TV stations have in the past few years been hit with many requirements for making their programming – especially emergency information – accessible to all people within their service areas. Two deadlines loom in the very short term that stations need to remember – the requirements for converting text based emergency information aired on their stations outside of news and EAS alerts (usually crawls dealing with issues such as severe weather alerts) into speech for airing on their SAP channels, and the requirement that any clips transmitted through IP technology (e.g. to computers or through apps) must contain captions if those clips were taken from programming that was broadcast with captions.

Some trade press reports have indicated that some TV stations are still having issues with the requirement that stations take emergency information broadcast outside of news programming and not in EAS alerts, and convert that information to speech to be broadcast on the station’s SAP channel (in some cases requiring that the station activate a SAP channel if they did not already have one).  This rule is meant to cover information like weather alerts typically carried in crawls during entertainment programs.  The rule was supposed to take effect in May, but was extended until November 30 when it appeared that most TV stations were not ready to meet the original deadline.  We wrote about the requirements and the extension here and here. The extension also put on hold obligations to include school closing alerts on the SAP channel when it became clear that the time necessary to broadcast those alert on the SAP channel (and to do it twice, as required by the rules for the audio alerts on the SAP channels) would likely overwhelm the ability to carry any other information.  The extension order also extended until November 2016 the obligation to aurally describe on the SAP channel any non-textual, graphical information conveyed by the station outside of news programs (e.g. weather radar images).  But the general obligation to convert text to speech still goes into effect at the end of next month – so stations need to be ready. Continue Reading New Accessibility Compliance Deadlines for TV Stations Coming Very Soon

Last week, I conducted a webinar on the FCC’s EEO rules for 19 state broadcast associations, explaining the issues that broadcasters need to keep in mind to comply with those rules.  The slides from my presentation are available here.  On the same day, the FCC issued a Public Notice announcing another of their random EEO audits – this one limited to MVPD, principally cable systems, not broadcasters.  But, as the FCC has promised to audit 5% of all broadcast stations every year, the MVPD audit notice only serves as a reminder to broadcasters to keep up their FCC outreach efforts and recordkeeping requirements to make sure that, if they are audited, they will pass with flying colors.

During my presentation, I had a series of questions about defining an employment unit for EEO purposes.  A station employment unit is a group of commonly controlled stations serving a common geographic area having at least one employee in common.  The number of employees in an employment unit is important for determining if a station has, for instance, 5 full-time (30 hours per week) employees making it subject to the FCC outreach efforts requirements (and, for TV stations, the requirement to file a Mid-Term EEO report).  For radio groups, having 11 or more full-time employees in an employment unit makes them subject to the requirement to file with the FCC an EEO Mid-Term report.  If the unit spans different states with different EEO public inspection file dates, the licensee should pick one of the dates and consistently apply it in the future (filing the consistently prepared reports on the deadlines for FCC filings for each station in the group).  For stations newly acquired by an owners in its market, the buyer is responsible for the including the new station in the employment unit and reporting on the employment activities of the station from the date that the station is acquired. Continue Reading A Presentation to Explain the FCC’s EEO Rules, and Another EEO Audit

In a decision released last Friday, the FCC made clear how far it is willing to go in extending to noncommercial stations leniency for fines for violations of its rules. As we have written before, the FCC changed its policy in a case in which we were involved so as to mitigate harsh penalties for first-time paperwork violations when those violations were by student-run college radio stations. So, if a noncommercial student-run station is found to have missed several years of Quarterly Issues Programs Lists or failed to timely file Biennial Ownership Reports, instead of a fine that would exceed $10,000 had a commercial broadcaster committed the same violations, the noncommercial licensee will usually be able to reach a consent decree with the FCC, reducing the fine to something like $1000 or $1500, but also including a plan to ensure compliance in the future and a requirement for periodic reports to the FCC on the success of that plan. But the FCC made clear that this policy applied only to paperwork violations, and technical operations of the station would not be covered. In a decision released on Friday, the FCC demonstrated that for technical violations, and violations that go beyond your typical paperwork issues, those fines will be higher.

In Friday’s decision, the licensee of an Atlantic City noncommercial radio station filed its license application four years late, long after the station’s license had expired. Thus, for that period, it had been operating without a license. In addition, it had not prepared Quarterly Issues Programs Lists for the entire prior license term and the current one, did not file any Biennial Ownership Reports. Finally, the station had been operating with an antenna that was more than 2 meters below where its license said that it was supposed to be. While the FCC reached a settlement with the licensee, it broke out the “civil penalty” (i.e. a fine) paid by the licensee into two parts. For the missing ownership reports and Quarterly Issues Programs lists, a penalty of $1500 was imposed for violations that would probably have cost a commercial operator many multiples of that amount (see, e.g. our article here about a $10,000 fine for a commercial operator missing Quarterly Issues Programs Lists). But the FCC also asked for an additional $4750 for the late-filed license renewal and the antenna that was several feet below where it was supposed to be. While these might also be less than what a commercial broadcaster would pay for similar violations (see fines issued today, here, here and here, of $1500 each to three broadcasters who filed renewal applications late, but still within the period before their prior licenses had expired, noting that the typical fine for such a violation was $3000, but reducing that amount because of a clean record in the past or inability to pay a higher amount), they do demonstrate that the Commission’s willingness to negotiate minimal penalties for noncommercial broadcasters does have its limits. Continue Reading The Limits on FCC Leniency on Fines for Noncommercial Broadcast Stations

Today, the FCC published notice in the Federal Register of the adoption of the new simplified rules for publicizing the material rules for contests conducted by broadcasters. This publication was for purposes of review by the Office of Management and Budget under the Paperwork Reduction Act, a review necessary before any new rules requiring any recordkeeping or other paperwork become effective. While it is not expected that these new rules (which we summarized here) will be at all controversial at the OMB as most parties believes that the new rules will greatly simplify their operations, an opportunity for parties to file comments on the paperwork burden is still required. As comments can be filed through December 7, the rules can’t go into effect before then. So, until the new rules are adopted, remember to keep disclosing the material terms of contests on the air. And let’s all hope that OMB approves these rules quickly, so that broadcasters (and the public) can take advantage of the new online disclosure opportunities.

As most readers of this blog know, I practice law with Wilkinson Barker Knauer LLP in Washington DC. This past weekend, the firm moved its offices a few blocks down the road, and is now operating in a great new space at the following address: 1800 M Street NW, Suite 800N, Washington, DC, 20036. So if you send us any physical deliveries, or stop in to say hello, make sure that you use the new address. Phone and email addresses remain the same. Now, to unpack the boxes…..

A proposal to allow AM station licensees to buy FM translators located as far as 250 miles away from the AM station and move them to an area where they can rebroadcast the AM station was the talk of the NAB Radio Show last week.   With battling news releases from FCC Commissioners (one from Commissioner Pai supporting an immediate translator window during which AM licensees would have an exclusive right to file for new FM translators, and a subsequent one from Commissioner Clyburn where she indicates her belief that the 250 mile proposal was the quickest way to bring translators to AM licensees), this proposal seems to have replaced the proposed translator window restricted to AM owners that had been proposed in the AM revitalization order introduced by the FCC about 2 years ago (see our summary of the initial proposal for an AM window here, and a discussion of the controversy over that window here and here). What does this proposal entail?

While the precise rules that are being considered by the Commission are unclear as they have not been released for public comment, from comments made in the public statements released by FCC Commissioners last week, other comments made by FCC staffers at the Radio Show, and stories reported by the trade press, it appears that the FCC is considering allowing any AM licensee to buy a translator located within 250 miles of their AM station and, as a one-step minor change application, to move the translator onto any channel that fits in the AM station’s market.  An AM licensee buys the translator authorization – and it basically gives that licensee the right to file for a vacant frequency in its market on a first-come, first-served basis.  Continue Reading Moving FM Translators 250 Miles to Rebroadcast an AM Station – What the FCC is Considering as Part of Its AM Revitalization Proceeding

A month ago, the FCC released its Notice of Proposed Rulemaking looking to reassess the requirement that broadcasters and MVPDs (cable and satellite television) engage in “good faith” negotiations over the retransmission consent necessary for the MVPD to rebroadcast the signal of a broadcast television station, triggering numerous questions throughout the industry (and among financial analysts who follow the television industry) as to what that release meant. On Friday, the Notice of Proposed Rulemaking was published in the Federal Register, setting the dates for the filing of comments on the questions raised by the Commission. Comments are due on December 1, and Reply Comments on December 31. Given that this may well be the same period of time in which TV stations are preparing their initial applications for the incentive auction, and given that the reply falls in the middle of the holidays, don’t be surprised if requests for an extension of these comment dates are filed.

But no matter the dates on which comments are filed, this proceeding obviously raises a number of important issues. While many industry analysts wondered if, by the very fact that the Notice was released, it signaled the FCC’s intent to “go after” broadcasters in their retransmission consent dealings – perhaps as a way to encourage them to participate in the incentive auction by threatening the revenue from the retransmission consent fees that they now receive. But what most of these observers fail to note is that the release of the NPRM by September 1 was actually not the initiated by the FCC Commissioners. Instead, the action was mandated by Congress when it adopted STELAR, the law that extended the right of satellite television companies to retransmit the signals of local television stations. That legislations included many required actions and studies (see our summary here), including the requirement that this NPRM be started by September 1. Thus, the Commission actually waited as long as it could in releasing this rulemaking order. Continue Reading Dates Set for Comments on Good Faith Negotiation of Retransmission Consent Agreements – What is the FCC Asking?