The FCC yesterday announced that the due dates for Biennial Ownership Reports, which had been December 1 of this year, will now be January 31, 2020. The Order announcing that action is available here.  The FCC notice says that this additional time is needed to make updates to the ownership forms in the LMS database in which they are filed. The window for filing these reports will open on November 1.  The information to be reported in these biennial ownership reports needs to be accurate as of October 1, 2019, which is unchanged from the requirement before yesterday’s announcement.  The FCC is attempting to create a stable database of the ownership of stations, taken on October 1 every two years. While this is not the first time that the FCC has delayed the actual filing date for the Biennial Ownership Reports (see for instance the delay moving the last filing date from the originally scheduled 2017 into early 2018), they always want a snapshot of broadcast ownership as of October 1 of odd numbered years – even wanting reports from owners of stations on October 1 who sold those stations before the report filing deadline.

While the FCC has given broadcasters more time to file the Biennial Ownership Reports, broadcasters should not forget the three important dates next week that we have highlighted in recent days. These dates are:

  1. As we wrote yesterday, the FCC announced last week that FM radio (including translators and LPFM stations) will now use the LMS electronic filing systems for all applications for construction permits and license applications.  This is another step in the FCC’s transition from the CDBS database that broadcasters have used for years, to LMS.
  2. Broadcasters need to remember to file by Monday, September 23, their ETRS Form Three.  This form reports in detail on the station’s experiences in August’s Nationwide EAS Test.  For more details, see our article here.
  3. Finally, commercial broadcasters need to remember to submit their annual regulatory fees by next Tuesday, September 24.  For more information, see our articles here and here.

 

If you have a commercial or noncommercial FM radio station, an LPFM or an FM translator, and are looking to file an FCC application to seek a construction permit to authorize technical changes to your station, or to file a license to cover changes that were previously authorized (or which need no prior authorization), starting next Wednesday, September 25, you’ll need to file in the FCC’s LMS database, not in CDBS which has traditionally been used for broadcast applications. The FCC made this announcement in a Public Notice released last week. The Commission is gradually transitioning all of its broadcast applications to this database (TV broadcasters have already transitioned, except for assignment and transfer of control applications, and radio stations have already been required to use it for ownership reports and license renewal applications).

Starting on September 25, the following forms will be filed in LMS – and CDBS will no longer be used:

Application Type CDBS Form to be Decommissioned Sept. 25, 2019 LMS Schedule to be Used Commencing Sept. 25, 2019
Application for Construction Permit for Commercial FM Broadcast Station Form 301 Schedule 301
Application for FM Broadcast Station License Form 302 Schedule 302
Application for Construction Permit for a Low Power FM Broadcast Station Form 318 Schedule 318
Application for a Low Power FM Broadcast Station License Form 319 Schedule 319
Application for Construction Permit for Reserved Channel Noncommercial Educational FM Broadcast Station Form 340 Schedule 340
Application for Authority to Construct or Make Changes in a FM Translator or FM Booster Station Form 349 Schedule 349
Application for an FM Translator or FM Booster Station License Form 350 Schedule 350

Note that AM construction permit and license applications, many of which are still filed on paper because of the complexity of the engineering exhibits, are not yet transitioning to the new system. Assignments and transfers also are not covered by this notice, but you can expect those applications to make the change in the not-too-distant future. So remember to use the new system for any CP or license applications to be filed starting on September 25, 2019.

The Department of Justice’s Antitrust Division is, as we reported here and here, conducting a review of the consent decrees which govern ASCAP and BMI. Comments were filed in August, and those comments have now been posted to the Division’s website and are available for review here (they are organized alphabetically in groups of 100 under the “Public Comments” heading – click on one batch of 100, and a new screen will open with links to each of the comments in that group). There are 878 comments, most advancing concerns about any potential change in those decrees. While many appear to be form letters from individual businesses who play music in their establishments and are afraid of the new costs that could be imposed were the decrees to be abolished, there are also comments from many others who more thoroughly address the issues. As these have just been posted, and as there are so many comments, we have not been able to analyze them all – but wanted to alert you to their availability in case you were looking for some light weekend reading!

We’ve written many times about the legal concerns about advertising for various vices – including e-cigs (see, for instance, our article here) and CBD (see for instance our articles here and here). The issues with these products never seem to go away, and in recent days, they have become even more pronounced. On e-cigs and vaping products, we have advised that ads need to avoid health claims, must contain an FDA-required warning that they contain nicotine and can be addictive (see our articles here and here), and that they should not be aired during programming targeting children (see our article here). We recently also added a warning that action might be coming against flavored vaping products. This week, the headlines are full of news announcing a new Federal ban on flavored vaping products that may go into effect in the next few months, following a state ban that was recently instituted in Michigan. On CBD, in addition to concerns about laws that still make the product illegal in many states, we’ve discussed concerns about whether the product is legally produced from hemp (see our article here), and highlighted prohibitions on health claims (see our article here) and ads directed to an underage audience. This week, we saw another set of warnings from the FTC targeting advertisers making specific health claims about their products. These actions should serve as a warning to broadcasters and other media companies to proceed very carefully, only after receiving legal advice, before jumping into advertising for these products.

On the vaping front, Michigan recently became the first state to totally ban flavored e-cigarettes – including mint and menthol flavored vaping products. See the Michigan Department of Health and Human Services “Finding of Emergency” here, and the Governor’s announcement here. While there was some indication that the vaping industry might fight that ban, with the news yesterday that the Trump administration plans to ban these products on a Federal level (see this statement from the FDA indicating that it will soon announce specific rules for the Federal ban on these products), broadcasters need to be concerned about running advertising for products that may be considered illegal. With the recent rash of other serious health consequences of vaping, it is quite possible that further regulation of these products will follow, and so may lawsuits from the vaping industry. In the interim, the FDA notes that it will be running advertising to combat underage vaping and to warn about the potential health issues, so look for those advertising opportunities. Continue Reading New Concerns About Ads for E-Cigs and CBD

On the anniversary of the events of September 11, 2001, we should all be thankful for the work of the nation’s first responders. Broadcasters and other members of the electronic communications industries play a part in the response to any emergency – including through their participation in the Emergency Alert System (EAS). In recent weeks, the FCC has been aggressively prosecuting parties who it has found to have transmitted false or misleading EAS alerts. This was exhibited this week through the Notice of Apparent Liability issued to CBS for an altered and shortened version of the EAS tones used in the background of a “Young Sheldon” episode, leading to a $272,000 proposed fine. Consent decrees were announced two weeks ago with broadcasters and cable programmers for similar violations (see FCC notices here, here, here and here), with payments to the US Treasury reaching $395,000. These follow past cases that we have written about here, here, here, here, and here, where fines have exceeded $1 million. The CBS case raised many interesting issues that have received comment elsewhere in recent days, including the First Amendment implications of restrictions on the use of EAS tones in programming, and whether an altered tone in the background of an entertainment program, where audiences would seemingly realize there was no actual emergency, should really be the subject of an enforcement action. But the question that has not received much attention is one raised by the FCC’s Enforcement Advisory released last month addressing the improper use of EAS alert tones and the Wireless Emergency Alert tones used by wireless carriers (known as WEA alerts), and simulations of those tones. That advisory raises questions of just how far the FCC’s jurisdiction in this area goes – could it reach beyond the broadcasters and cable programmers to which it has already been applied and extend to online programming services?

This question arises because the FCC’s Enforcement Advisory addresses not only EAS tones used by broadcasters and cable systems, but also the WEA alert tones voluntarily deployed by most wireless providers. The advisory makes clear that the use of either EAS or WEA tones without a real emergency is a violation of the FCC rules. The Advisory states:

The use of simulated or actual EAS codes or the EAS or WEA Attention Signals (which are composed of two tones transmitted simultaneously), for nonauthorized purposes—such as commercial or entertainment purposes—can confuse people or lead to “alert fatigue,” whereby the public becomes desensitized to the alerts, leading people to ignore potentially life-saving warnings and information.

The FCC goes on to state:

the use of the WEA common audio attention signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency, authorized test, or except as designed and used for PSAs by federal, state, local, tribal and territorial entities, is strictly prohibited. Continue Reading How Far Does the FCC Authority Over False EAS Alerts Go? Could Online Programming be Subject to its Reach?

Last week, the FCC issued Public Notice reminding all broadcasters and other EAS participants of the obligation to file their ETRS Form Three report by September 23. That form provides details about a station’s participation in the August 7 Nationwide EAS Test (see our article here about the test and the required ETRS filings) – including from where the station received the EAS alert (assuming that it did receive the alert) and any complications or issues that may have arisen in connection with the Nationwide test. With the anniversary of 9/11 only days away, this reminder from the FCC should be taken seriously as the Commission looks for ways to make their EAS system more reliable and robust in the event of emergencies that necessitate its use in the future.

 

Just before Labor Day, the FCC published in the Federal Register the new rules regarding notice of Must Carry and Retransmission Consent elections. Those rules, as we summarized in more detail here, provide that, before the next election cycle deadline on October 1, 2020, TV stations need to provide notice in their online public files as to whether they elect carriage through must-carry or retransmission consent for the three-year cycle that begins on January 1, 2021. MVPDs must provide information in the FCC’s database of a contact person at the MVPD for revised notices. In the next election cycle, stations can give electronic notice to those designated contacts about changes in their elections for the next cycle. These rules will become effective on October 29 and require broadcasters to provide contact information for carriage inquiries in their online public file by July 31, 2020, while MVPDs must provide contact information either in their online public file or in the FCC’s Cable Operations and Licensing System (COALS) by that date. The Federal Register also gave notice of the deadline for comments on the FCC’s further inquiry as to how to deal in this system with entities (like “qualified low power TV stations”) that do not have a public file or MVPDs (like Open Video Systems) that do not maintain a COALS account. Comments are due September 30, with replies due October 15.

The FCC yesterday released several fact sheets detailing how the regulatory fees due to be paid by September 24 of this year should be paid.  For broadcasters, perhaps the most important is the Media Bureau Regulatory Fees Fact Sheet.  This sheet sets out specific information about how to determine the amount of the fees to be paid by each broadcast station.

The Commission also released a Fact Sheet setting out those broadcasters exempt from fees – principally noncommercial licensees and those with total obligations less than $1000.  A Public Notice setting out the methodology for payment was also released. In preparing their fee filings, broadcasters should carefully review these FCC documents to make sure that their payments are correctly made by the September 24 deadline.  For example, any payments totaling more than $24,499.99 must be made by wire payment – anything lower than that can be paid by credit cards. With these fact sheets, and the information released last week (see our blog articles here and here), broadcasters should have all that they need to complete their regulatory fee filings by the September 24 deadline.

The FCC’s recent action reforming many of the rules governing the broadcast of TV programming serving the educational and informational needs of children will go into effect on September 16 (see our articles here and here). Yet, at the same time as it was announcing the process by which these rules will be implemented (see our post from yesterday), it released two consent decrees resolving apparent violations of the old KidVid rules revealed in license renewal applications filed many years ago. In one case, the FCC agreed to a financial penalty of $109,000 to be paid by Nexstar in connection with violations at two stations – one in Arkansas and one in Texas. These violations apparently first arose in connection with license renewals filed almost 15 years ago. In another case involving a religious commercial station in Pullman, Washington, the financial penalty was $30,700 for violations that were identified in connection with its 2014 license renewal application. In both cases, the licensees agreed, in addition to the financial penalties, to institute compliance plans to ensure that future violations of the children’s television rules do not occur at any commonly owned stations.

The Consent Decree entered into by the Washington station penalized the station for preempting children’s programming for station fundraisers so that it did not meet the obligation to air an average of 3 hours of weekly “core programming” addressing children’s educational and informational needs. Certain supplemental programming claimed by the station to substitute for the underperformance was aired outside of the hours in which “core programming” must air to receive credit toward a station’s obligations (currently those hours are 7 AM to 10 PM, but they will expand to 6 AM to 10 PM on September 16). The FCC also identified errors in the Quarterly Children’s Television Reports submitted by the station (as we reported yesterday, these reports will be replaced by an annual filing after the final quarterly report that is due by October 10). Continue Reading FCC Reaches Two Consent Decrees Imposing Substantial Fines on TV Stations for Violations of the Children’s Television Rules in the Last Renewal Cycle

Many of the revisions to the FCC’s Children’s Television rules become effective on September 16 (as we wrote here), though there are portions of the revised rules whose implementation will be delayed pending approval by the Office of Management and Budget under the Paperwork Reduction Act. The FCC earlier this week released a Public Notice detailing which provisions will become effective on September 16. That notice also discusses how stations should report on their educational and informational programming directed to children on their next Quarterly Children’s Television Report, due to be filed at the FCC by October 10.

As we noted in our earlier article on the effective date, many of the new rules, including the following, will go into effect on September 16: (1) allowing “core programming” (i.e., the programs which meet the educational and informational programming requirements) to air starting at 6 AM (instead of 7 AM under the current rules); (2) eliminating the obligation to air additional core programming for each multicast channel operated by a station; (3) allowing some core programming to air on multicast streams instead of the main program channel; (4) allowing some short-form programming to substitute for core programming of at least 30 minutes; and (5) allowing more flexibility in the preemption of children’s programs. Not going into effect for now are rules relating to changes in the notifications to program guides, rules relating to public notice of preemptions and “second homes” of preempted programs, and the elimination of the need for noncommercial TV stations to display the E/I symbol in children’s programs. Also awaiting OMB approval and thus not yet effective are the rules changing the FCC reporting requirements from a quarterly obligation to an annual one. Yesterday’s public notice addressed how stations are supposed to complete their Quarterly Reports in this interim period. Continue Reading FCC Issues Public Notice on Implementation of New Children’s Television Rules and the Filing of October’s Quarterly Children’s Television Reports