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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:

  • Government Shutdown and Other “Compelling Reasons” Prompt FCC to Reinstate NY Radio Station License
  • FCC Fines Virginia AM Station and Limits License Renewal to Two Years for Missing Quarterly Programs/Issues Lists
  • Virginia Station’s Late License Renewal Application Proves Costly

How Do You Measure a Year?  “Unique Circumstances” Lead to New York AM Station’s Reinstatement

In a Memorandum Opinion and Order and related Consent Decree, the Media Bureau agreed to reinstate the license of a Long Island, New York AM radio station that had been silent for nearly all of 2018 before going back on air without authorization in the midst of this year’s partial government shutdown.  The Media Bureau also approved an application to sell the station that had been pending since February.

Section 73.1745(a) of the FCC’s Rules requires a station to broadcast according to the “modes and power” specified in its license, and further requires licensees to seek special temporary authority (often referred to as an “STA”) when seeking to operate at variance from their license.  Even where a station obtains temporary authority from the FCC to remain silent, Section 312(g) of the Communications Act of 1934 provides that a broadcast station’s license automatically expires if it does not transmit a broadcast signal for 12 consecutive months.  The FCC does not consider unauthorized operation to be a “broadcast signal” for purposes of declaring a station’s operations to be resumed under Section 312(g).  Fortunately, the FCC has the discretion to reinstate a license that would otherwise be lost under Section 312(g) where it is appropriate as a matter of “equity and fairness.”

On January 25, 2018, the AM station went silent due to the loss of its licensed transmitter site.  Shortly thereafter, the licensee sought and was granted authority by the FCC to remain silent through August 16, 2018.  When that date arrived, the station continued to remain silent, but failed to apply for an extension of that authority.  On January 15, 2019, the licensee informed the FCC that it had resumed operations on an emergency antenna at low power, and it filed a request for special temporary authority to operate at those parameters.  The station’s request fell on deaf ears, however, as the federal government was shut down at that time due to a budget dispute.  The FCC did not resume normal operations until January 26, 2019, and did not grant the STA request until February 1. Continue reading →

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[Editor’s Note: Pillsbury will be conducting a December 3, 2019 webinar for broadcasters on the new overtime regulations sponsored by the National Alliance of State Broadcasters Associations.  Details can be found here.]

On September 24, 2019, the U.S. Department of Labor published final regulations under the Fair Labor Standards Act that raised the minimum salary level necessary to be exempt from federal overtime rules under the Act by almost 50%.  While the changes affect all businesses subject to the FLSA, broadcasters in particular may feel the impact of the changes given the staffing models used by many TV and radio stations.  The new requirements will go into effect on January 1, 2020, and broadcasters should take steps to adapt to, and minimize the impact of, those changes prior to that deadline.

The Fair Labor Standards Act (“FLSA”) is the federal law governing wage and hour requirements for employees.  Pursuant to the FLSA, employers must pay employees a minimum wage and compensate them for overtime at 1.5 times their regular rate of pay for any time worked exceeding 40 hours in a workweek unless those employees are exempt from the requirement.  On September 24, 2019, the Department of Labor issued a Final Rule that increased the minimum salary threshold for certain types of employees to be exempt from the FLSA’s overtime rules.  As a result, many currently exempt employees whose salaries are below the new thresholds will soon be eligible for overtime pay.  The White House projects the change will impact an estimated 1.3 million previously-exempt employees.

Although the FLSA applies to almost all employers, the law contains exemptions for certain types of employees at small-market broadcast stations.  The Final Rule does not affect these broadcast industry-specific exemptions, but will affect many other currently exempt employees in the broadcast industry who, unless they receive salary raises, will soon become eligible for overtime pay.

This Advisory only addresses federal law.  Some state laws impose stricter standards than federal law as to which employees are exempt from overtime pay.  Employers must ensure that they also meet the requirements of any applicable state or local employment laws.

Overview

The FLSA requires employers to pay non-exempt employees an overtime rate of 1.5 times their regular rate for all hours worked over 40 hours per workweek.  However, the FLSA exempts from its overtime rules certain classes of employees who are paid on a salary basis and who also meet specific “white collar” duties tests.  The Department of Labor’s Final Rule increases the minimum salary required for these classes of employees to be deemed exempt from the FLSA’s overtime rules, but does not alter the duties tests for those exemptions. Continue reading →

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Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in Arkansas, Louisiana, and Mississippi must begin airing pre-filing license renewal announcements on December 1, 2019. 

Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in Arkansas, Louisiana, and Mississippi must begin airing pre-filing license renewal announcements on December 1, 2019.  License renewal applications for these stations, and for in-state FM translator stations, are due by February 1, 2020.  Note that because this filing deadline falls on a weekend, submission of the license renewal application may be made on February 3.  However, the post-filing license renewal announcement for that day (discussed below) must still be made on February 1.

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 December 1.  The remaining pre-filing announcements must air once a day on December 16, January 1, and January 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 June 1, 2020.  [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 June 1, 2020.  We must file an application for renewal with the FCC by February 1, 2020.  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 FCC by May 1, 2020.

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, www.fcc.gov.

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 February 1 and February 16, 2020, as well as March 1, March 16, April 1, and April 16, 2020.  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 June 1, 2020.

Our license will expire on June 1, 2020.  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 FCC by May 1, 2020.

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, www.fcc.gov.

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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.

December 1 is the deadline for broadcast stations licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont 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 submit their two most recent EEO Public File Reports along with FCC Form 2100, Schedule 396 as part of their license renewal application submissions due on December 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.  As discussed below, nonexempt SEUs must submit to the FCC their two most recent Annual EEO Public File Reports when they file their license renewal applications.

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 →