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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:

  • Alaskan Licensee Faces Fines Over FM Station Silences
  • Enforcement Bureau Issues Consent Decrees for LED Billboard Violations
  • Tower Owner Hit for Unlit Structure

Cold Justice: Media Bureau Responds to Alaska Licensee’s Applications With Multiple Fines

The FCC’s Media Bureau issued two Notices of Apparent Liability (“NAL”) to an Alaskan licensee for repeated unauthorized silences and reduced power operations on its FM station and FM translator stations.  At the same time, the Media Bureau found an assignment application for one of the translators to be defective, and renewed the FM station’s license for only an abbreviated two-year term.

The FCC sets minimum operating schedule requirements for broadcast stations, and requires a station to transmit according to the “modes and power” specified by its license.  A station that expects to remain off-air for more than 30 days must request permission from the FCC.  However, Section 312(g) of the Communications Act of 1934 (“Act”), provides that a station’s license automatically expires if the station “fails to transmit broadcast signals for any consecutive 12-month period.”

In this case, the licensee originally applied for renewal of an FM license and three FM translator licenses in 2013.  The licensee also filed an assignment application to sell one of the translators up for renewal.

Several months later, another Alaskan broadcaster filed informal objections against all of the applications, alleging, among other things, that: (1) the applicant was delinquent on a debt from a previous enforcement action; (2) the applicant had failed to pay application fees for the translator license renewal applications; (3) all of the stations had been operating at low power or were off-air for extended periods of time (some for as long as 12 consecutive months); and (4) the assignment application was defective.  The objecting broadcaster also claimed the applicant lacked the character qualifications to hold a license.

The Media Bureau quickly dismissed various other claims made by the objecting broadcaster, including that (1) the licensee had not complied with the Emergency Alert System rules; (2) the licensee had violated the main studio rule; (3) the licensee had engaged in an unauthorized transfer of control; and (4) the proposed assignee did not actually exist.

In sorting out the remaining objections, the Media Bureau first determined that the applicant was not delinquent in its payments to the FCC.  Though the licensee had an unpaid Notice of Apparent Liability for Forfeiture from 2009, a licensee is not indebted to the FCC until (1) the fine has been partially paid, or (2) a court has ordered payment.  According to the FCC, the forfeiture never became payable because the license at the heart of the enforcement action had been cancelled shortly after issuance of the NAL and the Media Bureau therefore never issued a Forfeiture Order.

The Media Bureau did, however, find that the licensee had failed to pay license renewal application fees for the translator stations.  Though the applicant claimed that the translators in question were noncommercial educational (“NCE”) broadcast stations and thus exempt from the fee, the Media Bureau determined that the stations being retransmitted by the translators were commercial stations at the time of filing, and thus required a fee.  The Media Bureau also dismissed the assignment application, finding it procedurally defective because a single individual signed for both the assignor and assignee, in contravention of the FCC’s Rules.  Finally, the Media Bureau rejected the character claims, determining that the objecting licensee had failed to make a prima facie case for its claims of false certifications and false statements to the FCC.

Regarding the issue of whether the stations were silent or operated at variance from their licenses, the Media Bureau found that all of the stations were repeatedly silent without authorization for extended periods of time.  Although several of these silent periods lasted 364 days, none of the stations remained silent for the continuous 12-month period required for automatic expiration.  The Media Bureau did, however, find that the FM station had operated at reduced power for much of the most recent license period and beyond without authorization to do so.

Section 309(k) of the Act provides several criteria the FCC must consider when reviewing license renewal applications. The FCC will grant such an application if: (1) “the station has served the public interest, convenience, and necessity;” (2) the licensee has not committed any serious violations of the Act or the FCC’s Rules; and (3) the licensee has not committed any other violations of the Act or the FCC’s Rules that, taken together, would indicate a pattern of abuse.

Though the Media Bureau granted all of the translator license renewal applications, it proposed a $10,000 fine for discontinuing operations on the translator stations on five different occasions, a $20,000 fine for the FM station’s operation at reduced power without authorization, and mandated that the licensee pay the translator stations’ missing application fees along with a 25% late payment penalty.

The Media Bureau proceeded to note that the licensee’s failure to seek or maintain authorization for many of the FM station’s silent and reduced power periods constituted a “pattern of abuse” of the FCC’s Rules and that the FM station’s operational record failed to serve the “public interest, convenience, and necessity” during the most recent license term.  As a result, the Media Bureau granted a short-term renewal of the FM station’s license, providing only a two-year renewal rather than the standard eight year license term.

LED Astray: FCC Settles Multiple Investigations into Noncompliant Digital Billboards

The FCC entered into four separate consent decrees with LED sign manufacturers and marketers in the course of a single week after investigating whether the companies violated its equipment authorization rules.

Section 302(b) of the Communications Act restricts the manufacture, import, sale, or shipment of devices capable of causing harmful interference to radio communications.  To this end, the FCC regulates devices that emit radio frequency energy (“RF device”), including those that unintentionally generate signals that can interfere with other spectrum users.  RF devices must adhere to strict technical standards and various labeling and marketing requirements. Continue reading →

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This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider that provided service to at least one viewer outside the station’s local service area during 2017. These stations may be eligible to file royalty claims for compensation with the United States Copyright Royalty Board. These filings are due by July 31, 2018.

Under the federal Copyright Act, cable systems and satellite operators must pay license royalties to carry distant TV signals on their systems. Ultimately, the Copyright Royalty Board divides the royalties among those copyright owners who claim shares of the royalty fund. Stations that do not file claims by the deadline will not be able to collect royalties for carriage of their signals during 2017.

In order to file a cable royalty claim, a television station must have aired locally-produced programming of its own and had its signal carried outside of its local service area by at least one cable system in 2017. Television stations with locally-produced programming whose signals were delivered to subscribers located outside the station’s Designated Market Area in 2017 by a satellite provider are also eligible to file royalty claims. A station’s distant signal status should be evaluated and confirmed by communications counsel.

Both the cable and satellite claim forms may be filed electronically or in paper form. Paper forms may be downloaded from https://www.crb.gov/cable; however, with the recent introduction of the Copyright Royalty Board’s new online filing system, eCRB, claimants are strongly encouraged to file claims online. Prior to filing electronically, claimants or their authorized representatives must register for an eCRB account at https://app.crb.gov. To submit claims, stations are required to supply the name and address for the filer and for the copyright owner, and must provide a general statement as to the nature of the copyrighted work (e.g., local news, sports broadcasts, specials, or other station-produced programming). Claimants should keep copies of all submissions and confirmations of delivery, including certified mail receipts.

Those filing paper forms should be aware that detailed rules as to how the claims must be addressed and delivered apply. Claims that are hand-delivered by a local Washington, D.C. commercial courier must be delivered between 8:30 am and 5:30 pm (those hand-delivered by a private party must arrive by 5:00 pm). Claims may be sent by certified mail if they are properly addressed, postmarked by July 31, 2018, and include sufficient postage. Claims filed via eCRB must be submitted by 11:59 pm (EDT) on July 31. The Copyright Royalty Board will reject any claim filed prior to July 1, 2018 or after the deadline. Overnight delivery services such as Federal Express cannot be used. Stations filing paper claims should verify the proper procedures with communications counsel.

Please contact any of the group’s attorneys for assistance in determining whether your station qualifies to make a claim and in filing the claim itself.

A PDF version of this article can be found here.

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This Pillsbury Broadcast Station Advisory is directed to radio and television stations in the areas noted above, and highlights upcoming deadlines for compliance with the FCC’s EEO Rule.

August 1 is the deadline for broadcast stations licensed to communities in California, Illinois, North Carolina, South Carolina, and Wisconsin 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 an EEO Mid-Term Report on FCC Form 397 by August 1.

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.

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 when they file their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with 11 or more full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the mid-point of their eight-year license term along with FCC Form 397—the Broadcast Mid-Term EEO Report.

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

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: http://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, August 1, 2018 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 Rule, 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 otherwise 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 August 1, 2017 through July 31, 2018. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before July 31, 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 August 1, 2017 through July 21, 2018 for this year’s report (cutting it off up to ten days prior to July 31, 2018), then next year, the Nonexempt SEU must use a period beginning July 22, 2018 for its report. Continue reading →