May is one of the few months on the calendar where there are not routine FCC regulatory deadlines.  Yet there are still a number of important dates and deadlines this month (and early next) that broadcasters should note.  Some of those dates and deadlines are below.

On March 17, the migration of applications and forms from the FCC’s legacy filing portal CDBS to its newer portal LMS will continue. The FCC has announced the transition of many of the forms that had been filed in CDBS, but are now filed by email, to LMS.  Perhaps most significantly, this includes filings for Special Temporary Authority (and extensions to such authority and notices of the resumption of authorized operations.  See the FCC’s Public Notice on the transition for a complete list of the transitioning forms, notes on the procedures to be used for extensions of applications previously filed in CDBS, and other details.

Throughout May, broadcasters in several states should be aware of the opening of political windows tied to June and early July primary elections.  As a refresher, in the forty-five days before a primary election, broadcasters must extend to legally qualified candidates their lowest unit rate and continue to follow all other applicable political broadcasting rules.  So the lowest unit rate period will be in effect at some point this month for stations serving states that have primary elections in June and early July (and is already open for states with May primaries).  For a deeper dive on how to prepare for the political primary election season, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide.  Take a look at our 2022 Broadcasters’ Calendar to see if your state has an upcoming primary election (though confirm these dates locally as some dates have changed since the calendar was prepared – for instance, just this week, a court ordered the congressional primaries in New York state be postponed from June until August). Continue Reading May Regulatory Dates for Broadcasters: LMS Migration of FCC Forms, Lowest Unit Rate Windows, EEO Audits, TV Auction, FM Antenna Rulemaking, and More

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

  • FEMA officials announced at the NAB Show that there will be no national EAS test in 2022. FEMA is planning for the next test to occur in the early part of 2023.
  • The FCC released a draft Order that, if adopted, would allow FM and LPFM broadcasters using directional antennas to use computer modeling to verify the antennas’ directional patterns. The current requirement is that an FM or LPFM directional antenna’s performance measured relative field pattern must be verified using either a full-scale mockup or a scale model on a test range or in an anechoic chamber.  The proposed rule change would bring the FM rules in line with those for AM and DTV directional antennas.  Watch for a vote on this item at the FCC’s May 22 Open Meeting.  (Draft Order)
  • The chief of the Media Bureau’s Audio Division, Al Shuldiner, told NAB Show attendees that the migration of applications and forms from the FCC’s legacy filing portal CDBS to its current portal LMS will continue next month. LMS users should watch for a Public Notice in mid-May.  This will include moving STA requests, now submitted by email, to LMS.  In the same session, Video Division chief Barbara Kreisman encouraged licensees and their attorneys to ensure that their LMS contact information is correct so that the FCC can contact the proper person when necessary, particularly to resolve issues with pending renewal applications.  Media Bureau Chief Holly Sauer urged broadcasters to respond to FCC inquiries about Biennial Ownership Reports, as the FCC staff has been reviewing the reports filed at the end of last year and identifying corrections that are necessary, and it wants to complete that review shortly.  She also indicated that the FCC would be bringing back the FCC Form 395, annually reporting the breakdown by race and gender of each station’s employees.  That form has not been used for the last two decades.  We wrote about the proposal for the return of that form, and the issues the FCC is considering, in an article on our Broadcast Law Blog, here.
  • The FCC announced the status of the fourteen applications submitted in Auction 112, the June auction of construction permits for 27 new full-power TV stations. Seven applications are complete, and those applicants can move forward and submit their upfront payments.  Six applications are incomplete and need to be amended, and one application was rejected because it proposed a noncommercial educational station and the auction rules do not allow for the inclusion of noncommercial applications in a commercial auction where there are commercial applicants for the same channel.  To continue in the auction, those with incomplete applications must submit amendments, and all participating parties must make upfront payments, both to be submitted by 6 p.m. Eastern on May 6.  Bidding will begin on June 7.  See the Public Notice for more details.  (Complete Applications) (Incomplete Applications) (Rejected Application)

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

  • The FCC this week released a Public Notice announcing that it is soliciting public comment on the recent tests of GeoBroadcast Solution’s zonecasting system, which proposes to allow FM boosters to originate some local programming so an FM broadcaster can provide different commercials or news inserts to different parts of its service area. Comment dates will be announced after this notice is published in the Federal Register (Public Notice). One party, NABAB (National Association of Black Owned Broadcasters), wasted no time, meeting with FCC staff to support the deployment of the zonecasting system, arguing that it would give smaller stations a new tool with which to compete in their markets (NABOB ex parte). This position is contrary to that taken by the NAB, which we noted last week.
  • Another presentation on a controversial issue was made to FCC decision-makers last week when the organizations representing the affiliates of the four major television networks asked that the FCC adopt rules to treat for purposes of the retransmission consent rules virtual cable systems delivering multichannel video programming through online platforms like cable and satellite television providers. The affiliates suggested that this would be so that local TV stations can guide retransmission consent negotiations (Affiliates ex parte).  When the FCC 7 years ago last asked for comments on treating online linear video programming providers as MVPDs for purposes of the FCC rules, it noted many issues raised by the proposal, issues we summarized here.
  • The FCC Commissioners this week upheld a Media Bureau decision to grant an application for a new FM translator near San Diego, California after an opposing party filed for review and dismissal of the application. The application was granted after the applicant had been given an opportunity to amend its application to resolve a perceived interference issue.  The FCC determined that applicants in translator windows should be able to amend their applications to non-adjacent channels to resolve interference issues, as long as the applicant specified a new channel that was open in the area that the applicant planned to serve. The FCC also determined that, in allowing such an amendment, the alternative channel must not only have no current stations operating on it, but there cannot be any dismissed applications for new stations on that channel if an appeal of the dismissal is still pending, as resolution of such an appeal could result in the amended translator application having no viable channel. (Order)
  • The FCC resolved another group of mutually exclusive applications filed in last year’s window for new reserved-band noncommercial stations. One of the applicants, Southern California Tribal Chairmen’s Association (“SCTCA”) proposed to serve Tribal lands and was tentatively selected to receive the construction permit as the FCC gives a preference to a federally recognized Native American Tribe or Alaska Native Village proposing to serve Tribal land.  In selecting SCTCA, the FCC waived the requirement that, to qualify for the preference, at least 50% of the proposed 60 dBµ contour be comprised of the applicant’s Tribal Lands and that at least 50% of the population covered must be members of the tribes.  Because the tribal areas were so diffuse, and the population of the area so great, the FCC waived the rule on population coverage to allow the numerous small Southern California reservations to receive this tribal service.  (Order)
  • Following last month’s filing of applications that would transfer control of dozens of TEGNA stations to Standard General, the FCC set the pleading cycle deadlines. Interested parties must file comments by May 23, 2022.  Oppositions to those comments are due by June 7, 2022.  Replies to those oppositions are due by June 17, 2022.  (Public Notice)
  • On our Broadcast Law Blog, we provided more context on the FCC’s recent decision determining that a purported write-in candidate for a US Congressional seat was not entitled to reasonable access to buy advertising time for his campaign on a local radio station as the candidate had not made a “substantial showing” of his candidacy entitling his to be treated as a “legally qualified candidate.” (Blog Article)

Last week, much was made of an FCC Media Bureau decision rejecting the “reasonable access” claim of a write-in candidate for a Congressional seat in Ohio against radio stations which, after initially running his spots, decided to pull those spots because he had not made a “substantial showing” of his candidacy.  Candidates for federal office (the US House of Representatives, the US Senate and for President) are entitled to buy reasonable amounts of commercial time on all broadcast stations, once those candidates are “legally qualified.”  In other words, commercial broadcast stations cannot refuse to run any ads for candidates for any federal elective office.  We wrote more about reasonable access here, including the considerations about how much time is “reasonable.”

In most cases, the question of whether a candidate is legally qualified for FCC purposes is a relatively simple one.  A station looks to see if that candidate has filed the required paperwork and qualified for a place on the election ballot in the district in which they are seeking office.  The case decided last week was one of the hard cases, where the candidate did not qualify for a place on the ballot but argued that he was a write-in candidate for the congressional seat.  The FCC has recognized that write-in candidates can be legally qualified so as to be guaranteed reasonable access and other protections afforded to candidates under FCC rules, including the right to not have their commercial messages censored by the station (see our posts here and here on the no censorship rule) – but they must make a substantial showing that their candidacy is legitimate.  The FCC has recognized that it would put broadcasters in an untenable position if anyone could, on a whim, declare that they are a write-in candidate and therefore be entitled to buy uncensored advertising time (at lowest unit rates in the 45 days before a primary or the 60 days before a general election – see our post here on lowest unit rates) on any commercial broadcast station that they wanted to.  So the FCC requires this substantial showing – and the adequacy of that showing was the issue in last week’s decision, and has been a question that other write-ins have faced in other elections in the past. Continue Reading Reasonable Access and the Problem Candidate – FCC Declares a Write-In Candidate Not Entitled to Buy Radio Spots, But That May Not Be the End of the Story

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

  • A list of “ex parte” presentations made to the FCC (disclosures of presentations made to FCC decision makers outside of a proceeding’s formal comment filing period) was released this week, and it included a summary of meetings between NAB leaders and FCC Chairwoman Jessica Rosenworcel and Commissioner Geoffrey Starks (and members of their staffs) on several pending matters. At these meetings, the NAB asked the FCC to do more to support the TV industry’s transition to ATSC 3.0, including completing its ATSC 3.0 multicast proceeding (which we summarized on our Broadcast Law Blog, here). It also asked that the FCC abandon its rulemaking that would allow FM boosters to originate limited amounts of programming through “zonecasting” technology.  (Read more on “zonecasting,” here).  Another request was that the Commission wrap up its 2018 Quadrennial Review of broadcast ownership rules, even if the FCC does not soon have its fifth Commissioner in place (as the nomination of Gigi Sohn remains pending in the Senate with the timing of action uncertain).  As we noted in one of our recent weekly summaries here, the NAB in February made a written presentation to the FCC arguing that the record developed in the 2018 Quadrennial Review justified substantial relaxation in the radio ownership rules.  Finally, the NAB said that, while it does not oppose reinstatement of FCC Form 395-B for collection of industry-wide employment data, the Commission first needs to have concrete plans for the analysis of such data to produce meaningful insights into employment in the broadcast industry (see our article here for more on this pending EEO proposal).  (NAB Ex Parte)
  • Almost every week, the FCC announces consent decrees with radio station licensees over public file and political file violations discovered through the license renewal process, and this week was no different. If your radio station submitted its license renewal application and had documents missing from its public file or uploaded required documents late, consult your station’s advisors about the potential for a consent decree.  Some TV stations have received fines for similar violations.  Both types of radio consent decrees include enhanced administrative, recordkeeping, and reporting obligations.  (Public File Consent Decree Example) (Political File Consent Decree Example).
  • The FCC continues to consider channel changes for TV stations, particularly proposals to allow a station to move from a VHF channel to a UHF one because of the UHF band’s perceived superiority for digital services. The FCC Media Bureau’s Video Division released requests for comments on two such proposals this week.
    • The first considers substituting channel 35 for channel 11 in Hampton, Virginia for station WVEC. The request notes that viewers have complained about reception problems with WVEC which do not exist for the other network stations which transmit on UHF channels in the market. (Notice of Proposed Rulemaking)
    • Augusta, Maine, PBS station WCBB requested that UHF channel 20 be substituted for its current VHF channel 10. To refute concerns about predictions of a loss of service from the channel change, the applicant showed that all but 144 people would receive service from other PBS stations, including other stations owned by the licensee of the Maine PBS station.  (Notice of Proposed Rulemaking)

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

  • Broadcast operations that use uninterruptable power supply (UPS) devices as either a primary or backup power source should be alert for possible cybersecurity threats and review the federal government’s guidance on Mitigating Attacks Against Uninterruptible Power Supply Devices. The federal Cybersecurity and Infrastructure Security Agency (CISA) and the Department of Energy are aware of threats to a variety of internet-connected UPS devices, often through unchanged default usernames and passwords.  Companies should immediately ensure their UPS and similar systems are either not accessible from the internet or, if these systems are accessible, companies should use other controls including having them behind a VPN, using multifactor authentication, and adopting strong passwords.  For more information, contact central@cisa.dhs.gov.  (Public Notice)
  • The FCC Media Bureau rejected a complaint by a purported congressional write-in candidate that two Cincinnati radio stations violated federal law by censoring his advertisements and not providing him reasonable access. After initially accepting and airing his ads, the stations went back to the candidate for more evidence that his candidacy was substantial and, being provided insufficient evidence, the stations pulled the ads.  Write-in candidates must make a substantial showing of a serious candidacy to be eligible to receive the benefits and protections of the FCC’s rules.  The Bureau noted that, except for maintaining a website, appearing in one Internet interview, and establishing a campaign headquarters, the complainant engaged in no other significant campaign activities in the district in which he was purportedly a candidate.  Thus, the Bureau found that he had not established that his campaign was bona fide, so the stations were justified in denying him further access. (Order)
  • The licensee of a Chicago FM translator will pay $9,000 to settle an investigation that found rule violations including that the translator was, for extended periods of time, broadcasting when its primary station was off the air, carrying the primary station’s internet-only feed. Under FCC rules, a translator should generally not be operating when its primary station is off the air (unless the translator is rebroadcasting an AM daytimer, when it can rebroadcast at night only if the primary station has been on the air in the last 24 hours).  The investigation also found that the licensee (1) did not notify the FCC or ask permission for special temporary authority when the translator was silent for almost a year (under the rules, notification is to be made in 10 days and an STA requested if the station will be silent for 30 days), and (2) was not fully truthful and accurate in its FCC correspondence. (Order)
  • As we noted in last week’s update, the House of Representatives approved the MORE Act, which, if passed by the Senate and signed by the President, would decriminalize marijuana at the federal level. But, as we wrote on the Broadcast Law Blog, broadcasters as federal licensees should still steer clear of marijuana advertising unless and until the bill becomes law, even if marijuana has been legalized in the state in which they operate as, until then, it remains a felony under federal law.  (Broadcast Law Blog)
  • After recent maintenance, the FCC’s Electronic Comment Filing System (ECFS) is back online and has received some upgrades. As a first step in a series of upgrades, ECFS is now cloud-based, which the FCC says will make the platform more agile and scalable.  A reCAPTCHA function has been added to reduce spam filings.  (News Release)

Last week, the US House of Representatives passed the MORE Act which, if enacted, would take marijuana off the list of Schedule I drugs – those drugs whose possession and distribution is a federal felony, as is the use of the radio waves to promote their use.  As we have warned before (see, for instance, our article here published when an earlier version of this bill passed the House in 2020), because of the laws making the sale of marijuana a federal crime and prohibiting the use of radio waves to promote that sale, broadcast stations should think twice about any marijuana advertising, even in states where it has been legalized.  Thus, the passage of MORE Act through the House should not be taken as a sign to start running marijuana advertising on your broadcast station.

First, it is important to remember that this bill was passed only in the House of Representatives.  Without also being approved by the Senate and being signed by the President, the House’s action had no legal effect.  Because of the way that Congress works, if the bill does not pass the Senate in the current legislative session, which ends in the first few days of January 2023, the whole process must start over again – bills do not carry over from one Congressional session to another.  So, if Senate action is not forthcoming this year, a new Congress would have to start with a new bill, and a new House of Representatives and a new Senate would both have to vote to adopt the legislation.   The MORE Act passed the House with few Republican votes, so if the composition of the House changes next year, that may not bode well for this legislation if it does not pass the Senate this year. Continue Reading House of Representatives Passes MORE Act to Remove Marijuana from Schedule I – Don’t Rush to Start Airing Pot Ads Yet

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

  • The US House of Representatives, in a bipartisan vote, passed the MORE Act, a bill to decriminalize marijuana at the federal level (HR 3614). For this action to be effective, the Senate would need to also vote on this bill to take the drug off Schedule I, which currently makes its possession and distribution (and the use of radio to promote it), a federal felony. Then the President would have to sign the bill. As federal licensees, because of the federal criminal statute, broadcasters have been advised to avoid marijuana advertising, even as the states in which they operate have relaxed their marijuana laws.  As we wrote on our Broadcast Law Blog in 2020 in connection with the passage of an earlier version of this bill, the House action should not be seen as a signal for broadcasters to start accepting marijuana advertising unless and until the Senate and President also act on this legislation.
  • The FCC’s Video Division notified the permittee of a new Low Power TV station of a violation of the FCC’s rules. The notice said that the permittee, for almost three years after the facilities were constructed (about six months after the permit expired), failed to file the required application for a license to cover its construction permit.  An application for license is filed upon completion of the construction of a new station and informs the FCC of the specific facilities that were built and certifies that these facilities track what was authorized by the construction permit.  Without filing a license application, the station was operating for this period without authority.  The permittee faces a $6,500 fine for these violations. (Notice of Apparent Liability for Forfeiture)
  • Owners of a tower in Virginia were cited by the FCC Enforcement Bureau for tower lighting failures. Acting on a complaint, enforcement agents visited the site and found that the tower, which exceeds 200 feet (the height at which towers generally must be lit), did not have its required lights operating after sunset and that the FAA had not been notified of the lighting outage.  The tower owners also had not kept the FCC appraised of its current ownership through updating the tower’s FCC Antenna Structure Registration.  The Notice made clear that, even though the tower is no longer used for licensed radio operations, the owners are still required to maintain the tower until it is dismantled.  (Notice of Citation)
  • The FCC’s Electronic Comment Filing System (ECFS) and financial systems were scheduled to undergo maintenance this weekend that will make both unavailable. ECFS was to be unavailable from 12 am Saturday, April 2 through no later than 7 am Monday, April 4.  As this outage occurred outside normal business hours, filing deadlines will not be routinely extended.  The FCC’s financial systems, including the system used to process application payments, are expected to be unavailable through 5 am on Tuesday, April 4.  (ECFS Public Notice)
  • A radio company’s request to amend the FM Table of Allotments by allotting Channel 284A to Bruce, Mississippi was rejected, showing some of the FCC’s considerations in making FM channel changes. The request was denied as the proposed allotment would not allow the construction of a station that could cover the proposed city of license with the required city-grade signal.  In addition, the company seeking the allotment was planning to use it as a “back-fill,” that would allow it to move another FM channel to which it had rights from Bruce to another community.  The FCC said that its “Rural Radio” policy prohibits the use of a new vacant allotment to justify the removal of a community’s only radio service.  As vacant allotments often go unsold in auctions, the FCC said that they cannot realistically be considered as an alternative service to the community.  (Letter)
  • The House Communications Subcommittee held an oversight hearing with FCC Chairwoman Jessica Rosenworcel and Commissioners Brendan Carr, Geoffrey Starks, and Nathan Simington. Testimony by the Chairwoman and Commissioners and questions from the committee members were light on broadcast issues.  In response to a question about removing market obstacles for diverse and small independent programmers, Chairwoman Rosenworcel indicated that more independent voices are needed on screen and that a new proceeding may be necessary to review current viewing habits.  Commissioner Starks, in support of modifying FM booster rules, said that geotargeting technology has great potential in improving the local radio experience, and better positions small broadcasters and broadcasters of color to compete for advertising dollars and for listeners.  (Hearing Video and Testimony)

In case you missed it, we published our monthly look at the upcoming regulatory dates and deadlines for broadcasters.  Read our blog post for more information on upcoming important dates in April, including the deadline for the required uploading of Quarterly Issues/Programs Lists to the online public inspection file of all full-power radio and TV stations (including Class A TV stations).  (Broadcast Law Blog)

Though this April is somewhat lighter than other months on regulatory deadlines for broadcasters, there are still dates to which broadcasters should pay attention.  As noted below, all stations need to pay close attention to the quarterly obligation to post issues/programs lists to your online public file.  Here is more on that date and information on some of the other dates and deadlines in April applicable to broadcasters.

After three years, the radio license renewal filing cycle closes on April 1, with renewal applications due from stations licensed to communities in Delaware and Pennsylvania.  Renewal applications for TV stations licensed to communities in Texas are also due by April 1.  The TV renewal cycle continues through 2023.  Renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for LPFMs and TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Note that your Broadcast EEO Program Report must include two years of annual EEO public file reports for FCC review, unless your employment unit employs fewer than five full-time employees.  Be sure to read the instructions for the license renewal application (radio, TV) and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file. Continue Reading April Regulatory Dates for Broadcasters: TV and Radio Renewals, Quarterly Issues, New Foreign Government Sponsorship ID Rules, Revised Radio Technical Rules, EEO Audits and Filings, and More

As life slowly returns to something approaching normal after the last two years, radio stations may be inclined to go big on some April Fool’s Day stunt.  But remember that not everyone may be in on the joke and a prank that may seem funny to some could trigger concerns with others.  As we do every year about this time, we need to play our role as attorneys and ruin the fun by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other on-air bits prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes.  Issues under this rule can arise at any time, but a broadcaster’s temptation to go over the line is probably highest on April 1.

The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is foreseeable that the broadcast of the material will cause substantial public harm and (3) substantial public harm is in fact caused.  Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”  If you air a program that fits within this definition and causes a public harm, you should expect to be fined by the FCC. Continue Reading April Fool’s Day and the FCC’s Hoax Rule – Be Careful Out There