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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.

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements.  Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term.  These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the Public Inspection Files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application.  The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities.

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. Continue reading →

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The FCC’s rules require that all Emergency Alert System (EAS) Participants update their identifying information in the EAS Test Reporting System (ETRS) annually.  Accordingly, all EAS Participants must update and submit their ETRS Form One for 2024 by Friday, October 4, 2024.

For broadcasters, EAS Participants include full power radio and TV broadcast stations, low power FM stations, and Class D noncommercial educational FM stations.  Low power TV stations, unless they are operating as a TV translator station, must also submit a Form One.  Stations must file a Form One even if they are silent pursuant to a grant of Special Temporary Authority.

The following types of stations are exempt from this filing requirement:

  • TV translator stations
  • FM translator or booster stations that entirely rebroadcast the programming of a local broadcast radio station
  • Stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point). Note that the hub station (or common studio or control point) must file a Form One.

While the FCC often ties the deadline for filing the annual Form One to the occurrence of a nationwide EAS test, the Federal Emergency Management Agency and FCC have not announced a national test this year.  As a result, the Form One must be filed independently to satisfy the annual filing obligation.  The most recent nationwide test was held October 4, 2023.  That test was largely successful, with nearly 97 percent of EAS Participants receiving the test message and about 94 percent of Participants successfully relaying the message.  These numbers represent a seven percent increase over the receipt and relay success rates reported for the 2021 test (the last nationwide test conducted prior to 2023).

Form One filers should review the FCC’s Public Notice concerning this filing requirement, as well as the FCC’s ETRS Form One Filing Guide and Frequently Asked Questions for information about using the ETRS, and consult their state’s EAS Plan before responding to the EAS operational area and monitoring assignments prompts.

Filers should be sure to have on hand the FCC username and password associated with the FCC Registration Number(s) (FRN) of the entity(ies) for which they are filing.  Users who have not previously created a username may do so by visiting the User Registration System.  Filers should visit the main ETRS page to file their Form One in advance of the October 4 deadline in case they encounter any filing portal errors and need time to resolve them before the deadline.

 

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Earlier this week, the FCC opened CORES to accept FY 2024 regulatory fee payments and announced a payment deadline of September 26, 2024.  Since that time, however, broadcasters have encountered a number of issues when trying to pay their fees.  The most common issues include:

  • Difficulty accessing the system
  • Assessment of inaccurate fees
  • Failure to assess fees for all stations associated with a licensee’s FRN
  • Stations being listed in incorrect service categories (e.g., a TV translator being listed as a full-power TV station, and vice versa)
  • Fee-exempt stations being listed as feeable

The FCC today acknowledged that incorrect population count information in particular is resulting in incorrect fee assessments for a significant number of AM and FM stations.  In response, the FCC has temporarily deactivated the fccfees.com lookup site and has also added the following notice on the CORES log-in page:

NOTICE: The FCC is continuing to do its due diligence to reevaluate the population count information for AM and FM broadcasters for FY 2024 regulatory fees. We expect to have this situation resolved early next week. In the meantime, we request that AM and FM broadcasters do not make any payments in CORES. Thank you for your patience.

Accordingly, AM and FM broadcasters should hold off on generating their fee reports or submitting regulatory fee payments to the FCC until this issue is resolved.  Other broadcasters would also be wise to pay close attention to the fees that CORES assesses for their stations to ensure that they do not under- or over-pay and that all stations are properly accounted for.  We recommend that you seek assistance from experienced FCC counsel if you encounter any of the issues listed above (or other system issues). As noted in our previous post, failure to pay in full can lead to significant interest and penalties (and efforts to recoup overpayments may be time consuming).

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Following last week’s adoption of the 2024 Regulatory Fee Report and Order, which we discussed here, the Federal Communications Commission today released its annual Public Notice setting 11:59 p.m. Eastern Time on September 26, 2024 as the payment deadline for fiscal year 2024 regulatory fees.  The FCC also opened  the online system for submitting those payments.

Note that the FCC’s old “Fee Filer” system has been retired and regulatory fees must now be paid via the FCC’s Commission Registration System (CORES).  Logging into CORES requires users to set up a personal account using an email and password of their choosing.  We have previously provided step-by-step instructions for how to do so here.  Additionally, in March 2024, CORES moved to a two-step login authentication process, whereby each time a user logs into CORES, the user will be prompted to request a six-digit verification code that will be emailed to the email address(es) associated with the username.  The user must then enter the code into CORES to finish the log-in process.

As this is still a fairly new process, we suggest logging in well before the payment deadline to ensure you are able to access the system and successfully pay your regulatory fees, as late or unpaid fees incur interest and are assessed a 25% penalty, and can put a licensee in “red light” status.  Stations that are unable to make their regulatory fee payment by the deadline or that need additional relief such as a payment plan or reduction/deferral of their fees should make those requests to the FCC as soon as possible.  The Commission released a separate Public Notice detailing the procedures to apply for such relief.

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Today, the Federal Communications Commission released its Report and Order setting this year’s annual regulatory fee amounts.  Payments will be made electronically via the FCC’s Commission Registration System (CORES), but the FCC has yet to announce the date the system will open or the date the fees are due.  Given that the fees must be collected before the end of this month, that announcement is expected very soon.

For fiscal year (FY) 2024, the FCC will be collecting a total of $390,192,000 to fund the FCC’s operations, the same amount as last year.  For the second year in a row, however, broadcasters will see a decrease in their regulatory fees.  As we noted in 2023, this decrease can be credited at least in part to the years-long effort by state broadcasters associations and the NAB to persuade the FCC to reevaluate its methodology for allocating regulatory fees and to expand the pool of entities that are charged regulatory fees.  These past few years have seen significant progress on the first initiative, resulting in this year’s reduced fees, but the battle to convince the FCC to expand its payor base (as dictated by the governing statute) continues.

For television stations, the FCC will use the same population-based methodology for FY 2024 as it used in FY 2023.  However, the FCC has adopted a fee of $.006598 per-person-served for FY 2024, which is a decrease from the $.007799 per-person-served used for FY 2023 TV regulatory fees.  Some additional shifts will be caused by FY 2024 fees being the first to incorporate 2020 U.S. Census data into these calculations.

Radio broadcasters will also see a decrease in their regulatory fees this year, with a reduction of approximately 5% across the board.  To determine the precise regulatory fees owed, broadcasters should consult Appendices C (Radio) and G (Television) at the end of the Report and Order.

Another change for FY 2024 is the elimination of the temporary relief measures that were adopted during the COVID-19 pandemic.  The FCC had provided relief to payors facing financial hardship as a result of the pandemic, including allowing regulatees in “red light” status (those already behind on regulatory fee or other payments to the FCC) to “request waiver, reduction, deferral, and/or installment payment of their FY 2023 regulatory fees, provided that those regulatees resolve all of the delinquent debt they owe to the Commission in advance of the Commission’s decision on their requests for relief.” Continue reading →

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Pillsbury’s communications lawyers have published the 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:

  • Florida Radio Station Faces $14,000 Proposed Fine for Contest Rule Violations
  • $6,500 Fines Targeted at Mississippi and Tennessee FM Translators for Late-Filed License Renewal Applications and Unauthorized Operation
  • FCC Continues Focus on Collecting Unpaid Regulatory Fees from Broadcasters

FCC Fines Florida Radio Station for Contest Rule Violations

The FCC proposed to fine a radio broadcaster $14,000 for violating the Commission’s Contest Rule while conducting a multi-station contest.  Specifically, the FCC issued a Notice of Apparent Liability for Forfeiture (NAL) asserting that the broadcaster failed to select and/or notify contest winners in a timely fashion, as required by the licensee’s announced contest terms.

Section 73.1216 of the FCC’s Rules requires a licensee to “fully and accurately disclose the material terms” of a contest it broadcasts or promotes and to conduct the contest “substantially as announced and advertised.”  Material terms include, among other things, eligibility restrictions, the time and means of selecting winners, and the extent, nature, and value of prizes.  Prizes must be awarded promptly, and the FCC has consistently found violations where stations failed to award prizes in accordance with the announced contest terms.

In April 2021, the FCC received a complaint alleging that one of the licensee’s radio stations had not conducted a contest in a manner “substantially as announced and advertised.”  The Enforcement Bureau issued a Letter of Inquiry (LOI) to the licensee in August 2021.  In its November 2021 response, the licensee explained that during the first half of 2021, it had conducted a nationwide contest on 194 of its stations.  During the contest, each participating station announced a contest “keyword” once an hour, for eleven hours each day, for 27 days.  Listeners could qualify to win by submitting this keyword via text message or the internet before the end of the hour in which the word was announced.  One national winner would then be picked each hour from across all stations, creating 297 winners (11 per day x 27 days).  The prize was a $1,000 check and winners were to be notified within 72 hours, according to contest terms.

Upon review, the licensee discovered that as a result of human error, the contest had not been conducted according to the announced contest terms.  In its LOI response, the licensee disclosed that (1) the part-time employee tasked with randomly selecting a national winner from among those qualified sometimes failed to do so; (2) the part-time employee’s manager did not provide supervision to confirm winners were selected; and (3) some winners were never notified they had been selected.  Ultimately, 50 winners out of 297 were not timely selected and/or notified.  After receiving the LOI but before submitting its response to the FCC, the licensee selected and notified 50 “replacement” winners.

The licensee argued that its actions did not amount to a violation of the rules because (1) an insubstantial number of winners that were not timely selected/notified compared to the total number of winners; (2) the contest terms only required the licensee to select “a total of up to, but not more than,” 297 verified winners; (3) it was not done intentionally, but was merely the “poor performance of two employees” that caused the selection/notification failures; and (4) the licensee went to “great lengths” to mitigate the selection/notification failures, eventually awarding prizes to all “winners” who completed the required paperwork. Continue reading →

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Pillsbury’s communications lawyers have published the 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:

  • Failure to Pay Annual Regulatory Fees Trips Up Texas AM Radio Licensee
  • Communications Provider for Deaf and Hard of Hearing Consumers Resolves Investigation with Multimillion Dollar Consent Decree
  • Investigation into Unauthorized Transfer of Control of Colorado Radio Stations Leads to $3,400 Fine

License of Texas AM Station Could Be Revoked If Regulatory Fees Remain Unpaid

The licensee of a Texas AM station must either pay its overdue regulatory fees or demonstrate why the fees are inapplicable or should be waived or deferred.  According to the Federal Communications Commission’s records, the radio station currently owes unpaid regulatory fees exceeding $3,000.  The fees were originally due on September 30, 2022, and the outstanding amount continues to accrue interest and other charges until it is paid in full.

Under Section 9 of the Communications Act of 1934 and Section 1.1151 of the FCC’s Rules, the FCC has the authority to assess annual fees to cover its operational costs.  These fees are typically due in late September to ensure the agency is fully funded at the start of the federal government’s fiscal year in October.  Late payment of these fees incurs a 25% penalty plus interest.  If licensees fail to pay regulatory fees and any penalties or interest, the FCC may revoke their affected licenses and other authorizations.

Prior to issuing an Order to Pay or to Show Cause, the FCC sent a demand letter to the licensee.  When payment was not received, the Commission transferred the debt to the U.S. Department of Treasury.  Subsequently, the FCC requested the return of the matter from the Treasury Department in order to pursue further collection efforts.

The Order demands that within 60 days the licensee either pay the full outstanding debt or demonstrate why the fee is inapplicable or should be waived or deferred.  The Media Bureau noted in the Order that failing to provide evidence of payment or to demonstrate why the fee isn’t applicable by the 60-day deadline could result in revocation of the station’s license. Continue reading →

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The Federal Communications Commission (FCC) last week released a highly anticipated Notice of Proposed Rulemaking (NPRM) seeking comment on proposed disclosure requirements for political ads containing AI-generated content.  The item was adopted earlier this month by a 3-2 party-line vote, nearly two months after FCC Chairwoman Rosenworcel first announced its circulation among the commissioners for consideration.

As discussed in more detail below, the proposed rule would require radio and TV broadcasters to (1) inquire of any person making a request to buy airtime for political advertising whether the ad contains AI-generated content; (2) make on-air disclosures of AI use with regard to political ads containing AI-generated content immediately before or during their airing; and (3) include a disclosure of AI use in the station’s Political File records for each such ad buy.  While this post focuses on the NPRM’s broadcast-specific proposals, we note that it proposes similar obligations for cable operators, Direct Broadcast Satellite providers, and Satellite Digital Audio Radio Service licensees engaged in program origination, as well as for Section 325 permit holders (those authorized to export programming for transmission back into the United States).

Aware that such rules might conflict with similar efforts by states and other federal agencies, the NPRM characterizes the proposed disclosure requirements as a “complement” to efforts to regulate AI in political advertising that are underway in various states and at the Federal Election Commission (FEC), which we wrote about here and here.  However, FEC Chairman Sean Cooksey made his contrary views clear in a letter last month to FCC Chairwoman Rosenworcel in which he stated that the FEC has exclusive jurisdiction in this area and “the FCC lacks legal authority to promulgate conflicting disclaimer requirements only for political communications.”

The proposal would require broadcasters to do the following:

Duty of Inquiry:  Broadcasters would need to inform each political advertiser, at the time the station agrees to air a political ad, of the requirement that stations must air a disclosure for any ad that includes AI-generated content and then inquire of the buyer as to whether the ad includes such content.  While styled as a “simple inquiry,” the NPRM acknowledges various challenges that are likely to arise.  It seeks comments on how to deal with such situations, including, for example, where a station is working with a media placement agency that had no role in the creation of the ad and which may not know whether it includes AI-generated content, or the station receives political content from a network or syndicator and has no direct contact with the advertiser.

On-Air Disclosure:  A broadcast station that receives a candidate or issue ad containing AI-generated content would need to air a disclosure immediately before or during the ad to inform viewers of the ad’s use of AI.  The proposal contemplates and seeks comment on the following standardized language for the disclosure: “[The following]/[this] message contains information generated in whole or in part by artificial intelligence.”  Once again, the NPRM acknowledges there are challenges broadcasters will face in complying with the proposed rule.  These include (a) what should a station do if it has received no response to its inquiry about AI use; (b) what should a station do if it was told by the person or entity buying the time that an ad contains no AI-generated content and is later informed by a credible third party that the ad does include AI-generated content (and who should qualify as a “credible third party?”); and (c) what should a station do when it receives political programming through a network and lacks any information from the advertiser on AI use as well as the ability to insert a disclosure in network-delivered programming?  The NPRM seeks comment on these and many other issues that may affect a station’s ability to comply with the proposed disclosure requirement.

Online Disclosure: Adding yet more to the burden on broadcasters, the NPRM proposes requiring broadcasters to include in their online Political Files the following written disclosure for each political ad containing AI-generated content: “This message contains information generated in whole or in part by artificial intelligence.”

Because of the FCC’s limited jurisdiction, the proposed rules would apply only to certain FCC-regulated entities, doing nothing to address the use of AI in political ads that voters see and hear on social media or elsewhere.  As a result, it would impose a significant burden on regulated entities while leaving unregulated entities like social media—the primary source of deceptive political information—completely unregulated.  This would incentivize advertisers to put their AI ads on any media other than radio and TV, both because of their desire not to include disclosures and the added bureaucracy/delay involved in the multi-step process stations would need to follow with advertisers to determine if a disclosure is needed (and the added time needed to then insert such a disclosure). Continue reading →

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On July 24, 2024, an en banc panel of the U.S. Court of Appeals for the Fifth Circuit released a decision in Consumers’ Research et al. v. FCC holding that the Federal Communications Commission’s Universal Service Fund (“USF”) contribution mechanism violates Article I, Section 1 of the Constitution and remanded the issue to the FCC for further proceedings.  The case stems from petitioner’s constitutional challenge of the First Quarter 2022 USF contribution amount.  The court explained that (1) USF contributions are a tax; (2) Congress may have improperly delegated the legislative power to tax to the FCC without any intelligible guiding principles; (3) the FCC, in turn, may have impermissibly delegated taxing power to private entities; and (4) even absent a definitive answer on these delegation questions, the combination of Congress’s broad delegation and the FCC’s sub-delegation to private entities “certainly amounts to a constitutional violation.”  The 9-7 decision reverses a March 2023 three-judge panel decision and creates a circuit split with the DC, Sixth, and Eleventh Circuits, which rejected similar arguments in July 2012, May 2023, December 2024, respectively. Continue reading →

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Chairwoman Rosenworcel announced on July 16 that the Commission is considering adoption of a Notice of Proposed Rulemaking (NPRM) seeking comment on proposals to regulate AI-generated robocalls. The draft NPRM, released this afternoon, is the outgrowth of a November 2023 Notice of Inquiry and follows several recent FCC actions intended to mitigate the potential for bad actors to use AI technology in robocalls to mislead consumers. Over the last year, the FCC (1) has declared that the Telephone Consumer Protection Act’s (TCPA) restrictions on the use of “artificial or prerecorded voices” apply to AI-generated voices; (2) proposed a multimillion dollar fine against a person suspected of causing illegal robocalls that used a voice artificially created to sound like President Biden; and (3) sent letters to major U.S. telecommunications companies requesting information about their efforts to prevent illegal robocalls that use AI technology from reaching customers. Separately, the FCC is also considering whether to adopt disclosure requirements for political advertising that uses AI-generated content.

Continue reading →