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September is one of those unusual months, where there are no regular filing dates for EEO public inspection file reports, quarterly issues programs lists or children’s television reports.  With the unusual start to the month with Labor Day being so late, and the lack of routine deadlines, we didn’t get our usual monthly highlights of upcoming regulatory dates posted as the month began.  While we didn’t do it early, we actually have not missed the many regulatory deadlines and important dates about which broadcasters need to take note this month.

Several are of particular importance for virtually all broadcasters.  As we wrote here and here, Annual Regulatory Fees for all commercial broadcasters are due by September 27.  Any commercial broadcaster that cumulatively owes more than $500 must file its fees by that date – and the fee filing system is already open.  Note that most noncommercial entities are excused from fee filings.
Continue Reading September Regulatory Dates for Broadcasters: EAS Test, Reg Fees, Lowest Unit Rates, Incentive Auction Stage 2

While TV broadcasters can enjoy an incentive auction respite in July as attention shifts to the “forward auction” where we will see whether wireless carriers come up with enough money to fund the $86,422,558,704 (plus $1.75 billion for repacking costs, plus auction-related administrative costs) needed for the buyout of TV stations who agreed to surrender their spectrum, radio broadcasters will get some of their own attention as, at the end of the month, the second window for the filing of 250-mile waiver applications opens for Class A and B AM stations. We wrote about these waivers here, which allow an AM licensee to acquire an FM translator and file an application to move it up to 250 miles and operate it on any commercial frequency that does not create interference in their market. That window for Class A and B AM stations opens July 29 and runs through October 31 (and remains open for any other AM that has not already filed one of these waivers in the first window which opened back in January).

In addition to the AM window, there are routine filing deadlines for all TV stations – required to file their FCC Form 398 Children’s Television Reports by the 11th of the month (because the 10th of July is a Sunday) demonstrating the educational and informational programming they broadcast directed to children. By the 10th television stations also need to upload information into their online public files to demonstrate compliance with the limits on commercial time in children’s programs.
Continue Reading July Regulatory Dates for Broadcasters – FM Translators for Class A and B AMs; Quarterly Issue Programs and Children’s Television Reports; Comments on EAS, Letters from the Public and Regulatory Fees, Cable Royalty Claims; and More

SoundExchange last week filed an appeal of the Copyright Royalty Board’s decision on webcasting royalties (a decision which we summarized here and here), as reported by a number of trade press articles. Most of these press reports did not note that this was not the only appeal filed. At least two other parties, IBS (Intercollegiate Broadcasting System – representing college and high school broadcasters) and the NRB-NMLC (National Religious Broadcasters Noncommercial Music License Committee – representing noncommercial religious broadcasters) also filed notices of appeal. So what is next now that these appeals have been filed?

The Notices of Appeal that were just submitted to the US Court of Appeals are just “notice” documents – filed to give notice to the other parties, the CRB and the court that these parties will pursue an appeal as they think that the CRB decision was not justified. No detail as to the substance of the appeal need be submitted at this time. Those details will be advanced when the parties file briefs setting out the specifics of their arguments challenging the CRB decision. The exact date for the submission of those briefs won’t be set for months, when the case makes its way onto the Courts docketing schedule. So don’t expect briefs to be filed until the Fall, with an oral argument before the Court to follow. The arguments are simply ones where lawyers for the parties get up before a three-judge panel and make brief presentations about the legal issues involved in the case (and answer the questions of the Judges). No new evidence is taken – at this point the proceeding is just one between lawyers, arguing as to whether the CRB decision was justified. What does the Court review?
Continue Reading Appeals Filed of Copyright Royalty Board Decision on Webcasting Royalties – What’s Next?

Yesterday, the FCC announced its agenda for its May open meeting to be held on May 25. Among the items on the agenda is a proposal to adopt a Notice of Proposed Rulemaking looking to abolish the obligation that broadcasters maintain in their public files copies of letters and emails from the general public about station operations. These letters are the last vestige of the physical public file for TV broadcasters who several years ago migrated the rest of their public file to an online system maintained by the FCC (see our summary of the TV online public file obligations here). The letters from the public were deemed too sensitive to put online, as they could reveal private information about the writers of those letters. Thus TV stations must still maintain a paper file at their main studio. Radio broadcasters too will soon be moving their public files online. In the order adopting the requirement for an online public file for radio (see our summary here), the FCC proposed that the same paper system for letters from the public be maintained. However, it did note that there were calls to abandon entirely the requirement to maintain these letters in a separate file, and promised to initiate this rulemaking to look at that issue.

Commissioner O’Rielly has been a major proponent of that change, tying the issue to one of the security of broadcast stations and personnel. In his concurring statement to the Online Public File order, he noted that the abolition of the requirement that broadcasters maintain these letters from the public would eliminate the need for many broadcasters to open their stations to all comers who enter on the pretext of inspecting the public file. In a blog post, he noted the need for security at broadcast stations. The recent events at Sinclair’s Baltimore TV station, where an individual with emotional or mental issues triggered a police shoot-out at the station, and last year’s tragedy involving the Roanoke TV crew, highlighted the very real threats to safety that broadcasters face every day. Minimizing these threats by removing one pretext for people to enter broadcast studios unchallenged is an important consideration in these deliberations.
Continue Reading FCC To Consider Abolition of Requirement that Broadcasters Maintain Letters From the Public in their Public Files – Moving Toward the End of the Physical Public File?

There were several recent FCC decisions on application processing matters worthy of note. One deals with the processing of commercial applications for FM stations or FM translators that are involved in an auction to resolve disputes, the others with the processing of noncommercial applications (in this case for LPFM stations). None break new ground – but instead they reinforce earlier decisions that some who have been around the broadcast industry had found surprising, so these decisions are worth noting. The commercial case involved the question of whether an applicant needs to receive “reasonable assurance of transmitter site availability” before specifying a transmitter site after a broadcast auction. The noncommercial cases deals with the dismissal of an application because of a change in the control of its board of directors while the application was pending.

The commercial case involved the application for a new FM translator in New Jersey, where a local broadcaster filed a petition asking that the translator application be denied as the applicant had never received permission to specify the tower site, owned by the petitioner, in the “long-form” application filed by the applicant after the applicant prevailed in an auction. After the petition was filed, the applicant amended his application to specify another transmitter site. But, under an old line of cases, the failure to have “reasonable assurance” of a transmitter site was fatal to an application and could not be corrected by a later amendment to an available site. In this week’s decision, the FCC reiterated a decision that it made a few years ago (see, for instance, our article here) concluding that, where an application is granted as a result of an auction, the applicant need not have “reasonable assurance” of its transmitter site at the time it files its “long-form” application (the application that specifies the technical details of the facilities that the applicant intends to use to operate its station).
Continue Reading FCC Application Processing Decisions – No Reasonable Transmitter Site Assurance Necessary for Auction Applications, Change in Control of Nonprofit Governing Board Fatal to Pending Applications

The “performing rights organizations” – ASCAP, BMI and SESAC – don’t get as much attention in these pages as do the royalties paid to SoundExchange for the use of “sound recordings.” The PROs collect for the public performance of the “musical work” or the musical composition – the words and music of a…

A Washington Post article published this weekend was titled “Is there anything you can’t say on TV anymore? It’s complicated.” And, it really is. The Post article presents a very good overview on the status of the FCC’s indecency rules. What will happen with those rules has been a matter of conjecture for several years, ever since the Supreme Court threw out the fines that the FCC had imposed for fleeting expletives that had slipped out in the Golden Globes and other awards programs, a case that also had the effect of negating that other fine for a “slip,” the notorious Janet Jackson clothing malfunction during her Super Bowl performance. Other than a well-publicized $325,000 fine on a Roanoke TV station for a short but very explicit image that slipped into the corner of a news report on a porn star turned first responder (see our article here on the Roanoke case), the FCC has been largely quiet on the indecency front since it launched a post-Supreme court proceeding to determine how they should amend their rules in light of the Court’s decision (see our summary here).

As we wrote when comments were filed in that proceeding, it drew much attention, with many commenters fearing that the FCC would back away from all indecency regulation on broadcast TV. In an election year like this one, don’t expect in the near future to see any definitive answers as to what is indecent and what is not. Neither political party wants to be tagged with being pro-smut by one side of the political spectrum, or anti-First Amendment expression by the other. But the Post article raises other very interesting questions about the difference in legal treatment between cable and broadcast programming, especially when so many viewers hooked up to some cable or satellite service don’t really understand the difference between cable network programming and that from broadcast sources.
Continue Reading Looking at the FCC’s Indecency Rules – Does Anyone Know What’s Prohibited and What’s Permitted?

The changes in the FCC’s rules for Biennial Ownership Reports on FCC Form 323 were today published in the Federal Register. That publication starts the 30 day clock for petitions for reconsideration or requests for appeal of that decision. We summarized the changes in the requirements here – changes that include putting noncommercial stations on the same schedule as commercial stations (filing on December 1 of odd-numbered years) and requiring that all licensees obtain, for every person or entity with an attributable interest, an FCC Registration Number (an “FRN”). To get an FRN, the licensee must either submit the Social Security number (“SSN”) of the person with an attributable interest (or the Taxpayer ID number if the interest holder is not an individual) or the last four digits of the SSN plus other identifying information (their full name, residence address and date of birth). The requirement for an FRN has triggered concern among many broadcasters, particularly those where licenses are held by a college or university.

Why? Some licensees fear that, even though the personal information necessary to get an FRN will not be made public, the submission of that information to the FCC may still somehow compromise the security or privacy of individuals with attributable interests. While the FCC assured licensees in its order that these concerns are overblown as the Commission says that it maintains information with a high level of security, there are still doubters. Nevertheless, the FCC has required that the FRN be obtained for all attributable interest holders, and threatened to take enforcement action against interest holders who refuse to comply. The FCC also identified for whom the information needs to be provided.
Continue Reading Appeal Date Set for Changes in FCC Rules for Biennial Ownership Reports – Why Many College and University Licensees are Concerned

April brings the whole panoply of routine regulatory dates – from the need to prepare EEO Public File and Noncommercial Ownership Reports in some states, to Quarterly Issues Programs lists for all full-power broadcast stations and Quarterly Children’s Television Programming Reports for all TV stations.  So let’s look at some of the specific dates that broadcasters need to remember this coming month.

On the first of the month, EEO Public Inspection File Reports should be placed in the Public Inspection files of all stations in employment units with five or more full-time employees in the following states: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee and Texas.  In addition, EEO Mid-Term Reports on FCC Form 397 need to be submitted to the FCC by radio stations that are part of employment units of 11 or more full-time employees in Kentucky, Tennessee and Indiana.  For more on the EEO Mid Term Report, see our article here.
Continue Reading April Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists and Children’s Television Reports and Much More

The FCC yesterday released an order fining a public broadcaster $10,000 for failing to prepare and place in its public file 13 consecutive quarterly issues programs lists. The licensee had pleaded that the radio station fine should be reduced given that the public file failure began when it acquired the station from a local…