With FCC Acting Chair Jessica Rosenworcel now appointed permanent chair of the FCC, and with a fifth FCC Commissioner now having been nominated (Gigi Sohn), the FCC may soon be back to normal strength. Even before that though, the FCC and other government agencies remain busy, with many important regulatory dates and deadlines in the coming weeks. We have highlighted some of those dates below. Pay close attention to these dates, especially the December 1 deadline to file biennial ownership reports that is applicable to all broadcasters.
Reply comments on the FCC proposal to bring back FCC Form 395-B are due by November 1 (comments were due by September 30 and can be read here). Following the FCC’s review of comments and reply comments on the issue, enhanced equal employment opportunity data collection could again be a reality for broadcasters more than 20 years after the FCC suspended the form’s use. Form 395-B was an annual report intended to gather information about the race and gender of broadcast employees, thrown out by the courts over fears of the unconstitutional use of the data to force broadcasters to make hiring decisions based on these factors. We wrote more about the possible resurrection of Form 395-B, here.
The FCC is also accepting reply comments on the accessibility of children’s educational programming to children with disabilities. These reply comments can be filed through November 8. The FCC sought comment on, among other things, the extent to which short-form programming and regularly scheduled weekly programming aired on multicast streams is closed captioned and/or audio described, with data on the amount of such programming. And the FCC is using this rulemaking to learn about any changes in the broadcast industry since it adopted revised children’s programming rules that have affected the accessibility of “kidvid” programming. Read the Public Notice, here.
Between 12:01 a.m. Eastern on November 2 and 6 p.m. Eastern on November 9, the FCC will accept applications for construction permits for new FM noncommercial educational stations to operate in the reserved band (88.1 through 91.9 on the FM dial). We wrote more about the application process and ten-application limit, here. Entities considering applying for a construction permit should be working with their engineers and consultants and putting the finishing touches on their applications, including technical proposals and a showing under the “points system” that allows the FCC to choose between applications that are mutually exclusive. A July Public Notice set out the filing procedures and an October Public Notice reminded broadcasters that there is a filing freeze in place on any application for a minor change that could impact potential filings in the window – freezing minor change applications by existing stations in the FM reserved band and by stations on unreserved channels adjacent to the reserved band (channels 221–223) and those on intermediate frequency (IF) channels (channels 254-274). The freeze will be in place through the end of the filing window on November 9.
From November 1 through November 9, selected entities can file a short-form application to participate in Auction 111, a closed auction of LPTV and TV translator construction permits. The applicants who can participate in the auction submitted mutually exclusive applications either during a 2009 filing window for new LPTV stations or in a 2018 window for stations displaced by the Incentive Auction. Bidding begins February 23, 2022. Procedures for the auction are available, here, and the list of eligible participants and available permits is here.
The FCC will hold a required monthly open meeting on November 18. Keep an eye on the FCC website and trade publications at the end of October to see which items on the agenda—if any—are of interest to broadcasters.
The U.S. Copyright Office has issued a wide-ranging Notice of Inquiry that looks at the rights and protections of news publishers under copyright and related laws. As the inquiry could potentially impact news content produced by broadcasters or news content produced by other outlets and reproduced by broadcasters, read the NOI and our blog post on the topic and submit your comments by November 26. The Copyright Office will hold a virtual public roundtable on December 9 to discuss these issues.
The biennial ownership report filing window opened at the beginning of October and will stay open through December 1. By December 1, all licensees of commercial and noncommercial full power TV, Class A TV, low power TV, AM radio, and FM radio stations must submit an ownership report that details the licensee’s ownership structure as of October 1, 2021. The FCC has warned that there will be penalties for stations that do not file these reports. Licensees with ownership structures that include parent entities must also file a report for each of those entities. An informational session run by FCC staff is archived, here, and answers to frequently asked questions are available, here.
Looking ahead to early December, on or before December 1, radio stations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont and TV stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota must submit their license renewal applications (FCC Form 2100, Schedule 303-S). Pay close attention to the contents of your online public file and be sure that all required documents are complete and were uploaded on time. Stations filing their renewals (other than LPFMs) are also required to file a Broadcast EEO Program Report (FCC Form 2100, Schedule 396), submitting two years of EEO Public File reports for FCC review, unless your employment unit employs fewer than five full-time employees. As you are putting the final touches on your applications, be sure to read the instructions for the license renewal application (radio, TV) and consult with counsel if you have questions.
Also on or before December 1, for all radio and TV station employment units (a station employment unit is a station or stations that share at least one full-time employee, are in the same market, and have the same owner or parent owner) with five or more full-time employees licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont must upload to their online public inspection file an Annual EEO Public Inspection File report covering their hiring and employment outreach activities for December 1, 2020 through November 30, 2021. These broadcasters must also post on the homepage of their station website (if they have one) a link to the most recent report.
By December 1, digital television stations that provided ancillary or supplementary services between October 1, 2020 and September 30, 2021 must submit FCC Form 2100, Schedule G, and pay in fees 5% of the gross revenue derived from any ancillary or supplementary services provided. Noncommercial digital TV stations that provided such services on a nonprofit, noncommercial, and educational basis must file the form but are required to pay 2.5% of the gross revenue derived from those services. Ancillary and supplemental services do not include non-subscription video channels delivered directly to the public but do include any other services provided over the station’s spectrum from which the station receives compensation, including “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, or audio signals, [and] subscription video.” Stations that provided no such services are no longer required to file a report.
If you were one of the stations that entered into a consent decree with the FCC over political file violations, mark December 10 on your calendar. By that date, you must have submitted to the FCC staff a compliance report required by the decree. The report provides data to the FCC about requests that the station received through November 2 for the purchase of broadcast time by, or on behalf of, legally qualified candidates and for ads that relate to any issue of national importance (i.e., federal issue ads). For more information, read our article on the topic, here, review the terms of your consent decree, and talk with your communications counsel.
November is somewhat light on regulatory dates and deadlines applicable to all broadcasters, but be sure you are aware of all of the dates applicable to your operations and stay on top of them with the help of your engineer, consultants, and legal counsel.