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As we highlighted yesterday in our weekly summary of regulatory issues for broadcasters, last week saw a letter from Congresswoman Anna Eshoo to the FCC asking for the FCC to review the enforcement of the rules established by the CALM Act, which prohibits loud commercials on TV stations.  The letter cites news reports of thousands of complaints annually to the FCC since the rule’s adoption in 2012 without there ever having been an enforcement action against a station for any violation.  When the CALM Act was passed by Congress, there were many industry questions about how that law could be enforced, as there are many subjective judgments in assessing whether a commercial is louder than the program into which it is inserted (see our article here).  But, ultimately, the FCC adopted rules that were based on industry standards and most parties seemed to believe that they were workable (see our article here about the adoption of those rules).  Like many FCC rules, the CALM Act rules are complaint-driven, and even the article cited by Congresswoman Eshoo recognized the difficulty in assessing the merits of any complaint.

Nevertheless, with this letter and the publicity that it has received in the broadcast trade press, TV stations should carefully review their compliance with the CALM Act rules, as this publicity could signal that the FCC will turn its attention to this issue in the coming months.  In fact, with a Commission that is currently evenly divided between Democrats and Republicans until the vacant seat on the Commission is filled, enforcement of existing FCC rules may well be one place where the current Commission will turn its attention while more controversial (and potentially partisan) rule changes await FCC action.…
Continue Reading Congressional Letter to FCC on CALM Act Violations Puts Focus on FCC Enforcement Issues

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

  • According to press reports, broadcasters should pencil in August 11, 2021 on their calendars for the next national test of

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Here are some of the regulatory developments from 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 National Association of Broadcasters this week announced that its CEO, Gordon Smith, will be stepping down at the end

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

  • The Supreme Court this week announced its decision in Federal Communications Commission v. Prometheus Radio Project, the broadcast ownership

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Noncommercial radio stations ignoring their FCC public file obligations should be expecting to enter into consent decrees at license renewal time obligating them to take formal steps to monitor compliance and submit information to the FCC on any issues that arise.  In the last few weeks, we have seen at least four such decrees announced by the FCC (e.g. here, here, and here) imposing such obligations in exchange for the grant of pending renewal applications.  In each consent decree, the FCC notes the hardships imposed by the pandemic, presumably suggesting that, had these been more ordinary times, the licensees would have faced steeper penalties.

The consent decrees themselves resemble the consent decrees entered into between the FCC and commercial broadcasters who have not adequately maintained the documents required to be in the political file that is part of each commercial station’s public inspection file (see our articles here and here).  The four recent consent decrees with the noncommercial broadcasters require that they take the following actions:

  • They must appoint a Compliance Officer – a senior manager who will report to the “Chief Executive Officer” or equivalent of the licensee. The Compliance Officer is responsible for making sure that the licensee observes all public file obligations and all terms of the consent decree.
  • Within 30 days, the licensee must adopt a Compliance Plan that includes:
    • A written Compliance Manual explaining all requirements of the public file rules and is distributed to all employees who deal with any aspect of the rules.
    • A training program must be conducted for all employees on their obligations under the public file rules.
  • A year after the effective date of the Consent Decree, the licensee must submit a Compliance Report to the FCC certifying its compliance with the rules and how it complied.
  • If in any instance, the licensee does not comply with the rules, it must report any instance of noncompliance to the FCC within 10 days of its discovery.

As we noted here in the case of a commercial broadcaster who did not comply with the terms of a consent decree, noncompliance can bring big penalties.…
Continue Reading Noncommercial Stations – Don’t Forget Your Public File Obligations – The FCC is Watching!

After so much turmoil in the last year, radio stations may be inclined to blow off some steam this year with some big April Fools” Day stunt.  But because of the continuing issues with the pandemic and social tensions throughout the country, a prank that may seem funny to some could trigger concerns with others.  As we do every year about this time, we need to play our role as attorneys and ruin any fun that you may be planning by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other on-air bits prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes.  Issues under this rule can arise at any time, but a broadcaster’s temptation to go over the line is probably highest on April 1.

The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”  If you air a program that fits within this definition and causes a public harm, you should expect to be fined by the FCC.…
Continue Reading Plan April Fools’ Day On-Air Stunts With Care – Remember the FCC Hoax Rule

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

  • We noted last week that updated fees for broadcast applications would take effect April 19. After clarification from the FCC,

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After a long winter, spring has finally arrived and has brought with it more daylight and warmer temperatures—two occurrences that do not necessarily pair well with keeping up with broadcast regulatory dates and deadlines.  Here are some of the important dates coming in April.  Be sure to consult with your FCC counsel on all other important dates applicable to your own operations.

On or before April 1, radio stations in Texas (including LPFM stations) and television stations in Indiana, Kentucky, and Tennessee must file their license renewal applications through the FCC’s Licensing and Management System (LMS).  Those stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396).

Both radio and TV stations in the states listed above with April 1 renewal filing deadlines, as well as radio and TV stations in Delaware and Pennsylvania, if they are part of a station employment unit with 5 or more full-time employees (an employment unit is a station or a group of commonly controlled stations in the same market that share at least one employee), by April 1 must upload to their public file and post a link on their station website to their Annual EEO Public Inspection Report covering their hiring and employment outreach activities for the twelve months from April 1, 2020 to March 31, 2021.…
Continue Reading April Regulatory Dates for Broadcasters: License Renewal, Issues/Programs Lists, EEO, Webcasting Royalties and More

Here are some of the regulatory developments 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.

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Last week, the FCC’s Enforcement Bureau issued an Advisory reminding broadcasters about their obligation to provide sponsorship identification information to their audiences whenever they receive something of value in exchange for airing any programming.  The Enforcement Bureau’s advisory was quite concise, basically just reminding broadcasters of their sponsorship identification obligations.  But the FCC also highlighted two other issues – (1) that broadcasters have an obligation to exercise reasonable diligence to make sure that any third-party program providers also include sponsorship identification when they are paid to include material in programs that they provide to the station and (2) the FCC can impose substantial fines on stations that do not live up to these obligations.

On the question of exercising reasonable diligence in insuring that program providers meet the sponsorship identification obligations, the FCC pointed to this language form Section 317(c) of the Communications Act:

The licensee of each radio station shall exercise reasonable diligence to obtain from its employees, and from other persons with whom it deals directly in connection with any program or program matter for broadcast, information to enable such licensee to make the announcement required by this section.

This means that a broadcaster needs to ask any party providing syndicated programming to a station to ensure that the rules are met.  The same obligation would apply to time brokers who place programming on the station.  The station owner needs to be sure that these programmers are aware of their obligations under the sponsorship identification rules, and that they observe those obligations.  Reminders to program providers, and review of the programs that they provide, would seem to be part of this reasonable diligence obligation.  We have previously written about this requirement – see for instance our article here.…
Continue Reading FCC Issues Reminder On Sponsorship Identification Requirements – Including Obligation to Ensure Syndicated and Brokered Program Providers Comply With the Rules