Pirate radio operators continue to be a problem – particularly in major metropolitan areas.  The week before last, the FCC resolved two long-pending cases against pirate operators through negotiated settlements.  In one case, the FCC last year initially proposed a fine of $151,005 for the illegal operation.  After examining the operator’s finances, the Bureau agreed to a $4,000 fine now, with a penalty of $75,000 should the operator violate the law again (see this decision against an operator called Radio Concorde).  In the second case, the FCC had proposed a $453,015 fine last year, but agreed to take $5,000 now, with penalty of $225,000 if the operator violates the terms of the consent decree (see the decision dealing with operator Radio TeleBoston).  Last year, we wrote here about the much larger fines initially proposed for these two operators.

In both cases, the FCC seemingly recognized reality in taking the small upfront payments now rather than trying to collect huge fines that likely were beyond the ability of the operators to pay.  The FCC also required the surrender of the operator’s equipment and a commitment to stay away from pirate radio for 20 years or face much larger fines.  The big fines initially imposed in these cases were set even before Congress enacted the PIRATE Act early this year.  The new law allows for fines on illegal operators of $100,000 per day, up to a maximum total fine of $2,000,000.  Even without the full effect of the PIRATE Act, these cases show the deterrent effect of these large fines.  They get an illegal operator’s attention, which can lead to the shutdown of these unauthorized stations, as happened in these cases.  With the pandemic, we worry about even more illegal uses of the broadcast spectrum – and we will write more about that issue here tomorrow.

Here are some of the regulatory and legal actions of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • FCC fines against two radio stations serve as a reminder that station managers need to pay close attention to how their staff handles on-air contests. The FCC issued Notices of Apparent Liability for Forfeitures to two Texas licensees for allegedly violating the Commission’s on-air contest rules through a failure to conduct the contest substantially as announced, specifically for unreasonable delays in awarding prizes.  Both licensees were hit with several thousand dollars of fines even after settling the matter with the contest winners.  Both licensees pointed to human error as the reason for the mistakes, but as the decisions show, that is not an excuse.  (El Paso NALF)  (Mont Belvieu NALF)  (Broadcast Law Blog)
  • The FCC’s International Bureau released a preliminary list of C-Band earth stations (those that operate in the 3.7-4.2 GHz band) in the contiguous U.S. that the Bureau has reviewed and said appear to qualify as “incumbent earth stations,” which will be eligible for reimbursement for reasonable costs of changes to their facilities caused by the upcoming repacking of the C-Band.  The C-Band will be partially reallocated for use by wireless carriers, requiring changes in many existing earth stations.  All broadcasters who have registered earth stations should immediately review this list and act, if necessary – corrections must be submitted to the FCC by July 16, 2020.  Instructions for submitting corrections are found in the Public Notice.  (Public Notice)  (PDF of Preliminary List w/ Explanatory Notes)  (Xlsx of Preliminary List) (Broadcast Law Blog)
  • The U.S. Copyright Office has extended, until April 15, 2021, the deadline for the decision of the Copyright Royalty Board on rates to be paid to SoundExchange for royalties for the use of sound recordings in non-interactive audio streaming. This extension was because of the delays in the CRB’s trial due to the pandemic.  The January 1, 2021 effective date for the new rates, however, remains in place, so any decision released later in 2021 will be retroactive.  In January, webcasters and other internet radio operators (including broadcasters who stream their signals) will continue to pay the royalties currently in place, and there will be a mechanism for a true up of the amounts due once the decision on the royalties for 2021-2025 becomes effective.  (Copyright Office Extension) (Broadcast Law Blog)
  • The Audio Division updated the FM Table of Allotments to reinstate fourteen vacant FM allotments. The allotments were removed from the FM Table because a construction permit and/or license was granted, but are now vacant because of the cancellation of the associated authorizations or the dismissal of long-form auction applications.  The reinstated allotments are in California, Colorado, Iowa, Texas, and the U.S. Virgin Islands.  These channels will be available for application in an FM auction at some point in the future. (Order)
  • Citing the ongoing public health emergency and the decision to not conduct a national EAS test in 2020 (see our article here), the FCC has waived for this year the requirement that broadcasters update their information in the EAS Test Reporting System. (Order)
  • Those looking to file hand-carried documents with the FCC will have to permanently update their address book. After temporarily closing the filing window at FCC Headquarters in response to COVID-19, the Commission has now permanently closed that window and will only accept paper filings at 9050 Junction Drive, Annapolis Junction, MD 20701.  This change was made to enhance security and in conjunction with the Commission’s future move to its new headquarters.  (Public Notice) (See our article here about the FCC’s planned move).

The FCC’s Enforcement Bureau this week issued two fines, one for $6000 and another for $5200 for violations of its contest rules, as the contests were not conducted as advertised.  In each of these cases, a prize winner was not awarded a prize in a timely manner.  In both cases, the prizes were not provided to winners even after the winners inquired, and, for one reason or another, the stations did not immediately respond to the prize winner to resolve the issue – instead providing substitute prizes only when FCC complaints were filed.  Even though both prize winners appeared satisfied by the substitute prizes and withdrew their complaints, the FCC nevertheless issued the fines finding that the contests had not been conducted as promised, in that the original prizes were not awarded on a timely basis.  While in both cases the delays appeared to simply be the result of station staff not making a priority of determining how to deal with delivering the prizes, these cases serve as a warning to broadcasters to review their contest rules and make sure that station staff understand that, if an unexpected glitch arises, they should not dawdle in working to resolve those issues.

As we have written before, the FCC requires that broadcasters adopt written rules for contests disclosing all material terms of those contests (see our posts here here and here that talk about some of the material rules that need to be covered) and make those rules available to the public.  While the rules can now be posted online instead of having to be read on the air, the station must still alert listeners through on-air announcements as to where those rules are available (see our articles here and here).  In writing their contest rules, the station should anticipate all the glitches that might occur in the contest process and spell out what will happen if one of these problems crops up.  Obviously, a prize becoming unavailable is a frequent issue.  Technical glitches also can become issues (e.g., phone lines not working or text message programs misidentifying the proper winner).  These should be anticipated, with explanations of what will happen should any of these occur.  What will happen may differ if the glitch occurs before the contest has been conducted (where you need to decide how to treat those who already entered) or after the prize has been awarded (e.g., as in this week’s cases, where substitute prizes were given).  Anticipate the unexpected. Continue Reading Two FCC Fines for Contests Where Prizes Not Awarded on a Timely Basis – What Broadcasters Should Watch Out for in Conducting Contests

The FCC’s International Bureau released a preliminary list of C-Band earth stations (those that operate in the 3.7-4.2 GHz band) in the contiguous U.S. that the Bureau has reviewed and said appear to qualify as “incumbent earth stations” which will be eligible for reimbursement for reasonable costs of changes to their facilities caused by the upcoming repacking of the C-Band.  The C-Band will be partially reallocated for use by wireless carriers, requiring changes in many existing earth stations.  The FCC’s notice about the preliminary list is available here, the preliminary list of incumbent C-band earth stations with explanatory notes in PDF format is available here, and the preliminary list of incumbent C-band earth stations as an Excel chart is available here.  It is important that all broadcasters who have registered earth stations immediately review this list – as corrections need to be submitted to the FCC in just a week – by July 16, 2020.

The Bureau reviewed the status of all earth stations with active or pending licenses or registrations in the C-band.  The incumbent licensees were those who were operating in 2018 and filed FCC registrations by that year and updated those registrations in 2019 (see our articles here and here).  The list includes earth stations whose timely-filed applications are still pending, though they may ultimately not be eligible for reimbursement if the applications are not granted.  The Bureau did not include earth stations whose applications it has dismissed as not meeting the criteria for incumbent status, even if the dismissal is not yet final under the Commission’s rules. Continue Reading FCC Gives Notice of C-Band Earth Stations Eligible for Reimbursement Before Repurposing Part of that Spectrum – Broadcasters Need to Review and File Corrections By July 16

A decision was expected in December on the royalties to be paid by broadcasters and other digital media companies who stream their non-interactive audio programming on the Internet.  As we wrote at the beginning of the pandemic, the Copyright Royalty Board, which hears the arguments about the royalties to be paid to SoundExchange in a trial-type administrative hearing, had to postpone the hearing that was initially slated to begin in March.  That hearing will now begin later this month.  Because of the delays in the hearing caused by the pandemic, Congress authorized the Copyright Office to extend various statutory deadlines.  This week, the Copyright Office announced that the December deadline for a decision on webcasting royalties has been pushed until April 15, 2021.

This does not mean that the royalties themselves will not go into effect on January 1.  The current CRB proceeding is to determine the rates that will be in effect for 2021 through 2025.  The proceeding began early in 2019 (see our posts here and here).  The January 1 effective date for the new royalties remains in place, so any decision released later in 2021 will be retroactive.  In January, webcasters and other internet radio operators will pay the royalties currently in place, and there will be some mechanism for a true up of the amounts due once the decision becomes effective.  That is not unusual in the music royalty world.  Just a few months ago, the Radio Music License Committee reached an agreement with BMI on royalties that was retroactive several years.  The Copyright Royalty Board decisions themselves, even if released to the parties in December, are often not final until the next year as the public version of any CRB decision usually takes time to release, and the parties have time after a decision is released to seek edits to the decision.  The Copyright Office itself also reviews the CRB decision for legal errors.  Even after that, the decision can be appealed to the Courts, so the ultimate resolution may be unknown for years – yet parties conduct their business while waiting to see if any adjustments to fees already paid may be due at some later time. Continue Reading Copyright Office Extends Until April Date by Which Decision on SoundExchange Royalties for 2021-2025 Must be Released

When do noncommercial stations stray from permissible acknowledgment of those local businesses that provide funding for its operations to impermissible commercials?  That question was addressed in a Notice of Apparent Liability issued by the FCC’s Enforcement Bureau on Thursday, proposing a $15,000 fine for a low power FM station whose underwriting announcements were deemed too commercial.  The decision, which includes examples of the announcements deemed problematic, is must-reading for all noncommercial licensees who want to avoid fines from the FCC in connection with their underwriting acknowledgements for commercial entities.

The decision breaks down into four categories the reasons for finding the announcements in this case to be too promotional.  The first category is one that often arises in connection with these announcements – the underwriting announcement uses terms that make qualitative claims about the sponsor.  You can’t talk about a commercial sponsor being voted the “best” or being the “most experienced.”  Talking about mechanics who are “experts” in working on certain cars, or decorators who have “an exceptional eye for the perfect arrangement” are all examples of announcements that cross the line.  In this case, some of the examples of impermissible qualitative claims include a car repair shop with “certified master technicians” who use “state of the art equipment.”  Another was for a new real estate company that was characterized as being “one of the fastest growing real estate companies in the country” having “23 agents and a combined experience of over 300 years” and being a “national company with a local flair” having “recruited some of the most well-known agents.”  Another for a computer repair company was perhaps closer to the line but still was deemed too promotional, saying “don’t waste your time when you have a professional nerd to help make your life run easier” and “we’re not your average nerds.”  In some cases, like the last one, had it been the only identified issue, the FCC may have just determined that it was an exercise of licensee judgement about what was too promotional and let it go.  But in a case like this one, with so many other issues, it was identified as being a problem. Continue Reading $15,000 FCC Fine Proposed for Underwriting Announcements that Were Too Commercial

Here are some of the FCC actions of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC’s Enforcement Bureau entered into negotiated settlements with two Boston-area pirate radio operators who admitted to illegal operations and agreed to pay civil fines, to dispose of their broadcast equipment and to not commit—or help anyone else commit—acts of radio piracy for twenty years. In one case, the FCC last year initially proposed a fine of $151,005 fine for the illegal operation.  After examining the operator’s finances, the Bureau agreed to a $4,000 fine now, with a penalty of $75,000 should the operator violate the law again (Radio Concorde).  In the second case, the FCC had proposed a $453,015 fine last year, but agreed to take $5,000 now, with penalty of $225,000 if the operator violates the terms of the consent decree (Radio TeleBoston Consent Decree).  Last year, we wrote on the Broadcast Law Blog about the fines initially proposed for these two operators.
  • The Enforcement Bureau also issued a Notice of Apparent Liability for $15,000 to an LPFM licensee for violating FCC rules prohibiting non-commercial educational broadcast stations from airing commercial advertisements. The Bureau alleges that more than 1,600 advertisements improperly promoted the products, services, or businesses of at least 14 financial contributors.  The Bureau said the announcements were “clearly promotional” by referring to qualitative claims about the underwriters and their products, by providing price information or an overly extensive list of the products or services provided by the companies, or by providing underwriting acknowledgments that were more than 30 seconds long. Noncommercial licensees looking to make sure their announcements comply with FCC rules should read the full FCC decision, which includes the text of the prohibited announcements.  (Notice of Apparent Liability).  Look for more on this decision next week in the Broadcast Law Blog.
  • The FCC this week told its staff that it will not be returning to the building that has been its headquarters for the last 20 years and that they will continue to telework until at least August 27, when the move to the new headquarters building should be complete. See the Broadcast Law Blog for more details on the FCC’s move.

Looking ahead, last week we posted on the Broadcast Law Blog our look at broadcast regulatory dates and deadlines for July.  There is a lot to stay on top of this month, including the July 10 deadline for Quarterly Issues Programs lists for the first and second quarters of this year to be uploaded to the public file of all radio and TV stations, the end of the TV repack, Children’s Television reports due dates, EEO reporting, a new deadline for uploading information about MVPD carriage election information to the public file, an LPTV settlement window, and due dates for rulemaking comments in various proceedings.

Multiple press reports yesterday said that the FCC has circulated a memo to its employees announcing that the FCC will not be resuming in-person operations at least until August 27 – and if work resumes then, it will be from the FCC’s new headquarters building.  The FCC has been planning for several years a move from its current headquarters at “the Portals,” where it has resided for over 20 years.  According to press reports, employees will continue to telework at least until the new building is ready in late August.  Employees will be returning to the current building only with individual appointments to clear their current offices. Starting in mid-August, the FCC will pack up and move furniture, equipment and other items from the Portals to the new building which is supposed to be ready for work by August 27.  The reports also note that the FCC will likely continue to allow telework to some extent even once the new building is ready.

The FCC sent all its employees home to telework in mid-March due to the pandemic (see our article here), and has been remarkably efficient in adapting to the new work environment – continuing to routinely process applications and to also work on the big policy decisions with which the agency must grapple.  We have written about many of the issues that the FCC has tackled on this blog and, from the list of regulatory dates in July about which we wrote yesterday, that pace of work does not appear to be slowing down at all.  While we outsiders won’t get our last visit to the Portals to bid it farewell, we look forward to when the time comes that we can visit the new building at 45 L St NE, just a few blocks from Washington’s Union Station and near to NPR’s current headquarters.

July is usually a month of family vacations and patriotic celebrations.  While the pandemic has seen to it that those activities, if they happen at all, will look different than they have in years past, there are plenty of regulatory obligations to fill a broadcaster’s long, summer days.  Here are a few of the dates and deadlines to watch for in July, and a quick reminder of some of the significant filings due right at the beginning of August.

On or before July 10, all TV and radio stations must upload to their public file their Quarterly Issues/Programs Lists for the 2nd quarter (April, May and June).  Stations that took advantage of the FCC’s extension of time to file their 1st quarter (January, February and March) list must also by July 10 upload that list to their public file.  As a reminder, the Quarterly Issues/Programs Lists are a station’s evidence of how it operated in the public interest, demonstrating its treatment of its community’s most significant issues.  The FCC has shown (see here and here) that it takes this requirement seriously and will fine stations, hold up license renewals, or both if it finds problems with a station’s compliance.  For a short video on complying with the Quarterly Issues/Programs List requirement, see here. Continue Reading July Regulatory Dates for Broadcasters: End of the TV Repacking, Quarterly Issues/Programs Lists, Children’s Television Reporting, EEO, Carriage Election Public File Information Deadline, LPTV Settlement Window, Rulemaking Comments and More

Here are some of the regulatory actions of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations:

  • FEMA announced that it has canceled the 2020 test of the Integrated Public Alert and Warning System (IPAWS), which is the technical infrastructure that delivers EAS messages to radio and TV stations. FEMA noted the “unusual circumstances and working conditions” brought on by the pandemic and acknowledged that post-test reporting would place additional burdens on station personnel already stretched thin to keep their operations on the air.  (Broadcast Law Blog)  (News Release)
  • Through a Public Notice, the FCC announced July 13 as the effective date for certain technical rules for LPFM stations. Though some of the new rules, like changes to the waiver process regarding interference between Channel 6 TV stations and noncommercial FM stations operating on the reserved band and use by LPFM stations of FM boosters become effective next month, other rules, like changes regarding the use of directional antennas and a revision to the definition of a minor change will not be effective until a later date, as yet unannounced.  See the Broadcast Law Blog post here for more detail.  (Public Notice)  (Report and Order)
  • The FCC announced in April that, in light of the shifting economic situation facing many broadcast advertisers, it would allow stations to air certain PSAs, using time donated by commercial entities to organizations involved in the pandemic relief effort, without identifying the commercial entities paying for the time as would otherwise be required by the sponsorship identification rules (see our Broadcast Law Blog article on that decision).  The waiver was to expire on June 30, but this week it was extended through August 31, 2020. (Order)
  • The FCC denied an Application for Review submitted by a West Virginia LPTV operator making clear that the Communications Act and FCC rules do not require mandatory carriage of LPTV stations on satellite television systems. (Memorandum Opinion and Order)
  • In a reminder that stations must file an application whenever there is a change in control of a broadcast station, even one caused by the death of a controlling shareholder, the Commission upheld the Media Bureau’s decision to dismiss an application for license renewal of a Mississippi FM station because it failed to do so, which effectively terminated its right to operate. (Order on Reconsideration)
  • Comments were due this week in the FCC’s video description proceeding. Video description refers to the provision on a subchannel of spoken narration describing what is happening on screen in TV programming to aid blind or visually impaired persons.  The Commission sought comment on expanding the video description rules to require more TV stations to provide this service. In the first round of comments filed this week, the National Association of Broadcasters urged the Commission to delay the effective date of the proposed expansion of the video description requirements by 9 months (from January 1, 2021 to October 1, 2021).  NAB cites the difficulty for stations that are already deep into budgeting for 2021 to accommodate this new financial outlay, especially as many stations are trying to recover from the economic downturn brought on by the pandemic.  (MB Docket 11-43)  (Broadcast Law Blog)
  • The FCC dismissed an application to deliver Chinese programming from a studio in the US to a Mexican station which places a signal back into the United States. Federal law (Section 325(c) of the Communications Act) requires FCC approval for US-produced programming to be exported to a foreign station with significant US coverage.  This procedural decision suggests that all parties producing the programming need to be co-applicants.  (News Release)  (Order)
  • The five FCC Commissioners visited Capitol Hill to participate in a Senate Commerce Committee oversight hearing. The statements, questions and answers focused mostly on non-broadcast matters, but the Commissioners reiterated their support for press freedom, discussed Broadcast Internet services, the C4 radio station class and the minority tax certificate.  (Commissioner Prepared Statements and Archived Video)