Public Interest Obligations/Localism

With many people now entering their third month of complying with stay-at-home orders and social distancing and summer being right around the corner, it would be easy for broadcasters to look past their regulatory obligations to focus on the day when they can ramp up operations and profits.  As you can read below, however, June is a busy month with important obligations for many stations.

June brings the start of summer and the start of the license renewal cycle for television stations.  By June 1, full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia and full-power AM and FM stations and LPFM and FM translators in Michigan and Ohio must file their license renewal applications. Those stations should already be close to completing their renewal applications, looking to file them on or before the June 1 deadline.  See our article here on the FCC’s announcement of the newly-revised procedures for filing TV license renewal applications.  On June 1 and again on June 16, stations filing renewals need to broadcast their post-filing announcements informing their audiences of the filing of the renewal application.
Continue Reading June 2020 Regulatory Dates for Broadcasters: License Renewals, EEO Reports, Broadcast Internet Consideration, and Comments on Significant Viewing, DTS, White Spaces, Regulatory Fees, and Video Description

Taking a station off the air is often the last resort of a broadcast company in desperate financial times.  While Payroll Protection Act loans have helped many small broadcasters avoid that action even in light of the dramatic decrease in broadcast advertising revenue in the last two months, and some relief may come in areas of the country looking at some reopening of business in the coming weeks, we have still heard of some stations that just can’t manage continued operations in this period of turmoil – either for financial or operational reasons caused by the current health crisis.  If this action is in the cards for your station because of the pandemic or for any other reason including technical failures, do not forget about the FCC requirements for taking a station silent.

When a broadcast station goes silent, it must notify the FCC of that status within 10 days of going off the air.  If the situation will continue for a longer period, a request for Special Temporary Authority providing the reasons for going off the air must be filed within 30 days of going silent.  These STAs are granted for no more than 6 months at a time, so that date should be noted for the filing of any extension that may be needed.  But be careful, as if a station is silent for a full year, Section 312(g) of the Communications Act provides that the license will be cancelled unless the FCC makes an affirmative finding that there are special public interest reasons for not taking that action (a finding made in very rare cases).  When stations resume operations, they must notify the FCC that they are back on the air.  But to be considered back on the air, there must be programming – running a test pattern is insufficient (see the case we wrote about here).  Even with authority to remain silent, there are risks.
Continue Reading Broadcast Stations Going Silent – What You Need to Do

Trying to stay on top of regulatory developments for broadcasters is difficult even in normal times.  There are always day-to-day obligations that distract from a focus on legal and regulatory questions – and there are so many developments almost every week that we can’t always write about everything that may have occurred.  So we thought that we would introduce a new feature – each weekend providing a list of some of the regulatory actions of importance to broadcasters that occurred in the prior week, with links to where you can go to find more information as to how these actions may affect your operations.

In addition, to provide information on dealing with the FCC during the pandemic, and on the many actions that the FCC has taken during the last 6 weeks – both those dealing with the current crisis and decisions made in processing its normal workload relating to broadcasting – we conducted a webinar last Tuesday on these issues.  You check out that webinar presented to broadcasters across the country, available by clicking on this link.  And here are some of the regulatory actions announced last week of importance to broadcasters that have been announced since then :


Continue Reading This Week at the FCC: April 18, 2020 to April 24, 2020

Recently, FCC staff dismissed a request by the organization Free Press asking the FCC to investigate the broadcast of the President’s press conferences on the coronavirus and programs where commentators supported the President’s pronouncements.  In addition to an investigation, the request asked that the FCC require that broadcasters “prominently disclose when information they air is false or scientifically suspect” in relation to these press conferences and other broadcasts.   Free Press suggested that the FCC had the authority to take this action under its broad mandate to regulate in the public interest.  It also cited the FCC’s hoax rule as providing support for such an action.  As we have written before, the hoax rule is designed to prevent broadcasts that pose the risk of imminent harm to the public by potentially tying up first responders and emergency response teams for purported disasters and crimes that are not real.  FCC staff dismissed the Free Press complaint, finding that the FCC is forbidden by Section 326 of the Communications Act from censoring the speech of broadcasters or otherwise abridging their freedom of speech.  These First Amendment principles largely keep the FCC out of content regulation (with the limited exceptions of regulation in areas like indecency, obscenity and sponsorship identification where the message is not being censored, just certain means of expression).

In the Free Press decision, the FCC concluded that, in covering a breaking news story like the pandemic, it would be impossible for a broadcaster to fact check every statement made in a press conference and correct any misstatements in anything approaching real time, as there is so much room for interpretation of any statement made on these ongoing matters.  It would also be impossible for the FCC to police any such mandate without trampling on First Amendment principles, as it would require the FCC to become the arbiter of the truth for many claims made on television.  The FCC declined to take on that role, and noted that the hoax rule is narrowly drawn to avoid these First Amendment issues.  That rule only punishes clearly false broadcasts that could foreseeably tie up first responders or cause substantial public harm.  It does not get the FCC involved in evaluations of the truth of political statements and policy pronouncements.  This is a position that has consistently been taken by the FCC, and one that we often see misstated in connection with demands for the take-down of issue advertising and non-candidate political attack ads.
Continue Reading FCC Denies Application of Hoax Rule to Trump Press Conferences on COVID-19 – Looking at the First Amendment and the Commission’s Regulation of Political Speech

On Friday, the FCC (with the Department of Justice) and a group of interested media industry companies filed requests asking that the Supreme Court review the decision of the Third Circuit overturning the FCC’s 2017 decision on its ownership rules (the FCC petition for a writ of certiorari is available here).  The FCC’s 2017 decision abolished the newspaper/broadcast and radio/television cross-ownership rules, and made changes to the local television rule and other ownership rules (see our post here on the 2017 decision).  Last September, a three-judge panel of the Third Circuit overturned the rule changes, not necessarily disagreeing that times had changed and that the new media marketplace justified a relaxation in the ownership rules, but instead finding that the FCC had not done an adequate job in assessing the impact of the rule changes on minorities and other potential new entrants to the broadcast industry (see our article here on the court’s decision).

After the court’s decision, the FCC and the interested industry parties sought review by all of the judges on the Third Circuit of the decision made by the three-judge panel, a review that was denied last year (see our article here).  That led to the FCC’s order immediately before Christmas, reinstating the pre-2017 rules and requiring that broadcasters comply with those rules when filing new applications (see our article here).
Continue Reading FCC and Industry Groups Ask for Supreme Court Review of Third Circuit Ownership Decision

In the last three weeks, we have written about actions that the FCC has taken to help broadcasters through the current crisis caused by the COVID-19 virus.  The FCC appears to realize that the business of broadcasting in the current crisis is vastly different than it was just a month ago.  The FCC has provided

Many stations seem unsure of how to apply the recent FCC guidance  that no charge spots given to advertisers to help them through the pandemic do not need to be counted in computing a station’s Lowest Unit Charge, as long as the no-charge spots are not part of paid advertising contracts and are not

The FCC on  Friday released a Public Notice announcing that they are giving stations more time in which to upload their Quarterly Issues Programs lists to their online public file and to file their first Annual Children’s Television Report.  In our list of April regulatory dates for broadcasters last week, we had highlighted both of those filings.  Because of the disruption of the schedules of so many people, and the lack of access to many broadcast stations, the FCC appears to have decided that broadcasters should get more time to meet these regulatory obligations.

Quarterly Issues Programs lists are required to be uploaded to the online public inspection file of all full-power stations every quarter – and would normally be required to be in the public file by April 10.  While urging stations to upload those lists as soon as possible, the Commission has given stations until July 10 (when the next quarter’s lists will be due) to upload this quarter’s report.  So the two reports could be uploaded at the same time.
Continue Reading FCC Announces Extensions of Deadlines to Upload Quarterly Issues Programs List and to File Annual Children’s Television Report

Yesterday, the FCC released two public notices reflecting its attempts to assist broadcasters coping with the COVID-19 crisis.  The first public notice deals with the attempts of several broadcasters to support their advertisers while at the same time filling advertising inventory holes that have been created by the cancellation of other advertising schedules.  Broadcasters who

Life has been upended for most Americans due to the spread of the coronavirus and that tumult is, of course, reaching broadcasters as it reaches others throughout the country.  As we wrote here, like many agencies and businesses, as part of its COVID-19 response, the FCC has moved most of its workforce to teleworking in an attempt to keep FCC staff and their families safe.  With most FCC forms and filings being submitted electronically, and remote work already being routine for many FCC employees, there should be minimal disruption to broadcasters’ routine daily dealings with the Commission.  Broadcasters should continue to comply with all FCC rules, including meeting filing deadlines, though it does appear that the FCC is willing to be flexible with some deadlines, especially when a broadcaster can point to virus-related reasons that the deadline cannot be met.  Check with your attorney on specific deadlines.  And check our article from yesterday highlighting some issues to consider while preparing for whatever comes next.

While there is much disruption to normal routines, the routines of regulatory life largely carry on.  For instance, before moving on to April deadlines, we should remind TV broadcasters that, if they have not already done so, their first Annual Children’s Television Report is due to be submitted to the Commission by March 30.  See our articles here and here on that new report.
Continue Reading April Regulatory Dates for Broadcasters: The FCC May Be Teleworking, But Regulation Goes On