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As I have noted on several occasions in the past, the FCC requires that certain video programming delivered online by television stations be captioned if that programming previously aired on television with captions (for a quick refresher you can view my posts “FCC Seeks Greater Clarity on IP Video Captioning Rules”, “Second Online Captioning Deadline Arrives March 30”, and “First Online Video Closed Captioning Deadline Is Here”).

All video programming that appeared on television with captions after April 30, 2012, is considered “covered Internet Protocol (IP) video” and is required to be captioned when shown online. In January of 2012, the FCC released an Order exempting “video clips” and outtakes while requiring that television stations display captioning for prerecorded full-length programming delivered via IP if the programming had aired on television with captions. Where a captioned TV program is streamed on the Internet in segments, it must be captioned if substantial portions of the entire program are shown via those segments.

However, in the latest turn, the FCC is now asking for updated information regarding whether it should remove the “video clip” exemption. It is seeking public comment on the issue, with comments due on January 27, 2014, and reply comments due on February 26, 2014. The FCC’s Public Notice asks commenters to answer a number of questions regarding the current state of captioning of IP-delivered video clips, including:

  • What portion of IP-delivered video clips generally, and of IP-delivered news clips specifically, are captioned?
  • Has the availability of captioned versions of such clips been increasing?
  • What is the quality of the captioning on IP-delivered video clips?
  • Should the FCC require captioning of IP-delivered video clips?
  • How are the positions of commenters consistent with the 21st Century Communications and Video Accessibility Act (CVAA), its legislative history, and the intent of Congress to provide video programming access to people with disabilities?
  • What are the potential costs and benefits of requiring captioning of IP-delivered video clips?
  • How have consumers been affected by the absence of closed captioning on IP-delivered video clips, particularly news clips?
  • To the extent that some entities have already captioned these clips, what technical challenges, if any, had to be addressed?
    How does the captioning of IP-delivered video clips differ from the captioning of full-length IP-delivered video programming?
  • What are the differences between captioning live or near-live IP-delivered video clips, such as news clips, and prerecorded IP-delivered video clips?
  • If the FCC imposes closed captioning obligations on IP-delivered video clips, should the requirements apply to all video clips, or only to a subset of such clips?
  • If only to a subset, what subsets would be most appropriate and what would be the rationale for excluding others?

The FCC also asks for comment on any additional issues relevant to its determination of whether closed captioning of IP-delivered video clips should be required.

TV stations have been making greater use of their websites over the last few years to deliver video programming, and that use is only likely to increase in the years ahead as TV stations expand their use of mobile applications to reach viewers. As a result, the FCC’s new proceeding raises important issues that will affect stations’ video streaming, online marketing, and bottom line. As the saying goes, you’re not entitled to complain about an elected official if you didn’t bother to vote, and broadcasters need to speak up now if they want to avoid having to complain later about any complex or burdensome online captioning requirements that might be adopted in this proceeding.

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December 2013

Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • FCC Cancels $20,000 Children’s Television Fine
  • Fine and Reporting Requirements Imposed for EEO Violations
  • Individual Fined $15,000 for Unauthorized Operation of a Radio Transmitter

$20,000 Kidvid Fine Rescinded Due to Timely Filing

The FCC has continued to impose fines on numerous licensees for failing to timely file their Children’s Television Programming Reports on FCC Form 398. The FCC’s rules require that full power and Class A television stations file a Children’s Television Programming Report each quarter listing the station’s programming that is educational and informational for children, and regularly notify the public as to where to find those reports. The base fine for failing to file a required form with the FCC is $3,000.

In July of this year, the FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”) against a Louisiana licensee for failing to timely file its Children’s Television Programing Reports 18 times. After examining the facts and circumstances, including the licensee’s failure to disclose the late filings in its license renewal application, the FCC proposed a $20,000 fine.

In response to the NAL, the licensee asserted that the reports in question had been timely filed, and that the “late” dates the FCC was seeing in its filing database were merely amendments to the timely filed reports. Unfortunately, as those who have dealt with the FCC’s filing systems are aware, when an amendment to an existing report is filed, the FCC’s filing system changes the filing date shown from the original filing date to the filing date of the amendment. That is why it is important to print out evidence of the original filing when it is made, allowing the licensee to demonstrate that a timely filing was made if it is later questioned.

Based on the licensee’s ability to produce Submission Confirmation printouts showing that the reports were timely filed, the FCC agreed to rescind the NAL and cancel the $20,000 fine.

License Assessed $20,000 Fine and Reporting Obligations for Failing to Notify Job Referral Sources and Self-Assess Its EEO Performance

Earlier this month, the FCC imposed a $20,000 fine and detailed reporting requirements on an Illinois radio licensee. Under Section 73.2080(c)(1)(ii) of the FCC’s Rules, a licensee must provide notices of job openings to any organization that “distributes information about employment opportunities to job seekers upon request by such organization,” and under Section 73.2080(c)(3), must “analyze the recruitment program for its employment unit on an ongoing basis.”

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As our own Lauren Lynch Flick reported last month, the deadline for commercial broadcast stations to file their biennial ownership reports with the FCC, which the FCC in August moved from November 1st to December 2nd, and then in November moved from December 2nd to December 20th, has now been moved up, but just by a little.

In a Public Notice released today, the FCC announced that:

The Media Bureau previously issued an order granting requests to extend the 2013 biennial ownership report filing deadline to December 20, 2013. Subsequently, a power outage of the FCC headquarters building’s electrical systems, as required by the District of Columbia Fire Code, was scheduled. The Commission’s systems, including CDBS, will become unavailable after business hours on the evening of the filing deadline. The outage is scheduled to begin at 7 p.m. on December 20, 2013. Filers must complete electronic filing of their 2013 biennial Ownership Report for Commercial Broadcast Stations prior to that time to comply with the filing due date.

Because the FCC’s website has been known to struggle on days where large numbers of filings are due, broadcasters should generally avoid filing documents on their due date unless there is good reason to do so. However, one benefit of electronic filing has been the ability to file after normal business hours, when traffic on the FCC’s filing databases eases. That will not be possible this year, and for those on the West Coast, the 7 p.m. (Eastern) deadline means that they will need to get their ownership reports on file by 4 p.m. Pacific time, before their business day actually ends.

As a result, broadcasters will need to be extra vigilant this year to ensure that they don’t find themselves trying to file their ownership reports late in the day on December 20th, only to realize that the FCC’s filing system is moving at the speed of molasses from the high volume of filers. When the lights go out at the FCC on December 20th, so will your chance of a timely filing.

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If there had been any doubt that the Video Division of the FCC’s Media Bureau would check a television station’s online public inspection file to confirm the truthfulness of certifications made by the licensee in a pending license renewal application, that doubt has been eliminated.

In a Notice of Apparent Liability for Forfeiture released December 3, the Video Division has proposed a $9,000 fine against the licensee of two Michigan televisions stations on the grounds that (i) each station had filed their Children’s Television Programming Reports (“Kidvid Reports”) late, and (ii) the stations failed to report those violations in responding to one of the certifications contained in their license renewal applications.

According to the FCC, the licensee had filed each station’s Kidvid Report late for three quarters during the license term in violation of Section 73.3526(e)(11)(iii) of the Commission’s Rules.

The problem was compounded when the licensee failed to disclose those violations in responding to Section IV, Question 3 of the Form 303-S, which requires licensees to certify “that the documentation, required by 47 C.F.R. Section 73.3526…has been placed in the station’s public inspection file at the appropriate times.” That same certification requires the applicant to submit an exhibit explaining any violations.

The Video Division of the FCC proposed that each station be assessed a fine of $3,000, the base forfeiture amount for failing to timely file Kidvid Reports, plus a fine of $1,500 for omitting from its renewal applications information regarding those violations. The Division suggested that it could have fined each station $3,000, rather than $1,500, for the reporting failure, but reduced the amount because each licensee “made a good faith effort to identify other deficiencies.”

Fortunately for the licensee in this case, it had checked the certification box with a “no,” and disclosed that its quarterly issues/programs lists had not been timely uploaded to the FCC’s online public file for the station. While the licensee did not mention anything about the late-filed Kidvid Reports, apparently the Video Division believed that the licensee’s failure to disclose was intentional enough to warrant a fine, but not deliberate enough to warrant a charge of misrepresentation or lack of candor that could have resulted in a much larger fine or worse.

The lessons learned from the Video Division’s action include: before signing off and filing a station license renewal application, (i) check the FCC’s online database to make sure that it has a record of all documents that were required to be timely filed, (ii) check the station’s paper (in the case of radio) and online (in the case of television) public inspection file to confirm (or not) that the file is complete and that the documents required to be in the file were placed there on a timely basis, and (iii) discuss with counsel what may need to be disclosed (or not disclosed) in response to certifications contained in a station’s application for renewal of license.

Of future concern is whether the Media Bureau will now be more inclined to impose even higher fines, claiming misrepresentation/lack of candor, where a license renewal applicant makes an unqualified affirmative certification that is not correct, or where the applicant states that it is unable to make an affirmative certification and provides an explanation, but does not fully disclose all material facts in its explanation. Recently the Media Bureau imposed a $17,000 fine against a station for violating Section 1.17 (misrepresentation/lack of candor) after having concluded that had the station “exercised even minimal due diligence, it would not have submitted incorrect and misleading material factual information to the Commission.” The Bureau made a point of the fact that the base statutory fine for misrepresentation or lack of candor is $37,500. Affirmative due diligence and caution are your best insurance policies in avoiding such a new and unbudgeted line item expense on your company’s next P&L.

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Earlier today, the FCC released a Public Notice detailing the results of the recent LPFM filing window, along with guidance as to what happens next. More than 2,800 low power FM (LPFM) applications were filed during the October 15 – November 15 (as extended) filing window, with the largest numbers coming from Texas (303), California (283), and Florida (276). To put that number in perspective, if it were possible to grant all of the filed LPFM applications, it would increase the number of radio stations in the U.S. (not including translators) by nearly 20%.

However, many if not most of the applications will indeed conflict with each other, so part of the reason for today’s Public Notice is to respond to inquiries regarding the processing of singleton and mutually exclusive applications. This includes such topics as amendments, settlement agreements between mutually exclusive applicants, time-sharing agreements, petitions to deny, and how parties can obtain reinstatement of dismissed applications. Given the more than a decade it took to process applications from the 2003 FM translator filing window, the breakneck speed at which the FCC is moving to process LPFM applications is notable.

According to the Public Notice, the FCC intends to begin rapidly processing applications as early as this month, stating that:

  • The Bureau’s first priority has been to identify singleton applications (applications that do not conflict with other applications filed in the window), of which there appear to be about 900. The FCC indicates it hopes to begin granting such applications in January 2014.
  • Later this month, the Bureau will release a Public Notice identifying the mutually exclusive (MX) application groups.
  • Effective with the release of the Public Notice on MX application groups, mutually exclusive applicants will have the ability to file technical amendments and/or enter into settlement and time-sharing agreements to resolve application conflicts.
  • Following the Bureau’s review of technical amendments and agreements filed to remove application conflicts, the FCC will identify one or more tentative selectees from each mutually exclusive group. The Bureau will then analyze petitions to deny filed against each tentative selectee, and either grant or dismiss that application. In certain cases, the FCC will identify a successor tentative selectee or selectees after acting on the application of the original tentative selectee.

The Public Notice also provided the following information:

Mutually Exclusive Applications: For applications that do not meet the minimum separation requirements of the FCC’s rules, parties are allowed to negotiate settlements and/or file technical amendments to resolve conflicts after the FCC releases the MX Public Notice. As noted above, the FCC intends to release the MX Public Notice later this month.

Amendments: Once the MX Public Notice is released, parties will be allowed to file certain minor amendments to their applications. Major amendments can only be filed by tentative selectees, and only after the FCC announces which applicants have been anointed with that status.

Settlement Agreements: MX applicants will also be allowed to resolve technical conflicts through settlement agreements among applicants, including agreements to make technical amendments to their applications to eliminate the conflict. The Public Notice spells out a detailed process applicants must follow to notify the FCC of their settlement plans.

Voluntary Time-Share Agreements: Parties are also allowed to enter into “partial or universal time-share” agreements. Time-share agreements must (i) specify the proposed hours of operation of each time-share proponent; (ii) not include simultaneous operation of the time-share proponents; and (iii) include a proposal by each time-share proponent to operate for at least 10 hours per week.

Petitions to Deny: All applications that the Commission accepts are subject to petition to deny filings within 30 days after a Public Notice announcing that the application has been accepted for filing.

Dismissed Applications: The FCC is required to dismiss any application that does not comply with the FCC’s minimum distance separation requirements to pre-existing facilities. Any application that does not meet the separation requirements to existing facilities cannot be amended to fix that problem.

It is clear from today’s Public Notice that the FCC is working quickly to try and wrap up much of this proceeding by Christmas or shortly after the new year begins. Parties involved or potentially affected by this proceeding should therefore start adjusting their holiday schedules to be able to move quickly in response to the promised notices that will be rolling out of the FCC in the next few weeks.