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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:

  • Rebroadcast Changes Lead to FM Translator Station Fine
  • Delinquent Regulatory Fees Threaten AM Station License
  • Procedural Missteps Lead to Dismissal of Stations’ Applications in Administrative Proceeding

North Carolina FM Translator’s Primary Station Change Leads to Fine

Following a Notice of Apparent Liability issued last year, the FCC recently issued a Forfeiture Order fining a North Carolina FM Translator station $2,000 for changing the station it rebroadcasts without notifying the Commission.  However, in an oversight by the FCC, the Order was issued in error as the station had already paid the outstanding fine.

Sections 74.1232(b) and 74.1251(c) of the FCC’s Rules set forth eligibility, licensing, and other technical rules applicable to FM translator stations.  Under Section 74.1232(b), an entity may not hold multiple FM translator licenses to retransmit the same signal to substantially the same area without showing a “technical need” for an additional station.  Section 74.1251(c) requires a translator licensee to notify the FCC in writing if it changes the primary station it rebroadcasts.

The Media Bureau’s investigation began in response to a Petition for Reconsideration challenging the grant of a construction permit for the translator station.  The licensee originally applied for the permit in July 2018, but amended its application to change its primary station.  The Bureau granted the amended application the following month.

In its filing, the petitioner acknowledged that it was not a party to the application proceeding, but argued that it was effectively precluded from participating because the FCC granted the application only ten days after the amended application was placed on public notice.  The Commission ultimately dismissed the challenge, determining that ten days is a reasonable amount of time to prepare and file a pleading and further concluded that the petitioner had sufficient notice of the amended application.  The Commission also found that reconsideration of the application grant is not required in the public interest under the FCC’s rules.

In April 2019, the station filed a license application for the now-constructed station, which the Commission granted shortly thereafter.  In response, the petitioner filed a new petition contesting the grant of the license itself claiming that (1) there was no “technical need” for the translator, such as issues with poor signal quality, and (2) the translator was not operating as authorized.  This petition prompted the FCC’s review of the station’s rebroadcasting practices.

In December 2019, the FCC issued a Memorandum Opinion and Order and Notice of Apparent Liability that again rejected the petitioner’s argument that there was no “technical need” for the translator station, noting that this issue is considered at the permitting, not the licensing phase, and that a showing of technical need is only required when the same party proposes to own more than one translator rebroadcasting the same signal in substantially the same area.

The FCC did, however, conclude that the station violated the FCC’s rules by rebroadcasting a station not specified in its authorization without notifying the FCC.  The FCC found that for roughly a month, the translator rebroadcast a nearby AM station, rather than the FM station specified in its license.

Despite these violations, the FCC concluded that permittees are entitled to a “high degree of protection” and a presumption that the Commission’s public interest determination in granting the permit should remain in effect unless it is shown that the station’s operation would go against the public interest.  As a result, the Commission dismissed the license challenge and instead proposed a fine to resolve the violations.

The Notice of Apparent Liability proposed a $2,000 fine.  Although the base fine amount for failure to file required information is $3,000, and $4,000 for unauthorized transmissions, the FCC proposed the reduced fine due to the short duration of the violations and a lack of history of prior offenses.  The Commission recently followed this NAL with a Forfeiture Order requiring the station to pay the $2,000 fine or file a written statement justifying a reduction or cancellation of the fine.  Days later, however, the Commission issued a separate order cancelling the Forfeiture Order, noting that the station had actually already paid the fine, and indicating that the Forfeiture Order was therefore “issued in error”.

Delinquent Payments Come at a High Price: Failure to Pay Regulatory Fees Threatens California AM Station

As previous CommLawCenter posts demonstrate, failure to pay regulatory fees can lead to significant penalties, including license revocation.  In one recent example, the FCC initiated a license revocation proceeding against a California AM station, ordering it to either pay its delinquent regulatory fees or demonstrate why no payment is due.

Section 9 of the Communications Act (the “Act”) requires the FCC to “assess and collect regulatory fees” to recover the costs of its regulatory activities.  When a payment is late or incomplete, a monetary penalty equal to 25 percent of the fee amount owed will be assessed.  The Act also requires the FCC to charge interest on the debt owed.  In addition to these monetary penalties, Section 9A(c)(4) of the Act and Section 1.1164(f) of the FCC’s Rules provide that the FCC may revoke a licensee’s authorization for failure to timely pay regulatory fees.  If the FCC wishes to pursue that option, the licensee must be given at least 60 days to either pay the debt or demonstrate why the fees are inapplicable.  Although applied sparingly by the FCC, the Commission may waive, reduce, or defer payment of the debt where a party demonstrates “extraordinary circumstances” that outweigh the public interest in recovering the regulatory fees. Continue reading →

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Early this afternoon, the FCC released a Public Notice announcing an extension of broadcasters’ deadlines for certain filings in light of the disruptions being caused by the coronavirus epidemic.  Specifically, the FCC indicated that:

As a result of the fluid and challenging situation caused by the novel coronavirus (COVID-19), the Media Bureau hereby extends the filing deadline for the first annual Children’s Television Programming Report (FCC Form 2100, Schedule H) from March 30, 2020 to July 10, 2020.  Additionally, we extend the deadline by which radio and television broadcasters must place their first quarter issues/programs lists into their Online Public Inspection File from April 10, 2020, to July 10, 2020.  As a result, the filing deadline for both the first and second quarter issues/programs lists will be the same.

In making the announcement, the FCC also noted that “this Public Notice does not modify any requirements or filing deadlines related to stations’ political files, nor does it modify any other filing obligations or deadline related to broadcasters’ public files.”

So, barring any further announcements from the FCC, other regulatory deadlines remain in place, including the obligation to file license renewal applications by April 1 for radio stations in Indiana, Kentucky and Tennessee.

With station staffs already stretched thin and many working remotely, the FCC’s announcement will be welcome news.  While the FCC’s announcements in the initial days of the epidemic focused primarily on the telecommunications industry and broadband access, it’s good to see the FCC acknowledge the challenges broadcasters are also facing during this unprecedented time.

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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 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 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 by April 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.

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Full power commercial and noncommercial radio stations and LPFM stations, licensed to communities in Michigan and Ohio, and full power TV and Class A TV stations, as well as LPTV stations capable of local origination, licensed to communities in the District of Columbia, Maryland, Virginia, and West Virginia, must begin airing pre-filing license renewal announcements on April 1, 2020.

License renewal applications for these stations, and for in-state FM translator and TV translator/LPTV stations, are due by June 1, 2020.

If a station misses airing any of these required announcements, 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.

Pre-Filing License Renewal Announcements

Full power radio and LPFM stations, and full power TV, Class A TV, and LPTV stations capable of local origination, licensed to communities in the states identified above, must air a total of four pre-filing renewal announcements alerting the public to their upcoming renewal applications beginning two months before their license renewal filing date.  As a result, these stations with June 1 renewal filing deadlines 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 full power radio and LPFM stations, 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.

For full power TV and Class A TV stations, at least two of these four announcements must air between 6:00 pm and 11:00 pm (Eastern/Pacific) or 5:00 pm and 10:00 pm (Central/Mountain).   LPTV stations capable of local origination must broadcast these announcements at the same times or as close to the above schedule as their operating schedule permits.

Stations can find more information on pre- and post-filing announcements, as well as more detail on the FCC’s license renewal cycle, in our most recent radio Advisory on the subject.

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, 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 October 1, 2020.  We must file an application for renewal with the FCC by June 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 September 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.

Post-Filing License Renewal Announcements

Once the license renewal application has been filed, full power radio and LPFM stations, and full power TV, Class A TV, and LPTV stations capable of local origination 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, 2020.

For full power radio and LPFM stations, 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.  For commercial stations not operating between either 7:00 am and 9:00 am or 4:00 pm and 6:00 pm, at least three of these announcements must air during the first two hours of operation.

For full power TV and Class A TV stations, at least three of these announcements must air between 6:00 pm and 11:00 pm (Eastern/Pacific) or 5:00 pm and 10:00 pm (Central/Mountain).  At least one announcement must air in each of the following local time periods: between 9:00 am and 1:00 pm, between 1:00 pm and 5:00 pm, and between 5:00 pm and 7:00 pm.  LPTV stations capable of local origination must broadcast these announcements at the same times or as close to the above schedule as their operating schedule permits.

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

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The FCC announced this afternoon that “effective immediately, [we] will no longer allow visitors into our facilities, absent special permission from the Office of Managing Director.”  However, that announcement, strange as it would be under normal circumstances, was of no particular importance.  That’s because the same document noted that, starting tomorrow, the FCC is asking its staff to telework.  Whether you get through the front door isn’t too important when there is no one inside the building to meet.

Broadcasters are also moving quickly to adapt to a world where no matter how strange your day was, tomorrow’s developments will make it seem unremarkable.  For example, noncommercial college radio stations whose campuses have suddenly shut down are learning about Section 73.561(a) of the FCC’s Rules, which eliminates the requirement that such stations maintain a minimum operating schedule “during those days designated on the official school calendar as vacation or recess periods.”

Meanwhile, NAB, among many, many others, is looking to mitigate the damage resulting from cancelled or postponed events.  If you are a broadcaster that was sponsoring a concert or other event that now isn’t going to happen, you might want to check out the Advisory from Pillsbury’s Insurance Practice regarding the scope of Event Cancellation Insurance policies (and kudos to that group for presciently publishing an Advisory over a month ago titled Insuring Against the Business Risks of Coronavirus).

But what about broadcasters just doing their best to go forward with their day to day business?  Well, some may go into a pool reporting model with other local stations to minimize the number of reporters being crammed into rooms with newsmakers while keeping the public informed.  Others are putting together contingency plans for when a staffer starts coughing, returns from an international trip, or is bragging about how much they enjoyed their recent cruise ship vacation.

Such planning is, however, quite complicated, as employment laws won’t necessarily let you send someone home for two unpaid weeks just because they coughed.  For those doing such planning, you might want to take a look at this recent Advisory, which discusses effective steps you can take in the workplace without simultaneously putting your station in violation of labor laws.

Hopefully by now you’ve begun to pick up a theme, which is simply that dealing with the fallout of coronavirus is a complex and diverse endeavor for all businesses, but particularly so for broadcasters.  Those with significant news operations don’t have the option of sending everyone to work from home for a couple of weeks.  That makes the task of keeping your employees safe, your audience informed, and your station solvent all the more challenging.  The FCC may be able to telework efficiently, but for those that can’t, the days ahead will be difficult, and more so for those that aren’t planning ahead now.