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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.

October 1 is the deadline for broadcast stations licensed to communities in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, the Mariana Islands, Missouri, Oregon, Puerto Rico, the Virgin Islands, and Washington 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 October 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, October 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 October 1, 2021 through September 30, 2022.  However, Nonexempt SEUs may “cut off” the reporting period up to ten days before September 30, 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 October 1, 2021 through September 20, 2022 for this year’s report (cutting it off up to ten days prior to September 30, 2022), then next year, the Nonexempt SEU must use a period beginning September 21, 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 Alaska, American Samoa, Florida, Guam, Hawaii, the Mariana Islands, Oregon, Puerto Rico, the Virgin Islands, and Washington must earn at least the required minimum number of Menu Option credits during the two year “segment” between October 1, 2021 and September 30, 2023, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt radio station SEUs licensed to communities in Iowa and Missouri must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2020 and September 30, 2022, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Iowa and Missouri must earn at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2021 and September 30, 2023, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Alaska, American Samoa, Florida, Guam, Hawaii, the Mariana Islands, Oregon, Puerto Rico, the Virgin Islands, and Washington must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2020 and September 30, 2022, as well as during the previous two-year “segments” of their license terms.

Additional Obligations for Stations Whose License Renewal Applications Are Due by October 3, 2022 (Television Stations Licensed to Communities in Alaska, American Samoa, Guam, Hawaii, the Mariana Islands, Oregon, and Washington)

October 3, 2022 is the date by which television stations in Alaska, American Samoa, Guam, Hawaii, the Mariana Islands, Oregon, and Washington 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. 

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Broadcast stations face a September 15 deadline to ensure that all programming aired on their stations complies with the FCC’s foreign sponsorship disclosure requirements.

The Foreign Sponsorship Disclosure Rule was adopted by the FCC in April 2021, targeting airtime lease agreements between broadcasters and foreign governments or their representatives. The rule requires stations to take specific steps to ensure that the public is made aware of any programming aired that is provided, funded, or distributed by “governments of foreign countries, foreign political parties, agents of foreign principals, and United States-based foreign media outlets.”

Specifically, broadcasters are required to notify program suppliers leasing airtime or providing free programming to the station for airing that there is a disclosure requirement that applies to programming provided by foreign government entities or their agents, and to affirmatively ask whether the programmer is a foreign government entity or an agent of one, as well as whether a foreign government entity or an agent of one was involved in the preparation, funding, or distribution of the programming.

That inquiry must be documented by the broadcaster, and the broadcaster must retain that documentation for the remainder of the station’s license term, or one year, whichever is longer. If the inquiry results in a determination that the programming was in fact prepared, funded, or distributed by a foreign government entity or an agent of one, then a disclosure notice must air at the beginning and end of the program, stating: “The [following/preceding] programming was [sponsored, paid for, or furnished], either in whole or in part, by [name of foreign governmental entity] on behalf of [name of foreign country].  If the program length is five minutes or less, a single announcement can be aired either at the beginning or end of it, and if it is longer than an hour, the announcement must also air at regular intervals, airing at least once per hour.  Note that the FCC specifically excluded agreements to air short-form advertising from its definition of leasing agreements covered by the Rule.

In addition to airing the disclosure, the station must upload a copy of the disclosure, along with the name of the affected program and the dates and times it aired, to its Public Inspection File on a quarterly basis.  These materials should be uploaded to the standalone file folder titled “Foreign Government-Provided Programming Disclosures.”

The Foreign Sponsorship Disclosure Rule went into affect for new airtime leasing arrangements on March 15, 2022.  However, because the Rule applies to both newly-entered and existing airtime leasing arrangements, the FCC provided a six-month period for stations to complete the inquiry/documentation process for airtime arrangements created prior to March 15, 2022.

That grace period ends on September 15, 2022, at which point stations should have completed their inquiries for all programming arrangements (not just pre-March 15, 2022 leasing agreements), documented those inquiries, and commenced airing on-air disclosures for any content that must be identified as having foreign government-connected sponsorship. Therefore, to the extent they have not already done so, stations with existing airtime leasing agreements should reach out to the program provider to determine whether a disclosure is required.

For new airtime agreements going forward, broadcasters may want to consider making the notice and inquiry part of the leasing agreement, integrating language into the leasing agreement forms to include a discussion of the disclosure requirement and requiring the programmer to affirmatively verify whether an on-air disclosure is required. To the extent that the programmer discloses that it is a foreign government entity or agent, then the agreement should note that the station will be running the required disclosure.

That approach of course doesn’t work for agreements that were previously created (unless done as an amendment to the original contract), so stations needing to document their inquiries relating to agreements that predated March 15, 2022 will need to separately document the inquiry, and then ensure that any program content determined to require a disclosure commences airing with the disclosure no later than September 15.

As noted, the Rule applies to all agreements to lease airtime to third parties. Therefore, to the extent that they have not already done so, broadcasters should be sure to complete their inquiries, document them, and commence airing the required disclosures.  Stations should also be careful not to forget to upload those disclosures to their Public Inspection File each quarter.

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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:

  • Sponsorship ID Violations Lead to Consent Decree With $60,000 Payment
  • Unauthorized Station Transfers and Silent Stations Result in $25,000 Civil Penalty and Compliance Plan
  • Retailer Fined More Than $685,000 for Marketing Unauthorized Wireless Microphones

LPTV Station Fails to Identify Programming as Sponsored, Enters Into $60,000 Consent Decree

The licensee of an Arkansas low power TV station entered into a consent decree with the FCC’s Media Bureau, agreeing to pay a $60,000 penalty for violating sponsorship identification laws.

Broadcast stations are required under federal law (47 U.S.C. § 317(a)(1) and 47 C.F.R. § 73.1212) to identify the sponsor of any program the station has been paid to air.  This requirement applies to advertising, music and any other broadcast content.  The FCC has said that the sponsorship identification laws are “grounded in the principle that listeners and viewers are entitled to know who seeks to persuade them . . . .”  Those who lived through the 1950s and 1960s or who followed the payola/plugola scandals of those decades may recall that the principal issue wasn’t the pay-to-play scheme itself, but rather disc jockeys’ failure to disclose to listeners that something of value had been given in exchange for playing a record.

In this case, in an effort to increase station revenue, an LPTV station urged political candidates to buy advertising packages.  However, the packages being sold by the station included appearances for the candidate on the station’s daily news and public affairs program.  Multiple candidates bought these packages and were subsequently interviewed live on the air.  The station failed to disclose to its viewers that the interviewees were not chosen for their newsworthiness, but instead were interviewed merely because the station had been paid.  While stations may conduct paid interviews, under the sponsorship identification laws, viewers/listeners must be told on-air that the station was paid to air the content, and the station must identify the sponsor.

Along with political candidates, the station accepted payments to interview spokespeople for several commercial entities on the program.  In both cases, that station failed to disclose that the content was sponsored and by whom.  The Media Bureau noted that these undisclosed appearances on a news and public affairs program misled the public into thinking that the interviewees were selected based on their newsworthiness and the station’s editorial judgment.

To resolve the FCC’s investigation, the station entered into a Consent Decree.  Along with paying a $60,000 monetary penalty, the station must implement a compliance plan overseen by a compliance officer that includes written procedures, a compliance manual, and a training program for employees designed to prevent future violations of the sponsorship identification laws.  The license must also file compliance reports with the FCC annually for the next five years, and must notify the FCC within 15 days of discovering any future violation of the sponsorship identification rules.

Family of Deceased Radio Owner Fails to File Necessary Transfer Applications, Agrees to Consent Decree With $25,000 Penalty

The family of a deceased radio owner failed to file the necessary FCC applications to transfer the owner’s stations after his death and also failed to timely request authority for two stations to be silent.  These violations resulted in a Consent Decree with the FCC’s Media Bureau requiring payment of a $25,000 penalty.

On January 13, 2021, the controlling shareholder of a number of radio licensees passed away.  Under Section 310(d) of the Communications Act and Sections 73.3540 and 7.3541 of the FCC’s transfer of control rules, involuntary transfer of control applications should have been filed within 30 days of the controlling shareholder’s passing.  Those applications must apprise the FCC of the facts surrounding the involuntary transfer, and seek Commission consent to the transfer of control of the licenses from, for example, the decedent to the decedent’s estate/executor.  Once the FCC approves the involuntary transfer, there will typically be a second set of applications to transfer the licenses out of the estate to the party inheriting the stations (or sometimes to a party buying the stations directly from the estate).

Here, the stations were also later placed into trusts created two months after the controlling shareholder’s death, but applications seeking FCC approval were not filed until several months after that.  During that time, the former controlling shareholder’s son became the sole trustee of the trusts and assumed de facto control of the licensees and their radio licenses without having obtained the additional FCC approvals to do so.

Unrelated to these transfer issues, the license renewal applications for an AM station and FM translator formerly controlled by the deceased owner disclosed that the stations were off the air without FCC authorization.  In the case of the AM station, special temporary authority (“STA”) to remain silent was not requested until two months after a previous STA to be silent had expired.  With regard to the FM translator, it was silent for seven months before the licensee requested special temporary authority for it to be silent.

Under Section 73.1740(a)(4) (full power stations) and Section 74.1263(c) (FM translators) of the FCC’s Rules, licensees must notify the FCC within 10 days of a station going silent if it does not return to the air within that time.  If that silence is expected to last more than 30 days, the licensee must obtain FCC authorization to be silent for longer than 30 days.  Even where a station has received permission to remain silent for the maximum duration of an STA (six months), the licensee must seek renewal of that authorization every six months thereafter if the station continues to be silent.  Absent a special finding by the FCC preventing it, the license of a station that has been silent for more than 12 consecutive months (even with the required STAs in place) automatically expires under Section 312(g) of the Communications Act.

To conclude the FCC’s investigation of the alleged violations, the licensees agreed to enter into a Consent Decree.  Under the terms of the Decree, the licensees must pay a civil penalty of $25,000 and appoint a compliance officer to implement and administer a compliance plan.  The compliance plan must include a compliance manual and training program to prevent future violations.  The licensees must also submit a compliance report within 90 days, and then submit annual compliance reports for the next three years.

FCC Fines New York Retailer $685,338 for Marketing Noncompliant or Unauthorized  Wireless Microphones

The FCC recently fined a wireless microphone retailer $685,338 after years of warning the company to obtain proper FCC authorizations for the wireless microphones it was selling.  As we discussed in 2020, the FCC previously proposed the fine, asserting that the retailer had advertised 32 models of wireless microphones that did not comply with the Communications Act or the FCC’s equipment marketing rules.

Section 302(b) of the Communications Act prohibits, among other things, the sale or offering for sale of devices that fail to comply with the FCC’s radiofrequency (“RF”) equipment authorization regulations.  Similarly, Section 2.803(b) of the FCC’s Rules prohibits, with limited exceptions, the marketing of an RF device unless the device has first been properly authorized, identified, and labeled in accordance with the FCC’s Rules.  Section 74.851(f) of the FCC’s Rules requires devices emitting radiofrequency energy (such as wireless microphones) to be authorized in accordance with the FCC’s certification procedures to prevent interference before they can be marketed in the United States.  As detailed in Pillsbury’s Primer on FCC Radio Frequency Device Equipment Authorization Rules, equipment authorization procedures differ depending on the type of equipment involved.

The Commission initially cited the company in 2011 (the “2011 Marketing Citation”) for marketing wireless microphones that did not comply with the FCC’s equipment marketing rules.    Despite this citation, the retailer continued to market noncompliant microphones.  In response to a 2016 complaint alleging the company was still marketing noncompliant microphones, the FCC issued a Letter of Inquiry (“LOI”) in 2017.  This prompted a years-long investigation, during which the retailer never provided complete answers regarding the authorization status of its microphones.  In many cases, the FCC ID numbers provided by the retailer did not match the microphone’s advertised descriptions and/or claimed operating frequencies.

The FCC then issued another LOI in 2019 asking for (i) the actual frequencies, (ii) the FCC IDs, and (iii) the authorized frequencies for 82 wireless microphone models that were available for sale on the retailer’s website.  The retailer only provided answers for some of the wireless microphones.  The FCC determined that 32 of the 82 microphone models advertised for sale were not properly authorized and issued a Notice of Apparent Liability for Forfeiture in April 2020 (the “2020 NAL”) proposing a $685,338 fine.

In the 2020 NAL, the FCC found that the retailer apparently willfully and repeatedly violated Section 302 of the Communications Act and Sections 2.803 and 74.851 of the Commission’s Rules when it marketed 32 models of wireless microphones that were noncompliant or unauthorized.  The FCC also proposed a significant upward adjustment of the total “base fine” for such violations due to the retailer’s long record of repeated and continuous marketing violations and the egregious nature of the violations, specifically noting that the retailer marketed two microphones that apparently operated in the aviation band and thus had the potential to cause harmful interference to a critical public safety radio service.

The retailer responded to the 2020 NAL on July 10, 2020.  First, it asserted that the 2020 NAL should be cancelled because it did not prove a violation occurred, and it claimed that screenshots of its website showing prices and a shopping cart do not prove that a specific microphone was available for purchase.  The retailer also argued that to prove a violation, the FCC must show that the retailer had “the intention or ability to sell or lease” the microphones.  The FCC reasoned that a website containing images, descriptions, prices, the word “shop” and a shopping cart, and an “add to cart” function clearly indicated the products were advertised for sale.  The FCC further noted that the actual sale of an unauthorized device is not necessary to prove a marketing violation, and a website with thorough descriptions and pictures of the microphones is a clear indication that the retailer was marketing the microphones to the public.

Second, the retailer claimed the 2011 Marketing Citation provided insufficient and stale notice to support the 2020 NAL.  In many cases, entities that violate a rule and do not hold an FCC authorization or license are entitled to a non-monetary citation before an NAL can be issued, but the FCC pointed out that there is no expiration date for a citation, and the 2017 LOI followed by the 2020 NAL kept the retailer on notice that the FCC was continuing to investigate.  The FCC also rejected the claim that the rules cited in the Marketing Citation did not match the rules cited in the 2020 NAL, noting that the difference in the rule numbers was due to that rule section being reordered in 2013.

Third, the retailer argued that the proposed fine should be lowered because some microphones were authorized or should be grouped together and considered one model.  The FCC rejected this argument, noting the company did not provide any technical documentation to prove the devices were identical and should be grouped together.  The FCC also rejected the argument that some of the microphones had not been sold for more than a year prior to the 2020 NAL, explaining that a model does not have to be sold to be marketed.  The FCC also rejected the argument that some of the models were actually authorized, instead showing that the frequencies authorized under the FCC ID for a particular model did not match the frequencies provided by the retailer in its 2020 NAL response.

Finally, the retailer claimed that the upward adjustments were excessive and unwarranted.  The retailer argued that the fines for the microphones capable of operating in the aviation band should be eliminated or reduced because it was not proven that the models in fact operated in the aviation band.  However, the FCC pointed out that the retailer never actually stated that the two models were not capable of operating in the aviation band and had not provided information to show the devices could not operate in that band.  The retailer also claimed that there was no evidence of a continuing violation to support the upward adjustment.  The FCC reaffirmed its conclusion that the facts supported an upward adjustment, noting that the 2011 Marketing Citation and the 2020 NAL both showed noncompliant wireless microphones being marketed on the retailer’s websites.  In addition, the FCC rejected the retailer’s argument that it did not understand the FCC’s inquiries because it is not involved in the communications business.  The FCC explained that the retailer received multiple citations and communications from the FCC and any continued ignorance of the law did not excuse or mitigate the violations.  The Commission also noted that the retailer’s website continues to show many of the models at issue – a clear indication the company had no intent of complying with the FCC’s Rules.

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

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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 the station’s signal to at least one viewer outside the station’s local service area during 2021.  These stations may be eligible to file royalty claims for compensation with the United States Copyright Royalty Board.  These filings are due by August 1, 2022.

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 August 1, 2022 will not be able to collect royalties for carriage of their signals during 2021.  While claims are typically due July 31, that date falls on a Sunday this year.  Stations will therefore have until the first business day in August to file.

In order to file a cable royalty claim, a television station must have aired locally-produced programming of its own and had its signal carried outside of its local service area by at least one cable system in 2021.  Television stations with locally-produced programming whose signals were delivered to subscribers located outside the station’s Designated Market Area in 2021 by a satellite provider are also eligible to file royalty claims.  A station’s distant signal status should be evaluated and confirmed by communications counsel.

Cable and satellite claim forms can no longer be filed in paper form through mail or courier, and instead must be filed electronically via eCRB, the Copyright Royalty Board’s online filing system. Prior to filing electronically, claimants or their authorized representatives must register for an eCRB account.  First-time electronic filers should register for an account as soon as possible, as there is a multiple day waiting period between initial registration and when a user may submit claims.  Also, because accounts can become locked due to inactivity, filers who already have an eCRB account should confirm that their login credentials still work.

To submit claims, stations are required to supply the name and address of the filer and of the copyright owner, and must provide a general statement as to the nature of the copyrighted work (e.g., local news, sports broadcasts, specials, or other station-produced programming).  Claims must be submitted by 11:59 pm ET on August 1, and claimants should keep copies of all submissions and confirmations of delivery.

Please contact any of the group’s attorneys for assistance in determining whether your station qualifies to make a claim and in filing the claim itself.

A PDF version of this article can be found here.

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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:

  • Turning Away FCC Inspectors Leads to a Notice of Violation for Florida Low Power FM Station
  • Texas FM Stations Receive Short-Term License Renewals After Extended Silence
  • FCC Proposes $116 Million Robocalling Fine for TCPA Violations

West Palm Beach LPFM Station Turns Away FCC Inspectors, Receives Notice of Violation

The FCC Enforcement Bureau issued a Notice of Violation to the licensee of a West Palm Beach, Florida low power FM station after two FCC enforcement agents were denied entry to conduct an inspection.

Under Section 73.1225(a) of the FCC’s Rules, “[t]he licensee of a broadcast station shall make the station available for inspection by representatives of the FCC during the station’s business hours, or at any time it is in operation.”  In this case, two agents visited the station to conduct an inspection and were denied access to the station by on-site station personnel.  The station owner was reached by phone during the visit and also refused to make the station available for inspection, even after the agents reminded the owner of the FCC’s rule for station inspections.

The Notice of Violation requires that within 20 days, the station licensee: (1) fully explain the violation, including all relevant facts and circumstances; (2) include in its response a statement of the specific action(s) taken to correct each violation and preclude recurrence; and (3) include a timeline for completion of any pending corrective actions.  An authorized officer of the licensee with personal knowledge of the representations made in the response must also submit an affidavit verifying the truth and accuracy of the provided information.  Though the Notice of Violation itself carried no monetary penalty, the Enforcement Bureau can take additional action in the future, including issuing a fine.

Extended Silent Periods Result in Shortened License Renewal Terms

Seven Texas FM stations licensed to the same company were given one-year license renewal terms after extended periods of silence during their last license term.  In all instances, the license renewal applications were filed on time, but the stations were silent for at least 25% of their license term and, in the case of six of the seven stations, silent for at least 40% of the extended term that included the time the license renewal applications were pending.  Under FCC precedent, broadcast station silence is considered a fundamental failure to serve the station’s community since a silent station is not airing public service programming.  Even turning on the signal between long periods of silence is thought by the FCC to be of little value, as the listening public will not be accustomed to tuning into the station.

When considering whether to grant a station’s license renewal, the FCC looks at (1) whether the station has served the public interest, convenience, and necessity; (2) whether there have been any serious violations of the Communications Act or the Commission’s rules; and (3) whether there have been any violations which, taken together, constitute a pattern of abuse.  If the station fails to meet this standard, the Commission may either deny the license renewal application (with notice and an opportunity for a hearing) or, as it did in this case, grant a renewal for a term less than the standard eight-year term. Continue reading →

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Full power TV, Class A TV, LPTV, and TV Translator stations licensed to communities in California must file their license renewal applications by August 1, 2022.

August 1, 2022 is the license renewal application filing deadline for commercial and noncommercial TV broadcast stations licensed to communities in the following states:

Full Power TV, Class A, LPTV, and TV Translator Stations:
California

Overview

The FCC’s state-by-state license renewal cycle began in June 2019 for radio stations and in June 2020 for television stations. 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 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. 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 Form 323 or 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 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 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. LPTV license renewal applicants should complete the attached Statement of Compliance and place it in their station records file.

Online Public Notice Required for TV Translator and Certain LPTV Stations

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 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.

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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 applications due by August 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, August 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 August 1, 2021 through July 31, 2022.  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, 2021 through July 21, 2023 for this year’s report (cutting it off up to ten days prior to July 31, 2023), then next year, the Nonexempt SEU must use a period beginning July 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 California, North Carolina, and South Carolina must earn at least the required minimum number of Menu Option credits during the two year “segment” between August 1, 2021 and July 31, 2023, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt radio station SEUs licensed to communities in Illinois and Wisconsin must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between August 1, 2020 and July 31, 2022, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Illinois and Wisconsin must earn at least the required minimum number of Menu Option credits during the two-year “segment” between August 1, 2021 and July 31, 2023, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in California, North Carolina, and South Carolina must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between August 1, 2020 and July 31, 2022, as well as during the previous two-year “segments” of their license terms.

Additional Obligations for Stations Whose License Renewal Applications Are Due by August 1, 2022 (Television Stations Licensed to Communities in California)

August 1, 2022 is the date by which television stations in California 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. 

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by July 10, 2022, reflecting information for the months of April, May, and June 2022.

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 July 10, 2022, covering the period from April 1, 2022 through June 30, 2022.

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 2022 Second Quarter Issues/Programs List Advisory for Broadcast Stations.

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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 Proposes $34,000 Fine for Interrupting Emergency Communications During Wildfire
  • Late Programs/Issues Lists and Failure to Disclose Violation Causes $15,000 Proposed Fine for North Dakota Noncommercial Licensee
  • License Rescinded for Mississippi Station Not Built as Authorized

Amateur Ham Radio Operator Receives $34,000 Proposed Fine for Transmitting on Radio Frequency Used by Fire Suppression Aircraft

The FCC issued a Notice of Apparent Liability for Forfeiture (NAL) to an amateur radio operator for interfering with the U.S. Forest Service while it and the Idaho Department of Lands were directing aircraft fighting a 1,000-acre wildfire outside of Elk River in northern Idaho. The FCC found that the individual violated Sections 301 and 333 of the Communications Act (the “Act”), and Sections 1.903(a) and 97.101(d) of the Commission’s Rules by operating on government frequencies without a license and causing intentional harmful interference to licensed radio operations.

On July 22, 2021, the FCC received a complaint from the U.S. Forest Service about an individual who had been transmitting on government frequencies, noting that the transmissions had caused interference to fire suppression aircraft operations. The complaint explained that on July 17th and 18th, firefighters working on the “Johnson Fire,” a 1,000-acre wildfire on national forest lands in northern Idaho, received several communications from an individual calling himself “comm tech.” He advised firefighters and aircraft of hazards at a radio repeater sight in Elk Butte and identified his location as the Elk River airstrip. On July 18th, the fire operations section chief drove to the airstrip and found an individual who admitted to transmitting on government frequencies as “comm tech.”

On July 22, 2021, a U.S. Forest Service Law Enforcement and Investigations Branch agent interviewed the individual about the incident. The individual admitted to operating on the government frequency and that he was not authorized to do so. On October 15, 2021, the FCC sent a Letter of Inquiry (LOI) to the individual. In the individual’s response, he again admitted to operating on the government frequency but argued that he was not trying to cause interference and instead was trying to provide information to the firefighters. He suggested a third party may have also been transmitting, and may have continued to do so after he spoke to the fire chief and ceased his own operations.

Section 333 of the Act states that “[n]o person shall willfully or maliciously interfere with or cause interference to any radio communications of any station licensed or authorized by or under the Act or operated by the United States government.” The legislative history of Section 333 describes willful and malicious interference as “intentional jamming, deliberate transmission on top of the transmissions of authorized users already using specific frequencies in order to obstruct their communications, repeated interruptions, and the use and transmission of whistles, tapes, records, or other types of noisemaking devices to interfere with the communications or radio signals of other stations.” Section 97.101(d) of the Commission’s Rules states that “[n]o amateur operator shall willfully or maliciously interfere with or cause interference to any radio communications or signal.” The FCC found that the individual violated Sections 333 of the Act and 97.101(d) of the Rules when he caused harmful interference by making repeated interruptions to the Forest Service’s communications. The unauthorized transmissions impeded legitimate communications and resulted in personnel being diverted away from the fire and to his location at the airstrip.

Section 301 of the Act states that “[n]o person shall use or operate any apparatus for the transmission of energy or communications or signals by radio . . . without a license granted by the Commission.” Section 1.903(a) of the FCC’s Rules requires that wireless licensees operate in accordance with the rules applicable to their particular service, and only with a valid Commission authorization. The FCC found that the individual violated those sections when he made eight separate radio transmissions on the government’s frequency, as he did not have a license to operate on that frequency. According to the FCC, his statements to the U.S. Forest Service and his written response confirmed his actions.

Section 1.80 of the FCC’s Rules establishes a base fine of $10,000 for operating without a license, and $7,000 for causing interference to authorized stations for each violation or each day of a continuing violation. Here, the Commission proposed a total fine of $34,000 – a $10,000 fine for each of the two days of unlicensed operations, and $7,000 for each of the two days of harmful interference. The FCC concluded that there were no mitigating factors supporting any downward adjustment of the proposed fines, and issued the NAL for the full $34,000.

FCC Proposes $9,000 and $6,000 Fines for Minnesota and North Dakota Television Stations’ Late-Filed Programs/Issues Lists

The FCC issued proposed fines of $9,000 and $6,000 in response to allegations that two noncommercial television stations owned by a North Dakota licensee failed to timely upload all of their Quarterly Programs/Issues Lists to the stations’ Public Inspection Files. An FCC staff review of the stations’ Public Inspection Files as part of the license renewal process revealed that during the license term, both stations uploaded numerous Quarterly Programs/Issues Lists late and failed to properly disclose these violations in the stations’ license renewal applications.

Section 73.3527(e)(8) of the FCC’s Rules requires every noncommercial broadcast station to place in its Public Inspection File “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 include a brief narrative of the issues addressed, as well as the date, time, duration, and title of each program addressing those issues. The list must be placed in the Public Inspection File within 10 days of the end of each calendar quarter. Continue reading →

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Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others. This month’s issue includes:

  • FCC Shifts Battle Against Pirates to Landowners of Pirate Radio Sites
  • Nevada Company Faces $100,000 Fine for Engaging in Prohibited Communications During FCC Auction
  • FCC Proceeds With $17,500 Fine Against Arkansas Broadcaster for Violations Discovered During License Renewal Review

FCC’s Pirate Radio Enforcement Targets Landowners

The Enforcement Bureau recently issued Notices of Illegal Pirate Radio Broadcasting to four property owners in Pennsylvania, Maryland, and Oregon after investigations of unauthorized radio broadcasts found radio signals emanating from their properties. The Communications Act prohibits the transmission of radio signals without prior FCC authorization, as they can, among other things, pose risks to public safety by interfering with licensed operations such as air traffic control.

The FCC has stepped up its efforts to combat illegal broadcast operations, colloquially known as “pirate radio,” in the wake of Congress’s passage of the PIRATE Act in early 2020. Under Section 511 of the PIRATE Act and Section 1.80 of the FCC’s Rules, the Commission may now impose fines of up to $2 million against individuals or entities that knowingly permit pirate radio operations on their property. Additionally, the PIRATE Act permits the FCC, without first having to issue a Notice of Unlicensed Operation, to propose a penalty against any person that “willfully and knowingly does or causes or suffers to be done any pirate radio broadcasting.” The FCC will issue a Notice of Illegal Pirate Radio Broadcasting where it has reason to believe a property owner or manager is permitting illegal broadcasts from its premises. This Notice provides the landowner a chance to remedy the situation before enforcement action is taken.

In response to complaints of illegal FM broadcast operations at four locations in Pennsylvania, Maryland, and Oregon, the Enforcement Bureau issued Notices of Illegal Pirate Radio Broadcasting to the respective landowners. The Notices indicated that FCC investigators had confirmed radio signals were emanating from those properties without an FCC license authorizing such transmissions. The landowners were also warned that they face a fine of up to $2 million if the FCC determines they continued to permit illegal broadcasts from their property.

While the FCC’s rules create exceptions from licensing requirements for certain extremely low-powered wireless devices, the Commission’s agents determined that the transmissions originating from the properties far exceeded those levels. The property owners have ten business days from the date of their respective Notices to (1) respond with evidence demonstrating that pirate radio broadcasts are no longer occurring on their property, and (2) identify the individual(s) involved in the illegal broadcasts. If the parties fail to respond to the Notice altogether, the FCC may still determine that the parties had sufficient knowledge of the illegal broadcasts to warrant enforcement action, including substantial fines.

FCC Proposes to Fine Wireless Company $100,000 for Violating Rules Against Communicating Bidding Strategies During FCC Auction

The FCC released a Notice of Apparent Liability for Forfeiture (“NAL”) proposing to fine a wireless broadband provider (the “Company”) $100,000 for engaging in prohibited communications of bidding and bidding strategies during the FCC’s Rural Digital Opportunity Fund Phase I Auction (Auction 904) and failing to timely report the prohibited communications.

Section 1.21002(b) of the FCC’s Rules forbids FCC auction applicants from conveying certain information to other auction applicants during the “quiet period.” This “quiet period” begins on the deadline for filing a short-form application to participate in the auction and ends on the deadline for winning bidders to submit long-form applications. The rule applies to any communication by an applicant regarding its own, or any other applicant’s, bids or bidding strategies. Continue reading →