EEO Compliance/Diversity

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.
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Here we are, more than a week into the New Year, and already we’ve written about a host of regulatory issues that will be facing broadcasters in the first month of the year (see for instance our articles here and here).  But what about the rest of the year?  As we do most years,

While many of us were trying to enjoy the holidays, the world of regulation kept right on moving, seemingly never taking time off.  So we thought that we ought to highlight some of the actions taken by the FCC in the last couple weeks and to also remind you of some of the upcoming January regulatory deadlines.

Before Christmas, we highlighted some of the regulatory dates for January – including the Quarterly Issues Programs Lists due to be placed in the online public file of all full-power stations by January 10.  Also on the list of dates in our post on January deadlines are the minimum SoundExchange fees due in January for most radio stations and other webcasters streaming programming on the Internet.  January also brings the deadline for Biennial Ownership Reports (postponed from their normal November 1 filing deadline).

In that summary of January regulatory dates, we had mentioned that the initial filing of the new Annual Children’s Television Programming Report would be due this month.  But, over the holiday week, the FCC extended that filing deadline for that report until March 30 to give broadcasters time to familiarize themselves with the new forms.  The FCC will be doing a webinar on the new form on January 23.  In addition, the FCC announced that many of the other changes in the children’s television rules that were awaiting review under the Paperwork Reduction Act had been approved and are now effective.  See our article here for more details.
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The FCC recently proposed modifying its rules prohibiting a radio station in one service (either AM or FM) from duplicating more than 25% of the weekly programming of another station in the same service if there is more than 50% overlap of the principal community contour of either of the stations.  The FCC this

With many Americans using the holiday season to rest and recharge, broadcasters should do the same but not forget that January is a busy month for complying with several important regulatory deadlines for broadcast stations.  These include dates that regularly occur for broadcasters, as well as some unique to this month.  In fact, with the start of the lowest unit rate windows for primaries and caucuses in many states, January is a very busy regulatory month.  So don’t head off to Grandma’s house without making sure that you have all of your regulatory obligations under control.

One date applicable to all full-power stations is the requirement that, by Friday, January 10, 2020, all commercial and noncommercial radio and television stations must upload to their online public file their quarterly issues/programs list for the period covering October 1 – December 31, 2019.  The issues/programs list demonstrates the station’s “most significant treatment of community issues” during the three-month period covered by each quarterly report.  We wrote about the importance of these reports many times (see, for instance, our posts here and here).  With all public files now online, FCC staff, viewers or listeners, or anyone with an internet connection can easily look at your public file, see when you uploaded your Quarterly Report, and review the contents of it.  In the current renewal cycle, the FCC has issued two fines of $15,000 each to stations that did not bother with the preparation of these lists (see our posts here and here on those fines).  In past years, the FCC has shown a willingness to fine stations or hold up their license renewals or both (see here and here) over public file issues where there was some but not complete compliance with the obligations to retain these issues/programs lists for the entire renewal term.  For a short video on the basics of the quarterly issues/programs list and the online public inspection file, see here.
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In a very short decision issued on Wednesday, the Third Circuit Court of Appeals rejected the FCC’s request for rehearing of the September decision of a panel of three of its judges which overturned the FCC’s 2017 decision changing many of the broadcast ownership rules (including the abolition of the newspaper-broadcast cross-ownership rules).  We

The FCC last week announced an extension of the deadline for initial comments in its proceeding to examine the regulatory fees that are paid by VHF television stations. We wrote here about this Further Notice of Proposed Rulemaking, which asked questions including whether VHF television stations and stations in the FCC’s incubator program

In September, a three-judge panel of the US Court of Appeals for the Third Circuit released a 2-1 decision overturning the FCC’s 2017 decision modifying many of its ownership rules (see our summary of the Court decision here, and our review of the 2017 decision here).  The Court’s decision not only upset the plans of many media companies for acquisitions based on the changes adopted in the 2017 decision, but also dashed the hope of many radio companies for timely changes in the radio ownership rules that are under consideration by the FCC in its next Quadrennial Review of its ownership rules (see our summary of the issues in the current Quadrennial Review here).  Last week, both the FCC and a number of industry groups who were parties to the Third Circuit case filed Petitions asking that all of the sitting judges on the Third Circuit vote to rehear the decision of the three-judge panel.

The panel’s decision did not find that any of the rule changes adopted by the Commission (including the abolition of the newspaper-broadcast cross-ownership prohibition) were not justified by changes in the media marketplace.  Instead, the panel voided the FCC’s decision because it did not believe that the FCC had enough historical data on minority and female ownership to be able to judge the affects of any ownership changes on diversity of ownership in the media industry.  The FCC Petition for Rehearing centered on an argument that the Commission had plenty of data to support its conclusions – and that Courts have never required government agencies to have perfect information in making any decision.  Instead, agencies are only required to have sufficient factual data to justify their conclusions.  The FCC argued that, where the information that is sought by the panel might simply not exist and where the panel’s insistence on the information has held up the FCC’s attempts to modernize its media ownership rules for a decade and a half as the same judges keep rejecting FCC attempts to justify its ownership decisions, the full Court should step in and conduct a rehearing.  The industry parties emphasized how the decision was overbroad – overturning all aspects of the FCC’s decision – even parts that had not been challenged by the petitioning parties.  The industry participants also pointed to the fact that real hardships were being imposed on media companies as the FCC had not been able make changes in its ownership rules to reflect the changes in the industry that had occurred in what may have been the most dynamic 15 years in the history of the mass media.  With these requests for rehearing on file, what is next?
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The FCC announced on Friday that it will be hosting a symposium on the state of the broadcast industry on November 21.  On that day, there will be a panel in the morning on the state of the radio industry and one in the afternoon on television.  The Public Notice released Friday lists a diverse group of panelists, but says little beyond the fact that the forum will be occurring.  What could be behind the Commission’s decision to host this session?

The FCC is working on its Quadrennial Review of its ownership rules (see our articles here and here).  There were many who expected that review to be completed either late this year or early next, with relaxation of the radio ownership rules thought to be one of the possible outcomes.  Of course, quick action may have been derailed by the decision of the Third Circuit Court of the Appeals to vacate and remand the Commission’s 2017 ownership order.  The court’s decision unwinds the FCC’s 2017 order which included abolition of the broadcast newspaper cross-ownership rule and the rule that limited one owner from owning two TV stations in the same market unless there were 8 independent television operators in that market – see our article here on the 2017 decision and our article here on the Third Circuit’s decision.  The basis of the Third Circuit decision was that the FCC did not have sufficient information to assess the impact of its rule changes on minority ownership and other potential new entrants into broadcast ownership.  If the FCC did not have enough information to justify the 2017 decisions, many believe any further changes in its rules are on hold until the FCC can either satisfy the court’s desire for more information on minority ownership or until there is a successful appeal of that decision.  Even though FCC changes to its ownership rules may be in abeyance, the November 21 forum can shed light on the current state of the industry and why changes in ownership rules may be justified.
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November is not one of those months with due dates for renewal filings, EEO public file reports or quarterly issues programs reports. Some of those obligations wait until December, when renewal filings for radio stations in Georgia and Alabama are due by December 2 (as December 1 falls on a weekend). Due for uploading on or before December 1 are EEO public file reports for station employment units with 5 or more full-time employees for radio or television stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont.

November 1 does signal the first day on which radio and TV stations can file their Biennial Ownership Reports. As we wrote here, the FCC has extended the deadline date for those filings until January 31, 2020 as the FCC is making refinements in its forms in the LMS filing system. Reports are to reflect the licensee’s ownership as of October 1, 2019 so stations have the information that they need and can start filing their reports later this week.
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