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In the swirl of news about the deregulatory efforts of the new FCC, one could almost forget that there are still many regulations in place that require significant amounts of paperwork retention by broadcasters. That point was hammered home yesterday, when the FCC released its first EEO audit letter of 2017 for radio and TV broadcasters. The FCC’s public notice announcing the commencement of the audit includes the audit letter that was sent to all of the targeted stations.  The list of over 200 radio stations subject to the audit is here. The list of almost 80 TV stations is here. Responses are due March 28, 2017. As employment information for all stations within a named station’s “employment unit” must be provided in response to the audit, the reach of this notice goes far beyond the 300 stations targeted in the audit notices. While the FCC is considering a proposal to allow online recruiting sources to suffice to meet a broadcaster’s wide dissemination requirements (as we wrote here), that proposal is still at an early stage and, as this audit notice evidences, the underlying rules remain in place.

The FCC reminds stations that were targeted by the audit to put a copy of the audit letter in their public file. The response, too, must go into the file. For all the TV stations hit by the audit letter, and those radio stations that have already converted to the online public file, that will mean that the audit letter and response go into that FCC-hosted online public file.

The Commission has pledged to randomly audit 5% of all broadcast stations and cable systems each year to assure their compliance with the Commission’s EEO rules – including the requirements for wide dissemination of information about job openings and non-vacancy specific supplemental efforts to educate a station’s community about job opportunities in the media industry.  We recently summarized FCC EEO issues here, reminding broadcasters of the possibility of being audited.  The FCC also has the opportunity to audit larger broadcasters’ EEO performance when they file their FCC EEO Mid-Term Report. We also wrote about the start of the obligations for the filing of FCC Form 397 EEO Mid-Term Reports – which started the year before last for radio groups with more than 11 full-time employees and last year for TV licensees with 5 or more full-time employees in a few months, and are filed on the 4th anniversary of the filing deadline for the station’s license renewal – which will give the FCC another chance to review station EEO performance.  
Continue Reading FCC Releases First EEO Audit for 2017 – Over 200 Radio and Almost 80 TV Stations Named in the Audit Notice

FCC Chairman Ajit Pai announced yesterday that he plans to test a new FCC procedure – releasing drafts of FCC orders to be considered at future FCC meetings at the same time as the proposed agenda for the meeting is released, weeks in advance of the meeting. On the draft agenda for the February 23rd meeting are two items of interest for broadcasters, and draft orders for both of these items were released yesterday – one for radio and one for TV. By releasing these drafts early, all parties affected by the orders can review them and spot issues which can be brought to the Commissioners’ attention before the orders are adopted. We write about the radio item below, and will cover the draft Notice of Proposed Rulemaking for next-generation TV using the ATSC 3.0 standard in a separate article.

For radio, the draft order would permit an expansion of the area in which an FM translator rebroadcasting an AM station can be located. Under current rules, the 1 mv/m contour of translator must be entirely contained within the lesser of the daytime 2 mv/m contour of the AM station or within a circle with a 25 mile radius from the AM transmitter site. With severely directional AM stations, sometimes the ones most in need of help from FM translators, translators can be restricted to service areas only a few miles from the primary AM station in some directions – leaving the AM stations unable to serve their entire market and fill in the holes in their coverage area. This issue was raised as one of many issues for consideration in the FCC’s AM revitalization proceeding, about which we wrote here. Under the draft order released yesterday, translators will now be able to be located in a much greater area – as long as the 1 mv/m contour stays within a 25 mile radius measured from the AM site or within the 2 mv/m contour of the AM station – whichever is greater. This promises to give all AM stations the opportunity to serve their markets with FM translators and, for larger AM stations, gives them the ability to fill in their service areas with FM translators (perhaps multiple translators) over a much larger area.
Continue Reading FCC Chairman Pai Promotes Transparency – Releases Draft Orders on Next-Generation TV and FM Translators for AM Stations – What Will Be Considered for Radio at February FCC Meeting?

The FCC on Tuesday voted to abolish the 44 year old requirement that commercial broadcast stations retain, in their public file, letters (and emails) from the public dealing with station operations (see the full Order here). As noted by the Commissioners in their comments at the FCC meeting (and as we suggested here and here when this proposal was first introduced), these documents were rarely if ever accessed by the public. Mirroring our comments from last year, the Commission noted that, in today’s world, where social media is where so many people take to comment on each broadcaster’s every action, and where the comments are open to all and preserved for posterity, the requirement for the retention of letters in a paper public file was felt to be no longer necessary. Plus, with the rest of the public file either already online or soon to go online when the last radio stations convert to the FCC-mandated online public file next year (see our articles here and here), the elimination of this requirement allows stations to have more security at the main studios as people can’t just show up unannounced to view the file, as required under the current rules.  Note that this will change the rules only for commercial stations – noncommercial stations have never had the obligation to include letters from the public in their public inspection files.

Much of this was expected in light of the new deregulatory bent of the Commission. About the only issue that had not previously been highlighted was the associated elimination of the requirement for TV stations that they report letters from the public about violent programming in their license renewal applications. The statute requiring the disclosure of these letters applied only to letters which the FCC rules required to be retained by the station. As the FCC will no longer require those letters be retained, the FCC found that the need to report letters about violent programming was now moot – and instructed the Media Bureau to delete the requirement from the license renewal forms. Because the reporting requirement lacked any real purpose, since the FCC has never sanctioned a broadcaster for violent programming and likely has no jurisdiction to restrict such programming, the abolition seems to be nothing more than the elimination of an unnecessary paperwork burden on broadcasters.
Continue Reading FCC Votes to Abolish Requirement for Retaining Letters From the Public on Station Operations – First Step in Broadcast Deregulation?

This week, the appointment of Commissioner Ajit Pai as Chairman of the FCC became official.  Since his appointment on Monday, he has released a list of acting bureau chiefs at the FCC (here), including naming Michelle Carey, a long-time FCC employee, as Acting Chief of the Media Bureau upon the departure of Bill…

The FCC yesterday released its tentative agenda for its January meeting, to be held on January 31. This will be the first meeting of the post-Chairman Wheeler era, and the two Republican commissioners will be in the majority for the first time in 8 years. There is a single item on the tentative agenda…

At the beginning of each year, we publish our broadcaster’s calendar of important dates – setting out the many dates for which broadcasters should be on alert as this year progresses.  The Broadcasters Calendar for 2017 is available here.  The dates set out on the calendar include FCC filing deadlines and dates by which…

The FCC yesterday issued a Public Notice of the filing of a Petition for Rulemaking asking the FCC to declare that a broadcaster, by using its own airwaves and online sources to publicize job openings at its station, satisfies the requirement that a broadcaster widely disseminate information about job openings to members of all groups within its likely recruiting area. In 2002, when the FCC adopted its current EEO rules, it determined that online recruiting would not widely disseminate information about job openings in the way that a local newspaper would given the digital divide that the FCC thought existed at that time. But, the FCC said that it would later revisit that decision as circumstances change. The petition suggests that circumstances have indeed changed in the 14 years since the rules were adopted, that online recruiting is how people now find and apply for new jobs, and that it is time that the FCC recognize that fact and allow online recruiting to satisfy the obligation that a broadcaster give its community notice of job openings. Comments are due January 30, and replies on February 14.

The FCC has up to this point actively enforced its prohibition on station’s relying solely on its own airwaves and online sources for recruiting purposes, fining stations who meet their wide dissemination obligations solely by relying on such sources (see our articles about such cases here and here). But some at the FCC itself have recognized that this position no longer makes sense – including Commissioner O’Rielly who, in a blog post we wrote about here, suggested that broadcast recruiting in today’s world is appropriately done online, and that the FCC’s rules should reflect that fact. As set out in the Petition, Julius Genachowski, then-chairman of the FCC, recognized in a speech that: “In today’s world, you need broadband to find a job and apply for a job, because companies increasingly require online applications.” The petition notes that the FCC has recognized that the Internet is fine for public files and contest rules, so shouldn’t it also be found to be sufficient to get out the word about job openings?
Continue Reading Should Online Recruiting Satisfy the FCC’s EEO Requirements for Wide Dissemination of Job Openings? – Comments Requested on Petition Saying that it Does

After months of speculation, Chairman Wheeler today announced that he will step down from the FCC on Inauguration Day. Together with the Senate not confirming the renomination of Commissioner Rosenworcel (as the Senate is effectively on recess and not expected to return before the end of the term, her renomination will almost certainly not be approved in this session of Congress, meaning that she must step down when the Congress adjourns on January 3), that leaves three Commissioners on the FCC. Two are the current Republican commissioners – Pai and O’Rielly – and Democratic Commissioner Mignon Clyburn. What will that mean for broadcasters?

First, it is expected that one of the two Republicans will be named as Acting Chairman to set the agenda for the first few months of the Trump administration, until a permanent Chair is announced (and confirmed by the Senate, if that Chair is not one of the two current Republicans). These commissioners have been vocal in their dissents on several big issues for broadcasters – including the repeal of the UHF discount (about which we wrote earlier this week) and on other issues dealing with the ownership of television stations – including the decision to not repeal the newspaper-broadcast cross-ownership rules, and the decision to reinstate the FCC’s ban on Joint Sales Agreements in TV unless they are done between stations that can be co-owned. We already speculated about these issues being on the Republican agenda soon after the election. What other issues are likely to be considered?
Continue Reading And Then There Were Three – Chairman Wheeler to Step Down on Inauguration Day Leaving a Republican-Controlled FCC – What’s It Mean for Broadcasters?

Just a few weeks ago, we wrote about the Radio Music License Committee (RMLC) filing a lawsuit against Global Music Rights (GMR) alleging that GMR was violating the antitrust laws by offering an all or nothing blanket license for rights to play the songs written by certain songwriters now represented by this new performing rights organization. RMLC was seeking to impose some oversight over the rates being charged for GMR royalties. This would be similar to the controls over the rates of ASCAP, BMI and SESAC, whose rates can only be imposed following an agreement with a copyright holder or, where there is no voluntary agreement, by a determination by a court (for ASCAP and BMI) or an arbitration panel (for SESAC) that the new rates are reasonable. Now, GMR has filed its own lawsuit against RMLC (though it claims that its suit is unrelated to the one that RMLC filed against it) alleging that it is RMLC that is violating the antitrust laws (and certain California statutes) by forming a “cartel” of buyers, i.e. commercial radio stations who are refusing to deal with GMR individually but instead are looking to RMLC for the negotiation of a license agreement that will cover the entire industry. What are the issues presented by this dueling litigation?

The RMLC suit is premised on the concept that any time multiple products from independent marketplace competitors (in this case the songs of multiple songwriters) are packaged together and sold at an all or nothing price, there is the potential for obtaining prices higher than would be obtained on the open market. For example, while a contemporary hits formatted radio station could potentially decide that the price of Adele songs are too high and pull those songs from its playlists, it is not able to do so if that song is bundled with songs written by Pharrell Williams, Bruno Mars, Beyoncé, Kanye West, Brittany Spears and Katie Perry (all of whom are listed on the GMR website as being part of its repertoire) so that the radio station either takes all the songs from all of those writers or none at all. While it might be able to get away with not playing one or two of these artists, if it has to pull them all, listeners will notice. If the station wants to keep playing in the format that it has selected, it has to pay the bundled rights fee asked by the representative performing rights organization.
Continue Reading GMR Sues RMLC – Claims Antitrust Violations for Negotiating Royalties on Behalf of the Radio Industry – What Are the Implications?

November is one of those few months where there is a very light load of routine regulatory filings for broadcasters.  This is a month with no routine FCC ownership or children’s television reports.  There are no routine EEO reports for the public file, and no other FCC regularly-scheduled deadlines.

Of course, there are several other dates that broadcasters need to be aware of.  October 31 is the end of the FM translator window to move translators up to 250 miles to serve AM stations – so November 1 will likely bring lessened demand for any translator that did not find a new AM home during the window that has been open to various groups of AM stations since January. Those looking for translators to operate with FM stations may find opportunities now less expensive, but harder to move, so opportunities will be limited to stations near to areas where the translators already are located.

Once the FCC’s Broadcast Incentive Auction for television has concluded, the FCC will announce two windows for new FM translators.  These windows (the first for Class C and D AM stations only, and the second for Class A and B AM stations) will only be open to AM licensees that did not participate in the 2016 windows.  See our article here for more information. 
Continue Reading November Regulatory Dates For Broadcasters – Incentive Auction, EAS, Political and More