Articles Posted in

Published on:

By and

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:

  • Telecommunications Carrier Pays $3.8 Million To Resolve 911 Outage Investigation
  • FCC Reduces Fine for Late-Filed License Renewal Application
  • Arkansas Radio Station Faces $17,500 Fine for Unauthorized Silence and Public File Violations

77-Minute 911 Outage Results in $3.8 Million Penalty

A large telecommunications provider entered into a consent decree with the FCC last month to resolve an investigation into a one hour and 17 minute 911 service outage that occurred on September 28, 2020. Section 9.4 of the FCC’s Rules states that all “telecommunications carriers shall transmit all 911 calls to a PSAP [Public Safety Answering Point], to a designated statewide default answering point, or to an appropriate local emergency authority…” Additionally, Section 4.9(h) of the Rules requires a wireline communications provider experiencing a network outage that potentially affects 911 service to notify the designated official at the affected PSAP of the outage “as soon as possible but no later than thirty minutes after discovering the outage[.]”  The provider must “convey to that person all available information that may be useful in mitigating the effects of the outage.…”

The 911 outage began when two new Global Traffic Managers (“GTMs”) were introduced into the carrier’s next generation 911 (“NG911”) facilities. A configuration error occurred that placed the new GTMs into the carrier’s existing, operational environment with a “blank” configuration, meaning they contained no routing data. During the outage, thousands of calls to PSAPs in Arizona, Colorado, Minnesota, North Carolina, North Dakota, South Dakota, and Utah were unable to be completed for a period of one hour and 17 minutes, and the carrier failed to timely notify all affected PSAPs of the outage.

The carrier acknowledged that it was responsible for complying with the applicable FCC rules regardless of any alleged failures by its subcontractors, and ultimately entered into a consent decree with the FCC to resolve the investigation.

The terms of the consent decree require the carrier to pay a $3,800,000 civil penalty. Additionally, the carrier must implement a compliance plan “to develop and implement processes in the evolving NG911 environment” to identify risks that could result in 911 service disruptions, protect against such risks, detect 911 outages when they occur, respond to such outages with remedial actions, and recover from such outages as soon as practicable. The carrier is also required to report any material violations of the 911 rules or the terms and conditions of its consent decree within fifteen calendar days of discovering a violation.

Broadcaster’s Fine for Late License Renewal Application Reduced to $5,000

In a December 2021 Forfeiture Order (“Order”), the FCC reduced the fine issued to a Rhode Island broadcaster for failing to timely file a license renewal application for its FM translator station.  As we discussed in September, the FCC originally issued a Notice of Apparent Liability for Forfeiture (“NAL”) proposing a $7,000 fine.

The broadcaster had acquired the translator after its prior owner received only a short-term license renewal for it, meaning that its license would expire earlier than those of other Rhode Island stations. Because of the shorter term, a license renewal application should have been filed by July 1, 2017, the first day of the fourth month prior to the license expiration date.  Unfortunately, the broadcaster did not file a license renewal application until September 11, 2020, and did not request Special Temporary Authority (“STA”) to operate without a license until September 16, 2020.  In its defense, the broadcaster informed the FCC that there was a discrepancy in the FCC’s LMS database, which indicated the translator’s license would expire on April 1, 2022, the same date as all other Rhode Island radio licenses.

The Commission granted the STA on October 2, 2020 for a period of six months, allowing the station to operate while the renewal application was processed.  However, the renewal processing took longer than six months, so the broadcaster timely filed for an extension of the STA in March 2021, which remains pending.

Ultimately, the FCC issued an NAL in September 2021, proposing a fine of $7,000 – $3,000 for failing to timely file a license renewal application and $4,000 for the resulting unauthorized operation. The NAL gave the broadcaster thirty days to either pay the fine or seek reduction or cancellation of it. In response, the broadcaster filed a Petition for Reconsideration asking the FCC to reduce or cancel the fine.

In the petition, the broadcaster argued that: (1) it acted in good faith and was not responsible for the previous licensee’s misconduct resulting in the short-term license renewal; (2) though it operated after the license expired, its broadcast was a public service which did not result in interference to any other station; (3) it has a record of compliance with the FCC’s Rules; (4) the FCC incorrectly discounted the LMS database error because, although LMS did not exist at the time of violation, the incorrect expiration of April 1, 2022 was also listed in the CDBS database which was in use at the time; (5) the violation was over a shorter period of time than was initially thought due to a covering license application being filed; and (6) the broadcaster was unaware the license expired because the station was still assessed regulatory fees and was listed as “licensed” in queries performed in the FCC’s databases.

In its Order responding to the Petition for Reconsideration, the FCC reduced the fine by $2,000, citing the broadcaster’s history of compliance with the Commission’s Rules. It reduced the fine by $500 for each of the two regulations violated (failure to timely file a license renewal application and the resulting unauthorized operation). The FCC then acknowledged that there was “a possibility, albeit remote,” that the incorrect date listed in the databases may have been a contributing factor. The Commission also noted that a Covering License granted in January 2020 also had the short-term license expiration date listed, but again acknowledged that some time after that January 2020 grant, the incorrect April 1, 2022 expiration date would have appeared in searches in LMS and CDBS. As a result, the FCC agreed to further reduce the fine by another $1,000, bringing the total amount down to $5,000.

FCC Fines Arkansas Broadcaster for Silent Radio Station and Public File Violations

The FCC fined an Arkansas radio station $17,500 for (1) discontinuing operation of its AM radio station and FM translator without first requesting authority from the FCC to do so, (2) Public Inspection File rule violations, and (3) failing to update certifications made in its license renewal applications.

In January of 2020, the broadcaster had filed license renewal applications for both stations in which it certified the stations were operating and had not been silent during the license term for more than 30 days. However, on March 6, 2020, the broadcaster’s AM station, and therefore the associated FM translator, went silent due to failure of the AM transmitter.  The FCC was alerted to this fact through an informal objection to the AM station’s pending license renewal application.

Shortly after the informal objection was filed with the FCC, the broadcaster submitted STA requests seeking authority for both stations to stay silent.  The FCC granted the STA requests on May 22, 2020, but noted that the requests had not been timely filed, as the stations were silent for thirty days as of April 6, 2020, and the grant of the STAs did not authorize the stations’ silence between April 6, 2020 and May 22, 2020.

The FCC’s rules require stations to notify the Commission within 10 days of discontinuing operations, and to obtain FCC authorization if the station will be silent for more than 30 days.  Here, both stations went silent on March 6, 2020, with the AM station resuming operations on July 29, 2020 and the FM translator resuming operations on September 25, 2020.  As a result, the broadcaster should have notified the FCC the stations had gone silent no later than March 17, 2020, and sought authority to remain silent by April 5, 2020.  Since the STA requests were not filed until May 22, 2020, the FCC found that the broadcaster had willfully and repeatedly violated Sections 73.1740(a)(4) and 74.1263(e) of its Rules.

Additionally, Section 73.3526(e)(11)(i) of the FCC’s Rules requires every station to place in its Public Files “a list of programs that have provided the station’s most significant treatment of community issues during the preceding three month period.” The list must be placed in the Public Inspection File on a quarterly basis within ten days of the end of each calendar quarter. The FCC’s review of the AM station’s Public File revealed that the Programs/Issues Lists for six quarters were filed late, and eight were missing.

Finally, the FCC noted that under Section 1.65 of its Rules, applicants are responsible for the continuing accuracy and completeness of information furnished in pending applications. In this instance, the broadcaster certified in its license renewal applications that the stations were “currently on the air broadcasting,” that there had been no rule violations by the licensee, and that the stations had not been silent for more than 30 days. The FCC explained that the first certification became inaccurate when the stations went off the air on March 6, 2020 and the second certification became inaccurate when the broadcaster failed to notify the Commission the stations were off the air on March 16, 2020. The third certification became inaccurate on April 6, 2020, the 31st day the stations were silent.

The Commission’s base fine for unauthorized silence is $5,000. The base fine for failure to file required forms or information is $3,000, and the base fine for Public Inspection File violations is $10,000. In determining the amount of a proposed fine, the FCC may adjust its base fine upward or downward based upon the nature, circumstances, extent, and gravity of the violation, in addition to the licensee’s degree of culpability and any history of prior offenses. In this case, the Commission concluded a proposed total fine of $17,500 was appropriate.

Fortunately for the broadcaster, the FCC did not find that the violations constituted a “serious violation” or pattern of abuse preventing renewal of the stations’ licenses. Barring other issues arising, the FCC indicated that both license renewal applications would be granted in separate Commission actions upon conclusion of the stations’ forfeiture proceedings. However, given the importance the FCC places on its Public Inspection File requirements, the FCC stated that any grant of the license renewal applications would be conditioned on the AM station submitting a report regarding its compliance with those requirements.

A PDF version of this article can be found at FCC Enforcement ~ January 2022.

Published on:

By , and

The deadline to file the 2021 Annual Children’s Television Programming Report with the FCC is January 30, 2022, reflecting programming aired during the 2021 calendar year.  Note that because this deadline falls on a weekend, this filing may be made on January 31, 2022.  In addition, commercial stations’ documentation of their compliance with the commercial limits in children’s programming during the 2021 calendar year must be placed in their Public Inspection File by January 30, 2022.

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.

In 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 modified some aspects of the definition of “core” educational children’s television programming.  Those portions of the revisions went into effect in 2019.  Procedurally, the new rules eliminated quarterly filing of the commercial limits certifications and the Children’s Television Programming Report in favor of annual filings.  Those revisions went into effect in 2020. As a result, the Children’s Television Programming Report and commercial limits documentation filed in 2022 will be the second year that annual filings are submitted.

Commercial Television Stations

Commercial Limitations

The FCC’s rules require that stations limit the amount of “commercial matter” appearing in programs aimed at children 12 years old and younger to 12 minutes per clock hour on weekdays and 10.5 minutes per clock hour on the weekend.  The definition of commercial matter includes not only commercial spots, but also (i) website addresses displayed during children’s programming and promotional material, unless they comply with a four-part test, (ii) websites that are considered “host-selling” under the Commission’s rules, and (iii) program promos, unless they promote (a) children’s educational/informational programming, or (b) other age-appropriate programming appearing on the same channel.

Licensees must upload supporting documents to the Public Inspection File to demonstrate compliance with these limits on an annual basis by January 30 each year, covering the preceding calendar year.  Documentation to show that the station has been complying with this requirement can be maintained in several different forms.  It must, however, always identify the specific programs that the station believes are subject to the rules, and must list any instances of noncompliance.

Core Programming Requirements

To help stations identify which programs qualify as “educational and informational” for children 16 years of age and under, and determine how much of that programming they must air to demonstrate compliance with the Children’s Television Act, the FCC has adopted a definition of “core” educational and informational programming, as well as three different safe harbor renewal processing guidelines that establish the minimum amount of core programming stations must air to receive a staff-level license renewal grant.  Stations should document all core children’s programming that they air, even where it exceeds the safe harbor minimums, to best present their performance at license renewal time.

Under these rules, the FCC generally defines “core programming” as television programming that has as a significant purpose serving the educational and informational needs of children 16 years old or under and which is aired between 6:00 a.m. and 10:00 p.m.  In addition, commercial stations must also identify each core program by displaying an “E/I” symbol onscreen throughout the program.  Licensees must also provide information identifying each core program they air to publishers of program guides, though they no longer need to indicate a program’s intended age range.

There are three ways to satisfy the Commission’s processing guidelines:

  • Category A1: Stations can meet their obligation by airing at least three hours per week (as averaged over a six-month period) of core programming, all of which is regularly scheduled, weekly, and at least 30 minutes in length.  To satisfy Category A1’s three-hour-per-week minimum, at least two hours must air on the primary stream and up to one hour may air on a multicast stream.
  • Category A2: Stations can meet their obligation by airing at least 156 hours of core programming per year, including at least 26 hours per quarter that is regularly scheduled, weekly, and 30 minutes in length, and up to an additional 52 hours of programming throughout the year that is not provided on a regularly scheduled basis, but is at least 30 minutes in length.  To the extent a station airs more than two hours per week of regularly scheduled core programming, it has the flexibility to air such additional regularly scheduled programming on a multicast stream.  However, all non-regularly scheduled programming aired to satisfy the Category A2 minimum must air on the primary stream.
  • Category B: Stations can meet their obligation by airing at least 156 hours of core programming per year, including at least 26 hours per quarter that is regularly scheduled, weekly, and 30 minutes in length, and up to an additional 52 hours of programming throughout the year that is not provided on a regularly scheduled basis, and may be less than 30 minutes in length, such as PSAs and interstitials. To the extent a station airs more than two hours per week of regularly scheduled core programming, it has the flexibility to air such additional regularly scheduled programming on a multicast stream.  However, all non-regularly scheduled programming aired to satisfy the Category B minimum must air on the primary stream.

These processing guidelines, as well as other changes the Commission introduced regarding rebroadcasts and the rescheduling of preempted programming, provide stations greater flexibility in scheduling children’s television programming.  However, they require that stations understand these requirements and document them accurately in their Annual Children’s Television Programming Report filings.

Filing the Children’s Television Programming Report

The next Children’s Television Programming Report must be filed electronically with the FCC by January 31, 2022 (because, as noted above, the actual January 30 due date falls on a weekend).  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 will automatically place the Children’s Television Programming Report into the station’s Public Inspection File.  However, each station should confirm that has occurred to ensure that its Public Inspection File is complete.

Noncommercial Educational Television Stations

Because noncommercial educational television stations are precluded from airing commercials, the commercial limitation rules do not apply to them.  Accordingly, noncommercial television stations have no obligation to place commercial limits documentation in their Public Inspection File.  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 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 available that demonstrates its efforts to meet the needs of children.

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 the above documentation.

A PDF version of this article can be found at Meeting Your Annual Children’s Television Programming Reporting Obligations.

Published on:

By and

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 submit their two most recent EEO Public File Reports along with FCC Form 2100, Schedule 396 as part of their license renewal applications due by February 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,[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, February 1, 2022 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 its station records file.

These Reports will cover the period from February 1, 2021 through January 31, 2022. 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 date used in the immediately preceding Report. For example, if the Nonexempt SEU uses the period February 1, 2021 through January 21, 2022 for this year’s report (cutting it off up to ten days prior to January 31, 2022), then next year, the Nonexempt SEU must use a period beginning January 22, 2022 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 and which are 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 and which are 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 in which a station’s community of license is located, 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 Arkansas, Louisiana, Mississippi, New Jersey, and New York must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between February 1, 2020 and January 31, 2022, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt radio station SEUs licensed to communities in Kansas, Nebraska, and Oklahoma must earn at least the required minimum number of Menu Option credits during the two year “segment” between February 1, 2021 and January 31, 2023, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Kansas, Nebraska, and Oklahoma must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between February 1, 2020 and January 31, 2022, as well as during the previous two-year “segments” of their license term.
  • Nonexempt television station SEUs licensed to communities in Arkansas, Louisiana, Mississippi, New Jersey, and New York must earn at least the required minimum number of Menu Option credits during the two-year “segment” between February 1, 2021 and January 31, 2023, as well as during the previous two-year “segments” of their license term.

Additional Obligations for Stations Whose License Renewal Applications Are Due by February 1, 2022 (Radio Stations Licensed to Communities in New Jersey or New York, and Television Stations Licensed to Communities in Kansas, Nebraska, or Oklahoma)

February 1, 2022 is the date by which radio stations in New Jersey or New York and television stations in Kansas, Nebraska, or Oklahoma must file their license renewal applications. In conjunction with that filing, these stations must submit Schedule 396 of FCC Form 2100. Nonexempt SEUs must include in their Schedule 396 filing their two most recent EEO Public File Reports and a narrative discussing their EEO Program over the past two years.

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 Pillsbury’s Communications Practice.

[1] In light of the significant layoffs and workforce reductions caused by the COVID-19 pandemic, the FCC has waived the requirement that broadcasters engage in broad outreach when rehiring employees that were laid off in connection with the COVID-19 pandemic, but only where the employee is rehired within nine months of being laid off. Additional information on this limited waiver of EEO obligations can be found in our CommLawCenter article on this subject.

A PDF of this article can be found at EEO Public File Deadline. 

Published on:

By and

Full power commercial and noncommercial radio, LPFM, and FM Translator stations, licensed to communities in New Jersey and New York, and full power TV, Class A TV, LPTV, and TV Translator stations licensed to communities in Kansas, Nebraska, and Oklahoma, must file their license renewal applications by February 1, 2021.

February 1, 2022 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:
New Jersey and New York

Full Power TV, Class A, LPTV, and TV Translator Stations:
Kansas, Nebraska, and Oklahoma

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 becoming familiar with the requirements for the filing itself, as well as being aware of 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.

Schedule 303-S: Application for Renewal of Radio and TV Broadcast Station Licenses

Parties to the Application

Some of the certifications an applicant is asked to make in Schedule 303-S relate solely to the station, and some—such as character certifications—relate to any “party to the application.” A party to the application is any individual or entity that has an attributable interest in a station. This includes all parties whose ownership interest, positional interest (i.e., an officer or director), or other relation to the applicant confers on that party a sufficient degree of influence or control over the licensee to merit FCC attention.

For a corporation, this typically includes all officers, directors, and shareholders with a 5% or greater voting interest; for an LLC, its officers and members; and for a partnership, all partners. However, each form of entity comes with its own caveats, limitations, and unique rules for determining attributable interest holders. For example, limited partners are normally attributable interest holders unless they have been “insulated” from partnership decisions pursuant to very specific FCC requirements. Filers should reach out to counsel prior to filing if there are any questions about who the FCC would consider a party in interest to the license renewal application.

Character Issues, Adverse Findings and FCC Violations

Pursuant to the FCC’s statutory obligation to consider any serious rule violations or patterns of abuse, each licensee must certify that neither it nor any party to the application has had “any interest in or connection with an application that was or is the subject of unresolved character issues.” Where the applicant is unable to make this certification, it must include an exhibit identifying the party involved, the call letters and location of the station (or file number of the FCC application or docket), and describe the party’s connection to the matter, including all relevant dates. The applicant must also explain why the unresolved character issue “is not an impediment” to grant of the license renewal application.

Applicants must also certify whether the licensee or any party to the application has been the subject of an adverse finding in any civil or criminal proceeding involving a felony, a mass-media related antitrust or unfair competition charge, a false statement to another governmental entity, or discrimination. The applicant must report adverse findings from the past ten years and include an exhibit explaining the matter in detail and why it should not be an impediment to a grant of the license renewal application. Note, however, that a station does not need to report an adverse finding that was disclosed to the FCC in the context of an earlier station application where it was subsequently found by the FCC to be not disqualifying.

The application form also asks the applicant to certify that “there have been no violations by the licensee of the Communications Act of 1934, as amended, or the rules or regulations of the Commission during the preceding license term.” The instructions to the form make clear that this question is only asking the applicant to certify that there have been no formal findings of a violation by the FCC or a court, such as a Notice of Apparent Liability, Notice of Violation, or similar finding of a rule violation. Applicants should not use this section to self-disclose any violations not previously identified by the FCC.

Foreign Ownership and Control

The applicant must also certify that the licensee has complied with Section 310 of the Communications Act regarding foreign influence over the station. Section 310 generally prohibits the FCC from issuing a license to an alien, a representative of an alien, a foreign government or the representative thereof, or a corporation organized under the laws of a foreign government. It also prohibits a license being issued to an entity of which more than 20% of the capital stock is owned or voted by aliens, their representatives, a foreign government or its representative, or an entity organized under the laws of a foreign country, or, absent a special ruling from the FCC, to an entity whose parent company  has more than 25% of its capital stock owned or voted by aliens, their representatives, a foreign government or its representative, or an entity organized under the laws of a foreign country.

Station Operations

The license renewal application also requires stations to certify that they are currently operational, as the FCC will not renew the license of a station that is not broadcasting.

In a similar vein, Section 73.1740 of the FCC’s Rules sets forth the minimum operating hours for commercial broadcast stations, and Section 73.561 of the Rules establishes minimum operating hours for noncommercial educational FM stations. In the license renewal application, stations must certify that they were not silent or operated less than the required minimum number of hours for a period of more than 30 days during the license term. If they cannot, they must include an exhibit disclosing the relevant details and explaining why it should not adversely affect the station’s license renewal.

Stations must also certify as to several statements regarding Radiofrequency Electromagnetic (RF) exposure of the public and workers at the transmitter site. Stations that were previously renewed and which have had no changes at their transmitter site since their last renewal application will generally be able to certify compliance with this statement. Stations that have had a material change in the RF environment at their transmitter site must assess the impact of that change before certifying RF compliance and may need to submit an exhibit demonstrating the station’s compliance with RF requirements.

Related Filings and Materials

 Other Certifications

Successfully navigating the license renewal application also requires stations to certify that the rest of their regulatory house is in order. For example, applicants must certify that they have timely made other regulatory filings, such as the Biennial Ownership Report on FCC Forms 323 and 323-E, and confirm that their advertising agreements do not discriminate on the basis of race or gender and contain non-discrimination clauses. Applicants must also certify that they have placed all items required to be in the station’s Public Inspection File in the File, and that they have done so on a timely basis. Public File violations have traditionally been a significant cause of fines at license renewal time. As the Public Inspection File is now online, stations should be mindful that third parties are able to easily review and confirm the timeliness of Public File documents. As with all other certifications in the application form, stations must accurately respond and be prepared to provide documentation supporting their certifications if later requested by the FCC.

EEO

Depending on staff size, one of the items stations must certify is that they have timely placed in their Public Inspection File, as well as on their website, the annual Equal Employment Opportunity (“EEO”) Public File report.

Generally, a station that is part of a Station Employment Unit that employs fewer than five full-time employees is exempt from these requirements. However, at license renewal time, all stations, regardless of staff size, must file FCC Form 2100, Schedule 396, the Broadcast EEO Program Report. Stations in a Station Employment Unit with fewer than five full-time employees will only need to complete part of the form before filing it. As a practical matter, because of the mechanics of the FCC’s filing system, an applicant will generally be unable to file its license renewal application until it can provide in that form the file number generated by the FCC when the station’s completed Schedule 396 is filed.

Certifications for Full Power TV and Class A TV Stations Only

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

The Children’s Television Act of 1990 requires commercial full power TV and Class A TV stations to: (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, such stations must 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, replace newspaper public notice requirements with an online notice, and revise the text of the announcements themselves.

As a result, full power commercial and noncommercial radio and LPFM stations, and full power and Class A TV stations, as well as LPTV stations capable of local origination, must broadcast a total of six post-filing license renewal announcements over four consecutive weeks, with at least one airing each week and no more than two airing in any week (each of which must air on different days). The first such announcement must air within five business days after the FCC has issued a Public Notice announcing its acceptance for filing of the application.

On-air post-filing announcements must be broadcast on a weekday (Monday through Friday) between 7:00 am and 11:00 pm local time based on the applicant station’s community of license. The text of the announcement is as follows:

On [date], [applicant name], licensee of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license. Members of the public wishing to view this application or obtain information about how to file comments and petitions on the application can visit publicfiles.fcc.gov, and search in [station call sign’s] public file.

For those types of stations that do not have Public Inspection Files, the on-air post-filing announcement should instead be:

On [date], [applicant name], licensee of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license. Members of the public wishing to view this application or obtain information about how to file comments and petitions can visit www.fcc.gov/stationsearch, and search in the list of [station call sign’s] filed applications.

For television broadcast stations, when these on-air announcements are presented aurally, the public notice text must also be presented visually onscreen.

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 contact counsel regarding how to provide the required public notice.

Certification of Compliance

Within seven days of the broadcast of the last required announcement, full power radio and TV station and Class A TV station license renewal applicants should complete the attached Statement of Compliance and place it in the station’s Public Inspection File. LPFM and LPTV license renewal applicants should complete the attached Statement of Compliance and place it in their station records file.

Online Public Notice Required for FM Translator, TV Translator, and Certain LPTV Stations

FM translator, TV translator, and LPTV stations not capable of local origination are not required to broadcast post-filing announcements, and have typically been required to publish public notices in a local newspaper instead. The FCC has eliminated the newspaper publication requirement in favor of online notices, requiring such stations to publish written notice on a station-affiliated website upon filing a license renewal application.

A prominently displayed link or tab that reads “FCC Applications” must be posted on the station website homepage, and link to a separate page containing the following notice:

On [date], [applicant name], [permittee / licensee] of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license. Members of the public wishing to view this application or obtain information about how to file comments and petitions on the application can visit [insert hyperlink to application location in the Media Bureau’s Licensing and Management System].

This separate page must also include the date the page was last revised. The notice and corresponding link to the license renewal application must be posted within five business days after the FCC has issued a Public Notice announcing its acceptance for filing of the application and remain on the station’s website for 30 consecutive days. At the end of the 30-day period, the notice can be removed, and if no other applications requiring online notice are pending, the webpage should be updated to include the following text instead:

There are currently no applications pending for which online public notice is required.

The rules contain specific requirements as to where station applicants that do not have websites should post their announcement. These stations should consult with counsel on the proper online notice procedures.

After publishing the notice, the licensee should complete and execute a Statement of Compliance regarding that publication and place the Statement of Compliance in its Public Inspection File. While FM translator, TV translator, and LPTV station licensees are not required to keep a Public Inspection File, they are required to maintain and make available to FCC representatives a station records file that contains their current authorization and copies of all FCC filings and correspondence with the Commission. For them, the completed Statement of Compliance should be included in their station records file.

[1] Note that in 2019, the FCC changed the obligation to file the Children’s Television Programming Report and place the commercial limits certification in the Public Inspection File from a quarterly requirement to an annual obligation.

The full article, along with examples of compliance statements, can be found at License Application Renewal Reminder.

Published on:

By and

The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by January 10, 2022, reflecting information for the months of October, November, and December 2021.

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 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 January 10, 2022, covering the period from October 1, 2021 through December 31, 2021. Continue reading →

Published on:

By

In a yuletide tradition that goes back farther than any of us can remember, each December Pillsbury releases its Broadcasters’ Calendar cataloging the regulatory dates and deadlines facing broadcasters in the coming year.  This past December was no different, with the publication of the 2022 edition of the Pillsbury Broadcasters’ Calendar.  Covering the entire year rather than just a month at a time (ever been blindsided when you flipped to the next month in your calendar only to discover an important deadline falls on the first of the month?), the Broadcasters’ Calendar gives broadcasters the regulatory landscape for the entire year ahead.

And it promises to be an interesting year, with the FCC potentially gaining a fifth commissioner, “no-longer-Acting and now permanent” FCC Chair Jessica Rosenworcel having the opportunity to place her imprint more firmly upon the FCC, and the 2022 elections having a big say in how the FCC is treated on Capitol Hill thereafter.  Stay tuned for these and other developments, but in the meantime, take a look at the 2022 Pillsbury Broadcasters’ Calendar.  In a year that will likely be full of unexpected developments, knowing what won’t be a surprise is uniquely reassuring.