Here we are, more than a week into the New Year, and already we’ve written about a host of regulatory issues that will be facing broadcasters in the first month of the year (see for instance our articles here and here).  But what about the rest of the year?  As we do most years, we’ve put together a Broadcaster’s Regulatory Calendar for 2020, here.  While this calendar can’t be seen as an exhaustive list of every regulatory date that your station will face, it highlights many of the most important dates for broadcasters in the coming year – including dates for license renewal actions, EEO Public Inspection File Report preparation, Quarterly Issues Programs lists, children’s television obligations and much more.  It also provides the dates that the lowest unit charge windows open for most of the Presidential primaries and caucuses, as well as for the November general election.  Certainly, there will be plenty more dates to be aware of.  Follow our blog, read other newsletters and trade publications and consult your own attorney to stay on top of your regulatory obligations.  But, hopefully, our 2020 Broadcasters Regulatory Calendar will give you a good start on spotting some of the important dates that may affect your operations.

Every noncommercial station, including LPFMs, that accepts underwriting announcements should be concerned about making sure that the announcements meet FCC guidelines and remain truly noncommercial.  An FCC Order was released yesterday announcing a consent decree entered into between the University of Arkansas and the FCC’s Enforcement Bureau.  The Order illustrates what can happen if noncommercial stations are not careful – as the University agreed to pay what is essentially a fine of $76,000 and to adopt a compliance plan that forces the University to carefully monitor underwriting announcements for the next five years, as well as engaging in programs to educate and monitor its staff to insure future compliance.  The FCC Order announcing the consent decree should be carefully reviewed by all noncommercial broadcasters to see what can happen if they do not comply with the rules.

The FCC’s Order itself does not go into detail about the alleged instances of where the station exceeded what is permitted by the rules.  But the Order does enumerate the policies that restrict underwriting in the following statement:

such announcements may not contain comparative or qualitative descriptions; price information (sales or discounts); calls to action; inducements to buy, sell, rent, or lease; or excessively detailed “menu listings” of services offered by the entity. Although the Commission has not adopted any quantitative guidelines on underwriting announcements, it has found that the longer the announcement, the more likely it is to contain material that is inconsistent with their “identification only” purpose.

While most noncommercial broadcasters are familiar with the obligations to avoid calls to action, qualitative claims, and price and discount information, some of the more subjective criteria listed in the Order may not be as familiar.  The FCC notes that underwriting announcements, while they can generally mention the services provided by an underwriter, they should not have an excessively detailed list of those services.  In addition, the announcements should not be of excessive length, as they are likely to sound more commercial – going beyond a mere identification of the sponsor.  See our article here for another case where this issue arose. Continue Reading University Pays $76,000 Fine to Settle Complaint About Underwriting Announcements on Noncommercial Station that Went Too Far

The FCC’s proposal to allow AM stations to voluntarily transition into all-digital operations (see our post here for a summary of the FCC’s proposal) was published in the Federal Register today.  That sets the comment deadlines in this proceeding – with initial comments due March 9, 2020 and reply comments due by April 6.  AM stations interested in making this voluntary conversion should file their supporting comments in this filing window.

As we wrote last week, this proposal could, in some instances, tie in nicely with the FCC’s proposal to change their rules that currently prohibit AM stations serving the same geographic area from duplicating more than 25% of their programming.  Were that rule to be changed, an AM station transitioning to digital could theoretically acquire (subject to multiple ownership rule limitations) another local AM to continue to broadcast an analog signal – giving an operator a beachhead in the new digital technology while still serving audiences who do not have digital AM receivers.  We will see how the comments play out in the coming months – but if you are interested in filing, pay attention to these comment dates that have now been set.

While many of us were trying to enjoy the holidays, the world of regulation kept right on moving, seemingly never taking time off.  So we thought that we ought to highlight some of the actions taken by the FCC in the last couple weeks and to also remind you of some of the upcoming January regulatory deadlines.

Before Christmas, we highlighted some of the regulatory dates for January – including the Quarterly Issues Programs Lists due to be placed in the online public file of all full-power stations by January 10.  Also on the list of dates in our post on January deadlines are the minimum SoundExchange fees due in January for most radio stations and other webcasters streaming programming on the Internet.  January also brings the deadline for Biennial Ownership Reports (postponed from their normal November 1 filing deadline).

In that summary of January regulatory dates, we had mentioned that the initial filing of the new Annual Children’s Television Programming Report would be due this month.  But, over the holiday week, the FCC extended that filing deadline for that report until March 30 to give broadcasters time to familiarize themselves with the new forms.  The FCC will be doing a webinar on the new form on January 23.  In addition, the FCC announced that many of the other changes in the children’s television rules that were awaiting review under the Paperwork Reduction Act had been approved and are now effective.  See our article here for more details. Continue Reading While You Were on Vacation….Looking at FCC Regulatory Actions over the Holidays and Deadlines for January

The FCC recently proposed modifying its rules prohibiting a radio station in one service (either AM or FM) from duplicating more than 25% of the weekly programming of another station in the same service if there is more than 50% overlap of the principal community contour of either of the stations.  The FCC this week issued a Public Notice announcing that the Notice of Proposed Rulemaking setting out the proposed changes has now been published in the Federal Register, setting January 22 as the comment deadline in this proceeding, with replies due by February 6.

In the NPRM, the FCC notes that the broadcast industry has significantly changed since the rule was adopted, with over 19,000 commercial operating radio stations today, up almost 8000 from 1992 when the rule was adopted. In addition, there are noncommercial stations, LPFMs, and all sorts of digital audio services that did not exist in 1992.  In light of these industry changes, the Commission asks many questions on which they seek input from the public.  Are there public interest reasons to allow for more duplication, e.g. allowing economically challenged stations to combine rather than ceasing operations?  Will market forces prevent too much consolidation of programming by stations in the same market?  Will allowing more duplication affect diversity of broadcast ownership?  Is 50% overlap the appropriate standard, or are there reasons to use a different measure of overlap?  Should AM duplication be treated differently from FM duplication?  While not explicitly stated by the FCC, a relaxation of this rule could be particularly important for AM radio, as it could allow for a transition to digital by one AM station in a market (another proposal recently advanced by the FCC), while allowing another AM station in the same market to continue to air the same programming in an analog format for listeners who have not yet acquired digital AM receivers.  If a change in this rule could assist your operations, note the January 22 comment deadline.

The FCC gave a present to TV broadcasters at the end of the week before Christmas by issuing a Public Notice announcing the effective date of the remaining changes to the children’s television rules, and postponing the filing date for the initial Children’s Television Programming Report, which was to be filed by January 30, to March 30.  This will give broadcasters more time to become familiar with the new report.  The annual Children’s Programming Report takes the place of the Quarterly Children’s Television Programming Reports, and are designed to report on the educational and informational “core programming” broadcast by a television station to meet its obligations for such programming.  Also announced in the Public Notice is an FCC webinar on January 23 from 1:30 to 2:30 pm ET to review the new form.

Other provisions of the rule that became effective following the pre-Christmas publication in the Federal Register of the approval of the rule changes by the Office of Management and Budget (following the required review under the Paperwork Reduction Act of the changes in the paperwork burdens imposed by the modifications of the rules) include the following:

  • The elimination of the requirement for noncommercial stations to display the E/I symbol during core programming (retaining the requirement for commercial TV stations);
  • The elimination of the requirement to provide publishers of program guides the age group for which each core program is intended;
  • The revision of the rescheduling and viewer notification rules for core programming that is preempted;
  • The adoption of revised reporting periods for children’s TV commercial limit certifications from quarterly to annually (the last quarterly certification being due in stations’ public files by January 10 for the last quarter of 2019 – with the first annual certification for 2020 being due by January 30, 2021).
  • The elimination of the requirement to publicize the existence and location of a station’s Children’s Television Programming Report.

These changes follow the FCC order this summer adopting the new rules, and prior public notice on the effective date of the Annual Children’s Programming Report.  See our posts here and here.  Be sure to note these changes in your operations.

Late Friday, the FCC issued an Order reinstating the FCC’s 2016 ownership rules, recognizing that the changes made in those rules in 2017 (see our post here) were no longer effective because the Third Circuit Court of Appeals had thrown out the 2017 decision. See our post here on the Third Circuit decision and our article here on the court’s denial of rehearing en banc.  While the FCC may still try to appeal the Third Circuit decision to the Supreme Court, the Third Circuit’s mandate has issued, meaning that its order is effective even if a Supreme Court appeal is filed.

Among the rule changes that have been rendered a nullity are the abolition of the broadcast-newspaper cross-ownership rule (once again reinforcing what we have written several times, that the rule may well outlive the daily newspaper) and the radio-television cross-ownership rule, the local TV ownership rule that had allowed combinations of two TV stations in the same market even if there were not 8 independent voices in the market after the combination, and changes to the FCC’s processing policy with respect to radio embedded markets.  These changes required the FCC to also issue two Public Notices dealing with these changes. Continue Reading FCC Reinstates 2016 Ownership Order and Gives Instructions for Sale and Renewal Applications in Light of Third Circuit Decision Overturning Rule Changes

With many Americans using the holiday season to rest and recharge, broadcasters should do the same but not forget that January is a busy month for complying with several important regulatory deadlines for broadcast stations.  These include dates that regularly occur for broadcasters, as well as some unique to this month.  In fact, with the start of the lowest unit rate windows for primaries and caucuses in many states, January is a very busy regulatory month.  So don’t head off to Grandma’s house without making sure that you have all of your regulatory obligations under control.

One date applicable to all full-power stations is the requirement that, by Friday, January 10, 2020, all commercial and noncommercial radio and television stations must upload to their online public file their quarterly issues/programs list for the period covering October 1 – December 31, 2019.  The issues/programs list demonstrates the station’s “most significant treatment of community issues” during the three-month period covered by each quarterly report.  We wrote about the importance of these reports many times (see, for instance, our posts here and here).  With all public files now online, FCC staff, viewers or listeners, or anyone with an internet connection can easily look at your public file, see when you uploaded your Quarterly Report, and review the contents of it.  In the current renewal cycle, the FCC has issued two fines of $15,000 each to stations that did not bother with the preparation of these lists (see our posts here and here on those fines).  In past years, the FCC has shown a willingness to fine stations or hold up their license renewals or both (see here and here) over public file issues where there was some but not complete compliance with the obligations to retain these issues/programs lists for the entire renewal term.  For a short video on the basics of the quarterly issues/programs list and the online public inspection file, see here. Continue Reading January Regulatory Dates for Broadcasters – Quarterly Issues/Programs Lists, Children’s Television Annual Report, EEO, License Renewal, Political Rate Windows, FM Auction Dates and More

While political broadcasting never seems to be totally off the airwaves, the 2020 election season is about to click into high gear, with the window for lowest unit rates to begin on December 20 for advertising sales in connection with the January Iowa caucuses. That means that when broadcasters sell time to candidates for ads to run in Iowa, they must sell them at the lowest rate that they charge commercial advertisers for the same class of advertising time running during the same time period. For more on issues in computing lowest unit rates, see our articles here, here and here (this last article dealing with the issues of package plans and how to determine the rates applicable to spots in such plans), and our Political Broadcasting Guide, here.

The beginning of the LUR (or LUC for “lowest unit charge”) window in Iowa is but the first of a rapid many political windows that will be opening across the country as the presidential primaries move across the country. These windows open 45 days before the primary election (or caucus, in states where there is a caucus system that is open to the public for the selection of candidates) and 60 days before general elections. For the Presidential election, New Hampshire of course comes next, with their LUR window opening on December 28.   January will bring the opening of a slew of LUR windows for states with primaries and caucuses in late February and early March, including all of the Super Tuesday states. But it is important to remember that these are not the only LUR windows that broadcasters will have to observe in 2020. Continue Reading Election Season in High Gear for Broadcasters – Lowest Unit Rate Windows to Begin in Iowa This Week, New Hampshire Next and Other States Soon to Follow

Last week, the FCC adopted an order making numerous changes to its processes for selecting winning applicants among mutually-exclusive applicants for new noncommercial broadcast stations, including noncommercial, reserved band full power FM stations and LPFMs. Applicants are “mutually exclusive” when their technical proposals are in conflict – meaning that if one is granted it would create interference to the other so that the other cannot also be allowed to operate. The changes adopted by the FCC, which we wrote about when first proposed here, affect not only the process of applying for new noncommercial stations and the system for resolving conflicts, but also address the holding period for new stations once construction permits are granted, and the length of permits for LPFM stations.

In cases involving mutually exclusive applications for new noncommercial stations, the FCC uses a “points system” to determine which of the mutually-exclusive applicants should have its application granted. The point system relies on paper hearings to determine which applicant has the most points, awarding preferences on factors such as whether they have fewer interests in other broadcast facilities, whether they are local organizations, and whether they are part of state-wide networks. Continue Reading FCC Adopts Changes to Rules for New Noncommercial FM and LPFM Stations – Changing Application Processing Procedures and Holding Periods