On Friday, the FCC’s Audio Division released its first decision in the current renewal cycle addressing the issue of incomplete public inspection files and missing Quarterly Issues Programs List, proposing to fine an AM station in Virginia $15,000 for apparently not having any Issues Programs Lists in its online public inspection file for the entire renewal term.  The decision, found here, should serve as a warning to broadcasters to make sure that their online files are complete and up to date.

The facts of this case, summarized below, seem particularly egregious as the station had the same issue of missing issues programs lists when its last renewal was filed 8 years ago.  Nevertheless, we can expect that this won’t be the last fine we will see for stations that have incomplete public files.  The FCC has been sending out warnings about incomplete online files for the last year, and we’ve been warning (see, for instance, here and here) that, with all public inspection files now being available online, the FCC will likely be issuing fines during this renewal cycle if documents are missing from the file.  The Quarterly Issues Programs lists are seen by the FCC as being particularly important as they are the only official documents demonstrating the public interest programming that was actually broadcast by a station (see our article here).  Continue Reading $15,000 Fine and Short-Term License Renewal Proposed for Radio Station Missing Issues Programs Lists in Its Online Public Inspection File

While next year’s federal elections are already receiving most of the publicity, I’ve been getting a surprising number of calls about elections this November. While most broadcast stations don’t think about the FCC’s political broadcasting rules in odd numbered years, they should – particularly in connection with state and local political offices.  There are elections for governor in November in Kentucky, Louisiana and Mississippi, and all sorts of state and local elections in different parts of the country. As we have written before, most of the political rules apply to these state and local electoral races so broadcasters need to be paying attention.

Whether the race is for governor or much more locally focused, like elections for state legislatures, school boards or town councils, stations need to be prepared. Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station has to sell. As we wrote in our summary of reasonable access, here, that does not mean that Federal candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules apply.  Continue Reading Reminder – FCC Political Rules Apply to Off-Year Elections for State and Local Offices

The FCC’s Notice of Proposed Rulemaking on LPFM and Channel 6 TV issues, which we wrote about here, was published in the Federal Register today. This sets the deadline for comments in this proceeding as October 21, 2019, with reply comments due by November 4. This proceeding looks at issues including whether to remove all restrictions on LPFM stations’ use of directional antennas as well as whether such stations can use on-channel boosters to fill in gaps in their service areas. The rulemaking will also seek to resolve whether limitations should be lifted on locating FM educational stations near to TV channel 6 stations when the FM station is operating in the reserved band at the low end of the FM dial. The protections of these channel 6 TV stations from reserved-band FMs are based on the performance of analog TV receivers – which have not been a real concern for almost a decade since the TV digital transition. The rulemaking also seeks comments on whether LPTV stations operating on channel 6 can continue, after their digital conversion, to broadcast an analog audio signal capable of being received on most FM receivers (allowing these stations, sometimes referred to as “Franken FMs,” to operate as FM stations). If you are interested in any of these topics, be prepared to submit your comments to the FCC by October 21.

The FCC yesterday announced that the due dates for Biennial Ownership Reports, which had been December 1 of this year, will now be January 31, 2020. The Order announcing that action is available here.  The FCC notice says that this additional time is needed to make updates to the ownership forms in the LMS database in which they are filed. The window for filing these reports will open on November 1.  The information to be reported in these biennial ownership reports needs to be accurate as of October 1, 2019, which is unchanged from the requirement before yesterday’s announcement.  The FCC is attempting to create a stable database of the ownership of stations, taken on October 1 every two years. While this is not the first time that the FCC has delayed the actual filing date for the Biennial Ownership Reports (see for instance the delay moving the last filing date from the originally scheduled 2017 into early 2018), they always want a snapshot of broadcast ownership as of October 1 of odd numbered years – even wanting reports from owners of stations on October 1 who sold those stations before the report filing deadline.

While the FCC has given broadcasters more time to file the Biennial Ownership Reports, broadcasters should not forget the three important dates next week that we have highlighted in recent days. These dates are:

  1. As we wrote yesterday, the FCC announced last week that FM radio (including translators and LPFM stations) will now use the LMS electronic filing systems for all applications for construction permits and license applications.  This is another step in the FCC’s transition from the CDBS database that broadcasters have used for years, to LMS.
  2. Broadcasters need to remember to file by Monday, September 23, their ETRS Form Three.  This form reports in detail on the station’s experiences in August’s Nationwide EAS Test.  For more details, see our article here.
  3. Finally, commercial broadcasters need to remember to submit their annual regulatory fees by next Tuesday, September 24.  For more information, see our articles here and here.

 

If you have a commercial or noncommercial FM radio station, an LPFM or an FM translator, and are looking to file an FCC application to seek a construction permit to authorize technical changes to your station, or to file a license to cover changes that were previously authorized (or which need no prior authorization), starting next Wednesday, September 25, you’ll need to file in the FCC’s LMS database, not in CDBS which has traditionally been used for broadcast applications. The FCC made this announcement in a Public Notice released last week. The Commission is gradually transitioning all of its broadcast applications to this database (TV broadcasters have already transitioned, except for assignment and transfer of control applications, and radio stations have already been required to use it for ownership reports and license renewal applications).

Starting on September 25, the following forms will be filed in LMS – and CDBS will no longer be used:

Application Type CDBS Form to be Decommissioned Sept. 25, 2019 LMS Schedule to be Used Commencing Sept. 25, 2019
Application for Construction Permit for Commercial FM Broadcast Station Form 301 Schedule 301
Application for FM Broadcast Station License Form 302 Schedule 302
Application for Construction Permit for a Low Power FM Broadcast Station Form 318 Schedule 318
Application for a Low Power FM Broadcast Station License Form 319 Schedule 319
Application for Construction Permit for Reserved Channel Noncommercial Educational FM Broadcast Station Form 340 Schedule 340
Application for Authority to Construct or Make Changes in a FM Translator or FM Booster Station Form 349 Schedule 349
Application for an FM Translator or FM Booster Station License Form 350 Schedule 350

Note that AM construction permit and license applications, many of which are still filed on paper because of the complexity of the engineering exhibits, are not yet transitioning to the new system. Assignments and transfers also are not covered by this notice, but you can expect those applications to make the change in the not-too-distant future. So remember to use the new system for any CP or license applications to be filed starting on September 25, 2019.

The Department of Justice’s Antitrust Division is, as we reported here and here, conducting a review of the consent decrees which govern ASCAP and BMI. Comments were filed in August, and those comments have now been posted to the Division’s website and are available for review here (they are organized alphabetically in groups of 100 under the “Public Comments” heading – click on one batch of 100, and a new screen will open with links to each of the comments in that group). There are 878 comments, most advancing concerns about any potential change in those decrees. While many appear to be form letters from individual businesses who play music in their establishments and are afraid of the new costs that could be imposed were the decrees to be abolished, there are also comments from many others who more thoroughly address the issues. As these have just been posted, and as there are so many comments, we have not been able to analyze them all – but wanted to alert you to their availability in case you were looking for some light weekend reading!

We’ve written many times about the legal concerns about advertising for various vices – including e-cigs (see, for instance, our article here) and CBD (see for instance our articles here and here). The issues with these products never seem to go away, and in recent days, they have become even more pronounced. On e-cigs and vaping products, we have advised that ads need to avoid health claims, must contain an FDA-required warning that they contain nicotine and can be addictive (see our articles here and here), and that they should not be aired during programming targeting children (see our article here). We recently also added a warning that action might be coming against flavored vaping products. This week, the headlines are full of news announcing a new Federal ban on flavored vaping products that may go into effect in the next few months, following a state ban that was recently instituted in Michigan. On CBD, in addition to concerns about laws that still make the product illegal in many states, we’ve discussed concerns about whether the product is legally produced from hemp (see our article here), and highlighted prohibitions on health claims (see our article here) and ads directed to an underage audience. This week, we saw another set of warnings from the FTC targeting advertisers making specific health claims about their products. These actions should serve as a warning to broadcasters and other media companies to proceed very carefully, only after receiving legal advice, before jumping into advertising for these products.

On the vaping front, Michigan recently became the first state to totally ban flavored e-cigarettes – including mint and menthol flavored vaping products. See the Michigan Department of Health and Human Services “Finding of Emergency” here, and the Governor’s announcement here. While there was some indication that the vaping industry might fight that ban, with the news yesterday that the Trump administration plans to ban these products on a Federal level (see this statement from the FDA indicating that it will soon announce specific rules for the Federal ban on these products), broadcasters need to be concerned about running advertising for products that may be considered illegal. With the recent rash of other serious health consequences of vaping, it is quite possible that further regulation of these products will follow, and so may lawsuits from the vaping industry. In the interim, the FDA notes that it will be running advertising to combat underage vaping and to warn about the potential health issues, so look for those advertising opportunities. Continue Reading New Concerns About Ads for E-Cigs and CBD

On the anniversary of the events of September 11, 2001, we should all be thankful for the work of the nation’s first responders. Broadcasters and other members of the electronic communications industries play a part in the response to any emergency – including through their participation in the Emergency Alert System (EAS). In recent weeks, the FCC has been aggressively prosecuting parties who it has found to have transmitted false or misleading EAS alerts. This was exhibited this week through the Notice of Apparent Liability issued to CBS for an altered and shortened version of the EAS tones used in the background of a “Young Sheldon” episode, leading to a $272,000 proposed fine. Consent decrees were announced two weeks ago with broadcasters and cable programmers for similar violations (see FCC notices here, here, here and here), with payments to the US Treasury reaching $395,000. These follow past cases that we have written about here, here, here, here, and here, where fines have exceeded $1 million. The CBS case raised many interesting issues that have received comment elsewhere in recent days, including the First Amendment implications of restrictions on the use of EAS tones in programming, and whether an altered tone in the background of an entertainment program, where audiences would seemingly realize there was no actual emergency, should really be the subject of an enforcement action. But the question that has not received much attention is one raised by the FCC’s Enforcement Advisory released last month addressing the improper use of EAS alert tones and the Wireless Emergency Alert tones used by wireless carriers (known as WEA alerts), and simulations of those tones. That advisory raises questions of just how far the FCC’s jurisdiction in this area goes – could it reach beyond the broadcasters and cable programmers to which it has already been applied and extend to online programming services?

This question arises because the FCC’s Enforcement Advisory addresses not only EAS tones used by broadcasters and cable systems, but also the WEA alert tones voluntarily deployed by most wireless providers. The advisory makes clear that the use of either EAS or WEA tones without a real emergency is a violation of the FCC rules. The Advisory states:

The use of simulated or actual EAS codes or the EAS or WEA Attention Signals (which are composed of two tones transmitted simultaneously), for nonauthorized purposes—such as commercial or entertainment purposes—can confuse people or lead to “alert fatigue,” whereby the public becomes desensitized to the alerts, leading people to ignore potentially life-saving warnings and information.

The FCC goes on to state:

the use of the WEA common audio attention signal, or a recording or simulation thereof, in any circumstance other than in an actual National, State or Local Area emergency, authorized test, or except as designed and used for PSAs by federal, state, local, tribal and territorial entities, is strictly prohibited. Continue Reading How Far Does the FCC Authority Over False EAS Alerts Go? Could Online Programming be Subject to its Reach?

Last week, the FCC issued Public Notice reminding all broadcasters and other EAS participants of the obligation to file their ETRS Form Three report by September 23. That form provides details about a station’s participation in the August 7 Nationwide EAS Test (see our article here about the test and the required ETRS filings) – including from where the station received the EAS alert (assuming that it did receive the alert) and any complications or issues that may have arisen in connection with the Nationwide test. With the anniversary of 9/11 only days away, this reminder from the FCC should be taken seriously as the Commission looks for ways to make their EAS system more reliable and robust in the event of emergencies that necessitate its use in the future.

 

Just before Labor Day, the FCC published in the Federal Register the new rules regarding notice of Must Carry and Retransmission Consent elections. Those rules, as we summarized in more detail here, provide that, before the next election cycle deadline on October 1, 2020, TV stations need to provide notice in their online public files as to whether they elect carriage through must-carry or retransmission consent for the three-year cycle that begins on January 1, 2021. MVPDs must provide information in the FCC’s database of a contact person at the MVPD for revised notices. In the next election cycle, stations can give electronic notice to those designated contacts about changes in their elections for the next cycle. These rules will become effective on October 29 and require broadcasters to provide contact information for carriage inquiries in their online public file by July 31, 2020, while MVPDs must provide contact information either in their online public file or in the FCC’s Cable Operations and Licensing System (COALS) by that date. The Federal Register also gave notice of the deadline for comments on the FCC’s further inquiry as to how to deal in this system with entities (like “qualified low power TV stations”) that do not have a public file or MVPDs (like Open Video Systems) that do not maintain a COALS account. Comments are due September 30, with replies due October 15.