As we wrote several months ago, the Nationwide EAS test is scheduled for tomorrow, August 11, 2021 at 2:20 pm ET, with “day of test” information to be filed with the FCC on ETRS Form Two by August 12.  The FCC issued a reminder last week, and FEMA sent an announcement of the test out yesterday, so do a last check of your equipment to be sure that you are ready to receive the test when it comes your way (or to report on any failure if for any reason it does not arrive as expected).  And don’t forget the final test date due on ETRS Form Three by September 27.

The FCC yesterday issued a Public Notice reminding all full-power and Class A TV stations that were repacked in Phases 1 through 5 of the post-incentive auction repacking of the TV band (and repacked stations that were granted permission to transition prior to Phase 1) that they must submit all remaining invoices for reimbursement from the TV Broadcaster Relocation Fund no later than October 8, 2021.  The FCC is looking to finalize the last details of the incentive auction by concluding all payments to repacked stations.  The remaining full-power stations must submit their reimbursement requests by March 22, 2022, with others eligible to receive repacking funds (LPTV and TV translator stations as well as radio and MVPD claimants) needing to submit their reimbursement requests by September 5, 2022.

On Friday, the FCC  released another of its regular EEO audit notices (notice and list of affected stations available here), asking approximately 200 radio and TV stations, and the station employment units with which they are associated (i.e., commonly owned stations serving the same area), to respond to the audit notices by September 20, 2021.  Audited stations must upload their response to their online public inspection file. The response should include copies of the employment unit’s EEO Annual Public File reports for the last two years, as well as backup data showing that the station in fact did everything that was required under the FCC rules.  This is the second audit of 2021 (see our article here on the first audit commenced earlier this year).  It appears that this audit targets stations in states who have recently had license renewals reviewed, as stations in states with recent license renewals would already have their EEO record under review as part of the renewal process.

Audited stations must provide representative copies of notices sent to employment outreach sources about each full-time vacancy as well as documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts, which are outlined as “menu options” in the FCC’s rules, are designed to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide information about how they self-assessed the performance of their EEO program. Answers to certain other questions are also required. Continue Reading FCC Audits Another 200 Broadcast Stations on EEO Performance

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.

  • In the run-up to the August 11 National EAS Test, the FCC released a Public Notice reminding broadcasters to ensure their EAS equipment is all updated, their EAS equipment can receive and process the National Periodic Test code (the “six zeroes” national location code), and their equipment is configured for the monitoring assignments designated in their State EAS Plans. This year’s test will not be distributed over the internet using IPAWS but will instead use traditional broadcast distribution, which will cause the aural and visual messages received by TV viewers to not be identical.  Stations must file EAS Form Two “day of test” information by August 12 and EAS Form Three with post-test data by September 27.  (Public Notice)
    • In other EAS news, the FCC Enforcement Bureau proposed a $20,000 fine against ESPN for alleged violation of the FCC rules that prohibit the transmission of false or deceptive EAS tones. In an episode of 30 for 30, the tones were heard briefly during the dramatic depiction of a severe weather event, though ESPN said the tones could not have triggered any automated relay equipment.  This is another reminder that the FCC prohibits use of EAS tones – real or simulated – not tied to an actual emergency or test.  (ESPN NALF)
  • Nearly 200 radio and TV stations have been randomly selected by the FCC for an audit of their compliance with the FCC’s EEO rules. Station employment units (i.e., commonly owned stations serving the same area) with five or more full-time employees are required to provide to the FCC (by posting the information in their online public inspection file) their EEO Annual Public File reports for the last two years, as well as backup data showing that the station did everything that was required under the EEO rules.  Station employment units exempt from EEO reporting (i.e., they employ fewer than five full-time employees) still need to respond to the audit, though with much less paperwork.  The deadline for posting audit information in the public file is September 20.  We wrote, here, about EEO audits and rules after the first round was announced in February.  (Audit Letter and Station list)
  • The FCC’s Media Bureau is seeking comment on a petition filed by the four major networks affiliates’ association regarding recently adopted rules that require broadcasters make specific sponsorship identification disclosures about programming blocks purchased by a foreign government or their representatives, and to take steps to assess if parties leasing airtime on a station requires such disclosures. The affiliates are concerned that the new rules might be read to apply to common forms of broadcast advertising and asked the FCC to clarify that these rules do not apply when a station sells time to advertisers in the normal course of business, no matter the length of the advertisement.  The Media Bureau encouraged commenters that agree with the affiliates’ position “to provide objective criteria that could distinguish between advertising and arrangements for the lease of airtime” and “to articulate specific characteristics that might distinguish what they consider to be advertising from a lease of airtime on a station, such as duration, content, editorial control, or differences in the nature of the contractual relationship between the third-party and the station.”  Comments on the petition are due by September 2, 2021, with reply comments due by September 17, 2021.  (Public Notice)  (Petition).
  • Two Class A TV stations face fines of $15,000 and $20,000 for failing to timely upload a significant number of quarterly issues/programs lists to their public file. These notices are reminders that the FCC scrutinizes public files as part of its evaluation of a station’s license renewal application and that stations need to stay on top of their upload deadlines if they want to avoid these penalties.  Issues/programs lists are the only FCC-required documents that demonstrate a station’s public service to its community.  See the letters here and here.
  • The FCC voted to begin a rulemaking that proposes two updates to the political broadcasting rules. The first proposal would add use of social media and creation of a campaign website as factors to consider when determining if a write-in candidate has made a “substantial showing” of a bona fide campaign for office so that they can be considered a “legally qualified candidate.”  The second proposal would update the political file recordkeeping rules to require that stations upload to their political files any request for advertising time that “communicates a message relating to any political matter of national importance” (i.e., federal issue ads).  Comments and reply comments will be due 30 days and 45 days, respectively, after publication of the item in the Federal Register.  We wrote more about the proposals, here.  (Notice of Proposed Rulemaking)
  • The comment period has been set for interested parties who want to weigh in on several technical changes the FCC has proposed making to its rules for radio. Read the Notice of Proposed Rulemaking, here, and have your comments and reply comments in by September 7 and September 20, respectively.  (Federal Register)
  • Auction 109 for new broadcast stations has ended, with construction permits for nearly 100 new FM stations being sold. The four St. Louis-area AM licenses received no bids.  See the list of winning bidders, here.
  • Keep an eye on Capitol Hill, where the Local Journalism Sustainability Act was recently introduced in the House and Senate, designed to support local media in the face of more advertising dollars migrating to digital media. If this proposal was to become law, a tax credit of up to $5,000 would be available to small business advertisers who place advertising in either a local newspaper or on a local broadcast station.  Local media outlets could also receive tax credits of up to $12,500 for hiring a local journalist.  We wrote about the bills, here.  (House Bill)  (Senate Bill)

Last week, another bill was introduced in both the House and the Senate with the intention of supporting local media to help offset the erosion of their advertising base by digital media.  The Local Journalism Sustainability Act (text of House bill here, and summary of Senate bill here) proposes certain benefits for local newspaper subscribers, as well as benefits to advertisers who advertise on local media – both broadcast and print.  For newspaper subscribers, individuals can get tax credits of up to $250 per year to cover a portion of their newspaper subscription fees.  For advertisers who place advertising on either a local newspaper or a local broadcast stations, a tax credit of up to $5000 would be available to certain small businesses who utilize local media to get their advertising messages to their communities.

In addition, the bill would provide local media a tax credit of up to $12,500 for hiring local “journalists” who spend at least 100 hours per year on reporting local news.  While the current House version of the bill provides this credit only to newspaper companies, the summary of the Senate version proposes that it also be extended to broadcasters.  This provision in particular has brought support from the RTDNA – the association that represents news professionals – who see it as an incentive to local media outlets to hire more news professionals. Continue Reading The Local Journalism Sustainability Act – Another Congressional Proposal to Help Local Media

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 wants to refresh the record on its collection of information about the race and gender of broadcast employees. This information was once collected from all broadcasters on an annual FCC Form 395 until use of that form was suspended by Court action in 2001 as it was seen as constitutionally suspect since its information was used to penalize broadcasters whose workforce profile did not match the racial and gender characteristics of their service area.  The proposal released last week asks interested parties to weigh in on reviving the collection of the data and whether the FCC should keep it confidential or otherwise anonymize it once collected.  The proposal also asked for comment on whether certain racial classifications need to be updated to align with current Equal Employment Opportunity Commission classifications, and for any other comments on the reviving the collection of this employee information.  Read the Further Notice of Proposed Rulemaking for more details and watch the Federal Register for comment and reply comment deadlines.  (Further Notice of Proposed Rulemaking)
  • The FCC’s Office of Economics and Analytics released two letters, in which it referred to the Enforcement Bureau for possible enforcement action, an apparent violation of the Prohibited Communications Rule disclosed by two applicants in Auction 109, the auction of AM and FM construction permits that began last week.  If you are ever involved in an FCC auction, take note of the Prohibited Communications Rule that prohibits communications among parties to an auction related to bidding amounts or bidding strategies once auction applications are filed. (Letter)
  • In an Order that was heavily redacted to protect confidential business information, the FCC affirmed its decision to fine 18 television stations $512,228 each for violations of the good faith negotiation requirements of the FCC’s retransmission consent rules. The FCC found that the stations shared a consultant who failed to negotiate in good faith with AT&T while negotiating for carriage on DirecTV.  Among other things, the consultant was found to have refused to negotiate carriage with AT&T for the 18 stations until AT&T agreed to a retransmission deal with another station group represented by the consultant.  Read the full decision for more details and read our blog post about the case when the fines were first proposed.  (Forfeiture Order)

To see what is coming for broadcasters in August, read our monthly feature on upcoming important regulatory dates and deadlines.

While the regulatory deadlines in August may be a bit lighter than other months, there are still several important regulatory dates to keep track of, some of which are detailed below.  All broadcasters should have August 11 circled and highlighted on their calendars as the date of the next National EAS Test.  And there are renewal and EEO deadlines, as well as several comment dates on FCC regulatory proposals.

After skipping last year’s annual test due to the pandemic, FEMA and the FCC chose August 11 to hold this year’s National EAS Test.  All broadcasters should work with their engineers and technical staff to make sure their EAS equipment is operating properly and is set to monitoring the stations that they are required to monitor by their state EAS plan.  By the day after the test, August 12, broadcasters must file Form Two in the EAS Test Reporting System (ETRS) portal with “day of test” information.  Then, by September 27, broadcasters must file in ETRS Form Three with detailed post-test data.  The information shared with FEMA and the FCC allows them to determine the successes and failures of the test. Continue Reading August Regulatory Dates for Broadcasters: National EAS Test, License Renewals, EEO Reporting, Political Broadcasting Rules Proposals, Media Ownership Comments, Annual Regulatory Fees, 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.

  • The four television network affiliates groups have asked the FCC to clarify its new rules for sponsorship identification of programming paid for or produced by foreign governments or their representatives. The new rules require broadcasters to inquire of any party purchasing program time as to whether they are representatives of foreign governments, and to confirm the response by searching a database maintained by the Department of Justice of companies that are representatives of a foreign government.  The FCC provided an exception to the requirements of the enhanced sponsorship identification and the investigation into the foreign connections of the programming buyer for “traditional short-form advertising.”  The affiliate groups want the FCC to clarify that the new rules do not apply to advertising regardless of its length.  (Affiliate Groups Petition).  These rules are also being reviewed under the Paperwork Reduction Act, and a Federal Register publication this week sets a September 20 deadline for interested parties to file comments on the information collection requirements imposed by these rules.  (Federal Register)
  • The FCC released a Public Notice this week with more information on how to apply for new reserved-band noncommercial educational FM stations during the November 2-9 filing window. Applicants may file or hold attributable interests in up to ten applications.  Other requirements set out by the Media Bureau include that applicants must certify that (1) they are an entity qualified to hold a noncommercial educational FM license (nonprofit educational institution, governmental entity, or nonprofit educational organization); (2) the entity has the financial ability to build the new station and run it for at least three months; and (3) the entity has reasonable assurance that its specified transmitter site will be available for the construction and operation of the proposed station.  The FCC also will impose a freeze on certain FM minor change applications from October 5 through November 9 to stabilize the FM database while potential applicants prepare their applications.  (Public Notice)
  • President Biden has nominated Jonathan Kanter to be chief of the Department of Justice’s antitrust division. The division examines transactions and mergers that could affect competition in the marketplace.  The antitrust division has in the past provided opinions as to what competitors are part of the broadcast marketplace (thus far not fully acknowledging that digital media is in the same competitive market as broadcasters leading to challenges to some broadcast mergers).  It also oversees the long-standing ASCAP and BMI consent decrees that have been reviewed by the last two administrations.  (White House Nomination)
  • In a slight change from what was previously published in the Federal Register, the FCC’s Public Safety and Homeland Security Bureau released a Public Notice indicating that the deadline for filing State EAS Plans and for complying with the content requirements for the plans is now July 5, 2022, not July 1, 2022. The content requirements can be found in the FCC’s rules, here.  (Public Notice)

 

A review of certain FCC’s EEO policies has been removed after five months from the list of items being considered by FCC Commissioners.  This may mean that the item has been adopted by a majority of the Commissioners and will be released within the next few days.  Watch the FCC website for more on the contents of the item.

 

Last week, it was announced that the FCC would be considering some changes to its political broadcasting rules at its monthly open meeting in August.  In some quarters (see, for example, this article), that raised concern that significant changes were coming in time for the 2022 Congressional elections.  But, when the draft of the proposed changes was released last week, it turned out that the changes were instead very minor – almost ministerial.  The proposed rule changes revise the Commission’s rules on two matters that are already part of the practices of stations and the lawyers who advise them on political broadcasting matters.  Two changes are being proposed – one dealing with the showing that needs to be made by a write-in candidate to show that the candidate is “legally qualified” and entitled to take advantage of the FCC’s political broadcasting rules, and the second being just a rule change to conform FCC rules to statutory requirements that broadcasters include, in their online public files, information about the sale of advertising time to non-candidate buyers who convey a message on a matter of national importance, i.e., a federal issue ad.

The first proposal would add use of social media and creation of a campaign website to the factors specified in the rules as factors to consider when determining if a write-in candidate has made a “substantial showing” of a bona fide campaign for office so that they can be considered a “legally qualified candidate.”   Legally qualified candidates, even write-ins who have made this substantial showing, are entitled to all the protections of the Commission’s political rules, including equal opportunities, lowest unit rates and, for candidates for federal office, reasonable access to buy advertising time on commercial broadcast stations.  Looking at the online activities of an alleged candidate has already been part of the evaluation of whether write-in candidates have made a substantial showing of a “bona fide candidacy” – one demonstrating that the write-in candidate was conducting a serious campaign for office entitling them to the protections of the political rules.  Just saying that you are a write-in candidate is not enough to qualify for protections under the FCC rules – a write-in candidate must also show that he or she is really conducting a serious campaign for office (see our article here).  The facts set forth in that showing determine how serious the campaign is.  Since the FCC’s list of activities in its rules is illustrative and not exhaustive, and since online activities are indicative of how serious a candidate is, stations were already reviewing online activities when assessing substantial showings.  The FCC’s proposal would just make sure that what is already being done is spelled out in the rules. Continue Reading FCC To Clarify Political Advertising Rules – No Significant Changes Proposed

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’s Video Division of its Media Bureau has begun to release decisions on TV license renewal applications filed in the renewal windows beginning last June that have been held up for public file deficiencies. For the first time since the pandemic started, proposed fines were announced for untimely uploads of documents to an online public file.  The Video Division proposed fines of $9000 to two noncommercial Virginia TV stations – one of which uploaded four quarterly issues/programs lists over a year late and three others less than a month late; the other station was more than a year late with five lists and had another that was uploaded less than a month late.  (Notice of Apparent Liability).  Two other Virginia noncommercial TV stations were admonished by the Video Division for lesser delays in uploading quarterly issues/programs lists, problems apparently caught by FCC staff in reviewing the public files after the filing of the stations’ license renewal applications.  (Admonishment Letter Example)  These actions highlight the importance that the Commission places on timely uploads of documents to broadcasters’ online public files generally, and on the quarterly issues/programs lists in particular (see our article on the importance of such lists, here).
  • New FCC application fees became effective on July 15, and the FCC released a Guide to the new fees for entities regulated by the Media Bureau. Many common applications, like applications for license renewal, assignment, transfer of control, and special temporary authority, now cost more to file.  Biennial ownership reports, which will be filed later this year, will cost $15 more to file than they did during the 2019 filing cycle.  FM translator minor changes will, for the first time, carry fees.  The fee adjustments are meant to reflect the legal, engineering, and supervisory resources used in reviewing an application.  (Fee Filing Guide)
  • The FCC released a proposal to update certain rules dealing with political advertising to make them consistent with common practice in the regulation of such advertising. The first proposal would formally add use of social media and creation of a campaign website to the factors to consider when determining if a write-in candidate has made a “substantial showing” of a bona fide campaign for office so that they can be considered a “legally qualified candidate.”   Legally qualified candidates, even write-ins who have made this substantial showing, are entitled to all the protections of the Commission’s political rules, including equal opportunities, lowest unit rates and, for candidates for federal office, reasonable access to buy advertising time on commercial broadcast stations.  Looking at the online activities of an alleged candidate has already been part of the evaluation of whether write-in candidates have made a substantial showing of a “bona fide candidacy” – one demonstrating that the write-in candidate was conducting a serious campaign for office entitling them to the protections of the political rules.  The second proposal would update the political file recordkeeping rules to require that stations upload to their political files any request for advertising time that “communicates a message relating to any political matter of national importance” (i.e., federal issue ads) – a requirement that was imposed by statute almost two decades ago but never reflected in the FCC rules. The Notice of Proposed Rulemaking containing these updates is to be considered at the Commission’s regular monthly open meeting to be held on August 5.  If adopted, comments on the proposals will be due after Federal Register publication.  (Draft NPRM)
  • At the request of several industry parties, the Media Bureau gave interested parties more time to file comments and reply comments to refresh the record in the 2018 Quadrennial Review of media ownership, which includes proposals for relaxation of the local radio ownership rules.  Comments will now be due September 2, 2021 with reply comments due October 1, 2021. We wrote in more depth about this quadrennial review, here.  (Public Notice)
  • The FCC adopted a Notice of Proposed Rulemaking that proposes updates and changes to, or elimination of, several broadcast radio technical rules. Comments will be due 30 days after publication in the Federal Register, with reply comments due 45 days after Federal Register publication.  (NPRM)
  • The FCC released its accounting of broadcast station totals as of June 30, showing a slight decrease in full-power radio stations and a slight increase in translators and boosters over the totals released in early April. (Station Totals)