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November 2016

All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 2100 – Schedule G by December 1, 2016.

The FCC requires all digital television stations, including all commercial and noncommercial educational full power television stations, digital low power television stations, digital translator television stations, and digital Class A television stations, to submit FCC Form 2100 – Schedule G (formerly known as the FCC Form 317) each year. The report details whether stations provided ancillary or supplemental services at any time during the twelve-month period ending on the preceding September 30. It is important to note that the Form 2100 – Schedule G must be submitted regardless of whether stations offered such services. Form 2100 – Schedule G must be filed electronically in the Commission’s Licensing and Management System (“LMS”), absent a waiver, and is due on December 1, 2016.

Ancillary or supplementary services are all services provided on the portion of a DTV station’s digital spectrum that is not necessary to provide the required single free, over-the-air signal to viewers. Any video broadcast service that is provided with no direct charge to viewers is exempt. According to the FCC, examples of services that are considered ancillary or supplementary include, but are not limited to, “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, subscription video, and the like.”

If a DTV station provided ancillary or supplementary services during the 12-month time period ending on September 30, 2016, it must pay the FCC 5% of the gross revenues derived from the provision of those services. This payment can be forwarded to the FCC’s lockbox at the U.S. Bank in St. Louis, Missouri and must be accompanied by FCC Form 159, the Remittance Advice. Alternatively, the fee can be paid electronically using a credit card on the FCC’s website. The fee amount must also be submitted by the December 1, 2016 due date.

A PDF of this article can be found at Annual DTV Ancillary/Supplementary Services Report Due for Commercial and Noncommercial Digital Television Stations

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by October 10, 2016, reflecting programming aired during the months of July, August, and September 2016.

Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 (“Act”) 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 under, and (2) air programming responsive to the educational and informational needs of children 16 years of age and under.

These two obligations, in turn, require broadcasters to comply with two paperwork requirements. Specifically, stations must: (1) place in their online public inspection file one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television, and (2) submit FCC Form 398, which requests information regarding the educational and informational programming the station has aired for children 16 years of age and under. Form 398 must be filed electronically with the FCC. The FCC automatically places the electronically filed Form 398 filings into the respective station’s online public inspection file. However, each station should confirm that has occurred to ensure that its online public inspection file is complete. The base fine for noncompliance with the requirements of the FCC’s Children’s Television Programming Rule is $10,000.

Note: Broadcasters may no longer use the KIDVID link to file their reports. Instead, broadcasters must now file their reports via the Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.

Noncommercial Educational Television Stations

Because noncommercial educational television stations are precluded from airing commercials, the commercial limitation rules do not apply to such stations. Accordingly, noncommercial television stations have no obligation to place commercial limits documentation in their public inspection files. Similarly, though noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and under, they do not need to complete FCC Form 398. They must, however, maintain records of their own in the event their performance is challenged at license renewal time. In the face of such a challenge, a noncommercial station will be required to have documentation available that demonstrates its efforts to meet the needs of children.

Commercial Television Stations

Commercial Limitations

The Commission’s rules require that stations limit the amount of “commercial matter” appearing in children’s programs to 12 minutes per clock hour on weekdays and 10.5 minutes per clock hour on the weekend. In addition to commercial spots, website addresses displayed during children’s programming and promotional material must comply with a four-part test or they will be considered “commercial matter” and counted against the commercial time limits. In addition, the content of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations. Program promos also qualify as “commercial matter” unless they promote children’s educational/informational programming or other age-appropriate programming appearing on the same channel. Licensees must prepare supporting documents to demonstrate compliance with these limits on a quarterly basis.

For commercial stations, proof of compliance with these commercial limitations must be placed in the online public inspection file by the tenth day of the calendar quarter following the quarter during which the commercials were aired. Consequently, this proof of compliance should be placed in your online public inspection file by October 10, 2016, covering programming aired during the months of July, August, and September 2016.

Documentation to show that the station has been complying with this requirement can be maintained in several different forms:

  • Stations may, but are not obligated to, keep program logs in order to comply with the commercial limits rules. If the logs are kept to satisfy the documentation requirement, they must be placed in the station’s public inspection file. The logs should be reviewed by responsible station officials to be sure they reflect compliance with both the numerical and content requirements contained in the rules.
  • Tapes of children’s programs will also satisfy the rules, provided they are placed in the station’s public inspection file and are available for viewing by those who visit the station to examine the public inspection file. The FCC has not addressed how this approach can be utilized since the advent of online public inspection files.
  • A station may create lists of the number of commercial minutes per hour aired during identified children’s programs. The lists should be reviewed on a routine basis by responsible station officials to be sure they reflect compliance with both the numerical and content requirements contained in the rule.
  • The station and its network/syndicators may certify that as a standard practice, they format and air the identified children’s programs so as to comply with the statutory limit on commercial matter, and provide a detailed listing of any instances of noncompliance. Again, the certification should be reviewed on a routine basis by responsible station officials to ensure that it is accurate and that the station did not preempt programming or take other action that might affect the accuracy of the network/syndicator certification.
  • Regardless of the method a station uses to show compliance with the commercial limits, it must identify the specific programs that it believes are subject to the rules, and must list any instances of noncompliance. As noted above, commercial limits apply only to programs originally produced and broadcast primarily for an audience of children ages 12 and under.

A PDF version of this article can be found at 2016 Third Quarter Children’s Television Programming Documentation.

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The staggered deadlines for noncommercial radio and television stations to file Biennial Ownership Reports remain in effect and are tied to each station’s respective license renewal filing deadline.

Noncommercial radio stations licensed to communities in Iowa or Missouri and noncommercial television stations licensed to communities in Alaska, Florida, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands must electronically file their Biennial Ownership Reports by October 3, 2016 (because October 1 falls on a weekend, submission of this filing to the FCC may be made on the following business day). Licensees must file using FCC Form 323-E and must also place the form as filed in their station’s public inspection file.

On January 8, 2016, the Commission adopted changes to the ownership report forms and a single national filing deadline for all noncommercial radio and television broadcast stations like the one that the FCC previously established for all commercial radio and television stations. However, until the Office of Management and Budget approves the new forms, noncommercial radio and television stations should continue to file their biennial ownership reports every two years by the anniversary date of the station’s license renewal application filing deadline.

A PDF of this article can be found at Biennial Ownership Reports are due by October 3, 2016 for Noncommercial Radio Stations in Iowa and Missouri and Noncommercial Television Stations in Alaska, Florida, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands.

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This Broadcast Station Advisory is directed to radio and television stations in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

October 1, 2016 is the deadline for broadcast stations licensed to communities in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands 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 electronically file their EEO Mid-term Report on FCC Form 397 by October 3, 2016 (because October 1 falls on a weekend, submission of this filing to the FCC may be made the following business day).

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.

Exempt SEUs – those with fewer than five full-time employees – do not have to prepare or file Annual or Mid-Term EEO Reports.

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. Nonexempt SEUs must submit to the FCC the two most recent Annual EEO Public File Reports with their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with more than ten full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the midpoint of their eight-year license term along with FCC Form 397 – the Broadcast Mid-Term EEO Report.

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. This publication is available at: https://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

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

Consistent with the above, October 1, 2016 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 rules, 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 part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file.

These Reports will cover the period from October 1, 2015 through September 30, 2016. 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 day used in the immediately preceding Report. For example, if the Nonexempt SEU uses the period October 1, 2015 through September 20, 2016 for this year’s report (cutting it off up to ten days prior to September 30, 2016), then next year, the Nonexempt SEU must use a period beginning September 21, 2016 for its next 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 rules require 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, 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, 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 to which a station is licensed, 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, Florida, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands must have earned at least the required minimum number of Menu Option credits during the two year “segment” between October 1, 2015 and September 30, 2017, 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, 2014 and September 30, 2016, 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 have earned at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2015 and September 30, 2017, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Alaska, Florida, Hawaii, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between October 1, 2014 and September 30, 2016, as well as during the previous two-year “segments” of their license terms.

Deadline for Filing EEO Mid-Term Report (FCC Form 397) for Radio Stations Licensed to Communities in Iowa and Missouri, and Television Stations Licensed to Communities in Florida, Puerto Rico, and the Virgin Islands

  • October 1, 2016 is the mid-point in the license renewal term of radio stations licensed to communities in Iowa and Missouri and television stations licensed to communities in Florida, Puerto Rico, and the Virgin Islands.
  • Radio station SEUs with more than ten full-time employees licensed to communities in Iowa and Missouri, and television SEUs with five or more full-time employees licensed to communities in Florida, Puerto Rico, and the Virgin Islands, must electronically file the Form 397 Report by October 3 (as October 1 falls on a weekend). Licensees subject to this reporting requirement must attach copies of the SEU’s two most recent Annual EEO Public File Reports to their 397 Report.
  • Note that SEUs that have been the subject of a prior FCC EEO audit are not exempt and must still file FCC Form 397 by the deadline. Electronic filing of FCC Form 397 is mandatory. A paper version will not be accepted for filing unless accompanied by an appropriate request for waiver of the electronic filing requirement.

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 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 the Communications Practice.

A PDF of this article can be found at Annual EEO Public File Report Deadline for Stations in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands.

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Those trying to keep up with the news surrounding the upcoming nationwide test of the Emergency Alert System (“EAS”) know that a lot has been happening in a short period of time.  Below, we pull together the many recent FCC actions regarding EAS in one place for ease of reference.

Let’s start with the basics.  The FCC announced that the nationwide test will take place on Wednesday, September 28, 2016, at 2:20 pm Eastern Time, and that, if necessary, the secondary test date will be October 5, 2016.  The test will start when FEMA sends the alert message, which will be in both English and Spanish.  As we wrote last year, the alert will use a new nationwide test event code, NPT, and a new nationwide geographic zone code, 000000.  As of July 30, 2016, all EAS Participants were required to have equipment in place capable of receiving and passing these codes.  Irritated viewers and listeners will be pleased to know that the test will last less than a minute.

Next, all EAS participants must submit three forms to the FCC regarding the test.  Unlike the last nationwide test, which took place in November 2011, participants must make these filings online through the EAS Test Reporting System (ETRS), and do not have the option of filing paper copies.  Note that FM Translators, FM Boosters, LPTVs that operate as translators, satellite stations that rebroadcast all of a main station’s programming, and international stations do not have to file.

The first form, aptly named Form One, is a registration form that identifies the participant, and must be filed by August 26, 2016.  Participants then have until September 26, 2016, to “update or correct any errors” in the Form One.  This does NOT mean that you can wait until September 26th to complete and file the Form One.  According to senior FCC staff, participants that do not register by August 26th will be deemed out of compliance—the purpose of the extra month is only to allow for cleaning up minor errors.

Information regarding the registration process can be found in this June 27, 2016 Public Notice, and more detailed instructions with screenshots on how to fill out all three forms can be found in this April 18, 2016 Public Notice.  You can also contact the FCC for assistance at ETRS@fcc.gov.

But there are a few things to be aware of when you register, as ETRS has caused aggravation among many using the system.  First, the “Geographic Zone of Service” field will not necessarily prepopulate with a correct list of geographic zones unless other participants have already added those to the system.  Participants will need to consult their state EAS plan to find the correct geographic zone to list, and may have to choose the “add” option to add that zone to the system if it does not appear as an option in the drop-down list.  While this step tripped up a lot of early registrants, who then just made up the area they felt they served (e.g., listing the “tri-state area” rather than “EAS Zone 10”), a number of the state broadcasters associations have been working with the FCC to prepopulate the system with the correct EAS zones for their state.

Second, if you filled out the registration form between June 27, 2016, when ETRS became operational, and July 8, 2016, you should go back and double check that your coordinates are correct in the “Latitude” and “Longitude” fields.  Some of the coordinates are prepopulated by the system, and for a time the system was relying on incorrect location data.  So if you get an error message about your coordinates being wrong, that might be the source of your problem.

Third, don’t sweat the “Tasks” feature too much.  It probably seemed like a neat feature to have when the system was being designed, but the execution leaves something to be desired.  It tends to be more confusing than helpful, generating a new “to do” item every time you sign in.  As a result, it is not uncommon to have four duplicates of the exact same task listed, such as “File Your Form One.”

Once September 28, 2016 rolls around and the test has (hopefully) occurred, participants have only a few hours to file Form Two, Day of Test Reporting, which is comprised of “day of test” information, and is due before 11:59 pm Eastern Time on the same day as the test itself.  This gives participants less than 10 hours after the test to file Form Two, which has raised some eyebrows.  The relevant FCC rule says that participants must file “within 24 hours . . . or as otherwise directed” by the FCC.  No explanation has been provided as to why participants were given significantly less than 24 hours to file, but one must imagine that the FCC is confident that filing Form Two will be a snap, and that ETRS can handle the load of all participants using the system at the same time.

Form Three, Detailed Test Reporting, which is comprised of more detailed post-test questions, must be filed on or before November 14, 2016 using the ETRS.

In addition to the nationwide test, there continue to be other developments which EAS participants need to know about.  At the request of the National Weather Service, the FCC last month added three new EAS event codes and slightly revised the territorial boundaries for two of its location codes.  EAS uses three-character event codes to describe the nature of the alert (e.g. “TOR” for tornado), and six-digit location codes to identify the geographic area(s) to which an alert applies.

The three new codes are designed to alert the public to extreme wind and storm surge conditions in the days and hours ahead of a hurricane making landfall, when appropriate preparations can be made and loss of life is most preventable.   The first of the three new event codes is “Extreme Wind Warning” (EWW), which the National Weather Service has used for years but which was not an official EAS code.  As a result, other warning codes have been used in high wind scenarios, causing incorrect risk avoidance advice to be disseminated.  The remaining two codes relate to storm surge.  “Storm Surge Watch” (SSA) is to be used 48 hours in advance of a storm surge  and “Storm Surge Warning” (SSW) is to be used 36 hours in advance.  The two location code modifications apply to location codes 75 and 77, which correspond to offshore marine areas in the Atlantic and the Gulf of Mexico.  The modifications move the end points for both zones from Bonita Beach, Florida to Ocean Reef, Florida and are considered important to the efficiency and safety of marine operations.  More information about these changes can be found in a July 11, 2016 FCC Order.

EAS equipment manufacturers are required to integrate the new event codes and location codes into equipment yet to be made or sold, and to offer software upgrades for existing equipment, no later than six months from the effective date of the rule amendments.  The effective date of those new rules will be 30 days after publication of the rule amendments in the Federal Register, which has not yet occurred.

While use of these new codes is voluntary, EAS participants in coastal areas will be highly motivated to install upgrades to their existing equipment once those are made available by equipment manufacturers.  The manufacturers indicated to the FCC that in many cases the upgrade can be accomplished easily through a software update the manufacturers will release.  EAS participants have the option of electing precisely when to implement those upgrades.  However, beginning one year after the effective date of the new rules, any EAS participant that replaces its equipment must do so with equipment that is capable of complying with the new codes (i.e., no purchasing used equipment that does not comply).  Given the pace of EAS changes and fixes such as these, broadcasters and other EAS participants should remain alert for notifications from their equipment manufacturers reflecting when software updates or equipment upgrades become available.

While August is often a slow time for many, the increasing number of terrorist attacks around the globe has put the federal government on a fast track for ensuring the functionality of EAS in an emergency.  That urgency is now being relayed to broadcasters and other EAS participants who are at the front lines of the effort to quickly notify the public of emergency information.  For those charged with maintaining and operating EAS equipment, the next two months will be busy ones.

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This Broadcast Station Advisory is directed to radio and television stations in California, Illinois, North Carolina, South Carolina, and Wisconsin, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

August 1, 2016 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 electronically file their EEO Mid-term Report on FCC Form 397 by August 1, 2016.

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. Nonexempt SEUs must submit to the FCC the two most recent Annual EEO Public File Reports with their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with more than ten full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the midpoint of their eight-year license term along with FCC Form 397 – the Broadcast Mid-Term EEO Report.

Exempt SEUs – those with fewer than five full-time employees – do not have to prepare or file Annual or Mid-Term EEO Reports.

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. This publication is available at: https://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

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

Consistent with the above, August 1, 2016 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 rules, 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 part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file. Continue reading →

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The staggered deadlines for noncommercial radio and television stations to file Biennial Ownership Reports remain in effect and are tied to each station’s respective license renewal filing deadline.

Noncommercial radio stations licensed to communities in Illinois and Wisconsin and noncommercial television stations licensed to communities in California, North Carolina and South Carolina must electronically file their Biennial Ownership Reports by August 1, 2016. Licensees must file using FCC Form 323-E and must also place the form as filed in their station’s public inspection file. Television stations must ensure that a copy of the form is posted to their online public inspection file at https://publicfiles.fcc.gov/.

On January 8, 2016, the Commission adopted a single national filing deadline for all noncommercial radio and television broadcast stations like the one that the FCC previously established for all commercial radio and television stations. However, until the Office of Management and Budget approves the new forms, noncommercial radio and television stations should continue to file their biennial ownership reports every two years by the anniversary date of the station’s license renewal application filing deadline.

A PDF of this article can be found at Biennial Ownership Reports are due by August 1, 2016 for Noncommercial Radio Stations in Illinois and Wisconsin and Noncommercial Television Stations in California, North Carolina and South Carolina.

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This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider that provided service to at least one viewer outside the station’s local service area during 2015. 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, 2016 at 5:00 pm (EDT).

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 the deadline will not be able to collect royalties for carriage of their signals during 2015.

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 2015. Television stations with locally-produced programming whose signals were delivered to subscribers located outside the station’s Designated Market Area (“DMA”) in 2015 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.

Both the cable and satellite claim forms may be filed electronically or in paper form. Electronic versions of these forms are available online at http://www.loc.gov/crb/claims/. To submit claims, stations are required to supply the name and address for the claimant and the copyright owner, provide a general statement as to the nature of the copyrighted work (e.g., local news, sports broadcasts, specials, or other station-produced programming), and submit at least one example of retransmission as a distant signal. For cable claims, stations will also be required to supply the name of the program, the station’s city and state of license, a date in 2015 when retransmission as a distant signal occurred, and the name and location of a cable system that retransmitted the station to subscribers on a distant signal basis. For each satellite retransmission identified, stations will need to supply the name of the program, the station’s city and state of license, a date in 2015 when retransmission as a distant signal occurred, and the name of a satellite provider that retransmitted the station to subscribers on a distant signal basis. Claimants should keep copies of all submissions and confirmations of delivery, including certified mail receipts.

Claims can also be submitted in paper form. Detailed rules as to how the claims must be addressed and delivered apply. Claims that are hand-delivered by a local Washington, D.C. courier must be filed one hour earlier, by 4:00 pm. Claims may be sent by certified mail if they are properly addressed, postmarked by August 1, 2016, and include sufficient postage. The Copyright Royalty Board will reject any claim filed prior to July 1, 2016 or after the deadline. Overnight delivery services such as Federal Express cannot be used. Stations filing paper claims should verify the proper procedures with communications counsel.

A PDF version of this article can be found here.

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by July 11, 2016, reflecting programming aired during the months of April, May, and June 2016.

Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 (“Act”) 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 under, and (2) air programming responsive to the educational and informational needs of children 16 years of age and under.

These two obligations, in turn, require broadcasters to comply with two paperwork requirements. Specifically, stations must: (1) place in their online public inspection file one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television, and (2) submit FCC Form 398, which requests information regarding the educational and informational programming the station has aired for children 16 years of age and under. Form 398 must be filed electronically with the FCC. The FCC automatically places the electronically filed Form 398 filings into the respective station’s online public inspection file. However, each station should confirm that has occurred to ensure that its online public inspection file is complete. The base fine for noncompliance with the requirements of the FCC’s Children’s Television Programming Rule is $10,000.

Note: Broadcasters may no longer use the KIDVID link to file their reports. Instead, broadcasters must now file their reports via the Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.

Noncommercial Educational Television Stations

Because noncommercial educational television stations are precluded from airing commercials, the commercial limitation rules do not apply to such stations. Accordingly, noncommercial television stations have no obligation to place commercial limits documentation in their public inspection files. Similarly, though noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and under, they do not need to complete FCC Form 398. They must, however, maintain records of their own in the event their performance is challenged at license renewal time. In the face of such a challenge, a noncommercial station will be required to have documentation available that demonstrates its efforts to meet the needs of children.

Commercial Television Stations

Commercial Limitations

The Commission’s rules require that stations limit the amount of “commercial matter” appearing in children’s programs to 12 minutes per clock hour on weekdays and 10.5 minutes per clock hour on the weekend. In addition to commercial spots, website addresses displayed during children’s programming and promotional material must comply with a four-part test or they will be considered “commercial matter” and counted against the commercial time limits. In addition, the content of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations. Program promos also qualify as “commercial matter” unless they promote children’s educational/informational programming or other age-appropriate programming appearing on the same channel. Licensees must prepare supporting documents to demonstrate compliance with these limits on a quarterly basis.

For commercial stations, proof of compliance with these commercial limitations must be placed in the online public inspection file by the tenth day of the calendar quarter following the quarter during which the commercials were aired. Consequently, this proof of compliance should be placed in your online public inspection file by July 10, 2016, covering programming aired during the months of April, May, and June 2016.

Documentation to show that the station has been complying with this requirement can be maintained in several different forms:

  • Stations may, but are not obligated to, keep program logs in order to comply with the commercial limits rules. If the logs are kept to satisfy the documentation requirement, they must be placed in the station’s public inspection file. The logs should be reviewed by responsible station officials to be sure they reflect compliance with both the numerical and content requirements contained in the rules.
  • Tapes of children’s programs will also satisfy the rules, provided they are placed in the station’s public inspection file and are available for viewing by those who visit the station to examine the public inspection file. The FCC has not addressed how this approach can be utilized since the advent of online public inspection files.
  • A station may create lists of the number of commercial minutes per hour aired during identified children’s programs. The lists should be reviewed on a routine basis by responsible station officials to be sure they reflect compliance with both the numerical and content requirements contained in the rule.
  • The station and its network/syndicators may certify that as a standard practice, they format and air the identified children’s programs so as to comply with the statutory limit on commercial matter, and provide a detailed listing of any instances of noncompliance. Again, the certification should be reviewed on a routine basis by responsible station officials to ensure that it is accurate and that the station did not preempt programming or take other action that might affect the accuracy of the network/syndicator certification.
  • Regardless of the method a station uses to show compliance with the commercial limits, it must identify the specific programs that it believes are subject to the rules, and must list any instances of noncompliance. As noted above, commercial limits apply only to programs originally produced and broadcast primarily for an audience of children ages 12 and under.

Programming Requirements

To assist stations in identifying which programs qualify as “educational and informational” for children 16 years of age and under, and determining how much of that programming they must air to comply with the Act, the Commission has adopted a definition of “core” educational and informational programming, as well as license renewal processing guidelines regarding the amount of core educational programming aired.

The FCC defines “core programming” as television programming that has as a significant purpose serving the educational and informational needs of children 16 years old or under, which is at least 30 minutes in length, and which is aired weekly on a regular basis between 7:00 a.m. and 10:00 p.m. Each core program must be identified by an E/I symbol displayed throughout the program. In addition, the licensee must provide information identifying each core program that it airs, including an indication of the program’s target child audience, to publishers of program guides. The licensee must also publicize the existence and location of the station’s children’s television reports in the public inspection file. The FCC has not prescribed a specific manner of publicizing this information, but enforcement actions indicate that the FCC expects the effort to include an on-air component. We suggest placing an announcement on the station website and periodically running on-air announcements.

Under the current license renewal processing guidelines, stations must air an average of at least three hours of “core programming” each week during the quarter in order to receive staff-level approval of the children’s programming portion of the station’s license renewal application. Stations that air “somewhat less” than an average of three hours per week of “core programming,” i.e., two and one-half hours, may still receive staff-level approval of their renewals if they show that they aired a package of programming that demonstrates a commitment at least equivalent to airing three hours of “core programming” per week. Stations failing to meet one of these guidelines will have their license renewal applications reviewed by the full Commission for compliance with the Children’s Television Act.

FCC Form 398 is designed to provide the public and the Commission with the information necessary to determine compliance with the license renewal processing guidelines. The report captures information regarding the preemption of children’s programming, and requires stations to create an addendum to the form called a “Preemption Report” which provides information on: (1) the date of each preemption; (2) if the program was rescheduled, the date and time the rescheduled program aired; (3) the reason for the preemption; and (4) whether promotional efforts were made to notify the public of the time and date that the rescheduled program would air.

Filing of FCC Form 398

Form 398 must be filed electronically on a quarterly basis. As a result, full power and Class A television stations should file a Form 398 electronically by Monday, July 11, 2016.

Preparation of the Programming Documentation

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

  • FCC Form 398 and documentation concerning commercialization will be very important “evidence” of the station’s compliance when the station’s license renewal application is filed; preparation of these documents should be done carefully.
  • Accurate and complete records of what programs were used to meet the educational and informational needs of children and what programs aired that were specifically designed for particular age groups should be preserved so that the job of completing the FCC Form 398 and creating documentation concerning commercialization is made easier.
  • A station should prepare all documentation in time for it to be placed in the public inspection file by the due date. If the deadline is not met, the station should give the true date when the information was placed in the file and explain its lateness. A station should avoid creating the appearance that it was timely filed when it was not.

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

Class A Television Stations Only

Although not directly related to the requirement that Class A stations file children’s programming reports, it is important to note that Class A 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.

A PDF of this article can be found at 2016 Second Quarter Children’s Television Programming Documentation.

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Today, the FCC released a document entitled Fact Sheet: Updating Media Ownership Rules in the Public Interest.  The driver behind the Fact Sheet is the Chairman’s promise to the Third Circuit Court of Appeals that draft multiple ownership rules would be circulated among the commissioners by June 30, with the intent of adopting final rules by the end of 2016.  The Fact Sheet trumpets the accomplishment of that task.  It also makes clear, however, that the path the Chairman has chosen in proposing new rules is to further regulate rather than deregulate broadcasters, and to do so without gathering any additional record evidence to defend that regulatory initiative.  This once again places the Commission on the well-trod path of adopting its desired result and leaving the task of defending it in court to a future FCC.  In the meantime, broadcasters remain in regulatory limbo.

In the Fact Sheet, the Commission explains that the record in the proceeding, which consists of the record of the 2010 quadrennial review as supplemented by comments received in response to the Further Notice of Proposed Rule Making (FNPRM) that commenced the 2014 quadrennial review, is sufficient to conclude that traditional media outlets remain “of vital importance to their local communities.”  Based on this finding, it concludes that continued regulation of the industry is in the public interest.  The Fact Sheet goes on to detail how each of the Commission’s existing media ownership rules will be “tweaked”, but otherwise reaffirmed, save the rules affecting television ownership, which will be tightened.

The Fact Sheet summarizes the proposed rules as follows:

  • The local television ownership rule, which prohibits common ownership of two full-power television stations in a market with fewer than eight independent television owners, and the common ownership of two Top-Four television stations in any market, will be left intact other than to update it to reflect the transition to digital television. However, the new rules will expand the prohibition against ownership of two Top-Four stations in the same market to apply to “network affiliation swaps, to prevent broadcasters from evading” the local ownership limits.
  • The controversial rule that the Commission adopted in 2014 treating TV Joint Sales Agreements (JSAs) as ownership interests (which the Third Circuit recently invalidated) will be reinstated, although existing JSAs will be granted some type of grandfathering relief, consistent with what the Fact Sheet terms Congress’ “guidance” on that issue. The Fact Sheet does not provide any details, nor address whether such grandfathered JSAs will be assignable.
  • TV Shared Services Agreements (SSAs) will now have to be placed in television stations’ online public inspection files. The agreements subject to this provision will be numerous, as SSAs are broadly defined by the Fact Sheet as “[a]ny agreement in which (1) a station provides another station, not commonly owned, with any station-related services, including administrative, technical, sales, and/or programming support; or (2) stations not commonly owned collaborate to provide station-related services, including administrative, technical, sales and/or programming support.”
  • The existing radio ownership rules will remain unchanged except for some “minor clarifications to assist the Media Bureau in processing license assignment/transfer applications.” An example provided of such a clarification is addressing how to define radio markets in Puerto Rico.
  • While the FCC tentatively concluded in the 2014 FNPRM that the Radio/TV Cross-Ownership prohibition is no longer needed for competition or localism purposes, and that the record indicated elimination of the prohibition would not adversely impact ownership diversity, the Fact Sheet, in keeping with its pro-regulation theme, reverses course and states the rule will be retained unchanged except for an update to reflect the transition to digital television.
  • Similarly, while the FCC suggested in the 2014 FNPRM that radio should be eliminated from the Newspaper/Broadcast Cross-Ownership prohibition, the Fact Sheet indicates that the current rule will be retained, but updated for digital television, and will now incorporate a failing or failed station/newspaper waiver standard.
  • The Dual Network Rule, which prohibits common ownership of ABC, CBS, NBC or Fox, will remain unchanged.
  • The Eligible Entity Standard, which determines which entities are eligible for favored regulatory treatment under the multiple ownership rules, was also affected by the recent Third Circuit decision.  The court ordered the FCC to collaborate with advocacy groups on a timeline to adopt a new standard and urged the Commission to engage with those groups on the substance of that standard as well.  The Fact Sheet indicates that the FCC will simply reinstate the prior revenue-based standard, rejecting the advocacy groups’ proposals to use a race or gender-based standard.

While today’s news is hardly surprising, it is disappointing for those waiting for the FCC to address (or even acknowledge) competitive realities that weren’t dreamed of when the FCC completed the 2006 quadrennial review.  For the most part, the Fact Sheet tracks the rules proposed in the even-further-out-of-date-now-than-it-was-then March 2014 FNPRM.  To the extent it varies from the FNPRM, it does so by rejecting any deregulatory proposals, increasing the regulatory burden on broadcasters beyond what was contemplated in 2014.

It wouldn’t be the first time the FCC has had to proceed on an out-of-date record, this time under pressure from the Third Circuit to do something (anything?) before the year is out.  However, expanding TV regulations beyond what the FCC felt could be justified a decade ago will take more than wishful thinking to defend in court, and the decision to go down that path without seeking further comments on the specific new proposals means that the regulatory uncertainty for broadcasters will continue until the courts have had a chance to weigh in.  It is therefore becoming increasingly clear that it is judicial review, and not the FCC’s quadrennial review, that will determine the rules under which 21st Century broadcasters will operate.