Public Interest Obligations/Localism

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April brings to an end the four-year license renewal cycle that began in 2019 with the filing of renewals by radio stations in the Washington DC area. Our monthly updates, like this one, will thus not be highlighting license renewal dates again until mid-2027.  But there are always other regulatory dates which broadcasters need to note.  There are EEO Public File reports due in April for certain states (as they are every other month), the requirement for all full-power broadcast stations to upload to their public file their Quarterly Issues Programs Lists, and there are a number of rulemaking comment deadlines of interest to broadcasters.  So, let’s look at some of the important regulatory dates for broadcasters in April.   

As April 1 is a Saturday, April 3 is the deadline by which television stations, LPTV stations, TV translators and Class A stations in Delaware and Pennsylvania must file their license renewal applications, bringing to a close the current TV license renewal cycle.  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.  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 repeatedly led to fines imposed on broadcasters during renewal cycles.…

Continue Reading April Regulatory Dates for Broadcasters – License Renewals, EEO Reports, Quarterly Issues/Programs Lists, Rulemaking Comments Including FTC Comments on Noncompete Agreements, and More

Every year at about this time, we worry that radio stations may be tempted to run some big April Fools’ Day stunt.  But, with the country seemingly on edge because of natural and human emergencies in the news almost every day, a prank that may seem funny to some could trigger concerns with others.  As we do every year about this time, we need to play our role as attorneys and ruin any fun that you may be planning by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other on-air bits prepared especially for April 1.  Particularly as the day falls on a Saturday this year, and less experienced personnel who may not be as familiar with legal concerns may be manning stations, a warning seems again to be appropriate.  While a little fun is OK, remember that the FCC has a rule against on-air hoaxes, and there can be liability issues with false alerts that are run on a station.  Issues like these can arise at any time, but a 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.”  If you air a program that fits within this definition and causes a public harm, you should expect to be fined by the FCC.…

Continue Reading Broadcasters Beware – April Fools Day Can Trigger FCC Concerns

This week, the FCC released two Notices of Apparent Liability proposing to impose big fines on two pirate radio operators.  Using the enforcement tools – particularly the higher fines – authorized by the PIRATE Act passed by Congress in 2020, the FCC proposed a to impose a fine of $2,316,034 on one alleged operator of a pirate radio station in the New York City area, and a fine of $80,000 fine on another operator of a pirate station in Oregon.  We’ve written in the past about the FCC sending warning letters to landowners and pirate radio operators threatening big fines if they don’t cease operations (or, for landowners, if they don’t force their tenants to cease illegal operations).  But, as noted in the FCC’s Press Release, this is the first time since the adoption of the PIRATE Act that the FCC has gone beyond the warning phase to issue these notices of multimillion dollar “forfeitures” (fines) on pirate operators and, in the New York case, use the full force permitted by the law to levy the multimillion dollar fine.  Theoretically, the alleged pirates could respond to the Notices and contest the fines, but the FCC’s decisions seem adamant that these operators should be paying a substantial penalty.  It is probably no coincidence that these Notices were issued a little over a month after the FCC sent its annual report to Congress on its activities under the PIRATE Act, promising increased efforts to combat pirate radio in the new year. 

The New York pirate appears particularly brazen, prompting the largest fine yet levied against a pirate radio operator.  According to the Notice of Apparent Liability, two individuals have operated a pirate radio station in the New York borough of Queens for over a decade.  In 2013, the FCC’s Enforcement Bureau issued three Notices of Unauthorized Operation to the operators, warning them that their operations were illegal and needed to stop.  In 2014, agents personally confronted one of the operators who admitted ownership of the equipment, and again told him to stop operating.  When operations continued, a proposed fine of $20,000 was issued in 2015, but never paid or contested.   In 2016, as operations had continued, Federal Marshalls seized the station’s equipment.  Yet the pirate came back and continued operations – even using a website and social media to promote programs hosted by the two individuals named in this week’s Notice.  The FCC emphasized that the repeated, ongoing nature of the violation even after multiple warnings and prior government action prompted its substantial fine.  The PIRATE statute limits fines to $2,316,034 – otherwise, the FCC would have proposed a fine ten times larger, given the nature of the violation and the pirate’s apparent disregard of the FCC’s prior attempts to enforce the law.…

Continue Reading Two Million Dollar Fine for Pirate Radio – Don’t Cross the Commission Again After You’ve Been Caught Once, Especially as More Enforcement Appears to be on the Way

Yesterday’s big news across the broadcast press was that Gigi Sohn, who had for well over a year been the nominee of the Biden administration to fill the open seat at the FCC, withdrew her name from consideration.  This may have been in reaction to circulated stories that there were several Democratic Senators who still were not committed to vote for her nomination without whose support she could not have been confirmed.  Until the Biden administration can make another nomination and have that nominee go through the confirmation process in the Senate, the FCC will continue to have two Democratic Commissioners and two Republican ones, potentially stalling action on some rulemaking matters where there is a partisan split on the pending issue.  We wrote in January in our look at the issues pending before the FCC about some of the issues that the FCC could face in 2023.  In light of the seeming extension of the partisan divide on the FCC, we thought that we would again highlight some of the issues likely to be affected by the current state of the Commission. 

But it is first worth noting that, merely because there is a partisan split among the Commissioners, this does not mean that nothing of significance will happen at the FCC.  As we wrote yesterday, the TEGNA merger was designated for hearing, potentially leading to its demise.  This was done not by an action of the Commissioners, but instead by its Media Bureau.  Interpretations of FCC authority in specific cases by the Media Bureau, the Enforcement Bureau or other lower-level bureaus and offices within the Commission can be just as impactful on any specific company as are the big policy decisions made by the Commissioners themselves.  Just as the TEGNA designation could have significant ramifications for broadcast dealmaking if its conclusions are taken to their logical ends, Bureau-level decisions can set day-to-day policy on many issues if the Commission itself cannot make broader decisions through their rulemaking process.…

Continue Reading Gigi Sohn Withdraws from Consideration for Open Seat as FCC Commissioner – What that Means for Broadcast Regulation

Last week, broadcasters and broadcast journalists were abuzz with discussions of the FCC’s Media Bureau issuing a hearing designation order referring to an Administrative Law Judge questions about the proposed acquisition of the TEGNA broadcast stations by Standard General Broadcasting.  This week brings news that the parties have filed a Motion asking that the Judge certify this designation to the FCC Commissioners to determine whether the case really should have been designated for hearing.  The request that the case be referred to the Commissioners notes that the designation would have the effect of terminating the transaction, as the contract provides the parties only until May to close, and the buyer cannot get the agreement extended.  With so many questions about the TEGNA deal and its designation for hearing, we thought that we would review the hearing designation process and look at the inherent delays in the process which led to the parties’ contention that the designation, if not reviewed by the Commission, will effectively kill the deal.  In a subsequent article, we will look at some of the substantive issues raised by the hearing designation order.

Five years ago, we wrote about the hearing designation process in connection with the last major case where a proposed broadcast transaction was designated for hearing, i.e., Sinclair Broadcast Group’s proposed acquisition of the television stations owned by Tribune Media.  The TEGNA case differs from the Sinclair case in one significant manner, namely that the hearing designation order in the TEGNA case was issued by the Chief of the FCC’s Media Bureau, not by the Commissioners themselves.  In the Sinclair case, the Commissioners issued the hearing designation order, meaning there was no opportunity to ask for the review now being sought by the parties to the TEGNA deal.  When a designation order is issued by a Bureau, the party whose application was designated for hearing can, as in the TEGNA case, ask the presiding Administrative Law Judge to certify the case to the Commissioners before starting the hearing process, if there are questions of law that suggest that the case should not have been set for hearing.  While the Judge can decide to seek the guidance of the full Commission through this kind of certification, the full Commission need not take up the case even if the Judge decides to certify it to them.  Instead, the Commissioners can decide that the hearing should move forward, and that the legal issues can be considered later after the full hearing has taken place.  While that is the procedure set out in the FCC’s rules,  the TEGNA parties argue that were the Judge to certify the case and the Commission did take action, then they intend to directly appeal the matter to the Courts for review (which is normally not allowed until a decision is reached by the ALJ) because the designation for hearing by itself, issued after the application was pending for a year, equates to a the denial of the application.  What in the process for a case once designated for hearing that leads to that conclusion?  Let’s look at the process of setting a case for hearing.…

Continue Reading Parties to TEGNA Deal Seek Full Commission Review of Hearing Designation Order – Looking at the Process They are Trying to Avoid 

March may not have any of the regular FCC filing deadlines, but there are still plenty of regulatory activities going on this month that should grab the attention of any broadcast or media company. Initially, there are several FCC proceedings in which there are dates in March worth noting.

Initially, there are comments in the 2022 Quadrennial Review of the FCC’s ownership rules.  As we wrote in our summary of the issues on which comments are requested when it was released in late December, the proceeding is to look at rules including the local radio ownership rules, the dual network rule (prohibiting the combination of two of the big four TV networks), and other rules not yet resolved.  The FCC is charged with determining every four years whether these rules continue to be in the public interest.  Even though the FCC has never finished the 2018 Quadrennial Review examining these same issues, the FCC nevertheless asks for comments on how these rules affect FCC policies including competition, localism, and diversity.  Comments in this proceeding are due March 3, with reply comments due March 20. …

Continue Reading March Regulatory Dates for Broadcasters – Comment Dates on FCC Ownership Rules, FTC Proposed Ban on Noncompete Agreements, and TV Captioning Rules; Higher FCC Application Fees; Daylight Savings Time Adjustments for AM Stations; and More

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

  • The FCC’s Media Bureau designated for evidentiary hearing a series of applications that, if granted, would transfer control of TEGNA
…

With a number of upcoming regulatory deadlines approaching, we thought that this would be a good time to remind broadcasters of regulatory obligations that they may have, with the passage of time, forgotten.  One of those obligations is the requirement to file EAS Test Reporting System (ETRS) Form One by February 28, 2023 – next Tuesday.  Filing instructions are provided in the Public Notice issued by the FCC earlier this year (see also our articles here and here).  All EAS Participants – including Low Power FM stations (LPFM), Class D non-commercial educational FM stations, and EAS Participants that are silent pursuant to a grant of Special Temporary Authority – are required to register and file in ETRS, with the following exceptions:  Analog and digital low power television (LPTV) stations that operate as television broadcast translator stations, FM broadcast booster stations and FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations, and analog and digital broadcast stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point).  This form provides basic information about EAS participants to the FCC. The form requests basic information about contact persons at a station, the model of EAS equipment used, and monitoring assignments under the legacy EAS system. In effect, it registers all EAS users in the ETRS system so that they can file reports on (using ETRS Forms Two and Three) about the performance of Nationwide EAS tests that are periodically conducted.  We are expecting a Nationwide Test in 2023.  While the FCC has not in the past fined stations who failed to file these reports, there are indications that the filing requirement may be taken much more seriously this year.  So, remember to file – and carefully read the Public Notice and the form to make sure that all necessary information is properly uploaded.

On the subject of EAS, the FCC recently released a new 2023 version of the EAS Operating Handbook. A copy of the Handbook must be located at normal duty positions of station operators or at the location of EAS equipment where it can be immediately available to staff responsible for authenticating messages and initiating actions. The handbook provides duty operators information about what to do when EAS alerts (tests or real activations of the system) are received by the station.  The new handbook updates the old handbook in a limited fashion, but it also provides stations an opportunity to update their own practices as the Handbook requires that the broadcaster provide information in spaces provided in the Handbook as to the broadcaster’s specific equipment and procedures at their stations.  Stations should download this Handbook and make sure that it is available as required. …

Continue Reading Regulatory Bits and Pieces – ETRS Form One and Delayed Public File Uploads Due by February 28, Updated EAS Handbook Required for All Stations

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

  • The Senate Commerce Committee announced that it will hold a hearing on February 14 on the long-delayed nomination of Gigi
…

The FCC yesterday issued a Public Notice, extending the deadlines for all filings that were due to be made next week in the FCC’s LMS or online public file systems.  The new deadline is February 28, 2023.  While we don’t usually post articles on this blog on Saturday, given that there may be broadcasters around the country hunched over their computers trying to make FCC filings due next week, we thought that we would make an exception today and send this alert.

This extension gives more time to broadcasters to upload many applications and reports that are due to be filed next week.  This includes license renewals that were due to be filed by February 1 by television stations, LPTV stations, TV translators, and Class A stations in New York and New Jersey.  For all commercial TV stations in the country, the Annual Children’s Programming Reports which were due January 30 are now due by February 28.  Quarterly Issues Programs lists for all broadcast stations, which originally were due to be uploaded to station public files by January 10 and then by January 31 per a prior FCC extension, must now be uploaded by February 28.  EEO Public File Reports for broadcast employment units with 5 or more full-time employees in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma were due to be uploaded to the online public file by February 1 – and that deadline too will be extended to February 28.  The Public Notice is broad, saying any public file document due to be upload or any FCC application to be filed through LMS are extended until February 28.  If you have any FCC deadline coming up, check with your attorney to see if it is covered by this extension.  Remember that this applies only to applications and reports to be filed through the FCC’s LMS and online public file systems. …

Continue Reading FCC Extends End of January Deadlines for LMS and Online Public File Documents Due to Filing System Technical Issues