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In a Public Notice released this afternoon, the FCC waived certain quarterly Transition Progress Report requirements for stations in Phases 3, 5, and 8 of the post-auction repack process.

As subscribers to Pillsbury’s legal advisories are aware, stations that were assigned a new channel as part of the post-Incentive Auction repacking process must file Transition Progress Reports on FCC Form 2100, Schedule 387, at various times throughout the transition process.  Along with other reports closer to phase completion, stations must file a report every quarter (“Quarterly Report”) and a report ten weeks out from a station’s phase completion date (“10-Week Report”).

However, as many observers have pointed out, the deadlines for the Quarterly Report and 10-Week Report often fall within days of each other, meaning that a transitioning station would have to expend time and energy on filing one report, only to have to file a near-duplicate report a few days later.

To address this inefficiency, in today’s Public Notice the FCC waived the filing of the April 10 Quarterly Report for Phase 3 stations, the July 10 Quarterly Report for Phase 5 stations, and the January 10, 2020 Quarterly Report for Phase 8 stations.  These stations will still be required to timely file their 10-Week Reports.

This late reprieve may not offer much solace for Phase 3 stations that were already set for their dual Transition Progress Report filings on April 10 and April 12, but better late than never.

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ Public Inspection Files by April 10, 2019, reflecting programming aired during the months of January, February and March 2019.

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 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. Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by April 10, 2019, reflecting information for the months of January, February and March 2019.

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, 2019, covering the period from January 1, 2019 through March 31, 2019. Continue reading →

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Each full power and Class A TV station being repacked must file its next Transition Progress Report with the FCC by April 10, 2019.  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 2019.[1]

In a March 28, 2019 Public Notice, the FCC waived the quarterly Transition Progress Report requirement with regard to Phase 3 stations for the report due on April 10, 2019, with regard to Phase 5 stations for the report due on July 10, 2019, and with regard to Phase 8 stations for the report due on January 10, 2020.  In all three cases, the quarterly deadline falls within days of the deadline for those stations’ 10-Week Report (which stations must continue to timely file), making the quarterly report redundant.  See infra.

Following the 2017 broadcast television spectrum incentive auction, the FCC imposed a requirement that television stations transitioning to a new channel in the repack file a quarterly Transition Progress Report by the 10th of January, April, July, and October of each year.  The first such report was due on October 10, 2017.

The next quarterly Transition Progress Report must be filed with the FCC by April 10, 2019, and must reflect the progress made by the reporting station in constructing facilities on its newly-assigned channel and in terminating operations on its current channel during the period from January 1 through March 31, 2019.  The Report must be filed electronically on FCC Form 2100, Schedule 387 via the FCC’s Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.

The Transition Progress Report form includes a number of baseline questions, such as whether a station needs to conduct a structural analysis of its tower, obtain any non-FCC permits or FAA Determinations of No Hazard, or order specific types of equipment to complete the transition.  Depending on a station’s response to a question, the electronic form then asks for additional information regarding the steps the station has taken towards completing the required item.  Ultimately, the form requires each station to indicate whether it anticipates that it will meet the construction deadline for its transition phase. Continue reading →

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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:

  • Oregon LPFM Station Warned Over Emergency Alert System Violations
  • Pennsylvania Man Accused of Interfering With Local Fire Department Operations
  • Earth Station Transmission Problems Lead to Warning Against Florida Wireless Licensee

This is Not a Test: Low Power FM Station Warned Over Emergency Alert Violations

The FCC’s Enforcement Bureau presented a Notice of Violation (“NOV”) to the licensee of a Portland, Oregon low-power FM radio station for a number of violations relating to the Emergency Alert System. The licensee is a local cultural community center that broadcasts Russian-language programming to the area’s Eastern European community.

The Emergency Alert System (“EAS”) is a nationwide warning system that allows authorized state and national public agencies to alert the public about urgent situations, including natural disasters and other incidents that require immediate attention.  The EAS is jointly operated by the FCC, the Federal Emergency Management Agency, and the National Oceanographic Atmospheric Administration.  Local radio stations make up a vital component of the system by monitoring authorized sources for alerts and rapidly relaying these emergency messages.  Such stations are referred to as “EAS participants.”  Each state is responsible for creating a state EAS plan, which includes designating in-state stations that other stations must constantly monitor for alerts.

Section 11.15 of the FCC’s Rules requires that a copy of the EAS Operating Handbook be located “at normal duty stations or EAS equipment locations when an operator is required to be on duty.”  Section 11 of the Rules also requires EAS participants to monitor two sources, which are specified in each state’s respective EAS plan.

In February 2019, Enforcement Bureau agents inspected the Portland station and discovered two violations of the EAS Rules.  According to the NOV, the station was unable to produce its copy of the EAS Operating Handbook.  The agents also discovered a monitoring error.  The most recent Oregon State Emergency Alert Plan required the station to monitor two specific Portland area FM stations.  During the inspection, the agents found the LPFM station had instead been monitoring a different station.

The licensee has 20 days to respond to the NOV.  In its response, it must provide: (1) an explanation of each violation; (2) a description of the licensee’s corrective actions; and (3) a timeline for completion of these actions.  The FCC will then consider the licensee’s responses and all relevant information to determine what, if any, enforcement action it will take against the licensee for the violations.

State Your Emergency: FCC Accuses Pennsylvania Man of Interfering With Safety Services

In a Notice of Unlicensed Operation and Notification of Harmful Interference (“Notice”), the FCC accused a man of using a two-way radio to cause harmful interference to a local emergency services operation by making unauthorized transmissions on a frequency reserved for public safety.

As we discussed last year, Chairman Pai has noted that protecting public safety and emergency response communications is of the utmost importance.  The Enforcement Bureau has recently responded aggressively to interference complaints from first responders and emergency service departments, including issuing multi-thousand dollar fines.

Section 301 of the Communications Act prohibits the transmission of radio signals without prior FCC authorization.  Section 90.20 of the Rules establishes the requirements for obtaining authorization to use public safety frequencies.  The FCC reserves certain bands for first responders as “public safety spectrum.” Unauthorized transmissions on such bands can pose a threat to first responders and the general public by interfering with local emergency service operations, including police, EMS, or in this case, the fire department.

The Enforcement Bureau began its investigation after being contacted by an eastern Pennsylvania county’s Emergency Management Association.  According to the complaint, harmful interference and unauthorized transmissions were occurring on 155.190 MHz, a frequency used for local fire department communications.  The Enforcement Bureau identified a local individual as the source of the interfering transmissions.

According to the Notice, the individual admitted to operating a VHF-UHF two-way radio at 155.190 MHz, despite not being authorized to operate on that frequency.

The individual was given 10 days to respond to the Notice.  In his response, the individual must explain the steps he is taking to avoid operating on unauthorized frequencies and causing harmful interference.  It will then be up to the FCC to determine whether further enforcement action, including fines or other sanctions, is appropriate. Continue reading →

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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.

April 1, 2019 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 also electronically file an EEO Mid-Term Report on FCC Form 397 by April 1.[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, April 1, 2019 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 April 1, 2018 through March 31, 2019.  However, Nonexempt SEUs may “cut off” the reporting period up to ten days before March 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 April 1, 2018 through March 21, 2019 for this year’s report (cutting it off up to ten days prior to March 31, 2019), then next year, the Nonexempt SEU must use a period beginning March 22, 2019 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 Rule requires 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 Delaware, Indiana, Kentucky, Pennsylvania and Tennessee must earn at least the required minimum number of Menu Option credits during the two year “segment” between April 1, 2018 and March 31, 2020, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt radio station SEUs licensed to communities in Texas must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between April 1, 2017 and March 31, 2019, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Texas must earn at least the required minimum number of Menu Option credits during the two-year “segment” between April 1, 2018 and March 31, 2020, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania and Tennessee must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between April 1, 2017 and March 31, 2019, as well as during the previous two-year “segments” of their license terms.

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Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in the District of Columbia, Maryland, Virginia, and West Virginia must begin airing pre-filing license renewal announcements on April 1, 2019.  License renewal applications for these stations, and for in-state FM translator stations, are due by June 1, 2019.

Full power commercial and noncommercial radio and LPFM stations must air four pre-filing announcements alerting the public to the upcoming renewal application filing.  As a result, these radio stations must air the first pre-filing renewal announcement on April 1.  The remaining pre-filing announcements must air once a day on April 16, May 1, and May 16, for a total of four announcements.  At least two of these four announcements must air between 7:00 am and 9:00 am and/or 4:00 pm and 6:00 pm.

The text of the pre-filing announcement is as follows:

On [date of last renewal grant], [call letters] was granted a license by the Federal Communications Commission to serve the public interest as a public trustee until October 1, 2019.  [Stations that have not received a renewal grant since the filing of their previous renewal application should modify the foregoing to read: “(Call letters) is licensed by the Federal Communications Commission to serve the public interest as a public trustee.”]

Our license will expire on October 1, 2019.  We must file an application for renewal with the FCC by June 1, 2019.  When filed, a copy of this application will be available for public inspection at www.fcc.gov.  It contains information concerning this station’s performance during the last eight years [or other period of time covered by the application, if the station’s license term was not a standard eight-year license term].  Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this station has operated in the public interest should file comments and petitions with the Commission by September 1, 2019.

Further information concerning the FCC’s broadcast license renewal process is available at [address of location of the station][1] or may be obtained from the FCC, Washington, DC 20554.

If a station misses airing an announcement, it should broadcast a make-up announcement as soon as possible and contact counsel to further address the situation.  Special rules apply to noncommercial educational stations that do not normally operate during any month when their announcements would otherwise be due to air, as well as to other silent stations.  These stations should also contact counsel regarding how to give the required public notice.

Post-Filing License Renewal Announcements

Once the license renewal application has been filed, full power commercial and noncommercial radio and LPFM stations must broadcast six post-filing renewal announcements.  These announcements must air, once per day, on June 1, June 16, July 1, July 16, August 1, and August 16, 2019.  At least three of these announcements must air between 7:00 am and 9:00 am and/or 4:00 pm and 6:00 pm.  At least one announcement must air in each of the following time periods: between 9:00 am and noon, between noon and 4:00 pm, and between 7:00 pm and midnight.

The text of the post-filing announcement is as follows:

On [date of last renewal grant], [call letters] was granted a license by the Federal Communications Commission to serve the public interest as a public trustee until October 1, 2019.

Our license will expire on October 1, 2019.  We have filed an application for renewal with the FCC.

A copy of this application is available for public inspection at www.fcc.gov.  It contains information concerning this station’s performance during the last eight years [or such other period of time covered by the application, if the station’s license term was other than a standard eight-year term].

Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this station has operated in the public interest should file comments and petitions with the Commission by September 1, 2019.

Further information concerning the FCC’s broadcast license renewal process is available at [address of location of the station] or may be obtained from the FCC, Washington, DC 20554. Continue reading →