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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:

Headlines:

  • Florida AM Licensee Hit with $15,000 Fine for Failing to Maintain Public Inspection File and Provide Immediate Access to It
  • New York Amateur Radio Operator Fined $23,000 and Arrested for Unlicensed Operations and False Officer-in-Distress Call
  • Late-Filed License Renewal Nets Washington AM Station $1,500 Fine

FCC Fines AM Licensee $15,000 for Public Inspection File Violations

The FCC’s Media Bureau fined a Florida AM licensee $15,000 for failing to provide immediate access to the station’s public inspection file and for failing to maintain the file in accordance with FCC Rules. It also admonished the licensee for making a false certification to the FCC.

Under Section 73.3526 of the FCC’s Rules, each commercial broadcast station is required to maintain a public inspection file containing specific information related to station operations. Subsection 73.3526(e) lists the required information, and subsection 73.3526(c)(1) directs stations to make the file available for public inspection at all times during regular business hours.

In this case, the licensee filed a license renewal application on September 20, 2011 in which it certified that the public file had been maintained throughout the term in compliance with the FCC’s Rules. On December 27, 2011, however, a petition to deny the application was filed with the FCC. The petitioner claimed that on the morning of December 5, 2011, the station’s staff denied him immediate access to the public inspection file and treated him disrespectfully. The petitioner stated that he returned in the afternoon, as station staff requested, at which point he was allowed to view the file, but was not allowed to make copies of anything in the file. The petitioner further alleged that the file was missing information related to its authorization, applications filed with the FCC, the political file, all issues/programs lists, and the most recent ownership report. The petitioner claimed that the file was also missing letters and emails from the public, material related to FCC investigations or complaints, and certain agreements – but failed to demonstrate any basis for these claims.

In response, the licensee asserted that the petition was filed as “payback” for not hiring the petitioner as a station employee. The licensee also explained that the petitioner was not granted immediate access because the station was on-air at the time of his request. The station noted that access to the public file was subsequently granted, and that the file was “in order” for the inspection.

In response, the FCC issued a Notice of Apparent Liability for Forfeiture (“NAL”), and determined that the licensee apparently violated subsections 73.3526(c)(1) and 73.3526(e). Specifically, the FCC was concerned that the licensee (1) conceded that it did not provide immediate access to the petitioner, (2) did not deny that it refused to allow the petitioner to make copies, and (3) provided only a brief and general response to the allegation that the public file was deficient. Most importantly, according to the FCC, the licensee never stated that the public file was properly maintained for the entire license term.

The FCC’s Rules establish a base fine of $10,000 for violating Section 73.3526, but because this was not the licensee’s first public inspection file violation, the FCC determined that an upward adjustment to $15,000 was warranted based on the licensee’s “pattern of abuse.” The FCC also admonished the licensee for falsely certifying in its license renewal application that it had properly maintained the public file. The FCC stated it would withhold grant of the license renewal application until the licensee paid the fine in full, and would then grant renewal for only a two-year term instead of the standard eight-year term.

False Police Distress Call Causes Arrest and Associated Distress for Unlicensed Amateur Radio Operator

The FCC proposed a fine of $23,000 against an amateur radio station operator for operating without FCC authorization and falsely transmitting an officer-in-distress call from his residence in New York. The FCC explained that such fraudulent transmissions potentially impact public safety and property, and place unnecessary strain on safety and rescue agencies.  Continue reading →

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The FCC has sent an email to those registered in the EAS Test Reporting System (“ETRS”) for tomorrow’s nationwide test, asking them to (1) stagger the filing of their EAS Form Two based on their time zone, and (2) not file Form Three until the day after the test.  The FCC explained that the request—the staggered filing times are not mandatory—is meant to “maximize the resources available to process Form Two filings.”

Specifically, the FCC would like EAS participants to file Form Two, “Day of Test Reporting,” in the ETRS as follows:

  • Facilities in Eastern Time Zone – 2:30 pm to 5:00 pm EDT
  • Facilities in Central Time Zone – 5:00 pm to 7:00 pm EDT (4:00 pm to 6:00 pm CDT)
  • Facilities in Mountain Time Zone – 7:00 pm to 8:00 pm EDT (5:00 pm to 6:00 pm MDT)
  • Facilities in Pacific Time Zone – 8:00 pm to 9:30 pm EDT (5:00 pm to 6:30 pm PDT)
  • Facilities in all other time zones – 9:30 pm to 11:59 pm EDT

The request seemed last-minute, coming so soon before the test, which is scheduled to take place tomorrow, Wednesday, September 28, 2016, at 2:20 pm Eastern Time (if necessary, the back-up test date will be October 5, 2016, at 2:20 pm Eastern Time).  As we previously discussed, it raised some eyebrows when the FCC announced that EAS participants are required to file Form Two by 11:59 pm Eastern Time on the same day as the test itself, leaving less than 10 hours after the test for all EAS participants to file.  The relevant FCC rule says that participants must file “within 24 hours . . . or as otherwise directed” by the FCC.  As for Form Three, “Detailed Test Reporting,” it must be filed “within 45 days following a nationwide EAS test,” which makes it due on or before November 14, 2016.

There are also new details available on what the test itself will look and sound like.  According to senior FEMA staff, the audio portion of the test, including attention signals, will last approximately 50 seconds.  In addition, FEMA was asked to delete a previously included statement in the text scroll—“No action is needed.  This is only a test”—to avoid creating a difference between the aural and visual presentations, which had the potential to generate confusion among those with hearing or vision issues.

The test will start when FEMA sends the alert message, which will be in both English and Spanish.  The alert will use a new nationwide test event code, NPT, and a new nationwide geographic zone code, 000000.  As of July 30, 2016, all EAS Participants were required to have equipment in place capable of receiving and passing these codes.  If you want to see what the 2011 test looked like for TV viewers, YouTube can help you there.

It will be interesting to see if the 2016 nationwide EAS test improves on the 2011 edition.  As we previously wrote, the FCC found a number of technical areas where the system could be improved in the 2011 test.  Let’s hope that the capacity of ETRS to process filings, or a lack thereof, is not a lesson learned from the 2016 national test.

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The staggered deadlines for noncommercial radio and television stations to file Biennial Ownership Reports remain in effect and are tied to each station’s respective license renewal filing deadline.

Noncommercial radio stations licensed to communities in Iowa or Missouri and noncommercial television stations licensed to communities in Alaska, Florida, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands must electronically file their Biennial Ownership Reports by October 3, 2016 (because October 1 falls on a weekend, submission of this filing to the FCC may be made on the following business day). Licensees must file using FCC Form 323-E and must also place the form as filed in their station’s public inspection file.

On January 8, 2016, the Commission adopted changes to the ownership report forms and a single national filing deadline for all noncommercial radio and television broadcast stations like the one that the FCC previously established for all commercial radio and television stations. However, until the Office of Management and Budget approves the new forms, noncommercial radio and television stations should continue to file their biennial ownership reports every two years by the anniversary date of the station’s license renewal application filing deadline.

A PDF of this article can be found at Biennial Ownership Reports are due by October 3, 2016 for Noncommercial Radio Stations in Iowa and Missouri and Noncommercial Television Stations in Alaska, Florida, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands.

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This Broadcast Station Advisory is directed to radio and television stations in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

October 1, 2016 is the deadline for broadcast stations licensed to communities in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands to place their Annual EEO Public File Report in their public inspection file and post the report on their station website. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by October 3, 2016 (because October 1 falls on a weekend, submission of this filing to the FCC may be made the following business day).

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.

Exempt SEUs – those with fewer than five full-time employees – do not have to prepare or file Annual or Mid-Term EEO Reports.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the public inspection files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application. The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities. Nonexempt SEUs must submit to the FCC the two most recent Annual EEO Public File Reports with their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with more than ten full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the midpoint of their eight-year license term along with FCC Form 397 – the Broadcast Mid-Term EEO Report.

For a detailed description of the EEO rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters published by Pillsbury’s Communications Practice Group. This publication is available at: https://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

Deadline for the Annual EEO Public File Report for Nonexempt Radio and Television SEUs

Consistent with the above, October 1, 2016 is the date by which Nonexempt SEUs of radio and television stations licensed to communities in the states identified above, including Class A television stations, must (i) place their Annual EEO Public File Report in the public inspection files of all stations comprising the SEU, and (ii) post the Report on the websites, if any, of those stations. LPTV stations are also subject to the broadcast EEO rules, even though LPTV stations are not required to maintain a public inspection file. Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request. Therefore, if an LPTV station has five or more full-time employees, or is part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file.

These Reports will cover the period from October 1, 2015 through September 30, 2016. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before September 30, so long as they begin the next annual reporting period on the day after the cut-off day used in the immediately preceding Report. For example, if the Nonexempt SEU uses the period October 1, 2015 through September 20, 2016 for this year’s report (cutting it off up to ten days prior to September 30, 2016), then next year, the Nonexempt SEU must use a period beginning September 21, 2016 for its next report.

Deadline for Performing Menu Option Initiatives

The Annual EEO Public File Report must contain a discussion of the Menu Option initiatives undertaken during the preceding year. The FCC’s EEO rules require each Nonexempt SEU to earn a minimum of two or four Menu Option initiative-related credits during each two-year segment of its eight-year license term, depending on the number of full-time employees and the market size of the Nonexempt SEU.

  • Nonexempt SEUs with between five and ten full-time employees, regardless of market size, must earn at least two Menu Option credits over each two-year segment.
  • Nonexempt SEUs with 11 or more full-time employees, located in the “smaller markets,” must earn at least two Menu Option credits over each two-year segment.
  • Nonexempt SEUs with 11 or more full-time employees, not located in “smaller markets,” must earn at least four Menu Option credits over each two-year segment.

The SEU is deemed to be located in a “smaller market” for these purposes if the communities of license of the stations comprising the SEU are (1) in a county outside of all metropolitan areas, or (2) in a county located in a metropolitan area with a population of less than 250,000 persons.

Because the filing date for license renewal applications varies depending on the state to which a station is licensed, the time period in which Menu Option initiatives must be completed also varies. Radio and television stations licensed to communities in the states identified above should review the following to determine which current two-year segment applies to them:

  • Nonexempt radio station SEUs licensed to communities in Alaska, Florida, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands must have earned at least the required minimum number of Menu Option credits during the two year “segment” between October 1, 2015 and September 30, 2017, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt radio station SEUs licensed to communities in Iowa and Missouri must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2014 and September 30, 2016, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Iowa and Missouri must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2015 and September 30, 2017, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Alaska, Florida, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2014 and September 30, 2016, as well as during the previous two-year “segments” of their license terms.

Deadline for Filing EEO Mid-Term Report (FCC Form 397) for Radio Stations Licensed to Communities in Iowa and Missouri, and Television Stations Licensed to Communities in Florida, Puerto Rico, and the Virgin Islands

  • October 1, 2016 is the mid-point in the license renewal term of radio stations licensed to communities in Iowa and Missouri and television stations licensed to communities in Florida, Puerto Rico, and the Virgin Islands.
  • Radio station SEUs with more than ten full-time employees licensed to communities in Iowa and Missouri, and television SEUs with five or more full-time employees licensed to communities in Florida, Puerto Rico, and the Virgin Islands, must electronically file the Form 397 Report by October 3 (as October 1 falls on a weekend). Licensees subject to this reporting requirement must attach copies of the SEU’s two most recent Annual EEO Public File Reports to their 397 Report.
  • Note that SEUs that have been the subject of a prior FCC EEO audit are not exempt and must still file FCC Form 397 by the deadline. Electronic filing of FCC Form 397 is mandatory. A paper version will not be accepted for filing unless accompanied by an appropriate request for waiver of the electronic filing requirement.

Recommendations

It is critical that every SEU maintain adequate records of its performance under the EEO Rule and that it practice overachieving when it comes to earning the required number of Menu Option credits. The FCC will not give credit for Menu Option initiatives that are not reported in an SEU’s Annual EEO Public File Report or that are not adequately documented. Accordingly, before an Annual EEO Public File Report is finalized and made public by posting it on a station’s website or placing it in the public inspection file, the draft document, including supporting material, should be reviewed by communications counsel.

Finally, note that the FCC is continuing its program of EEO audits. These random audits check for compliance with the FCC’s EEO Rule and are sent to approximately five percent of all broadcast stations each year. Any station may become the subject of an FCC audit at any time. For more information on the FCC’s EEO Rule and its requirements, as well as practical advice for compliance, please contact any of the attorneys in the Communications Practice.

A PDF of this article can be found at Annual EEO Public File Report Deadline for Stations in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands.

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Next week, the eyes of the broadcast world shift to Nashville, where the National Association of Broadcasters is holding this year’s Radio Show. Pillsbury will again be kicking off the Show with its annual broadcast finance session at 8:30am on Wednesday, September 21.

This year’s event is titled Pillsbury’s Broadcast Finance Forecast – 2016 Leadership Breakfast, and will feature the expanded format we used for last year’s 25th anniversary broadcast finance session.  It will start with a visual analysis of the 2016 financial performance of the radio industry and its major players by Davis Hebert of Wells Fargo. An advance peek at some of the slides from his presentation drew attention in the radio trade press a few weeks ago, and he has many more where those came from.  The Wells Fargo analysis is always packed with information and economic insight and, having seen the slide deck, I can tell you that this year will be no exception.

Davis’s “State of the Industry” presentation will be followed by our six-member “broadcasters and bankers” panel discussing a wide variety of issues impacting the radio industry and its financing. These include the uptick in radio M&A activity represented by Beasley’s recently-announced acquisition of the Greater Media stations, the obstacles in obtaining financing for radio acquisitions and debt restructuring, and the competitive and other challenges facing radio stations as they seek to ride the economic wave generated by the end of the Great Recession.

We have a particularly well-qualified panel to tackle these tough topics, including Caroline Beasley of Beasley Broadcast Group and Larry Wilson of Alpha Media, representing two of the most active players in radio station acquisitions the past few years, Bill Hendrich of Cox Media, who has a long history of radio operations, and Garret Komjathy (U.S. Bank) and Ray Shu (Capital One), two of the most experienced lenders in the radio world.

I’ll be moderating the panel (no event is perfect), and Media Services Group is again providing the breakfast, ensuring that when the session is over, attendees will leave with not just full minds, but full stomachs.

My partner, Lew Paper, started this event many years ago (26, to be exact), and a lot of people, both at Pillsbury and NAB, work hard to put it together every year. When Lew handed the reins to me a few years ago, I think only he knew how hard it is pull together all the pieces and make it look as easy as he did (turns out he’s sneaky that way).  Fortunately, with this year’s panel, my job has been made easy.  For those that will be in Nashville, we hope to see you there.

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Just before the Labor Day weekend, the FCC issued its Report and Order launching the annual regulatory fee payment process for Fiscal Year 2016.  The FCC has also opened the “Fee Filer” system that must be used to pay regulatory fees.  More information and FAQs about the FY 2016 regulatory fees can be found here.

Payment in full of regulatory fees must be made by 11:59 p.m. Eastern Time on September 27, 2016. Late payment of regulatory fees will result in a 25% penalty and “red light” status, which restricts the FCC’s processing of a late payer’s applications until payment of the fees and penalties has been made.  The FCC specifically reminded participants in the ongoing TV broadcast Incentive Auction that they must pay regulatory fees for FY 2016 if they held a license or construction permit as of October 1, 2015 (and will be liable for next year’s fees if they hold a license or CP as of October 1, 2016).  The FCC also noted that payment of regulatory fees is required before Incentive Auction participants can receive any proceeds resulting from the auction, although given the pace at which the auction is proceeding, that seems unlikely to be an issue until well into next year.

As expected, regulatory fees for broadcast stations generally increased over last year, and the total fees assessed rose from $339,844,000 in FY 2015 to $384,012,497 in FY 2016.  Although the fees assessed for “operational expenses” remained the same as last year, the FCC (in a move which some might find ironic) assessed an additional $44,168,497 to offset FCC “facilities reduction costs.”  According to the FCC, those costs reflect the one-time expense of reducing the FCC’s office footprint and/or moving the FCC to a new location, and are required by Congress to be collected.

Despite the increase in total fees, middle market TV stations caught a break, with fees for stations in markets 51-100 falling from $16,275 last year to $15,200 this year. Fees for TV stations in markets 1-10, on the other hand, took the biggest jump — going from $46,825 to $60,675.

As for radio, rates increased over last year for most, but not all, stations.  In light of comments asserting that the regulatory fees proposed by the FCC last May were too burdensome for small independent radio stations, the FCC reduced the fees in the two lowest population tiers for AM and FM broadcasters.  Stations located in markets with populations of more than 3 million, previously the highest of the radio fee tiers, have been split into two groups by the FCC: (1) markets of 3,000,000-6,000,000, and (2) markets over 6,000,000.  Charts showing the regulatory fees for the various TV and radio groups are below:

Broadcast Television and TV/FM Translators and Boosters

Markets 1-10 $60,675
Markets 11-25 $45,675
Markets 26-50 $30,525
Markets 51-100 $15,200
Remaining Markets $5,000
Construction Permits $5,000
Satellite TV Stations (all markets) $1,750
Low Power TV, Class A TV, TV/FM Translators & Boosters $455

 

Broadcast Radio (AM and Full Power FM)

Population AM Class A AM Class B AM Class C AM Class D FM Classes A, B1 & C3 FM Classes B, C, C0, C1 & C2
25,000 or fewer $990 $715 $620 $685 $1,075 $1,250
25,001-75,000 $1,475 $1,075 $925 $1,025 $1,625 $1,850
75,001-150,000 $2,200 $1,600 $1,375 $1,525 $2,400 $2,750
150,001-500,000 $3,300 $2,375 $2,075 $2,275 $3,600 $4,125
500,001-1,200,000 $5,500 $3,975 $3,450 $3,800 $6,000 $6,875
1,200,001-3,000,000 $8,250 $5,950 $5,175 $5,700 $9,000 $10,300
3,000,001-6,000,000 $11,000 $7,950 $6,900 $7,600 $12,000 $13,750
Greater than 6,000,000 $13,750 $9,950 $8,625 $9,500 $15,000 $17,175

In addition, initial AM Construction Permits were assessed a $620 regulatory fee per station for FY 2016, with initial FM Construction Permits drawing a regulatory fee of $1,075 per station.

Finally, the FCC rejected a proposal by the Puerto Rico Broadcasters Association to reduce regulatory fees for stations located in Puerto Rico by 30% to reflect the economic hardships being experienced there.  The FCC responded that individual stations in Puerto Rico may request waivers of regulatory fees if they believe their conditions warrant such relief, but the Commission was unwilling to reduce the fees on a blanket basis.