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David Oxenford represents broadcasting and digital media companies in connection with regulatory, transactional and intellectual property issues. He has represented broadcasters and webcasters before the Federal Communications Commission, the Copyright Royalty Board, courts and other government agencies for over 30 years.

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

  • Political advertising will continue to blanket the airwaves for the next month and a half and

Now that we are immersed in the heart of the political broadcasting season, issues of sponsorship identification regularly arise.  For on-air broadcasts, any paid advertisement that conveys a message dealing with any controversial issue of public importance (state or federal) requires at a minimum an on-air sponsorship identification stating that the ad was “paid for” or “sponsored by” the person or organization that paid for the time.  Federal candidates have a more extensive obligation for identifying themselves in their ads, particularly if they mention an opposing candidate.  These identification rules come both from the FCC (which stations need to enforce) and from the Federal Election Commission, which are the responsibility of the candidate and their campaign committee.  To help sort out some of these obligations, and the requirements for political disclosure statements and federal candidate certifications that entitle them to lowest unit rates, check out this video that I prepared for the Indiana Broadcasters Association as part of a series on political broadcasting topics:  https://www.indianabroadcasters.org/iba-news/political-advertising-requirements-with-iba-washington-counsel-david-oxenford/

The video covers the requirements of broadcasters to ensure that the proper sponsorship identification is contained in political advertising.  Online political advertising, however, is much more complicated as there is no single body of law that governs those responsibilities.  As we wrote here, the FEC has general requirements providing that online political advertising must have sponsorship identification. The FEC also has an open proceeding to mandate more stringent sponsorship identification obligations akin to those required on broadcast and local cable political advertising.  Last week, the Congressional Research Service issued a study on the state of the law regarding online political advertising, highlighting the many issues involved in providing more robust political disclosures.  These issues are at least partially triggered by the many players involved in online advertising sales.  There is a very readable outline on pages 16-19 of the report on all the players in the digital advertising ecosystem – with intermediaries, including demand- and supply-side platforms, that complicate the usual direct interaction between the media outlet and the advertising buyer, which in turn complicates the political compliance process for sponsorship identification.  The study, on page 18, even cites to the article that I wrote discussing the concerns about sponsorship identification in any programmatic political advertising.
Continue Reading Sponsorship of Political Advertising On-Air and On-Line – A Video Presentation and a Congressional Research Service Study

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

  • Information on the FY 2020 regulatory fee process continues to roll out, in advance of the

The Media Bureau yesterday issued its Fact Sheet for the Annual Regulatory Fees for 2020 – expanding on the information available in the various public notices released last week, about which we wrote here.  This Fact Sheet sets out the general information as to how much is owed by various classes of broadcast stations.  The actual fees owed by each station can be determined by entering the station’s call letter or Facility ID Number in the appropriate box on this FCC webpage.  Contact the FCC if you believe that your fee assessment is incorrect.

In addition to the exemption from fees for any entity whose total regulatory obligation is less than $1000, the Fact Sheet also makes clear that FM translators, TV translators and LPTV stations that were not licensed as of October 1, 2019 need not pay a fee.  If, for instance, you received a construction permit for a new FM translator that was not built and licensed until January 2020, then no fee is due. Caution, however, if that station had previously been licensed at a different location (or for LPTV or TV translators, on a different channel), and your construction permit just authorizes a change in an already licensed facility, fees do need to be paid.  Similarly, if a station was licensed on October 1, 2019 and has since been surrendered or cancelled, a fee is still theoretically due.
Continue Reading Media Bureau Regulatory Fee Instructions Issued – No Fees for Translator CPs

The FCC released a Public Notice late Friday afternoon announcing the annual regulatory fees for 2020 will be due by 11:59 PM Eastern Time on September 25, and setting out the procedures for payment.  Another Public Notice announced that the fee filing system is now open to accept fee payment.  A third Public Notice set out the procedures for asking for a waiver of the fees based on financial hardship.  That notice also sets out how licensees can ask for permission to pay on an installment basis.  A further public notice from the Media Bureau, providing details on the filing process for broadcasters, should be released shortly (Update – 9/9/20 – you can read about the Media Bureau Fact Sheet here).

The procedures Public Notice makes clear that all payments need to be made electronically using the Fee Filer system.  These payments can be made by any of the following methods:

  • Credit Card (i.e., Visa, MasterCard, Discover, and American Express) via Fee Filer
  • Wire Transfer
  • ACH/Debit from a Bank Account via Fee Filer
  • Visa or MasterCard Debit Card via Fee Filer

However, you cannot rack up unlimited points on your credit card, as credit card transactions are limited to $24,999.99 in a single day.  The FCC also made clear that entities that owe total annual regulatory fees of $1000 or less are exempt from paying the fees, as these fees are considered de minimis – essentially the costs of collection outweigh the amount that the FCC would otherwise receive.
Continue Reading 2020 Annual Regulatory Fees Due by September 25 – Fee Filer Now Open and FCC Accepting Waiver Requests

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

  • The FCC released its Report and Order on annual regulatory fees for fiscal year 2020 and,

The FCC yesterday dismissed a Petition for Reconsideration of its reexamination of the criteria that it uses for determining which application is granted when there are conflicting applications filed in any window for the filing of new noncommercial FM stations.  We wrote about the reexamination of the noncommercial selection criteria in our article here.  We did not mention the specific issue that was raised in the request for reconsideration, which is explained in more detail below.  The decision resolving this Petition may also be the last step before the FCC opens a window for applications for new stations in the FM reserved band (below 92 FM), something that has not happened in a decade.

In the reconsideration petition, one party asked the FCC to change the position that it has long taken – that if the FCC has to use its points system (the system that awards points for certain favored criteria – criteria including favoring local applicants who are well-established in a community and don’t already have another media outlet and those owned by statewide organizations) to decide between mutually exclusive applications – it will select only one winner even if, by selecting that one winner, other applications may have no technical conflict with the winning application.  The petitioner asked that, in this situation, the FCC grant additional applications once it has decided on the preliminary winner.  Let’s look at how this situation can arise.
Continue Reading FCC Dismisses Petition for Reconsideration of Reexamination of Noncommercial Licensing Policy – Next Step, Window for New Applications?

The FCC’s order on this year’s annual regulatory fees was released by the FCC this week.  The FCC rejected calls to forgive broadcast regulatory fees because of the economic fallout of the pandemic, noting that only Congress could pass such relief, as the FCC is required by law to collect fees sufficient to cover the costs of its operations.  The Commission did, however, offer some terms for the payment over time of the fees by companies that are hard-hit by the economic conditions that resulted from COVID-19, and simplified the waiver process for stations that can demonstrate that they cannot pay the fees without imperiling their service to the public.  The order also rejected the NAB’s request to revisit the fees for radio, though some minor downward adjustments were made in those fees based on the FCC’s finding that it had undercounted the number of radio stations that were to share in the payment of these fees.

The FCC determined that it could not waive all regulatory fees for broadcasters, or broadly excuse them from the 25% late-payment penalty, because these obligations are in the statute and cannot be waived without Congressional authorization.  The FCC is required by law to collect these fees before the October 1 start of the next fiscal year in an amount sufficient to reimburse the US Treasury for the costs of operating the Commission.  While the FCC felt itself powerless to totally waive the rules, it did simplify the process for individual stations to make requests for waiver of the fees if the payment of the fees would imperil their ability to serve the public or to extend the payments out over time – without the need for any upfront payment of a significant portion of the fees.  The FCC noted that the Office of the Managing Director will be issuing a separate Public Notice establishing the process for asking for waiver or deferral, so watch for the notice coming soon as these request will likely need to be filed before the payment deadline, which will also be established in a subsequent public notice.  But the Order does say that the requests for waiver and payment over time can be made in a single email to the FCC, and that the Managing Director’s office is to work with broadcasters to try to help them provide the necessary documentation to support the waiver or deferral of payments.
Continue Reading FCC Releases Order on Regulatory Fees – No Widespread Waivers of Fees But Some Deferred Payments Possible – Payment Dates Coming Soon

Here are some of the regulatory and legal developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how they may affect your operations.

  • The FCC this week released a Notice of Proposed Rulemaking proposing changes to the fees it charges broadcasters for

As broadcasters continue to respond to the coronavirus while sometimes juggling work duties with family responsibilities like at-home virtual schooling, it would be easy to overlook regulatory dates and responsibilities.  This post should help alert you to some important dates in September that all stations should keep in mind – and we will also provide a reminder of some of the dates to remember in early October.  As in any year, as summer ends, regulatory activity picks up – and this year appears to be no different.

Each year, in September, regulatory fees are due, as the FCC is required to collect them before the October 1 start of the new fiscal year.  We expect that the final amount of those fees, and the deadlines and procedures for payment, should be announced any day.  For broadcasters, one of the big issues is whether those fees will be adjusted downward from what was initially proposed by the FCC in their Notice of Proposed Rulemaking in this proceeding.  The National Association of Broadcasters has been leading an effort (we wrote about this here and NAB detailed recent meetings between CEO Gordon Smith and members of its legal department with FCC staff here and here) urging the FCC to reduce the amount of fees owed by broadcasters, in part because of the financial toll the pandemic has taken on the industry and in part because the proposed fee structure, which is determined by estimates as to how many FCC staffers are detailed to regulating an industry and the related benefit that industry receives, inaccurately reflects the number of FCC employees who work on radio issues.  Look for that decision very soon.
Continue Reading September Regulatory Dates for Broadcasters: Annual Regulatory Fees, Lowest Unit Rate Window Opening, C-Band Reimbursement, Rulemaking Comments and More