EEO Compliance/Diversity

Here are some of the regulatory and legal actions of the last week—and some obligations for the week ahead—of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The comment cycle was set in the FCC’s annual regulatory fee proceeding. On or before June 12, the Commission wants to hear from interested parties about the fees that it proposes to impose on the companies that it regulates – including broadcasters.  The FCC proposes to complete the implementation of its change to computing fees for television stations based on population served rather than on the market in which they operate, a move it began last year (see our Broadcast Law Blog article here on the FCC decision last year to initiate the change in the way TV fees are allocated).  The FCC also asks for ideas about how the Commission can extend fee relief to stations suffering COVID-19-related financial hardship.  Reply comments are due on or before June 29.  (Notice of Proposed Rulemaking)
  • FCC Chairman Ajit Pai and Chris Krebs, director of the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, wrote to the nation’s governors asking them to, among other things, declare radio and TV broadcasters as essential to COVID-19 response efforts and to afford broadcasters all appropriate resources and access. (News Release)
  • In a good reminder to broadcasters that transactions involving the sale or transfer of control of a broadcast station must be authorized in advance by the FCC, the Media Bureau entered into a consent decree with two companies that sold an FM station and FM translator without getting approval from the Commission. The parties mistakenly believed filing license renewal applications that reflected the assignment was sufficient approval.  The consent decree includes an $8,000 penalty.  (Consent Decree).  See this article on past cases where the FCC has warned that even transactions among related companies that change the legal form of ownership of a broadcast station without changing the ultimate control need prior FCC approval.
  • The Commission granted approval to Cumulus Media, Inc. to exceed the Commission’s twenty-five percent foreign ownership threshold. The Commission will allow Cumulus to have up to 100 percent aggregate foreign investment in the company, although additional approvals will be needed if any previously unnamed foreign entity acquires 5% or more of the company or if any foreign entity desires to acquire control.  (Declaratory Ruling).  This decision shows the process that the FCC must go through to approve foreign ownership above the 25% threshold and the analysis needed to issue such approvals.  See our articles here and here about the evolving FCC policy in this area.
  • President Trump signed an executive order that seeks to, among other things, address online censorship and rollback certain protections afforded to online platforms, which include social media sites like Twitter, Facebook, Instagram, and YouTube, but which also protect any site that hosts content created by users – which could include the Internet platforms of many broadcasters. Under federal law, Section 230 of the Communications Decency Act, these online platforms generally enjoy legal immunity for what users post on their platforms.  The President directed the Department of Commerce to ask the FCC to open a rulemaking to review this immunity and asked the FTC to review whether platforms were adhering to their terms of use when commenting on or limiting third-party content.  Other government entities, including state attorneys general and the Department of Justice, were also asked to review online platforms.  For his part, FCC Chairman Ajit Pai said “This debate is an important one. The Federal Communications Commission will carefully review any petition for rulemaking filed by the Department of Commerce.”  (Executive Order).  Watch for an article on the Broadcast Law Blog this coming week on implications of this order for broadcasters and other media companies.
  • Anyone looking to hand deliver documents to the FCC needs to learn a new address, and it is not, as you might expect, the address of the FCC’s future headquarters. Deliveries by hand must now be brought to 9050 Junction Drive, Annapolis Junction, MD 20701.  The address change is to enhance security screening and is part of winding down operations at the current 12th Street headquarters.  (Order)


Continue Reading This Week at the FCC for Broadcasters: May 23, 2020 to May 29, 2020

With many people now entering their third month of complying with stay-at-home orders and social distancing and summer being right around the corner, it would be easy for broadcasters to look past their regulatory obligations to focus on the day when they can ramp up operations and profits.  As you can read below, however, June is a busy month with important obligations for many stations.

June brings the start of summer and the start of the license renewal cycle for television stations.  By June 1, full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia and full-power AM and FM stations and LPFM and FM translators in Michigan and Ohio must file their license renewal applications. Those stations should already be close to completing their renewal applications, looking to file them on or before the June 1 deadline.  See our article here on the FCC’s announcement of the newly-revised procedures for filing TV license renewal applications.  On June 1 and again on June 16, stations filing renewals need to broadcast their post-filing announcements informing their audiences of the filing of the renewal application.
Continue Reading June 2020 Regulatory Dates for Broadcasters: License Renewals, EEO Reports, Broadcast Internet Consideration, and Comments on Significant Viewing, DTS, White Spaces, Regulatory Fees, and Video Description

Each week, we summarize some of the regulatory and legal actions of the last week significant to broadcasters – both those from the FCC and those taken elsewhere –with links to where you can go to find more information as to how these actions may affect your operations.  Here is this week’s list of significant

The FCC yesterday announced a policy that will relieve broadcasters of wide-dissemination EEO obligations in rehiring laid-off employees in a post-shutdown world.  Because of the significant economic hit taken by broadcasters when so many advertisers pulled their advertising schedules as so many businesses shut down, many broadcasters who did not receive PPP loans were forced to lay off employees in order to be able to afford to continue operating.  As the economy recovers, it is hoped, some of those employees can be rehired.  The FCC Media Bureau’s order released yesterday may make some of that hiring somewhat easier.

The decision yesterday allowed broadcasters who were forced to terminate employees because of the pandemic to rehire those same employees at some point in the future (within 9 months of the time that they were laid off), without having to go through the “wide dissemination” that the FCC rules normally require before an employment vacancy is filled.  Normally, the FCC requires that before filling any full-time employment vacancy, a broadcaster must advertise broadly to reach all groups within its community to inform them of the job opening to insure a pool of diverse recruits from which to fill that position (see our article here on the wide dissemination requirement).  Under this decision, the FCC will allow broadcasters to simply rehire an employee who was let go – without any wide dissemination of the job opening – if economic conditions allow for their re-hiring within 9 months of when they were first laid off.
Continue Reading EEO Relief for Broadcasters Hiring in the Post-Shutdown World

On Friday, the FCC (with the Department of Justice) and a group of interested media industry companies filed requests asking that the Supreme Court review the decision of the Third Circuit overturning the FCC’s 2017 decision on its ownership rules (the FCC petition for a writ of certiorari is available here).  The FCC’s 2017 decision abolished the newspaper/broadcast and radio/television cross-ownership rules, and made changes to the local television rule and other ownership rules (see our post here on the 2017 decision).  Last September, a three-judge panel of the Third Circuit overturned the rule changes, not necessarily disagreeing that times had changed and that the new media marketplace justified a relaxation in the ownership rules, but instead finding that the FCC had not done an adequate job in assessing the impact of the rule changes on minorities and other potential new entrants to the broadcast industry (see our article here on the court’s decision).

After the court’s decision, the FCC and the interested industry parties sought review by all of the judges on the Third Circuit of the decision made by the three-judge panel, a review that was denied last year (see our article here).  That led to the FCC’s order immediately before Christmas, reinstating the pre-2017 rules and requiring that broadcasters comply with those rules when filing new applications (see our article here).
Continue Reading FCC and Industry Groups Ask for Supreme Court Review of Third Circuit Ownership Decision

Life has been upended for most Americans due to the spread of the coronavirus and that tumult is, of course, reaching broadcasters as it reaches others throughout the country.  As we wrote here, like many agencies and businesses, as part of its COVID-19 response, the FCC has moved most of its workforce to teleworking in an attempt to keep FCC staff and their families safe.  With most FCC forms and filings being submitted electronically, and remote work already being routine for many FCC employees, there should be minimal disruption to broadcasters’ routine daily dealings with the Commission.  Broadcasters should continue to comply with all FCC rules, including meeting filing deadlines, though it does appear that the FCC is willing to be flexible with some deadlines, especially when a broadcaster can point to virus-related reasons that the deadline cannot be met.  Check with your attorney on specific deadlines.  And check our article from yesterday highlighting some issues to consider while preparing for whatever comes next.

While there is much disruption to normal routines, the routines of regulatory life largely carry on.  For instance, before moving on to April deadlines, we should remind TV broadcasters that, if they have not already done so, their first Annual Children’s Television Report is due to be submitted to the Commission by March 30.  See our articles here and here on that new report.
Continue Reading April Regulatory Dates for Broadcasters: The FCC May Be Teleworking, But Regulation Goes On

As the calendar flips to March, many of us have put our trust in Punxsutawney Phil’s weather forecasting expertise that an early spring is coming.  A surer place to put our trust, however, is in the guarantee that there are always some regulatory dates about which broadcasters should be aware.  While March is a month without with many of the regularly scheduled deadlines for renewals, EEO public file reports or Quarterly Issues Programs lists, there are still plenty of regulatory dates about which you should take notice.

The closest we come in March to a broadly applicable FCC filing deadline is the requirement that, by March 30, 2020 television broadcasters must complete and submit through LMS the FCC’s new Form 2100, Schedule H documenting their compliance with the requirements under the children’s television (KidVid) rules to broadcast educational and informational programming directed to children.  This report will document that programming from September 16, 2019 (when the new KidVid rules went into effect) to December 31, 2019.  The March 30 date is a transitional date as the FCC moves away from the old quarterly children’s television reports to ones that will be filed annually – in future years by the end of January.  This year, however, the FCC took time to develop the form for the new annual report and to explain how it should be used, thus the extra time to file.  Once filed, TV broadcasters won’t file another children’s television report until early 2021 reporting on compliance for all of 2020.  For more on the transition to the new KidVid obligations, read our articles here, here, and here.  To learn how to work with the new form, watch the FCC’s archived instructional webinar here.
Continue Reading March Regulatory Dates for Broadcasters—Children’s Television Reports, Lowest Unit Rate Windows, EEO Audit Responses, AM Revitalization Comments, License Renewal Preparation and More

The FCC yesterday released another of its regular EEO audit notices (available here), asking that approximately 240 radio stations and about 80 TV stations, and the station employment units (commonly owned stations serving the same area) with which they are associated, 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 March 23, 2020 to upload this information into their online public file.

The FCC has promised to randomly audit 5% of all broadcast stations each year. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else with an internet connection anywhere, at any time.  The license renewal cycle which began last year adds to the importance of this audit, as a broadcaster does not want a recent compliance issue to headline the record the FCC will be reviewing with its license renewal (see our article here about the license renewal cycle). So, whether you are on the list or not, this is a good time for broadcasters to review what is required by the FCC’s EEO rules.
Continue Reading FCC Issues First EEO Audit of 2020 Targeting 320 Radio and Television Stations – Reviewing the Basics of the FCC’s EEO Rules

Most years, at some point in January, we look into our crystal ball and try to see some of the legal and regulatory issues likely to face broadcasters.  We already provided a calendar of the routine regulatory filings that are due this year (see our Broadcaster’s Regulatory Calendar).  But not on that calendar are the policy issues that will affect the regulatory landscape in the coming year, and into the future.  This year, the biggest issue will no doubt be the November election.  Obviously, broadcasters must deal with the many day-to-day issues that arise in an election year including the rates to be charged political candidates, the access to airtime afforded to those candidates, and the challenges associated with the content of issue advertising that non-candidate groups seek to transmit to the public.  The election in November will also result in a President being inaugurated in just less than a year – which could signal a continuation of the current policies at the FCC or potentially send the Commission in a far different direction.  With the time that the election campaigns will demand from Congress, and its current attention to the impeachment, Congress is unlikely to have time to tackle much broadcast legislation this year.

The broadcast performance royalty is one of those issues likely on hold this year.  While it was recently re-introduced in Congress (see our article here), it is a struggle for any copyright legislation to get through Congress and, in a year like the upcoming one, moving a bill like the controversial performance royalty likely will likely not be high on the priorities of Congressional leaders.  This issue will not go away – it will be back in future Congresses – so broadcasters still need to consider a long-term strategy to deal with the issue (see, for instance, our article here on one such strategy that also helps resolve some of the music royalty issues we mention later in this article).
Continue Reading Looking Ahead to the Rest of 2020 – Potential Legal and Regulatory Issues For the Remainder of the Year

With the holiday season getting smaller in the rear-view mirror and many parts of the country dealing with ice, snow, and single-digit temperatures, broadcasters could be forgiven for dreaming about the sunshine and warmth that come with spring.  Before spring arrives, however, broadcasters need to tend to important regulatory matters in February.  And, if you find yourself eager to plan past February, use our 2020 Broadcasters’ Calendar as a reference tool for tracking regulatory dates through the end of 2020.

But focusing on the month ahead, by February 3, all AM, FM, LPFM, and FM translator stations in Arkansas, Louisiana, and Mississippi must file their license renewal applications.  For the full-power stations in the state, there’s an additional EEO task to complete irrespective of how many employees a station employment unit (SEU) has.  Before filing for license renewal, stations in these three states must submit FCC Schedule 396. This schedule is the Broadcast Equal Employment Opportunity Program Report, which is a reporting to the FCC of the SEU’s equal employment opportunity activities for the last license period (SEUs with fewer than five full-time employees are not required to maintain an EEO recruitment program and are only required to check a box that they have fewer than 5 full-time employees and skip ahead to the certification).  The sequencing here is important: When filing for license renewal, the application (Schedule 303-S) asks for the file number of your already-filed Schedule 396.  So, without having already filed the schedule, you won’t be able to complete your renewal application.
Continue Reading February Regulatory Dates for Broadcasters—License Renewals, EEO Reporting, Rulemaking Comments, FM Auction Filing Deadline, Lowest Unit Rate Windows, and More