Noncommercial Broadcasting

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Three months ago, we wrote about a case where the FCC held that it would grant only one application from each MX Group in the recent NCE FM window for new noncommercial FM radio stations.  MX Groups arise when multiple applicants file applications that cannot all be granted without prohibited interference.  In some cases, an…

Stations that are licensed as "noncommercial educational" stations are prohibited by the FCC from running commercials – seemingly a pretty straightforward prohibition.  Yet drawing the line between a prohibited commercial and a permissible sponsorship acknowledgment is sometimes difficult in these days of "enhanced underwriting."   In a recent case, the FCC fined a noncommercial radio station $12,500 for repeatedly airing 4 announcements from sponsors that the Commission found to have crossed the line by being overly promotional.  These announcements, which appear to have been recordings of unscripted sponsor acknowledgments, demonstrate how carefully noncommercial stations must police their sponsorship announcements to avoid risking an FCC sanction.

The announcements in these cases are worth reviewing. Some have subtle promotional messages, while the areas of concern are more clear in others.  But in reaching its decision, the Commission goes through a close analysis of the wording of each announcement to see if the announcement contains "comparative or qualitative descriptions, price information, calls to action, or inducements to buy, sell, rent or lease", all prohibited language in a noncommercial sponsorship identification.  So, when one of the announcement referred to "beautiful Harley Davidson light trucks" sold by a local auto dealer who sponsored the station, the FCC found that this was a qualitative claim that went over the line.  Similarly, statements that "we have it here" or "where we are proud to be Mexicans" (these announcements having been run on a Spanish-language station in California) were found to be attempts to qualitatively distinguish this dealer from others, or to be inducements to buy – a prohibited call to action.  And a specific statement that "no downpayment" would be required on a purchase constituted the kind of price information that should not be contained in a sponsorship acknowledgment.  Another announcement for a local tire store had similar problems in the content of the ads, using phrases such as stating that the company "knows about tires" and that the company’s product "reduces [the] loss [of tire] pressure" and "has less risk of suffering damages . . . last longer and [is] not too expensive cause you to save more . . . [and] save more in gas per mileage."Continue Reading Noncommercial FM Station Fined $12,500 for Sponsorship Acknowledgments That Were Too Commercial

Last week, we wrote about a Commission decision that said that only one application in a noncommercial MX Group can be granted even if, when the first is granted, there are other applications in that group that would not be mutually exclusive with (i.e. would not create any prohibited interference to) the winning applicant.  While…

In two consent decrees released last week, the FCC’s Enforcement Bureau agreed to significant "voluntary contributions" to the US Treasury to settle noncompliance issues reported in license renewal applications filed by noncommercial radio stations.  Both stations had voluntarily reported public inspection file issues in their license renewals.  One admitted to having no issues programs lists in its public file and having filed no biennial ownership reports for the license renewal period.  The other admitted that it was missing several years worth of quarterly issues programs lists.  In the first case, the FCC agreed to a $10,000 contribution in lieu of a fine (see the agreement here), in the other case a $1700 contribution (which was less than might normally be the case, as it was reduced by a financial hardship showing – see the order here and the agreement with the FCC here).  These cases demonstrate the significance that the FCC places on public file issues – the biggest source of fines in the last license renewal cycle.  With a new license renewal cycle beginning in June 2011, now is the time for all broadcasters – commercial and noncommercial – to make sure that they are ready for the beginning of this cycle by clearing up any outstanding regulatory issues.

The fines also once again demonstrate that the Commission no longer treats noncommercial broadcasters differently than commercial broadcasters – fining noncommercial stations for violations just as it does their commercial brethren (see a previous post on this subject, here).  In these cases, the use of Consent Decrees also demonstrate the problems that issues arising at renewal time can cause.  If a station’s license renewal reports a problem, such as an incomplete public file, the application is pulled out of the routine processing pile for further scrutiny.  Such scrutiny can often take a year, and sometimes several years, to resolve.  While the renewal application is in this state of limbo, a sale of the station will not be approved, and sometimes other regulatory actions can be held up (in fact, in one of these cases, a transfer of control of the licensee company was delayed while this issue was being resolved).  Thus, to avoid these lengthy delays, stations often decide to pursue the consent decree route to try to resolve the issue more quickly than would be the case if the application were just left with the FCC to run its course.Continue Reading Fines For Public Inspection File Issues – Noncommercial Broadcasters Enter into Consent Decrees to Resolve Rule Violations

In a recent decision, the FCC upheld the dismissal of a noncommercial FM application filed during the 2007 NCE FM window, despite the fact that the application was not mutually exclusive with any other pending application. This somewhat unusual result came about following the selection of a winner from among a group of mutually exclusive noncommercial applications. That group of mutually exclusive applicants (or, as the FCC calls it, an “MX Group”) contained a number of applications in a “daisy chain.”   As an example, a daisy chain would be where Applicant A was mutually exclusive with Applicant B, and Applicant B was mutually exclusive with Applicant C, and Applicant C was mutually exclusive with Applicant D, but Applicants C and A were not themselves mutually exclusive.  In the case decided last week, there were actually 13 applications in the chain.  When the FCC used its point system for evaluating noncommercial applications, it selected a winner and dismissed all of the remaining applicants.  One of those dismissed applicants, The Helpline, asked the FCC to reconsider the dismissal of its application, arguing that, when you dismissed all of the applications that were mutually exclusive with the winning applicant, the technical facilities proposed by the Helpline would no longer be mutually exclusive with any application and thus could be granted as well. The FCC denied that request.

Why was that request denied? In its order establishing the rules governing the processing of noncommercial FM applications in the 2007 NCE window, the FCC decided that it would grant only one application out of any MX Group, even where not all of the applications in that group were mutually exclusive with each other. According to last week’s order, the Commission considered allowing the grant of more than one applicant in a group, but determined that doing so could lead to the grant of an application that is “inferior” to other applications, and which would not necessarily represent the best use of the spectrum, so they decided to grant only one applicant from each MX Group.Continue Reading FCC Decides Only One Application Will Be Granted From NCE MX Group – Even Where Second Application Can Technically Co-Exist With Granted Construction Permit

In a decision just released, the FCC fined a noncommercial FM station $8000 for failing to make its public inspection file available when it was requested.  The FCC made clear that past cases where a noncommercial station was given only an admonition for similar violations were no longer good law, finding that the public file was an important part of the station’s obligations to the public and the failure to make it available was a serious violation.  This case should serve as a warning to all stations, commercial and noncommercial, that they need to have people at the station at all times who know where the public file is located, and that all visitors who request access to the file need to be given such access.

This case was perhaps a bit more egregious than most, as the visitor who requested access to the fine was known to the station, as the person was employed by a college that had tried unsuccessfully to buy the station.  After its request to purchase the station was turned down, the prospective buyer had allegedly filed a number of pleadings at the FCC trying to force the licensee to sell the station.  When the person appeared at the station to request access to the public file, the person was first told to return another day.  After protesting that was illegal, an official of the College which is the station licensee, arrived at the scene and told the visitor that he had to leave, and could only view the public file after having made a prior appointment with the college’s attorney.  When reached by phone, the attorney allegedly told the visitor to leave the premises or he would be arrested.  Only when he returned another day, after being initially turned down yet again, was the visitor eventually able to persuade the station employees that refusal to give him access to the file was illegal.  When he was finally able to gain access to the file, he stated that he found it to be incomplete.Continue Reading $8000 FCC Fine for Noncommercial Station Not Making Public Inspection File Available Upon Request

A reminder that by February 1 noncommercial radio stations in Arkansas, Louisiana, Mississippi, New Jersey, and New York, and noncommercial television stations in Kansas, Nebraska, and Oklahoma must prepare and file electronically a biennial Ownership Report with the Federal Communications Commission (FCC) using the current noncommercial FCC Form 323-E.

Please note, this filing date…

The earthquake in Haiti has caused many to look for ways to help – including broadcasters.  While many broadcasters are already pitching in to do their part to aide relief efforts, noncommercial broadcasters are, in some cases, limited in what they can do.  Noncommercial stations cannot raise funds, even for other noncommercial groups, if that fundraising "substantially alters or suspends regular programming" of the station.  Under these rules, NCE ("Noncommercial educational) stations are thus forbidden to hold a telethon or other pledge drive that suspends normal programming where the proceeds would go to a third party – even a nonprofit third party group.  Thus, recognizing the magnitude of the tragedy in Haiti, the FCC has agreed to grant liberal waivers of these policies, issuing a public notice announcing that NCE stations wishing to conduct such efforts can simply file an electronic request, by email, with certain supervisors in the Media Bureau’s Audio and Video divisions, setting out the nature of the programming, its length, and the beneficiary.

We obviously applaud the FCC’s rapid response on this issue.  But we note that it is interesting that the Public Notice states that applicants for one of these waivers also must state whether the special fund-raising effort is part of the station’s normal fundraising, or if it is a separate program. The public notice does not mention that noncommercial stations can make fundraising appeals for third parties under the current FCC policies, as long as those appeals do not suspend or interfere with normal station programming.  It would seem to me that such appeals would permit a DJ on an NCE station, in a normal programming break, to urge listeners to contribute to the Red Cross or some other charity, or for a regularly scheduled talk show on a station to feature a discussion of the situation in Haiti and of how people can assist with disaster relief, without needing any specific approval of the FCC.  The key to whether a waiver of the FCC policies is necessary is whether there is a substantial alteration or suspension of the normal programming of the station.Continue Reading FCC Permits Noncommercial Stations to Raise Funds For Haitian Relief – The Limits of Third Party Fundraising By NCE Stations

The new FCC Form 323 Ownership Report is expected to be available in the FCC’s CDBS electronic filing database by Wednesday, December 9, according to a Public Notice released by the FCC yesterday – so that commercial broadcasters should have a month to prepare the form in time for the January 11 filing deadline.  As we’ve written before, the form and filing deadline have been much delayed as the Commission struggled to work out kinks in its electronic filing process.  In the Public Notice issued yesterday, the Commission also announced that stations can file their ownership reports on the new form even if each attributable owner of the company has not yet received an FCC Registration Number (an "FRN"), which requires the provision of a Social Security Number (for individuals) or a Taxpayer ID Number (for business entities).  Seemingly, the FCC has recognized that there has been much consternation among shareholders, officers and directors of broadcast companies about providing their Social Security Numbers to companies in which they have interests to in turn be provided to the FCC so that an FRN can be obtained.  So that licensees can have more time to deal with these issues, the provision for a temporary FRN has been adopted.  The FCC Public Notice also indicates that the FCC will host a workshop on December 9 at 2 PM Eastern time to help the public with issues as to the filing of this report.

The Social Security Number issue has perhaps created the most concern about this new form.  While the allowance for the temporary FRN will take some immediate pressure off broadcasters, these temporary numbers should not be viewed as a permanent reprieve from obtaining FRNs from all attributable owners.  The Commission in the revised Questions and Answers on the Form 323 makes clear, the temporary FRN for those holders of attributable interests in broadcast stations is a temporary measure.  Licensees are cautioned that they should use their best efforts to obtain these numbers (or to have the attributable owners, on their own, register for the FRN).  Even if that cannot be accomplished by the January 11 deadline, the licensee has an obligation to keep trying and to amend its filing when it finally obtains the required information as to the permanent FRN of each person or entity holding an attributable interest in the company .  The FCC seems to leave the door open to enforcement actions if a licensee does not obtain that information in a reasonable (though not defined) period of time.Continue Reading New Form 323 Ownership Report Expected to be Ready This Week – And FCC Provides for Temporary FRN Without Social Security Number

Last Friday we posted about the FCC’s announcement that it would open a filing window in December for noncommercial applicants interested in seeking authority for 67 existing vacant FM allotments.  Today, the FCC revised the timing of that window and postponed the opening until February 2010.  Accordingly, rather than accepting applications for these vacant noncommercial…