Low Power Television/Class A TV

In a flurry of actions in the last week, the FCC has acted to assist LPTV stations and TV translators displaced by the TV incentive auction.   It also adopted rules to assist FM stations (including FM translators and Low Power FM stations) that were adversely affected by tower work caused by the incentive auction on the towers they share with TV stations. At the FCC meeting last week, the FCC issued its Report and Order agreeing to reimburse LPTV and TV translator stations for the expenses that they incur in changing channels to accommodate the shrinking of the TV band and the repacking of primary TV stations, as long as those expenses were not reimbursed by other parties (certain wireless carriers have reportedly reimbursed some of these stations for moving quickly to vacate their old channels). FM stations will also be reimbursed for their expenses incurred by tower work by TV stations involved in the repacking that displaced the FM station’s operations. The FCC did not adopt proposals for only partial reimbursement of expenses dependent on the length of displacement (see our article here for more on what those proposals were) – good news for FMs affected by these changes.

The FCC subsequently released a catalog of the types of expenses that would be reimbursed, with estimates for the expected range of those expenses. While displaced stations can seek reimbursement for other expenses that were incurred as a direct result of the incentive auction (excluding any reimbursement for lost sales or employee time), and for expenses that proved to be greater than the FCC’s expectations, the station seeking such reimbursement will need to prove that the expenditures were reasonable and justified. As noted in the Public Notice accompanying the catalog of reimbursable expenses, the FCC will be, at a later date, announcing when eligible stations can start filing for reimbursement. So if you are expecting reimbursement, watch for that notice.
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At its March 15 meeting, the FCC is scheduled to consider two items dealing with broadcasters, according to a blog post authored by Chairman Pai published yesterday. The first item to be considered deals with LPTV stations and TV translators, as well FM broadcasters – setting out the rules for reimbursement to be paid

The FCC on Tuesday released a Public Notice announcing a settlement window for mutually exclusive applicants in the Special Displacement Window (about which we wrote here and here) where LPTV stations and TV translators displaced by the incentive auction (either because they operated on channels above 37 that will no longer be used for television in the compacted TV band, or because some full-power or Class A TV station that had to move to accommodate the smaller TV band was put onto a channel that interferes with their current operations). When two or more applicants filed in the displacement window for channels that cannot co-exist without causing each other destructive interference, they are considered to be mutually exclusive, and are covered by this window.  Appendix A of the public notice lists displacement applications that are mutually exclusive.

The public notice advises that parties with mutually exclusive applications may resolve their mutual exclusivity by an engineering amendment to resolve the mutual exclusivity or through a legal settlement filed between October 30, 2018 and 11:59 pm EST on January 10, 2019.  Absent settlement, the mutually exclusive displacement applications will go to auction after the close of the settlement period.
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November is perhaps the month with the lightest schedule of routine FCC regulatory filing obligations – with no requirements for EEO Public File Reports, Quarterly Issues Programs or Children’s Television Reports. Nor are there other routine obligations that come up in the course of any year, though during November of 2019, broadcasters will be preparing for next year’s December 1 Biennial Ownership Report deadline. So does that mean that there are no dates of interest this month for broadcasters? As always, there are always a few dates of which you need to keep track.

The one November date applicable to all broadcasters is the requirement for the filing of ETRS Form Three, which gives a detailed analysis of the results of the nationwide EAS test conducted on October 3. Stations should have filed Form Two on the day of the test reporting whether or not the test was received. They now need to follow up with the more detailed Form Three report by November 19. See our article here for more information.
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The FCC yesterday released a Public Notice asking for comments on a “Catalog of Expenses” that would be reimbursed to licensees of LPTV and TV translator stations, as well as FM broadcasters, who are impacted by the repacking of the TV spectrum following the TV incentive auction. We wrote here about the FCC’s

While September is one of those months with neither EEO reports nor Quarterly Issues Programs or Children’s Television Reports, that does not mean that there are no regulatory matters of importance to broadcasters. Quite the contrary – as there are many deadlines to which broadcasters should be paying attention. The one regulatory obligation that in recent years has come to regularly fall in September is the requirement for commercial broadcasters to pay their regulatory fees – the fees that they pay to the US Treasury to reimburse the government for the costs of the FCC’s operations. We don’t know the specific window for filing those fees yet, nor do we know the exact amount of the fees. But we do know that the FCC will require that the fees be paid before the October 1 start of the next fiscal year, so be on the alert for the announcement of the filing deadline which should be released any day now.

September 20 brings the next Nationwide Test of the EAS system, and the obligations to submit information about that test to the FCC. As we have written before (here and here), the first of those forms, ETRS Form One, providing basic information about each station’s EAS status is due today, August 27. Form Two is due the day of the test – reporting as to whether or not the alert was received and transmitted. More detailed information about a station’s participation in the test is due by November 5 with the filing of ETRS Form Three. Also on the EAS front, comments are due by September 10 on the FCC’s proposal to require stations to report on any false or inaccurate EAS reports originated from their stations. See our articles here and here.
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In Monday’s Federal Register, publication is scheduled for the FCC’s Notice of Proposed Rulemaking on reimbursing LPTV stations, TV translators and FM radio stations (both full-power and FM translator stations) for costs they incur because of the TV incentive auction and the resulting repacking of the TV spectrum. The publication in the Federal Register means that comments on the FCC proposals are due September 26, and reply comments on October 26.

The FCC’s Notice of Proposed Rulemaking proposes reimbursing the costs of LPTV stations and TV translators (including Digital Replacement Translators) for moving to new channels. These channel moves were required either because of the contraction of the TV band after the auction (requiring that TV channels above 37 be cleared of TV users so that the upper channels can be repurposed for wireless users) or because these secondary stations operate on channels on which full power stations were relocated as the FCC shuffled channels to fit all remaining full-power and Class A stations into the smaller TV band. Radio stations operations may be disrupted by the repacking principally when those stations operate on a tower used by TV stations. Radio stations either may have to relocate their antennas, either permanently or temporarily, to another tower (or elsewhere on the existing tower) to accommodate the installation of a new TV antenna or other work on the TV stations on the tower. What does the FCC propose?
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It may be time for summer vacations, but the FCC seemingly never rests, so there are a number of important dates of which broadcasters need to take note. By August 1, EEO Annual Public File Reports are due to added to the public files of Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in California, Illinois, North Carolina, South Carolina, and Wisconsin, if those stations are part of an Employment Unit with five or more full-time employees. TV stations in California have the added requirement that they submit an EEO Mid-Term Report with the FCC by that same date. While the FCC last year simplified EEO recruiting, it still enforces the EEO rules, as evidenced by an admonition that was issued to a TV station at the end of last week, and the fines imposed on radio stations late last year. So don’t forget these obligations (especially as the enforcement of these rules will soon be handled by the FCC’s Enforcement Bureau, rather than the Media Bureau, suggesting that there will be more enforcement of those rules – see our article here).

On other matters, there are numerous open FCC proceedings in which broadcasters may want to participate. Comments are due on August 6 on the FCC’s rulemaking proposal to adopt simplified rules for processing complaints of interference by FM translators to full power stations. See our articles here and here for details on that proposal.
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The FCC recently released a Public Notice reminding all EAS participants that they need to file ETRS Form One by August 27, 2018. This form needs to be filed by all radio and TV stations, including LPFM and LPTV stations (unless those LPTV stations simply act as a translator for another station). While the