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On February 22, the FCC released an Order reinstating the requirement for radio and television broadcasters, commercial and noncommercial, to annually file an FCC Form 395-B.  All station employment groups with 5 or more full-time employees would need to classify all station employees, both full-time and part-time, by race or ethnicity and gender, as well as by the type of job they perform at the station (see the most current version of the form here).  The form, which will be amended to allow employees to be classified as “non-binary” as well as male and female, will likely need approval of the Office of Management and Budget under the Paperwork Reduction Act before broadcasters will be required to comply.  The Form would be filed by September 30 of each year after the effective date, reporting on the employment profile of the station in a pay period in July, August, or September (the same pay period to be used each year).

The Form is not new, though its use has been on hold for over 20 years.  A version of this form had been used by the FCC in the 1980s and 1990s, but its use was put on hold in 1998 as the result of court decisions finding unconstitutional the FCC’s use of this information to impose additional regulatory burdens on broadcasters whose employment profile did not reflect the demographics of its service area.  The court’s concern was that these additional regulatory actions forced broadcasters to make hiring decisions based on race or gender, a form of prohibited discrimination. Continue Reading Reinstating FCC Form 395-B Reporting on the Race and Gender of Broadcast Employees – What the Action Means for Broadcasters

November is one of those few months with no routine FCC filing obligations (no renewals, reports, fees or other regularly scheduled deadlines.  While that might seem to suggest that you can take time that you normally devote to regulatory actions to begin your holiday preparations even in this most unusual year, there are still many issues to consider, and you can also use this month to plan for complying with deadlines that fall in December.

While there are no significant comment dates on broadcast matters yet set in November, look for dates to be set in the FCC’s proceeding to determine whether there should be a limit on the number of applications that one party can file in the upcoming window for the filing of applications for new noncommercial, reserved band FM stations.  See our article here on the FCC’s request for comments in this proceeding.
Continue Reading November Regulatory Dates for Broadcasters: Rulemaking Comments, Hearings on Diversity and a New Commissioner, an FCC Open Meeting and More

The FCC announced on Friday that it will be hosting a symposium on the state of the broadcast industry on November 21.  On that day, there will be a panel in the morning on the state of the radio industry and one in the afternoon on television.  The Public Notice released Friday lists a diverse group of panelists, but says little beyond the fact that the forum will be occurring.  What could be behind the Commission’s decision to host this session?

The FCC is working on its Quadrennial Review of its ownership rules (see our articles here and here).  There were many who expected that review to be completed either late this year or early next, with relaxation of the radio ownership rules thought to be one of the possible outcomes.  Of course, quick action may have been derailed by the decision of the Third Circuit Court of the Appeals to vacate and remand the Commission’s 2017 ownership order.  The court’s decision unwinds the FCC’s 2017 order which included abolition of the broadcast newspaper cross-ownership rule and the rule that limited one owner from owning two TV stations in the same market unless there were 8 independent television operators in that market – see our article here on the 2017 decision and our article here on the Third Circuit’s decision.  The basis of the Third Circuit decision was that the FCC did not have sufficient information to assess the impact of its rule changes on minority ownership and other potential new entrants into broadcast ownership.  If the FCC did not have enough information to justify the 2017 decisions, many believe any further changes in its rules are on hold until the FCC can either satisfy the court’s desire for more information on minority ownership or until there is a successful appeal of that decision.  Even though FCC changes to its ownership rules may be in abeyance, the November 21 forum can shed light on the current state of the industry and why changes in ownership rules may be justified.
Continue Reading FCC To Hold Symposium on Radio and TV Industry – What Does it Mean for Broadcast Regulation?

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

As we’ve written before, the FCC every year aims to randomly audit 5% of all broadcast stations and multichannel video programming distributors (MVPDs) to assure their compliance with the Commission’s EEO rules.  Every few months, the FCC releases a list of the lucky regulatees who have to respond to the audit.  Today, the Commission issued…

As part of its order in it proceeding to encourage diversity in broadcast ownership, the FCC adopted a number of new rules, including a rule allowing parties holding construction permits for new broadcast stations to sell those permits to "qualified entities."   The buying qualified entity would then then get 18 months to construct the new station, even if the construction permit would otherwise expire in less than 18 months.  Under prior policy, an FCC construction permit would expire 3 years after it is issued, with no real opportunity for extension (though the construction period could be "tolled" for the period that certain impediments to construction existed, i. e. litigation over zoning, FCC litigation over the validity of the permit, or Acts of God that temporarily stopped construction – but only for the limited period that such an impediment existed).   The new rule was adopted to encourage the sale to new entrants to broadcast ownership who could purchase construction permits that might otherwise expire.  Today, the FCC issued some clarifications of the new rule.

The clarification was issued principally to set out when the sale must take place in order for the buyer to qualify for the 18 month extension.  The FCC’s staff looked at the literal language of the new rule, and concluded that the sale must be approved by the FCC and consummated before the expiration date of the construction permit in order for the buyer to get the 18 month extension.  If the sale is not completed before expiration, the permit would expire.  Thus, the Commission warned applicants planning to take advantage of this new rule to file for the FCC approval of the sale at least 90 days before the expiration of the permit, to give time for the FCC approval of the sale and a consummation.  However, because of the uncertainty of the rule, the Commission decided that it would allow any party wanting to buy an unbuilt construction permit and who files to acquire that permit by May 31 to get the 18 month extension, even if the permit expires while the FCC application for approval of the sale is pending.  But after June 1, the buyer will not get the extension if the sale is not completed before the expiration of the permit. Continue Reading FCC Clarifies Rules on Extension of Broadcast Construction Permits Upon Sale to Qualified Entity

With Barack Obama’s historic victory just sinking in, all over Washington (and no doubt elsewhere in the country), the speculation begins as to what the new administration will mean to various sectors of the economy (though, in truth, that speculation has been going on for months).  What will his administration mean for broadcasters?  Will the Obama administration mean more regulation?  Will the fairness doctrine make a return?  What other issues will highlight his agenda?  Or will the administration be a transformational one – looking at issues far beyond traditional regulatory matters to a broader communications policy that will look to make the communications sector one that will help to drive the economy?  Some guesses, and some hopes, follow.

First, it should be emphasized that, in most administrations, the President has very little to do with the shaping of FCC policy beyond his appointment of the Commissioners who run the agency.  As we have seen with the current FCC, the appointment of the FCC Chairman can be the defining moment in establishing a President’s communications policy.  The appointment of Kevin Martin has certainly shaped FCC policy toward broadcasters in a way that would never have been expected in a Republican administration, with regulatory requirements and proposals that one could not have imagined 4 years ago from the Bush White House.  To see issues like localism, program content requirements and LPFM become such a large part of the FCC agenda can be directly attributed to the personality and agenda of the Chairman, rather than to the President.  But, perhaps, an Obama administration will be different.Continue Reading The Promise of an Obama Administration for Broadcast and Communications Regulation

The Digital Television conversion has allowed the FCC to reclaim significant portions of the TV spectrum for wireless and public safety uses – television channels above 51 will no longer be used for broadcast TV at the end of the analog to digital transition.  But, as part of the FCC’s Diversity proceeding (see our post here), a proposal dealing with the other end of the TV spectrum is being considered – whether to remove Channels 5 and 6 from the television band and instead use these channels for FM radio.  These channels are adjacent to the lower end of the FM band.  Because of this adjacency, the existence of TV Channel 6 in a market can limit the use of the lowest end of the FM band (used for Noncommercial Educational stations) to avoid interference to the TV station.  Similarly, Channel 6’s audio can be heard on many FM radio receivers, a fact that has recently been used by some LPTV operators to use their stations to deliver an audio service that can be received by FM radios (see our post on this subject).  In comments filed in the Diversity proceeding, parties have taken positions all across the spectrum – from television operators who have opposed using the channel for anything but television, to those suggesting that the channels be entirely cleared of television users and turned into a digital radio service.  Proposals also suggest using the band for LPFM operations, and even for clearing the AM band by assigning AM operators to this band to commence new digital operations.

In comments that our firm submitted on behalf of a group of noncommercial FM radio licensees who also rebroadcast their signals on a number of FM translator stations, we suggested that Channel 6 could provide a home for LPFM operations, instead of trying to squeeze those stations into the existing FM band.  There are currently proposals to squeeze more LPFM stations into the FM band by supplanting some FM translators (see our summary of some of those proposals here).  In these comments in the Diversity proceeding, we pointed out that, as there are currently radios on the market that receive 87.9, 87.7 and even 87.5, using these three channels for LPFM service would provide an immediate home to these stations, and far more opportunity for than LPFM would have in the already congested FM band.  These opportunities would exist even in most of the largest radio markets in the country, except in the handful of markets where a Channel 6 television station will continue to operate after the digital transition.  By adopting this proposal, the service that would be provided by FM translators would not be threatened. Continue Reading What to Do With TV Channels 5 and 6 – Proposals to Turn Them Over to Radio Services

The FCC today issued an order extending the comment deadline in its Broadcast Diversity proceeding, extending the comment date a full month until July 30, with Reply Comments now due on August 29.  This important proceeding, about which we wrote here, will address many issues, including proposals to, among other things, repurpose television…

UPDATE  5-29-2008-  Please note, the Commission has revised the dates for submitting comments in this rule making proceeding.  Comments in the proceeding are now due on or before June 30, 2008, and Reply Comments are due on or before July 14, 2008.  This means that interested parties have a couple of weeks less than…