Annual EEO Public File Report Deadline – October 1

Affected States:  Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Mariana Islands, Missouri, Oregon, Puerto Rico, Virgin Islands, Washington

By October 1, 2007, radio and television Station Employment Units (SEU) in the states listed above must:  (1) prepare their Annual EEO Public File Report; (2) place it in the public inspection files of all stations comprising the SEU; and (3) post the Report on the websites, if any station in the SEU has a website.  The Annual EEO Public File Report summarizes the station’s or the SEU’s EEO activities during the previous 12 months, and provides information about the recruitment and outreach that the station conducted in the past year.  The states with the October 1 filing deadline are:  Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Mariana Islands, Missouri, Oregon, Puerto Rico, Virgin Islands, Washington. 

In addition to preparing the Annual EEO Public File Report by October 1, larger radio stations in Florida, Puerto Rico, and the Virgin Islands must also prepare and file with the Commission an FCC Form 397 Mid-Term EEO Report.  Please note, only radio station SEUs located in these three jurisdictions with 11 or more full-time employees are required to file an FCC Form 397 by October 1, 2007.

Biennial Ownership Report Deadline – October 1

Affected States:   Radio:  Alaska, American Samoa, Florida, Guam, Hawaii, Mariana Islands, Oregon, Puerto Rico, Virgin Islands, and Washington;  Television:  Iowa and Missouri

By October 1, 2007, radio stations in Alaska, American Samoa, Florida, Guam, Hawaii, Mariana Islands, Oregon, Puerto Rico, Virgin Islands, and Washington, and television stations in Iowa and Missouri must prepare and file an FCC Form 323 Biennial Ownership Report with the FCC.  Similarly, noncommercial stations in these states must file a Biennial Ownership Report on FCC Form 323-E.  Ownership Reports are filed every other year, reporting on changes in the licensee’s ownership and updating the information requested by the form.

The timing for the filing of the Biennial Ownership Report and the preparation of the Annual EEO Public File Report is based on the anniversary of the filing of the station’s license renewal.  In turn, the renewal cycles are organized by state and type of service, and are staggered based on the FCC’s prearranged schedule.  Periodically, we will remind groups of stations as to their upcoming deadlines, and stations should be vigilant to make these required filings.  Copies of our complete reminder memos containing additional information on each of these requirements can be found here (Ownership) and here (EEO).

The FCC today issued three orders imposing fines on broadcasters – cutting no slack to anyone.  These cases demonstrate how important strict compliance with all FCC rules is to avoid fines before the current Commission.  The first decision imposed a fine of $2800 on a broadcaster for having an unfenced tower – where the broadcaster claimed that the fence was temporarily removed to facilitate the clearing of brush as required by local authorities to remove a potential fire hazard.  While the FCC seemed to recognize that the fence removal was temporary, and that it was missing for only a few weeks while weed killer was being applied at the site, the Commission still imposed the fine – requiring that access to an AM tower always be restricted, prohibiting open access even for a short period.

The second case was a decision which imposed a fine of $2000 on a broadcaster for operating from an unauthorized transmitter site.  While the broadcaster had received Special Temporary Authority (an "STA")  to operate from the site, the STA expired.  The broadcaster filed an extension request, but forgot to include the filing fee check.  The broadcaster claims that he re-filed the request, and had a canceled check to prove it, although the Commission had no record of the re-filed STA (though the FCC did acknowledge having received the check).  Finding that it had no record of the re-filed STA, and further finding that the applicant should have inquired about the failure to receive an STA extension after 180 days (the length of an STA), the Commission imposed the fine on the broadcaster.  While this case is certainly complicated by the missing extension request, given the canceled check one would assume that broadcaster must have filed something, and the FCC’s usual rule is that if an STA extension is on file, the station can continue to operate.  Of course, with an extension that was pending for 2 years, probably some inquiry was warranted.  But whether it was a $2000 mistake is a different question.

Continue Reading FCC Cuts No Slack on Fines – Temporarily Unfenced Tower, Expired STA, Former Owner – All Draw Fines

The Commission today granted a 60-day extension of time for the relocation of broadcast auxiliaries in the 2 GHz band.  The extension of time is in response to the joint petition submitted last week by Sprint Nextel, MSTV, NAB, and Society of Broadcast Engineers requesting that the Commission waive the current BAS transition completion date for an additional twenty-nine months.  A copy of the Commission’s Public Notice can be found here.  Barring this extension of time, Sprint Nextel would have been obligated to complete the relocation of all BAS facilities by September 7, 2007, which clearly would have been impossible.  The Commission’s 60-day extension of time will push the deadline back to November 6, 2007, and allow Commission time to consider the issues raised by the petitioners and whether a two and a half year extension is warranted. 

As we’re approaching the anniversary of September 11, it may be appropriate that the FCC issued an order on Friday upholding a fine imposed on a radio station that did not have an operating EAS system.  The station, while it had a system in place that was capable of transmitting the required EAS tones, had not received any EAS alerts for about a year, and had not entered any reasons for that failure in its station log at any time during the period.  The FCC initially issued an $8000 fine, but reduced the fine to $6400 based on a showing that the station did not have any history of past violations.  However, even though the station was operating at reduced power for a significant period of time due to towers damaged by a storm, the FCC refused to reduce the fine further based on financial hardship as the fine did not exceed 2% of the station’s average gross revenue during the previous three years.

The FCC will reduce fines for a variety of reasons – the most common being the past good record of the station.  In most cases, as here, a showing that the station has not previously been fined will be sufficient to demonstrate the past compliance of the station and justify some reduction in the amount of the fine.  Stations also often plead that they cannot afford to pay a fine.  The 2% of gross revenue standard announced by the Commission in this case seems to set the threshold at which the Commission will consider that plea.  To prove that a reduction of a fine is in order, according to this case, a station needs to submit financial statements showing the past three years performance, and demonstrating that the proposed fine will exceed 2% of the station’s average gross revenues.

Continue Reading Fine For EAS Violation – Financial Hardship Not Enough to Merit a Reduction

Fred Thompson’s formal announcement of his candidacy on the Tonight Show on Wednesday has focused more attention on the FCC’s Equal Opportunities doctrine.  We wrote about the issue, here, highlighting the fact that evolving FCC policy has found that more and more broadcast programming is exempt from the Equal Time rules, as it is considered to be bona fide news interview programming.  The Hearst Argyle television stations around the country last night ran a segment in their news programming on that issue – a segment in which I was interviewed.  That segment can be viewed, here – a genuine bona fide news interview if ever there was one.

The television segment is also interesting in that it asked the question whether the FCC’s rules will ever be expanded to the new media.  While the rules do apply to some new media (like satellite radio), extending them to the Internet seems unlikely.  How could such rules ever be applied to the hundreds of thousands of individualized web sites spread across the Internet.  The Federal Election Commission has been struggling with issues of whether it should extend its campaign spending and contribution limits to the Internet, most recently in announcing a decision that favorable comments about candidates made in blogs are not campaign contributions subject to FEC rules.  The FEC took the position that blogs are media outlets exempt from FEC regulation – much like the FCC’s decisions expanding the scope of the news interview exception from the Equal Opportunities doctrine.  People get their news and opinion from more and more diverse sources, and the government seems to be correctly moving in the right direction of allowing this diverse political discussion to flourish free from the hand of regulation.

In a very unusual process – one that is probably unprecedented – the FCC last week announced that it is opening a window for parties to file applications for a new AM station to serve Rockland County, New York.  AM stations are traditionally made available for filing on an on-demand basis – when the FCC accepts applications for new stations, parties can file in any location in the country, specifying any city of license that they select, as long as the station that they propose will not create interference to existing stations.  This is unlike FM and TV, where there is a two step process – new channels are first allotted at specific locations based on a party’s request, but that party gets no rights to the channel.  Instead, after the allotment has been made, anyone can file for in a specified window seeking a construction permit to build the new station.  In this window, the FCC has adopted a unique process for an AM stations, a process much more like that used in FM and TV.  The Commission had been asked by a party for permission to operate a new station in Rockland County.  Instead of simply permitting that party to build a station without competition, the FCC decided that a new station was necessary to provide emergency information about the nuclear power plant in the Rockland area, but determined that anyone could file for that channel.  Applications for the channel (1700 AM – on the expanded band, for which there have been no applications for almost 10 years since the first set of expressions of interest were taken), will be accepted from October 1 through October 5.

In order to give parties the ability to prepare applications, the FCC is imposing a freeze on the filing of minor change applications for AM stations throughout the country during the filing window.  Any minor change application that is filed during the window will be returned.  So if you are planning an application for a technical change to your AM station, you need to plan to avoid that filing window.

Continue Reading AM Filing Freeze While FCC Accepts Applications for a New AM in Rockland County, New York

On Friday, the FCC showed released two decisions – both dealing with a handful of inadvertent violations of the Commission’s rules on advertising directed to children. In one case, a licensee admitted in its license renewal application 4 violations of the rules and was fined $8,000. In another, the licensee admitted 8 violations, received no fine at all, instead being only admonished for its errors. Why the difference?

The FCC justified the difference in treatment based on the nature of the violations.  In reality, the station that did not receive any fine actually broadcast more commercial material in excess of the limits on the amount of advertising permitted in children’s program than did the station that was fined. The reason – “program length commercials.” These are instances where, in a commercial message, a character from the surrounding program appears. In that situation, the FCC considers the entire program as a commercial, and thus the violation is considered much more serious than a mere overage in the time limits on commercial material in children’s programs. The station that received the fine had 3 program length commercials, while the station that was not fined simply ran more commercial matter than permitted by the rules – and did not have any program length commercials. But are these distinctions really justified?

Continue Reading Plan Your Inadvertent Errors Carefully – A Fine for Children’s Television Violations May be at Stake

The FCC today released its agenda for its September open meeting, to be held on September 11.  As might be expected, the Commission is to consider a number of matters dealing with public safety and homeland security issues for communications companies.   However, the Commission will also be considering a number of items dealing with cable television.  This includes the proceeding on the obligations of cable systems to carry broadcast television stations after the digital transition.  Also to be considered are a proceeding involving the possible extension of the rules restricting cable systems with interests in programming networks from having exclusive rights to that programming, and another proceeding addressing issues left over from the Commission’s order adopting rules restricting the ability of local franchising authorities to delay the franchise applications of competitive cable systems (i.e. those that will compete in a franchise area with the existing system).  Comments in each of these proceeding were only received by the FCC in the last few months – so the Commission being ready to act on these matters this quickly is unusual.

Our firm has published memos on each of these issues.  The memo on the post-transition obligation of cable systems to carry television stations can be found here.  A summary of the proceeding on the rights to exclusive cable programming can be found here.  The advisory dealing with the Commission decision on local franchising authorities and their processing of applications for competitive franchises can be found here.  More on these issues after next week’s meeting.

Every day, on almost every television channel, it seems as if you can find a presidential candidate making an appearance – and it’s not just on the Sunday morning political interview programs.  Last week, it was Hillary Clinton on the David Letterman Show (where her husband is scheduled to appear this week).  In the last two weeks, both Barack Obama and John McCain have made the pilgrimage to talk with John Stewart on the Daily Show.  Mike Huckabee seems to be a fixture on the Colbert Report.  And at the end of last week, TNT reportedly stated that, candidacy or not, it would continue to run episodes of Law and Order featuring Fred Thompson.  With all of these appearances of candidates on television, one might wonder if the FCC’s Equal Opportunities (a/k/a the "Equal Time") rules FCC have been repealed.  In fact, it appears that all of these appearances are within exemptions to, or are otherwise not covered by, the Equal Opportunities Doctrine of the FCC. 

That doctrine requires a broadcaster or, in some instances, a cable system, to provide equal opportunities to competing candidates to appear on the air.  In the most common situation, if one candidate buys commercial time on a broadcast station, the station must treat other candidates in the same race equally, and allow them to buy equal amounts of time on the station at equivalent rates to those paid by the first candidate.  In a candidate is given free time, all his or her opponents are entitled to the same amount of free time, if they request it within seven days of the first candidate’s appearance.  However, the statute provides many exemptions, and all of these recent appearances appear to fall within these exemptions. 

Continue Reading Barack Obama and the Daily Show, Hillary Clinton and David Letterman, Fred Thompson and Law and Order – What About Equal Time?

With summer and the August Congressional recess drawing to a close, will consideration of the Internet Radio controversy over royalties be on the agenda when the September legislative session begins?  In recent weeks, there has been a settlement between the Digital Media Association (DiMA), representing the largest webcasters, and SoundExchange on the issue of the minimum royalty fee – agreeing that the $500 per channel minimum fee imposed by the Copyright Royalty Board ("CRB"), which might have by itself driven many webcasters like Pandora or Live 365 out of business had it not been resolved, would be capped at $50,000.  SoundExchange has also extended a unilateral offer to small commercial webcasters allowing them to continue to pay a percentage of revenue royalty of 10-12% for use of the music produced by SoundExchange members – but limiting the offer to webcasters with under $1.2 million in annual revenue, and requiring that any webcaster with over 5,000,000 tuning hours in any month to pay at the CRB rates for all listening in excess of that limit.  We wrote about that deal, and some of the concerns that larger small webcasters have, here.  These adjustments to the CRB rates may resolve some issues for some webcasters, but they leave open many other issues as set forth below – but will these tweaks to the CRB decision be enough to take the Congressional heat, in the form of the Internet Radio Equality Act, off of SoundExchange?

What issues remain?  There are still many.  These include:

  • The issues of the larger independent webcasters who may currently fit under the Small Webcaster Settlement ("SWSA") Act caps – but may well go over those caps before 2010, and could not afford to pay royalties at the CRB-mandated rates if they exceed the SWSA limits.
  • The CRB mandated rates are themselves problematic for virtually all commercial webcasters – and DiMA made clear that the settlement of the minimum fee issue was the first step in resolving the issues that preclude a vibrant webcasting industry under the CRB rates (see the DiMA press release on the settlement, here)
  • Noncommercial webcasters have not announced any settlement with SoundExchange – even though many expressed concerns over the fees for large noncommercial webcasters  which will, by the end of the royalty period, increase about 9 times over the rates that they had been paying (and more for larger NPR affiliates), and over recordkeeping and reporting requirements.
  • Broadcasters who stream their over-the-air signal over the Internet have not been involved in any of the tweaks to the CRB decision, nor has SoundExchange responded to the NAB’s settlement offer made in June (according to the clock on the NAB homepage, the NAB settlement offer has been outstanding without response for 84 days at the time this post is being written). 

Continue Reading Congress to Return – Will Internet Radio Royalties Be on Its Agenda