November is one of those few months with no routine FCC filing obligations (no renewals, reports, fees or other regularly scheduled deadlines. While that might seem to suggest that you can take time that you normally devote to regulatory actions to begin your holiday preparations even in this most unusual year, there are still many issues to consider, and you can also use this month to plan for complying with deadlines that fall in December.
While there are no significant comment dates on broadcast matters yet set in November, look for dates to be set in the FCC’s proceeding to determine whether there should be a limit on the number of applications that one party can file in the upcoming window for the filing of applications for new noncommercial, reserved band FM stations. See our article here on the FCC’s request for comments in this proceeding.
Also note the FCC’s proceeding that was just announced to require enhanced sponsorship identifications when programming is paid or provided for free by foreign governments or their representatives may also be set this month. The FCC just released its Notice of Proposed Rulemaking on this matter, and we plan to provide more details later this week. The FCC may also release its previewed Notice of Proposed Rulemaking on Section 230 of the Communications Decency Act, which provides substantial immunity to internet companies from potential liability for content posted by third parties. The FCC’s general counsel recently posted his analysis as to why he believes that the FCC has jurisdiction in this area. We wrote about what Section 230 provides in our article here.
One of the supporters of the President’s proposals for the FCC to make rules governing the conduct of online platforms under Section 230, will have his confirmation hearing in November. FCC Commissioner nominee Nathan Simington will visit the Senate Commerce Committee on November 10 in the next step in the Senate’s consideration of his nomination to replace Commissioner Michael O’Rielly.
On November 6, the FCC will hold an all-day virtual symposium designed to look at the access to capital issues faced by small and minority broadcasters, titled the “Path to Media Ownership and Stability.” Broadcasters and lenders will discuss financing for broadcast station transactions in today’s challenging financial environment and experts will discuss the history of the broadcast tax certificate policy and the potential for a new tax certificate policy to increase broadcast ownership diversity. The congressional update on media diversity initiatives is likely to include discussion of the Broadcast Diversity in Leadership Act—we recently looked at this congressional legislation that seeks to increase diversity in ownership of broadcast properties. Read the Public Notice for more details on the event, including how to stream it online, and see the full agenda here.
With the Supreme Court agreeing to review the Third Circuit’s decision overturning the FCC’s 2017 media ownership decision, in the Prometheus Radio Project cases, the parties are readying their briefs to submit to the Court on or before November 16. Oral arguments are expected to be held early in 2021, with a decision by the Court expected in late June or early July of 2021. The FCC’s 2017 media ownership decision, among other things, abolished the newspaper-broadcast and radio-TV cross-ownership bans and allowed common ownership of two TV stations in the same market even when there were not 8 independent operators and, in some cases, even allowed combinations of two of the top-4 rated TV stations in a market. See our post, here, about the Supreme Court review.
The FCC will hold its monthly Open Meeting on November 18. Though the agenda for this meeting will be announced later this week, this will be the first post-election Open Meeting at the Commission. Depending on the outcome of the election, we could see Commissioners use the meeting as an opportunity to hint at their post-inauguration plans (we already know that Commissioner Mike O’Rielly will leave the Commission at the end of the year; his replacement, Nathan Simington, is making his way through the Senate confirmation process).
If history is a guide, Chairman Pai will publish a blog post on November 18 with the items to be considered at the December 10 Open Meeting. Draft documents of those items should be released on the FCC website on November 19. Be sure to check the blog for our updates on any broadcast items on the agenda.
Looking ahead to early December, radio stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota, and TV stations in Alabama and Georgia, must submit their applications for renewal of their license by December 1. These stations should already be reviewing their public file and starting to prepare their renewal application (See our article about license renewal preparation here). Though the renewal application itself is fairly short, it should be taken seriously as it requires that stations certify, among other things, that their public file contains all required documents and that those documents were uploaded on time (as we noted here, stations should pay particularly close attention to their political files). These stations should also have their post-filing announcements ready and scheduled to begin airing on December 1. The schedule for post-filing announcements and sample announcement language is here for radio stations and here for TV stations (though note that the FCC voted to change the timing and text of post-filing renewal announcements. The rule change is not yet effective, but that effective date could occur soon). Stations filing for license renewal must also submit FCC Form 396, the Broadcast Equal Employment Opportunity Program Report.
On or before December 1, full power radio and TV stations in Alabama, Connecticut, Colorado, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont with five or more full-time employees in their station employment unit must upload to their public file and website, if the station has a website, an annual Equal Employment Opportunity report detailing the employment unit’s hiring and outreach efforts for the period December 1, 2019 to November 30, 2020. A station employment unit is one or more commonly controlled stations in the same geographic area that share at least one employee.
As you are planning for submitting your renewal application and EEO report, note that December 1 is the Tuesday after the Thanksgiving holiday weekend. To avoid imposing on your staff’s holiday plans, start early on these December 1 filing deadlines.
As always, keep an eye on the calendar and be in touch with your legal counsel to discuss these and other dates and deadlines that may be applicable to your operation.