Programming Regulations

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A new year, and a new set of regulatory obligations and deadlines for broadcasters and others.  To help track many of the important deadlines for broadcasters in the new year, we have put together a Broadcaster’s Calendar of important regulatory dates for 2015, available here, which highlights many of the dates for the regulatory obligations of broadcasters in 2015.  While not exhaustive, and subject to change, the calendar sets out the regular regulatory dates for broadcasters (e.g. Quarterly Issues Programs lists, Children’s Television Reports, EEO public inspection file reports, reg fee obligations, etc.).  It also highlights dates that don’t necessarily occur every year – like this year’s obligation for commercial broadcasters to file Biennial Ownership Reports.  While the license renewal cycle for TV concludes this year, Mid-Term EEO report obligations (FCC Form 397) for radio stations in the states that were the first to file their renewals in the last radio license renewal cycle (those in the DC area and in the southeast) kick in mid-year for radio employment units with more than 10 full-time employees.  The calendar also lists January dates for webcasters to file various elections (including elections to be treated as a “small broadcaster” which, for broadcasters who stream their stations online but have a very small audience, can lessen payment and reporting obligations).  There are even a few lowest unit rate windows listed for states that have announced state and local elections (and are many other states holding such elections that we were not able to determine dates – so check those locally.

Some of the important January regulatory dates include the obligation of all broadcasters, by the 10th of the month, to have their Quarterly Issues Programs lists in their public file.  TV stations should also place their certifications as to compliance with children’s television commercial limits in their files by that date.  By the 12th (as the 10th is a weekend day), television stations must also submit to the FCC their Form 398 Children’s Television Programming Reports that report on educational and informational programming directed to children. 
Continue Reading A Broadcaster’s Regulatory Calendar for 2015, Plus Important Regulatory Deadlines for January Including Incentive Auction and Captioning Comments

We recently wrote about the proposed changes in the FCC’s rules about station-conducted contests, here.  The FCC has proposed that much of the required disclosure about the material terms of these contests be allowed to be conducted online, rather than having to be announced on-air often enough so that listeners to the station are …

The online public inspection file for radio is moving closer to reality at an unusually fast pace.  Yesterday, the FCC issued a Notice of Proposed Rulemaking, seeking to expand the online public file requirements that now apply to broadcast TV stations to radio (see our summary of the obligations here, and a presentation that we did on those requirements, here).  The rulemaking proposal also looks to adopt online public file obligations for cable systems, satellite television systems, and Sirius XM.  Comments will be due 30 days after the NPRM is published in the Federal Register. 

The NPRM proposes a phased-in approach to these obligations for radio.  It would first require the online public files only for stations in the top 50 Nielsen (formerly Arbitron) markets which employ five or more full-time employees.  The Commission chose these stations to begin the process, reasoning that they are subject to the EEO rules and would thus have EEO reporting obligations (which are already online for most station, albeit on their own station websites), and would have more resources to meet any obligation that the rule imposes.  The Top 50 markets were also the starting point for the roll out of these obligations for TV stations, and are likely also in areas where there is significant political broadcasting activity.  The NPRM asks whether a six month period to implement the new requirements from the effective date of any set of new rules would be appropriate.
Continue Reading Online Public File for Radio – and Satellite and Cable – Moves Closer to Reality – FCC Issues Formal Notice of Proposed Rulemaking

The FCC this week issued a Second Further Notice of Proposed Rulemaking, suggesting that certain responsibilities for the captioning of video programming be reassigned from the Video Programming Distributor (the TV station or cable system) who has the direct contact with the viewer, to the producer of the programming as that is where the …

Perhaps Sunday’s anniversary of Pearl Harbor made the FCC want to make this week one which concentrated on emergency communications issues, or perhaps it is just a coincidence.  But the FCC has been active in the past 7 days dealing with emergency communications related items for broadcasters.  On Wednesday, it issued a consent decree by which a broadcaster agreed to a $46,000 fine for the use of EAS tones in a commercial message. This decision follows on the heels of an investigatory letter sent to a satellite radio programmer about the apparent use of a simulated EAS tone in a commercial message when, of course, there was no real emergency.   On Monday, there were two fines for non-operational EAS receivers and EAS recordkeeping failures.  At the end of last week, comments were filed in an FCC proceeding looking at the retransmission of EAS alerts in non-emergency situations, such as when a tone is included in programming on a station, and what can be done to avoid those alerts being sent throughout the system.  Comments are also due by the end of the month on suggested best practices on security for the EAS system, in light of the many issues that have arisen with the hacking of EAS receivers.  Here is a quick look at each of these issues.

The two most recent decisions highlight the severity with which the FCC is treating the use of EAS tones – real or simulated – in non-emergency programming.  We have written about past cases where the FCC has issued very substantial fines for the use of such tones in nonemergency situations, here and here.  In the decision released on Wednesday, the licensee of a Michigan radio station admitted to having broadcast ads for a storm-chasing tour which contained the EAS warning tones.  The National Weather Service received complaints, and in turn filed a complaint with the FCC.  The Consent Decree does not provide much more information, but to indicate that the commercial containing the EAS tones was broadcast on only a single day.  A $46,000 fine for a one-day violation demonstrates the gravity with which the FCC views these violations.  And it is a sense of importance that attaches not just to licensees, but to programmers as well.
Continue Reading A Week of Emergency Alert System Actions at the FCC – Fines Including One for $46,000 for EAS Tones in a Commercial, and Reviews of Best Practices for the System

We are often asked by television broadcasters if specialty programming – particularly local programming, like a local church’s broadcast of its Sunday morning church service – is covered by the FCC’s closed captioning obligations.  In a decision released on Friday, the FCC staff denied the request of a church for an exemption from the rules requiring the closed captioning of most television programming, and may have helped to make clear an answer to those questions.  This decision also helps to clear up a big question that has been hanging over such programs, for over 3 years since the FCC reversed dozens of prior waivers granted by its staff to nonprofit groups claiming that the captioning would be economically burdensome on their operations (including the waiver that had been granted to this church).  So what factors did the Commission review in denying this “economically burdensome” waiver request?

In 2011, the Commission stated that its staff had to consider the overall circumstances of each petitioner in evaluating economic waivers of the captioning rules, and could not simply rely on the fact that the petitioner was a nonprofit organization the FCC.  After revoking the waivers, the Commission asked the groups whose waivers were revoked to refile their requests with greater detail and support, not simply relying on the fact that the proponent was a nonprofit organization.  Factors to be considered in evaluating any claim that the captioning obligation was economically burdensome include: (1) the cost of the closed captions for the programming and attempts of the programmer to find cheaper sources of captioning; (2) the impact of the captioning obligation on the operation of the provider or program owner; (3) detailed information on the financial resources of the provider or program owner including income and expense statements for the prior two years; (4) attempts to get outside sponsors for the programming or support from the station on which the programming is to be broadcast; and (5) the type of operations of the provider or program owner.  In applying these factors in the decision released on Friday, the FCC staff concluded that the church had not justified a waiver because it had sufficient funds from which to pay the cost of the captioning. 
Continue Reading FCC Denies Closed Captioning Waiver for Church Service – Clarifying New Standards on “Economically Burdensome” Exceptions to Captioning Requirements

On Friday, the FCC released an Order and Consent Decree by which Journal Broadcasting agreed to pay a fine of $115,000 and to enter into a compliance program to settle complaints that it had not adequately identified that a program aired on its Las Vegas TV station was sponsored by a local car dealership.  According to the FCC press release issued at the same time as the Order and Consent Decree, the program was labeled a “Special Report,” was hosted by a station employee who stated that she was “reporting on behalf of Channel 13,” was made to look like a news report (with the reporter interviewing various employees of the dealership about their liquidation sale), and was run immediately adjacent to the local news.  The Press Release stated that this action was important to insure “transparency” where consumers are not misled as to who is trying to persuade them about commercial product.  “[A] pseudo news report invites viewers to rely on their perception of the station’s independence and objectivity when, in fact, the message has been bought and paid for by an undisclosed third party,” stated the FCC in the press release.

While the licensee argued that the context of the program made clear that it was a sponsored ad, the Commission’s insistence on the payment of a fine here is evidence of much the same thinking as the decisions the FCC has reached in past cases where there was entertainment or informational programming presented without a sponsorship identification even where the programming was sponsored by a commercial entity.  Even simply providing a recorded program unduly promoting a commercial product has been found to be sufficient to trigger the FCC’s requirement that a sponsor be identified when a station receives valuable consideration for the airing of a program broadcast to the public (see our article here).
Continue Reading TV Station Agrees to $115,000 FCC Fine for Not Identifying Sponsor of Program Promoting a Sale at Auto Dealership

In a Consent Decree released the day after Thanksgiving, the FCC agreed to accept a payment of a $35,000 penalty from a former television licensee for recording two telephone conversations for inclusion in a newscast, where the station called an outside party and recorded those conversations for inclusion in the newscast – before getting permission to do the recording.  The licensee also apparently did not fully respond to FCC inquiries about the facts of the case, leading to the $35,000 fine.  The FCC noted that the licensee had already sold the station, and was holding this money in a post-closing escrow account to be used to satisfy any fines that might arise from this conduct.

The decision is significant for several reasons.  First, it is couched in terms of privacy regulation, with a discussion of the importance of privacy regulation to the FCC in the opening paragraph (see the Public Notice that accompanied the release of the Consent Decree).  Recently, the FCC issued huge fines to independent telephone companies for not properly securing customer information – indicating a new emphasis on privacy regulation by the FCC.  Couching Friday’s consent decree in those terms indicates that privacy issues are now a high priority for the FCC.  As we have written before, privacy is a subject of interest to many other government agencies, and the recent interest of the FCC in this issue promises one more place where businesses can look for trouble should they respect the privacy of those with whom they interact, or should they not secure private information about their customers.
Continue Reading $35,000 FCC Fine for TV Station that Tapes Telephone Conversations for News Broadcast Without Prior Permission

While we are in the Holiday season, the regulatory obligations faced by broadcasters don’t stop.  December brings a continuation of the TV renewal cycle, though we are nearing the end of that cycle.  Renewal applications for all TV, Class A and LPTV stations in the following states are due on December 1: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.  These stations need to file their first two post-filing license renewal announcements on the first and 16th of the month.  Stations that filed their license renewal applications in October also will be broadcasting their post-filing announcements on those same days (their last two announcements).  Those would be stations in the following states and territories: Alaska, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, and Saipan.  TV stations in the states that file license renewals on February 1 (those in New York and New Jersey) have to start running their pre-filing announcements on the December 1 (and run a second on December 16).

There are other routine filings due in December.  On December 1, Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations with employment units with 5 or more full-time employees in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont all need to complete their EEO Public File Report and place that report in their public file (and on their websites, if they have one).  Noncommercial stations still have obligations to file Biennial Ownership Reports on every other anniversary of the filing of their license renewal applications.  That means that these reports are due on December 1 for Noncommercial Television Stations in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont; and on the same day for Noncommercial AM and FM Radio Stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota.
Continue Reading December Regulatory Dates for Broadcasters – Renewals, EEO Reports and Noncommercial Biennial Ownership Reports in Some States; TV Ancillary and Supplementary Revenue Reports; As Well as LPTV Rulemaking Comments and Many Other Expected Actions

The FCC on Friday proposed to amend its rules governing contests conducted by broadcast stations by allowing the required disclosure of the material terms of the contest on the Internet, as an option for broadcasters in lieu of the current requirement that these disclosures be made by broadcasting them on-the-air a reasonable number of times.  But the proposed rule change is not as simple as one would think, with the FCC asking about whether a number of specific obligations should be attached to any online disclosures, even potentially adding the requirement that the full URL for the online disclosure be made every time a contest is mentioned on the air, not simply a reasonable number of times as required under the current rules.  So just what is the FCC proposing, and what is the big issue here?

The rule governing the conduct of broadcaster’s contests, Section 73.1216, covers contests conducted by broadcasters over-the-air.  It does not cover contests by broadcasters that are exclusively conducted online (though, as we wrote here, if the contest is announced on the air, even if primarily conducted online, all the required on-air disclosures apply).  It does not cover contests conducted by third-parties that are broadcast on the air (so contests conducted by an advertiser are not covered by this rule).  The current rule, in addition to requiring that the contest be conducted fairly and in accordance with the rules adopted for the contest, requires that the “material rules” be broadcast on the air on a regular basis so that listeners know what they might win, how to play the contest, and how the winner is selected.  It is this requirement, that the material rules be broadcast on the station, that has led to problems in the past, and thus prompted the proposed changes advanced on Friday.
Continue Reading FCC Proposes To Amend Rules Governing Broadcast Contests – Suggests Allowing Disclosure of Material Terms of the Contest on the Internet