The FCC yesterday released a Public Notice calling for public comment on the state of the communications marketplace so that it can prepare a report to Congress – a report that is required every even-numbered year.  The Notice calls for comments on the state of competition in various sectors of the communications industry – including for audio and video.  The inclusion of audio in this report is relatively new – being included for the first time two years ago (see our article here).  Comments in this proceeding are due on April 13, with replies due May 13.

The Audio Competition Report prepared two years ago was very important in informing the FCC as to the state of competition in that segment of the market.  Comments filed with the Commission on the report were incorporated in the record of the FCC’s Quadrennial Review Notice of Proposed Rulemaking which entertained the possibility of changes in the ownership rules for broadcast radio in light of the substantial competition that comes from digital audio sources (see our article here on the Quadrennial Review NPRM).  Whether this year’s report will be as crucial is unknown, as the Third Circuit Court of Appeals decision on the FCC’s 2017 ownership rule changes have, for now, put all broadcast ownership changes on hold while the FCC (and the Department of Justice) decide whether to appeal that case to the Supreme Court or to attempt to answer the Third Circuit’s concerns that the FCC had not sufficiently addressed the impact of changes in its ownership rules on minority ownership (see our articles here and here).  While these decisions are being made, it appears that all ownership changes are on hold.
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As the calendar flips to March, many of us have put our trust in Punxsutawney Phil’s weather forecasting expertise that an early spring is coming.  A surer place to put our trust, however, is in the guarantee that there are always some regulatory dates about which broadcasters should be aware.  While March is a month without with many of the regularly scheduled deadlines for renewals, EEO public file reports or Quarterly Issues Programs lists, there are still plenty of regulatory dates about which you should take notice.

The closest we come in March to a broadly applicable FCC filing deadline is the requirement that, by March 30, 2020 television broadcasters must complete and submit through LMS the FCC’s new Form 2100, Schedule H documenting their compliance with the requirements under the children’s television (KidVid) rules to broadcast educational and informational programming directed to children.  This report will document that programming from September 16, 2019 (when the new KidVid rules went into effect) to December 31, 2019.  The March 30 date is a transitional date as the FCC moves away from the old quarterly children’s television reports to ones that will be filed annually – in future years by the end of January.  This year, however, the FCC took time to develop the form for the new annual report and to explain how it should be used, thus the extra time to file.  Once filed, TV broadcasters won’t file another children’s television report until early 2021 reporting on compliance for all of 2020.  For more on the transition to the new KidVid obligations, read our articles here, here, and here.  To learn how to work with the new form, watch the FCC’s archived instructional webinar here.
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In a decision released this week, the FCC reiterated a policy of being very tough on petitions to add communities to television markets to change the stations that are considered to be part of the market for cable and satellite carriage purposes.  This strict compliance policy was set out in another case decided

Most years, at some point in January, we look into our crystal ball and try to see some of the legal and regulatory issues likely to face broadcasters.  We already provided a calendar of the routine regulatory filings that are due this year (see our Broadcaster’s Regulatory Calendar).  But not on that calendar are the policy issues that will affect the regulatory landscape in the coming year, and into the future.  This year, the biggest issue will no doubt be the November election.  Obviously, broadcasters must deal with the many day-to-day issues that arise in an election year including the rates to be charged political candidates, the access to airtime afforded to those candidates, and the challenges associated with the content of issue advertising that non-candidate groups seek to transmit to the public.  The election in November will also result in a President being inaugurated in just less than a year – which could signal a continuation of the current policies at the FCC or potentially send the Commission in a far different direction.  With the time that the election campaigns will demand from Congress, and its current attention to the impeachment, Congress is unlikely to have time to tackle much broadcast legislation this year.

The broadcast performance royalty is one of those issues likely on hold this year.  While it was recently re-introduced in Congress (see our article here), it is a struggle for any copyright legislation to get through Congress and, in a year like the upcoming one, moving a bill like the controversial performance royalty likely will likely not be high on the priorities of Congressional leaders.  This issue will not go away – it will be back in future Congresses – so broadcasters still need to consider a long-term strategy to deal with the issue (see, for instance, our article here on one such strategy that also helps resolve some of the music royalty issues we mention later in this article).
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Earlier this week, the FCC’s Enforcement Bureau released an Order approving a consent decree with Scripps Broadcasting where Scripps agreed to pay a penalty of $1,130,000 for perceived violations of the FCC’s rules requiring tower light monitoring for towers used by a number of TV stations that it had recently purchased.  The company also agreed to adopt numerous procedures to insure continuing compliance, including notification to the FCC of future issues.  The FCC began the investigation when a plane crashed into one station’s tower.  While the FCC specifically states that it did not find any evidence that any of the “irregularities” in the tower monitoring process contributed to the plane crash, the crash opened the door to the FCC’s investigation of the company’s tower light monitoring process at all of its stations, leading to this fine.  Are you ready for such an investigation?

In the consent decree, the Commission cites various tower-related FCC rules that must be observed by tower owners.  The rules include Section 17.47(a), which requires antenna structure owners to monitor the status of a structure’s lighting system by either (1) making “an observation of the antenna structure’s lights at least once each 24 hours either visually or by observing an automatic properly maintained indicator designed to register any failure of such lights” or (2) by “provid[ing] and properly maintain[ing] an automatic alarm system designed to detect any failure of such lights and to provide indication of such failure to the owner.”  That rule also requires that the tower owner inspect any automatic monitoring system at least once every 3 months to make sure that it is working correctly, unless the owner is using a system certified as reliable and not requiring such inspection by the Wireless Bureau of the FCC (see our articles here and here where FCC fines were issued when monitoring systems did not alert the tower owner of tower lighting issues). 
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While many of us were trying to enjoy the holidays, the world of regulation kept right on moving, seemingly never taking time off.  So we thought that we ought to highlight some of the actions taken by the FCC in the last couple weeks and to also remind you of some of the upcoming January regulatory deadlines.

Before Christmas, we highlighted some of the regulatory dates for January – including the Quarterly Issues Programs Lists due to be placed in the online public file of all full-power stations by January 10.  Also on the list of dates in our post on January deadlines are the minimum SoundExchange fees due in January for most radio stations and other webcasters streaming programming on the Internet.  January also brings the deadline for Biennial Ownership Reports (postponed from their normal November 1 filing deadline).

In that summary of January regulatory dates, we had mentioned that the initial filing of the new Annual Children’s Television Programming Report would be due this month.  But, over the holiday week, the FCC extended that filing deadline for that report until March 30 to give broadcasters time to familiarize themselves with the new forms.  The FCC will be doing a webinar on the new form on January 23.  In addition, the FCC announced that many of the other changes in the children’s television rules that were awaiting review under the Paperwork Reduction Act had been approved and are now effective.  See our article here for more details.
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The FCC gave a present to TV broadcasters at the end of the week before Christmas by issuing a Public Notice announcing the effective date of the remaining changes to the children’s television rules, and postponing the filing date for the initial Children’s Television Programming Report, which was to be filed by January

With many Americans using the holiday season to rest and recharge, broadcasters should do the same but not forget that January is a busy month for complying with several important regulatory deadlines for broadcast stations.  These include dates that regularly occur for broadcasters, as well as some unique to this month.  In fact, with the start of the lowest unit rate windows for primaries and caucuses in many states, January is a very busy regulatory month.  So don’t head off to Grandma’s house without making sure that you have all of your regulatory obligations under control.

One date applicable to all full-power stations is the requirement that, by Friday, January 10, 2020, all commercial and noncommercial radio and television stations must upload to their online public file their quarterly issues/programs list for the period covering October 1 – December 31, 2019.  The issues/programs list demonstrates the station’s “most significant treatment of community issues” during the three-month period covered by each quarterly report.  We wrote about the importance of these reports many times (see, for instance, our posts here and here).  With all public files now online, FCC staff, viewers or listeners, or anyone with an internet connection can easily look at your public file, see when you uploaded your Quarterly Report, and review the contents of it.  In the current renewal cycle, the FCC has issued two fines of $15,000 each to stations that did not bother with the preparation of these lists (see our posts here and here on those fines).  In past years, the FCC has shown a willingness to fine stations or hold up their license renewals or both (see here and here) over public file issues where there was some but not complete compliance with the obligations to retain these issues/programs lists for the entire renewal term.  For a short video on the basics of the quarterly issues/programs list and the online public inspection file, see here.
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Earlier this week, the FCC released a Public Notice announcing its plans for the initiation of new annual reporting requirements for TV stations under the revised Children’s Television Rules. As we wrote here, the FCC this summer adopted changes in the rules governing the broadcast of educational and informational programming directed to children. These changes included the abolition of the Quarterly Children’s Television Reports and their replacement with an annual Children’s Report to detail a station’s performance in meeting the new educational and informational programming requirements. Earlier this fall, the FCC released guidance on the reporting of information from the third quarter of this year, as the new rules became effective on September 16 (see our article here). The Public Notice released this week covers the full transition to the annual reports.

The FCC anticipates the revised annual report will be ready for use in the FCC’s LMS database by January 1, 2020.  Children’s television programming aired on or after the September 16, 2019 effective date of the new rules will be reported by commercial full power and Class A television stations on a broadcaster’s first annual Children’s Report, which will be due no later than January 30, 2020. The FCC’s Media Bureau will issue another public notice announcing the actual effective date of the revised form.    
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The FCC last week announced an extension of the deadline for initial comments in its proceeding to examine the regulatory fees that are paid by VHF television stations. We wrote here about this Further Notice of Proposed Rulemaking, which asked questions including whether VHF television stations and stations in the FCC’s incubator program