Noncommercial Broadcasting

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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…

In an order released last month which has not received much attention, the FCC clarified its requirements for the filing of Biennial Ownership Reports. Much of the order deals with fixes to the report itself that will, for the most part, make the completion of the report administratively easier in terms of the physical data that needs to be entered into the form. However, certain new information-collection requirements call for broadcasters – both commercial and noncommercial – to start gathering information now from their attributable owners, including members of their governing boards, in order to enable the completion of the forms when they are next due to be filed, on December 1, 2017. We earlier wrote here about the FCC’s proposals in this proceeding (including the dazzling use of acronyms for various kinds of identification numbers assigned to attributable owners).

One of the principal purposes of the Biennial Ownership Reports is to gather information about the ownership and control of broadcast stations that will allow the FCC to slice and dice that information to use it to make decisions about issues like minority ownership in broadcasting and the concentration of broadcast ownership and control. Thus, the Biennial Reports gather information about race and gender of those with attributable interests in broadcast stations, and also about the interests those interest holders have in other stations. As we have written before, there have been complaints from some who have tried to analyze the information collected in the Biennial Reports that the data cannot be easily manipulated, particularly to track the ownership and control of individuals across multiple companies. Partially, this was attributed by the FCC to the failure of applicants to be able to get from all of their attributable owners information necessary to obtain an FRN (FCC Registration Number). That FRN was to be used to uniquely identify each holder of an attributable interest and track those individuals or entities through all of their media interests. In the past, there had been concerns that some interest holders were reluctant to provide the information necessary to get an FRN. The FCC has tried to remedy some of those concerns, and backed up their remedy with a suggestion that they will sanction interest holders who fail to provide the required information.
Continue Reading FCC Order on Biennial Ownership Requirements – All Broadcasters, Commercial and Noncommercial, Need to Start Collecting Information from Attributable Owners and Directors for Next Year’s Filing

In a decision released earlier this week, the FCC dismissed an application for a new noncommercial FM station based on a change in the majority of the applicant’s board of directors within a one-year period after the application was filed.  The change was deemed a major change in ownership, which the FCC rules says requires the assignment of a new file number – essentially meaning that the application is treated as a new application received after the filing window for the new FM stations was closed and was therefore dismissed.  The decision was one made by the full Commission which reversed a decision of its Media Bureau.  The Bureau had granted the application following a settlement with other mutually exclusive applications. The full Commission decision to instead dismiss the application was not made without some angst, as two of the Commissioners concurred in the decision but urged the FCC to change its rules before the next noncommercial filing window to avoid a similar result in the future.  But the decision does raise some questions about just what constitutes a change in control of a noncommercial broadcaster.

In this decision, the FCC found that two changes in the majority of the members of the board of directors of the applicant, where a majority of the board members changed in a period of less than one year, constituted a major change in ownership of the applicant requiring the assignment of a new file number to the application and its dismissal.  The decision contrasted this case with those of other noncommercial applicants in another new application filing window.  In that other window, the FCC granted blanket waivers of the major change rule to applicants that had a change in a majority of their boards over a much longer period of time while their applications slowly made their way through the Commission’s processes.  It was the difference between the relatively sudden changes in ownership in less than a year in the case decided this week as opposed to the more gradual changes in the other cases that seemed to make the difference in the outcome.  But the two Commissioners who separately commented on the case asked if this distinction really should make any difference, especially as the changes did not appear to be the result of any takeover of the organization, but instead were merely changes that occurred in the normal course of operation for this volunteer organization.
Continue Reading Changes in the Board of Nonprofit Corporation Doom FCC Application for New FM Station – Addressing Control Issues in Noncommercial Broadcasting

Last week, we wrote about the FCC’s decision to require that radio stations move their public inspection files online.  Commercial stations with 5 or more full-time employees that are located in Top 50 markets need to make the transition to the online file later this year once the FCC gets its new rules approved by the Office of Management and Budget following a Paperwork Reduction Act review.  Other radio stations will need to come into compliance, unless they get a waiver of the new rules, by March 1, 2018.  Our initial article about the decision was based on the FCC’s press release on the decision and comments made at the FCC meeting at which the obligation was adopted.  The FCC has now released the full-text of the decision (available here) and that order contains many new nuggets of information about the new obligations about which stations need to be aware.

The text of the decision does a good job of summarizing the obligations of radio broadcaster’s current public inspection file obligations (as well as those of the other entities that were also addressed by the new rule – cable systems, DBS operators, and Sirius XM for their satellite radio service).  For each of these services, the FCC addressed a number of issues.  Some of the radio questions addressed by the order include those set forth below.
Continue Reading FCC Releases Order on Online Public Inspection File – Answering Questions about Compliance with Radio’s New Obligations