Looking for a brief explanation of the online public inspection file and Quarterly Issues Programs List, and how they will be viewed in connection with the upcoming license renewal cycle – including the potential fines for violations of the rules? The Indiana Broadcasters has just released this video of me discussing those issues available

With the June 3 filing deadline fast approaching for license renewals for radio stations in Maryland, DC, Virginia and West Virginia, stations (including FM translators and LPFMs) licensed to any community in any of those states should be beginning to prepare their applications. As we wrote here, the FCC forms should be available next week, so once May 1 rolls around, early birds in those states can start to file their renewal applications and the accompanying EEO program report. These stations should also be running their pre-filing license renewal announcements on the 1st and 16th of May. Radio stations in the next renewal group, stations in North and South Carolina, should be prepared to begin their license renewal pre-filing announcements in June – so in May they should be recording and scheduling that announcement to run for the first time on June 1 (see this article on pre-filing announcements for more information).

While May is one of those months with no other regularly scheduled regulatory filing deadlines, it is full of other FCC deadlines including comment dates in several proceedings of importance to broadcasters. In addition, broadcasters in Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, Wyoming, and the District of Columbia that are part of an Employment Unit with 5 or more full-time employees should also be preparing to add to their online public inspection file their Annual EEO Public File Report – due to be added to their files by June 1.
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The FCC yesterday released two public notices about the procedures to be used in the upcoming radio license renewal cycle. These actions were previewed by the FCC at the NAB Convention last week (see our article here). As we wrote here and here, the license renewal cycle begins with the filing of license renewal applications by stations in Maryland, the District of Columbia, Virginia and West Virginia that must be submitted by June 3 (as the June 1 deadline falls on a weekend, the deadline is extended to the next business day). Stations in these states should already be running their Pre-Filing Announcements on the 1st and 16th of the 2 months preceding the renewal filing (see our articles here and here).

The first of yesterday’s notices announces that the renewals will be filed in the FCC’s LMS database which was first used by radio broadcasters in connection with the filing of their last set of Biennial Ownership Reports. In addition to the license renewal form (now FCC Form 2100, Schedule 303-S), broadcasters will also have to submit a Broadcast Equal Employment Opportunity Program Report (LMS Form 2100, Schedule 396). The Public Notice says that the forms will be available by May 1. It also notes that, over time, other radio forms will migrate to the LMS database as the FCC leaves behind CDBS, the database that it has used for broadcasting for well over a decade.
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Questions about regulations from Washington don’t disappear just because you are spending time in Las Vegas, and this week’s NAB Convention brought discussion of many such issues. We’ll write about the discussion of antitrust issues that occurred during several sessions at the Convention in another post. But, today, we will report on news about more imminent actions on other issues pending before the FCC.

In his address to broadcasters at the conference, FCC Chairman Pai announced that the order on resolving translator interference complaints has been written and is now circulating among the Commissioners for review. The order is likely to be adopted at the FCC’s May meeting. We wrote here about the many suggestions on how to resolve complaints from full-power stations about interference from FM translators. While the Chairman did not go into detail on how the matter will be resolved, he did indicate that one proposal was likely to be adopted – that which would allow a translator that is allegedly causing interference to the regularly used signal of a full-power broadcast station to move to any open FM channel to resolve the interference. While that ability to change channels may not resolve all issues, particularly in urban areas where there is little available spectrum, it should be helpful in many other locations.
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April, as we wrote last month, begins the start of the radio license renewal process, with stations in Maryland, Virginia, West Virginia and the District of Columbia having to run on the 1st and 16th of the month public notices of the planned filing of their license renewals at the beginning of June.  As we also noted last month, April also brings a requirement that, by the 10th of the month, stations add to their online public file Quarterly Issues Programs Lists for the prior quarter, setting out the most important issues facing their communities in the prior quarter, and the programming that they aired to address those issues.  We have written about the importance of these quarterly reports to the FCC to show how you served the public interest and the fines that can be imposed at renewal time if the lists are not properly prepared and uploaded to the online public file.  So don’t forget the obligation this obligation that applies to all full-power stations (and Class A TV stations).  We expect that the FCC will be watching (and in fact already is, as evident from some of their recent warnings to stations)!

In addition, April 1 brings the obligation for radio and television stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas that are part of an Employment Unit with 5 or more full-time employees, to add to their online public inspection file their Annual EEO Public Inspection File Report.  This report documents the full-time employment openings at the station in the prior year, the recruitment sources used to fill those positions, and the non-vacancy specific outreach efforts (the menu options) that stations use to inform their community about broadcast job openings and the efforts they make to train their staffs to assume more involved roles at their stations.  TV stations in Pennsylvania and Delaware will also file with the FCC their Form 397 EEO Mid-Term Reports – likely the last mid-term reports to be filed as the FCC’s order abolishing these reports should become effective before the next such reports are due to be submitted (see our articles here and here on the FCC’s abolition of the Mid-Term Report and its continued enforcement of the EEO rules through EEO audits).
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The FCC on Friday issued a Public Notice reminding radio stations that the license renewal cycle begins in June, when all stations in Maryland, Virginia, West Virginia, and the District of Columbia are due to electronically file their license renewal applications, along with the Broadcast Equal Employment Opportunity Report on Form 396 (the 396 being required of all full-power stations, even those with fewer than 5 full-time employees). It is still unclear whether these applications will be filed using the current electronic database for radio (called CDBS), or whether the FCC will require radio stations to use the new electronic database that TV stations have been using for several years now (called LMS).

The renewal filing obligation applies to LPFMs and FM translator stations, as well as full-power stations. As we have written many times in recent months (for example here and here), after the June filing deadline for these Mid-Atlantic states, the renewal cycle moves south – with stations in the Carolinas filing by August 1. Every other month for the next 3 years, radio stations in other states will file their renewal applications. The order in which stations file is available on the FCC’s website, here. The TV renewal cycle starts one year later, beginning in June 2020.
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The FCC has once again started sending out email notices to broadcast stations that are not in compliance with their online public file obligations. This follows a set of notices sent in early December, where the FCC first warned specific stations that there were issues with their online public inspection files (see our article here). The new email notices seem to be sent to two classes of stations – those that have done nothing to their online public files, and those that have activated the files, but not uploaded their Quarterly Issues/Programs Lists to those files. Some of the new notices follow up on notices sent in December. Both sets of notices ask for reports to the FCC from the stations that received the notice of corrective actions that they have taken.

We have been warning of the FCC’s concern about incomplete or inactive online public files for some time, and the potential impact that noncompliance could have on license renewals, which start for radio stations in Maryland, Virginia, West Virginia, and the District of Columbia in June 2019, with pre-filing public announcements of those filings due to begin on April 1 (see our article here). The renewal obligation for radio moves across the country with stations in a few specific states filing every other month in this three-year renewal cycle (for more information see, for instance, our articles here and here). Clearly, this set of emails is a warning to stations that the FCC is watching their public files, and that compliance problems will bring issues, and probably fines, if the files are not complete by license renewal time. The emails that have been sent out do not target every station in noncompliance with the public file obligations – but instead seem to just be a sampling of those stations – so do not relax and assume compliance simply because you did not receive any contact from the FCC.
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March is one of those unusual months in the broadcast regulatory cycle, where there are no routine EEO public file obligations, and no quarterly filing obligations or other regularly scheduled regulatory deadlines.  That means that my tardiness in publishing this article before the start of the month did not miss anything important.  But, starting next month, there will be a whole new set of deadlines about which broadcasters need to be concerned, as April 1 is when the first pre-filing announcements for broadcast license renewals will begin, signaling the start of the 3-year long radio renewal cycle. The 3-year TV license renewal cycle will begin at the same time next year.

Radio broadcasters in Maryland, Virginia, West Virginia and the District of Columbia will be the first to file their renewal applications – and they will need to start running their “pre-filing” notices on their radio stations beginning on April 1, in anticipation of a June renewal filing (renewal applications to be filed no later than June 3, as June 1 is a Saturday).  The FCC has posted a helpful guide to the times that these notices need to run, and a model for the text of these notices, here (although the model text is now outdated, in that it does not acknowledge that stations now have online public files; the FCC has a pending proceeding to modify these public notices that one would hope would be resolved soon – see our articles here and here for details).  Stations in the Carolinas begin their pre-filing announcements two months later, with stations in other states to follow at 2-month intervals after that.  The schedule for renewals is on the FCC website here, and the pre-filing announcements begin two months before the renewal-filing deadline.
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On Friday, the FCC issued its first EEO audit of almost 300 radio and TV stations across the country (see the model audit letter and list of stations affected here), the day after announcing its intent to abolish the Form 397 EEO Mid-Term Report (see our articles here and here).  In the Order announcing the forthcoming abolition of the Mid-Term Report, the FCC also noted its intent to being a proceeding in the next 90 days to reexamine the effectiveness of its EEO program – signaling that EEO remains a priority of the FCC and that this audit should be taken very seriously.  While the FCC each year promises to audit 5% of all full-power broadcast stations, and this audit is likely but the first of a number of EEO audits for the coming year, this upcoming review of the effectiveness of the FCC’s EEO process highlights the continued importance of EEO enforcement to the FCC.

The response to the audit must be completed by April 1.  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 anywhere, at any time, as long as they have an internet connection.  The upcoming license renewal cycle adds to the importance of this audit, as a broadcaster does not want a recent compliance issue to headline the record the FCC will be reviewing with its license renewal (see our article here about the upcoming license renewal cycle).  The audit requires that the broadcaster submit their last two EEO Public File Reports (which should already be in the online public file) and backing data to support all of the outreach efforts listed on those public file reports.  Broadcasters subject to the audit should carefully review the audit letter to see the details of the filing.
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The FCC at its meeting yesterday adopted the two broadcast items that it was expected to consider (see our article on the agenda here) – one agreeing to eliminate the FCC Form 397 EEO Mid-Term Report and a second starting a proceeding to reexamine certain aspects of the criteria used to select the applications to be granted for new Noncommercial Educational radio and television and LPFM stations. We wrote about the draft order to abolish the Form 397 here, and the draft Notice of Proposed Rulemaking on the noncommercial criteria here. We will post the final orders in these proceedings here when the FCC releases them – quite possibly later today (Update, 2/15/2019, 1:50 PM EST – the text of the NCE/LPFM NPRM is now available here; Update 2:30 PM EST – the text of the order that will eliminate the Form 397 is now available here).

The elimination of the Form 397 does not become effective immediately as it still needs to be published in the Federal Register and undergo Paperwork Reduction Act review. So TV stations in the northeast, who are due to file their mid-term reports in the coming months, will continue to have this obligation. The change will have no practical effect for more than 4 years, until the first mid-term after the upcoming license renewal cycle hits in June 2023 (see our article here on the start of the radio license renewal cycle in June 2019). The elimination of this report also does not have any substantive effect on the obligations of full-power broadcasters who are part of employment units with 5 or more full-time employees to widely dissemination information about their job openings and to engage in community outreach efforts (even if they have no job openings) to educate the public about employment opportunities in broadcasting and to train existing employees for more advanced positions. So this really is just the elimination of a paperwork burden.
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