EEO Compliance/Diversity

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The full Commission this week issued an Order fining Cumulus Media $26,000 for its failure to upload one EEO Annual Public File Report to its online public inspection file until about 9 months after the due date.  The unanimous decision of the five Commissioners generally upheld an EEO Notice of Apparent Liability, issued unanimously by all four FCC Commissioners about two years ago, where the Commission had proposed a $32,000 fine on the company for its failure to timely upload the annual EEO report for a cluster of five co-owned stations in a Georgia market (and the fact that a link to that report on each stations’ website was also missing for that period).  The principal change in this week’s decision was to reduce the fine that had been proposed by $6,000, reflecting the amount that the Notice of Apparent Liability had assessed for the licensee’s failure to self-assess its EEO program. Broadcasters are required to regularly assess the effectiveness of their EEO program.  The proposed fine was imposed on the theory that, if the licensee had been regularly assessing its program, it would have noted that the required report had not made it to the online public file and fixed that problem.  This week’s decision reaffirms that reasoning but reduces the fine by the amount allocated to the failure to self-assess the program, finding that Cumulus may not have had notice that reviewing public file uploads was part of the obligation to self-assess.

It is very important to note that this decision did not cite any failure by the licensee to recruit widely when it had open positions, nor any failure of the group to conduct the required EEO non-vacancy specific outreach (these obligations described in our posts here and here).  The alleged violations cited in the decision were simply tied to the failure to upload the annual report.  In fact, Cumulus stated that the report was prepared on time, but was not uploaded to the public file because of an administrative oversight due to staff turnover.  While the base fine for this violation totaled less than $10,000, the proposed fine was increased because Cumulus was found to have previous FCC rule violations for EEO and sponsorship identification matters.  Both Cumulus and the NAB argued that this amount was excessive for a single instance of a paperwork shortcoming – the FCC rejecting that reasoning, finding that the upload was a critical part of the broadcaster’s EEO obligations as it gives the public a way to monitor the performance of the licensee. Continue Reading FCC Imposes $26,000 Fine on Broadcaster for One EEO Annual Public File Report that was Uploaded Late

Expecting quiet weeks, we took the holidays off from providing our weekly summary of regulatory actions of interest to broadcasters.  But, during that period, there actually were many regulatory developments.  Here are some of those developments, with links to where you can go to find more information as to how these actions may affect your…

A new year – and our annual opportunity to pull out the crystal ball and look at the legal issues that will be facing broadcasters in the new year.  We’ve already published our 2024 Broadcasters Calendar and, as we noted before the holidays, it highlights the many lowest unit rate windows for the November election.  With a heavily contested election almost upon us, there may be calls on the FCC to modify regulations affecting political broadcasting or for more monitoring of broadcasters’ online public files, which caused so many issues in recent years (see for instance, our posts here and here).  Even if there are no FCC proceedings that deal with the rules for political broadcasting, the election will be watched by all broadcasters, and all Americans, to see the direction in which the country will head for the next four years.  With that election looming, 2024 may be a very active year in regulation as there traditionally is significant post-election turnover at the FCC no matter which party wins.  With that turnover in mind, we may see Commissioners looking to cement their regulatory legacies in the coming year.

Last year, we noted the number of pending issues at the FCC that had not been resolved because of the partisan deadlock on the Commission while the nomination of Gigi Sohn to fill the one vacant seat was stalled in the Senate.  That deadlock was finally overcome by her withdrawal from consideration and the subsequent nomination and confirmation of Anna Gomez, who was sworn in as a Commissioner in late September.  Since then, the FCC has acted on several long-pending priorities, including the adoption of open internet rules and, for broadcasters, last week’s adoption of an Order resolving the 2018 Quadrennial Review of the local broadcast ownership rules (see our summary of that action here). Continue Reading Gazing into the Crystal Ball at Legal and Policy Issues for Broadcasters in 2024 – Part I: What to Expect From the FCC

While we normally publish a weekly summary of regulatory actions relevant to broadcasters, the weekend before last we said that we would take the holiday weeks off – and return with a summary on January 7 of all that occurred over the break – unless there was news in the interim.  Well, there has been…

The new year brings a series of noteworthy regulatory deadlines for broadcasters in January.  As always, broadcasters should consult with their own attorneys and advisors to make sure that they are aware of and ready to act on any other deadlines that are not listed below.

Congress still has not passed budget bills for the fiscal year that started on October 1, and some of the “continuing resolutions” to fund the federal government at last year’s levels run out on January 19, with the FCC’s budget set to expire on February 2.  Thus, at least a partial government shutdown may well occur if Congress fails to act this month.  As we previously discussed here and here, if a government shutdown does occur, some government agencies may have to cease all but critical functions if they do not have any residual funds to continue operations.  If no funding is approved, the FCC will announce how any shutdown will affect it, including whether it has any residual funds to keep operating beyond any general funding deadline.  Watch Congressional actions and any FCC announcements to see how any deadlines that apply to your station will be affected by the funding deadline.

With those concerns in mind, let’s look at some of the specific dates and deadlines for broadcasters in January.  Beginning January 1, television stations affiliated with the Top 4 Networks and operating in Nielsen Designated Market Areas (DMAs) 91 through 100 will be added to the list of markets that are subject to the FCC’s audio description rules.  The DMAs where the rules become effective on January 1 are:  El Paso (Las Cruces), Paducah-Cape Girardeau-Harrisburg, Cedar Rapids-Waterloo-Iowa City & Dubuque, Burlington-Plattsburgh, Baton Rouge, Jackson, MS, Fort-Smith-Fayetteville-Springdale-Rogers, Boise, South Bend-Elkhart, and Myrtle Beach-Florence – in addition to Chattanooga and Charleston, SC, which were previously in DMAs 92 and 91, respectively, but are now in DMAs 84 and 88.  We reported here on the FCC’s recent reminder that these new markets will be subject to the audio description requirements as of January 1.  TV stations associated with the Top 4 networks in these markets are required to provide audio description for 50 hours of programming per calendar quarter, either during prime time or in children’s programming, and 37.5 additional hours of audio description per calendar quarter between 6 a.m. and 11:59 p.m. local time, on each programming stream that carries one of the top four commercial television broadcast networks (ABC, CBS, FOX and NBC). Continue Reading January Regulatory Dates for Broadcasters – Expansion of Audio Description Requirements, Music Royalty Cost of Living Increases, Quarterly Issues/Programs Lists, Childrens Television Programming Reporting, Political Windows, and More

Here are some of the regulatory developments of significance to broadcasters from the past two weeks, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC adopted a Report and Order establishing rules implementing the January 2023 Low Power Protection Act, which provides
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Even with the holidays upon us, regulation never stops.  There are numerous regulatory dates in December to which broadcasters need to keep in mind.  Furthermore, as the 2024 presidential campaign is already underway, there are political advertising deadlines to watch out for.  Here are some of the upcoming deadlines:

December 1 is the filing deadline for Biennial Ownership Reports by all licensees of commercial and noncommercial full-power TV/AM/FM stations, Class A TV stations, and LPTV stations.  The reports must reflect station ownership as of October 1, 2023 (see our article here on the FCC’s recent reminder about these reports).  The FCC has been pushing for stations to fill these out completely and accurately by the deadline (see this reminder issued by the FCC last week), as the Commission uses these reports to get a snapshot of who owns and controls what broadcast stations, including information about the race and gender of station owners and their other broadcast interests (see our article from 2021 about the importance the FCC attaches to these filings). Continue Reading December Regulatory Dates for Broadcasters – Biennial Ownership Reports, Annual EEO Public File Reports, LPFM Filing Window, LUC Political Windows for 2024 Election, and More

For the last few years at this time of the year, we’ve departed from our usual coverage of legal and policy issues to talk about something else – broadcasters giving back.  With Giving Tuesday upon us, we wanted to urge our readers to consider ways to give back to our industry.  I guess it is now a tradition, so we’ll do it again this year and suggest some of the many ways we can express our thanks to the industry in which we work.  Broadcasters have long been known for their service to their communities, service benefitting individuals and groups across the country.  While broadcasters are always giving back to their communities and should be celebrated for that, those of us who make our living in some aspect of the industry should recognize that there are plenty of ways for us to give back as well – both to those associated with the industry who have fallen on hard times, and to those who need assistance in obtaining education and training to enter the media industry we so appreciate.  We should all be thankful for jobs, friends, and good fortune. But we should also ourselves give back where possible.  In the broadcast industry itself, there are many groups doing good work.

One that bears mention is the Broadcasters Foundation of America, which provides relief to broadcasters and former broadcasters who have, for one reason or another, fallen on hard times – whether that be for health reasons or because of some other disaster that has affected their lives. The Foundation deserves your consideration. More about the Foundation and its service, and ways to contribute, can be found at their website, here.Continue Reading Giving Back to the Broadcast Industry on Giving Tuesday

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC’s Enforcement Bureau released its second EEO audit notice for 2023, which targets 150 radio and television stations for
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The FCC this week released its second EEO audit notice for 2023.  The FCC’s Public Notice, audit letter, and the list of stations selected for audit is available here.  Those stations, and the station employment units (commonly owned or controlled stations serving the same area sharing at least one employee) with which they are associated, must provide to the FCC (by uploading the information to their online public inspection file) their last two years of 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.  The response to this audit is due to be uploaded to the public file of affected stations by December 14, 2023. The audit notice says that stations audited in 2021 or 2022, or whose license renewals were filed after October 1, 2021, can ask the FCC for further instructions, possibly exempting them from the audit because of the recent FCC review of their performance.  Perhaps for this reason, no stations in New England or the Mid-Atlantic (NY, NJ, PA, and DE) states, are included in the list of audited stations, as stations in these states were the last to file their license renewals.

With the release of this audit, and the recent $25,000 fine proposed for some Kansas radio stations that had not fully met their EEO obligations (see our article here), it is important to review your EEO compliance even if your stations are not subject to this audit.  The FCC has promised to randomly audit approximately 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 recent proposed fine, a fine imposed on Cumulus Media for a late upload of a single EEO Annual Public File Report last year (see our article here), and the FCC’s pending consideration of the return of the EEO Form 395 reporting on the race and gender of all station employees (see our article here), shows how seriously the FCC takes EEO obligations.Continue Reading FCC Announces Second EEO Audit of 2023 – 150 Radio and TV Stations Must Report on Their EEO Compliance