Noncommercial Broadcasting

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Section 399b of the Communications Act bans advertising for for-profit companies, as well as political and issue advertising, on noncommercial radio and television stations.  While Congress over 20 years ago loosened some restrictions on fundraising by allowing paid ads by nonprofit groups on noncommercial stations, and permitting commercial entities to provide some minimal information about their businesses (including their logos) on sponsorship underwriting on public TV, the ban has otherwise prohibited commercial and political ads containing qualitative claims, price information or calls to action.  In a recent decision, the US Court of Appeals for the Ninth Circuit affirmed a decision of a California District Court upholding the constitutionality of that ban against a challenge by a noncommercial TV station operator who contended that the rule was an unconstitutional abridgement of the First Amendment.  The case is particularly interesting not just for the analysis by the Court in upholding the ban, but perhaps more so for the dissenting opinion of the Court’s Chief Judge, who found that the Court’s analysis ignored modern realities of the broadcast world in adopting a reduced standard of First Amendment protection for broadcasters leading the majority to be too timid in questioning the justification for the ban advanced by the government.  Thus, the case has importance not just for noncommercial broadcasters looking for new sources of revenue, but also for other broadcasters concerned about intrusive government regulation of their industry and the standard of First Amendment review that would be applied to such regulation.

We had written about an earlier decision in this case here and here.  The case arose when a public television operator in the San Francisco area, Minority Television Project, Inc., was fined by the FCC for having run promotional ads for commercial and political advertisers, and decided to fight that ban in court.  A panel of the Court of Appeals determined that the fine was appropriate for running commercials for for-profit companies, but unexpectedly threw out the Section 399b restriction on ads on political or controversial issues, finding that the public good of speech on these topics outweighed the government’s interest in fostering public broadcasting.
Continue Reading Court of Appeals Upholds Communications Act Ban on Commercial and Political Advertising on Public TV Stations – Significant Analysis of the Standards for First Amendment Review of all Broadcast Regulation

While we were sidetracked by the government shutdown in posting reminders about regulatory deadlines for broadcasters during the last two months, it’s about time to put that behind us, and to resume our monthly practice. While everyone may be looking forward to the holidays, they need to remember that December does bring a number of regulatory obligations for broadcasters across the country.  For instance, license renewals are due on December 2 (as the 1st is a Sunday) for the following station groups: Commercial and Noncommercial Full-Power and Class A Television Stations, TV Translators, and LPTV Stations in Colorado, Minnesota, Montana, North Dakota and South Dakota; Commercial and Noncommercial AM and FM Radio Stations, FM Translators, and LPFM Stations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.

Radio and television stations in all of those states, plus those in Alabama and Georgia, that have 5 or more full-time employees in their station employment groups, also have the obligation to complete their Annual EEO Public Inspection File Report, and to place that report into their public file (for TV stations, that would be their online pubic file).  The deadline for those reports to be complete and posted is December 1.  Radio stations in these states also need to post the most recent report on their websites, if they have a website. 
Continue Reading December Regulatory Deadlines For Broadcasters – Renewals, Ownership Reports, CALM Act, and TV Form 317

The FCC denied reconsideration on the last phase of the digital television transition – requiring that all LPTV stations and TV translators cease analog operations and be operating digitally by September 1, 2015. See our summary of the original ruling on the digital conversion of LPTV and TV translator stations here. In denying reconsideration, the FCC determined that the September 1, 2015 date will hold – denying requests that the final decision be postponed while the FCC considers the repacking of the television band as part of the incentive auction process to clear part of the TV spectrum for wireless broadband purposes. The FCC also noted that some parties wanted to keep operating in an analog mode on TV channel 6, as the audio can be received by FM receivers (so-called "Franken FMs"). The Commission determined that using Channel 6 to provide an audio service this was not a sufficient reason to keep analog operations on TV channels alive past the deadline that they have established. (See our articles about these hybrid LPTV/FM stations, which take advantage of the fact that Channel 6 is adjacent to the FM band and that analog TV used an FM audio system, here).

The Commission did note that, in response to some petitions for reconsideration, that any LPTV station or translator moving to Channel 6 for digital operations be required to protect noncommercial FM stations that would be operating on adjacent frequencies. While the Commission does not expect that such interference will occur frequently, they made clear that LPTV and TV translators are secondary services, and they cannot continue to operate if they cause interference to primary services, including primary noncommercial FM stations.Continue Reading No Relief on LPTV/TV Translator Digital Conversion Deadline – 2015 Deadline for End of Analog Operations Upheld on Reconsideration

Every two years, broadcasters are to file Biennial Ownership Reports on Form 323 to detail the ownership of the companies that hold FCC licenses. Since 2009, all commercial broadcasters across the country are to file such reports in the same window of time. Theoretically, these reports are supposed to be filed between October 1 and November 1 of odd numbered years, yet since the adoption of the uniform date, the November 1 deadline has never held. This year, too, the deadline has been moved (as we wrote here) to December 2.  The window for filing such reports is now open, according to an FCC Public Notice released on Friday. As the reports are supposed to detail a company’s ownership report as of October 1, at this point companies should know what that ownership is, so that they can begin the process of completing the forms and getting them on file.

Noncommercial broadcasters are still on a system where they file their biennial reports on the anniversary dates of their license renewals, so the December 2 deadline does not apply to them (except for stations in those few states where December just happens to be the anniversary of their renewal filings, e.g. noncommercial radio stations in New England). However, as we wrote here when the rules for new Biennial Ownership Reports were adopted, the FCC is considering bringing all noncommercial broadcasters into the same system as their commercial brethren. The report forms used by commercial broadcasters for their biennial reports is more complicated than the normal ownership report form, requiring all individuals who have attributable interests in a licensee to get their own FCC Registration Number (or an “FRN” as it is commonly known), which in turn normally requires that the individuals provide a Social Security Number (or Taxpayer ID Number for entities that have interests in licensees). Having to provide that information has been a controversial requirement, with the FCC offering a work around for owners who refuse to provide that information (a work-around that the FCC has proposed to eliminate, a proposal that has not yet been adopted). Why the need for this FRN for every individual?Continue Reading FCC Announces Biennial Ownership Report Filing Window is Open – Reports to be filed by December 2 By All Commercial Broadcasters

The FCC has just announced that the Form 323 Biennial Ownership Reports for commercial broadcasters, due to be filed on or before November 1 of this year, will now be due instead by December 2. This is the third straight time that the obligation to file these reports has been extended, due to the complexity and confusion that surrounds the completion of the information that is required on the form. All commercial broadcasters, including LPTV licensees, need to file this form by the new deadline. As set forth in more detail below, at this point, this obligation does not extend to noncommercial educational licensees.

In 2009, the FCC adopted a requirement for modified Biennial Ownership Reports for all commercial stations, requiring that such reports be filed by all commercial broadcasters – including LPTV licensees, sole proprietors, general partnerships and other licensees who had previously been exempt from such obligations. The reports were to be filed on an expanded form that gathers information not just about who the owners of broadcast stations are, but also the race or ethnicity and gender of such owners. This information was to be gathered so that the FCC could better assess the minority ownership of broadcast stations.  This was to be used for purposes such as developing new ownership rules for the broadcast industry.  In fact, the information gathered from the first set of these forms was recently the subject of comment in the ongoing multiple ownership proceeding at the FCC (see our article here).

The forms were also supposed to be searchable by individual, so that the FCC or interested parties could easily cross-reference the broadcast interests of various individuals. To do so, however, required the gathering of new information, and required that every individual obtain an FCC Registration Number (an FRN), which required that they provide a Social Security or Taxpayer ID Number (for corporate owners of licensees) to the FCC. This obligation stirred much controversy. In addition, the format of the reporting of the other broadcast interests of individuals required much more time than had previous reports.  That complexity has not disappeared over time. Continue Reading Filing Deadline for FCC Form 323 Biennial Ownership Reports Extended Until December 2 – Why the Delay?

Another month is upon us, along with all of the FCC regulatory obligations that accompany it. August brings a host of license renewal obligations, along with EEO public file obligations in a number of states, as well as noncommercial Biennial Ownership Report filings in several states. We also expect that the FCC will notify stations of the date for the payment of their regulatory fees (which will either be due late this month or early next). As we reported yesterday, the filing of long-form translator applications for over 1000 applicants from the 2003 FM translator window also comes at the end of the month. There are comments due in a number of FCC proceedings. We’ll talk about some of those issues below. For TV broadcasters, we also suggest that you review our article that recently ran in TV NewsCheck, updating TV broadcasters on issues of relevance to them not only this month, but providing a description of the full gamut of issues facing TV broadcasters. We prepare this update for TV NewsCheck quarterly.

Today brings the deadline for the filing of license renewal applications for radio stations in California and for TV stations in Illinois and Wisconsin. Stations in these states, and in North and South Carolina also have EEO public inspection file reports that should be placed in their public inspection files no later than today. Noncommercial TV stations in Illinois and Wisconsin also need to file Biennial Ownership Reports today, and noncommercial radio stations in California, North Carolina, and South Carolina should also file their Biennial Ownership Reports by today.Continue Reading August FCC Regulatory Deadlines for Broadcasters – Including Renewals; EEO; Comments on Indecency, the Online Public File and Cross-Ownership

As is the case with most months, June brings a number of FCC deadlines for broadcasters, both standard regulatory filings and comment deadlines in important regulatory proceedings. The regular filing deadlines include license renewal applications due on June 3 (as June 1 is a Saturday) for Commercial and Noncommercial Full-Power and Class A Television Stations, TV Translators, and LPTV Stations in Ohio and Michigan; and Commercial and Noncommercial AM and FM Radio Stations, FM Translators, and LPFM Stations in Arizona, Idaho, Nevada. Noncommercial stations in the states with renewals also have to file their Biennial Ownership Reports, as do noncommercial radio stations in Maryland, Virginia, West Virginia, and the District of Columbia.

Renewal pre-filing announcements must begin on June 1 for Commercial and Noncommercial Full-Power and Class A Television Stations in Illinois and Wisconsin and for Commercial and Noncommercial AM and FM Radio Stations in California. Post-filing announcements for radio stations in Texas should continue on June 1 and 16, as well as for TV stations in Indiana, Kentucky and Tennessee.

In addition to these regular filings, broadcasters also have many other deadlines that are coming up either in the month, or soon thereafter. Broadcasters who were successful bidders in the recent FM auction have payment deadlines on June 12, and then have a July 24 deadline for the filing of "long-form" applications on FCC Form 301 specifying the technical facilities that they plan to build (see the FCC Public Notice here). Applicants for new FM translators left over from the 2003 filing window are now in a settlement window, with deadlines for settlements between competing applicants due on July 22 (see the FCC public notice here). Continue Reading June FCC Obligations for Broadcasters – Renewals, EEO, FM Translator and Auction Filings, and Comments on Regulatory Fees, Indecency, and Incentive Auction Band Plan

Fines against noncommercial stations may that are primarily student run may not be as harsh as they have been in the past under a ruling issued by the FCC’s Media Bureau earlier this week. The new policy came about as part of a consent decree entered into by an Iowa college-owned broadcaster whose student-run station had failed in its obligation to keep quarterly issues programs lists during most of the prior license renewal term, and also was late in meeting its obligations to file biennial ownership reports with the Commission. Instead of imposing what could have been as much as a $25,000 fine on the broadcaster, the FCC instead agreed to a consent decree by which the broadcaster contributed only $2500 to the government and agreed to certain ongoing obligations to insure its compliance with FCC rules going forward. The FCC also announced, as part of its decision in the case, that it would apply this policy of more leniency in other cases involving student-run stations in the future.  See, for instance, this decision from last year for evidence of how this policy marks a change in the FCC’s policy.

However, this new policy will apply in only very limited circumstances – only to noncommercial stations that are primarily student run. In the decision, the FCC recognized that these stations often had very limited budgets and also a high staff turnover as students graduated and new students took their place. As such, the potential for these kinds of errors increased, and yet the ability to pay for fines was small. In this case, the station involved had an annual budget of less than $7000. Were the Commission to impose big fines, these stations might be forced off the air, as the Commission noted a trend where many noncommercial student-run stations had been sold recently by colleges and universities – often leading to protests about the sales and inevitable format changes (see, for instance the decision we wrote about here).Continue Reading FCC Adopts More Lenient Standards on Certain Fines to Student Run Noncommercial Broadcast Stations

In a decision granting the license renewal of a noncommercial radio station, the FCC’s Media Bureau addressed a number of interesting issues – including the requirements for noncommercial underwriting announcements, whether PSAs meet a station’s public service obligations, and the ability of stations to run cigarette ads in historical radio programs from early radio days. These issues all came up in a decision to renew the station’s license despite a petition from a former manager alleging that the station had violated a number of Commission rules or policies – a petition raising all of these issues.

The $3000 fine that the FCC proposes to levy on the station was for what the FCC found to be improper underwriting announcements. Two different issues were found to violate FCC standards – one fairly straightforward, one less so. The relatively easy issue was whether the underwriting announcement by a musical group stating that it was voted “Canada’s #1 bluegrass band” made a qualitative claim. The station argued that the #1 claim was simply a statement of fact based on the vote in Canada. The FCC, not surprisingly,  found that the “#1” label, no matter how it was derived, was a qualitative claim and thus prohibited as part of an underwriting acknowledgment on a noncommercial station.   Such announcements cannot be commercial in nature – meaning that they cannot contain a call to action, price information or qualitative claims about the products or services offered by the sponsor.  See articles that we have previously written on underwriting issues: here and here and here, as well as a presentation on that issue that is discussed here.Continue Reading $3000 Fine Against Noncommercial Station for Underwriting Violations – With Discussion of PSAs as Public Interest Programming and Cigarette Ads in Classic Radio Program

Another radio topic sure to be discussed at the NAB convention this week is the ongoing story of the thousands of FM applications translators still pending at the FCC from the 2003 FM translator window. While this has been a topic at many of the NAB Conventions in the last 10 years, it looks like the end is near. On Tuesday, the FCC adopted yet another order in the processing of these translators, allowing applicants who specified that they were noncommercial operators to amend their applications in a window from April 8 to April 17 to specify commercial operations. That is important to such applicants as, soon after these applications were filed back in 2003, the FCC adopted a policy that said that applicants who elect noncommercial processing could not participate in an auction – and that they would be dismissed if they were mutually exclusive with commercial applicants. Not allowing these applicants the opportunity to amend (as the FCC has done in several other auctions from this period), would mean that the applicants would be dismissed for a defect that had not been announced at the time of their filing.

This is but one more step in the ongoing attempts to complete the processing of these applications so as to permit a new LPFM window later in the year. This will probably mean that thousands of new FM translators will be granted in the coming months – providing opportunities for the expansion of broadcasters’ signals, either in the traditional way of filling in holes in the coverage of FM broadcast stations, or by allowing for the retransmission of AM and FM-HD signals. This should prompt many discussions at the NAB Convention as broadcasters look at the opportunities that these new translator stations will present.Continue Reading FCC Processing of Translator Applications from 2003 Moves Ahead – Window for Opting Out of Noncommercial Status to Participate in the Auction