We recently wrote about some of the challenges for e-cig advertising based on Federal and state actions to restrict the sale of flavored vaping products. Even though advertising for e-cigarettes is not currently illegal at the Federal level (see our articles here and here that discuss the disclaimer that must accompany those ads and the requirement that ads should not make health claims or target children), there are moves to change that position (including the announcement we wrote about last month of an anticipated ban on flavored vaping products). While changes to those rules have not yet been implemented , a recent set of letters from a Congressional committee to the manufacturers of e-cigs suggests that they stop marketing vaping products (or at least report to the committee whether or not they have stopped such advertising) while various government reviews of health issues associated with vaping and the marketing of vaping products are taking place. Among these reviews is a just-announced proceeding by the Federal Trade Commission to look at the marketing practices of e-cig companies. The detailed questions sent to the e-cig companies indicate that the FTC intends a very thorough review of all aspects of these marketing programs.

These Federal actions have been combined with announcements in many states looking toward significant regulation of the vaping industry. As we wrote last month, Michigan’s governor has announced a ban on the sale of flavored e-cig products. The text of the order implementing that announcement has now been released. Other states are following suit, with a ban in Massachusetts reportedly in place, and actions in Washington State and Ohio being considered. Many municipalities are also looking at similar restrictions. Continue Reading More Challenges for E-Cigs Ads – Congress and FTC Looking at Marketing Practices While States Impose Bans

October is one of the busiest months on the broadcaster’s regulatory calendar. On October 1, EEO Public Inspection file reports are due in the online public file of stations that are part of an Employment Unit with 5 or more full-time employees in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands. An employment unit is one or more commonly controlled stations in the same geographic area that share at least one employee.

October 1 is also the deadline for license renewal filings by radio stations (including FM translators and LPFM stations) in Florida, Puerto Rico and the Virgin Islands. On the 1st and 16th of the month, stations in those states, and in North and South Carolina, need to run post-filing announcements on the air informing listeners about the filing of their license renewal applications. Pre-filing announcements about the upcoming filing of license renewal applications by radio stations in Alabama and Georgia also are to run on the 1st and 16th. See our post here on the FCC’s reminder about the pre- and post-filing announcements. Continue Reading October Regulatory Dates for Broadcasters – EEO, License Renewal, Quarterly Issues Programs Lists, the Last Children’s Television Quarterly Report, Repacking Deadlines and More

At its open meeting this week, the FCC adopted a Further Notice of Proposed Rulemaking looking to change the requirement for local public notice of certain broadcast applications.  Such notices are required currently for applications, including license renewals and station sales.  The current rules contain different requirements for different types of applications that require public notice – both in the substance of what must be disclosed in the notice and in the required timing of the notice.  The FCC’s proposal looks to standardize the timing of the required public notice, move it online and refocus its substance so that it will routinely say what type of application was filed and provide a link to the online application so that members of the public can review it..

Some of the specific changes proposed by the FCC, and the questions that they ask about those changes include:

  • Eliminate the requirement for the publication of newspaper public notice, shifting instead to a requirement that notice be published on the station’s website or, if the station has no website, on some other publicly accessible site. The FCC proposes that the notice be maintained on the website for at least 30 days and asks what other sites should be allowed to substitute for the station’s website if the station does not have a website.
  • The Commission proposes that the online notice be shortened, essentially providing the name of the applicant(s), the type of application filed, and providing a link to the application in the station’s FCC-hosted online public file or, where the station is not required to have an online public file, to the application itself in other FCC databases.
  • The FNPRM suggests a change in the obligations for over-the-air notice to require that the notice be broadcast once a week for 4 consecutive weeks and be re-formatted to be much more like the online notice, focusing on directing the public to the website notice where there is a link to the application itself. The FCC proposes that the notices be run anytime between 7 AM and 11 PM local time.

Other proposals are made on specific types of applications, and a host of specific questions about each of these proposals are advanced by the FCC.  Interested parties can file comments for 30 days after public notice of the FNPRM is published in the Federal Register; and reply comments can be filed in a 15 day period after the initial comments.

Yesterday, a panel of judges from the US Court of Appeals for the Third Circuit decided by a 2 to 1 vote to overturn the FCC’s 2017 decision that made significant changes to its ownership rules (see the decision here).  The Court sent the case back to the FCC for further consideration.  The 2017 decision (see our article here) was the one which ended the ban on the cross ownership of broadcast stations and daily newspapers in the same market and the limits on radio-television cross-ownership.  The 2017 decision also allowed television broadcasters to own two TV stations in markets with fewer than 8 independent owners and made other changes to the radio and TV ownership rules.  Yesterday’s decision also put on hold the FCC’s incubator program meant to assist new owners to acquire radio stations (see our summary of the incubator program here).  All of this was done without any analysis whatsoever as to whether marketplace changes justified the changes to the ownership rules or of the impact that the undoing these rule changes would have on broadcasters and other media companies – including on radio companies hoping for changes in the radio ownership rules in current proceeding to review those rules (see our articles here and here).

What led the Court to overturn the decision if it was not the Court’s disagreement with the FCC’s determination that change in the ownership rules was needed?  This Court, in fact these same three judges, has overturned the FCC three times in the last 15 years, stymieing ownership changes because the Court concluded that the FCC had not sufficiently taken into account the impact that rule changes would have on diversity in the ranks of broadcast owners.  Here, again, the Court determined that the FCC did not have sufficient information on the impact of the rule changes on ownership diversity to conclude that the rule changes were in the public interest – and thus sent the case back to the FCC to obtain that information before making any ownership rule changes.  What led the Court to that conclusion, and what can be done about this decision? Continue Reading Court of Appeals Rejects FCC Ownership Decision – Putting All Ownership Reform on Hold

Annual Regulatory fees were to be paid by today (see our articles here and here).  But yesterday, the FCC issued a Public Notice giving all those procrastinators in the communications industry a few extra days to pay their fees.  Those fees are now due on Friday, September 27.  It’s your last chance – don’t be late to pay those fees.

On Friday, the FCC’s Audio Division released its first decision in the current renewal cycle addressing the issue of incomplete public inspection files and missing Quarterly Issues Programs List, proposing to fine an AM station in Virginia $15,000 for apparently not having any Issues Programs Lists in its online public inspection file for the entire renewal term.  The decision, found here, should serve as a warning to broadcasters to make sure that their online files are complete and up to date.

The facts of this case, summarized below, seem particularly egregious as the station had the same issue of missing issues programs lists when its last renewal was filed 8 years ago.  Nevertheless, we can expect that this won’t be the last fine we will see for stations that have incomplete public files.  The FCC has been sending out warnings about incomplete online files for the last year, and we’ve been warning (see, for instance, here and here) that, with all public inspection files now being available online, the FCC will likely be issuing fines during this renewal cycle if documents are missing from the file.  The Quarterly Issues Programs lists are seen by the FCC as being particularly important as they are the only official documents demonstrating the public interest programming that was actually broadcast by a station (see our article here).  Continue Reading $15,000 Fine and Short-Term License Renewal Proposed for Radio Station Missing Issues Programs Lists in Its Online Public Inspection File

While next year’s federal elections are already receiving most of the publicity, I’ve been getting a surprising number of calls about elections this November. While most broadcast stations don’t think about the FCC’s political broadcasting rules in odd numbered years, they should – particularly in connection with state and local political offices.  There are elections for governor in November in Kentucky, Louisiana and Mississippi, and all sorts of state and local elections in different parts of the country. As we have written before, most of the political rules apply to these state and local electoral races so broadcasters need to be paying attention.

Whether the race is for governor or much more locally focused, like elections for state legislatures, school boards or town councils, stations need to be prepared. Candidates for state and local elections are entitled to virtually all of the political broadcasting rights of Federal candidates – with one exception, the right of reasonable access which is reserved solely for Federal candidates. That means that only Federal candidates have the right to demand access to all classes and dayparts of advertising time that a broadcast station has to sell. As we wrote in our summary of reasonable access, here, that does not mean that Federal candidates can demand as much time as they want, only that stations must sell them a reasonable amount of advertising during the various classes of advertising time sold on the station. For state and local candidates, on the other hand, stations don’t need to sell the candidates any advertising time at all. But, if they do, the other political rules apply.  Continue Reading Reminder – FCC Political Rules Apply to Off-Year Elections for State and Local Offices

The FCC’s Notice of Proposed Rulemaking on LPFM and Channel 6 TV issues, which we wrote about here, was published in the Federal Register today. This sets the deadline for comments in this proceeding as October 21, 2019, with reply comments due by November 4. This proceeding looks at issues including whether to remove all restrictions on LPFM stations’ use of directional antennas as well as whether such stations can use on-channel boosters to fill in gaps in their service areas. The rulemaking will also seek to resolve whether limitations should be lifted on locating FM educational stations near to TV channel 6 stations when the FM station is operating in the reserved band at the low end of the FM dial. The protections of these channel 6 TV stations from reserved-band FMs are based on the performance of analog TV receivers – which have not been a real concern for almost a decade since the TV digital transition. The rulemaking also seeks comments on whether LPTV stations operating on channel 6 can continue, after their digital conversion, to broadcast an analog audio signal capable of being received on most FM receivers (allowing these stations, sometimes referred to as “Franken FMs,” to operate as FM stations). If you are interested in any of these topics, be prepared to submit your comments to the FCC by October 21.

The FCC yesterday announced that the due dates for Biennial Ownership Reports, which had been December 1 of this year, will now be January 31, 2020. The Order announcing that action is available here.  The FCC notice says that this additional time is needed to make updates to the ownership forms in the LMS database in which they are filed. The window for filing these reports will open on November 1.  The information to be reported in these biennial ownership reports needs to be accurate as of October 1, 2019, which is unchanged from the requirement before yesterday’s announcement.  The FCC is attempting to create a stable database of the ownership of stations, taken on October 1 every two years. While this is not the first time that the FCC has delayed the actual filing date for the Biennial Ownership Reports (see for instance the delay moving the last filing date from the originally scheduled 2017 into early 2018), they always want a snapshot of broadcast ownership as of October 1 of odd numbered years – even wanting reports from owners of stations on October 1 who sold those stations before the report filing deadline.

While the FCC has given broadcasters more time to file the Biennial Ownership Reports, broadcasters should not forget the three important dates next week that we have highlighted in recent days. These dates are:

  1. As we wrote yesterday, the FCC announced last week that FM radio (including translators and LPFM stations) will now use the LMS electronic filing systems for all applications for construction permits and license applications.  This is another step in the FCC’s transition from the CDBS database that broadcasters have used for years, to LMS.
  2. Broadcasters need to remember to file by Monday, September 23, their ETRS Form Three.  This form reports in detail on the station’s experiences in August’s Nationwide EAS Test.  For more details, see our article here.
  3. Finally, commercial broadcasters need to remember to submit their annual regulatory fees by next Tuesday, September 24.  For more information, see our articles here and here.

 

If you have a commercial or noncommercial FM radio station, an LPFM or an FM translator, and are looking to file an FCC application to seek a construction permit to authorize technical changes to your station, or to file a license to cover changes that were previously authorized (or which need no prior authorization), starting next Wednesday, September 25, you’ll need to file in the FCC’s LMS database, not in CDBS which has traditionally been used for broadcast applications. The FCC made this announcement in a Public Notice released last week. The Commission is gradually transitioning all of its broadcast applications to this database (TV broadcasters have already transitioned, except for assignment and transfer of control applications, and radio stations have already been required to use it for ownership reports and license renewal applications).

Starting on September 25, the following forms will be filed in LMS – and CDBS will no longer be used:

Application Type CDBS Form to be Decommissioned Sept. 25, 2019 LMS Schedule to be Used Commencing Sept. 25, 2019
Application for Construction Permit for Commercial FM Broadcast Station Form 301 Schedule 301
Application for FM Broadcast Station License Form 302 Schedule 302
Application for Construction Permit for a Low Power FM Broadcast Station Form 318 Schedule 318
Application for a Low Power FM Broadcast Station License Form 319 Schedule 319
Application for Construction Permit for Reserved Channel Noncommercial Educational FM Broadcast Station Form 340 Schedule 340
Application for Authority to Construct or Make Changes in a FM Translator or FM Booster Station Form 349 Schedule 349
Application for an FM Translator or FM Booster Station License Form 350 Schedule 350

Note that AM construction permit and license applications, many of which are still filed on paper because of the complexity of the engineering exhibits, are not yet transitioning to the new system. Assignments and transfers also are not covered by this notice, but you can expect those applications to make the change in the not-too-distant future. So remember to use the new system for any CP or license applications to be filed starting on September 25, 2019.