Programming Regulations

Subscribe to Programming Regulations via RSS

Starting June 1, 2019, just over a year from now, the next broadcast license renewal cycle will begin. By that date, radio stations in DC, Maryland, Virginia and West Virginia must file their renewal applications. Every other month for the next 3 years will bring the filing of radio license renewals in another set of states. And television stations will begin their renewal cycle a year later (June 1, 2020). The FCC’s schedule for radio license renewals can be found here and here. For TV stations, the schedule of renewal filings by state is in the same – just one year later than for radio. Every eight years, broadcast stations have to seek the renewal of their licenses by the FCC by demonstrating their continuing qualifications to be a licensee, including showing that they have not had a history of FCC violations and that they have otherwise served the public interest.

We have already written several times about how, with all broadcasters – both radio and TV – now required to have an online public file, it is important for stations to make sure that those files are complete and are kept up to date on a regular basis (see our articles here, here and here). Given that the contents of the online public file can be viewed by anyone, anywhere, just by launching an Internet browser, we would expect more complaints about incomplete files, and more scrutiny by the FCC of the contents of files that rarely were subject to FCC review in the past. FCC staffers can review public file compliance from their offices or homes, and do not have to rely on the rare field inspection to discover a violation. Thus, stations should be reviewing the contents of their files now to be sure that they are ready for the scrutiny that they will receive in the upcoming renewal cycle. But that is not the only issue about which stations need to be concerned, as illustrated by a decision released by the FCC yesterday, deciding to hold an evidentiary hearing as to whether the license renewal of a broadcast station that had been silent much of the last license renewal term should be granted.
Continue Reading License Renewal Cycle Starts in a Year – Crackdown on Silent Stations and Online Public File Signal Warnings to Broadcasters

The FCC yesterday announced that they had seized the equipment of two Boston-area pirate radio stations that had refused to cease operations after receiving FCC notices to do so. The FCC Public Notice on the seizure thanks the US Attorney’s Office and US Marshall’s Office, and the Boston Police Department, for assisting the FCC Field Office in carrying out the seizure authorized by the Communications Act for stations operating without a license. Seizure of equipment is carried out pursuant to Section 510 of the Communications Act, and generally requires that the US Attorney receive approval of a US District Court before the equipment can be seized Thus, the cooperation of the US Attorney’s office in a local jurisdiction is vital to conducting a seizure such as that done in Boston. Commissioner O”Rielly, who has been a vocal proponent of increased actions against pirate radio (see our post here) issued a statement commending the action and calling it a complement to legislative action to enhance fines on such stations and impose clear liability on landlords who host pirate operations (see our post here about a case where the FCC has already put landlords on notice of potential liability for pirate radio operations where they had clear involvement in such operations).

Legislative action on pirate radio seems to be in the works. To combat pirate radio operations, the House Subcommittee on Communications and Technology last week held a hearing (video available here) on proposed bills to amend the Communications Act, including one called the Preventing Illegal Radio Abuse Through Enforcement (PIRATE) Act (see discussion draft here). The draft bill would raise potential fines on pirate radio operators to $2,000,000, and fines of up to $100,000 per day for violations of the Communications Act and FCC rules related to such pirate operations. It would eliminate the need to provide pirates a Notice of Apparent Liability, with the opportunity to respond, before a fine is issued to an operator of a pirate radio station, if the operator is caught in the act of operating the illegal station. The Act would also make clear that those who facilitate pirate radio operations are also liable for up to $2,000,000 fines (“facilitates” is defined to include providing property from which the pirate operates or money for their operations). The draft bill also calls on the FCC to, twice each year, dedicate staff to “sweep” the top 5 radio markets determined to have the most pirate activity to identify pirates and seize their equipment, and authorizes states to enact their own laws making such operations illegal as long as the determination of who is a pirate radio station is made by the FCC. 
Continue Reading FCC Continues War on Pirate Radio – Seizes Equipment of Boston Stations While New Legislative Tools May Be on the Way

April brings with it a milestone – as it is the end of the first quarter since all radio stations have had to have their online public inspection file “live” so that anyone, anywhere, can view a station’s compliance with rules that previously could only be judged by going to the station and reviewing the paper public file. April 10, in particular, is important, as it is when Quarterly Issues Programs Lists, summarizing the most important issues facing the community which the broadcaster serves and the programs that the broadcaster aired to address those issues, must be in the online public file for all full-power radio and TV stations. We wrote about the importance of these sometimes overlooked documents here, as these are the only FCC-mandated documents that reflect how a station has served the needs and interests of its community. We have also noted that, in the past license renewal cycle, missing Quarterly Issues Programs lists were the source of the most fines issued to broadcasters. Now that compliance can be judged at any time by the FCC, their importance is only magnified. So be sure that you get these documents into your online public file by April 10.

EEO Public Inspection File Reports, summarizing a station’s employment record for the prior year, are also to be uploaded to a station’s online public file. For radio and TV stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas, these reports need to be completed and included in the public file by April 1 by all stations that are part of employment units with 5 or more full-time (30 hours per week) employees. In addition, radio stations in employment units with 11 or more full-time employees in Delaware and Pennsylvania, and TV stations in Texas with 5 or more full-time employees, also need to file EEO Mid-Term Reports, commonly referred to as FCC Form 397 applications. While the FCC is considering the abolition of the Mid-Term Report (see our article here), the obligation is still in place so, for now, stations must comply.
Continue Reading April Regulatory Dates for Broadcasters – First Quarterly Issues Programs Lists in Online Public File for All Radio Stations and Other Important Dates

With April Fools’ Day falling on a Sunday this year, perhaps the potential for on-air pranks is lessened. But, then again, who knows what weekend talent may be planning? So, as we do every year about is time, we need to play our role as attorneys and ruin the fun by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other bits prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes. While issues under this rule can arise at any time, broadcaster’s temptation to go over the line is probably highest on April 1.  The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”  Air a program that fits within this definition and causes a public harm, and expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station falsely claimed that they had been taken hostage, and another case where a station broadcast bulletins reporting that a local trash dump had exploded like a volcano and was spewing burning trash.  In both cases, first responders were notified about the non-existent emergencies, actually responded to the notices that listeners called in, and were prevented from responding to real emergencies.  In light of this sort of incident, the FCC adopted its prohibition against broadcast hoaxes.  But, as we’ve reminded broadcasters before, the FCC hoax rule is not the only reason to be wary on April 1. 
Continue Reading With April Fools’ Day Coming Up, Plan Your On-Air Pranks with Care – Remember the FCC Hoax Rule

In December, we wrote about a proceeding initiated by the Copyright Office to review the reporting obligations of cable and satellite television systems related to the statutory license that permits those systems to carry the programming of local television stations.  Systems must report information including revenue and subscriber information that allow royalties to be computed. …

As we wrote here, MMTC (a DC-based public interest group) had petitioned the US Court of Appeals for a Rehearing on its decision (about which we wrote here) upholding the FCC decision deciding not to impose any multilingual EAS obligations on broadcasters.  The full Court of Appeals has just issued a one …

FCC Commissioner Michael O’Rielly today released a statement announcing that Chairman Pai has requested that he lead an effort to review the FCC’s “KidVid” rules – the rules that govern the amount of educational and informational programming that each broadcast station is required to air to meet the needs of children. Commissioner O’Rielly recently…

Last month, we posted some updated guidelines about engaging in or accepting advertising or promotions that directly or indirectly allude to the Super Bowl without a license from the NFL.  “As Super Bowl Approaches, Advertisers Should Be Aware of The NFL’s Efforts to Protect Its Golden Goose – 2018 Update”  Now, that is behind us (for another year), it is just in time to think about these issues in the context of the Winter Olympics!

The guidance from last month’s blog addressed the following subjects:

  • Advertising that refers to the Super Bowl or other NFL trademarks;
  • Advertising that uses non-trademarked terms that will be understood by the public to refer to the Super Bowl;
  • Conducting or sponsoring events and parties for viewing the Super Bowl;
  • Sweepstakes or giveaways that use “Super Bowl” as part of its name or offer prizes that include game tickets;
  • Offering “special” coverage relating to the Super Bowl, accompanied by advertising;
  • Congratulatory advertising; and
  • Whether disclaimers will provide a defense to a claim.

The concepts advanced in that discussion apply equally to the Olympics, but the US Olympic Committee has a unique weapon in its arsenal, so there are additional considerations of which you should take note.
Continue Reading The Super Bowl is Over – Let’s Talk About the Olympics and Trademarks

Last week, Commissioner O’Rielly published an article on the FCC blog, suggesting that one of the next steps in the FCC’s Modernization of Media Regulation initiative should be the review of the FCC rules setting obligations for television stations to air educational and informational programming directed to children.  Stations are required to air an average of 3 hours of educational and informational programming per programming stream, and there are a host of related obligations generally requiring that the programming be run at regular times and be at least 30 minutes in length.  The rules also limit the ability to count repeats of such programs and requires that this programming be advertised in local programming guides.  We have written about fines or warnings that the FCC has issued in many cases, including questioning whether programming classified as educational and informational really should have been classified in that manner, for failing to have an onscreen “E/I bug” labeling, for counting one-time programs to meet the requirement for 3 hours of regularly scheduled programs, the programming as educational, and for failing to publish information about these programs in local program guides.

The Commissioner raised the question of whether the obligation, adopted in the 1990mos (see the FCC order here) really continues to make sense in today’s media marketplace.  So much has changed in the last 23 years, including the explosion of different sources of educational programming for children – including cable, Internet and other sources.  No longer are TV stations the only sources of video programming – and, in a world where even Big Bird has moved to a cable platform, there is a real question as to whether over-the-air television stations are even the best platforms for the delivery of such programs.  With so many competing sources of children’s programming, the Commissioner asked whether there is really a need for each station to do 3 hours of such programming on each of its channels.  Certainly, there have been questions of whether quality programming can be produced to meet the obligations for each channel and subchannel, when the new program sources are splintering the potential audience for any such programs.  The Commissioner also suggests that the current rules limit creativity in programming – forcing broadcasters to spend money on 30-minute on-air programs and not on other potential ways of meeting the needs of children, e.g. through short-form programs or online information.
Continue Reading Time for the FCC to Review Children’s Television Educational Programming Obligations of Broadcasters?  Commissioner O’Rielly Thinks So

The FCC this week published a Small Business Compliance Guide for companies looking to take advantage of the FCC’s elimination of the main studio rules and the studio staffing requirements associated with those rules (see our articles here and here summarizing the rule changes). The Compliance Guide points out that stations looking to eliminate their main studios still must maintain a local toll-free telephone number where residents of the community served by the station can call to ask questions or provide information to the licensee. The Guide also references the requirement that access to the public file must be maintained. While, by March 1, all broadcast stations (unless they have obtained a waiver) will have their public files online (see our article here), it is possible that some stations may have a remnant of their file still in paper even after the conversion date. “Old political documents” (documents dealing with advertising sales to candidates, other candidate “uses,” and issue advertising) that were created before the date that a station activates its online file for public viewing need not be uploaded but can be kept in a paper file for the relevant holding period (generally two years). If the station decides not to upload those old political documents, or closes its main studio before they have gone live with their online public file, they will need to maintain a paper file in their community of license. The Guide also mentions how Class A TV stations, which are required to show that they originate programming from their local service area, will be treated since they will no longer have a legally mandated main studio. But are there questions that the Guide does not address?

We think that there are, and that broadcasters who are considering doing away with their main studio need to consider numerous other matters. First, and most importantly, the obligation for a station to serve its local community with public interest programming remains on the books. So stations need to be sure that they are staying in touch with the local issues facing their communities, and they need to address those issues in their local programming. Addressing these issues needs to be documented in Quarterly Issues Programs lists which are the only legally-mandated documents that demonstrate how a station has served its community. There are other issues to consider as well.
Continue Reading What Issues Should Broadcasters be Considering When Taking Advantage of New Rules Abolishing Main Studio and Staffing Requirements?