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Recently, I’ve received many calls from broadcasters about the FCC public file obligations for issue ads (those ads not bought by legally qualified candidates or their authorized committees) – particularly concerning the different treatment between issue ads dealing with federal candidates or federal matters, and those dealing with state and local matters.  There was much controversy about the public file requirements for federal issue ads over the last two years – resulting in an FCC clarification that we wrote about here and here, making clear that the public file obligation for federal issue ads include the requirement that a station’s public file disclosures include a list of all of the federal candidates and issues mentioned in the ad.  The FCC also imposed an affirmative obligation on the broadcaster to confirm with the federal issue advertiser that it does not have multiple executive officers or directors if the advertiser only provides one individual’s name.  These obligations are in addition to the requirement that stations upload to their public file, within one business day of when an order for a federal issue ad is received, information about the order, including the price to be paid for the ads and the schedule that the buyer is requesting.  Whether or not the order for ads addressing a federal issue is accepted by the station also must be uploaded to the public file.

There are different requirements for state and local issue ads, about which we wrote last year here.  Issue ads that do not deal with federal issues do not trigger any obligation to upload information about the price and schedule of an ad to a station’s online public file.  Nor do state and local issue ads trigger the obligation to list every candidate and issue mentioned in the ad.  But they do still require the public file identification of the sponsor of the ad, and the executive officers or directors of the sponsor when the sponsor is not an individual.  Thus, ads dealing with state and local matters – like state ballot issues, or local zoning controversies, or even ads that attack or support state or local candidates (when those ads are not bought by a candidate-authorized committee and do not address any federal issue) – only require the identification of the ad sponsor and its officers or directors in a document uploaded to the station’s political file.  Why the difference?
Continue Reading Why Federal and State Issue Ads Have Different Broadcast Public File Requirements

Here are some of the regulatory developments of significance to broadcasters from the past two weeks, with links to where you can go to find more information as to how these actions may affect your operations.

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The lazy days of summer continue to provide little respite from the regulatory actions of importance to broadcasters.  The good news is that there are no license renewal or EEO  deadlines during the month of July.  Nonetheless, there will be a number of July deadlines that require attention.

On July 1, comments are due on the FCC’s Office of Economics and Analytics annual call for comments on the State of Competition in the Communications Marketplace (see the Public Notice calling for these comments). The comments are used to prepare a report to Congress on communications competition issues and are sometimes referenced by the FCC itself in proceedings dealing with competition issues.  The FCC seeks comments on a list of questions about competition in both the Video and Audio marketplaces, including the impact of digital competitors on traditional providers and the role that regulation plays in the competitive landscape.  Reply comments are due August 1.

July 5 and July 18 are the comment and reply comment deadlines, respectively, for the FCC’s Notice of Proposed Rulemaking on the FCC’s proposed regulatory fees for fiscal year 2022.  The fees that the FCC is proposing for television (full power and otherwise) and radio stations are set forth in Appendix C and Appendix G of the document.  The FCC is proposing an increase of approximately 13% for radio broadcasters.  Among other things, the FCC proposes to continue to assess fees for full-power broadcast television stations based on the population covered by a full-service broadcast television station’s contour, and it seeks comment on its mechanism for calculating the regulatory fee based on the this population-based methodology.  These fees will be set by the end of August or very early September, to be paid before the October 1 start of the government’s new fiscal year.
Continue Reading July Regulatory Dates for Broadcasters:  Quarterly Issues/Programs Lists and Other Public File Obligations, Lowest Unit Charge Periods, License Renewal, Copyright Filings and More

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC issued its Notice of Proposed Rulemaking proposing the annual regulatory fees to be paid by September 30, the

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With the traditional beginning of summer upon us, there is no vacation from the regulatory actions of importance to broadcasters.  Let’s start with the routine actions for the upcoming month.  With the radio license renewal cycle having ended with the filing of the last set of renewal applications in April, we enter the last year of the cycle for television.  Renewals applications for Full-Power Television, Class A, LPTV and TV Translator Stations in Arizona, Idaho, Nevada, New Mexico, Utah and Wyoming are due on June 1.  Renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for LPFMs and TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Note that your Broadcast EEO Program Report must include two years of annual EEO public file reports for FCC review, unless your employment unit employs fewer than five full-time employees.  Be sure to read the instructions for the license renewal application and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.  Issues with the public file have already led to fines imposed on TV broadcasters during this cycle.

Also, on or before June 1, all radio and TV station employment units (a station employment unit is a station or stations that are under common control, share at least one full-time employee, and are in the same geographic area) with five or more full-time employees licensed to communities in Arizona, District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming must upload to their online public inspection file an Annual EEO Public File report.  This report covers hiring and employment outreach activities for June 1, 2021 through May 31, 2022.  These licensees must also post on the homepage of their station website (if they have one) a link to the most recent report.
Continue Reading June Regulatory Dates for Broadcasters:  TV Renewals, EEO Public File Reports, Comments on Zonecasting, Start of Channel 6 FM Rulemaking and More

In our summary of last week’s regulatory actions, I was struck by a common thread in comments made by several FCC Commissioners in different contexts – the thread being the FCC’s role in regulating Internet content companies.  As we noted in our summary, both Republican commissioners issued statements last week in response to a request by a public interest group that the FCC block Elon Musk’s acquisition of Twitter.  The Commissioners stated that the FCC had no role to play in reviewing that acquisition.  Twitter does not appear to own regulated communications assets and thus the FCC would not be called upon to review any application for the acquisition of that company.  The Commissioners also noted concerns with the First Amendment implications of trying to block the acquisition because of Musk’s hands-off position on the regulation of content on the platform, but the Commissioners’ principal concern was with FCC jurisdiction (Carr Statement, Simington Comments).  In the same week, FCC Chairwoman Jessica Rosenworcel, in remarks to a disability rights organization, talked about plans for more FCC forums on the accessibility of Internet content to follow up on the sessions that we wrote about here.

The ability of the FCC to regulate internet content and platforms depends on statutory authority.  In holding the forums on captioning of online video content, the FCC could look to the language of the 21st Century Communications and Video Accessibility Act, which included language that asked the FCC to look at the accessibility of video content used on internet platforms.  In other areas, the FCC’s jurisdiction is not as clear, but calls arise regularly for the FCC to act to regulate content that, as we have written in other contexts, looks more and more like broadcast content and competes directly with that content.
Continue Reading Does the FCC Regulate Internet Content and Companies? 

May is one of the few months on the calendar where there are not routine FCC regulatory deadlines.  Yet there are still a number of important dates and deadlines this month (and early next) that broadcasters should note.  Some of those dates and deadlines are below.

On March 17, the migration of applications and forms from the FCC’s legacy filing portal CDBS to its newer portal LMS will continue. The FCC has announced the transition of many of the forms that had been filed in CDBS, but are now filed by email, to LMS.  Perhaps most significantly, this includes filings for Special Temporary Authority (and extensions to such authority and notices of the resumption of authorized operations.  See the FCC’s Public Notice on the transition for a complete list of the transitioning forms, notes on the procedures to be used for extensions of applications previously filed in CDBS, and other details.

Throughout May, broadcasters in several states should be aware of the opening of political windows tied to June and early July primary elections.  As a refresher, in the forty-five days before a primary election, broadcasters must extend to legally qualified candidates their lowest unit rate and continue to follow all other applicable political broadcasting rules.  So the lowest unit rate period will be in effect at some point this month for stations serving states that have primary elections in June and early July (and is already open for states with May primaries).  For a deeper dive on how to prepare for the political primary election season, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide.  Take a look at our 2022 Broadcasters’ Calendar to see if your state has an upcoming primary election (though confirm these dates locally as some dates have changed since the calendar was prepared – for instance, just this week, a court ordered the congressional primaries in New York state be postponed from June until August).
Continue Reading May Regulatory Dates for Broadcasters: LMS Migration of FCC Forms, Lowest Unit Rate Windows, EEO Audits, TV Auction, FM Antenna Rulemaking, and More

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC this week released a Public Notice announcing that it is soliciting public comment on the recent tests of

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Last week, much was made of an FCC Media Bureau decision rejecting the “reasonable access” claim of a write-in candidate for a Congressional seat in Ohio against radio stations which, after initially running his spots, decided to pull those spots because he had not made a “substantial showing” of his candidacy.  Candidates for federal office (the US House of Representatives, the US Senate and for President) are entitled to buy reasonable amounts of commercial time on all broadcast stations, once those candidates are “legally qualified.”  In other words, commercial broadcast stations cannot refuse to run any ads for candidates for any federal elective office.  We wrote more about reasonable access here, including the considerations about how much time is “reasonable.”

In most cases, the question of whether a candidate is legally qualified for FCC purposes is a relatively simple one.  A station looks to see if that candidate has filed the required paperwork and qualified for a place on the election ballot in the district in which they are seeking office.  The case decided last week was one of the hard cases, where the candidate did not qualify for a place on the ballot but argued that he was a write-in candidate for the congressional seat.  The FCC has recognized that write-in candidates can be legally qualified so as to be guaranteed reasonable access and other protections afforded to candidates under FCC rules, including the right to not have their commercial messages censored by the station (see our posts here and here on the no censorship rule) – but they must make a substantial showing that their candidacy is legitimate.  The FCC has recognized that it would put broadcasters in an untenable position if anyone could, on a whim, declare that they are a write-in candidate and therefore be entitled to buy uncensored advertising time (at lowest unit rates in the 45 days before a primary or the 60 days before a general election – see our post here on lowest unit rates) on any commercial broadcast station that they wanted to.  So the FCC requires this substantial showing – and the adequacy of that showing was the issue in last week’s decision, and has been a question that other write-ins have faced in other elections in the past.
Continue Reading Reasonable Access and the Problem Candidate – FCC Declares a Write-In Candidate Not Entitled to Buy Radio Spots, But That May Not Be the End of the Story

Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • A list of “ex parte” presentations made to the FCC (disclosures of presentations made to FCC decision makers outside of

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