EEO Violations - Fines Up to $20,000 Imposed

Just after Christmas, the FCC gave a number of broadcasters the equivalent of coal in their stocking - fining six different licensees for violations of the FCC's EEO rules.  The fines issued that day ranged between $7,000 and $20,000, and included penalties issued to major broadcasting companies including Fox and Cumulus.  Also included were fines against Urban Radio in New York City and Puerto Rico Public Broadcasting - demonstrating that the FCC's EEO rules, adopted in late 2002 after previous rules were declared unconstitutional essentially on "reverse discrimination" grounds (as they encouraged broadcasters to make hiring decisions not based on qualifications but instead based on race or gender), are truly race and gender blind.  It would be logical to assume that Urban Radio and Puerto Rico Public Broadcasting both had significant numbers of minority-group members on their staffs but, as they could not demonstrate that they had complied with the new rules requirements to reach out to all groups in their communities (as opposed to just racial or gender focused groups), they were assessed fines.  Reporting conditions, requiring that the broadcasters regularly file reports with the FCC so that their EEO efforts can be monitored, were also imposed.  All of the decisions can be found on the FCC's Daily Digest for that day, here.

The basis of all of these fines was the failure of the licensees to be able to demonstrate that they had "widely disseminated" information about all of their job openings.  The core of the 2002 EEO regulations was the requirement that licensees broadly disseminate notice about their job openings in such a way so as reach all of the significant groups within the community that the station serves.  The Commission was not looking to specifically force minority hiring, but instead to push for hiring from diverse sources.  The Commission wanted to push broadcasters to use recruitment sources beyond the existing broadcast community - so that hiring was not simply done by word of mouth or from within other professional broadcast circles.   Thus, the rules require that broadcasters use recruitment sources that reach out to various groups within their community and document those efforts. 

The rules require that these outreach efforts be documented.  Specifically, the FCC looks for information about the sources used to recruit for each opening, and to keep track of the recruitment sources of those who are interviewed for each position.  It may well be that the broadcasters who were fined in December had recruited for most of their positions but, because they were not able to document their employment efforts, they were fined.

The rules also require that broadcasters assess their programs from time to time and, if the programs do not bring in prospective employees from diverse sources, to expand or modify their programs.  Thus, where broadcasters do not maintain sufficient information to document their efforts, the FCC adds an additional fine for the licensee's failure to "self-assess" its program.  Essentially, the FCC finds that an applicant who doesn't know what sources it used to recruit for a specific job opening, it can't appropriately determine if its recruitment sources are bringing in applicants from a diverse cross-section of their communities.

These issues were discovered by the FCC either through the requirement that a broadcaster file two years worth of EEO Public Inspection File reports with its license renewal application, or through the FCC audit process - where the FCC randomly audits the EEO performance of approximately 5% of all broadcast licensees each year.  In the last two years, broadcasters also have to submit a Form 397 EEO Mid-Term Report - 4 years after the submission of their license renewal applications - another opportunity for the FCC to review their EEO performance.  The next Mid-Term EEO Mid-Term Reports are due on February 1 for Radio Stations in Kansas, Nebraska and Oklahoma and TV Stations in Arkansas, Louisiana and Mississippi.  More information about the February 1 filing date can be found in the Davis Wright Tremaine Advisory on the Form 397 and the Annual Public File Report.   Our memo on the full requirements for compliance with the FCC's EEO requirements can be found here.  Make sure that your EEO program is in compliance to avoid that lump of coal from the FCC in your stocking. 
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