The FCC on Tuesday released its Report and Order on regulatory fees.  The Order says that the fees will be due by September 24.  The FCC should soon issue additional guidance about the exact filing dates and procedures.

In the Order, the FCC did reduce the fees for radio somewhat from those proposed in their Notice of Proposed Rulemaking in May.  However, it was not the decrease sought by many broadcast groups.  The radio fees, even though reduced, still result in an increase from last year’s fees.  The FCC attributed that increase both to a somewhat smaller number of stations and an increase in the operating costs of the FCC that had to be shared among all regulated entities. Continue Reading 2019 FCC Regulatory Fees to be Due By September 24 – Commission Issues Fee Order

In many states, we are in election season for local offices, which has resulted in a question that has come up repeatedly in the last few weeks about local candidates – usually running for state or municipal offices – who appear in advertisements for local businesses that they own or manage. Often times, these individuals will appear in their business’ ads outside of election season, and don’t want to stop appearing in those ads during their bid for elective office. We wrote about this question in an article published two years ago and again a bit more than a year ago.  But, as the question continues to come up, it is worth revisiting the subject. What is a station to do when a local advertiser decides to run for office?

While we have many times written about what happens when a broadcast station’s on-air employee runs for office (see, for instance, our articles here, here and here), we have addressed the question less often about the advertiser who is also a candidate. If a candidate’s recognizable voice or, for TV, image appears on a broadcast station in any “positive” way, whether it is political in nature or not, it is considered a “use” by the political candidate.  What is a “positive” use?  Basically, it is any appearance that is not negative to the candidate (i.e., it is not in an ad attacking that candidate).  To be a positive “use” by the advertising candidate, the appearance must also be outside of an exempt program (in other words, outside of a news or news interview program which, as we wrote here, is a very broad category of programming exempt from the equal time rules).. “Uses” can arise well outside the political sphere, so Arnold Schwarzenegger movies were pulled from TV when he was running for office, as were any re-runs of The Apprentice and The Celebrity Apprentice featuring Donald Trump.  An appearance by a candidate in a commercial for his or her local business is similarly a positive “use” which needs to be included in a station’s political file (providing all the information about the sponsor, schedule and price of the ad, as you would for any pure political buy). But that does not necessarily mean that a station needs to pull the ad from the air. Continue Reading When a Broadcast Advertiser Becomes A Political Candidate, What is a Station to Do?

With the summer winding down, you can expect that come September, like everywhere else, Washington will leap back to life and the government will try to accomplish what they can before the end of the year. That will no doubt mean some regulatory actions (and potentially court actions and legislative actions) affecting broadcasters this Fall, though what they are remains to be seen. In the meantime, there is plenty to keep broadcasters busy. While September is one of those months in which there are few of the normally recurring filing deadlines (no EEO reports, renewal filings or quarterly reports need to be submitted during the month), there is one big deadline that no commercial broadcaster should forget – the filing of annual regulatory fees.

We understand that there is an order circulating at the FCC right now to set the final amount of the regulatory fees for the year. As these fees must be paid before October 1 when the government’s new fiscal year begins, we can expect that order shortly, with fees due at some point in September. As the Commission’s Notice of Proposed Rulemaking proposed significant unexplained increases in the fees paid by radio, and a change to the methodology used to compete TV fees, moving from a DMA-based fee to one calculated based on an individual station’s predicted coverage (which had the effect of raising some fees, especially for high-powered VHF stations, while lowering others), a number of broadcasters and the NAB complained about those proposals. Watch for the FCC’s decision in the coming days to see how it addresses these complaints about the proposed fees, and to see when the fees will be due. Continue Reading September Regulatory Dates for Broadcasters – Reg Fees, Children’s TV Rule Changes, EEO Comments, EAS Reports, License Renewal Obligations and More

Last week, we wrote about the FCC’s announcements of the opening of the filing period for LPTV, TV translator and FM stations that are seeking reimbursement for the costs they incurred because of the repacking of TV channels into a smaller part of the spectrum following the incentive auction. The FCC forms that need to be filed to request reimbursement must be submitted by October 15. As we wrote, the process is somewhat complicated, as those seeking reimbursement need to document their costs and to prove their eligibility to share in the reimbursement funds. This week, the FCC announced that next week, on Wednesday, August 28 at 11:00 AM Eastern Time, the FCC will hold a webinar to detail the process for seeking reimbursement (see the notice of that webinar here and log-in details here). For those seeking reimbursement, it may be worth your time to listen in live or catch the archived webinar when a link to the webcast is posted here at some point after the completion of the session.

Notice was published in the Federal Register today of the FCC’s changes in the children’s television rules – setting the effective date for most of those new rules as September 16. The elimination of the obligation to air three hours of children’s educational and informational programming for each digital multicast channel will expire on that date.  The ability to count children’s educational programming broadcast as early as 6 AM toward the broadcaster’s obligations to run 3 hours per week of such programming on its primary channel will also take effect that day, as will the ability to meet that 3-hour requirement with up to one hour of programming broadcast on a multicast channel.  A number of other changes, particularly in the ability of a broadcaster to compute its compliance based on a quarterly obligation rather than a weekly one and liberalizing the preemption rules, are also to take effect on September 16.    See our summary here of the changes in the rules.

Rules not yet taking effect are those rules that impose new or different paperwork requirements.  So the change in reporting obligations to an annual FCC filing instead of a quarterly one remains pending until approved by the Office of Management and Budget pursuant to the Paperwork Reduction Act.  The rule amending the obligation to inform program guides about certain aspects of children’s programming (including the ages to which the programs are targeted) is also still being reviewed.  The FCC is expected to issue additional guidance about how (or whether) to complete the next quarterly FCC Form 398 children’s television programming report, which is currently due October 10.  The FCC is moving to an annual report, but because of these Paperwork Reduction Act requirements, the new form has not been approved yet.

As we noted in our post yesterday, the OMB recently approved the FCC’s forms to allow for reimbursement of the expenses of LPTV and TV translator stations and FM stations (full power and low power) and FM translators caused by the repacking of the TV spectrum following the incentive auction.  This approval sets the stage for the reimbursement process to begin.  The FCC yesterday released a public notice giving details for the filing of those reimbursement requests – and setting a deadline of October 15 for the initial filings.  Only stations operating as of April 13, 2017 are eligible for such reimbursement – and broadcasters seeking reimbursement will need to file sufficient information to detail the expenses for which they seek reimbursement.  Other eligibility restrictions apply, so review the instructions and filing guidelines carefully to make sure that you qualify, and that you submit the information necessary to justify your reimbursement request.

Also, the FCC issued a second related Public Notice providing instructions for use of the FCC’s CORES database which will be used to verify the payment information for each licensee entitled to reimbursement.  Stations need to provide the FCC with their financial account information in order to be reimbursed.  Again, it’s important that you follow the instructions carefully to ensure that the reimbursement is made on a timely basis.

Months ago, the FCC approved reimbursing TV translators, LPTV stations, FM stations, and FM translators that incurred costs as a result of the repacking of TV stations into less spectrum following the TV incentive auction (see our post here).  Congress last year allocated the FCC money so that LPTV stations and TV translators forced to change channels and FM facilities forced to relocate temporarily or permanently because of work on the towers on which they were located could be reimbursed for their costs caused by this repacking.  The FCC has even published a list of expenses that will be routinely reimbursed when incurred by these stations due to the repacking.  But the reimbursement process has not yet begun, as the FCC paperwork to allow for the reimbursement process had not been approved by the Office of Management and Budget as being compliant with the Paperwork Reduction Act – until yesterday.

In yesterday’s Federal Register, the OMB’s approval of the FCC Forms was published, meaning that the FCC can now start the reimbursement process.  Look for an FCC announcement shortly announcing when affected stations can start submitting their reimbursement requests.  Get your bookkeepers and accountants busy collecting details of the expenses that can be reimbursed, as the time for filing for that reimbursement should be upon us in the very near future.

The FCC this week issued a Notice of Apparent Liability proposing a $233,000 fine to Cumulus Media for violations of the sponsorship identification rules.  The fine illustrates not only how seriously the FCC takes its sponsorship identification rules (particularly in the context of political and issue advertising) but also the how aggressively the FCC can act for even the slightest violation of a consent decree involving a prior violation of its rules.  If the FCC catches you once in a rule violation, don’t get caught again for the same violation – and if you agree to the terms of a consent decree in connection with that first violation, by all means abide by the letter of that decree or the FCC will not hesitate to exercise its full enforcement power.

This case involves alleged violations by Cumulus Media.  Three years ago, Cumulus entered into a consent decree with the FCC agreeing to pay a $540,000 penalty after admitting that it did not include a full sponsorship identification disclosure on issue ads supporting government approval of an electrical utility project in New Hampshire (see our article here on that consent decree).  As part of the consent decree, the company agreed to a 3-year compliance program to educate its personnel about the FCC’s sponsorship identification rules, to appoint a compliance officer to oversee compliance with the rules and answer questions, and to report to the FCC within 15 days any violations of these FCC rules.  In the Notice released this week, the FCC alleged that Cumulus reported that it had in two instances aired ads without the proper identification – each set of ads running 13 times before the lack of a proper identification was caught and corrected.  In one instance, the violation was reported to the FCC within two weeks, but in the other case, it was not reported to the FCC for approximately 8 months.  Based on this instance of late reporting, and the 26 sponsorship identification violations, the FCC proposed the $233,000 fine.  How did they come up with that number? Continue Reading $233,000 Proposed Fine for Sponsorship Identification Rule Violations – Warning, if the FCC Fines You Once, Don’t Do the Same Thing Again

Last week, the FCC started a new proceeding through the adoption of a Notice of Proposed Rulemaking to review several restrictions that currently apply to Low Power FM stations.  While doing so, it will also review the current rules, dating from the analog television days, restricting certain FM operations in the non-commercial reserved band of the FM dial where those operations are near Channel 6 TV stations.  Comments will be due on this proposal 30 days after it is published in the Federal Register, with Replies due 15 days later.

The LPFM proposals look at a number of issues.  The Commission asks if LPFM stations should be allowed to operate with directional antennas, which are currently routinely barred given that these antennas may be more difficult to operate and maintain.  When the rules were originally adopted, there was a fear that LPFM licensees, who may not have a technical background or substantial resources for engineering support, could not maintain those antennas so as to protect other FM stations operating on the same and adjacent channels.  Similar concerns currently limit LPFM stations from using on-channel boosters to fill in holes in their service area.  The FCC asks if these prohibitions can be lifted as the LPFM industry has become more mature, allowing LPFMs to use both directional antennas and on-channel boosters without risking increased interference to other stations. Continue Reading FCC Starts Rulemaking to Look at LPFM Issues and the Protection of Channel 6 TVs by Noncommercial Radio Stations and Whether “Franken FMs” Can Continue

The FCC’s new rules setting out a procedure to resolve complaints of interference from FM translators to full power stations will become effective on August 13. Initially, as we noted in our list of August regulatory dates for broadcasters, only the new policy allowing translators that cause interference to move to any available channel in their market was to become effective on that date. The remaining rule changes were to be assessed by the Office of Management and Budget for compliance with the Paperwork Reduction Act. It turns out that the OMB review has been completed and, according to a new Federal Register Notice, all of the new rules will become effective on August 13.

While these rules are set to become effective in less than two weeks, five Petitions for Reconsideration of those rules were filed last month, and comment dates have now been set on those petitions. Comments are due on August 15, with replies due by August 26. The reconsideration petitions raise many issues – from complaints that the FCC afforded too much protection to full power stations to complaints that the standards that were adopted make it too difficult for existing stations to raise a challenge. For instance, two petitions challenge the choice of the 45 dBu contour as the cut-off for interference complaints (suggesting that less protection should be given to full power stations, and one arguing that the Commission should have used the 54 dBu contour as the line at which complaints should be cut-off despite the showings of many parties that actual listening to FM stations goes far beyond that contour). On the other side, two petitions (see one here) argue that the FCC’s requirements for complaints to meet a desired-to-undesired signal ratio before they are considered to be legitimate is not an appropriate threshold consideration, and another contends that the Commission appears to have adopted a rule that only one complaint from a building would be counted in assessing interference complaints – effectively counting multiple complaints from different residents in big apartment buildings or dormitories as a single complaint. Another petition argues that allowing translator operators to shift to new channels to resolve interference complaints improperly infringes on future opportunities for new LPFM stations. In fact, LPFM advocates have requested a stay of the new rules, and the NAB filed an opposition to that request. Even though these petitions for reconsideration are pending, unless the FCC grants the stay request, the rules will go into effect on August 13.

Some important issues are raised in these petitions. Broadcasters interested in these issues should consider filing their comments with the FCC by the August 15 deadline, or respond to any comments filed by the reply deadline of August 26.