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  • The FCC announced several dates and deadlines in proceedings of importance to broadcasters:
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Last week, the FCC’s Enforcement Bureau issued a Notice of Apparent Liability proposing an $8000 fine on a Los Angeles radio broadcaster that did not award a contest prize until over a year after the contest rules called for the prize to be delivered.  The contest rules called for the prize to be awarded within 30 days of a winner sending all required paperwork to the station.  As payments were made over a year after the end of the 30-day period provided by the contest rules, the Bureau concluded that the station had violated Section 73.1216 of the FCC rules which requires, among other contest rules, that a contest be conducted “fairly and substantially as represented to the public.”  The Bureau’s Notice cites to FCC precedent indicating that “timely fulfillment of the prize” is a material term in the contest rules which, when violated, represents a violation of the FCC rule.

The prize money that was awarded late was only $396, so some might think that a proposed fine of $8000 is excessive, though the Bureau indicates in a footnote that there were 98 prize winners in the same contest that did not timely receive their prizes.  The Bureau itself noted that the “base forfeiture” for a violation of the contest rules set out in the FCC’s schedule of fines is $4000.  But the proposed fine was adjusted upward in this case because the FCC perceived that, for a large company such as the licensee of this station, a $4000 fine might simply be seen as a cost of doing business, and not act as a sufficient deterrent against future bad conduct.  The FCC even noted that it had the power to fine the station for each day that the contest award was not made, which could have resulted in a fine of hundreds of thousands of dollars.

Continue Reading FCC Proposes $8000 Fine for Failure to Award $396 Prize Within Time Period Set Out in the Contest Rules

Last week, the FCC approved a long-pending request by GeoBroadcast Solutions to allow FM boosters to originate limited amounts of programming that is different from what is broadcast on the booster’s primary station.  Boosters operate on the same channel as an FM broadcast station and have traditionally been used to fill in holes in an FM station’s coverage area where service that would otherwise be predicted to occur is blocked by terrain obstacles or some other impediment that prevents the main station from reaching a part of the station’s primary service area (in most cases a 60 dBu or 1 mv/m signal) predicted using the FCC’s standard coverage prediction methodology.  As boosters operate on the same channel as the main station, their use has always been limited because of fears of creating interference to the main station’s signal if not properly shielded by terrain or other obstacles.  The service approved last week – called “geocasting” or “zonecasting” – is supposed to allow boosters to originate limited amounts of programming different from the primary station and minimize interference not by terrain, but by other signal timing and coordination methodologies.  The proponent of the system claimed that this would minimize interference and allow stations to originate different commercials, news reports, or other geographically targeted programming in the different parts of a station’s service area to better compete with the geotargeting used by the digital media companies that are now competitors to radio.

Numerous broadcasters, and the NAB, had opposed this effort, as we noted in a recent article on the controversy.  Their fear was that no matter how good the synchronization of these boosters may be, there will still be the potential for some interference.  Just by putting more signals on the FM band in close proximity to each other, some interference naturally will result.  Objections were also raised about the economic impact of the proposals.  With more radio inventory addressing fewer people, there are fears that the implementation of this proposal could drive down radio advertising prices far below the rate now in place.  In addition, there are worries about the impact that geocasting could have in outlying smaller markets – as big market stations could use boosters in outlying parts of their service areas to target advertisers in these areas, taking advertising away from the full power stations serving those outlying communities.  The FCC’s order last week noted that the New Jersey broadcasters expressed particular concern, as New York and Philadelphia stations could use boosters to target advertisers who now buy advertising on New Jersey stations to reach local consumers because rates on the big city stations are cost prohibitive for reaching a targeted audience.  The fear is that these advertisers will now use the boosters of big city stations and abandon their local broadcasters, and that big stations will get bigger and more dominant, at the expense of the local stations doing local service to these outlying areas.

Continue Reading FCC Approves Origination of Programming on FM Boosters to Facilitate Geocasting – Targeting Different Ads or Programming to Different Parts of FM Station’s Service Area
  • The FCC adopted a decision resolving the FCC’s long-pending proceeding on whether to authorize FM “zonecasting” or “geo-targeting,” permitting FM
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Every year at about this time, with April Fools’ Day right around the corner, 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 has a rule against on-air hoaxes, and there can be liability issues with false alerts that are run on a station.  Issues like these 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 How an April Fools’ Day On-Air Prank Gone Wrong Could Result in FCC Issues

For the first time since October, we can say that the federal government is funded for the rest of the fiscal year (through the end of September) so we do not expect to have to report on any threats of a government shutdown for many months. With that worry off our plate, we can look at the dates that broadcasters do need to pay attention to in the month of April.

First, we’ll look at the most significant routine filing deadlines coming up in April.  April 1 is the deadline for radio and television station employment units in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ online public inspection files.  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.  Be timely getting these reports into your public file, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).

The filing of the Annual EEO Public File Reports for radio station employment units in Indiana, Kentucky, and Tennessee with eleven or more full-time employees triggers a Mid-Term EEO Review, where the FCC will analyze the last two Annual Reports for compliance with FCC requirements.  There is no form to file to initiate this review but, when radio stations located in those states with five or more full-time employees are required to upload to their public file their annual EEO Public File Report, they must also indicate in the online public file whether their employment unit has eleven or more full-time employees, using a checkbox now included in the public file’s EEO folder.  This allows the FCC to determine which station groups need a Mid-Term Review.  See our articles here and here on Mid-Term EEO Review reporting requirements for radio stations.

Continue Reading April Regulatory Dates for Broadcasters – EEO Reports, Quarterly Issues/Programs Lists, LUC Windows, Rulemaking Comments, and More

In October 2022, I noted in an article that many broadcasters were totally confused by the FCC’s rules requiring that they seek certifications as to whether or not a foreign government is behind anyone buying programming time on a broadcast station.  In our 2022 article, we noted that, even though broadcasters did not fully understand the existing rule, the FCC was considering expanding that requirement to require use of a specific form to obtain these certifications from program buyers.  From notices filed with the FCC recently, it appears that there have been several meetings with the Commission and representatives of the broadcasting community about these proposed enhanced certifications, making it appear that the FCC is nearing a decision.  It appears that the new certifications, if adopted, will be very cumbersome, particularly for the unsophisticated program buyers who are likely to be many of the buyers of program time on small market stations.  These buyers are likely to find the certification process somewhat intimidating, and may even be scared off from buying any broadcast programming time as a result.  We thought we should take another look at what is already required and what is now being proposed.

Currently, the certifications that broadcasters must obtain from a program buyer must indicate that the programmer is not a “foreign government entity,” a term that includes any foreign government or foreign-government owned entity, an agent of a foreign government, or someone who has been paid by a foreign government to produce the program.  As we noted (see our articles here and here), the rules requiring these certifications went into effect on March 15, 2022 for any new agreements effective after that date, and September 15, 2022 for obtaining certifications from programmers who were already on the air as of March 15.  They cover not only those who buy program time on a broadcast station, but also those that provide program time free to broadcasters with the understanding that the programming will be aired.  The certifications do not cover programming that the broadcaster buys (either for money or through barter – including by giving the programming supplier advertising time that the programmer can resell in exchange for the programming).  And they are not required for spot advertising buys. 

Continue Reading FCC Still Reviewing Plan to Expand Broadcasters’ Obligations to Obtain Certifications from All Program Buyers on their Connection to Foreign Governments – What is Being Proposed? 

The FCC last week released its first EEO audit notice for 2024.  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 May 6, 2024. The audit notice says that stations audited in 2022 or 2023, or whose license renewals were filed after February 1, 2022, can ask the FCC for further instructions, possibly exempting them from the audit because of the recent FCC review of their performance. 

With the release of this audit, and last year’s $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 Kansas fine, plus a recent $26,000 fine imposed on Cumulus Media for a late upload of a single EEO Annual Public File Report (see our article here), and the FCC’s recent decision to bring back 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 Issues First EEO Audit Notice for 2024 – 250 Radio and TV Stations To Have Employment Activities for the Last Two Years Reviewed