All EAS Participants – including all full-power broadcasters – must complete the 2017 ETRS Form One on or before August 28, 2017.  We wrote about this obligation here. The filing deadline was set for next week as the ETRS system is used so that stations can report on the results of nationwide EAS tests. With the next Nationwide EAS Test set for September 27, the accounts and basic information for all EAS participants need to be in the system to allow for that reporting. Each EAS Participant should file a separate copy of Form One for each of its EAS decoders, EAS encoders, and units combining such decoder and encoder functions. .

The FCC put out a reminder on the upcoming EAS deadlines and the Nationwide EAS test here. Be sure that you are on file so that you will be ready to report on the results of the EAS test to be run next month. This system is supposed to be able to monitor who filed – so you don’t want to stick out as missing the required filing when the FCC reviews the results of the test that are submitted through the ETRS system. And, while you are at it, make sure that your EAS equipment is in working order so that you can post positive results after the test (see our warning here about the fines for non-functional EAS equipment).

Earlier this week, the Campaign Legal Center and Issue One, two political “watchdog” organizations, filed FCC complaints against two Georgia TV stations, alleging violations of the rules that govern the documents that need to be placed into a station’s public inspection file regarding political “issue advertising” (see their press release here, with links to the complaints at the bottom of the release). FCC rules require that stations place into their public files information concerning any advertising dealing with controversial issues of public importance including the list of the sponsoring organization’s chief executive officers or directors. Section 315 of the Communications Act requires that, when those issues are “matters of national importance,” the station must put into their public file additional information similar to the information that they include in their file for candidate ads, including the specifics of the schedule for the ads including price information and an identification of the issue to which the ad is directed. The complaints allege that, while the stations included this additional information in their public file, the form that was in the public file stated that the sponsors of the ads did not consider the issues to be ads that addressed a matter of national importance, despite the fact that they addressed candidates involved in the recent highly contested election for an open Congressional seat in the Atlanta suburbs.

Section 315(e)(1)(b) states that an issue of national importance includes any advertising communicating any message directed to “any election to Federal office.” The stations against which the complaints were filed used the NAB form that asks political and issue advertisers to provide the information necessary for the public file, as do many broadcast stations. The FCC does not require that the NAB form be used but, as it is designed to gather the required information, many stations use it. Some simply take the form and place it into their public file with a copy of their advertising order form specifying the rates and advertising schedule and assume that their FCC obligation is complete. But, here, the complaints allege that the advertisers, in response to a question on the form that asks whether the advertising was directed to an issue of national importance, checked the box that said that the ad was not a Federal issue ad despite the fact that the ad addressed candidates or issues involved in the election for the open Congressional seat. The form was apparently then simply put into the public file in that way without additional notation or correction by the station. Continue Reading Complaints Filed Against TV Stations for Public File Violations on Political Issue Ads

Last week, I participated in a discussion about music royalties for broadcasters at the Texas Association of Broadcasters Annual Convention in Austin. Speaking on the panel with me were the heads of the Radio Music License Committee and the TV Music Licensing Committee. These are the organizations that represent most commercial broadcasters in their negotiations with ASCAP, BMI and SESAC for public performance licenses for “musical works” or “musical compositions” – the underlying words and music to any song. In our discussion, there was a general summary of the licenses needed for the use of music by broadcasters, a summary of the status of some of the current royalty negotiations, and questions about other issues in music licensing. As this discussion raised a number of issues that I have covered in articles posted on this blog, I thought that it might be worth highlighting some of that past coverage so that those interested in any topic can read a bit more on these subjects.

The TV industry seems to have far fewer issues than radio, perhaps because radio is so much more music-dependent. While there is music in many TV programs, some of it is cleared (i.e. licenses have been negotiated) by the program providers (including some networks), so that stations need only worry about licenses for programming where the music has not been pre-cleared. Thus, TV stations have alternatives of blanket licenses for all programming (principally used by affiliates of networks where music has not been pre-cleared) or per-program fees where stations pay for music only in programs or program segments where music has not been licensed by the program suppliers. Continue Reading Looking at Music Royalty Issues for Radio and TV Broadcasters

It has been over two years since the last window allowing applicants to file for new FM stations (see our article here). There had been some speculation that the number of requests for new allotments was decreasing, leaving the FCC with few FM channels to auction off and thereby breaking what had been an almost yearly start of a new FCC auction for new FM channels. But, yesterday, the FCC released an Order noting numerous vacant FM channels, though this time they are not newly allotted channels, but instead ones that had previously been awarded to applicants who either did not pay the amount they bid in the auction, or who received a CP and then did not construct the station. Even included on this list is the FM channel of the station that had its license designated for hearing as the station had been silent for almost its entire renewal term (see our article here), a hearing that never had to happen as the licensee surrendered its license rather than trying to litigate over whether its renewal should be granted.

Of course, many of these channels may have some inherent issues leading those who initially sought them not to construct. The issues could be location specific (e.g. no readily available transmitter sites for a price that made construction feasible) or there could be issues with the applicant not being able to fulfill its initial plans. Interested parties should do their investigation. When will the channels be available? Continue Reading Looking for a New FM? – FCC Releases a Potential “Shopping List” of Channels that Will Be Available in a Future Auction

About this time each year, broadcasters and other entities regulated by the FCC prepare to find out the amount of their annual FCC regulatory fees. These fees are likely to be paid in September, before the October 1 start of the new government fiscal year. Last week, the FCC added to its list of “items on circulation” (FCC orders that have been written and are circulating among the Commissioners for a vote) an order to establish the specifics of this year’s regulatory fees, and to propose some additional changes to be considered next year. We wrote in late May about the proposal for this year’s fees that were advanced in a Notice of Proposed Rulemaking. Among the proposals were ones to reduce the relative contribution of smaller stations to the total amount to be paid by the broadcast industry by increasing the contribution of larger stations in larger markets. Also proposed was a reduction in the amount to be paid by TV satellite stations, and increasing the exemption for “de minimis” obligations – allowing those companies with a total fee obligation of less than $1000 to avoid paying fees altogether (an increase from the $500 in previous years). We will see when the order on circulation is released whether any of these proposals will be implemented for the fees to be paid this year.

Once the FCC releases the order on circulation deciding the policy issues about the fees, there usually follows a public notice setting the actual dates for payment, and fee guides from each of the FCC’s Bureaus providing details of the payment process for each FCC-regulated service. At that point, broadcast companies will be able to determine the specific amount of the fees that they will owe for this year. Failing to pay the fees on time can lead to substantial late fees, and can put the processing of applications by a licensee on hold. So be ready – the order should be out soon and the deadline for the payment of fees is fast approaching.

Global Music Rights, commonly known as GMR, is the newest Performing Rights Organization (PRO) in the US music business, licensing public performance rights to musical compositions of songwriters as diverse as various members of the Eagles to Pharrell Williams to George Gershwin. As we wrote here, in December, they offered a temporary license to the radio industry to allow radio stations to play their music if the stations pay a royalty reportedly based on a percentage of what stations pay to ASCAP and BMI. That license, which was accepted by many radio stations, expires at the end of September. Many stations were concerned as to what would happen on October 1, and whether they could continue to play GMR music. This week, that question was answered when it was announced that GMR has offered to extend the license for another 6 months at the same rates stations are now paying.

While this extension may answer the question of what happens on October 1, it certainly does not resolve all GMR issues. It seems pretty clear that, unless there is a major breakthrough, GMR and the Radio Music License Committee (the organization that negotiates performance royalties for commercial radio operators) will not come to an agreement on rates before the end of September. As we wrote here, RMLC has sued GMR, asking that a court make them subject to an antitrust consent decree much like SESAC where rates, if they cannot be voluntarily negotiated, would be set through arbitration (see our article on the results of the recent RMLC-SESAC arbitration here). GMR has countersued (see our article here), and litigation continues as it may well for years absent a settlement. Continue Reading GMR Offers Commercial Radio 6 Month Extension of Interim License to Play Their Songs

Since the beginning of the year, the FCC has been acting with fewer than its full complement of Commissioners. Since the January departures of Chairman Wheeler and Commissioner Rosenworcel, the Commission has had three Commissioners – two Republicans (Chairman Pai and Commissioner O’Rielly) and one Democrat (Commissioner Clyburn). Last week, Congress confirmed the nominations of Democratic Commissioner Rosenworcel for her return to the FCC, as well as new Commissioner Brendan Carr, a Republican. With these two expected to be sworn in in the very near future, it will complete the full house of three Republicans and two Democrats. With the background of the new Commissioners, and the 3-2 Republican majority, is this a winning hand?

With this make-up of the FCC, the Commission will likely continue to proceed in the deregulatory fashion that we have seen so far this year.   Commissioner Rosenworcel is a known quantity, having served on the FCC for several years before her term ran out in January. While a Democrat, during her initial term as a Commissioner, her views reportedly departed from those of Chairman Wheeler in a few instances , modifying the outcome of some of his initiatives. New Commissioner Carr has been serving as the FCC’s General Counsel under Chairman Pai, and had previously worked as a legal advisor in Pai’s office. While his legal background has primarily been in non-broadcast areas, as General Counsel, his office was involved in several significant broadcast actions, including the recent defense of the reinstatement of the UHF discount against attempts by certain public interest groups to have the Court of Appeals impose a stay the effective date of the Commission’s action (see our article here). Of course, these positions are not necessarily indicative of his stances when he is acting as an independent Commissioner instead of acting in a role that was subject to the direction of the Commissioners. Only time will tell for sure how the new fully-staffed Commission will interact with each other, but the bets are that the general direction will not be changing. Continue Reading A Full House at the FCC as Two “New” Commissioners Confirmed

The FCC announced a Consent Decree with a New Jersey TV station where the licensee agreed to make a $17,500 payment to the US Treasury for failing to identify “core” educational and informational programming directed to children with the required “E/I” symbol on the programming itself. This programming was, according to the consent decree, run on the station’s multicast streams – stations having an obligation to run at least 3 hours of educational and informational programming on each of its program streams. The settlement payment also covered Commission findings that the station had not adequately and accurately reported these omissions in both its Quarterly Children’s Television Reports (Form 398) and in its license renewal application. The Commission also noted that the station had not adequately informed publishers of program guides about these educational and informational programs.

We’ve written about similar fines in the past (see, e.g., our articles here and here). But what this decision emphasizes is that the FCC is still in the enforcement business. Many broadcasters have heard about the deregulatory philosophy of the majority of the current FCC commissioners. In fact, in the Media Regulation Modernization Initiative (where reply comments are due today) some broadcasters have suggested changes in the children’s television obligations, especially in connection with digital multicast subchannels of TV stations. Why require, for instance, a 24-hour weather channel to broadcast children’s programming (or for that weather channel to trigger an obligation for another channel to carry 6 hours of educational and informational children’s programming as the broadcaster is allowed to shift the educational requirement of one subchannel to another of its channels) when so much educational and informational programming is available in the marketplace through MVPDs or online sources? While these issues have been raised in the last month, the FCC has obviously not taken action yet on the proposals. Until the rules are changed, broadcasters need to honor those rules, or face potential consequences like those reflected in this consent decree.

The FCC yesterday took what some may suggest is an unprecedented action to potentially deny the license renewal of an FM broadcast station that was silent for all but one day each year during its license renewal term. According to the Hearing Designation Order, the station operated one day each year to avoid forfeiting its license pursuant to Section 312(g) of the Communications Act (a provision we have written about here and here, which provides for the automatic cancellation of the license of a broadcast station that has been silent for more than one year). The order released yesterday points to a 20 year-old case as warning broadcasters that, if they do not operate for substantial portions of a license renewal term, they are in danger of losing their license. As the FCC points out, if the station is not operating, it cannot fulfill the obligation of a licensee to serve the public interest.

The hearing scheduled by the FCC will be a “hearing” in name only. As there are unlikely to be disputed facts, the FCC has adopted a simplified process of a paper hearing. The licensee of the station will need to submit all the records of station operations during the last renewal term, if such records exist (e.g. station logs, issues-programs lists, and EAS test reports), and a written statement of no more than 25 pages setting out why the license should be renewed. That evidence, along with any comments filed by any party that wants to intervene in the case, will be reviewed by the Commissioners themselves. No oral presentation will be made, and no administrative law judge will be involved in the review of the record compiled by this station. Hearings where the FCC proposed to revoke the license of a station have in the last four decades been held before an administrative law judge, usually with live witnesses. In commenting on this new procedure, Commissioner O’Rielly notes that cases before an administrative law judge can take years to resolve, and often end up being reviewed by the Commissioners themselves anyway, so this paper hearing before the Commission will be much more efficient. Continue Reading FCC To Hold Hearing to Determine Whether to Deny License Renewal of Radio Station that was Silent for Most of its License Term

The window for filing applications for new FM translators for Class C and D AM stations has now closed. According to a statement from FCC Chairman Pai, over 1000 AM stations took advantage of the filing window.  What’s next? The FCC will take these applications and determine which of them are mutually exclusive with some other application filed during the window that ended yesterday. Those that are not in conflict with any other application filed during the window will be asked to complete the Form 349 application (so far, applicants have filed only the “tech box” setting out the basics of their technical proposal). The completed Form 349s will be processed and, barring any issues, construction permits will be granted.

The FCC will also determine which applications are mutually exclusive. At some point, it will release a list of all mutually exclusive applications, and these applicants will be able to discuss resolving their conflicts by minor technical amendments to their applications (e.g. site changes, directional antennas, changes to a new channel within 3 channels of the channel they originally proposed in the tech box application). It is important that applicants not discuss possible resolution with other broadcasters in their market at this time, as this is theoretically an auction proceeding where there are rules against “prohibited communications” that are now in effect. It might seem silly that you can’t discuss a resolution of a conflict with a competitor now when, in a few weeks, the FCC will allow it (and in fact probably encourage it). But, by applying the auction rules to this filing window, these prohibitions are in effect and are taken seriously by the FCC until the settlement window opens. Continue Reading FM Translators for AM Stations – Now that the Filing Window is Done, What’s Next?