There is never a shortage of Washington issues for broadcasters to consider, and the rapid pace of change since the new administration took over in January has made it even more difficult to track where all the issues stand. While we try on this Blog to write about many of the DC issues for broadcasters, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and the latest version, published last week, is available on their website, here. It provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of other issues including the Incentive Auction, EEO compliance, Political Advertising and Sponsorship Identification, along with dozens of other topics, many with links to our more detailed discussions here on the Blog. Of course, these issues change almost daily, so watch this blog and other trade publications for the latest Washington news of interest to broadcasters.

The FCC has issued a series of public notices to broadcasters and other FCC regulated entities in the path of Hurricane Irma. General guidance was issued by the FCC, here, discussing how stations can get special temporary authority to operate with facilities different than those specified in their licenses by email or even by telephone during the emergency. This may be particularly important if stations towers or antennas are damaged by the storm and, to continue service, stations need to use alternate facilities. During the recent Texas Hurricane harvey, the FCC even issued some daytime only AM stations authority to temporarily operate with nighttime operations where they were providing emergency information. If STAs are needed, the public notice provides information about where to call or email

The FCC has also activated its Disaster Information Reporting System for the Virgin Islands and Puerto Rico, and is likely to extend it to portions of Florida in the near future. This system is used by stations and other licensees to report cessation or changes to their operations. In some cases, reporting these details may provide a station with access to information about how to speed the delivery of equipment, fuel or other emergency supplies to stations in the affected areas. The reporting system is voluntary, but encouraged by the FCC.

We obviously hope for the safety and security of all in the affected areas, and thank all the broadcasters who will, in the coming days, be spending countless hours reporting important information to the residents of their service areas. As always, they provide an invaluable service at times like there, and we all pray that everyone stays safe.

 

We yesterday wrote about Chairman Pai’s promise to start the process of modernizing media regulation by abolishing a simple but outdated rule – one requiring that each broadcast station have a physical copy of the FCC rules on the station premises. Yesterday, the FCC released a draft of their Notice of Proposed Rulemaking to implement that change in the rules. That draft will be considered at the FCC meeting later this month (on September 26), after which a final copy of the NPRM will be released, and later published in the Federal Register setting formal comment dates. It is a very small step toward the modernization of media regulation sought by the Chairman, but a step nevertheless.

 

FCC Chairman Ajit Pai spoke on Wednesday at the opening lunch at the NAB Radio Show in Austin, promising more moves to bring media regulation in line with the realities of the modern media marketplace. In his speech, the text of which is available here, the Chairman promised several actions including the following:

  • A monthly Notice of Proposed Rulemaking suggesting a media rule change prompted by suggestions made in the Modernization of Media Regulation proceeding we wrote about here and here.
  • The first proposal for deregulation coming for the September FCC meeting is a modest one, probably chosen as symbolic of the rules that are outdated and unnecessary – the proposal being to eliminate the rule that requires that a broadcaster have a hard copy of the FCC rules at their station. While not a rule that is ever enforced, it is still notable in that the proposal is being advanced only about a month after the end of the comment period on Media Modernization and illustrates a rule that clearly is unnecessary in a day when any broadcaster can access any FCC rule at any time via the Internet.
  • The Chairman stated that he had reviewed the comments in the proceeding to abolish the rules requiring main studios for all broadcast stations, and he concluded that these rules were no longer necessary and would be presenting an Order to implement their abolition before the end of the year.

The Chairman also announced that there would be a further order dealing with AM technical rules released this week as part of is initiative to improve the AM service. He also summarized the FCC’s recent get tough policy on pirate radio (about which we wrote here), promising to use all tools at the FCC’s disposal to demonstrate that there is no place for pirate radio.

The speech demonstrated, once again, how this FCC has a far different perspective on broadcasting than prior Commissions. In fact, the Chairman started his speech with a recitation of the important role that broadcasting had played in addressing the many issues posed by the recent Texas hurricane and lauding their assistance in relief efforts. It was a well-received presentation that will, no doubt, stir many broadcasters to eagerly anticipate the upcoming proposals for more changes in the FCC’s media rules.

The FCC late yesterday released an Order setting the amount of FY2017 Annual Regulatory fees, along with a public notice setting September 26 as the deadline for those fees. Reg fees may be paid now through September 26. If not paid by 11:59 PM Eastern Time on that date, penalties of 25% will be assessed. In addition, applications by any licensee that has not paid its fees may be held by the Commission without action until the fees are paid, and can even end up resulting in a license cancellation in cases where the failure is a long-term unresolved issue.

The public notice also makes clear that fees can only be paid by electronic transfer of funds. Checks and money orders will not be accepted. Only payments by credit cards or electronic transfer of funds will be allowed. Credit cards can only be used for payments up to $24,999.99 by any entity. Only commercial stations need to pay these fees. A fact sheet for Media Services is available here and contains more details on the fees and procedures for payments by broadcasters. But the amounts of the fees for various classes of broadcasters were set by the FCC’s Order also released yesterday. Continue Reading FCC Regulatory Fees Due By September 26

The FCC on Friday announced that they were extending the deadline for filing Biennial Ownership Reports by broadcasters from December 1 to March 2, 2018 to be sure that the new version of the form in the FCC’s LMS database will be up and ready to be used. The FCC will open the window for filing these ownership reports on December 1 (which was to be the deadline). However, the reports will still report on the ownership of each broadcast station as of October 1, 2017, meaning that station owners who sell their station between October 1 and the new deadline are being told by the FCC that they will need to file their own biennial reports – even if they no longer own any broadcast stations.

We have written about these reports in the past, and about the particular controversy about whether noncommercial broadcasters needed to obtain an FCC Registration Number (FRN) for each of its owners (see our article here about the FCC decision to not require that information). This is the first time that noncommercial entities will be filing their Biennial Reports at the same time as commercial broadcasters. Noncommercial broadcasters previously filed on the anniversary date of their license renewal filing, a system put on hold last year in anticipation of this year’s filing deadline.

Last week, the FCC reached a consent decree with a noncommercial broadcaster, where the broadcaster paid an $8000 penalty for, among other things, running underwriting spots that were too promotional. While the consent decree and its implementing order provide no details on the underwriting violations by the broadcaster, we can assume that the broadcaster ran spots that somehow crossed the line – giving price information about a sponsor’s products, or including a call to action suggesting that listeners somehow patronize the sponsor, or making qualitative claims about the sponsor or its products or services. We have written about similar violations many times (see, for instance, our articles here, here, here, here and here) and I have conducted seminars for numerous noncommercial broadcasting organizations talking about specifics as to what is permitted in underwriting acknowledgements and what will get a noncommercial station into trouble (see for instance, the presentations mentioned here and here). Obviously, it is important that noncommercial stations pay attention to these restrictions. But, last week, I received a question that indicated that not all noncommercial stations realize that, while their ability to promote a commercial enterprise is limited, these same restrictions do not apply to on-air spots for other nonprofit organizations.

About 35 years ago, Congress changed the provisions of the Communications Act to redefine what a noncommercial station can and cannot do. Noncommercial stations obviously cannot run commercials. But the language of the statute makes clear that commercials are promotional announcements for profit businesses. In looking at that statutory change, after much discussion, the FCC concluded that the restrictions on underwriting announcements that apply to these noncommercial businesses do not apply to promotional announcements for nonprofit entities. Continue Reading Remember FCC Rules on Underwriting Limitations – And that They Don’t Apply to Spots Bought By Nonprofit Entities

It seems like virtually every day, the FCC announces that it has sent numerous Notices to pirate radio operators warning them that their operations are illegal and that, if the operations do not cease, legal penalties may follow. Yesterday, the FCC released ten such Notices, including ones sent to operators of pirate radio stations themselves (see notices here and here) and to the owners of buildings in which pirate radio operations have been tracked (see notices here and here). These Notices have been common over the past several months, seemingly signaling a new focus on pirate radio operations by the FCC’s Enforcement Bureau. In the past, some broadcasters had believed that the FCC had other priorities for their Enforcement Bureau, and was less willing to contact and confront pirate radio operators. That seems to have changed.

As we have written before, Commissioner O’Rielly in particular has worried that the FCC still does not have the enforcement tools to really crack down on pirate radio operations. In that article, we wrote about tools that could be useful to the FCC, including a Congressional clarification of its authority to go after building owners who house pirate radio operations and a more robust authorization to actually seize pirate radio equipment without involving other government agencies. Even imposing more penalties quicker would seem to send a message that pirate radio operations will not be tolerated (see the FCC’s most recent actions proposing $15000 fines on pirate radio operators here and here). We look forward to watching the next actions from the FCC in this seeming crackdown on pirate radio.

Earlier this year, the FCC eliminated the requirement that broadcasters maintain, in their public inspection files, copies of letters from the public about station operations (see our article summarizing that action here). One aspect of that rule change did not become immediately effective, as it was subject to review by the Office of Management and Budget under the Paperwork Reduction Act, was the elimination of the requirement that television broadcasters report, in their license renewal applications, about letters complaining about violent television programming. The elimination of that requirement is scheduled to be published in the Federal Register tomorrow, and that will trigger the effective date of that part of the rule change – making that total elimination of all obligations to retain letters from the public in the public inspection file.

Summer is coming to an end, but the legal obligations never take a vacation, and September brings another list of regulatory deadlines for broadcasters. While the month is one of those without the usual list of EEO Public File obligations or quarterly FCC filing obligations, there still are a number of other regulatory deadlines for which broadcasters need to be prepared.

For commercial broadcasters, the September date that should be on everyone’s mind is the deadline for the payment of annual regulatory fees. As we wrote here, there is an FCC order circulating among the Commissioners that should be released any day, setting the amounts of the regulatory fees and the deadline for their payment. These fees will almost certainly be due in September, prior to the start of the government’s fiscal year on October 1. So stay alert for the announcement of the window for paying these “reg fees.” Continue Reading September Regulatory Dates for Broadcasters – Including Reg Fees, Nationwide EAS Test, Must-Carry Letters, Lowest Unit Rate, Translator and Repack Deadlines and GMR License Extension