The FCC today released a Notice of Proposed Rulemaking asking for public comment on its proposed Regulatory Fees for 2010. These fees are paid annually by most commercial entities that are regulated by the FCC for the privilege of being regulated. Noncommercial broadcasters are exempt from the annual regulatory fees. Collectively, the FCC is proposing to collect over $335 million in fees this year from licensees across the various regulated services. The fees are normally paid in September, and the specific deadline for the payment of this year’s fees will be set by a future Order after the FCC has received comments on, and formally adopted, this proposed fee schedule. The FCC has set a short time for comments, with initial Comments on the proposed fees due by May 4, 2010, and Reply Comments due on May 11, 2010.

As in the past, the Regulatory Fees for broadcast stations are generally based on the Class of Service and the population covered by a station. For the most part, the fees proposed for 2010 for broadcast stations are not much different from the 2009 rates, with the fees for a few categories of television stations actually going down slightly. Additionally, there is no change in the fee proposed for LPTV, Class A, and television translator stations.  The full list of proposed fees across the various categories of broadcast stations is provided below.  A few things to note with respect to the fees with respect to digital television stations. The NPRM proposes to collect annual regulatory fees from all digital full-service television stations, including any that may have been operating pursuant to Special Temporary Authority (rather than a license) on October 1, 2009.  With respect to low power and Class A television stations, the FCC has proposed that if a station is operating both an analog and a paired digital signal, then only a single regulatory fee will be assessed for the analog facility and no fee would be required for the digital companion channel.

Not surprisingly, the Commission has proposed to make the use of its electronic Fee Filer database  for the submission of the annual regulatory feesmandatory again, as it was in 2009.  It has also proposed that 2010 will be the last year that it will send out reminder letters to broadcast stations about the fees. Starting in 2011, the FCC is proposing to discontinue sending out media notification letters. As the payment deadline will be sometime in September, watch for an Order this Summer adopting the proposed fees, after folks have had a chance to comment. 

Continue Reading FCC Proposes 2010 Annual Regulatory Fees

The FCC’s January 2010 Order authorizing FM radio stations to increase power on their hybrid digital radio operations was published in the Federal Register on Thursday establishing the effective date of the new rules as May 10th.  As we wrote earlier, the Commission’s Order allows stations to increase from the current maximum permissible level of one percent of authorized analog effective radiated power (ERP) to a maximum of ten percent of authorized analog ERP.  So as of May 10, 2010, eligible FM stations may commence operations with FM digital operating power up to -14 dBc (that is, up to a 6 dB increase), consistent with the existing IBOC notification procedures and with no further authorization from the FCC.  Eligible stations may simply avail themselves of the voluntary power increase, but must notify the FCC electronically of the increased digital power within 10 days of commencement using the Digital Notification form via the Commission’s Consolidated Database System (CDBS).

The exception to the ability to increase power is super-powered FM stations, which, regardless of their class, are limited to the higher of either the currently permitted -20 dBc level or 10 dB below the maximum analog power that would be authorized for the particular class of station, as adjusted for the station’s antenna height above average terrain. The Audio Division’s web site contains an FM Super-Powered Maximum Digital ERP Calculator available here to assist super-powered stations with determining the maximum permissible Digital ERP. Licensees of super-powered FM stations must file an application, in the form of an informal request, for any increase in the station’s FM Digital ERP.  For power increases over 6 dB, licensees will be required to submit an application to the FCC, in the form of an informal request, for any increase in FM Digital ERP beyond 6 dB.  Licensees wishing to operate with an FM Digital ERP in excess of -14 dBc must make a calculation and determine the station’s max permissible Digital ERP as detailed in paragraphs 17 through 20 in the Order, available here. 

The FCC Form 323 Biennial Ownership Report — temporarily off-lined in December for revisions — has been reworked and is now back.  The FCC has announced that the revised Form 323 is now available in its CDBS electronic filing system, and that all commercial broadcast stations must file their biennial ownership reports by July 8, 2010.  As we wrote earlier, many broadcasters were concerned about privacy issues related to the new Form 323, as well as more practical issues regarding the time required to enter information.  After receiving many protests about the burden imposed by the new form and the short time that commercial licensees were given to prepare the report for submission, in December the Commission temporarily suspended the filing of the form. 

The Commission has now completed its technical improvements to the form, including the ability to upload a spreadsheet to provide certain data, rather than entering it manually, and the filing is back on, this time with 90 days for stations to prepare their reports.  Notably, the requirement that all disclosable interest holders obtain and provide an FCC Registration Number ("FRN") remains in place.  So that is one issue that the FCC did not address, and which remains unchanged from before.  One other important note, although the filing deadline is now July 8, 2010, licensees will be reporting ownership information as of November 1, 2009.  So many stations will be in the strange position of reporting what is now outdated ownership information. 

Additional information about the revised form is available on the FCC’s Form 323 web site, which contains links to prior orders and notices and includes “Frequently Asked Questions” (FAQ) about the form and its electronic filing capabilities.  With all commercial broadcast stations working to prepare and file the Ownership Reports by July 8th, stations would do well to start the process sooner rather than later.  A copy of the Commission’s  brief Public Notice is available here, and the revised form is available through CDBS.

In two decisions released in the last two weeks, the FCC fined two radio stations $4000 each for perceived violations of its contest rules.  The first decision was based on a perceived ambiguity in the contest rules that did not make clear in broadcasts and in written rules that there would be only one winner in a contest.  In the second, the FCC faulted the licensee for not giving the prize away within 30 days of the contest end.  Both cases demonstrate the seriousness with which the FCC seems to take contest rules, especially the need for disclosure of all material terms to listeners, both in over-the-air announcements (see our post here on the need to broadcast the material terms of a contest) and in the written rules governing the contest.  Seemingly, ambiguities will be construed against the licensee and any material parts of the contest, including when the prize will be delivered must be clear the contestants.

In the first case, The Commission found that the licensee had not made clear in its on-air announcements and in its written rules that there would be only one prize awarded in the contest.  When one closely reads the case, what seems to come through most clearly is that the Commission is expecting licensees to document carefully that they have clearly provided the material rules of the contest on the air, sufficiently so that a reasonable listener would be aware of those rules.  In this case, the licensee was unable to document how often its announcements providing the rules were broadcast, or to conclusively say if they had ever been broadcast at all.  The contest was to give away a garage full of prizes, so it would seem that the nature of the contest itself made clear that there was going to be only one winner.  But the Commission concluded that there were not enough unambiguous statements that there would be but a single winner – thus prompting the fine.

Continue Reading Ambiguous Contest Promotional Announcements and Slow Award of Prize Each Cost Radio Stations $4000 FCC Fine

In a decision by the FCC’s Enforcement Bureau, the Commission issued a $1250 fine to a station that did not have its licensee’s Articles of Incorporation and By-Laws in its public file when a listener came to check the file.  While the rules allow such documents to be left out of the file if there is a list of ownership-related documents in the file and the documents themselves are provided within 7 days of a request, here the licensee did not provide the missing documents for over a month of the request.  After investigating the complaint from the person who had looked at the file, the Commission arrived at the $1250 fine.  But there is another troubling aspect to this case, and that deals with the decisions references to the Alternate Broadcast Inspection Program ("ABIP").

The Alternate Broadcast Inspection Program is run by state broadcast associations, in cooperation with the FCC.  These plans are meant to encourage broadcasters to voluntarily police themselves, by having private inspectors hire by the state associations, inspect their stations.  If violations are found and corrected, the FCC will often be lenient or give the station a pass altogether (as in many reporting violations found in renewal applications).  In addition, the FCC’s own inspectors are supposed to not single out a station that has had an ABIP inspection for a random FCC field inspection.  Here, the station had participated in several ABIP inspections, and the inspector had not found the public file violation.  Nevertheless, the Commission stated that a station is responsible for compliance with the FCC Rules, and it cannot delegate that responsibility to anyone else.  So, even though the inspector had not seen the problem, the station was still liable.  The ABIP program does not give a station immunity from an FCC action in response to a complaint, or from stepping in where there is a threat to safety or other immediate danger.  Even though this action by the FCC, taken in response to a complaint, may not technically be prohibited from the terms of the alternate inspection program, one wonders if the Commission, in this circumstance, is not being a little harsh.  The document missing from the public file was not one fundamental to station operations, or even to the mission of the FCC.  The failure to have it in the file did not cause interference between broadcast stations, nor likely did it have any discernible impact on the content of the broadcasts from the station.  Yes, its absence may have technically been against the FCC’s rules, but wouldn’t an admonition have gotten the message across just as well as a fine in this case, particularly where the participation in several ABIP inspections made clear that the licensee was operating in good faith – trying to comply with the FCC’s rules?

Continue Reading $1250 FCC Fine for Not Having Licensee’s Articles of Incorporation in Station’s Public File

Last week, we wrote about a Commission decision that said that only one application in a noncommercial MX Group can be granted even if, when the first is granted, there are other applications in that group that would not be mutually exclusive with (i.e. would not create any prohibited interference to) the winning applicant.  While multiple applicants can be granted out of an MX Group if there is a settlement, only one application will be granted when the point system analysis is performed. Well – if you have an application still pending in the 2007 NCE Window and were contemplating a settlement, now is the time to do it.  In February, the Commission released an order deciding the winner in 59 different MX groups.  A second such decision is now circulating among the Commissioners for approval, and we hear that a third will soon follow as the FCC accelerates its review of the remaining applications from the 2007 window. Once these orders are released by the Commission, there is no more chance to settle any case decided in such an order, and thus only one application from any group will be granted.  So, if you are planning a settlement, do it now.

In 2008, the FCC adopted a requirement that broadcast stations include in their advertising contracts a provision that says that advertisers will not discriminate on the basis of race or gender.  We wrote about that requirement here, and our post was greeted with significant surprise by many broadcasters as the requirement did not glean much publicity when it was first adopted.  Today, the FCC issued an Erratum to that two year old requirement, eliminating from the certification its application to discrimination in advertising based on gender.  Instead, the Erratum stated it was only discrimination based on race or ethnicity that was prohibited.  The Erratum stated that this language "more accurately" reflected the "Commission’s clear intent" in adopting the requirement for the certification in advertising contracts.

The removal of "gender" from the advertising discrimination certification seems to recognize the common-sense advertising principal that some advertising, by its very nature, may be targeted to one gender or another.  But the correction of this language through an Erratum seems to avoid many of the hard issues that remain with this certification.  The Commission was very terse in its explanation of how this certification was supposed to work and exactly what it was supposed to prevent.  There were certain situations that seem to fit within the prohibitions – situations where the advertiser of a general market product refuses to allow it to be advertised on stations that target minority audiences (see our discussion of the Mini Cooper advertising controversy here).  This was to avoid the "no Spanish, no urban dictates", ruling out advertising on stations with urban formats or those programmed in Spanish, that some felt were attached to some advertising orders.  But there are many other questions that remain to be clarified.

Continue Reading FCC Corrects Advertising Nondiscrimination Certification – Removes Gender From Certification

David Oxenford, Bob Corn-Revere, David Silverman, Brendan Holland, and others from Davis Wright Tremaine’s media and communications practice will be in Las Vegas, Nevada from April 10-15 for the 2010 NAB Show.  The NAB convention is an annual event and a focal point for engineering, legal, and business issues for the broadcasting and greater media worlds.  Bob Corn-Revere will be speaking at the American Bar Association Conference, Representing Your Local Broadcaster, on April 11, on a panel on new technology and the dangers it poses for journalists reporting from disaster areas or other scenes where immediate verification of information is not possible – the panel is called:  "Clear and Present Danger, Guiding Journalists Through the Catastrophic Perils."  David Oxenford, on the morning of April 12, will be speaking at the NAB Show on a panel called, "Copyright Licensing: Seeking a Bridge Over Troubled Waters", a panel dealing with the proposed broadcast performance royalty, streaming fees, the current ASCAP and BMI negotiations, and other copyright issues that arise in day-to-day operation of a broadcast station.  Dave will also be moderating a panel at the Radio and Internet Newsletter’s RAIN Internet Radio Summit, to be held in conjunction with the NAB Show, at the Renaissance Hotel on April 12.  Be sure to join us at these and other events in Las Vegas.

To help you attend the Show, we have been offered some discounts and free admissions for our readers.  The RAIN Summit, Internet Radio’s main event, has offered readers of the Broadcast Law Blog a 30% discount on admission to the conference.  That conference includes a full day of discussion of Internet radio topics, and will feature many of the industry’s biggest names.  From past experience, this always a great event with much great information, important for anyone with any interest in Internet radio and digital media.  The Summit features great networking opportunities, with a box lunch and post-conference reception.  An Exhibit Hall pass to the NAB Show is also included for RAIN attendees

For those not interested in Internet radio, we can still get you into the NAB Show’s Exhibit Hall – for free!  The NAB has offered our readers free access to the Exhibit Hall at the show. This free Exhibits-Only pass includes:

  • Access to the Exhibit Hall at the Show
  • Access to the Opening Keynote and State of the Industry Address
  • Access to Info Sessions on the Convention floor
  • Content Theater and Destination Broadband Theater

To find out how to register for these discounted offers, click on the Continue Reading link below.

Continue Reading DWT Going to Las Vegas for the 2010 NAB Show – Discounts for RAIN Internet Radio Summit and Free Passes to NAB Exhibits and Keynote Available for Our Readers

In a decision released last week, the FCC’s Audio Division denied the application for a new noncommercial FM station which had tentatively been selected to receive a permit for a new station because the applicant did not have reasonable assurance of transmitter site availability when it originally filed its application.  This case makes clear how important that issue can be in connection with any application for a new broadcast station, and even in connection with applications for site changes by existing broadcasters.  The FCC has long required that a broadcaster, before filing an application for a new or modified station, have reasonable assurance of transmitter site availability. This obligation applies not only to full-power radio and television applications, but also to applications for low power TV (LPTV) or low power FM (LPFM) stations, and to applications for FM or TV translators as well.  The reasonable assurance requirement basically insures that the applicant is making a realistic proposal to the FCC, one that can likely be built, and not just some theoretical proposal for a site at which a station could never be constructed.  If reasonable assurance is not obtained before the application is filed, the application is subject to dismissal, as this case makes clear.

Reasonable assurance has never required a binding legal commitment for the use of a particular transmitter site, but this case makes clear that something more than a mere possibility of the availability of the site is necessary.  In this case, a representative of the application had communicated with the tower owner, who said that the tower was currently at capacity, but that it was possible that, over time, some space on the tower could become available.  The FCC’s Audio Division concluded that was not enough, as it did not demonstrate a present availability to the applicant of the site at the time that the application was filed.  The FCC discussed the need for the applicant and the site owner to have a "meeting of the minds" as to the availability of the site before an applicant can specify it.  The assurance cannot be contingent on a future event that is unlikely to occur.

Continue Reading Planning a New Station or to Relocate an Existing One? FCC Clarifies the Need for Reasonable Assurance of Transmitter Site Availability

Incomplete public inspection files were the largest source of fines during the last license renewal cycle.  We wrote last week about two noncommercial broadcasters whose renewal applications filed many years ago have just now led to consent decrees and voluntary contributions to the US treasury in lieu of fines.  To help commercial broadcasters avoid these issues, we have prepared a Guide to the Basics of Public Inspection File Obligations for Commercial Radio and Television Broadcasters, discussing the rules that need to be followed with respect to the availability of the file to the public, its required contents, and the time period for the retention of documents kept in the file.  The Guide also has links to some of our other advisories that deal in more detail with the obligations to keep specific types of documents in the file – including political broadcasting documents, quarterly issues programs lists, EEO reports and children’s television reports.  Read the guide, available here, review your operations and be prepared for the next renewal cycle.