With the summer winding down, you can expect that come September, like everywhere else, Washington will leap back to life and the government will try to accomplish what they can before the end of the year. That will no doubt mean some regulatory actions (and potentially court actions and legislative actions) affecting broadcasters this Fall, though what they are remains to be seen. In the meantime, there is plenty to keep broadcasters busy. While September is one of those months in which there are few of the normally recurring filing deadlines (no EEO reports, renewal filings or quarterly reports need to be submitted during the month), there is one big deadline that no commercial broadcaster should forget – the filing of annual regulatory fees.
We understand that there is an order circulating at the FCC right now to set the final amount of the regulatory fees for the year. As these fees must be paid before October 1 when the government’s new fiscal year begins, we can expect that order shortly, with fees due at some point in September. As the Commission’s Notice of Proposed Rulemaking proposed significant unexplained increases in the fees paid by radio, and a change to the methodology used to compete TV fees, moving from a DMA-based fee to one calculated based on an individual station’s predicted coverage (which had the effect of raising some fees, especially for high-powered VHF stations, while lowering others), a number of broadcasters and the NAB complained about those proposals. Watch for the FCC’s decision in the coming days to see how it addresses these complaints about the proposed fees, and to see when the fees will be due.
In addition to regulatory fees, many of the FCC’s new rules on the provision of educational and informational children’s television programming go into effect on September 16. See our articles here and here highlighting the rules going into effect – including the elimination of the three-hour per week obligation for educational and informational programming for children for each multicast channel of programming. Petitions for reconsideration of the changes made in these rules are also due on the 16th, so we may not have seen the last of the arguments about the appropriate children’s obligations for TV broadcasters. The FCC also issued a Further Notice of Proposed Rulemaking in the children’s television docket, asking questions including whether a station could satisfy its children’s educational programming obligations by subsidizing programming on another station in the same market. These comments are also due on September 16. And the FCC is expected to issue additional guidance about how completing the next quarterly Form 398 children’s television programming reports, currently due on October 10 (see our additional discussion on this topic below).
Comments are due on September 20 in the FCC’s proceeding to look at the effectiveness of the EEO rules. We summarized some of the issues in that proceeding here, here and here. The issues raised by the Commission seem to suggest that the FCC is looking for ways to be more aggressive in EEO enforcement – even raising the suggestion that some broadcasters are not bothering to send out notices of job openings at their stations until after those openings have already been filled. Some small broadcasters, on the other hand, have suggested that EEO compliance should not be analyzed based on the number of employees in local markets, but instead should be looked at company-wide, and that the FCC’s EEO outreach obligations should only be imposed on companies with 50 or more employees nationwide. There are sure to be comments filed by the September 20 deadline – add your voice by that date.
Remember that Nationwide EAS test that ran on August 7? The final ETRS Form – Form 3 – is due by September 23. All EAS participants are supposed to report on their success or failure in receiving the test by that date, giving details on each station’s experience.
September 3 (as the 1st on during Labor Day weekend) is the date for petitions to deny the first round of radio license renewal applications filed by stations in Maryland, DC, Virginia and West Virginia. We should see whether there are any patterns to the objections that are filed. For stations without issues, we would expect license renewals to begin to be granted in the second half of the month, as the licenses expire at the end of the month. While stations with renewal applications on file have the authority to continue operating even if their renewals have not been granted before October 1, if they are not granted by then, some inquiry is likely needed to see what is holding things up.
Radio stations in the Carolinas, who filed renewals on August 1, should be running their post-filing announcements on September 1 and September 16. Stations with renewals due on October 1 (radio stations in Florida, Puerto Rico and the Virgin Islands) should be running their pre-filing announcements on those same dates. See our post here for more information about these announcements.
And start looking forward to October, when many of the usual obligations come back. Quarterly Issues Programs lists will be due for inclusion in the online public files of all full-power stations by October 10, when stations detail the issues that faced their communities in the current quarter and the programming that they broadcast to address those issues. As we have written many times (see, for instance, our article here), these lists are the only FCC-mandated records as to how a station has served its community of license. Stations should be sure that they are doing a thorough job documenting their community service programming, as these lists will no doubt be scrutinized during the license renewal process.
Normally, Quarterly Children’s Programming Reports would be due by October 10. However, among the recent changes to the children’s television rules was the decision to change reporting about educational and informational programming to a yearly, rather than quarterly, obligation. We are waiting for FCC instructions as to whether this change will take effect before the October 10 quarterly report or whether that report will still be due. The FCC may also issue additional guidance on completing certifications of compliance with the FCC’s commercial limits during children’s programming aired in the Third Quarter, and certifications of compliance with the requirements concerning the display of website addresses during children’s programming.
October 10 is also the deadline for TV stations that are being repacked to submit an FCC Form 2100, Schedule 387 transition progress report. Quarterly reports are due the 10th of the month following the end of each calendar quarter, and additional reports are due closer to the station’s phase completion date and after completing the transition. Phase 5 will end on September 6, 2019 and Phase 6 will begin on that date, ending on October 18, 2019.
October 1 will be the date for commercial and noncommercial full-power radio and TV (including Class A) stations in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands that are part of an Employment Unit with 5 or more full-time employees to include their Annual EEO Public File Report in their online public inspection files (and add a link to that report on the homepage of each of their stations).
There is no easing back to reality after summer vacations – plenty to do in September to keep every broadcaster busy. And, as always, we’ve only scratched the surface highlighting issues that we think to be generally important. Consult your own counsel to see if there are other important dates that may affect your station.