Broadcast Law Blog

Broadcast Law Blog

FCC LMS Filing System Off-Line for Maintenance For Parts of This Weekend – Making Biennial Ownership Report Filings More Difficult

Posted in AM Radio, EEO Compliance/Diversity, FM Radio, General FCC, Noncommercial Broadcasting, Television

Note, for all of you who are trying to complete your Biennial Ownership Reports that are due for commercial and noncommercial stations on March 2 (see our post here about the March 2 filing date), the FCC yesterday posted a notice on the log-in screen for its LMS electronic database, in which the ownership reports are filed, that it will be off-line for maintenance during parts of the upcoming 3-day weekend. As the system has had glitches in recent weeks, that maintenance may be overdue, but if you are running late on completing the Biennial Ownership Reports, this may not be welcome news.  Plan accordingly. 

Note, 2/16/2018, 3:30 PM – I have been told that the FCC anticipates that the outages will be mostly confined to overnight hours, so most folks trying to complete the report during the daytime over the weekend will not be affected.  So, barring any unforeseen issues, it will only be night owls who will be affected by the outages. 

Court of Appeals Denies Rehearing on Multilingual EAS Obligations for Broadcasters

Posted in AM Radio, Emergency Communications, FM Radio, Programming Regulations, Public Interest Obligations/Localism, Television

As we wrote here, MMTC (a DC-based public interest group) had petitioned the US Court of Appeals for a Rehearing on its decision (about which we wrote here) upholding the FCC decision deciding not to impose any multilingual EAS obligations on broadcasters.  The full Court of Appeals has just issued a one sentence order denying that reconsideration request.  While, theoretically, MMTC’s next appeal would be to the Supreme Court, lacking an issue of major significance or constitutional importance, that is unlikely. 

Thus, as we wrote here, the next step in any attempt to deal with multilingual EAS alerts will be with the FCC, which has agreed to further consider a survey of state EAS coordinators (“SECCs”) to see how best to insure that EAS alerts are distributed widely to the entire population.  By May, SECCs are supposed to integrate information about non-English speaking groups within their states into their State EAS plans, and file those revised plans with the FCC.  After that has occurred, we will see if the FCC takes further action in this area.  So stay tuned, as the issue continues to evolve. 


With the March 1 Deadline Looming, What Should Radio Stations Be Doing to Prepare Their Online Public File? – Five Questions About Station Obligations

Posted in AM Radio, FM Radio, General FCC, Noncommercial Broadcasting, Public Interest Obligations/Localism, Website Issues

On a day when the rest of the country is thinking about chocolate and Champagne, many radio stations need to be considering the FCC requirement that their public inspection file be made available online in a system hosted by the FCC. From the calls I have received in the last few days, it appears that, even though the FCC adopted the requirements two years ago (see our post here), and station groups with 5 or more employees in the Top 50 markets had to covert to the online file soon thereafter, many smaller stations are only now realizing that the March 1 mandatory conversion date for all full-power stations – commercial and noncommercial – is fast approaching.

We recently conducted a series of seminars for state broadcast associations on the online public file obligation. The slides from last of these, conducted for the Iowa and Indiana Broadcasters, are available here. In addition to those slides which provide an outline of the online public file obligations, there are many resources on the FCC’s own website about the public file. To summarize some of the last minute issues being faced by broadcasters, the Indiana Broadcasters posed 5 questions about the requirements – and our answers are shared below.

    1.  If a station is starting from ‘square one’ in preparing for the Online Public File requirement that kicks in for all radio stations on March 1, what are the first couple of steps one should do immediately?

With the March 1 deadline fast approaching for having your online file up and activated , stations should now be actively uploading the required material to the FCC file, and making sure that the information automatically uploaded by the FCC is accurate. We have already heard reports that the FCC system for hosting the online public file is running slowly, especially during business hours, making uploads difficult. That is likely to get even worse as we get closer to the March 1 deadline. So if a station has not started to get its online public file ready, it needs to do so immediately.

For a station that has done nothing, it needs to start by registering to get a password for the FCC’s site that hosts the file. A station first needs to go to the “Owner Sign In” page here. Using the station’s FCC Registration Number (FRN) and password will allow it to log in and set up a passcode for the public file. If a station doesn’t know its FRN or has forgotten its password, it can call the FCC’s FRN Help Line: 877-480-3201 (Mon.-Fri. 8 a.m.-6 p.m. ET). Once the station has its passcode, a station uses that passcode to log into the FCC-hosted platform, here, and start uploading its documents.

The FCC has a good set of Frequently Asked Questions about the online public file process here.

2.  Are all radio stations now going to be required to use an online Public File?

The online public inspection file is required for all full-power stations, commercial and noncommercial, unless the station has obtained a waiver. Few if any waivers have been granted. Unless you are a very small station with real provable issues with Internet access, I would not expect waivers at this point, so late in the game.

3.  What are the most important uploading obligations?

The FCC has already uploaded many of the required documents, and those documents should be found already in the folders when you first log into the FCC’s hosting platform. The information already uploaded by the FCC includes pending applications, ownership reports, a contour map showing the stations coverage, The Public and Broadcasting procedure manual, and copies of the station’s license and renewal authorization. Look these over carefully and determine which of the FCC-uploaded documents need to be made available to the public. The FCC will upload all applications filed for your station going back many years – when only pending applications need to be made visible to the public. So you need to select which ones will be made available to the public by keeping them in the “On” position and toggling the rest to the “Off” position so that the public can’t see them. We have also heard reports that there have been instances where the FCC has not uploaded the most recent license into the authorization folder, so you should check to make sure that what has been uploaded reflects accurately your current operations.

A station will have two sets of documents that will take a significant amount of time to manually upload. Any station that is part of a Station Employment Unit with 5 or more full-time employees needs to upload all of its Annual EEO Public Inspection File Reports, back to the start of the current renewal term for the state in which the station is located. There will likely be 4-6 of these reports, depending on the license term for the state in which the station is located.

In addition, stations need to upload all of their Quarterly Issues Programs lists going back to the start of the license term. All stations, commercial and noncommercial, should have these reports. These are the only documents that the FCC requires to show how your station met the needs and interests of its community of license (for more information on these reports, see our article here). As all of the Quarterly Issues Programs lists going back to the start of the license term need to be uploaded, you are looking at uploading more than 20 of these quarterly reports. Because there are so many, these will likely take more time than anything else to upload.

Unlike the EEO Reports and Quarterly Issues Programs lists referenced above, the FCC has said that you only need to upload “new” political file documents (i.e. those created after the file goes live to the public). If you decide not to upload the old political documents, you must maintain all “old” political file documents in a paper public inspection file for two years from the date that the document was created. If you are thinking of no longer maintaining a main studio open during normal business hours, you may want to consider uploading all political documents now so you no longer need to maintain a paper file available to local residents.

There are other documents commonly to be included in the file that station employees will need to manually upload. These include licensee organizational documents, contracts relating to ownership rights (e.g. options, pledges or voting proxies), and other contracts that restrict a licensee’s control over station operations (all of which are supposed to be listed on your ownership report) either need to be uploaded or included on a list of documents available for inspection upon request (with information as to how to contact someone at the station that can provide the documents within 7 days). Time brokerage or joint sales agreements need to be uploaded. And, for noncommercial stations, a list of donors contributing to support the broadcast of a specific program (as opposed to general station donors) is to be included in the public file.

The FCC has published a complete list of all of the documents that you need to have in your file here.

4.  After uploading the documents, how long do I need to keep copies of these files?

Retention periods vary for the various documents that need to be in the file. As noted above, EEO Public Inspection File Reports and Quarterly Issues Programs lists for the entire license term need to remain in the file until your next license renewal is granted. Applications need to be in the public file only until the application is granted and the grant is final (no longer subject to any appeal or review). Only the most recent ownership report needs to be in the file (as a reminder, the next biennial ownership report is due by March 2, 2018). Documents in the political file need to be maintained for two years from the date of their creation. Certain contracts and agreements (like time brokerage agreements) need to be maintained for the life of the agreement. So review the FCC’s rules on the retention of documents. In the slide deck we prepared here, many of the retention periods are provided.

5.  What advantages and disadvantages of the online file?

The obvious advantage is that you no longer have to maintain a paper file and give physical access to your studio to anyone who wants to see the file. Of course, by putting the file online, you make the contents of the file available for review by anyone, anywhere, any time. So public interest groups and the FCC itself can use it to assess your compliance – including looking at electronic date stamps on documents to determine whether documents were timely included in the file. Late filings could become a real issue for documents like Quarterly Issues Programs lists which were rarely if ever reviewed by the FCC when they were kept in the paper public file. Remember, on the next renewal application, you will likely be asked to confirm that you placed all required materials in the public file on time. The FCC and the public will now know whether your response is accurate or not.


The March 1 deadline is fast approaching. If you have not already completed the process and made your file available to the public, start working on that file soon. It will take longer than you think, so don’t run out of time to comply.

Addendum – 2/14/2018, 5 PM EST – the post has been edited to reflect that the online public file applies to full-power stations.  LPFM stations and FM translators do not have a public file obligation. 

Commissioner O’Rielly to Head FCC Review of KidVid Rules

Posted in Children's Programming and Advertising, Programming Regulations, Public Interest Obligations/Localism

FCC Commissioner Michael O’Rielly today released a statement announcing that Chairman Pai has requested that he lead an effort to review the FCC’s “KidVid” rules – the rules that govern the amount of educational and informational programming that each broadcast station is required to air to meet the needs of children. Commissioner O’Rielly recently wrote about his concerns that the requirements that each TV station air 3 hours weekly of such programming for each of its program channels no longer make sense in today’s media marketplace where there are so many other outlets for children’s programming. We wrote here about his prior statement on the issues. In the statement released yesterday, he asked that all stakeholders in the children’s television world – including broadcasters, children’s advocates and family group representatives – contact his office with their opinions on the current rules. This new aspect of the FCC’s Initiative for the Modernization of Media Regulation seems to have traction –so interested parties should take advantage of the Commissioner’s invitation and forward their thoughts on children’s television obligations to him.

FCC Extends Comment Dates on National Caps on TV Ownership

Posted in Multiple Ownership Rules, Television

The FCC in December issued a Notice of Proposed Rulemaking, looking at changes in the national television ownership caps. We summarized the issues raised in that Notice here. The FCC yesterday issued an Order extending the comment dates in that proceeding. Comments are now due on March 19, with replies on April 18.

GMR to Extend Commercial Radio Interim Licenses Until September 30, 2018

Posted in Broadcast Performance Royalty, Intellectual Property, Music Rights, Noncommercial Broadcasting

On Friday, the Radio Music License Committee issued a press release that states that Global Music Rights (“GMR”), the new performing rights organization that collects royalties for the public performance of songs written by a number of popular songwriters (including Bruce Springsteen, members of the Eagles, Pharrell Williams and others) has agreed to extend their interim license for the performance of their music by commercial radio stations until September 30, 2018. The notice says that GMR will be contacting stations that signed their previous extension (through March 30 – see our article here) about such an extension. If you don’t hear from GMR, the RMLC suggests that you reach out to them about this extension.

As we have written before (see our articles here and here), GMR and the RMLC are in litigation over whether or not the rates set by GMR should be subject to some sort of antitrust review, as are the rates set by ASCAP, BMI and even SESAC (see our article here on the SESAC rates). In the interim, there is no license to play the GMR music outside the Interim license offered to all commercial stations, or individually negotiated licenses with the company. Commercial stations that play GMR music should either have a license or should discuss carefully with counsel their potential options and liabilities if they continue to play GMR music. Do not ignore the potential liability as, under Copyright law, there are substantial “statutory damages” of up to $150,000 per song, for infringement. Noncommercial stations are not covered by this license being offered by GMR to RMLC members, as public performance royalties for noncommercial broadcasting are set by the Copyright Royalty Board (see our article here). Those stations should also discuss their obligations for royalties under the CRB decision with their counsel.

LPTV and TV Translator Displacement Window Announced – April 10 through May 15

Posted in Incentive Auctions/Broadband Report, Low Power Television/Class A TV, Television

The FCC on Friday issued a Public Notice announcing that LPTV stations and TV translators displaced by the Incentive auction and repacking of the TV band will have an opportunity to file for replacement channels for the ones on which they currently operate in a window that will run from April 10 through May 15.  This is for LPTV and TV translator stations that operated on channels above channel 37, which will no longer be part of the TV band after the post-Incentive auction repacking of TV stations is complete. Also filing will be LPTV stations and TV translators that operate on channels in the core TV band on which full-power stations have been relocated as part of the post-auction repacking. Stations planning to file in this window also need to take into account improvement applications filed by full-power stations in the windows held during the latter part of 2017 (see our articles here and here on those windows). The Public Notice offers access to an FCC tool that will help LPTV and translator station operators locate available channels in the area in which they operate.

The Public Notice for the most part simply announces the dates, as the FCC had promised 60 days prior notice of the opening of the window.  The procedures to be followed during the window were set out in a Public Notice released last May, which we summarized here. So if you operate translators or LPTV stations which were precluded by the repacking, start preparing now for the window.

Five Fines of $10,000 or More Proposed for Radio Stations Missing Quarterly Issues Programs Lists in their Public File – New Concerns for Stations as Public File Goes Online and License Renewal Approaches

Posted in AM Radio, FCC Fines, FM Radio, License Renewal, Noncommercial Broadcasting, Public Interest Obligations/Localism, Television

The FCC’s Audio Division yesterday issued “Notices of Apparent Liability for Forfeiture” to five radio stations; all owned by Cumulus Licensing. Each of these notices proposed a fine (called a “forfeiture” in FCC-speak) of either $10,000 (here) or $12,000 (here, here, here and here), all for violations of the FCC public file rules. All of these stations, located in close proximity in eastern South Carolina, were missing numerous sets of Quarterly Issues Programs lists that should have been included in their public files in the last license renewal term. The stations voluntarily reported that the lists were missing in their license renewal applications filed in 2011. In clearing up these long-pending renewals, the FCC proposed to issue these fines – again emphasizing that even this deregulatory FCC does not hesitate to enforce the rules that remain on the books (see our previous warnings here and here).

The release of these proposed fines also sends a warning to broadcasters about to convert to the online public inspection file (as all radio stations will need to have their public file online by March 1 – see our discussion of the online public file here), that these reports will be able to be viewed by anyone, anywhere, to see if they have been prepared and timely placed into the stations online public file. Each document deposited in the public file is date-stamped as to when it was uploaded. So anyone trying to assess a station’s compliance with the public file rule can see whether the Quarterly Issues Programs list was uploaded to the file and whether the upload was timely – within 10 days of the end of each calendar quarter. Continue Reading

Appeals Court Denies Request to Put Changes in FCC Ownership Rules on Hold

Posted in EEO Compliance/Diversity, Multiple Ownership Rules, Public Interest Obligations/Localism, Television

In a very short order, the US Court of Appeals for the Third Circuit denied the request filed by certain public interest groups that had asked that the Court stop the new FCC ownership rules from taking effect and suggesting that a special master be appointed to oversee the FCC’s ownership review process. We wrote about that request, filed as an Emergency Petition for Mandamus, here. If it had been adopted, the changes to the rules on broadcast-newspaper cross-ownership and other changes to the ownership rules that we detailed here would not have gone into effect on February 7, as expected. However, the denial of the stay does not end the case.

Instead, the public interest groups can continue their appeal of the FCC decision and present the Court with arguments as to why the decision should be overturned. The principle basis of the appeal seems to be that the FCC did not, before the new rules were adopted, adequately address how to encourage a more diverse ownership base in the broadcast industry. The Third Circuit, in previous ownership appeals, had faulted the FCC for not taking this issue into account. In yesterday’s ruling, the Court recognized that the FCC has agreed to implement an incubator program to encourage more diversity in ownership. The Court put the appeal on hold for 6 months while the FCC takes comments on how to implement the incubator program and presumably takes some action on those comments (see our summary of the questions asked by the FCC about the incubator program here). Given this delay, and the time that it will take to file briefs and argue the case, the appeal itself will be unlikely to be decided until next year. In the interim, the new rules are in effect, but any deals done in reliance on those rules are theoretically subject to any ruling that the court may make when it considers the merits of the appeal. Something for broadcasters who make deals in reliance on the change need to keep in mind.

Proposal for Class C4 Stations Coming From the FCC – What are the Considerations for Radio Broadcasters?

Posted in FM Radio

In a speech yesterday at the MMTC Ninth Annual Broadband and Social Justice Summit, Chairman Pai revealed that a Notice of Proposed Rulemaking to adopt a new Class C4 FM station, that would allow the increase in power of some Class A stations that meet new spacing requirements, had been drafted and was circulating at the FCC for consideration. So we should expect to see something soon. While some Class A stations are certainly in favor of getting more power to increase coverage and increase building penetration in area that they already cover, there are some who are more leery about the proposal. We wrote the following about some of those concerns in September 2016, when this idea was first discussed by then Commissioner Pai at an NAB Radio Show:

A Class C4 station would fit between Class A FM stations (limited to 6 kw ERP at 100 meters antenna height above average terrain) and a Class C3 (25 kw at 100 meters). The Class C4 station would be authorized with a power of up to 12 kw ERP. According to the Commissioner’s speech, this would allow for Class A stations to upgrade their facilities to better serve their communities. We wrote about this proposal when it was first released (here), presenting more details about the technical facilities that are involved in this proposal. While some broadcasters did initially support the proposal, others were less enthusiastic about the idea. Why are there issues with this proposal?

One of the biggest issues is simply the congestion of the FM band. The more stations that are shoehorned into the FM band, the more interference that is created. Many FM stations enjoy listenership beyond the coverage that is predicted by the FM spacing tables. Increasing power of existing Class A stations might well limit those areas of service enjoyed by some stations, and might also limit the ability of existing stations to upgrade to higher classes with more meaningful coverage increases.   It may also reduce flexibility of existing stations to change transmitter sites if something happens to the sites from which they currently operate.

But, today, the area where there is perhaps the most concern is the impact that the proposal, if implemented, could have on FM translators and LPFM stations.   Congestion in the FM band limits opportunities for new FM translators and LPFMs, and could even disrupt the operation of existing translators and LPFM stations. Upgrades by Class A stations to Class C4 could cause interference to the existing translators and LPFMs, perhaps requiring these secondary stations to have to change frequency (if other frequencies are available in their market). In the two years since comments were initially filed on the Class C4 proposal, the use of translators has only increased, particularly to rebroadcast AM stations. Obviously, any consideration of this proposal would have to look at the differences in the use of translators that have occurred since it was first advanced.


The concerns expressed above have only multiplied since they were written, based on the thousands of translators that have been repurposed for AM uses in the recent filing windows. So, in evaluating this proposal, the Commission would be faced with the need to weigh the benefits of the upgrades that some stations could enjoy against the limits on translators and other FM upgrades that could be precluded.  We should see exactly what is being proposed shortly.