While November is an odd numbered month in which there are no deadlines for EEO Public File or Mid-term Reports, and it is not the beginning of a new calendar quarter when Quarterly Issues Programs Reports are added to a station’s public file and Quarterly Children’s Television Reports are filed with the FCC, that does not mean that there are no dates of interest to broadcasters this month. In fact, there are numerous policy issues that will be decided this month, and filing dates both for television broadcasters and AM broadcasters seeking FM translators for their stations.

The biggest policy dates will be November 16, when the FCC holds its monthly meeting, with two major broadcast items on the agenda. As we wrote here, the FCC will be considering both the adoption of ATSC 3.0, the new television transmission system promising better mobile reception and more data transmission capabilities for TV stations, and the reconsideration of last year’s decision on the ownership rules, where the FCC is expected to repeal the broadcast-newspaper and radio television cross-ownership rules and loosen the restrictions on TV duopolies in markets where such duopolies cannot now be formed.
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The FCC yesterday released a Public Notice providing the details for its settlement window for mutually exclusive applications for new FM translators to rebroadcast AM stations. The settlement window will run through November 29. The mutually-exclusive applications (applications which conflict with each other as they cannot both operate without creating prohibited interference) are listed on an appendix available here. These applications were the ones filed earlier this summer in the FCC’s first window reserved for AM station licensees to file for new FM translators to rebroadcast their AM stations as part of the FCC’s AM revitalization proceeding. The first window was for Class C and D AM stations to submit applications. Class A and B AMs, which generally have greater coverage areas, will be able to file applications in a window to open either later this year or, at this point, more likely in early 2018. The majority of applications filed in this year’s window, which are not listed on the appendix of mutually exclusive applications and which did not receive a letter from the FCC in the last few weeks identifying deficiencies in their short-form applications, are likely “singletons,” meaning that these applications are not in conflict with any other and will likely be asked to file a “long-form” application completing the FCC Form 349 before being proposed for grant at some point later this year or early next year.

As we have written, as these applications were filed in the context of a potential auction, applicants cannot talk to each other except during announced settlement windows. Now that the settlement window has been announced, mutually exclusive applicants can discuss trying to resolve the mutual exclusivity either through technical means or by the dismissal of one of the applications. Technical means could include any “minor change” in the facilities initially proposed by one or both of the mutually-exclusive applicants, e.g. frequency moves to adjacent channels, transmitter site changes, or directional antenna proposals. Dismissal of applications can only be for the reimbursement of a dismissing applicant’s legitimate expenses – the dismissing applicant cannot be paid big bucks to dismiss its application. More details of the settlement process are set out in the Public Notice, but note that the deadline for the submission of any resolution to the FCC is November 29.
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It has been over two years since the last window allowing applicants to file for new FM stations (see our article here). There had been some speculation that the number of requests for new allotments was decreasing, leaving the FCC with few FM channels to auction off and thereby breaking what had been an almost yearly start of a new FCC auction for new FM channels. But, yesterday, the FCC released an Order noting numerous vacant FM channels, though this time they are not newly allotted channels, but instead ones that had previously been awarded to applicants who either did not pay the amount they bid in the auction, or who received a CP and then did not construct the station. Even included on this list is the FM channel of the station that had its license designated for hearing as the station had been silent for almost its entire renewal term (see our article here), a hearing that never had to happen as the licensee surrendered its license rather than trying to litigate over whether its renewal should be granted.

Of course, many of these channels may have some inherent issues leading those who initially sought them not to construct. The issues could be location specific (e.g. no readily available transmitter sites for a price that made construction feasible) or there could be issues with the applicant not being able to fulfill its initial plans. Interested parties should do their investigation. When will the channels be available?
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The window for filing applications for new FM translators for Class C and D AM stations has now closed. According to a statement from FCC Chairman Pai, over 1000 AM stations took advantage of the filing window.  What’s next? The FCC will take these applications and determine which of them are mutually exclusive with some other application filed during the window that ended yesterday. Those that are not in conflict with any other application filed during the window will be asked to complete the Form 349 application (so far, applicants have filed only the “tech box” setting out the basics of their technical proposal). The completed Form 349s will be processed and, barring any issues, construction permits will be granted.

The FCC will also determine which applications are mutually exclusive. At some point, it will release a list of all mutually exclusive applications, and these applicants will be able to discuss resolving their conflicts by minor technical amendments to their applications (e.g. site changes, directional antennas, changes to a new channel within 3 channels of the channel they originally proposed in the tech box application). It is important that applicants not discuss possible resolution with other broadcasters in their market at this time, as this is theoretically an auction proceeding where there are rules against “prohibited communications” that are now in effect. It might seem silly that you can’t discuss a resolution of a conflict with a competitor now when, in a few weeks, the FCC will allow it (and in fact probably encourage it). But, by applying the auction rules to this filing window, these prohibitions are in effect and are taken seriously by the FCC until the settlement window opens.
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May is one of the few months without the normal list of quarterly filings and EEO public file reports.  But, just because there are none of these regular filings due, that does not mean that the month will be a quiet one for broadcasters on the regulatory front.  In fact, far from it.  There are obligations for television broadcasters in connection with the incentive auction and the subsequent repacking of the TV spectrum, an FCC meeting that will start two proceedings that could dramatically reduce the regulatory burdens of broadcasters, and comments due on the FCC’s proposal for the next generation of television broadcasting.

In connection with the incentive auction, on May 11, stations that are relinquishing their channels in exchange for compensation from the FCC must file an FCC Form 1875 detailing where payments for that relinquishment will go.  After that information is received and processed, the FCC will send an email to the payee asking for bank account information that must be entered into the “CORES Incentive Auction Financial Module.”  Stations looking for their auction payouts need to observe these details so the FCC knows where to send their money.
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The FCC last week announced that Stage 3 of the reverse auction portion of the FCC Incentive Auction is now complete, and the amount necessary to be paid to TV stations to vacate the required spectrum in this stage is $40,313,164,425.  This represents a drop from the $54,586,032,836 clearing cost that resulted from Stage

While we are into the holiday season, that does not stop the routine regulatory obligations for broadcasters. December 1 brings a host of routine obligations for stations in many states. EEO public file reports must be added to the public files of Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont that are part of an Employment Unit with 5 or more full-time employees. Of course, for TV stations and radio stations that have already converted to the online public file, that will mean uploading those reports to the FCC-hosted public file. For all stations, a link needs to be included on the main page of your station website, if your station has a website, which leads to these reports. Mid-Term EEO Reports on FCC Form 397 must be filed with the FCC by December 1 by radio employment units with 11 or more full-time employees in Colorado, Minnesota, Montana, North Dakota, and South Dakota and television employment units with five or more full-time employees in Alabama and Georgia. For more on these Mid-Term Reports, see our article here.  

A year from now, on December 1, 2017, all broadcast stations are expected to be required to file Biennial Ownership Reports, including noncommercial stations which now have those reports due on the anniversary date of the filing of their license renewal applications. See our article here on the new obligation that will be effective next year, though appeals of that requirement from some noncommercial groups are pending (see our article here). But, until that rule is effective, non-commercial stations need to continue to file on their renewal anniversary dates. Thus, on December 1 of this year, Noncommercial Television Stations in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont and Noncommercial AM and FM Radio Stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota have the obligation to submit their Biennial Ownership Reports to the FCC.
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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. 
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Each quarter, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and is available on their website, here. This update was published today, and provides a summary of the status of legal and regulatory issues ranging

Another month has started – and it is one with regulatory dates for broadcasters. All broadcasters, commercial and noncommercial, have an obligation to complete their Quarterly Issues Programs lists and place them into their public inspection filed by October 10. For TV stations and large-market commercial radio, that means that these lists need to be in the online public file by that date (see our article here about the online public file for radio). For TV stations, the 10th also brings the obligation to submit Quarterly Children’s Television Reports on Form 398 to the FCC (as the 10th falls on a Federal holiday, you may be able to file on the 11th, but consult your legal advisor for details on that deadline).

For stations in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands that are part of employment units with 5 or more full-time employees (30 hours a week or more), EEO public inspection file reports should have been included in their public inspection file by October 1. For Radio Station Employment Units with 11 or more full-time employees in Iowa and Missouri and Television Employment Units with five or more full-time employees in Florida, Puerto Rico, and the Virgin Islands, Mid-Term EEO Reports on FCC Form 397 should also have been filed at the FCC by October 1. See our article here on the obligation to submit Mid-Term EEO Reports.
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