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FCC regulatory fees come around each year, and it seems like they always go up.  This year is no different, as the FCC has asked for comments on its proposed fees to be paid later this year (probably in September), and the proposed fees go up significantly for broadcasters.  The fees are meant to recoup the costs of the FCC’s regulation of the industries that it oversees.  Minimal changes are proposed due to the FCC’s refining of the roles that are played by some of its employees in regulating different types of communications services.  But this year, as the FCC’s lease for its headquarters building is expiring, its operational costs have to include not just the normal expenses of the FCC’s operations, but also the added expense of the probable relocation of the agency.  This one-time expense results in a major increase in the fees being charged.  While the increased fees are a one-time expense, there are certain to be complaints from broadcasters when they see the size of the increase in their fees to be paid this year.

Each year, the FCC goes through a familiar process – asking for comments on an essentially expedited basis so that the fees can be adopted and collected before the end of the government’s fiscal year – October 1.  This year is no different, and the week before last, the FCC asked for comments on the fees to be collected this year – with comments on the proposals due on June 20 and replies due on July 5.  Let’s look at some of the proposed changes.
Continue Reading FCC Regulatory Fees for Broadcasters Proposed to Increase Significantly to Cover Cost of FCC Headquarters Move

While summer has just about arrived, FCC regulatory dates do not depart to the beach and leave the world behind.  Instead, there are a host of filing deadlines this month.  EEO Public Inspection file reports must, by June 1, be placed in the public inspection files of stations that are part of employment units with 5 or more full-time employees if the stations are located in the following states: Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia.  Radio stations in Michigan and Ohio that are part of employment units with 11 or more full-time employees need to also file an FCC Mid-Term EEO Report on FCC Form 397 (see our article on the Form 397 here).  TV stations with 5 or more employees also need to file that report if they are located in Maryland, Virginia, West Virginia or the District of Columbia.

There are regular dates, too, for noncommercial stations in certain states when licensees must file their Biennial Ownership Reports on FCC Form 323E.  While these reports will eventually be filed on December 1 of odd-numbered years, at the same time as Biennial Ownership Reports of commercial stations, at this point the new rules have not yet gone into effect (see our articles here and here).  Thus, by June 1, the licensees of noncommercial radio stations in Michigan and Ohio and noncommercial TV stations in Arizona, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia must file their Biennial Ownership Reports.
Continue Reading June Regulatory Dates for Broadcasters – EEO and Noncommercial Ownership Reports, Incentive Auction, Radio Online Public File, and Comments on EAS and Regulatory Fees

At its open meeting earlier this week, the FCC adopted a Notice of Proposed Rulemaking proposing changes to the public file rules for both broadcasters and cable systems. For commercial broadcasters, the FCC proposed to eliminate the requirement that they include in their public file copies of letters and emails to the station concerning station operations. For cable systems, the FCC proposed to eliminate the obligation to include in their file documents disclosing the location of their headend. What do these proposals mean for broadcasters?

Most of the broadcaster focus has been on the proposal to delete the obligation that commercial broadcasters keep a correspondence folder in their public inspection file for letters and emails from the public commenting on the operation of the station (the requirement has never applied to noncommercial broadcasters). Those files are supposed to contain, in a physical file at their main studio, all of the correspondence that stations receive from viewers or listeners (allowing broadcasters to omit correspondence that listeners asked to be kept private, and correspondence that contains offensive material). For TV stations that have already converted to an online public file for all of their other public file documents, and for radio stations who will soon be doing so (see our posts here and here on the upcoming obligation of radio to convert to an online public file), these letters will be the only remnant of the public file that must still be maintained at the main studio. The FCC tentatively concluded that the obligation to keep these letters and emails was no longer necessary.
Continue Reading FCC Proposes to Eliminate Public File Obligations – No More Letters from the Public for Broadcasters, No Cable Headend Information for Cable Systems?

The FCC today issued a Public Notice that the obligation will begin on June 24 to start uploading documents to the online public file for radio stations in the Top 50 markets .   For Top 50 market commercial radio stations that are part of employment units with 5 or more full-time employees, the June 24 date will mark the start of their obligation to upload materials to the online public file.  New public file documents (including political file documents) created on or after that date are to be placed in the online public file.  These stations will have 6 months from the effective date (until December 24, 2016) to upload to the online public file existing documents that are already in their paper public file.    This would include documents like EEO Public Inspection File Reports and Quarterly Issues Programs Lists. Pre-effective date political file documents need not be uploaded. Letters from the public also do not need to be uploaded (see our article here about the FCC’s proposal to entirely do away with the requirement that letters be kept). We wrote more extensively about the obligations for the radio online public inspection file here.

TV, too, needs to pay attention to this notice.  The Public Notice announces that the online public file will be moving to a new database.  Effective on June 24, TV licensees will need to use this new database too – what the FCC calls the “OPIF” (for expanded online public inspection file) as opposed to the old “BPIF” (“broadcast public inspection file”).  The FCC suggests that the new OPIF database will allow for easier uploads – including the ability to upload a single document into multiple stations’ files at the same time.  It will also have a more user-friendly interface, and will work better with other online systems like Dropbox and Box.  This database moves these files off the FCC server and onto a cloud-based storage system.  Stations can already try out the new system here. 
Continue Reading FCC Announces June 24 Effective Date for Radio Online Public Inspection File and New System for TV Stations Online File, Plus a Reminder to Upload JSAs

E-Cigs and vape shops have become a new advertising category for many broadcast stations over the last few years. Unlike ads for cigarettes, little cigars, and smokeless (chewing) tobacco, which are effectively banned on broadcast stations, there are currently few Federal rules on e-cigs. Ads currently cannot make health claims about the product (so the ads cannot say that they are healthier than smoking cigarettes, nor can an ad even make the claim that e-cigs help users stop smoking). While some states have placed some additional restrictions on sales that carry over into advertising (e.g. age restrictions on sales), the Federal government, until this week, had passed on imposing more sweeping regulation on the industry.

In a “Final Rule” issued by the Food and Drug Administration yesterday (to be published in the Federal Register on Tuesday), a number of new requirements were adopted for tobacco products generally, and e-cigs were included in the FDA’s definition of tobacco products. So, too were cigars, pipe tobacco and tobacco used in water pipes or hookahs – tobacco products not covered by the over-the-air advertising ban that applies to cigarettes and smokeless tobacco. The new rules have a number of implications for the e-cig industry generally, including bans on sales to those under 18 and requirements that the FDA conduct “pre-market review” and approval of any new tobacco product introduced to the market in February 2007 or later. Of particular note for broadcasters are new requirements for health warnings in advertisements for all tobacco products, including e-cigs.
Continue Reading New Federal Advertising Rules on E-Cigs and Other Tobacco Products Adopted – To Become Effective within Two Years

Yesterday, the FCC announced its agenda for its May open meeting to be held on May 25. Among the items on the agenda is a proposal to adopt a Notice of Proposed Rulemaking looking to abolish the obligation that broadcasters maintain in their public files copies of letters and emails from the general public about station operations. These letters are the last vestige of the physical public file for TV broadcasters who several years ago migrated the rest of their public file to an online system maintained by the FCC (see our summary of the TV online public file obligations here). The letters from the public were deemed too sensitive to put online, as they could reveal private information about the writers of those letters. Thus TV stations must still maintain a paper file at their main studio. Radio broadcasters too will soon be moving their public files online. In the order adopting the requirement for an online public file for radio (see our summary here), the FCC proposed that the same paper system for letters from the public be maintained. However, it did note that there were calls to abandon entirely the requirement to maintain these letters in a separate file, and promised to initiate this rulemaking to look at that issue.

Commissioner O’Rielly has been a major proponent of that change, tying the issue to one of the security of broadcast stations and personnel. In his concurring statement to the Online Public File order, he noted that the abolition of the requirement that broadcasters maintain these letters from the public would eliminate the need for many broadcasters to open their stations to all comers who enter on the pretext of inspecting the public file. In a blog post, he noted the need for security at broadcast stations. The recent events at Sinclair’s Baltimore TV station, where an individual with emotional or mental issues triggered a police shoot-out at the station, and last year’s tragedy involving the Roanoke TV crew, highlighted the very real threats to safety that broadcasters face every day. Minimizing these threats by removing one pretext for people to enter broadcast studios unchallenged is an important consideration in these deliberations.
Continue Reading FCC To Consider Abolition of Requirement that Broadcasters Maintain Letters From the Public in their Public Files – Moving Toward the End of the Physical Public File?

May is one of those off months in which there are not the kind of routine filings that pop up in most other months – no EEO Public File Reports, no quarterly issues programs lists or children’s television reports, no Biennial Ownership Reports for noncommercial stations (which will soon disappear anyway when noncommercial stations transition to the same biennial report deadline as commercial broadcasters – see our articles here and here). Clearly, the big event for TV will be the likely start of the bidding in the “reverse auction” part of the TV incentive auction. For radio, the big activity will be around the continuing window for AM stations to buy FM translators to move to their communities (see our article here). And, as we wrote in our Broadcasters Calendar here, there are also a number of lowest unit rate windows in the states in which the final Presidential primaries are being held.

There are not even that many comment dates in proceedings of importance to broadcasters. Perhaps the most important is the preliminary comments on the proposed ATSC 3.0 transmission standard for the next generation of television (see our articles here and here). These initial comments are due on May 26.
Continue Reading May Regulatory Dates for Broadcasters – Incentive Auction, Comments on EAS, ATSC 3.0 and Set Top Boxes

The “performing rights organizations” – ASCAP, BMI and SESAC – don’t get as much attention in these pages as do the royalties paid to SoundExchange for the use of “sound recordings.” The PROs collect for the public performance of the “musical work” or the musical composition – the words and music of a…

April brings the whole panoply of routine regulatory dates – from the need to prepare EEO Public File and Noncommercial Ownership Reports in some states, to Quarterly Issues Programs lists for all full-power broadcast stations and Quarterly Children’s Television Programming Reports for all TV stations.  So let’s look at some of the specific dates that broadcasters need to remember this coming month.

On the first of the month, EEO Public Inspection File Reports should be placed in the Public Inspection files of all stations in employment units with five or more full-time employees in the following states: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee and Texas.  In addition, EEO Mid-Term Reports on FCC Form 397 need to be submitted to the FCC by radio stations that are part of employment units of 11 or more full-time employees in Kentucky, Tennessee and Indiana.  For more on the EEO Mid Term Report, see our article here.
Continue Reading April Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports and Much More

To help broadcasters sort out the confusing rules about political advertising, we have updated our Political Broadcasting Guide for Broadcasters (note that the URL for the updated version has not changed from prior versions, so your bookmarks should continue to work). The revised guide is much the same as the one that we published two years ago, formatted as Questions and Answers to cover many of the issues that come up for broadcasters in a political season. This guide is only that – a guide to the issues and not a definitive answer to any of the very fact-dependent legal issues that arise in election season. But we hope that this guide at least provides a starting point for the analysis of issues, so that station employees have a background to discuss these matters with ad buyers and their own attorneys.

In looking at the Guide that we prepared two years ago, really not much has changed. But there are some specific updates that should be noted. For instance, sponsorship identification seems to be a hot issue in the last two years. We wrote here about the $540,000 fine paid as part of a consent decree when a Cumulus radio station did not fully identify the sponsor of advertising on a controversial issue of public importance. We have also written here and here about issues that are currently pending at the FCC about the proper sponsorship identification tag that belongs on an ad paid for by a PAC that is funded by one individual. This is an issue to which stations should be alert. The online public file for radio is mentioned, as this will affect how radio broadcasters maintain their political file starting at some point later this year (see our article here about the online public file requirements for radio broadcasters). Also, we note the adoption by many stations of programmatic selling, and suggest that stations need to carefully review how these sales platforms may impact lowest unit rate issues. We have made some other clarifications and revisions as well.
Continue Reading Updated Political Broadcasting Guide – Questions and Answers about Broadcasters’ Obligations During this Election Season