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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:

  • FCC Settles with Six Major Radio Groups Over Political File Violations
  • Texas Radio Stations Face Proposed Fines for Contest Rule Violations
  • $15,000 Fine Proposed for LPFM Station Airing Commercial Ads

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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 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 August 3. 

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,[1] (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.

Deadline for the Annual EEO Public File Report for Nonexempt Radio and Television SEUs

Consistent with the above, August 1, 2020 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, 2019 through July 31, 2020.  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 date used in the immediately preceding Report.  For example, if the Nonexempt SEU uses the period August 1, 2019 through July 22, 2020 for this year’s report (cutting it off up to ten days prior to July 31, 2020), then next year, the Nonexempt SEU must use a period beginning July 23, 2020 for its report. Continue reading →

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Full power commercial and noncommercial radio stations and LPFM stations, licensed to communities in Illinois and Wisconsin, and full power TV and Class A TV stations, as well as LPTV stations capable of local origination, licensed to communities in North Carolina and South Carolina, must file their license renewal applications by August 3, 2020.

August 3, 2020 is the license renewal application filing deadline for commercial and noncommercial radio and TV broadcast stations licensed to communities in the following states:

Full Power AM and FM, Low Power FM, and FM Translator Stations:
Illinois and Wisconsin

Full Power TV, Class A, LPTV, and TV Translator Stations:
North Carolina and South Carolina

Overview

The FCC’s state-by-state license renewal cycle began in June 2019 for radio stations and in June 2020 for television stations.  Radio and TV stations licensed to communities in the respective states listed above should be moving forward with their license renewal preparation.  This includes familiarizing themselves with not only the filing deadline itself, but with the requirements for this important filing, including recent changes the FCC has made to the public notice procedures associated with the filing (discussed below).

The license renewal application (FCC Form 2100, Schedule 303-S) primarily consists of a series of certifications in the form of Yes/No questions.  The FCC advises that applicants should only respond “Yes” when they are certain that the response is correct.  Thus, if an applicant is seeking a waiver of a particular rule or policy, or is uncertain that it has fully complied with the rule or policy in question, it should respond “No” to that certification.  The application provides an opportunity for explanations and exhibits, so the FCC indicates that a “No” response to any of the questions “will not cause the immediate dismissal of the application provided that an appropriate exhibit is submitted.”  An applicant should review any such exhibits or explanations with counsel prior to filing.

When answering questions in the license renewal application, the relevant reporting period is the licensee’s entire 8-year license term.  If the licensee most recently received a short-term license renewal, the application reporting period would cover only that abbreviated license term.  Similarly, if the license was assigned or transferred via FCC Form 314 or 315 during the license term, the relevant reporting period is just the time since consummation of that last assignment or transfer.

Stations can find more detail on the FCC’s license renewal application process in our most recent Advisory on the subject.

Certifications for Full Power and Class A TV Stations Only

While there is significant overlap between the certifications included in both the radio and TV applications, an important portion of the license renewal application specific to full power and Class A TV stations concerns certifications regarding the station’s children’s television programming obligations.

The Children’s Television Act of 1990 provides that commercial full power and Class A TV stations must: (1) limit the amount of commercial matter aired during programming designed for children ages 12 and under, and (2) air programming responsive to the educational and informational needs of children ages 16 and under.  While stations have been required to submit Children’s Television Programming Reports and commercial limits certifications demonstrating their compliance with these requirements on a quarterly or annual basis,[1] the license renewal application requires applicants to further certify that these obligations have been satisfied and documented as required over the entire license term and to explain any instances of noncompliance.  Stations can find additional information on the children’s television programming and reporting obligations in our most recent Children’s Television Programming Advisory.

Although noncommercial TV stations are not subject to commercial limitations or required to file Children’s Television Programming Reports, such stations are required to air programming responsive to children’s educational and informational needs.  In preparation for license renewal, such stations should therefore ensure they have documentation demonstrating compliance with this obligation in the event their license renewal is challenged.

For Class A television stations, in addition to certifications related to children’s television programming, the application requires certification of compliance with the Class A eligibility and service requirements under Section 73.6001 of the FCC’s Rules.  Specifically, the Rules require such stations to broadcast a minimum of 18 hours a day and average at least three hours per week of locally produced programming each quarter to maintain their Class A status.  Applicants must certify that they have and will continue to meet these requirements.

Post-Filing License Renewal Announcements

In prior license renewal cycles, stations were required to give public notice of a license renewal application both before and after the filing of that application.  For the current cycle, the FCC eliminated the pre-filing public notices and modified the procedures for post-filing notices. These changes modify the timing and number of on-air announcements required and revise the text of the announcements themselves.  While these changes are subject to Office of Management and Budget (“OMB”) approval and therefore have not yet gone into effect, such approval could be received at any time.  Accordingly, stations should continue to follow the prior rule for the moment, but remain alert for an announcement that the new rules have gone into effect.

As such, full power radio and LPFM stations, and full power TV and Class A TV, as well as LPTV stations capable of local origination, must broadcast six post-filing license renewal announcements.  These announcements must air once per day on August 1,[2] August 16, September 1, September 16, October 1, and October 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 also 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 also 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 these times or as close to the above schedule as their operating schedule permits.

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 December 1, 2020.  [Stations that have not received a renewal grant since the filing of their previous license 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 December 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 November 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 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 2019. 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, 2020.

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 July 31, 2020 will not be able to collect royalties for carriage of their signals during 2019.

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Each full power and Class A TV station that has not completed its transition to its post incentive auction facilities must file its next, and likely final, quarterly Transition Progress Report with the FCC by July 10, 2020.  The Report must detail the progress the station has made in constructing facilities on its newly-assigned channel and in terminating operations on its current channel during the months of April, May, and June 2020.

The July 10, 2020 report marks the last “regularly scheduled” quarterly Transition Progress Report filing due date that will be made by most full power and Class A television stations.  The 39-month transition period closes on July 13, 2020.  Any full power or Class A television station that has not received an extension of time, must have completed its transition by that date.   In conjunction with completing the transition, the station should be filing its license to cover application and several end of construction Transition Progress Reports as well.  These latter filings include the Transition Progress Reports due ten days after completion of all work related to constructing a station’s post-repack facilities and five days after a station ceases operation on its pre-auction channel.

Consistent with the above, the Second Quarter 2020 quarterly Transition Progress Report must be filed with the FCC by July 10, 2020, 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 April 1 through June 30, 2020.  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.

Stations that have received an extension of time to complete their transition must continue to file these quarterly reports and should calendar their due dates until they have completed construction of their post-repack facilities, ceased operating on their pre-auction channel, and reported that information to the FCC.

More information about the specific transition phases and related deadlines can be found in this CommLawCenter article on the subject.

A PDF version of this article can be found at 2020 Second Quarter Transition Progress Report Due on July 10 for TV Stations Being Repacked.

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The Quarterly Issues/Programs List (“Quarterly List”) for each of the First Quarter and Second Quarter of 2020 must be placed in stations’ Public Inspection Files by July 10, 2020, reflecting information for the months of January through March, and April through June, respectively.  The deadline for the First Quarterly Issues/Programs List was extended to July 10 to coincide with the filing of the Second Quarterly Issues/Programs List, thereby allowing stations three additional months in light of the challenges caused by the COVID-19 pandemic.

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 their 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.

The FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have complete Quarterly Lists in their Public Inspection File or which have failed to timely upload such lists when due.  The FCC’s base fine for missing Quarterly Lists is $10,000.

Preparation of the Quarterly List

The Quarterly Lists are normally required to be placed in the Public Inspection File by January 10, April 10, July 10, and October 10 of each year.  Because of the unusual extension granted this year due to COVID-19, however, the Quarterly Lists covering the First and Second Quarters of 2020 are both required to be placed in stations’ Public Inspection Files by July 10, 2020, covering the periods from January 1, 2020 through March 31, 2020, and April 1, 2020 through June 30, 2020, respectively.

Stations should keep the following in mind:

  • Stations should maintain routine outreach to the community to learn of various groups’ perceptions of community issues, problems, and needs. Stations should document the contacts they make and the information they learn. Letters to the station regarding community issues should be made a part of the station’s database.
  • There should be procedures in place to organize the information that is gathered and bring it to the attention of programming staff with a view towards producing and airing programming that is responsive to significant community issues.  This procedure and its results should be documented.
  • Stations should ensure that there is some correlation between the station’s contacts with the community, including letters received from the public, and the issues identified in their Quarterly Lists. A station should not overlook significant issues.  In a contested license renewal proceeding, while the station may consider what other stations in the market are doing, each station will have the burden of persuading the FCC that it acted “reasonably” in deciding which issues to address and how.
  • Stations should not specify an issue for which no programming is identified. Conversely, stations should not list programs for which no issue is specified.
  • Under its former rules in this area, the FCC required a station to list five to ten issues per quarter. While that specific rule has been eliminated, the FCC has noted that such an amount will likely demonstrate compliance with the station’s issue-responsive programming obligations.  However, the FCC has indicated that licensees may choose to concentrate on fewer than five issues if they cover them in considerable depth.  Conversely, the FCC has noted that broadcasters may seek to address more than ten issues in a given quarter, due perhaps to program length, format, etc.
  • The Quarterly List should reflect a wide variety of significant issues. For example, five issues affecting the Washington, DC community might be: (1) the fight over statehood for the District of Columbia; (2) fire code violations in DC school buildings; (3) clean-up of the Anacostia River; (4) reforms in the DC Police Department; and (5) proposals to increase the use of traffic cameras on local streets.  The issues should change over time, reflecting the station’s ongoing ascertainment of changing community needs and concerns.
  • Accurate and complete records of which programs were used to discuss or treat which issues should be preserved so that the job of constructing the Quarterly List is made easier.  The data retained should help the station identify the programs that represented the “most significant treatment” of issues (e.g., duration, depth of presentation, frequency of broadcast, etc.).
  • The listing of “most significant programming treatment” should demonstrate a wide variety in terms of format, duration (long-form and short-form programming), source (locally produced is presumptively the best), time of day (times of day when the programming is likely to be effective), and days of the week.  Stations should not overlook syndicated and network programming as ways to address issues.
  • Stations should prepare each Quarterly List in time for it to be placed in their Public Inspection File on or before the due date.  If the deadline is not met, stations should give the true date when the document was placed in the Public Inspection File and explain its lateness.
  • Stations should show that their programming commitment covers all three months within each quarter.

These are just some suggestions that can assist stations in meeting their obligations under the FCC’s rules.  The requirement to list programs providing the most significant treatment of issues may persuade a station to review whether its programming truly and adequately educates the public about community concerns.

Attached is a sample format for a “Quarterly Issues/Programs List” to assist stations in creating their own Quarterly List.  Please do not hesitate to contact the attorneys in the Communications Practice for specific advice on how to ensure your compliance efforts in this area are adequate.

Class A Television Stations Only

Class A television stations must certify that they continue to meet the FCC’s eligibility and service requirements for Class A television status under Section 73.6001 of the FCC’s Rules.  While the relevant subsection of the Public Inspection File rule, Section 73.3526(e)(17), does not specifically state when this certification should be prepared and placed in the Public Inspection File, we believe that since Section 73.6001 assesses compliance on a quarterly basis, the prudent course for Class A television stations is to place the Class A certification in the Public Inspection File on a quarterly basis as well.

Sample Quarterly Issues/Programs List [1]

Below is a list of some of the significant issues responded to by Station [call sign], [community of license], [state of license], along with the most significant programming treatment of those issues for the period [date] to [date].  This list is by no means exhaustive.  The order in which the issues appear does not reflect any priority or significance.

2nd-Quarter-Issues

[1] This sample illustrates the treatment of one issue only.

A PDF version of this article can be found at First and Second Quarter 2020 Issues/Programs Lists Advisory for Broadcast Stations.

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Stations must file their first Annual Children’s Television Programming Report by July 10, 2020, reporting on educational and informational programming responsive to the needs of children that aired between September 16, 2019 and December 31, 2019.  The FCC extended the previous filing deadline of March 30 to July 10 in light of the COVID-19 pandemic.  This report represents the last time that full power and Class A television stations will file a report describing less than a full year of programming.  Following rule changes made in 2019, such documentation will hereafter be submitted annually, with the next report due January 30, 2021 (addressing the programming aired in 2020).  Note that because that deadline falls on a weekend, submissions will be permitted until February 1, 2021.

Overview

The Children’s Television Act of 1990 requires full power and Class A television stations 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.  In addition, stations must comply with paperwork requirements related to these obligations.

On July 12, 2019, the FCC adopted a number of changes to its children’s television programming rules.  Substantively, the new rules provide broadcasters with additional flexibility in scheduling educational children’s television programming, and modify some aspects of the definition of “core” educational children’s television programming.  These portions of the revisions went into effect on September 16, 2019.

Procedurally, the new rules eliminate quarterly filing of the commercial limits certifications and the Children’s Television Programming Report in favor of annual filings, and change other information collection and reporting provisions.

Filing the Children’s Television Programming Report

Consistent with the above, the next Children’s Television Programming Report must be filed electronically with the FCC by July 10, 2020.  Broadcasters must file their Children’s Television Programming Reports via the Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.  Once filed, the FCC’s electronic filing system should automatically upload the Children’s Television Programming Report to the station’s Public Inspection File, but station personnel should confirm that has in fact occurred.

Preparation of the Programming Documentation

In preparing the necessary documentation to demonstrate compliance with the children’s television rules, a station should keep the following in mind:

  • The Children’s Television Programming Report will be very important “evidence” of the station’s compliance when the station’s license renewal application is filed. Preparation of these documents should be done with care.
  • Accurate and complete records of what programs were used to meet the educational and informational needs of children and what programs aired that were specifically designed for particular age groups should be preserved so that the job of completing the Children’s Television Programming Report is made easier.
  • A station should prepare all documentation sufficiently in advance to ensure timely filing.  If the deadline is not met, the station should give the true date when the information was submitted and explain its lateness.  A station should avoid creating the appearance that it was timely filed when it was not.

These are only a few ideas as to how stations can make complying with the children’s television requirements easier.  Please do not hesitate to contact the attorneys in the Communications Practice for specific advice on compliance with these rules or for assistance in preparing any of this documentation.

Noncommercial Educational Television Stations

While 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 Children’s Television Programming Reports.  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 that demonstrates its efforts to meet the needs of children.

A PDF version of this article can be found at 2019 Annual Children’s Television Programming Report Filing Due.