License Renewal

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Just a reminder to broadcast stations in certain states of several upcoming October obligations.  First up, October 3rd is the deadline for Radio Stations in Florida, Puerto Rico, and the U.S. Virgin Islands to file their FCC Form 303-S license renewal applications seeking a renewal of their broadcast licenses.  (See our earlier license renewal advisory here.)  Accordingly…

Just a reminder to broadcast stations in certain states of several upcoming August 1st obligations.  Specifically, on Aug. 1, radio stations in certain states must commence pre-filing or post-filing announcements (depending on the state in which they are located) in connection with the license renewal cycle.  In addition, Annual EEO Public File Reports must be prepared and placed in…

In March, we cautioned broadcasters against the airing of ads for medical marijuana.  Our concerns stemmed not only from a complaint pending at the FCC, but also because, despite the widespread belief that the Federal government no longer cared about medical marijuana use and sale, the Department of Justice had only said that prosecution was no longer a priority, not that it was no longer illegal.  In recent months, our concerns seem more and more justified.  We had worried about some local Federal prosecutor deciding that he or she had time to prosecute offenses, even though DOJ headquarters did not think it to be a priority.  But, based on press reports and DOJ’s own press releases, it looks like there has been at least some rethinking of the policies in Washington, DC as well.  The DOJ appears to be backtracking on medical marijuana, now saying only that it won’t prosecute individuals who use medical marijuana, but that dispensaries, even if set up under the color of state laws, are still illegal under Federal law and subject to Federal prosecution.  Thus, broadcasters, as Federal licensees, need to exercise extreme care in advertising such dispensaries.

In the last few days, NPR has broadcast stories about the Department of Justice writing letters to authorities in Rhode Island and Arizona, in both cases saying that the Federal government still considers the sale of marijuana, even medical marijuana, to be a Federal felony subject to prosecution.  Both states are now reconsidering their laws that would otherwise allow for the operation of medical marijuana dispensaries.  The DOJ, on its website, cites a US Attorney in Washington State who has written to the landlords of medical marijuana dispensaries, warning them of the penalties that they may face if they allow these dispensaries to continue to operate, going so far as to warn them that they may face the forfeiture of their property to the government as it is being used to distribute prohibited drugs.  As this letter states, “We intend to use the full extent of our legal remedies to enforce the law.”  This language should serve as a warning to broadcasters of the Federal government’s attitude toward marijuana dispensaries.Continue Reading More Concerns About The Broadcast of Medical Marijuana Ads

Just a reminder that radio stations in North Carolina and South Carolina are up next in the license renewal cycle, which means that pre-filing announcements for radio stations in these states must start on June 1st.  The announcements continue on June 16, July 1, and July 16, for a total of four pre-filing announcements. …

The FCC has issued a flurry of fines against broadcast stations in the past week or two.  While a number of these fines were for the operation of unlicensed pirate radio stations, several of the fines were for public inspection file violations, stations broadcasting with excessive power or failing to reduce power at nighttime, or…

With the kick-off of the FCC’s broadcast license renewal cycle comes some additional obligations for licensees, this time in the form of an FCC Form 396 Broadcast EEO Report.  The Form 396 is filed only at renewal time and serves to: 1.) confirm the licensee’s commitment to EEO, 2.) provide a narrative statement about how the station…

In less than a month, a four year cycle of radio and television license renewal applications begins with the filing, on or before June 1, of license renewals by radio stations in Maryland, Virginia, West Virginia and the District of Columbia.  To help stations prepare for their upcoming renewals, I conducted a webinar, sponsored by the Michigan Association of Broadcasters and joined by broadcasters from 9 other state associations, discussing issues that broadcasters should be considering.   Slides from that presentation, setting out the renewal process, and various issues that should be considered by broadcasters, including: public file issues, technical matters, EEO and other nondiscrimination matters.  Copies of the slides used in the presentation are available here.

In addition to those slides, we have many other resources available for a broadcaster thinking about their license renewal application.  These include the following:

  • A primer on the issues to be considered in preparing for license renewal, available here.  In that memo, there are links to the texts of the required pre-filing and post-filing announcements that broadcasters must air to inform their listeners about the filing of the renewal application
  • A memo that sets out the materials that should be kept in a commercial station’s public file, and the retention period for those materials, here.
  • A memo generally describing the requirements of the FCC’s EEO rules, here, and a second memo, reminding broadcasters of their yearly EEO public file report obligations, a sample of which is here.  Remember, FCC Form 396 report must be filed with the license renewal application, and that form requires the submission of the station’s last two years public inspection file reports
  • An advisory, here, summarizing the requirements for a station’s quarterly programs issues lists.
  • Recent blog entries on the FCC’s requirement for a nondiscrimination certification in their advertising contracts, here and here.

FCC Sources of information for the renewal filing are also available.  A version of the FCC Form 303S – the license renewal form – can be viewed here.  The form contains a good set of instructions as to what information the FCC is seeking from licensees.  The FCC also has its own webpage on license renewal, here.  Dates for radio license renewals are available here, and the dates for TV renewals are here.Continue Reading Getting Ready for License Renewal – Slides and More Information from State Broadcast Associations’ Webcast

Last week, we wrote about the new requirement for a nondiscrimination clause in all broadcast advertising contracts.  In the new license renewal applications, broadcasters must certify that they do not discriminate in the sale of advertising time and that their contracts contain the required certification.  Today, the Enforcement Bureau of the FCC issued an Enforcement Advisory, answering questions about the new requirement.  Unfortunately, that advisory really does little but reiterate what the FCC has already said – that the Commission is concerned about "No Urban, no Spanish dictates", and that broadcasters must make sure that there is no discrimination in the purchase of advertising time on their stations.  But, the Commission does make clear in an accompanying News Release, through a statement from Chairman Genachowski, that the Commission "will vigorously enforce its rules against discrimination in advertising sales contracts."  The advisory does highlight one new matter – that stations that use advertising rep firms or other sales agents must make sure that these agents have nondiscrimination clauses in their own contracts used to sell advertising time on the station. 

This policy has raised several questions from broadcasters.  Many have asked what they should do if they have no advertising contracts.  Apparently, many broadcasters, especially in smaller markets or when dealing with regular customers, book advertising through emails or phone calls – not formal contracts.  The FCC does not address how this should be handled.  We’ve suggested that broadcasters include the nondiscrimination clause in the exchanges that essentially form the contract – e.g. the email confirming the schedule, the rate cards offering the spots for sale, or other communications between the station and the advertiser.  We also suggest that stations adopt written contracts, as these contracts can cover issues that are important to broadcasters, e.g. indemnifications from advertisers that they have the rights to all the music and other material used in their ads, statements that the broadcaster reserves the right to preempt ads if they don’t like the content or if the broadcaster needs to run something more important, that advertising sold to one party should not be re-sold to anyone else, that the broadcaster is not liable for any consequential damages if an ad does not run for technical or other reasons, and similar issues.Continue Reading FCC Issues Advisory on Nondiscrimination Clause Required to Be Included in All Broadcast Advertising Contracts – What Should the Clause Say? – Why An Advertising Contract is Important

The FCC today released a Public Notice announcing new provisions in its license renewal Form 303S – the form that radio and television stations will be using to file license renewal applications, starting with license renewals for radio stations in DC, Virginia and West Virginia in June.  The Notice addressed several changes in the license renewal form – including the addition of certifications concerning whether a station was off the air at any point during the license term for a period of more than 30 days, whether principals of the licensee have interests in daily newspapers in the same area, and whether the station is in compliance with the RF radiation rules.  Two other issues of note were raised in the Public Notice – one dealing with stations that have not received a license renewal from the last license cycle, and one dealing with the newly required certification that stations must make – that their advertising contracts contain a nondiscrimination provision to assure that advertisers are not purchasing advertising on the station for a discriminatory purpose. 

We’ve written about the advertising anti-discrimination certification before, suggesting language that stations include in their contracts.  What is new in today’s notice is that the FCC has clarified that the certification only covers the period from today’s notice until the filing of the license renewal application.  So stations that do not have such certifications can still get them into their contracts now to avoid certification issues later.  In our previous articles on this subject, we’ve noted that this is a confusing requirement, and that even its supporters have urged the FCC to clarify it. Today’s Notice only says that stations must avoid advertising purchases made on the basis of "no urban, no Spanish" dictates, but does not go any further in interpreting the requirements of this policy. Continue Reading FCC Clarifies Requirement for Antidiscrimination Clause in Advertising Contracts – And Sets Out Other License Renewal Changes

As the next broadcast license renewal cycle is about to begin in June (see our post here about that process), the last renewal cycle still has not ended despite the fact that the last renewal application due in that cycle was to have been submitted almost 5 years ago. At the NAB State Leadership Conference held in Washington, DC yesterday, FCC Commissioner Robert McDowell provided statistics about the hundreds of renewals still pending – principally due to indecency complaints against the stations. The FCC will not grant a license renewal application when there is an indecency complaint pending, as the grant of the renewal could preclude the FCC from taking action against the licensee on the complaints filed before the renewal grant. But with indecency enforcement in a holding pattern pending the final resolution of the pending court cases challenging the FCC’s renewal policy (with no immediate end in sight to the uncertainty that surrounds that policy), these renewals are still in limbo. The Commissioner did, however, provide some good news on the indecency front, noting that the Enforcement Bureau had started weeding through all of the pending complaints, dismissing those that were clearly without merit.

The dismissal of indecency complaints that were without merit is a seemingly small, but nevertheless significant, step in weeding out the backlog of renewal applications. The Enforcement Bureau has traditionally not looked deeply into the merits of each of the pending indecency complaints while the Court challenges to the policy were pending, presumably to avoid a waste of resources were the standards to change based on the Court review. But that avoided weeding out some clearly meritless complaints – ones that complained of content that was broadcast during the 10 PM to 6 AM indecency safe harbor, or complaints that were focused on issues that were not prohibited under the FCC’s policy and precedent – such as complaints that really centered on violence, or ones that dealt with innuendo rather than the use of prohibited words or the depiction of prohibited body parts. Up until now, except when there was a sale of a station pending, there was no pressing reason for the FCC to dispose of the complaints. Stations continued to operate, and the pending complaints had little day to day impact.  But, with the renewal cycle soon to begin again, the resolution of these issues takes on some urgency.Continue Reading As License Renewal Cycle Approaches – Dealing With Last Cycle’s Applications Held Up By Indecency Complaints