Noncommercial Broadcasting

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December is one of those months when all commercial broadcasters have at least one FCC deadline, and there are also many other filing dates of which many broadcasters need to take note.  For all commercial broadcasters, Biennial Ownership Reports are due on December 2.  Hopefully, most broadcasters have already completed this filing obligation, as FCC electronic filing systems have been known to slow as a major deadline like this comes closer.  See our article here for more on the Biennial Ownership filing requirement that applies to all commercial broadcast stations.

Noncommercial stations are not yet subject to the uniform Biennial Ownership Report deadline (though the FCC has proposed that happen in the future, see our article here, a proceeding in which a decision could come soon).  But many noncommercial stations do have ownership report deadlines on December 1, as noncommercial reports continue to be due every two years, on even anniversaries of the filing of their license renewal applications.  Noncommercial Television Stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota have to file their Biennial Ownership Reports by that date.  Noncommercial AM and FM Radio Stations in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont also have the same deadline for their Biennial Ownership Reports. 
Continue Reading December Regulatory Dates for Broadcasters – Ownership and EEO Reports, Retransmission Consent and Foreign Ownership Rulemaking Comments, Incentive Auction and Accessibility Obligations

While much of the attention paid to FM translators has recently come from their use to rebroadcast AM stations and the upcoming windows for, first, relocating existing translators to AM markets and, later, a window for new translators for AM stations (see our article here), many forget that there are still many translator applications pending from the 2003 translator window.  While thousands of translators from that window were granted in the last few years (see, e.g., our articles here and here), there are still many pending mutually exclusive applications pending at the FCC.  While the commercial applications that are pending will eventually be resolved through auctions, by law, noncommercial applicants cannot be resolved through auction.  So, yesterday, the FCC released a Public Notice which initiates the process of requiring the remaining noncommercial translator applicants to submit information about their qualifications under the FCC’s point system used to resolve mutual exclusivity between such applicants.  By December 16, 2015, remaining noncommercial applicants need to submit to the FCC, electronically, information about the number of points to which they are entitled under the FCC’s criteria.  Failing to provide that information will lead to the dismissal of the pending application.

In reviewing the notice and the attached list of pending noncommercial applicants, one notes that some of the applicants don’t appear to be noncommercial entities.  But the FCC considers a translator to be noncommercial when that translator rebroadcasts a noncommercial station, regardless of the owner of the translator.  Obviously, however, the applicant who is not itself a commercial entity will not fare well in the point system analysis – likely lacking the ability to claim that it has a local established noncommercial presence with a local board, or part of a state-wide network.  While many of these translators are proposed to be operated on commercial frequencies, applications that are awarded through the point system analysis can only be sold to another noncommercial company that qualifies for the same number of points for a period of 4 years after it begins operations, and then only for its out-of-pocket expenses.  However, the Commission does offer an opportunity to avoid being selected through the point system.
Continue Reading Closing the 2003 FM Translator Window – Mutually Exclusive Noncommercial Applications Set for Resolution by Point System Paper Hearings

In a decision released last Friday, the FCC made clear how far it is willing to go in extending to noncommercial stations leniency for fines for violations of its rules. As we have written before, the FCC changed its policy in a case in which we were involved so as to mitigate harsh penalties for first-time paperwork violations when those violations were by student-run college radio stations. So, if a noncommercial student-run station is found to have missed several years of Quarterly Issues Programs Lists or failed to timely file Biennial Ownership Reports, instead of a fine that would exceed $10,000 had a commercial broadcaster committed the same violations, the noncommercial licensee will usually be able to reach a consent decree with the FCC, reducing the fine to something like $1000 or $1500, but also including a plan to ensure compliance in the future and a requirement for periodic reports to the FCC on the success of that plan. But the FCC made clear that this policy applied only to paperwork violations, and technical operations of the station would not be covered. In a decision released on Friday, the FCC demonstrated that for technical violations, and violations that go beyond your typical paperwork issues, those fines will be higher.

In Friday’s decision, the licensee of an Atlantic City noncommercial radio station filed its license application four years late, long after the station’s license had expired. Thus, for that period, it had been operating without a license. In addition, it had not prepared Quarterly Issues Programs Lists for the entire prior license term and the current one, did not file any Biennial Ownership Reports. Finally, the station had been operating with an antenna that was more than 2 meters below where its license said that it was supposed to be. While the FCC reached a settlement with the licensee, it broke out the “civil penalty” (i.e. a fine) paid by the licensee into two parts. For the missing ownership reports and Quarterly Issues Programs lists, a penalty of $1500 was imposed for violations that would probably have cost a commercial operator many multiples of that amount (see, e.g. our article here about a $10,000 fine for a commercial operator missing Quarterly Issues Programs Lists). But the FCC also asked for an additional $4750 for the late-filed license renewal and the antenna that was several feet below where it was supposed to be. While these might also be less than what a commercial broadcaster would pay for similar violations (see fines issued today, here, here and here, of $1500 each to three broadcasters who filed renewal applications late, but still within the period before their prior licenses had expired, noting that the typical fine for such a violation was $3000, but reducing that amount because of a clean record in the past or inability to pay a higher amount), they do demonstrate that the Commission’s willingness to negotiate minimal penalties for noncommercial broadcasters does have its limits.
Continue Reading The Limits on FCC Leniency on Fines for Noncommercial Broadcast Stations

October is one of those months where the regulatory stars align, when not only do broadcasters in many states have EEO Public File report obligations, but also Quarterly Issues Programs Lists need to be placed in the public files of all commercial and noncommercial stations, and Quarterly Children’s Television Reports need to be filed at the FCC and placed in the public files of television stations.  On top of these routine obligations, there are a number of actions likely to be taken by the FCC that may affect many segments of the broadcast industry.  So let’s look at some of the specifics.

First, by October 1, EEO public file reports should be placed in the public file of stations with 5 or more full-time employees, if those stations are located in the following states and territories: Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands.  In addition to those obligations, radio stations that are part of employment units with 11 or more full-time employees and are located in the states of Florida, Puerto Rico, and the Virgin Islands must prepare and file with the FCC EEO Mid-Term Reports on FCC Form 397, submitting specifics of their employment practices in the last two years (through the submission of their Public File reports) as well as some additional information.  The Mid-Term report for those stations are due by October 1.  More information about these EEO obligations can be found in our article here.
Continue Reading October Regulatory Dates for Broadcasters – Many Routine Filings for All Broadcasters, Incentive Auction Actions, and More

A decision that noncommercial broadcasters should note was released by the Commission last week. The decision was one that upheld a 2012 consent decree where, to resolve objections against the sale of a noncommercial radio station owned by the University of San Francisco, the Media Bureau imposed a fine of $50,000 for a pre-sale LMA which paid the licensee more than the costs of the operation of the station (we wrote about that case and a similar case resolved earlier this year, here). While last week’s decision did not tread any new ground, the fact that the full Commission upheld a determination that a $50,000 fine was an appropriate sanction for a noncommercial station that entered into an LMA that paid it more than its out-of-pocket expenses reinforces the importance of assessing the consideration paid to any noncommercial broadcaster for the sale of programming time on their stations. A noncommercial station can accept funds sufficient to reimburse it for the costs of its operations during the time that the program aired, but it cannot receive more than that reimbursement in the way of compensation for programming time.

As we wrote in January following the release by the FCC of a similar decision, with a similar fine, in another case where a noncommercial licensee was paid more than its expenses by an LMA programmer, the FCC does not want noncommercial stations to be looked at as revenue generating operations for their licensees. If the station is paid for programming, any payments should simply cover station expenses. Last week’s decision looked at other issues too.
Continue Reading FCC Upholds $50,000 Penalty for Noncommercial LMA Where Licensee Paid More than its Operational Expenses

How to deal with a noncommercial radio station’s public inspection file when the station is licensed to a college and has a main studio in a restricted-access student residence hall is a question that I have received repeatedly when I have conducted sessions on FCC rules at noncommercial broadcasters’ conventions and meetings.  In a consent decree reached with a college and announced by the FCC on Friday, the FCC’s Media Bureau has suggested how this issue should be dealt with – by asking for a waiver of the Commission’s rules to allow the file to be maintained at another campus building which has access for the public during normal business hours.

In that case, the Bucknell University station had its main studio in a residence hall not open to the public, and it kept its public file at the student center, another campus building to which the public had access.  While the station posted a sign at the entrance to the residence hall where the main studio was housed that the public file was at the student center, and instructed campus security that this was where anyone who asked for the file should be directed, the college had not asked the FCC for a waiver of Section 73.3527(b)(1),  which requires that the public file of a noncommercial station be kept at the main studio of the station.  In the Consent Decree, the FCC agreed to waive the FCC rules to allow the public file to remain at the student center location, balancing the needs of the public for access to the file with the security needs of the college.  Nevertheless, the licensee made a $2200 “contribution” to the US treasury for not having previously asked for a waiver of the rules to locate the files at a location other than its main studio, and for also failing to include in its files Quarterly Issues Programs lists for several years during the license renewal term in which these issues arose.
Continue Reading The Location of the Public Inspection File of a College Radio Station When the Station’s Main Studio is in a Building Not Open to the General Public Addressed in FCC Consent Decree

The FCC has asked for comments on a rulemaking proposal that would fundamentally change the way in which LPFM stations operate – proposing that they be allowed to take commercial messages (as opposed to the current limit the they operate noncommercially, only taking underwriting announcements and other noncommercial sponsorships), allowing them to be owned by local small businesses (as opposed to the current rule that limit their ownership to nonprofit organizations), and giving them primary status (protecting them against being displaced by a subsequent move of a full-power station or the initiation of service by a new full-power FM station). The proposal also asks that the limits on ownership, which currently limit most nonprofit groups to ownership of a single LPFM, be lifted. There is also a suggestion that LPFM stations be governed by the same spacing rules that apply to FM translators, letting them locate wherever there is no predicted interference, not limiting them to locations where they meet mileage separation requirements set out by the current rules. This is a new proposal, going beyond the proposal we wrote about here to allow LPFM stations to increase power to 250 watts, on which the FCC recently took comments.

Comments on this proposal are due on August 30. The proposal is not a proposal by the FCC to adopt rules on these matters, but instead just a preliminary notice that the petition asking for these changes to the rules was filed, and asking for public comment as to whether the FCC should take any action and further pursue the proposals being made. Obviously, some broadcasters may want to comment on this proposal which would fundamentally change the nature of the LPFM service.
Continue Reading Proposal Asks that Low Power FM Stations Be Given Primary Status, and Allowed to Operate Commercially

With tomorrow’s FCC meeting to detail dates and procedures for the TV incentive auction dominating the headlines, there are other August regulatory dates that should not be overlooked. While we never can get to all of the relevant dates in our monthly highlight article, here are a few items worth your consideration. For one, we will soon be seeing details for submitting the regulatory fees that are due from all commercial broadcasters (and most other commercial entities regulated by the FCC) before the end of September. Last year, that notice came out right at the end of the month – immediately before the Labor Day weekend, somewhat later than in past years (see our article here). So be on the alert for that notice, to allow you to be ready to pay those mandatory fees before the applicable deadline.

Already, by the first of the month, commercial and noncommercial full-power and Class A television stations and all radio stations in California, Illinois, North Carolina, South Carolina, and Wisconsin that are part of an employment units with 5 or more full-time employees should have put into their public inspection files their annual EEO Public Inspection File Report, and posted those reports online so that they are accessible to visitors to their station websites. As part of the Mid-Term EEO reporting process we wrote about here, radio stations in the Carolina’s that are part of employment groups with 11 or more full-time employees should have also filed their Form 397 EEO Reports with the FCC by August 3. Noncommercial television stations in Illinois and Wisconsin should also have submitted their Biennial Ownership Reports by August 3, as should have noncommercial radio operators in both North and South Carolina and California. Details on all of these standard regulatory deadlines are available in our Broadcaster’s Regulatory Calendar, here.
Continue Reading August Regulatory Dates for Broadcasters – While Incentive Auction Dominates the News, Other Dates to Watch

In several recent cases, the FCC has denied exemptions from the requirement that programming carried on TV stations and MVPDs have closed captions to serve the hearing impaired members of the viewing audience. While exemptions from these requirements are allowed if a programmer can demonstrate that the captioning would present an economic hardship, these waivers are difficult to receive as a programmer must show that, looking at its overall operations, there are insufficient financial resources to afford the captioning for the program (see our article here). In the recent cases, the FCC has looked beyond simply the net income of the programmer in deciding if the programmer is financially capable of paying for the captioning, and in cases released yesterday, the FCC also looked at the overall assets of the programmer to see if it has the capacity to caption the program. Even if funds must be diverted from other programs of the programmer, the availability of funds to the programming organization was enough for the FCC to deny the requested exemption. Specifically, in the three recent cases, religious organizations which produced a single program claimed that, in order to caption their programs, they would have to divert resources from other programs. The FCC found that, as long as the money is there, the programs need to be captioned even if other activities of the organization suffer.

The FCC made that clear in a case decided a few weeks ago. There, it decided that, if a church had sufficient income to pay for captioning, even if it had to divert resources from other “ministries” engaged in by the church, it could not escape the obligation to caption its program. That case was relied on in another decision released yesterday, where a religious organization had been operating at a close to break-even mark over the two years for which it provided its finances, as the FCC said that it had sufficient assets to pay for the captioning – not relying solely on the income of the organization. In another case involving a larger church with greater income and expenses (which were also roughly in balance in the last two years according to the financial statements provided), the FCC there too looked to the current assets of the church (including investments in securities, bank deposits and pledges receivable). The fact that these assets were significantly in excess of current liabilities, led to a determination that captioning was financially feasible for this church. The FCC also rejected an argument that its rules placed an unconstitutional burden on religious freedom – finding that the burden was one imposed on all programmers and was not directed to religious programmers, and was therefore constitutional. So what does it take to get an exemption?
Continue Reading Church Programming Not Exempt From Captioning Requirements – FCC Looks to Total Assets of Programmer in Denying Economic Exemptions, and Decides There are No Religious Freedom Constitutional Issues