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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 Levies $10,000 Fine for Noncommercial Station’s Public Inspection File Security Protocols
  • Louisiana AM Daytimer Fined for Operations After Sunset
  • $7,000 Fine for Late-Filed License Renewal Cancelled

California Broadcaster Fined $10,000 for Delaying Access to Its Public Inspection File

The FCC has repeatedly held that stations may not require members of the public to make prior appointments to inspect the public inspection file, or otherwise delay or deny access to the public inspection file during normal business hours. In a 2001 decision, the FCC stated that “a delay of ten minutes to satisfy legitimate security concerns may be reasonable,” but has never established a precise threshold as to how long the security process can take before it becomes too burdensome for the public file visitor. Historically, the FCC has imposed its full base forfeiture of $10,000 for such violations.

According to a recently released Notice of Apparent Liability (“NAL”), the FCC fined a California noncommercial broadcaster $10,000 for violating Section 73.3527(c) of the Commission’s Rules, which requires broadcasters to provide unfettered access to a station’s public inspection file during regular business hours.

The NAL indicated that on three separate occasions in August 2010, an Enforcement Bureau field agent from the Los Angeles office was denied access to the main studio, the station personnel, and the public inspection file. During the three separate visits to the station, the field agent chose not to disclose his connection to the FCC, and instead presented himself as a member of the general public. On each visit, the field agent was denied access to the station by security personnel because the field agent did not have a prior appointment. On his fourth attempt to access the station’s public inspection file, the field agent informed the security personnel of his relationship to the FCC, provided formal identification, and requested access to the public inspection file, the main studio, and the station’s staff.

At that point, the field agent was allowed to enter the station. During the resulting inspection, the field agent determined that the station had a general policy of requiring members of the public to request an appointment to view the public inspection file in violation of the unfettered access provision of Section 73.3527(c) of the Commission’s Rules. Upon finally being permitted to look at the file, the agent determined that the public inspection file was complete. However, because of the obstacles placed in the path of those seeking to view the file, the FCC presented the station with a $10,000 fine.

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For many television stations, network non-duplication and syndicated exclusivity protection are a distant memory. With the ever-increasing number of non-broadcast programming services available to cable operators, the number of distant station signals imported by cable and satellite into local markets has fallen dramatically. As a result, many local television stations are no longer vigilant in sending out network non-duplication or syndicated exclusivity notices. Recent developments arising in retransmission consent negotiations, however, make clear that television stations need to be more diligent than ever in making sure that they send out timely notices, and that the notices conform to all FCC requirements.

Recently, Smith Media (Smith) was unable to reach agreement with Time Warner Cable (TWC) regarding retransmission consent for the signals of several network-affiliated stations owned by Smith, so TWC dropped a number of Smith stations from its channel line-ups. Then TWC began to import distant network-affiliated station signals into the markets where it lost access to the Smith network-affiliated stations. It appears that Smith had not kept its network non-duplication notices up to date, opening a window in which TWC could avoid the exclusivity which Smith would normally have been able to enforce through its network contracts.

TWC threatened to do the same thing during its dispute with Sinclair Broadcast Group (Sinclair). While the Sinclair dispute appears to have been settled without its stations being dropped by TWC, an impasse in negotiations would have tested its non-duplication protection rights.

As noted in a recent trade periodical, not all broadcasters have been diligent in perfecting their non-duplication rights in recent years. Television station licensees facing retransmission consent negotiations should carefully review their non-duplication protection notices to ensure that they conform to FCC requirements. The notice rules are complex, and it may be advisable to review them with your counsel.

Because non-duplication notices must be sent to multichannel video program distributors within 60 days of execution of a network affiliation agreement, it may already be too late to cure a failure to give timely notice. In such a case, the station operator should consider contacting their network to amend or enter into a new network affiliation agreement in order to obtain updated network affiliation rights, thereby triggering a new 60-day notice period.

The Smith and Sinclair disputes raise two other important issues for television broadcasters. First, it appears that the reason that TWC could import distant network signals into Smith’s markets is that the standard TWC retransmission consent agreement permits the carriage of the station being retransmitted by any TWC system anywhere, not just within the station’s home market. It is advisable that all stations review the content of their retransmission consent agreements carefully, and, at least in the future, be sure to limit carriage rights to their own market, and perhaps to areas in which they are significantly viewed or have historically been carried.

Second, the other issue which came to light is that TWC has entered into an agreement with the FOX Network which allows TWC to carry a direct feed of FOX Network programming for a period of up to one year when a local FOX affiliate refuses to grant TWC consent to retransmit its signal. This could substantially reduce the local broadcaster’s leverage in retransmission consent negotiations, and is certain to be a major topic of discussion between network affiliate organizations and their networks.

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The Office of Management and Budget is currently considering whether to approve a revised version of FCC Form 303-S, the “Application For Renewal of Broadcast Station License” that all commercial and noncommercial full-power radio and television stations will be required to use when they file for their next renewal of license. The FCC has made several modifications to the prior version of the form.

One of the modifications is a new renewal certification which will constitute a material representation to a government agency. For that reason, every renewal applicant will want to be doubly sure that it has a reasonable, good faith basis for responding to the certification with an unqualified “Yes” and adequate documentation to support such response. Specifically, the revised renewal form seeks a “Yes” or “No” response to the new certification that the licensee’s “advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.” According to the FCC, this new certification is needed to combat “no urban/no Spanish dictates” that have turned up in some broadcast advertising arrangements. The FCC believes that those “dictates” discriminate against broadcast stations which target African American and Hispanic audiences and the businesses they support.

When it adopted the “nondiscrimination clause” requirement, the FCC chose not to provide specific, or even illustrative, language to be included in advertising contracts. Such language would have given applicants a better idea of what the FCC actually believes qualifies as an adequate “nondiscrimination clause.” As a result, licensees have been left to rely upon their own interpretations of what constitutes compliance.

One question of interpretation relates to the scope of the nondiscrimination clause: is it adequate if only two types of prohibited discrimination are identified, namely race and ethnicity, or must the clause include all other types of discrimination prohibited under federal, state and local law? We know that the rule making from which the nondiscrimination clause arose focused only on “no urban/no Spanish dictates,” and that the FCC’s later issued “Erratum” substituted “ethnicity” for “gender” without retaining “gender.” From this it can be argued that the FCC did not intend to require stations to include in their nondiscrimination clauses other forms of discrimination prohibited by federal, state and local authorities, although stations are free to include them.

Additional interpretation is required to answer this question: is the nondiscrimination clause sufficient if each sales contract in effect proclaims (i) that no advertiser may use the station to discriminate on the basis of race or ethnicity and (ii) that any contract entered into with an advertiser whose intent is to use the station to unlawfully discriminate shall be null and void? Or must the nondiscrimination clause also include from the advertiser some type of certification or representation to the station disclaiming any intent to discriminate on the grounds of race or ethnicity? It is my experience that the approaches used by stations vary considerably. That fact may suggest that there are a number of interpretations that may be regarded as reasonable.

The third instance requiring interpretation relates to those stations that do not use formal sales contracts: how are they expected to comply with the nondiscrimination clause requirement? The answer to this question will turn on how flexible the FCC intends to be. We know that noncommercial educational stations filing their license renewal applications will not be asked to respond to this particular certification because such stations do not “sell” time, although they do enter into on-air and production relationships with their underwriters. Certainly a starting point for commercial stations that do not use formal sales contracts is to ensure they can adequately demonstrate to the FCC that their advertising sales arrangements with third parties in fact alert such parties to the station’s nondiscrimination policy and do not discriminate on the basis of race or ethnicity, e.g., website postings, standard email disclaimers, invoice/statement disclaimers.

The three questions posed above are not intended to deal with all of the issues raised by the new renewal certification. My observation is that if the FCC had been more clear when it adopted the nondiscrimination clause requirement, licensees would be able to make a more informed judgment in deciding whether they may responsibly respond to the new certification requirement with an unqualified “Yes,” or whether they will be required to answer “No” with an explanation, understanding that a “No” answer will likely result in the licensee’s application being pulled out of line and deferred for further scrutiny. Stations should consult with communications counsel now to assess whether, based on current practices, they will have a reasonable basis to respond “Yes” to the new renewal certification when it comes time to file their application for renewal of license.

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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:

  • Antenna Structure Owner’s Failure to Act Results in $25,000 Fine
  • FCC Fines Microwave Licensee $15,000 for Late-Filed Renewal
  • AM Broadcaster Receives Reduced Fine for EAS Violation


FCC Fines Texas Antenna Structure Owner for Multiple Ongoing Antenna Structure Violations

In January 2010, a Houston Field Office agent responding to a complaint inspected a 253 foot antenna structure located in Yorktown, Texas. According to the Notice of Apparent Liability (“NAL”) issued by the Federal Communications Commission (“FCC”), the antenna structure was unlit and unidentifiable at the time of inspection, in violation of Section 17.51 and Section 17.4 of the FCC’s Rules. The field agent later determined that the antenna structure owner had failed to notify (1) the Federal Aviation Administration (“FAA”) of the lack of tower lighting, thereby violating Section 17.48 of the FCC’s Rules, and (2) the FCC of a change in ownership of the antenna structure, which violated Section 17.57 of the FCC’s Rules.

Following the initial inspection, in an effort to maintain public safety and avoid hazards to aircraft, the field agent requested that the FAA issue a Notice to Airman (“NOTAM”) about the tower’s lack of lighting. The field agent also contacted the antenna structure owner to discuss the violations discovered during the inspection. In a subsequent inspection, some eight months later, the field agent determined that none of the violations had been cured by the antenna structure owner. Again, the field agent contacted the FAA with a request to reissue another NOTAM regarding the unlit antenna structure.

Section 17.51 establishes that obstruction lighting must be functioning between sunset and sunrise. Section 17.4 requires antenna structure owners to display the ASR number in a “conspicuous place so that it is readily visible near the base of the antenna structure.” Section 17.48 requires antenna structure owners to notify the FAA in the event that a structure’s lights are malfunctioning or inoperable for more than 30 minutes. Section 17.57 establishes, among other things, that an antenna owner must immediately notify the FCC of any change in the ownership of the structure.

The base fines for the violations discussed above are $10,000 (lighting and FAA notification), $2,000 (displaying ASR) and $3,000 (failure to notify FCC of ownership change). Based on the antenna owner’s lack of responsiveness, the FCC upwardly adjusted the fines to $15,000, $4,000 and $6,000, for a total forfeiture of $25,000.

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by January 10, 2011, reflecting programming aired during the months of October, November and December, 2010.

Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 and the FCC Rules adopted under the Act, full power and Class A television stations are required, among other things, to: (1) limit the amount of commercial matter aired during programs originally produced and broadcast for an audience of children 12 years of age and younger; and (2) air programming responsive to the educational and informational needs of children 16 years of age and younger.

To demonstrate their compliance with these requirements, stations must: (1) place in their public inspection file one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television; and (2) complete FCC Form 398, which requests information regarding the educational and informational programming aired for children 16 years of age and under. The Form 398 must be filed electronically with the FCC and placed in the public inspection file. The base forfeiture for noncompliance with the requirements of the FCC’s Children Television Programming Rule is $10,000.

In a recent series of decisions, the FCC issued fines of between $25,000 and $70,000 to stations that had failed to comply with one or more of the FCC’s children’s television requirements, with $270,000 in fines being issued in a single day.

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ local public inspection files by January 10, 2011, reflecting information for the months of October, November and December, 2010.

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 a 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.

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Television stations that have not yet completed construction or commenced operation of their final post-transition DTV facilities must continue the required general DTV Consumer Education Initiatives until they commence operation on their post-transition DTV facilities. Such stations will be required to file another FCC Form 388 by January 10, 2011, providing the Commission with the details of the DTV Consumer initiatives that they performed between October 1 and December 31, 2010.

By January 10, 2011, those television stations that completed construction and commenced operation with their post-transition final DTV facilities after September 30, 2010, or have not yet completed construction and commenced operation of their post-transition digital facilities, are required to report on the DTV Consumer Education Initiatives undertaken in the months of October, November and December by electronically filing the FCC Form 388. The FCC Form 388 is also required to be placed in the station’s public inspection file by January 10, 2011 and posted by that date to the station’s website, if it has one.

Stations which completed construction of their fully-authorized, post-transition digital facilities prior to September 30, 2010 were not required to continue with the general DTV Consumer Education announcements and are not required to submit any additional FCC Forms 388 filings.

For assistance in preparing and completing any of this documentation, please contact the lawyers in the Communications Practice Section.

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Given the many distractions during the holiday season, I thought it would be a good idea to remind readers that January 10 represents a busy quarterly deadline for all radio and television stations. Below is a brief summary of the deadlines, as well as links to our Client Alerts describing the requirements in more detail.

Children’s Television Programming Documentation

All commercial full-power television stations and Class A LPTV stations must prepare and file with the FCC an FCC Form 398 Children’s Programming Report for the fourth quarter of 2010, reflecting children’s programming aired during the months of October, November, and December, 2010. The Form 398 must be filed with the FCC and placed in stations’ public inspection files by January 10, 2011.

In addition to requiring stations to air programming responsive to the educational and informational needs of children, the FCC’s rules limit the amount of commercial material that can be aired during programming aimed at children. Proof of compliance with the children’s television commercial limitations for the fourth quarter of 2010 must be placed in stations’ public inspection files by January 10, 2011.

For a detailed discussion of the children’s programming documentation and filing requirements, please see our Client Alert here.

Quarterly Issues Programs Lists

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. All radio and television broadcast stations, whether commercial or noncommercial, must prepare and place in their public inspection files by January 10, 2011, a list of important issues facing their communities, and the programs which aired during the months of October, November, and December, 2010, dealing with those issues. For a detailed discussion of these requirements, please see our Client Alert here.

DTV Quarterly Activity Station Reports

Those television stations that have not yet completed construction or commenced operation of their final post-transition DTV facilities must continue the required general DTV Consumer Education Initiatives until they commence operation on their post-transition DTV facilities. Such stations will be required to file FCC Form 388 by January 10, 2011, providing the Commission with the details of the DTV Consumer initiatives that they performed between October 1 and December 31, 2010. For a detailed discussion of this filing requirement, please see our Client Alert here.

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Below is the text of our 2011 Broadcasters’ Calendar, which lists deadlines that broadcasters should be aware of for 2011. If you would prefer to read the PDF version of the calendar, it can be found here.

Items of Note in 2011

1. Applications for Renewal of License: June 1, 2011 is the first filing date of the three-year period during which the licensees of all commercial and noncommercial AM, FM and FM Translator stations throughout the United States and its territories will be required to file their applications for renewal of broadcast station license. Licensees in the television services will commence this process in 2012. The date on which a station’s application is due depends on the state or territory of its community of license. All licensees should familiarize themselves now with the dates associated with this important filing, including the dates on which public notice announcements must air in advance of the renewal filing; the filing date itself, which is approximately four months before the date of license expiration; and the dates on which post-filing announcements must air.
2. Biennial Ownership Report Filing Requirements for Commercial Radio and Television Stations: Licensees of commercial, full-power radio and television stations as well as Class A television and low power television stations should be ready to file their biennial ownership reports on FCC Form 323 by the new, uniform filing date of November 1, 2011. While these licensees may have filed a biennial report as recently as the summer of 2010, that report fulfilled the reporting obligation for the period that ended on November 1, 2009. Only because of difficulties with the FCC’s electronic filing system was the November 1, 2009 deadline ultimately extended to July 8, 2010.

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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:

  • Failure to Heed Warning by FCC Field Agent Costs Broadcaster $10,000
  • FCC Fines AM Broadcaster $6,000 for Excessive Nighttime Power Levels
  • AM Broadcaster’s Limited Disclosure of Contest Rules Nets $4,000 Fine

FCC Fines Pennsylvania Broadcaster $10,000 for Repeated Failure to Employ Adequate Personnel

In keeping with lasts month’s “meaningful management and staff presence” Notice of Apparent Liability (“NAL”), the FCC again upwardly adjusted a fine, totaling $10,000, against a Pennsylvania broadcaster for repeated failure to maintain at least one management level and one staff level employee at the main studio during regular business hours as required by Section 73.1125 of the FCC’s Rules. At the time of the initial inspection by a local Enforcement Bureau Field Agent, the “main studio”, which was located within a church, was unattended and locked.

The FCC requires that licensees maintain a “meaningful management and staff presence” at a station’s main studio. Based on a 1991 FCC decision, the FCC defines “meaningful” as at least one management level employee and one staff level employee generally being present “during normal business hours.”

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