In a Notice of Apparent Liability, the FCC proposed a $14,000 fine on a broadcaster for a series of violations with respect to its tower. The FCC found that the station failed to have the required lights on the tower operating after sunset on at least two days, failed to notify the FAA of the outage (so that the FAA could send out a NOTAM – a notice to "airmen" notifying them to beware of the unlit tower), and failed to properly register the tower when the current owner acquired the station from its previous owner. As the tower had been sold over 3 years prior to the inspection that discovered the tower lights being out, the FCC determined that the violations were particularly egregious, and upped the fine – which would have been $10,000 for a failure to have the lights operating, and $3000 for failing to update the Antenna Structure Registration ("ASR") by an additional $1000. As noted below, updating tower registrations is considered very important by the FCC as, in another recent decision, the FCC proposed a $6000 fine merely for the failure of a licensee to update a tower registration. 

The case also showed the importance of keeping accurate records of the observation of tower lights. While the FCC did not specifically fine the station owner for not logging the tower light inspections, it did note that there was confusion between the station owner and engineer as to who was inspecting the tower lights and how often they were being inspected, when first asked by the FCC inspector. While records were later provided by the licensee that supposedly showed that the tower lights were inspected on a daily basis, the records were inconsistent and seemed to contradict the observations of the FCC inspectors. What do the rules require?

Continue Reading $14,000 FCC Fine for Tower Violations – Obstruction Light Out, No FAA Notification and Failure to Update Antenna Survey Registration to Report New Owner

In the last few weeks, the FCC has fined a number of broadcast stations for failing to keep up with their EAS obligations. In one case, a low power FM operator was fined $1750 for not having any EAS receiver installed at its station – and not knowing that it was required. LPFM stations must have a decoder to receive EAS messages, but can opt out of having an encoder to send such messages. This station had neither. In another case, an $8000 fine was imposed on an AM/FM combo that did not have an operational EAS system, and whose logs did not show that it had received any EAS alerts since 2008. A station’s Chief Operator should be noting in the official station log each week the receipt and transmission of required tests.  If this is done, then an error of this magnitude should not take place. 

In a different aspect of the EAS rules, there was recently reports on an advisory by the Society of Broadcast Engineers about the trailer from a movie that contains actual EAS tones, which could trigger EAS alerts on stations monitoring the stations on which the ads are run. As we have written before, the FCC rules prohibit the use of EAS tones on any broadcast station other than for required tests or for an actual emergency. As was the case with the recent zombie alerts, using these EAS tones improperly could undermine the EAS system. So, if you get a commercial where the producers have ignored this prohibition, don’t air it, as it could lead to FCC actions.

Last week, the FCC Commissioners appeared before Congress for an "oversight hearing." In such hearings, Congressmen often raise many different issues that may be on their mind – everything from issues about the administration of the FCC to detailed policy issues. In the hearing before the Senate Commerce Committee last week, one issue arose that broadcasters should monitor carefully to see what develops. During the course of the hearing, the FCC Commissioners were asked why the FCC had not taken steps to make sure that the sponsors of political advertisements were disclosed on the air. While the FCC rules already require disclosure of the sponsor of any ad, and enhanced disclosure for political ads or other "issue ads" on matters of public importance, what were the Senators after in this line of inquiry? 

It appears that the Senators were asking the FCC to ask for more information about the source of the money used by political action groups to buy television advertising time on election issues – including the money used by PACs, SuperPACs and the other types of advocacy groups that spent so much money in the last election cycle, and are already beginning to run ads in states that have Senate races that are likely to be hotly contested in 2014. What do the FCC rules currently require?

Continue Reading Making the Broadcaster the Source for the Disclosure of Political Spending? What the FCC’s Disclosure Rules Require and What Congress Might Want the FCC to Do

The next step in processing of the translators from the 2003 FM translator window is now upon us.  The FCC has asked for major market translator applications – those in the "Appendix A markets" (essentially the top 150 Arbitron markets and a few additional ones in which numerous translator applications were filed) and those within 39 km of the grid used in these markets to determine whether future LPFM stations would be available – to file "preclusion studies" in a window between April 1 and April 19.  A list of the applications that have to provide such showings can be found here.  A preclusion study is a showing that the grant of the proposed translator will not unduly impact LPFM opportunities in that market. The FCC public notice provides the methodology for making such showings as well.

This is one more step toward the clearing of the 2003 translator backlog.  Already, as we’ve written, 700 rural applications have been proposed for grant.  Next steps include the formal identification by the FCC of what applications are mutually exclusive with each other, and the opening of a settlement window.  Eventually, those applicants not being granted as "singletons" (ones not mutually exclusive with other applications), or as a result of the settlement window, will head to an auction.  And the FCC is still shooting for a window in which applications for new LPFM stations can be filed in October.  By then, most translators that will have to be protected by LPFM applicants should be identified by the processes that the FCC is going through now.  Stay tuned as this long-running saga goes through its final episodes in the next few months. 

 

Update, 3/18/2013 – The FCC just released another public notice detailing what it expects from Preclusion Studies. 

Both radio and TV broadcasters either have recently completed the license renewal process, or will be doing so in the next few years. Many broadcasters think that, once their broadcast licenses are renewed, so too are all of the other communications licenses that are operated in connection with their station. While that may be true for broadcast auxiliary licenses, like Studio Transmitter Links and Remote Pickups, there are other FCC authorizations that are not covered by the broadcast license renewal process, and are also not covered by the applications on FCC Forms 314 and 315 for the sale of a broadcast station. If a broadcaster does not pay attention to the expiration dates for these nonbroadcast licenses, or forgets to separately file an application for permission to assign these licenses during a sale of their broadcast station, a fine like the $18,000 fine that was just issued to a radio broadcaster who forgot that earth station licenses are different from a main broadcast license or a broadcast auxiliary license, may occur.

In this case, the broadcaster sold its radio station in 2003, including in a list of auxiliary licenses in its FCC application for the sale of the station, the call letters of the earth station. While the FCC granted the assignment application with the statement that the seller was authorized to assign the station and all authorized auxiliaries, the Commission makes clear in this order that the sale of an earth station is not a broadcast auxiliary, but instead needs a separate authorization from the FCC’s International Bureau before it can be sold. As that authorization was not granted, when the buyer took control of the station (and earth station), it operated that earth station without FCC approval for almost 10 years – without seeking a renewal of the license in 2006 – until the new licensee finally discovered the error and applied for an STA and new license to cover its operations. The FCC determined that the length of the violation required an upward adjustment of the normal $10,000 fine for operating an unlicensed station.

Continue Reading $18,000 FCC Fine for Operating Earth Station with Expired License Reminds Broadcasters That Not All of Their Licenses are Covered During the License Renewal or Assignment and Transfer Approval Process

In the digital world, it seems that everything is reinvented, and someone claims that they have a patent on that reinvention. In the last few weeks, we have seen news about patent claims asserted against radio broadcasters for their digital music storage systems, against public broadcasters for podcasts, and even against companies trying to comply with the FCC’s new guidelines for E-911 (emergency communications over wireless and VoIP networks) providers. These claims highlight that media companies and others in the communications industry have to be prepared for patent litigation almost as a cost of doing business – and need to consult with patent lawyers about strategies if they are faced with such claims, and consider the potential of concerted defenses with others similarly situated if the defense does not violate other laws (such as the antitrust laws). What claims have been raised recently?

Over the last two years, thousands of radio stations across the country have received letters claiming that their digital music storage systems violated a patent from a company called Mission Abstract Data. While the patents in question have a checkered history at the Patent Office – after being issued, they were reexamined and their basis questioned, with the Patent Office ultimately agreeing that the patents, as limited through the reexamination, were in fact valid. But that decision was itself challenged by equipment manufacturers whose music systems could infringe on the patent. That further reexamination is still underway.  Nevertheless, as that reexamination continues, the company that currently has rights to the patent, Digimedia, has sued four radio station owners in Texas claiming that they are violating these patents controlled by the company. These suits are in addition to a long-pending case against a number of large broadcasters, which has been stayed pending the outcome of the Patent Office reexamination (though the patent holder has asked that the stay be lifted – an argument to be considered later this month). Some observers have suggested that these new suits may be a precursor to other actions to try to convince reluctant broadcasters to take out a license rather than fight a lawsuit.

Continue Reading More Patent Issues for Media Companies – Mission Abstract Data Patent Asserted in Law Suits Against 4 Radio Broadcasters, and a New Patent Claim Raised Against Podcasters, Including Public Broadcasters

The FCC has fined a Boston radio station $4000 for airing misleading announcements on the radio station as to the nature of the prize to be awarded in a station contest. In addition to an interesting set of facts in this case, the FCC’s decision also reviews several other recent decisions in explaining why it came to the decision it did as to the amount of the proposed fine. 

In this case, the contest was promoted on the air as an opportunity to win a choice of three cars. The "Cool, Hot or Green" contest announcements never revealed on the air that the winner in fact did not receive the car, but instead only a two year lease on the car, and only if the winner passed a credit check. Nor did the on-air announcements mention that full contest rules were available on the station’s website. While the written rules on the website made clear that the prize was merely a lease of the car, as has been the case in many recent decisions (see our summaries here and here), the Commission faulted the licensee for not broadcasting an accurate disclosure of these rules on the air. While the licensee argued that this was but a minor ambiguity in the rules, the FCC, reviewing some recent decisions, disagreed.

Continue Reading $4000 FCC Fine for Radio Station’s Misleading Contest Announcements Provides Summary of Recent Decisions on Contest Rule Violations

The first EEO audit of 2013 was announced by the FCC today – hitting about 200 radio stations and about 85 TV stations this time around (the list of stations to be audited is here). The Commission has pledged to audit 5% of all broadcast stations and cable systems each year to assure their compliance with the Commission’s EEO rules – requiring wide dissemination of information about job openings and non-vacancy specific supplemental efforts to educate their communities about job opportunities in the media industry. The form audit letter was also released today by the FCC. Responses from the audited stations are due to be filed at the FCC by April 8.

While the FCC has slightly revised the audit request to cut down on the burden of compliance (by eliminating the need to produce a copy of every notice sent out to fill every job, allowing instead the filing of a representative copy of a job opening notice and a list of the sources to which it was sent), these audits still require substantial work. And if any station in your cluster is hit, all stations in that "station employment group" (a group of commonly owned stations serving the same area with at least one common employee) must respond. But, if a cluster has been audited in the last two years, the FCC may allow you to avoid responding to this audit – but you have to request such treatment if you are on this audit list. 

All stations should review the audit letter as it provides a good outline of the documents that stations should be retaining to demonstrate their compliance with the FCC’s EEO rules. For more information about compliance with the EEO rules, see our post about an EEO webinar held by the FCC to explain its EEO rules. You may also want to review the last set of fines for EEO violations, about which we wrote here.

Many of the thousands of FM translators that have been pending since 2003 may be approaching the finish line to be granted very soon. The FCC has issued a Public Notice announcing that over 700 applications are now ready to be granted. The applications that are identified on the list are "singletons", or applications that are not mutually exclusive with any other application.  Applicants who find their applications on the list need only file a "long-form" application on FCC Form 349 by March 28. A long form application provides full technical information about the applicant’s proposal, as well as some ownership information about the applicant. FCC officials have stated that, as long as the long-form application does not change the technical proposals set forth in the short-form applications submitted in 2003, the long form should be granted. Instructions for additional showings that need to be made if changes are made are available here. 

So what’s next for the 2003 applicants, and what opportunities are there for other radio broadcasters? The clear opportunity for broadcasters is that there are soon going to be about 700 new translators, with many more to come after the settlement window and auction. All of these applications were filed 10 years ago, some of them by parties whose interests may well have changed in that prolonged period of waiting. So there are bound to be at least some translators that will be granted and available for sale or some sort of programming arrangement. Once these 700 translators applications and the other applications from the 2003 window are processed, there will be no other new translators that are possible until the next time the FCC opens a translator filing window – which won’t happen for at least a year (and quite possibly well after that), until after the FCC first holds the promised LPFM window later this year (with an October target date) and processes the applications from that window. So now is the time for broadcasters to be reviewing the translator applications that are being granted from the 2003 window to see if there may be opportunities for the broadcaster to find a facility to retransmit an AM station or an HD-2 signal. 

Continue Reading FM Translator Processing Continues as FCC identifies Over 700 Applications that Can Be Granted – What’s Next for Translator Applicants? What Should Broadcasters Be Considering?

We wrote in December about the delays in the FCC’s proceeding to consider whether changes should be made to its multiple ownership rules. The December delays were to allow for public comment on ownership information obtained from broadcasters in their Form 323 Ownership Reports. Specifically, the public was asked to comment on the what the ownership information revealed about ownership of broadcast properties by members of minority groups, and whether proposed reforms in the ownership rules would affect minority ownership.  Comments from certain public interest groups suggested that any relaxation of the newspaper-broadcast cross-ownership rules or the rules limiting radio-TV cross-ownership would further adversely affect minority ownership, a position that seemingly made certain of the FCC Commissioners reluctant to approve any changes in the ownership rules. This week, the Commission announced another delay in any resolution of this proceeding as the MMTC (the Minority Media and Telecommunications Council) has commissioned a study of the impact of any further consolidation in media ownership on minority broadcast operators.

The study, to be conducted by the broadcast financial analysis firm BIA Kelsey, is supposed to be conducted quickly – in the next 60 days. It is also supposed to be peer reviewed to analyze its methodology and conclusions, and will probably be subject to further public comment at the FCC once it is filed in the record of the multiple ownership proceeding. So this means that there will be likely no decision as to changes in the ownership rules for at least 3 or 4 months – and perhaps longer.

Continue Reading Further Delay in Multiple Ownership Proceeding as the FCC Awaits New Study on the Impact on Minority Ownership of Any Relaxation of the Cross-Interest Rules