Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Principal Editor: David O’Connor
Here are some of the regulatory and legal developments of the last week of significance to broadcasters – and a look ahead to the FCC’s consideration of two media modernization items in the coming week. Links are also provided for you to find more information on how these actions may affect your operations.
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While we are approaching the end of summer in this most unusual year, the regulatory dates keep coming, though perhaps a bit slower than at other times of the year. One of the big dates that broadcasters should be looking for is the announcement of the Annual Regulatory Fees that will likely be paid sometime in September. This year, there has been much controversy over those fees, with the FCC proposing that broadcasters’ fees should go up even though the FCC’s budget is flat, while the NAB has argued that they should remain flat or decrease. And many broadcast groups have argued for liberal waivers of the fee requirement in this year of the pandemic when so many stations were hit so hard by the economic downturn. Watch for this decision – likely toward the end of the month.
The license renewal cycle continues in August for both radio and TV. Full-power TV, Class A TV, TV translator and LPTV stations in North Carolina and South Carolina and full-power AM, FM, FM translator, and LPFM radio stations in Illinois and Wisconsin should be putting the finishing touches on their license renewal applications—due to be filed on or before August 3 (the deadline being the 3rd as the 1st of the month is a Saturday). While stations are no longer required to air pre-filing announcements, the requirement to air post-filing announcements remains. Those announcements must begin airing on August 1 and continue through October. See our article about how to prepare for license renewal here.
Continue Reading August 2020 Regulatory Dates for Broadcasters: TV and Radio License Renewals, EEO Reporting, FCC Open Meeting, Broadcast Internet Comments and More
FCC rules currently prohibit radio stations in the same service (AM or FM) that have over 50% overlap of their principal community contours (the 70 dBu for FM stations and the 5 mV/m contour for AM stations) from duplicating more than 25 per cent of the total hours in their average programming week. In preparation for the FCC’s open meeting on August 6, the FCC last week released its draft order proposing to eliminate that rule as to AM stations (as we wrote on Friday). As the draft order looks to eliminate the rule only for AM stations while retaining that rule for FM stations, it is worth taking a deeper look at this tentative decision particularly as one of its implications is that the FCC may well be allowing AM stations to transition to all-digital operations.
The draft decision provides two reasons for eliminating the rule for AM stations. First, it suggests that the challenging economic and competitive status of AM radio justifies the decision to allow duplication by AM stations that operate in the same area. Keeping a station operational and providing some service is preferred over letting that station go silent. The economic condition of the AM band was determined to alone be justification for the decision to permit duplication. But the FCC provided a second reason – one that suggests that the FCC is seriously considering the proposal (about which we wrote here and here) to allow for all-digital AM stations. In the draft order, the FCC says that allowing AM program duplication would provide an opportunity for an AM station to go all-digital while still broadcasting its programming on another AM station in the current analog format – allowing listeners to hear the station even if they do not yet have a digital AM receiver.
Continue Reading A Deeper Look at the FCC’s Proposal to Eliminate Program Duplication Rules for AM But Not FM Stations – Looking to All Digital AM?
Here are some of the FCC regulatory and legal actions of the last week—and congressional action in the coming 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.
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The FCC earlier this week released its agenda for its August 6 open meeting. That agenda includes two items of relevance to broadcasters. First, it proposes to eliminate the rule that prohibits two commonly-owned AM stations (including stations that are under common control or covered by a Time Brokerage or Local Marketing Agreement) that…
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
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
Should broadcasters be able to originate programming on FM translators? Playing off the proposal to allow limited amounts of programming on FM boosters – basically the insertion of local ads, news, or emergency alerts – in the zonecasting proposal on which the FCC took comments earlier this year (see our summary here), a group of broadcasters has taken the proposal one step further, and asked if translators (including those FM translators rebroadcasting AM stations) should not have the same rights proposed for boosters. Comments on this proposal (available here) are due July 23.
These comments were originally filed in connection with the zonecasting proceeding (see our summary of the comments here). But they go beyond the zonecasting proposal for limited amounts of origination programming on boosters, and seek to expand the amount of time that translators can originate programming different than their primary stations. The advocates propose not just the substitution of short messages, but to allow translators to originate as much as 40 hours per week of programming different than that offered on their primary stations. And the proposal also suggests that translators be allowed to be located within the primary station’s 45 dbu contour, rather than within the 60 dbu contour of an FM primary station as now required (playing off the 45 dbu contour now being used as the one in which primary FM stations can claim protection from interference from FM translators – see our article here).
Continue Reading FCC Seeking Comment on the Origination of Programming by FM Translators
The FCC yesterday released another of its regular EEO audit notices (available here), this time targeting only about 35 radio stations. Those stations and the station employment units (commonly owned stations serving the same area) with which they are associated must provide to the FCC (by posting the information in their online public inspection file) their last two year’s EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules.
Audited stations must provide copies of notices sent to employment outreach sources about each full-time vacancy at the stations as well as documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide, in response to the audit, information about how they self-assessed the performance of their EEO program. Stations that are listed in the audit notice have until July 24, 2020 to upload this information to their online public file.
Continue Reading FCC Releases EEO Audit for 35 Radio Stations – A Good Reminder to Review Your EEO Compliance
An intense national conversation on racial justice and equity has been thrust upon the country by the events of the last week. While our focus here on this blog is narrow, it is certainly worth looking at some of the issues that are within our broadcast world that are relevant to this conversation. In recent days, for instance, FCC Commissioner Geoffrey Starks promoted more diversity in broadcast ownership, and an article in Radio Ink by the President of the National Association of Black Owned Broadcasters called for a revival of the minority tax certificate – a program ended decades ago over concerns about its cost to the government. The tax certificate offers perhaps the most meaningful route to the goals sought by the Commissioner and is worth examination as, since its abolition so many years ago, its revival has been discussed so many times that it has become almost a cliché, with many not really understanding what it did and why it was effective.
The minority tax certificate was a program designed to provide broadcasters with an economic incentive to sell their stations to minority owners. Rather than directly subsidizing the potential owners, the certificate instead gave a tax break to sellers that incentivized them to sell to the minority-owned business even if there were multiple bidders for their properties. If the seller sold to a minority-owned business, the seller could take the proceeds from the sale and roll those proceeds over into a new media property without recognizing the taxable gain from the sale. Unlike the typical like-kind exchange where the roll-over into a new property has to proceed within a few months of the sale, the tax certificate treated the sale as an involuntary sale (like the sale of a property because of a government’s exercise of eminent domain) under Section 1033 of the tax code, giving the seller several years to roll the proceeds over into a new purchase. At that point, the new property would have the same tax basis as the old – meaning that no gain would be recognized until the sale of the new property. This spurred many sales to minority companies by broadcasters looking not to get out of the business, but instead looking to realign their holdings or to move up into larger markets. Several hundred radio and TV stations were purchased under this program in the last 20 years of the program’s existence. Why was this seemingly successful program abandoned?
Continue Reading Understanding the Minority Tax Certificate and its Potential for Promoting Diversity in Broadcast Ownership
