Where do all the Washington DC legal issues facing TV broadcasters stand? While we try on this Blog to write about many of those issues, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters.
As broadcasters continue to respond to the coronavirus while sometimes juggling work duties with family responsibilities like at-home virtual schooling, it would be easy to overlook regulatory dates and responsibilities. This post should help alert you to some important dates in September that all stations should keep in mind – and we will also provide a reminder of some of the dates to remember in early October. As in any year, as summer ends, regulatory activity picks up – and this year appears to be no different.
Each year, in September, regulatory fees are due, as the FCC is required to collect them before the October 1 start of the new fiscal year. We expect that the final amount of those fees, and the deadlines and procedures for payment, should be announced any day. For broadcasters, one of the big issues is whether those fees will be adjusted downward from what was initially proposed by the FCC in their Notice of Proposed Rulemaking in this proceeding. The National Association of Broadcasters has been leading an effort (we wrote about this here and NAB detailed recent meetings between CEO Gordon Smith and members of its legal department with FCC staff here and here) urging the FCC to reduce the amount of fees owed by broadcasters, in part because of the financial toll the pandemic has taken on the industry and in part because the proposed fee structure, which is determined by estimates as to how many FCC staffers are detailed to regulating an industry and the related benefit that industry receives, inaccurately reflects the number of FCC employees who work on radio issues. Look for that decision very soon.…
Continue Reading September Regulatory Dates for Broadcasters: Annual Regulatory Fees, Lowest Unit Rate Window Opening, C-Band Reimbursement, Rulemaking Comments and More
While we are approaching the end of summer in this most unusual year, the regulatory dates keep coming, though perhaps a bit slower than at other times of the year. One of the big dates that broadcasters should be looking for is the announcement of the Annual Regulatory Fees that will likely be paid sometime in September. This year, there has been much controversy over those fees, with the FCC proposing that broadcasters’ fees should go up even though the FCC’s budget is flat, while the NAB has argued that they should remain flat or decrease. And many broadcast groups have argued for liberal waivers of the fee requirement in this year of the pandemic when so many stations were hit so hard by the economic downturn. Watch for this decision – likely toward the end of the month.
The license renewal cycle continues in August for both radio and TV. Full-power TV, Class A TV, TV translator and LPTV stations in North Carolina and South Carolina and full-power AM, FM, FM translator, and LPFM radio stations in Illinois and Wisconsin should be putting the finishing touches on their license renewal applications—due to be filed on or before August 3 (the deadline being the 3rd as the 1st of the month is a Saturday). While stations are no longer required to air pre-filing announcements, the requirement to air post-filing announcements remains. Those announcements must begin airing on August 1 and continue through October. See our article about how to prepare for license renewal here.…
Continue Reading August 2020 Regulatory Dates for Broadcasters: TV and Radio License Renewals, EEO Reporting, FCC Open Meeting, Broadcast Internet Comments and More
Here are some of the FCC actions of the last week 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 FCC’s Enforcement Bureau entered into negotiated settlements with two Boston-area pirate radio operators who admitted to illegal operations and
July is usually a month of family vacations and patriotic celebrations. While the pandemic has seen to it that those activities, if they happen at all, will look different than they have in years past, there are plenty of regulatory obligations to fill a broadcaster’s long, summer days. Here are a few of the dates and deadlines to watch for in July, and a quick reminder of some of the significant filings due right at the beginning of August.
On or before July 10, all TV and radio stations must upload to their public file their Quarterly Issues/Programs Lists for the 2nd quarter (April, May and June). Stations that took advantage of the FCC’s extension of time to file their 1st quarter (January, February and March) list must also by July 10 upload that list to their public file. As a reminder, the Quarterly Issues/Programs Lists are a station’s evidence of how it operated in the public interest, demonstrating its treatment of its community’s most significant issues. The FCC has shown (see here and here) that it takes this requirement seriously and will fine stations, hold up license renewals, or both if it finds problems with a station’s compliance. For a short video on complying with the Quarterly Issues/Programs List requirement, see here.…
Continue Reading July Regulatory Dates for Broadcasters: End of the TV Repacking, Quarterly Issues/Programs Lists, Children’s Television Reporting, EEO, Carriage Election Public File Information Deadline, LPTV Settlement Window, Rulemaking Comments and More
Here are some of the FCC regulatory and legal actions of the last week—and a congressional action in 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 FCC on June 9 held an Open Meeting where it unanimously adopted a Declaratory Ruling and Notice of Proposed Rulemaking regarding Broadcast Internet services. The Commission defines Broadcast Internet broadly as IP-based services delivered over broadcast TV spectrum. The Declaratory Ruling clarifies that the lease by a party of ATSC 3.0 spectrum on multiple local TV stations for Broadcast Internet services does not count as an attributable interest under the current TV ownership rules as would an LMA or similar programming agreement on multiple stations. The Notice of Proposed Rulemaking seeks comment on how industry foresees using Broadcast Internet services and what FCC rule change could encourage innovation and use of these services. Comments and reply comments on the Commission’s proposals will be due 30 days and 45 days, respectively, after publication in the Federal Register. (News Release) (Declaratory Ruling and Notice of Proposed Rulemaking) (Broadcast Law Blog)
- Thirty-five radio stations received the news last week that they were randomly selected by the Enforcement Bureau for an audit of their compliance with the Equal Employment Opportunity rules. These periodic audits are good reminders to broadcasters that the Enforcement Bureau sees EEO compliance as a priority and that the Bureau can sanction stations for non-compliance. Even if your station was not selected to be audited, you can still use the publicly-released audit letter as a checklist to make sure your station is complying with all applicable EEO rules. The FCC audits about 5% of stations each year, so your time may come soon. (Public Notice) (Broadcast Law Blog)
- New technical rules for low power FM stations and the relation between reserved-band noncommercial FM stations and TV channel 6 were published last week in the Federal Register, setting the effective date for many of the new rules. New rules, including permission for LPFM stations to use boosters and the waiver process for NCE stations seeking a change in facilities near a Channel 6 TV station, become effective July 13. Other new rules, including the broadening of the definition “minor change” and the expansion of the permissible use of directional antennas by LPFMs, require additional government action and likely will not be effective for several months. (Federal Register) (Broadcast Law Blog)
The FCC yesterday released another of its regular EEO audit notices (available here), this time targeting only about 35 radio stations. Those stations and the station employment units (commonly owned stations serving the same area) with which they are associated must 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 July 24, 2020 to upload this information to their online public file.…
Continue Reading FCC Releases EEO Audit for 35 Radio Stations – A Good Reminder to Review Your EEO Compliance
Here are some of the FCC regulatory and legal actions of the last week of significance to broadcasters — with a quick look at the week ahead— with links to where you can go to find more information as to how these actions may affect your operations.
- As protests and civil unrest over George Floyd’s killing roiled cities across the country, FCC Chairman Ajit Pai commended local broadcasters for their coverage of the events and their willingness to put themselves at personal risk to share these stories with America (News Release). Commissioner Starks called for more diversity in media ownership (News Release). We explained the minority tax certificate on our blog here. The tax certificate has historically been one of the most effective means of promoting diversity in broadcast ownership.
- The FCC issued a Public Notice setting out proposed lump sum payments for reimbursement of the costs for the relocation of authorized C-Band satellite earth stations following the repurposing of some of that band for 5-G wireless uses. The notice is scheduled to be published in the Federal Register on Monday, setting a June 15 comment deadline on the proposed payments.
- The Media Bureau reminded LPTV and TV translator stations operating on channels 38, 44, 45 and 46 that they must cease operations no later than 11:59 pm local time on July 13, 2020. The July 13, 2020 date for cessation of operations is a hard deadline, tied to the end of the post-Incentive Auction transition period. (Public Notice)
- The Media Bureau opened a settlement window running through July 31 for applicants for new or modified LPTV stations or TV translators, originally filed in 2009, that had filed for new channels or new technical facilities because use of their old channels was preempted by the incentive auction repack. Where more than one applicant applied for the same new channel in the same area, those applicants can file to make engineering changes to their applications (including, if no other solutions are possible, changing channels yet again) or to reach other settlements (including channel sharing) to resolve their conflicts by the July 31 deadline. (Public Notice)(see our summary of both LPTV items on the Broadcast Law Blog).
- The FCC released a list of 515 open proceedings from across its bureaus that it plans to close due to dormancy. A proceeding makes the proposed closure list when it requires no more action, no more action is planned, or no filings in the docket have been made for several years. Interested parties can review the list and submit comments urging the Commission to either keep open or close permanently items that appear on the list. (Public Notice)
- The Media Bureau issued a decision reviewing Section 312(g) of the Communications Act which automatically cancels a station’s license if it has been silent for 12 months, absent special circumstances. The decision is particularly useful in explaining the special circumstances that can justify the preservation of a license, and the way that the FCC assesses the period that a station was silent. (Letter)
- Two Notices of Apparent Liability that came out of the Commission this week serve as good reminders during this license renewal cycle that you do, in fact, have to file an application to renew your license.
- In one case, a Virginia AM station was hit with a $7,000 fine for failing to file for license renewal and then operating the station after its FCC authorization had expired. In the end, the Commission levied the fine, but also found that the station’s license should be renewed for a “short-term” two-year license term instead of the typical eight-year term. (Notice of Apparent Liability)
- In a second case, a Florida low power FM failed file an application for license renewal on January 27, 2020 that was due on or before October 1, 2019, without providing an explanation for the late filing. The Commission levied a $1,500 fine against the station and will consider the license renewal application at a later time. (Notice of Apparently Liability)
An intense national conversation on racial justice and equity has been thrust upon the country by the events of the last week. While our focus here on this blog is narrow, it is certainly worth looking at some of the issues that are within our broadcast world that are relevant to this conversation. In recent days, for instance, FCC Commissioner Geoffrey Starks promoted more diversity in broadcast ownership, and an article in Radio Ink by the President of the National Association of Black Owned Broadcasters called for a revival of the minority tax certificate – a program ended decades ago over concerns about its cost to the government. The tax certificate offers perhaps the most meaningful route to the goals sought by the Commissioner and is worth examination as, since its abolition so many years ago, its revival has been discussed so many times that it has become almost a cliché, with many not really understanding what it did and why it was effective.
The minority tax certificate was a program designed to provide broadcasters with an economic incentive to sell their stations to minority owners. Rather than directly subsidizing the potential owners, the certificate instead gave a tax break to sellers that incentivized them to sell to the minority-owned business even if there were multiple bidders for their properties. If the seller sold to a minority-owned business, the seller could take the proceeds from the sale and roll those proceeds over into a new media property without recognizing the taxable gain from the sale. Unlike the typical like-kind exchange where the roll-over into a new property has to proceed within a few months of the sale, the tax certificate treated the sale as an involuntary sale (like the sale of a property because of a government’s exercise of eminent domain) under Section 1033 of the tax code, giving the seller several years to roll the proceeds over into a new purchase. At that point, the new property would have the same tax basis as the old – meaning that no gain would be recognized until the sale of the new property. This spurred many sales to minority companies by broadcasters looking not to get out of the business, but instead looking to realign their holdings or to move up into larger markets. Several hundred radio and TV stations were purchased under this program in the last 20 years of the program’s existence. Why was this seemingly successful program abandoned?…
Continue Reading Understanding the Minority Tax Certificate and its Potential for Promoting Diversity in Broadcast Ownership
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.
- 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)