Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC’s Enforcement Bureau released a Notice of Apparent Liability proposing a $25,000 fine on two commonly-owned clusters of broadcast stations for their apparent failure to comply with the FCC’s EEO rules.  The proposed fine was based on two EEO Annual Public File Reports at one cluster being uploaded late (one 5 months late, the other 17 months late) and one Annual Report at the other cluster being uploaded over a year late.  The FCC also found that, in two cases, the stations had not publicized job openings in a manner likely reach the entire community served by the stations, as the rule requiring that broadcasters “widely disseminate” information about job openings requires – relying solely on a recommendation from a departing employee in one case, and on the licensee’s on-air announcements on its own stations in the other.  The Bureau also faulted the broadcaster for not keeping adequate paperwork to document its EEO efforts and for not conducting the kind of required “self-assessment” that would have uncovered the issues.  We wrote more on this decision, and whether it signals more robust EEO enforcement in the future, on our Broadcast Law Blog, here.
  • The FCC’s Media Bureau issued a Public Notice extending the scheduled window for filing applications for new Low Power FM stations from early November until December.  The LPFM Filing window will now open at 12:01 am EST on December 6, and close at 6:00 pm EST on December 13.  The Bureau also extended the freeze on LPFM and FM translator minor modification applications until the close of the filing window on December 13.  For more on the extension and the procedures for filing applications in the window, see our Blog article here. 
  • The FCC’s Wireless Telecommunications Bureau issued a Public Notice seeking comment on the proposed deadlines for the submission of reimbursement claims by earth station operators affected by the C-band transition.  The goal is to conclude the reimbursement program by the current target of June 30, 2025.  Comments will be due 15 days after the Public Notice is published in the Federal Register on the following proposed deadlines: 
    • February 5, 2024 – For all reimbursement claims for costs incurred and paid by claimants as of December 31, 2023, including all lump sum election claims by incumbent earth station operations.
    • September 30, 2024 – For all reimbursement claims for costs incurred and paid by claimants after December 31, 2023, which must be submitted on a rolling basis within 30 days of being incurred.
  • The FCC’s Public Safety and Homeland Security Bureau issued a Public Notice announcing that it will co-host with the Cybersecurity and Infrastructure Security Agency’s Emergency Communications Division a public roundtable on the security of the nation’s public alert and warning systems, including EAS.  The roundtable is scheduled for 9:30 am EDT on October 30 and will include a discussion among representatives of the government and private industry on issues raised in the FCC’s October 2022 Notice of Proposed Rulemaking, which proposed, among other things, mandatory cybersecurity programs at all broadcast stations as well as regular reports to the FCC by broadcasters on their programs.  The roundtable will focus on the costs and benefits of these proposals.  We wrote about the FCC’s October 2022 NPRM here.  Registration is free and open to the public.  Interested participants may register here for the event.
  • The FCC issued an Order expanding the FCC’s audio description requirements to commercial broadcast television stations affiliated with one of the top four television broadcast networks (i.e., ABC, CBS, Fox, and NBC) in Designated Market Areas 101-210.  Currently, the FCC’s audio description requirements apply only to the top 90 DMAs and will be extended to DMAs 91-100 as of January 1, 2024.  As a result of the FCC’s Order, the audio description requirements will now expand to DMAs 101-210 beginning with DMAs 101-110 on January 1, 2025, and ending with DMAs 201-210 on January 1, 2035.  Audio description provides narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue, for the benefit of individuals who are blind or visually impaired.  Covered TV stations must pass through 87.5 hours of audio described programs each calendar quarter.
  • The Media Bureau allotted new television channels reserved for noncommercial operations in the following communities: Tulare, California (channel *3), Colusa, California (channel *2), and Alamogordo, New Mexico (channel *4). It also allotted FM Channel 277C2 at Wharton, Texas.  Applications for new stations on these newly allotted channels can be filed during windows that will be announced in the future.  The Media Bureau also granted the request of an existing TV station in Las Vegas to move to UHF channel 26 instead of its current VHF channel 13, reflecting the perceived superiority of UHF channels for digital operations.

On our Broadcast Law Blog, we published an article warning broadcasters of the trademark issues that can arise from the use of the words “World Series” in any baseball themed advertising or promotions without permission of Major League Baseball. 

Earlier this week, the FCC’s Enforcement Bureau issued a Notice of Apparent Liability proposing a $25,000 fine on two related companies operating clusters of stations in two small Kansas markets.  Those clusters have, because of financial setbacks (leading to bankruptcy), reduced staff so that they no longer have 5 full-time employees at either cluster and thus are no longer subject to the FCC’s EEO outreach requirements. In this Notice, the FCC staff looked back to a few isolated violations in 2020 and 2021, when the stations had 5 or more full-time employees, to justify the proposed $25,000 fine.

The Enforcement Bureau pointed to the late upload to the online public file of three Annual EEO Public File Reports. The Bureau also pointed to the late upload of two Annual EEO Public File Reports at one of the clusters, and one late upload at the other cluster.  Both the 2020 and 2021 reports for one cluster were uploaded in June 2021, when the reports were due in February of each year.  Thus, one report was 5 months late, the other 17 months late.  At the other cluster, the 2021 report was uploaded a year late.  There was no allegation that the reports were not completed on time – just that they were not timely uploaded.

Continue Reading $25,000 Proposed Fine for Alleged EEO Violations at Kansas Radio Clusters – A Higher Standard for FCC EEO Enforcement?

The FCC yesterday issued a Public Notice announcing that it was rescheduling the filing window for new Low Power FM stations that had been scheduled for early November – moving the window to December.  Applications now can be filed between 12:01 AM Eastern Time on December 6, 2023 and 6:00 PM ET on December 13, 2023.  The FCC stated that a group of low power advocates had requested the extension to give applicants more time to prepare their applications.  The FCC warns in the Public Notice that this deadline will be strictly enforced – so don’t expect any leniency for any application that does not meet the 6 PM deadline on December 13.

Note that this extension also extends the freeze that the FCC imposed on LPFM and FM translator minor modifications.  That freeze, imposed to provide LPFM applicants with a static database from which to work in planning their applications, will now run through December 13.

Continue Reading FCC Postpones LPFM Filing Window and Extends Filing Freeze – Application Filing Window Now December 6 through December 13

Readers of the Broadcast Law Blog are familiar with the potential trademark claims that may arise from the use of SUPER BOWL® (see here) or FINAL FOUR® in advertising or promotions (see here and here).  I was recently asked, in light of the various “WORLD SERIES OF ____” marks that are being used for sports or activities other than baseball, whether there is a similar risk with using WORLD SERIES® in advertising or promotions during this time of year.

The short answer is yes.

The first use of “World Series” for the US professional sports championship took place in 1903, if not earlier.  However, it was not until 1987 that the Office of the Commissioner of Baseball (“MLB”) began seeking federal registration for “World Series” trademarks.  The applications were based on use of the marks before 1986.  (Use of a trademark without registration can create “common law” marks, which are enforceable, but the owner of the mark does not have the presumptions of ownership and validity that accompany trademarks registered on the Principal Register of the US Patent and Trademark Office.)

Today, MLB owns a number of registered marks for “WORLD SERIES” in words, in a stylized format or with a design.  MLB’s rights in “WORLD SERIES” marks are strong.  Indeed, MLB appears to own all of the registrations for WORLD SERIES-formative marks for goods or services relating to baseball tournaments and merchandise, including COLLEGE WORLD SERIES®, WOMEN’S COLLEGE WORLD SERIES® and HIGH SCHOOL WORLD SERIES®, notwithstanding the fact that those events are run by the NCAA or other sports organizations.  (see here and here).  Although it is probably not obvious to the average fan, MLB owns these marks and licenses the respective trademarks to the actual tournament operators.  The fact that MLB has made these arrangements reflects how seriously MLB takes protecting its WORLD SERIES® mark and how strong those rights are – up to a point.

Continue Reading Unauthorized Use of WORLD SERIES in Advertising or Promotions?  Strike One, Strike Two … !!

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • FCC Chairwoman Rosenworcel announced that two Notices of Proposed Rulemaking (NPRMs) have been drafted, which, if adopted by the Commission, would seek public comment on proposals to protect consumers from the effects of blackouts lasting more than 24 hours resulting from the failure of broadcasters and Multichannel Video Programming Distributors (MVPDs, i.e., cable and satellite TV providers) to reach a retransmission consent agreement.  The NPRMs propose to require MVPDs, in the event of a blackout due to the failure to reach a retransmission consent agreement with a broadcaster, to: (1) issue rebates to subscribers to compensate them for the channels that they do not receive; and (2) notify the Commission via an online public portal of broadcast blackouts lasting 24 hours or more. These specifics of the proposed NPRMs have been circulated to the other Commissioners for their review and are not yet publicly available. 
  • The FCC imposed two substantial fines on pirate radio operators who ignored FCC warnings to cease their operations.  In each case, the pirate radio operators have 30 days to pay the fine or their case will be referred by the Commission to the U.S. Department of Justice for enforcement.  The FCC itself cannot sue to collect fines against individuals who ignore the penalties issued in cases like this; instead, it relies on the DOJ to enforce the penalties in Court.  The specifics of these cases follow:
    • In one case, the Commission imposed a $2,316,034 fine against two individuals for operating a pirate FM radio station in Queens, New York.  The decision followed the Commission’s March 2023 Notice of Apparent Liability, which we wrote about here, when the FCC first proposed the fine.  The two individuals failed to respond to its March 2023 Notice.  The Commission relied upon the PIRATE Act passed by Congress in 2020, which enabled the FCC to impose higher fines for pirate radio operators.  The Commission concluded that the maximum penalty under the PIRATE Act was appropriate because the pirate radio operators operated their pirate radio station for over a decade – even after many prior FCC actions including repeated warning (including personal warnings by FCC agents), previous fines that were ignored, and equipment seizure by US Marshalls.  Despite all these actions, the pirate continue to operate, even promoting their operations on a website and through social media. 
    • In the second case, also an Order following up on a March Notice of Apparent Liability (which we also wrote about here), the FCC imposed an $80,000 fine on the operator of an Oregon pirate station.  This pirate also failed to respond to the FCC’s March Notice of the proposed fine.  In the Oregon case, the pirate kept operating despite repeated warnings from the FCC and twice having his equipment seized by the Federal government.  The pirate apparently ceased operations only when his landowner was threatened by the FCC with a fine (under the PIRATE Act, landowners can be fined for allowing pirates to operate from their land).
  • Last week, the FTC held a roundtable discussion on the creative economy and generative artificial intelligence (“AI”).  The event featured remarks from FTC Chair Lina Khan, FTC Commissioner Rebecca Kelly Slaughter, and FTC Commissioner Alvaro Bedoya – which was followed by a discussion with stakeholders representing creative media organizations.  Each witness expressed concern about how AI could affect their industry by appropriating their work to create new content that the original artists are not compensated for and did not consent to.  More information, including transcripts and video of the proceeding, are available on the FTC website here.
    • The potential harms of generative AI was also addressed by Congress this week through the introduction of a bipartisan bill, which seeks to protect actors, musicians, and other performers’ likenesses from unauthorized replicas that are generated using AI.  Specifically, under the bill, known as the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act, individuals and companies would be held liable for producing unauthorized replicas of individuals’ performances generated using AI.  The bill, however, exempts from liability certain AI replicas: (1) used as part of a news, public affairs, or sports broadcast or report; (2) used as part of a documentary, docudrama, or historical or biographical work; (3) used as part of scholarship, satire, or parody; and (4) where the use of the AI replica is de minimis or incidental. 
  • The FCC’s Media Bureau proposed a $13,000 fine against the licensee of two TV translator stations for failing to timely file license applications for the translators and operating the stations without authorization after their construction permits had expired.  The translators’ licensee admitted that, due to a misunderstanding with its former consulting engineer, it failed to file license applications for the translators when their construction was completed, and it continued operating the translators after their construction permits had expired.  The FCC’s rules normally require a base fine of $3,000 for failing to timely file a license application, and a base fine of $10,000 for operating a station without proper authorization.  In this case, however, the Bureau reduced the proposed fine from $13,000 to $6,500 for each station because TV translator stations are secondary services.  Nevertheless, the Bureau noted that while other TV translators were previously fined only $3,500 for similar violations, a greater fine of $6,500 was warranted here because the translators engaged in unauthorized operations for far longer than in the previous cases.  Finally, the Bureau reinstated the translators’ construction permits (thereby enabling their license applications to be granted) based upon the Bureau’s practice of reinstating permits when a licensee has failed to timely file a license application for a station but clearly completed construction of the station before the station’s permit had expired.

While this week was light on regulatory activity at the FCC, the Commission is slated to consider a draft order next week at its October 19 Open Meeting.  If the order is adopted, the FCC’s audio description requirements would expand to commercial broadcast television stations affiliated with one of the top four television broadcast networks (i.e., ABC, CBS, Fox, and NBC) in Designated Market Areas (DMAs) 101 through 210 at a rate of 10 additional DMAs per year.  We’ll provide more information on that item next week.

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The re-nominations of FCC Commissioners Geoffrey Starks and Brendan Carr were approved by the Senate late the week before last (see Starks and Carr statements on Senate approval).  Starks’ term expired at the end of 2022, but Commissioners are allowed by the Communications Act to hold over for a year if no successor has been approved, so he could have served through the end of 2023.  Now that his renomination has been approved by the Senate, he can serve through 2027.  Carr’s term was to end this year, and he has now been approved to serve through 2028.  With the recent approval of the nomination of Anna Gomez to fill the long vacant fifth seat on the Commission, the FCC (barring the early departure of one of the Commissioners) will have its full complement of Commissioners at least through next year’s presidential election.  See our Broadcast Law Blog article here on some of the broadcast issues that the now full Commission may now tackle.
  • The Nationwide Test of the EAS system was conducted on Wednesday, October 4.  Just before the test, the FCC and FEMA issued a News Release reminding the public about the test and reminding broadcasters planning news reports about the test to avoid using the EAS alert tones during their newscasts.  The use of the EAS tones outside actual tests is prohibited.  All licensees should have filed ETRS Form Two by the end of the day on October 5, reporting whether the test was received, and they must file Form Three by November 20 providing more information about the results of the test.  
  • The FCC released its quarterly Broadcast Station Totals Press Release.  The release shows that, compared to the same release from a year ago, there are 38 fewer AM stations, and 7 fewer FM stations, but 55 more noncommercial FM stations. There were single digit increases in UHF television stations, while VHF stations decreased by a similar amount.
  • The FCC’s Media Bureau continued to address proposed changes to the TV Table of Allotments.  Once the repacking of the TV band following the incentive auction was complete, the FCC in 2021 lifted the freeze that had been imposed on changes to the Table, allowing TV stations to propose channel changes for existing stations, and others to ask for allotments for new TV stations.  This week, the FCC’s Media Bureau took two such actions:
    • It issued a Report and Order substituting UHF channel 21 for VHF channel 7 at Knoxville, Tennessee, to address signal receptions suffered by the channel 7 licensee, continuing the move of TV stations from VHF to UHF channels which are superior for reception of digital signals. 
    • The Bureau also requested comment on a proposal submitted by the permittee of an unbuilt television station on channel 31 at Wittenberg, Wisconsin, to reallocate the channel to Shawano, Wisconsin, and modify the proponent’s  construction permit to specify Shawano as its community of license.  The FCC may modify a station’s community of license without affording other interested parties an opportunity to file competing expressions of interest, provided that the new allotment (1) will be mutually exclusive with the proposing station’s existing allotment; (2) will result in a preferential arrangement of the allotments according to the FCC’s television allotment priorities; and (3) will not deprive a community of its sole local transmission outlet.  As to criterion (3), the Wittenberg proponent argued that Wittenberg would not lose any existing service because its station has not commenced operations, and thus no viewers have come to rely on the station for television service.  The Wittenberg proponent also contends that providing Shawano (a community nine times larger than Wittenberg) with its first local television service is the type of “rare circumstance” which justifies a waiver of the general prohibition on the removal of a community’s sole first local service. 
  • In re-evaluating three mutually exclusive applications from the 2021 window for new NCE FM stations, , the Media Bureau dismissed the application that had previously been preferred for a construction permit at St. Michaels, Arizona because of that applicant’s failure to comply with the FCC’s “signature rule,” and sent the remaining two applications to the full Commission to conduct a second comparison under its points system analysis. Under the “signature rule,” an application filed by a corporation must be signed by an officer or director.  The signatory to the dismissed applicant’s application was its general manager, who was neither an officer nor a director of the company.  The Bureau ruled that the FCC’s rules did not permit the dismissed applicant to cure this defect by amending its application.

Last week, as we noted in our weekly summary of regulatory actions of importance to broadcasters, the US Court of Appeals for the D.C. Circuit issued an Order directing the FCC to complete its 2018 Quadrennial Regulatory Review of its broadcast ownership rules by December 27, 2023, or show cause why the National Association of Broadcasters’s (NAB) Petition for Writ of Mandamus should not be granted.  The NAB’s petition, filed in April 2023, requests that the D.C. Circuit compel the FCC to conclude the agency’s still-pending 2018 review.  Neither last week’s order, nor any mandamus order that could be issued by the Court should the FCC fail to finish its review by December 27, will compel any particular decision.  Instead, such an order would only require that the FCC finish the review started in 2018 (see our article here on the start of that review process).

The Quadrennial Review process is mandated by Congress.  Every four years, the FCC is required to review its local ownership rules and determine which ones remain in the public interest.  The NAB’s argument to the Court has been that the FCC failed to meet its statutory obligation by not completing the 2018 review last year.  In December, we wrote about the FCC’s failure to complete the Quadrennial Review, and how the inaction has forestalled any review of the issues that were teed up in that review.  What were those issues?

Continue Reading Court Orders FCC to Complete Quadrennial Review by December 27 – What are the Issues for Review by the Commission?

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • In a last-minute reprieve, the House and Senate agreed on Saturday, September 30 to fund the government for another 45 days, through mid-November, averting an October 1 shutdown of the federal government.  While the FCC’s website indicated that it had sufficient leftover funds to stay open through October 20, a shutdown would have nevertheless created issues for broadcasters, not just in connection with its general economic impact, but also with processing issues that might arise from other government agencies, like the cessation of publication of the Federal Register (in which certain FCC actions must be published to become effective).  But, with the shutdown averted for now, FCC operations should be unaffected through mid-November.  Thus, the Nationwide EAS test (see our Broadcast Law Blog article posted on Friday) and other October deadlines including the public file upload of must-carry/retransmission consent elections and quarterly issues programs lists will move forward as scheduled (other October requirements are listed in our summary of regulatory dates for October). 
  • On September 25, Anna Gomez was sworn in as the fifth FCC Commissioner (see the FCC’s announcement here).  Her announcement as to who will be on her staff, including her Acting Legal Advisor on media (e.g., broadcast) matters is available here.  With her arrival, the FCC appears to be ready to revisit “net neutrality” matters at their meeting this month (see the agenda for the monthly meeting released this week).  We wrote on our blog about broadcast issues that the FCC may now consider with a full complement of Commissioners. 
  • The U.S. Court of Appeals for the D.C. Circuit issued an Order directing the FCC to complete its 2018 Quadrennial Regulatory Review of its broadcast ownership rules by December 27, 2023, or show cause why the National Association of Broadcasters’s (NAB) Petition for Writ of Mandamus should not be granted.  The NAB’s petition, filed in April 2023, requests that the D.C. Circuit compel the FCC to conclude the agency’s still-pending 2018 review.  We wrote here about the FCC’s failure to complete the Quadrennial Review in December, and how the inaction has forestalled any review of the radio ownership rules, the dual network rule (prohibiting one company from controlling two of the top 4 broadcast TV networks), and the adoption of specific standards for approving waivers to allow the combination of two of the Top 4 TV stations in a market, all issues teed up in the 2018 Quadrennial Review.
  • The FCC’s Media Bureau issued a Declaratory Ruling allowing Alpha Media Holdings Inc. to exceed the 25% limit on foreign investment established in section 310(b)(4) of the Communications Act.  Alpha, which holds broadcast licenses through indirect, wholly owned subsidiaries, received approval for specific foreign investors to each hold equity and/or voting interests of more than 5% in the company (each being allowed to hold up to 49.99% of the company), ultimately allowing these approved foreign investors to hold in the aggregate up to a 100% interest in the company.  The Declaratory Ruling was necessary due to changes in Alpha’s ownership structure that were an outgrowth of the bankruptcy reorganization of the company and its subsidiaries.  The decision notes that the foreign investors who were approved come from countries with friendly relations with the United States, and these investors were reviewed and approved by the executive agencies of the federal government which assess foreign investments in US companies for security concerns.  We wrote more about the FCC’s process of approving foreign ownership of US broadcast stations on our blog here and here. 
  • The Media Bureau entered into a Consent Decree with a Virginia college where the college surrendered the license for its noncommercial educational station and agreed to pay a $10,000 fine in order to conclude an investigation into the station’s operations.  The station lost its transmitter site and began to operate from a new site under an STA, but continued to operate after the STA expired, apparently from yet another site.  The licensee admitted in the Consent Decree that it operated its station for more than 5 years at variance from its licensed parameters without authorization and that the station’s licensee provided the FCC with incorrect information regarding those operations.  While the Consent Decree stipulated that the station’s licensee did not intentionally deceive the FCC regarding the station’s operations because it believed in good faith that the change in the station’s tower site was merely a correction of licensed coordinates rather than a site change, it nevertheless required that the license be surrendered.  This action is consistent with the FCC’s precedent under Section 312(g) of the Communications Act, which states that a station operating from an unauthorized site for more than one year automatically has its license cancelled unless the FCC finds some unique public interest reason to excuse the station’s failure to operate (see our article here on that policy). 
  • The Bureau entered into two consent decrees with stations that had transferred control of their operations without prior FCC approval.  These cases show that any change of control, even when the result of the death of an owner or because of routine estate planning, require FCC approvals.
    • In one case, the Bureau entered into a Consent Decree with the licensee of two North Carolina AM stations to resolve the licensee’s failure to file applications for involuntary transfer of control within 30 days of the deaths of two of its owners.  When each of these owners died, their spouses, who were also shareholders, assumed the interests of the deceased spouse, giving the surviving spouse 50% “negative control” of the company – the ability to veto company actions.  Each assumption of negative control by an existing shareholder should have been approved on a Form 316 application.  When one of surviving spouses died, her stock passed to her estate and was then controlled by a niece who was the administrator of the estate.  The assumption of the negative control by the niece (who had not previously been approved by the FCC as a shareholder) should have been approved on a Form 315 application.  The licensee agreed to pay a $1,000 penalty to resolve these violations. 
    • In the second case, the Bureau entered into a Consent Decree with the licensee of a Montana AM station and an FM translator for failing to seek prior FCC consent for the transfer of control that occurred when the controlling interests of a husband and wife were transferred to trusts.  Their children where the controlling trustees of these new trusts.  The licensee did not seek FCC approval for the transfer of the interests to the trusts until approximately 6 months after the transfers occurred.  The licensee agreed to pay a $8,000 penalty and to implement a compliance plan to prevent such violations in the future.
  • The Bureau entered into a Consent Decree with a New York LPFM licensee to resolve its admitted operation of an FM broadcast booster station for over 14 months without FCC authorization, an operation which the licensee attributed to a misunderstanding of the rules that permit LPFM boosters (but which require FCC approval before they can commence operations). The licensee agreed to pay a $1,500 penalty and adopt a compliance plan to prevent such violations in the future.
  • The FCC’s Enforcement Bureau issued a Notice of Violation to a Maryland antenna structure owner (who also was the licensee of an AM station), directing it to respond to the Bureau’s findings that it had violated a variety of FCC rules about the painting and lighting of antenna structures and the proper registration of antenna structures.  According to the Notice, the required tower paint was faded and flaking, the tower’s lights were not operational as required by its license, and the FAA had not been notified of the lighting failure so that the FAA had not issued a Notice to Air Missions warning pilots of the dark tower until notified by the FCC of the problem.  In addition, the Notice said that the FCC attempted to contact the licensee about the issues but received no response, and that the lights had been out for several months after the FCC inspection without any repairs being made.  In addition, the tower registration appeared to have an incorrect address for the structure.  The tower owner must respond to this notice to provide all relevant facts about the issues and how they will be addressed.  After the response, the FCC will evaluate whether further actions will be taken against the tower owner. 
  • The Media Bureau proposed to assess a $1,500 per station fine against a licensee of five television translator stations and, separately, a licensee of seven television translator stations for failing to file timely license renewal applications.  The failure to file a timely renewal application will normally require a base fine of $3,000 per station.  However (consistent with recent practice), the Bureau reduced the proposed per station fine to $1,500, citing the fact that television translators only provide a secondary service, but at the same time provide valuable fill-in service for those without off-air access to full power television stations.  In a third consent decree involving the untimely filing of a license renewal application, the licensee of a student-run noncommercial educational (NCE) FM station agreed to pay a $500 penalty and adopt a compliance plan to prevent such violations in the future, a penalty consistent with the Bureau’s more lenient treatment of student-run NCE stations.
  • The Bureau requested comment on a proposal to allot reserved noncommercial educational (NCE) television channel 4 to Jacksonville, Oregon as the community’s first local television service and its first NCE television service.  Comments and reply comments are due 30 and 45 days, respectively, after the proposal is published in the Federal Register.

The Nationwide EAS Test is scheduled for October 4.  Some had wondered if the test would be delayed if the government shut down over budget issues. While an alert could be transmitted whether or not nonessential government employees were working, there was a fear that the EAS Test Reporting System (ETRS) would not be operational.  What good is a test if the reports could not be filed to determine its effectiveness? Now, according to various press reports, it appears that the FCC will have funds to operate for at least another few weeks even without a federal budget being passed, so we are assuming that the EAS test will be going forward as planned (though watch for any last-minute changes).  What should broadcasters know? 

Why is the test important?  Beyond simply testing the system, the test has added importance for AM stations. As Congress debates legislation to ensure that AM remains in the car to provide safety information, it would not look good if AM broadcasters did not participate in the test to ensure the reliability of their systems, or if they did not take the time to file with the FCC the required post-test reports. 

When will the test occur?  The test will be transmitted at approximately 2:20 PM Eastern Time on October 4. 

How will the test be transmitted?  The test will originate using the Common Alerting Protocol on the IPAWS system. Stations should be sure that their EAS receivers are configured to receive this internet delivered alert.

What post-alert reporting obligations do stations have?  The ETRS Form Two report must be filed within a day of the October 4 test.  So, by midnight ET October 5, stations should file Form Two, reporting if they received the test or not and if they successfully transmitted it.  ETRS Form Three is due November 20, providing greater detail about the test, including any issues with audio quality or other concerns.  The FCC has warned that it could take enforcement actions against stations that do not file these required post-test reports. 

How does the Nationwide Test affect other routine EAS test obligations?  The FCC rules say that the Nationwide Test replaces the required weekly test in the week in which it is conducted, and also replaces the routine monthly test for the month in which it occurs.

For more information, see the initial FCC Public Notice about the test, and a subsequent Public Notice addressing accessibility of the EAS alerts broadcast by television stations.  Also see our Broadcast Law Blog articles here and here which highlight some of the issues raised in the FCC Public Notices.    

On paper, this October appears to be a busy month for regulatory deadlines.  But the lack of congressional action to fund the federal government for the coming year (or “continuing resolutions” adopted to allow government agencies to function at their current levels) is making a federal government shutdown appear inevitable.  If a government shutdown does occur, the FCC, the FTC, and the Copyright Office may also shutdown – which, as with previous shutdowns, may result in many of the regulatory deadlines discussed below being delayed. 

According to the August 2023 FCC Shutdown Plan, if a potential lapse in appropriations is imminent, the FCC will determine whether and for how long prior year funds will be made available to continue all agency operations during a lapse.  To date, however, the FCC has not stated whether it plans to remain open – and if so, for how long – if a government shutdown does occur.  Details from the FCC and other agencies should be released shortly given the shutdown that may well occur this weekend. 

Until we receive such guidance, the tentative October regulatory deadlines for broadcasters are provided below.  Even if the government does shut down, these dates will likely be rescheduled for soon after the funding issue is resolved.  So, let’s look at the upcoming deadlines. 

Continue Reading October Regulatory Dates for Broadcasters – Nationwide EAS Test, Annual EEO Public File Reports, Retransmission Consent Elections, Biennial Ownership Reports, and More (If the Government is Open)