Each full power and Class A TV station being repacked must file its next Transition Progress Report with the FCC by April 10, 2018. The Report must detail the progress a station has made in constructing facilities on its newly assigned channel and in terminating operations on its current channel during the months of January, February, and March 2018.
The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by April 10, 2018, reflecting programming aired during the months of January, February, and March 2018.
Statutory and Regulatory Requirements
As a result of the Children’s Television Act of 1990 (“Act”) and the FCC rules adopted under the Act, full power and Class A television stations are required, among other things, to: (1) limit the amount of commercial matter aired during programs originally produced and broadcast for an audience of children 12 years of age and under, and (2) air programming responsive to the educational and informational needs of children 16 years of age and under.
These two obligations, in turn, require broadcasters to comply with two paperwork requirements. Specifically, stations must: (1) place in their public inspection file one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television, and (2) submit FCC Form 398, which requests information regarding the educational and informational programming the station has aired for children 16 years of age and under. Form 398 must be filed electronically with the FCC. The FCC automatically places the electronically filed Form 398 filings into the respective station’s online public inspection file. However, each station should confirm that has occurred to ensure that its public inspection file is complete. The base fine for noncompliance with the requirements of the FCC’s Children’s Television Programming Rule is $10,000.
Broadcasters must file their reports via the Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.
Noncommercial Educational Television Stations
Because noncommercial educational television stations are precluded from airing commercials, the commercial limitation rules do not apply to such stations. Accordingly, noncommercial television stations have no obligation to place commercial limits documentation in their public inspection files. Similarly, though noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and under, they do not need to complete FCC Form 398. They must, however, maintain records of their own in the event their performance is challenged at license renewal time. In the face of such a challenge, a noncommercial station will be required to have documentation available that demonstrates its efforts to meet the needs of children.
Commercial Television Stations
Commercial Limitations
The FCC’s rules require that stations limit the amount of “commercial matter” appearing in children’s programs to 12 minutes per clock hour on weekdays and 10.5 minutes per clock hour on the weekend. In addition to commercial spots, website addresses displayed during children’s programming and promotional material must comply with a four-part test or they will be considered “commercial matter” and counted against the commercial time limits. In addition, the content of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations. Program promos also qualify as “commercial matter” unless they promote (i) children’s educational/informational programming, or (ii) other age-appropriate programming appearing on the same channel. Licensees must prepare supporting documents to demonstrate compliance with these limits on a quarterly basis.
For commercial stations, proof of compliance with these commercial limitations must be placed in the public inspection file by the tenth day of the calendar quarter following the quarter during which the commercials were aired. Consequently, this proof of compliance should be placed in your public inspection file by April 10, 2018, covering programming aired during the months of January, February, and March 2018. Continue reading →
The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by April 10, 2018, reflecting information for the months of January, February, and March 2018.
Content of the Quarterly List
The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station. The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.
To demonstrate a station’s compliance with this public interest obligation, the FCC requires the station to maintain and place in the public inspection file a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.
Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations. The lists also provide important support for the certification of Class A television station compliance discussed below. We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness. Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during the license term. Stations should include in the Quarterly Lists as much issue-responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs. Taking extra time now to provide a thorough Quarterly List will help reduce risk at license renewal time.
It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their public inspection file. The FCC’s base fine for missing Quarterly Lists is $10,000.
Preparation of the Quarterly List
The Quarterly Lists are required to be placed in the public inspection file by January 10, April 10, July 10, and October 10 of each year. The next Quarterly List is required to be placed in stations’ public inspection files by April 10, 2018, covering the period from January 1, 2018 through March 31, 2018. Continue reading →
Yesterday’s enactment of the Consolidated Appropriations Act, 2018 (feel free to read it, it’s only 2,232 pages) was welcomed by broadcasters. If you’ve been following the trade press, you’ll know that’s largely because it not only added a billion dollars to the FCC’s fund for reimbursing broadcasters displaced by the spectrum repack, but for the first time made FM, LPTV and TV Translator stations eligible for repack reimbursement funds.
This past Friday, the US Court of Appeals for the District of Columbia Circuit released its long-awaited decision in ACA International et al. v. FCC, a case involving the Telephone Consumer Protection Act (TCPA) that has significant implications for any business contacting consumers by telephone or text. The decision arises out of challenges to an omnibus Declaratory Ruling and Order released by the FCC in July of 2015, which itself was responding to requests for exemption from, or clarification of, the FCC’s TCPA rules, especially the more stringent FCC rules that took effect on October 16, 2013. In the Declaratory Ruling and Order, the FCC adopted a very expansive interpretation of the TCPA, exacerbating, rather than alleviating, long-standing litigation risks that many companies face under the TCPA.
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.
April 1, 2018 is the deadline for broadcast stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas 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 April 2 (while the mid-point of the license renewal term for stations in the states listed below is April 1, because that date falls on a weekend, submission of FCC Form 397 may be made by April 2, 2018.)
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. Continue reading →
People often conflate the term “FCC lawyer” with “Communications Lawyer,” thinking of an FCC Lawyer as someone who represents clients solely with regard to interactions with the FCC and its rules. A Communications Lawyer, however, represents communications clients in a variety of venues and on a variety of issues whose common thread is that they affect media or telecom companies in a unique or disproportionate way. Communications Lawyers therefore find themselves not just before the FCC, but handling complex transactions, litigation, and legislative matters where the harm or benefit has little to do with the FCC, and much to do with how the action impacts a media or telecom client.
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 Proposes Fine Against Licensee of South Carolina Stations for Failure to Maintain Complete Public Files
In two separate Notices of Apparent Liability for Forfeiture (“NALs”) released on the same day, the FCC found two commonly owned radio stations apparently liable for repeated violations of its public inspection file rule.
Section 73.3526 of the FCC’s Rules requires stations to maintain a public inspection file that includes various documents and items related to the broadcaster’s operations. For example, subsection 73.3526(e)(11) requires TV stations to place in their public inspection file Quarterly Issues/Programs Lists describing the “programs that have provided the station’s most significant treatment of community issues during the preceding three month period.”
In their respective license renewal applications, the stations disclosed that they had failed to locate numerous Quarterly Issues/Programs Lists from the 2003 to 2010 time period. According to the licensee, the gaps in its reporting were due to several personnel changes at all levels of the stations as well as computer and software changes made over the past ten years.
Between the two NALs, the FCC found a total of 38 missing Lists (21 for one station, and 17 for the other station), which it considered a “pattern of abuse.” Pursuant to the FCC’s forfeiture policies and Section 1.80(b)(4) of its Rules, the base forfeiture for a violation of Section 73.3526 is $10,000. The FCC can adjust the forfeiture upwards or downwards depending on the circumstances of the violation. Here, the FCC proposed a $12,000 forfeiture in response to the station with 21 missing Lists and a $10,000 forfeiture for the station with 17 missing Lists. Visit here to learn more about the FCC’s Quarterly Issues/Programs List requirements. For information on maintaining a public inspection file, check out Pillsbury’s advisory on the topic.
“Ad” Nauseam: FCC Resolves Investigation Into Underwriting Rules Violation
The FCC entered into a Consent Decree with the licensee of two noncommercial educational (“NCE”) radio stations in Arizona and California after receiving complaints that the stations aired commercial advertising in violation of the Communications Act and the FCC’s Rules (together, the “Underwriting Laws”).
Section 399B of the Communications Act of 1934 prohibits noncommercial stations from making their facilities “available to any person for the broadcasting of any advertisement.” Section 73.503(d) of the FCC’s Rules prohibits an NCE station from making promotional announcements “on behalf of for profit entities” in exchange for any benefit or payment. Such stations may, however, broadcast “underwriting announcements” that identify but do not “promote” station donors. Such identifications may not, among other things, include product descriptions, price comparisons, or calls to action on behalf of a for-profit underwriter. The FCC recognizes that it is “at times difficult to distinguish between language that promotes versus that which merely identifies the underwriter,” and expects licensees to exercise good faith judgment in their underwriting messages.
In response to complaints from an individual who alleged that the stations had repeatedly violated the Underwriting Laws, the FCC sent the licensee multiple letters of inquiry regarding questionable underwriting messages between August 2016 and March 2017. According to the FCC, the licensee did not dispute many of the facts in the letters, and the parties entered into the Consent Decree shortly thereafter. Under the Consent Decree, the licensee (1) admitted that it violated the Underwriting Laws; (2) is prohibited from airing any underwriting announcement on behalf of a for-profit entity for one year; (3) must implement a compliance plan; and (4) must pay a $115,000 civil penalty.
Brooklyn Bitcoin Mining Operation Draws FCC Ire Over Harmful Interference
The FCC issued a Notification of Harmful Interference (“Notification”) to an individual it found was operating Bitcoin mining hardware in his Brooklyn, New York home.
Section 15 of the FCC’s Rules regulates the use of unlicensed equipment that emits radio frequency energy (“RF devices”), a broad category of equipment that includes many personal electronics, Bluetooth and WiFi-enabled devices, and even most modern light fixtures. Such devices must not interrupt or seriously degrade an authorized radio communication service. The FCC’s rules require a device user to cease operation if notified by the FCC that the device is causing harmful interference. Continue reading →
This Broadcast Station Advisory is directed to radio and television stations in the areas noted above, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.
February 1 is the deadline for broadcast stations licensed to communities in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma 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 February 1, 2018.
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 with 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 midpoint 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, February 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 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 February 1, 2017 through January 31, 2018. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before January 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 February 1, 2017 through January 21, 2018 for this year’s report (cutting it off up to ten days prior to January 31, 2017), then next year, the Nonexempt SEU must use a period beginning January 22, 2018 for its 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.
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:
Deadline for Filing EEO Mid-Term Report (FCC Form 397) for Radio Stations Licensed to Communities in New Jersey and New York and Television Stations Licensed to Communities in Kansas, Nebraska, and Oklahoma.
February 1, 2018 is the mid-point in the license renewal term of radio stations licensed to communities in New Jersey and New York and television stations licensed to communities in Kansas, Nebraska, and Oklahoma. If a station in one of these respective groups belongs to a radio SEU with 11 or more full-time employees or a television SEU with five or more full-time employees, it must electronically file the Form 397 Report by February 1. Licensees subject to this reporting requirement must attach copies of the SEU’s two most recent Annual EEO Public File Reports to their FCC Form 397 Report.
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 duly 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 EEO Public File Report Deadline.
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:
LA Business Stripped of Licenses for Alleged Misrepresentations About Drug Conviction
In a rare Order of Revocation, the FCC revoked all of a Los Angeles communication equipment provider’s licenses after the licensee failed to respond to an inquiry into whether its manager lied about a 1992 felony drug conviction in dozens of Commission filings.
The Order rescinds the licensee’s eleven Private Land Mobile Radio (“PLMR”) and microwave station licenses and dismisses all of the licensee’s pending modification and license renewal applications.
Section 312(a) of the Communications Act authorizes the FCC to revoke a license “for false statements knowingly made … in the application” or when it finds that conditions “warrant it in refusing to grant a license[.]” Pursuant to Section 1.17(a)(1) of the FCC’s Rules, no person may “intentionally provide material factual information that is incorrect or intentionally omit material information that is necessary to prevent any material factual statement that is made from being incorrect or misleading.” The FCC heavily weighs any misrepresentation or lack of candor when it determines whether a party is fit to become or remain a licensee.
The FCC began looking into the licensee’s fitness in 2015, when a different Los Angeles business alleged that the licensee had knowingly lied on an at least one FCC application when it replied “No” to a question that asked whether any of the licensee’s controlling parties had ever been convicted of a felony. As it turns out, the manager (who is also the licensee’s sole shareholder) had been convicted of possession for sale of cocaine and sentenced to serve two years in California State Prison over two decades ago. The FCC would later learn that the licensee had misrepresented the manager’s criminal history in at least 50 separate FCC filings.
In response, the FCC sent the licensee a Letter of Inquiry (“LOI”) seeking information about the manager’s role with the company and any criminal history. When the licensee did not respond to the LOI, the FCC commenced a proceeding with an Administrative Law Judge (“ALJ”) to determine whether the licensee had engaged in misrepresentation before the Commission, whether it was qualified to remain a licensee, and what the FCC should do with the licensee’s various outstanding applications. When the licensee failed to respond to the ALJ’s request to file a written appearance, and failed to appear for a status conference, the ALJ ordered a hearing, which the licensee also ignored.
The FCC determined that the company was unqualified to remain a Commission licensee, revoked all of its licenses, and denied with prejudice all of the licensee’s pending applications.
Light’s Out: FCC Issues Citation to Car Dealership That Fails to Address Harmful Interference
The FCC issued a citation to a North Dakota car dealership for its continued use of outdoor lighting that interferes with a wireless service provider’s nearby cell site.
Pursuant to Section 302(a) of the Communications Act, the FCC regulates all radio frequency energy-emitting devices (“RF devices”) that are capable of causing “harmful interference to radio communications.” Section 15 of the FCC’s Rules regulates intentional and unintentional radiators of RF emissions, ranging from garage door openers to sophisticated computer components. Section 18 regulates equipment that generates or uses RF energy for industrial, scientific, and medical (“ISM”) purposes. If ISM equipment causes harmful interference with an authorized radio service, Section 18.111(b) of the Rules requires its operator to take “whatever steps may be necessary to eliminate the interference.” Similarly, Section 18.115(a) requires the operator to “promptly take appropriate measures to correct the problem.” Continue reading →
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