Broadcast Law Blog : Broadcast Lawyer & Attorney : Broadcast Law Blog : Seattle, Los Angeles, Washington D.C., New York, San Francisco, Shanghai

Live or near live television programming, that is captioned on the air, and then transmitted on the Internet or through some sort of mobile app, must be captioned in its digital format by March 30. As with the obligation for pre-recorded programs that kicked in on September 30 of 2012, the rule currently applies only to programs that are streamed substantially in their entirety by digital means.

There is also a comment deadline in an important FCC proceeding coming up this month. The FCC has asked for comments on a potential relaxation of the rules limiting foreign ownership of broadcast stations. These comments are due on April 15. See our summary of this important proceeding here.

The auction for new FM channels also begins this coming month, and the processing of FM translator applications from the 2003 window continues with the deadline for filing preclusion studies for proposed new translators in or near spectrum-limited markets (see our summary here). Clearly, April is one of those busy regulatory months for broadcasters. Don't overlook those dates that may apply to you!

Correction - 3/29/2013 - TV stations in the states of Michigan and Ohio have renewals due on June 1.  Thus, they must begin license renewal pre-filing announcements on April 1, not stations in Illinois as was originally stated.  Their renewals are due on August 1, so they don't need to begin pre-filing announcements until June 1. 

The waiver is limited to the Quarterly Issues Programs Lists.  Stations should also have other documents created in the prior term that need to be uploaded.  These include the Annual EEO Public Inspection File Report, and certifications of commercial station's compliance with the commercial limits in children's television programs.  The waiver does not relieve stations from the obligation to post these or other documents back to the last granted renewal.

The waiver does not in any way limit the requirement for stations to post all of their Quarterly Issues Programs lists from the current renewal term.  So, for stations like those in say Indiana or Kentucky that  that have an April 1 filing date for their renewal applications, their licenses expire on August 1 of this year.  Even if they fit into all the limits on the waiver as set out above, they have to have Quarterly lists reaching back to August 1, 2005 in their online file until their upcoming renewal is granted.  But, if their renewal from 2005 was not granted, they still have to maintain online their EEO Annual Reports and their Children's television reports from the prior term - unless the FCC provides a further update between now and Monday.  But at least a little relief has been provided to TV broadcasters who may be frantically uploading documents to their public file in anticipation of Monday's deadline.   

The FCC also reminded broadcasters not to upload letters from the public as, for privacy reasons, these are not to be saved online, but instead to be retained in a paper file maintained by the television station.

So what should be uploaded? Probably the most voluminous documents that will need to be uploaded are the Quarterly Issues Programs Lists for the entire license renewal term. Annual EEO Public Inspection File Reports also need to be uploaded to the file. And certain station contracts and agreements, like those dealing with future ownership rights in a station and time brokerage agreements for more than 15% of a station's airtime, also need to be in the file.

One clarification that some had expected was not in Public Notice.  Questions had been raised about stations that, because of pending indecency complaints and the uncertainty about how to deal with such complaints in light of last summer's Supreme Court decision, never had their renewal applications granted in the last license renewal cycle. So, instead of the normal maximum of 8 years of documents for a station with a normal renewal term, some of these stations may have as many as 16 years of Quarterly Issues Programs Lists in their files, twice that of other stations. Some stations have requested that the Commission waive the requirement that these old reports be uploaded, and there had been some speculation in the trade press that the Commission might act on such requests. But no blanket waiver is contained in the public notice.

For a summary of the online public file requirements, you can go to our Q and A on the online public file requirements, here.

Update - 1/31/2012, 6:00 PM - The FCC this afternoon granted a waiver relieving certain TV stations from having to post Quarterly Issues Programs Lists from prior renewal terms to their online public file, even if their last license renewals have not been granted.  For details about this waiver, see our article here. 

One question has to do with the Annual EEO Public Inspection File Report that all broadcasters with 5 or more full-time employees must place in their file each year on the anniversary date of the filing of the license renewal applications by stations in the state in which their city of license lies. The most current EEO report must be posted on a station's website, if the station has a website. For radio stations, and in the past for TV stations, this meant uploading an EEO report to the station's website, and placing a link on the homepage where that report could be found. In the paper file, a station had to keep all of the EEO Public File reports back to the beginning of the current renewal period. Now, as TV stations have to upload all of these reports to their online file, TV stations need not actually host an EEO Public File Report on their own site, but they can instead link to the folder on their FCC-hosted public file that contains the EEO Public File reports.

The political file is another area where there are wrinkles that TV stations need to consider, as that part of the file was (and remains) the most controversial requirement of the online file rules, and the one most likely to be scrutinized by public interest groups. As the FCC's public notice released this week makes clear, political file records created prior to the August 2, 2012 effective date of the online public file rule do not need to be uploaded to the online public file – ever. Even though all TV stations have an obligation to upload other contents of their public file that were created prior to August 2 onto their online files by February 2, 2013, the Public Notice makes clear that this does not include political files contents that were created prior to August 2 – for both Big 4 Network affiliate stations in the Top 50 markets that had to upload into the online file all political file contents created after August 2, and for all other TV stations whose online political file obligations don't kick in until July 2014.

Items in the political file must be retained for two years.  Letters and emails from the public about station operations that broadcasters stations must maintain in their files are not to be uploaded into the online file, but instead will will remain in a paper public file of TV stations for the foreseeable future. Like radio stations, TV stations must continue to make public access available to members of the public during normal business hours. As we have written before, stations can face fines if they restrict access to the paper file, or if they question the motivation of those who come to visit that file. At the two recent seminars on the file, I was asked what "normal business hours" are. As far as I can see, these hours are not defined by FCC rules. But it seems to me that stations should be open, with their files accessible, for an 8 hour period each day, Monday through Friday, except for recognized holidays – the exact 8 hours probably being up to the reasonable discretion of the licensee. Remember to alert your receptionist or other studio employees to make the file available – and let them know where it is, so that a visitor does not get the run-around when they try to visit the file.

The political file remains a source of controversy – see this article by a DC public interest group claiming that the information in TV station's political files is voluminous and hard to interpret. This may well be a case of "I told you so", as broadcasters had suggested that the FCC, instead of requiring information about each order for political time being required to be in the file (and each change to an order, and information about when the order was fulfilled – all of which clog the file), that broadcasters instead simply post a weekly total of the amount of money spent by each political candidate on their stations. This summary information would have been much more readable and easily understandable by the public – yet the proposal was rejected by the FCC. Perhaps, over time, that issue will be revisited by the FCC. Sometimes too much information is not a good thing.

But, for now, broadcasters should be aware that their public files are being watched, and they need to be properly maintained. The FCC has not hesitated to issue big fines for public file violations in the past, and it will no doubt continue to do so in the future – both for radio and TV stations. Know the legal requirements and observe them!

EEO obligations also continue to be important, and stations in the following states should have placed their annual public file reports in their public file, and posted it on their websites if they have a website, by October 1. The states and territories affected include: Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Marianas Islands, Missouri, Oregon, Saipan, Washington state, Puerto Rico and the Virgin Islands.

Radio license renewals should have been filed by radio stations in Iowa and Missouri, and TV stations in Florida, Puerto Rico and the Virgin Islands.

And pre-filing announcements for renewals should have begun for stations with license renewals due at the beginning of December, including TV stations in Alabama and Georgia, and radio stations in Colorado, Minnesota, North and South Dakota and Montana.

Finally, noncommercial radio broadcasters in Iowa and Missouri, and noncommercial TV stations in Florida, Puerto Rico, the Virgin Islands, Alaska, American Samoa, Guam, Hawaii, the Marianas Islands, Oregon, Saipan, and Washington State all need to have filed Biennial Ownership Reports by October 1.

Lots of regulatory deadlines.  With the political broadcasting obligations many broadcasters are dealing with, and with the FCC's recent action on the incentive auction, in October, broadcasters should be focusing on Washington. 

What Stations are Subject to the New Rules?

All television stations, both commercial and noncommercial, must comply with the new rules. This includes Class A TV stations, but not Low Power TV or TV translator stations.

Radio is not subject to the rules – yet. The FCC has said that they plan to expand the rules to radio at some point in the future, but want the experience dealing with TV stations first.

Where Do You Go To Get Access to the Online File?

Station access is available at https://stationaccess.fcc.gov/. The public gains access to the various station files by going here: https://stations.fcc.gov/

What Documents Will the FCC Post on the Online File?

All documents that are electronically submitted to the FCC, and which must be placed in the public file under current rules, will be automatically posted by the FCC onto a station’s Online Public File. This will include documents such as the station’s Biennial Ownership Report, Children’s Television Quarterly Reports, License Renewal Applications, and Construction Permit Applications. The FCC will also post a copy of the FCC license for the station, and a copy of the Public and Broadcasting, A Procedure Manual, the FCC publication that all stations need to keep in their files.

What Documents Must the Station Upload?

Other documents currently required to be in the Public File will have to be posted by the station. This will include, most prominently Quarterly Issues Programs Lists and Annual Equal Employment Opportunity Program reports. Other documents that must be uploaded include: Time Brokerage and Joint Sales Agreements; quarterly certifications on meeting commercial limits for children’s television programming; must carry/retransmission consent elections; and contracts and other documents that must be filed with the FCC (e.g. network affiliation agreements, articles of incorporation or by-laws, agreements like options or rights of first refusal that relate to future ownership of a station, and other contracts that limit the operational decisions of broadcast stations). But the most voluminous requirement, particularly in an election year, will be to upload political broadcasting material (starting with Large stations, as described below).

Is There Other Information that A Station Needs to Provide for its Online Public File?

In addition to the documents referenced above, a station needs to provide in the Online Public File the location of its main studio and the telephone number for the station. The Online Public File will also need to contain the email address of a contact person at the station who can answer questions about the public file.

What Should Have Happened on the August 2 Effective Date?

On August 2, all stations must start to place all new public file material into their online public files instead of in their physical files (except as noted below). For “Large” stations (Big 4 Network Affiliates in the Top 50 markets), this includes all political file materials. For smaller stations – those outside the Top 50 markets and those which are not affiliates of the Big 4 networks – no political file material needs to be placed in the file until July 1, 2014.

What Does the Effective Date Mean as a Practical Matter?

Obviously, for Large stations, the impact is immediate – in connection with the need to upload political materials. For other stations, the impact is less immediate. Unless, soon after the Effective Date, a station has a complaint filed against it, correspondence with the FCC that needs to be included in the public file, or a new contract or agreement that would need to be filed with the FCC, the first real need to upload documents will be in early October. Quarterly Issues Programs lists need to be uploaded for all stations by October 10, and Annual EEO Public File reports need to be uploaded in states that have an October 1 anniversary date for their required license renewal filing.

When Do Documents that Were Created Before the Effective Date

Need to Be Uploaded to the Online Public File?

All stations need to upload past public file documents (except past political file documents and letters/e-mails from the public) onto their online public file within 6 months of the effective date – or by February 2, 2013. This would include past Quarterly Issues Programs Lists (back to the beginning of the current renewal period) and past Annual EEO Public Inspection File Reports, also to be maintained for the entire license period and up through the FCC’s grant of the station’s next renewal application.

The only exception is for political file documents created before the Effective Date. These documents do not need to be uploaded into the online file. As such documents need only be retained for two years, many of these documents will quickly be irrelevant.

What is Included in the Political File?

In the FCC’s order adopting the obligation for the Online Public File, the FCC refers to the political file only by reference to Section 73.1943 of the rules. That section of the rules deals only with the required information about the sale of time to candidates themselves and the information that needs to be posted about such purchases.

Commonly, most stations talk about the “political file” more broadly, including information about third party purchases on Federal issues (including Federal elections), which is covered in Section 315 of the Communications Act and not in the Commission’s rules. Some also look to Section 73.1212, where there are public file disclosure obligations for non-Federal issues of public importance. The FCC has been back and forth on this issue, but is seemingly now taking the position that all of this kind of documentation about third-party purchases on political campaigns is part of the station’s “political file.” But this advice has changed several times, so stations need to consult with their own counsel about this ambiguity in the new rules.

After the Effective Date, What Paper Public File Records Must be Retained?

Letters and emails from the public written to stations about their operations must be kept in a paper file. The FCC decided that these letters and emails could infringe on individual privacy if posted online. Thus, these communications will not be uploaded to the Online Public File, but instead retained in a paper file at the station throughout the current license term and up through the next renewal.

Political files created before the Effective Date must be retained in the paper file for two years.

Do Stations Need to Keep Back-up Files?

For the most part, stations do not need to be able to recreate the public file documents uploaded to the new Online Public File, as the Commission's system has been designed to provide redundancy to minimize downtime.  However, because of the time sensitive nature of political file information, the station must have political information available for inspection in the event that there was to be some failure of the new system. These political back-up documents do not need to be maintained in a public file, but stations should keep them in some internal records in case they are needed. The FCC has indicated that stations will be able to “mirror” the station’s online public file onto a local station server each day, and in this way maintain a daily backup of the station’s political file. Stations should insure that they are taking steps to have this back-up documentation of the political file available in case it is needed.

Do Stations Need to Remove Documents from the Online File?

While the FCC will automatically upload FCC applications and other FCC filings to the Online Public file, the FCC will not automatically remove these FCC submissions from the online file once the required retention period has passed. Stations need to do maintenance of the online public file on their own, removing files that no longer need to be retained.

Do Stations Need to Publicize the Existence of the Online Public File?

A link to the station’s Online Public File must be placed on a station’s website. The station’s website also must list the name and contact information for a person at the station who can assist the disabled with accessing the online public file. While the FCC will be responsible for any technology on the site necessary for accessibility, the station must still be prepared to assist those that need help in accessing the site.

* * * * * * * *

The Online Public file will be reevaluated by the FCC in the coming years. That is, of course, if it survives the appeals currently being prosecuted against it. While the FCC and the Courts have not stayed the effective date of these new public file rules, the appeals at both levels continue. So start complying with the new rules – but watch the news to see what developments may occur in the near future. And look for updates on the other issues that certainly will arise once people begin to use the system.

Updated: 8/14/2012, 5:00 PM EDT to correct the answer to the Question on the Back-up files that stations need to maintain to reflect that only political files need to be available immediately in the event of a failure of the Commission's system. 

As we have also previously noted, very few citizens go to radio stations looking to inspect quarterly issues/programs lists.  Do we really need a small college radio station to document its coverage of community issues the same way a commercial station would?  Would the FCC really consider stripping a small college of its noncommercial license for this type of violation, or is it just another way for the FCC to earn revenues?  It sure seems a lot like the latter. 

We know the FCC is stretched thin in terms of personnel and resources, and they do the best they can with the resources available. We also know that stations unable to pay FCC fines can present evidence of inability to pay to reduce or cancel proposed fines.  But there are legal fees to pay for doing that as well.  Accordingly, it does not seem unrealistic to suggest that some rule violations may merit a warning prior to a fine or that noncommercial educational radio stations be treated with a bit more leniency going forward.

Two other pure public file violations also drew fines of $10,000, but the facts and circumstances were quite different.  In one case, the violation was discovered by a station inspection by the FCC, and the FCC found no public file whatsoever.  In the second case, the licensee voluntarily disclosed to the FCC, in its license renewal application, that it was missing 2 1/2 years worth of quarterly issues programs lists from an 8 year license renewal period.  So it was missing just one element of the public file.  So despite voluntarily reporting the violation, and having that violation affecting just one element of the public file, and just a portion of that element, the fine is the same as that for a station that didn't keep a file at all, and got caught by the FCC.  Shouldn't the FCC recognize the difference in circumstances, and lessen the penalty for a party that was missing only part of its file, and voluntarily reported that violation?

Perhaps at some time the FCC will offer the public the opportunity to comment on the relative value of FCC fines, and perhaps do something to make the fine schedule more rational.  Broadcasters have, from time to time, argued that the public file rule was archaic and should be abolished, though the FCC now seems to be taking the opposite tack - looking to put the file online (see our summary of the FCC proceeding to do so here).  In any event, for the foreseeable future, the public file remains a big deal for the FCC, so be sure the yours is in good order.  For more information on doing that, see our most recent Advisory on the Quarterly Issues Programs Lists and our Advisory on the Basics of the Public Inspection File for Commercial Broadcasters. 

But will a replacement for the current QPIs produce any more of a uniform report?  And will any uniformity that results be produced at a substantially higher cost to the broadcaster? To understand the answers to these questions, it is important to first look at the specific proposals for the categories of information that the FCC suggests that it might want to collect.  The FCC proposes that a station collect and include on this form information about programming in the following categories:

• Local news
• Local Civic/Government Affairs ("interviews with or statements by elected or appointed officials and relevant policy experts on issues of importance to the community, government meetings, legislative sessions, conferences featuring elected officials, and substantive discussions of civic issues of interest to local communities or groups")
• Local Electoral Affairs
• Closed Captioning and Video Description (i.e. how much video description is being done by a station, and what exceptions to closed captioning are being claimed for programming broadcast on the station)
• Emergency accessibility complaints (complaints filed against a station for not making emergency programming accessible to those with disabilities)

The proposal is to collect this information on the basis of a "composite week" for perhaps two weeks each quarter, as certain public interest groups requesting this information contend that at least two weeks worth of information each quarter is needed to have a statistically valid sample.  These groups also suggest that the days that are included in the composite weeks not be announced until after the day has already passed - meaning that stations would either have to monitor and record this type of programming daily, or record all of its programming so that it could go back after-the-fact to compute the amount of time devoted to these types of programs.  So the adoption of this requirement may in practice require that all broadcast programming be recorded by stations - effectively imposing for an entirely different reason a rule mandating that stations record their programming that was proposed in 2004 during the height of the indecency battles and never adopted.

For each program fitting into the categories specified, the FCC asks whether it can require that broadcasters report on a per segment (as opposed to a per program) basis, i.e. reporting only on those segments of a program that address one of the topics specified above.  The public interest groups suggested that the following information be kept for each program (or each segment) and reported on the form:

• Program/segment title or topic
• Date and time aired
• Whether it was aired on a primary channel or a multicast channel
• Was it first-run programming or had it been aired previously on another channel
• Approximate length
• Was there a sponsor for the program that needs to be disclosed pursuant to the sponsorship identification rules (seemingly asking if it was some sort of Video News Release or other paid segment)
• Was the program aired as part of a shared services, local marketing or news sharing agreement with another station or newspaper in the market

The Commission also proposes that each program fit in only one category.  In other words, an electoral program should not also be counted as a local news segment, and so on.  How these distinctions could be made is unclear.  One would think that most local news would either deal with local electoral or civic and governmental affairs in some way or another.  How to decide where to include programs that fit in more than one category is unclear.

But the biggest question about this form, as it was for the Form 355 (see our analysis here) is "why"?  Why collect this information at all?  The FCC takes great pains to say that it is not establishing any quantitative requirements for a particular amount of programming in any of these categories.  Instead, this is merely an attempt to make this information available to the local residents and others who may desire to study it .  But what would these groups do with this information?  The FCC suggests that they could engage with the stations to be able to help the stations better shape their programming to community needs.  Without such information, we have already seen many cases where citizen's groups have complained to the FCC, particularly at license renewal time, that a station was not programming so as to address issues of importance to some group of local citizens in some way or another.  In those cases, the FCC denied the petitions, saying that broadcasters were free to choose how to serve the public interest, and that there were no specific requirements for particular amounts of programming in these various categories.  If that remains the case, as the FCC suggests in the NOI, why mandate that the many man hours necessary to collect this information be spent, when there is no regulatory purpose for that information?  The FCC asks for a cost benefit analysis, and one would think that there is no regulatory purpose for the information that is collected will be part of any such analysis.

The FCC seems almost as if it is doing the work of collecting information for various groups, so that these groups can challenge the service provided by broadcasters.  In fact, the FCC suggests that, in addition to the categories of information requested, stations be allowed to volunteer additional information about ways in which they are serving the public.  Again, if this form is not to be used for some sort of enforcement purpose, what purpose would the volunteered information serve?  It is almost as if the FCC, and these citizens groups, are operating from a presumption that broadcasters are not serving the public unless they can fill this form up with good stuff - when most viewers of television programming can judge the service of TV stations in the way that they always have - by changing the channel (or, these days, changing the viewing screen to cable or online services) if information that they want is not available on a particular channel.

What is perhaps most confounding is that this detailed information collection is being required of what is perhaps the most transparent industry in the country, in terms of the ability of citizens to judge its output and to collect the information that the government is proposing to mandate that broadcasters provide.  This is not a manufacturing plant, where the output of a factory can only be computed by someone in the factory itself, counting the number of products as they come off the assembly line.  Nor is it like some potentially harmful substance that may be emitted from a smokestack or in waste water, where access to the output might be restricted, and information can only be gleaned with specialized scientific equipment.  In the case of television, all of the information that the FCC asks the broadcaster to collect (and much more) could be collected by any citizen at any time that they want - if they are willing to sit in front of the TV set (or a DVR) and watch the output of the TV station.  It is there for all the world to see and to document, if anyone so desires.  Why does the FCC need to put this burden on the broadcaster?  That is a question that will no doubt be argued in the comments on this NOI. 

The Comment deadline has not yet been set, but will be 30 days after the publication of this order in the Federal Register.  The Commission notes that, at this time, it is not proposing to extend these rules to radio, but that "we believe that we should eventually require radio licensees to replace their issues/programs lists with a standardized from as well."  So this proceeding is crucial for all broadcasters to follow closely and to provide the FCC with the information that it needs to make a rational decision as to the degree to which broadcasters will need to document how they serve the public interest. 

In one case, the fine was issued against Drexel University in connection with its radio station.  The fine arose from the station's 2006 license renewal application, where it admitted that its public file was missing quarterly issues programs lists from eight quarters in the first three years of its renewal period - 1998-2001.  Based on those old, admitted violations, the FCC issued a $10000 fine (reduced to $8000 as set forth below). The University asked for a reduction in that fine for several reasons.  First, the licensee argued that the public was not harmed, as no one asked to view the FCC file during the license term.  The FCC rejected that argument - which has been raised before - stating that the the omission of even a single item from the public file is serious as "it diminishes the public's ability to determine and comment at renewal time on whether the station is serving its community."  The FCC said that this was true whether or not anyone actually visited the file (without addressing how the public's ability to assess a renewal is harmed if no one ever even asks to review the file).

The University also argued that the station could not afford the fine, as the University only budgeted a set amount (at most $15,904 per year) to the station.  The fine would eat up that budget, and payment of the fine from other University funds would reduce non-radio services and activities.  The FCC also rejected that argument - finding that it did not show that the licensee could not pay the fine.  As in prior cases, the FCC looks to the entire licensee, not just its budget for radio, to determine if a fine can be paid.

Finally, the Licensee suggested that the fine violated the Small Business Regulatory Enforcement Fairness Act of 1996, as the same fine would apply to this small college station as would apply to a large commercial television station guilty of the same violation.  Again, the FCC rejected the argument - finding that the FCC considered the SBREFA when it adopted its fine schedule and, because the FCC provides for reductions in cases where a small entity can't afford to pay, there is no violation of this Act.  The only reduction was based on the licensee's past record of compliance, resulting is a reduction of $2000 from $10,000 to $8,000.

The other noncommercial case involved a religious broadcaster, who also admitted in its renewal application that it did not have all of its quarterly issues programs lists in its files, for 11 of 17 quarters since the station came on the air.  It also did not timely file one required Ownership Report.  Here, too the licensee claimed financial hardship but the FCC found that the fine would constitute only 3.6% of annual revenue, so it was not excessive (citing cases that say that a fine of as much as 5% of revenue are reasonable). 

While many broadcasters question the value of the public file, as it is seldom if ever visited by the public, compliance with this rule is obviously a high priority of the FCC.  Public inspection file fines are quite expensive and, with license renewal coming up, it's important for all stations to be able to certify that the file is complete.   Our advisory on the required contents of the commercial public inspection file is here.  Our latest advisory on the requirements for the quarterly issues programs lists is here. Check your station's compliance today. 

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. 

The Consent Decree route can speed the processing, but the process has its own costs.  There is not only the cost of negotiating the agreement and making the voluntary contribution (which is usually about the same amount as a fine would be for the same offense), but the licensee typically must also agree to a compliance program to ensure that the violation does not occur again.  Such a program often has the licensee making promises to routinely report to officers of the licensee and the station's outside counsel to make sure that the routine FCC obligations are being met.  Come the next renewal time, not only does this confession invite scrutiny of the offense that originally got the station into trouble, but the promises made in the compliance plan can themselves be the subject of scrutiny, and perhaps even provide an independent basis for a fine should the plan not be followed. 

And don't even think of not reporting in your license renewal application those violations in your public file that you may discover, as the failure to report a violation can cause its own problems  - turning a mere rule violation into a misrepresentation issue (see our post here)

Obviously, each of these steps can have costs attached to them.  So make sure that you don't have these problems to begin with - review your operations now to make sure that there are no significant problems to report when your renewal application is filed.

Another problem identified identified in another case was the lack of a functioning EAS receiver.  The FCC has this week been emphasizing the importance of emergency communications, and one of the principal means of that communication (and, as we wrote here, of demonstrating service to the public in the context of all sorts of FCC proceedings) is the EAS system by which state, local or national officials can communicate with the public in the event of an emergency.  In most states, the EAS system currently works as a daisy chain, with a series of stations monitoring other stations to pass the emergency message down the chain.  All stations are supposed to monitor both a primary and secondary station, so that if they don't get the message from one station, they will get it from the other.  In one of the recent FCC cases, FCC inspectors found that the station had not logged the receipt of any emergency alert system test from either of the stations that the inspected station was supposed to be monitoring and, after being told of the problem, the station still could not receive a test when one was conducted several days later.  I have heard from some FCC inspectors, that this is not an infrequent problem, as the EAS units can be installed improperly, can be damaged by power surges or other problems, or can simply have their receive antennas knocked off the back of the unit when inadvertently jarred.  As a station's Chief Operator is supposed to be signing off on a station's "Station Log" weekly, and the principal thing that is supposed to be recorded in the log is EAS tests (as well as any other technical issue at the station), if the Chief Operator does not notice that the regular EAS test has not been logged, someone is not doing their job.  The log should make someone notice, and problems should be rectified at once.

Another issue turned up by these inspections was with the FCC public file.  In the same case where the EAS issues were discovered, the FCC inspectors discovered that there were missing Quarterly Programs Issues lists in the station's public file.  We've written before about how the failure to have these lists in a public file can lead to fines at license renewal time (probably the most frequent source of license renewal fines), but it can also lead to a fine if the FCC inspector comes knocking.  Our Davis Wright Tremaine Advisory on the Quarterly Programs Issues List (the most recent edition is here, though a new one for October reports should be out very soon), talks about how important these lists are, and provides information on how to complete them.  Check it out, and make sure that your station is in compliance.

Given the variety of issues that can arise during an FCC inspection, and the potential for fines in connection with any violation, stations should review their operations now to avoid issues later. 

While these new reports do not impose any new standards on a broadcaster requiring a specific amount of any type of programming, at least Commissioner Copps expressed his hope that this was but a first step in developing mandatory requirements for specific amounts of public service and public affairs programming for TV broadcasters.  Commissioner McDowell, on the other hand, recognized the implicit threat that these forms imposed - by requiring the detailed reporting of the types of programming that a station airs, the FCC is implicitly urging stations to air that kind of programming.  He feared that this was moving the FCC in the wrong direction toward more regulation and treading on First Amendment concerns.

Commissioner McDowell also expressed concerns about how stations - especially smaller ones - would meet the requirement that they have their public files online in 60 days.  While there was some discussion about the potential for waivers by smaller stations which maintain a bare-bones website or are otherwise financially distressed, one wonders if the Commission fully understands what needs to be in a public file, and the potential issues that can arise from putting it all on-line.  Not only will there be these new quarterly filings that will need to be put online (or linked to, as apparently the Commission will allow a station to link to documents that are already online), but there will also need to be links to children's programming reports, EEO annual reports, and Ownership filings on FCC Form 323.  Stations will also need to put on their websites Network Affiliation Agreements, LMAs or JSAs, documents relating to their ownership (including options, pledges and other financial documents that set limitations on the operation of the station) and various other sometimes voluminous documents.  From what was said at the meeting, about the only documents that will not need to be put on the website will be political file contents and letters from the public that are sent by "snail mail" (though email letters from the public will need to be maintained online).  I would fear that these obligations will be the kind of "gotcha" rules that will lead to fines at license renewal time, just as the failure to keep a complete public file, to complete Quarterly Issues Programs lists, or to observe all the obligations of the children's television rules led to so many fines during the recent renewal cycle. 

This summary is based on the Commission's brief Public Notice about the actions, and the statements made at the FCC meeting.  When the full text of the Commission's order is released, we will know more about the details of these requirements.  Stay tuned, and start thinking about increasing the electronic storage capacity of your station website.