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Today, the FCC posted to the Auction 1001 website the Reverse Auction Initial Commitment User Guide and Online Tutorial.  Broadcasters that submitted an FCC Form 177 to participate in the Reverse Auction should review these materials to gain a better understanding of how the system will work so that they are prepared to participate when the Initial Commitment Window opens.  The Tutorial is easy to use, and you can pause it as needed to study and better understand the materials.  The User Guide is largely duplicative, but does contain important information such as technical requirements for using the system and contact information for help troubleshooting problems.

A few informational highlights include:

Important Dates:

  • March 28, 2016 10am ET – March 29, 2016 6pm ET: The Initial Commitment Window – a total of 32 hours – during which broadcasters must file their Initial Commitments. The Initial Commitment may be changed until the close of the window, but if no commitment is made by the close of the window, the station will be excluded from the auction and repacked in its pre-auction band.
  • March 24, 2016 10am ET – March 28, 2016 9:59am ET: The Initial Commitment Preview Period – a four-day period during which all participating stations are encouraged to log into the system, set their PINs, and view the list of stations and Relinquishment Options available to them.

What to Do in the Preview Period:  During the Preview Period, broadcasters should log in to the system and familiarize themselves with it. You will understand why this is important as you read through the paragraph below.

To log in to the system for the first time, each authorized bidder must activate their FCC-supplied RSA token (which displays a code randomly generated every 60 seconds) and select a PIN. To do so, select the “Click here for the login screen” link, enter the FCC-assigned Username for the authorized bidder logging in, the password associated with the FRN listed on the licensee’s Form 177, and the current code displayed on the FCC-supplied RSA token.  Click the Log In button.  Next, choose a 4-8 digit PIN, enter it twice in the fields provided, and click the Continue button.  There is a limited time to complete this step, with the remaining time shown on the screen.  On the next screen, type in the PIN you selected and the code shown on the RSA token.  This code cannot be the same as the one used on the prior screen.  If that code is still showing (because you have proceeded through these steps in less than 60 seconds), wait for the next code to appear.  Click the Continue button.

Once these steps are completed, each authorized bidder will log in by entering the bidder’s FCC-assigned Username, the password associated with the licensee’s FRN, the PIN selected in the step above, and the current code shown on the RSA token assigned to that bidder. Multiple bidders for a licensee can be logged into the system at the same time, but only one will be able to place bids at a time.

Overview of the System:  Once logged in, the broadcaster will see three options displayed on a navigation bar to the left of the screen: Make Commitment, Messages, and Station Info.  In addition, clocks showing the current date and time as well as the countdown to the opening of the Initial Commitment Window are displayed.

Make Commitment:  When clicking on this tab, the broadcaster will see its station or stations, if they have been deemed eligible to participate.  The Preferred Relinquishment option the broadcaster selected in its Form 177 (and the associated opening bid) will appear in a column to the right of the call sign.  To choose this Relinquishment Option as the station’s Initial Commitment, the broadcaster need only click the “Submit” button and will then see a green checkmark appear.  If the station has additional options available to it based on its frequency band and the selections the station made in its Form 177, these are available from a dropdown menu under the Preferred Relinquishment option.  As noted above, the FCC indicates that the choice the station makes from among these options can be changed until the end of the Initial Commitment Window.  Stations that no longer wish to participate in the auction will select the “Decline Commitments” option from the dropdown menu.

If the broadcaster chooses either the Move to a High VHF channel or Move to a Low VHF channel option as its Preferred Relinquishment choice, a window will open advising that the system will attempt to fulfill this choice, but that because of limited channels in the VHF band, this option is not guaranteed. These stations will be given fallback options, if available to them based on their Form 177 choices, and the option to decline fallback options.  It is important to understand the impact of selecting a VHF band option.  If the choice can be accommodated, it will be.  If the option cannot be accommodated, the station will be eliminated from the auction and repacked in its current band, unless one or more fallback options has been selected.

Messages:  In this section, FCC staff can communicate with the licensee and the licensee can communicate with FCC staff.  All authorized bidders for a station can see messages sent by that station’s other authorized bidders as long as they are logged into the system.

Station Info: This section lists all of the licensee’s stations that are eligible to participate in the auction, along with the Relinquishment Option(s) available to each station based on its frequency band and the station’s selections in its Form 177.  This is the only section that the broadcaster can see during the Preview Period.

The FCC has also announced an Initial Commitment Window Workshop to take place on March 11, 2016 from 10am – 1pm ET.  Participants can attend in person or watch online remotely, and the FCC’s staff highly recommends those interested in participating in the reverse auction also participate in the Workshop.  The FCC has said that additional tutorials and resources for participation in the next stages of the auction will be made available to licensees at a later date.  Those, however, will only be useful to broadcasters that successfully make their Initial Commitment, so time to open the Tutorial and start studying.

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The FCC’s new Licensee-Conducted Contest Rule became effective this past Friday.  Under the new rule, a broadcast licensee conducting a contest still has the obligation to disclose the material terms of the contest “fully and accurately” and to conduct the contest substantially as announced.  However, as we wrote last September, the new rule allows broadcasters to meet these requirements by posting the contest terms on their websites rather than reading them on-air.  To take advantage of this new flexibility, broadcasters must:

  • Post the terms on the station’s or licensee’s website, or if neither the station nor the licensee has a website, on a free website that is available to the public 24/7, without registration;
  • Broadcast the website address with sufficient information for a consumer to find the terms easily, using simple instructions or natural language;
  • Broadcast the website address periodically throughout the term of the contest;
  • Establish a conspicuous link or tab on the home page of the website that takes consumers to the contest terms;
  • Maintain the terms on the website for at least 30 days after the contest has ended and conspicuously mark those that are expired, including the date a winner was selected;
  • On the rare occasions that a change in terms occurs during the contest, announce the changes on-air within 24 hours and periodically thereafter, and direct participants to the written terms on the website; and
  • Assure that the contest rules posted online conform to those announced on-air.

The effective date of the new rule has been eagerly anticipated by broadcasters as the change grants them more flexibility in announcing contest terms, avoids long and complicated contest announcements on-air, and permits participants to review the rules at their leisure.  However, in making the change, the FCC noted that “[a]s with all elements of contest-related announcements, the burden is on the broadcaster to inform the public, not on the public to discern the message.”

Indeed, the law views the rules of a contest or sweepstakes to be a contract between the sponsor (station) and anyone who enters the contest, or even anyone who tries to enter and fails to do so successfully.  If the sum total of your on-air contest rules are “be the 103rd caller after X song is played” and a vague “station policy” somewhere on the website that says you can only win once every 30 days, you have left a lot out of your “contract.”  For example, when a station ran a contest on-air like the one above and did not get many callers, the DJ simply awarded the prize to the last person to call in after hours of trying to attract more callers.  The station was fined by the FCC because it did not run the contest substantially as advertised.  Properly written contest rules should account for such situations, as well as other foreseeable developments, such as the phone lines going down after the trigger song has been played.  A station with contest rules that don’t address likely (or even unlikely) contest developments is inviting challenges from both contestants and regulators.

In that regard, as we noted in FCC Proposes to Clear Airwaves of Boring Contest Disclosures, But State Issues Remain, stations should remember that the FCC is not the only regulator watching out for contest and sweepstakes violations.  For example, some states’ contest laws require that all announced prizes be awarded in order to prevent “bait and switch” contests.  For stations giving away “time sensitive” prizes such as concert tickets that have to be used on a specific date, the rules should address the situation where a winner is chosen but then turns down the prize or simply does not claim it because they cannot attend on the date specified.  If the rules say that an alternate winner will be chosen after 10 days, there may not be enough time left before the concert to award the prize.  The station with poorly written contest rules must then choose between violating the law by failing to award a prize, or violating the law by failing to conduct the contest in accordance with the announced rules.  Badly-drafted contest rules are a liability for any business, but are worse for broadcasters, as in addition to all of the state and federal laws governing contests, broadcasters are uniquely subject to the FCC’s contest oversight as well.

Finally, while you might imagine that contest complaints come from those who lost the contest (and indeed they often do), many come from contest winners.  While professional contestants who enter every contest will complain about the valuation placed on a prize for tax purposes, first-time winners are more likely to complain about having to sign a release to claim the prize, or where the prize is large, having to provide the station with their Social Security Number, appear in person, or attend a further event, such as the day when all the winners of keys must try them out in the grand prize car.  These obligations need to be clear in the contest rules, not just to avoid liability, but to ensure the station is able to get the promotional value it anticipated from the contest.  Contestants who demand anonymity and refuse to sign releases greatly undercut the promotional value of a big contest.

The bottom line is, now that the FCC will let you post your rules online for contestants and regulators to scrutinize, you need to ensure you have rules that can withstand scrutiny.

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Despite a three-hour delayed opening of the federal government courtesy of the aftermath of Winter Storm Jonas, the FCC, in today’s Open Meeting, adopted rules requiring that radio broadcast stations, as well as satellite radio (i.e., Sirius/XM), direct broadcast satellite providers (i.e., DirecTV and DISH), and most cable television systems, migrate their public inspection files to an FCC-hosted online database.

The FCC has only published a brief Public Notice describing its action, but there will be more details available when the full Report and Order is released, perhaps as soon as tomorrow.  The Public Notice does however clarify that important exemptions that appeared to have gone missing when the Chairman wrote about the proposed requirement in a blog post a few weeks ago (which we discussed here) have since been added, due in  large part to the efforts of the NAB and state broadcasters associations pushing for such exemptions.  Importantly:

  • Only commercial broadcast radio stations that are in Top 50 radio markets and that have at least five full-time employees will need to comply with the new rules when they first become effective.
  • All other radio stations will have two years to commence complying with the new rules, although they are permitted to move online earlier if they wish to do so voluntarily.

The biggest news in the FCC’s Public Notice appeared to be the statement that the FCC would “permit entities that have fully transitioned to the online public file to cease maintaining a local public file, as long as they provide online access to back-up political file material via the entity’s own website if the FCC’s online file database becomes temporarily unavailable.”  For radio stations that have had to remain on constant alert to escort random station visitors inside their facilities to review the “paper” public file (with all the attendant security risks that represents for a media outlet), this regulatory relief was welcome, and had been championed in the proceeding by all 50 state broadcasters associations.

However, the celebration turned out to be potentially premature, as later in the day, the FCC released the commissioners’ individual statements, and Commissioner O’Rielly’s separate statement lamented that:

Unlike cable and satellite operators, commercial broadcast licensees will not have the immediate option of transitioning to an online-only public file, due to the Commission’s rule pertaining to the correspondence file that arguably cannot be made available online for privacy reasons. I very much appreciate the Chairman’s attention to this important issue and commitment to move forward on a proposal to eliminate correspondence file requirements so that broadcasters, too, can have an online-only option for public file requirements.

So it will take a bit longer before radio stations can say goodbye to their paper public files, but it looks those local files’ days may be numbered.

Another spot of relief is that political file material will need to be uploaded only on a going forward basis.  Historical political information can be retained in paper format until the expiration of the two-year retention period applicable to such documents.  However, stations must have a back-up political file, either in paper or on their websites, in case the FCC’s public file database goes down and the information becomes unavailable from the FCC.

As is the case for television stations, which began moving their public inspection files online in 2012, those covered by today’s order will only need to upload items that are not already electronically filed and available on the FCC’s website.  As a result, documents like ownership reports and most facility modification applications should be automatically loaded into a station’s online public file by the FCC.

The order will apparently include some accommodations for small cable systems as well.  Systems with fewer than 1,000 subscribers will be completely exempt from the online public file requirement, and systems with 1,000-5,000 subscribers will have a two-year phase-in period for their political file material.

Unfortunately, the Public Notice does not indicate exactly when the rules will take effect—an important detail for licensees operating commercial radio stations in the Top 50 markets with five or more full-time employees.  When TV station public files went online, the FCC set the deadline at 30 days following publication of a notice in the Federal Register that the Office of Management and Budget had approved the information collection aspects of the rule.  If this order follows a similar timeline, the new rules wouldn’t likely become effective until sometime in the second quarter of this year.

Over the years, many have criticized the public file as being of little interest to the viewers and listeners it was originally meant to inform, noting that it has instead become merely a source of federal revenue due to the stiff fines imposed by the FCC for violations of the public file rule.  The FCC’s view, however, is that more members of the public will review the file if it can be accessed online, following the motto “upload it, and they will come.”  Whether that is true, the FCC commissioners clearly see the online public file requirement as an effort to move the FCC’s rules into the 21st century.  Broadcasters in particular are hoping that it is the beginning of a much broader effort to bring the FCC’s rules into the 21st century, and many would like to suggest that the FCC next move on to its multiple ownership rules.

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In a Report and Order that has been in the making since at least 1998, the FCC yesterday adopted new ownership reporting forms for both commercial and noncommercial broadcast stations. The FCC’s goal in adopting these new forms is to enhance the completeness and accuracy of its broadcast ownership data by (i) again imposing a unique identifier for each attributable interest holder—one that is tied to that individual’s Social Security Number (SSN); (ii) collecting race, gender and ethnicity data from noncommercial licensees as it has for some time now from commercial licensees; and (iii) consolidating the noncommercial biennial ownership report filing deadline with that of biennial ownership reports for commercial broadcast stations, which will now be December 1 of odd-numbered years for both commercial and noncommercial stations. In the process, the FCC has modified the reports to incorporate a number of reforms requested by broadcasters and their counsel to eliminate redundant and burdensome idiosyncrasies, glitches, and design flaws in the current commercial ownership reporting form.  This will hopefully alleviate at least some of the pain involved in filing what has been one of the FCC’s most duplicative and burdensome forms.

For the past several years, the FCC has required commercial broadcast licensees to include in their ownership reports a unique identifier, called a Federal Registration Number (FRN), for each attributable interest holder.  When first imposed, stations objected to the FRN mandate because the FCC requires individuals seeking an FRN to supply their full SSN to the Commission. In an attempt to quell that outcry, the FCC created a temporary solution called a Special Use FRN (SUFRN), that broadcasters could utilize when attributable interest holders balked at providing their SSNs.

The FCC has now introduced another alternative to obtaining a full FRN, called the Restricted Use FRN (RUFRN), available only for use in filing ownership reports. The FCC considers the RUFRN to be a superior solution to the SUFRN (had enough acronyms yet?) because the SUFRN collected no information whatsoever about the person to which it was assigned and therefore did not further the FCC’s goal of increased accuracy in the ownership data being collected. The basis for the FCC’s belief in the superiority of the RUFRN is that in order to apply for a RUFRN, an individual must supply the FCC with their full name, date of birth, home address, the last four digits of their SSN, and all of that individual’s previously used FRNs and SUFRNs. This information will not be made publicly available, but will enable the FCC to uniquely identify each attributable interest holder in a broadcast station.

Noncommercial broadcasters in particular still oppose the FCC’s efforts to collect such personal data, since the Commission’s multiple ownership rules do not even apply to them, and they worry that the data breaches and hacks that have afflicted other federal agencies will eventually affect the FCC as well.  Commissioner Pai’s separate statement is particularly worth reading in that regard.  While the FCC will allow continued use of a SUFRN, it will permit such use only where an interest holder has refused to apply for a RUFRN or to provide the broadcaster in which it holds an interest with the information needed to obtain a RUFRN for that investor.  The FCC has indicated that stations are at risk of significant enforcement actions should the SUFRN option be abused. With the new RUFRN in place, the FCC will fix its search engine so that the “search by FRN/RUFRN” function will actually return a list of the broadcast stations in which the holder of the searched FRN/RUFRN has an attributable interest.

The FCC also consolidated the ownership report filing deadline for noncommercial stations with that of commercial stations, and extended that date an extra month, from November 1 to December 1 of odd-numbered years, to allow more time for all U.S. broadcast stations to draft their reports, hit the file button, and crash the Commission’s filing system.  Here’s hoping that the FCC will make the biennial filing system available well in advance of October 1, 2017 to allow more time for the increased number of filers to draft and file their reports by the December 1 deadline.

As expected, the FCC revised the ownership report form for noncommercial licensees to collect race, gender and ethnicity information for all interest holders, just as it now does for commercial licensees. In addition, for both commercial and noncommercial filers, it will now be possible to select more than one ethnicity from the list to better report those who identify as being multiracial, a change required by OMB.

In a welcome expression of candor, the Commission conceded that the current version of the commercial station ownership report form has led to widespread errors in those reports, undermining the integrity of all ownership data reported. In light of that big admission, the FCC adopted a number of simplifications suggested by broadcasters that will hopefully ease the filing burden and increase the accuracy of the information submitted. Here are the highlights:

  • A parent company will be able to report its ownership interest in multiple licensees on the same form. Previously, each ownership report could only contain data about a single licensee. As a result, companies that held their broadcast licenses in separate licensee subsidiaries had to file multiple parent company reports, most of which were identical to one another except for the substitution of one licensee name and call sign(s) for another.  The multiple duplicative reports clogged the filing system, causing it to grind to a halt for all filers, even those with simpler reporting structures.
  • There will be no more spreadsheets.  Because the FRN search function never worked and only one licensee could be reported per ownership report, it was nearly impossible to determine whether an interest holder reported on one station’s report also had an interest in stations reported in another report.  The FCC’s fix to this was to have broadcasters prepare spreadsheets, some of which were thousands of lines long, and upload them to the ownership reports.  This again slowed the system for all filers and the spreadsheets were difficult to read, undermining the transparency the FCC was seeking.  Now, if additional stations need to reported, they can be added directly in the form itself.
  • Additional options and questions will be added to make the form itself more useful to the FCC.  These include allowing filers to indicate whether they are organized as a Limited Liability Company, and whether an ownership interest is held jointly, such as a stock interest that is held by spouses as tenants by the entirety.  The new forms will also require filers to indicate whether they are a Tribal Entity, which furthers the Commission’s diversity goals, as well as to list those that are deemed to have an attributable interest in a station due to a Local Marketing or Joint Sales agreement.

Finally, the Report and Order indicates that the FCC is also making a number of common sense changes to the functionality of the ownership report filing system, including sub-form cloning, auto-fill mechanisms, data saving and validation routines, and enhanced checking for inconsistent data.  If these terms sound like Greek to you, then you clearly have not been involved in the filing of ownership reports at the FCC.  If that is indeed the case, count yourself fortunate, and rejoice that the FCC has taken steps to alleviate that mysterious pain broadcasters experience in odd-numbered years.

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In the summer of 2014, CommLawCenter broke the news that the FCC was considering moving radio public inspection files online, following in the footsteps of the FCC’s earlier creation of an online public file requirement for TV stations.  Television stations have been required to upload all newly created public file documents to their online public inspection files since August 2012, and to upload public file documents created before that time by February 2013.  In adopting the TV online public file requirement, the FCC said that it would serve as something of a “test run” for radio station public inspection files.

Four months later, I wrote here about the FCC’s release of a Notice of Proposed Rulemaking calling the TV online public file effort a success, and a “significant achievement in the Commission’s ongoing effort to modernize disclosure procedures to improve access to public file material.”  The NPRM proposed moving forward with an online public file for radio stations, as well as for cable, DBS and satellite radio.  The FCC acknowledged that the online public file might represent a burden for at least some radio stations and, as a result, proposed to phase in the requirement beginning with stations that are located in the top 50 markets having five or more full-time employees.  In addition, the NPRM proposed giving non-commercial educational stations and stations with fewer than five full-time employees two years to make the transition.  While the NPRM was not directed at revamping the content of the public file, the Commission did suggest that some types of documents might be exempted to lessen the burden both on stations and on the Commission’s servers.

The NPRM attracted numerous comments, many focused on ensuring that any online public file requirement would contain sufficiently broad exemptions for small radio stations and an adequately long phase-in period for other types of stations to ensure that the requirement would not be unduly burdensome.  As a filing on behalf of all 50 state broadcasters associations noted, radio stations tend to have smaller staffs than TV stations, and the norm is to have multiple local radio stations operated jointly, meaning that those smaller staffs need to maintain multiple public inspection files.

After the comments were filed, the proceeding went silent, and many wondered if the FCC had begun to have second thoughts as to whether its servers could handle the substantial increase in traffic that a radio public inspection file requirement would generate.  In the past few weeks, however, the FCC let it be known that an order was circulating among the five commissioners for a vote on the online public file NPRM.  If there was any doubt where it was headed, that ended today when FCC Chairman Wheeler announced in a blog post that the order being circulated will implement online public inspection files for radio stations.  He did not, however, give any hints as to what exemptions or phase-in periods the order might contain.

Broadcasters won’t, however, have to wait long to find out.  The FCC also announced today the agenda for its January 28, 2016 Open Meeting, and the radio online public file order is right at the top.  As a result, radio stations will soon know what changes 2016 will be bringing to their public files.

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September 2015

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by October 10, 2015, reflecting programming aired during the months of July, August, and September 2015.

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.

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, 2015, covering programming aired during the months of July, August, and September 2015.

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 with the FCC by October 10, 2015.

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 2015 Third Quarter Children’s Television Programming Documentation.

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Today, the FCC released a Public Notice with a 45-page Appendix listing all full-power and Class A television stations eligible to participate in the reverse auction and receive protection in the repacking process. Licensees should immediately review the Appendix to ensure their station has been included and to determine whether the appropriate authorization for their facility has been listed for auction participation and protection in the repacking. Any station that believes it has been wrongly omitted from the Appendix must file a Petition for Eligible Entity Status by July 9, 2015.

In addition, the Public Notice announces that Form 2100, Schedule 381, the Pre-Auction Technical Certification Form, must also be filed by July 9, 2015. This form requires that the licensee review the station’s authorization listed in the Appendix, as well as the underlying technical information contained in the FCC’s database, and certify whether that information is correct. If it is not, the licensee must state in the form whether the discrepancy is the result of a Commission error or of the licensee operating at variance from its authorization.

If the discrepancy is due to an error by the FCC in its records, the corrected facilities will be used by the Commission for participation in the reverse auction and protection in the repacking process. Where the discrepancy is due to the licensee operating at variance, the licensee must file the appropriate applications to correct that information in the FCC’s database.  Those corrected parameters will not, however, be used for participation in the reverse auction or protection in the repacking process.

As we have written previously, Schedule 381 requests a great deal of information, such as the year of the last structural analysis of the station’s antenna structure and the standard under which that analysis was conducted; whether the station’s antenna is shared with another station; the antenna’s frequency range if it is capable of operating over multiple channels; and the make, model number and maximum power output capacity of the station’s transmitter.

The Public Notice states that if a licensee does not file a Schedule 381, the FCC will assume that the information in the station’s authorization and in the FCC’s database is correct. However, in that circumstance, the Commission will not have the same information regarding that station as it has for stations that did file the Schedule 381, so it is unclear at this time how the FCC will handle that situation.

The FCC will ultimately release a detailed summary of the baseline coverage and population served by each station eligible for participation in the auction and protection in the repacking process. That summary will reflect the information submitted in the Schedule 381, including corrections of discrepancies resulting from FCC errors, along with any changes made as a result of successful Petitions for Eligible Entity Status.

With today’s Public Notice, the FCC moves the spectrum auction a significant step closer to reality.

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May 2015

This Broadcast Station Advisory is directed to radio and television stations in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

June 1, 2015 is the deadline for broadcast stations licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming 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 June 1, 2015.

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. Continue reading →

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While the road to hell may be paved with good intentions, the path to any government objective is usually paved with forms and paperwork. We were reminded of that today when the FCC released a Public Notice reminding full power and Class A television stations of the May 29 Pre-Auction Licensing Deadline. Only those facilities that a station has constructed and for which a license application has been filed by May 29 will be recognized by the FCC for purposes of the reverse auction and spectrum repacking process. That is, stations will not be able to benefit in the reverse auction from, or claim protection in the repacking process for, any facilities modifications completed after May 29, despite the current September 1, 2015 deadline for transitioning Class A stations to digital operation. We wrote about this deadline back in January.

More importantly, the Public Notice further fleshes out the pre-auction process, announcing that the FCC will release a list, expected in mid-June, of each station’s eligible facilities as reflected in the FCC’s database on May 29. Every full power TV and Class A station will then be required to certify to the FCC that the information for that station in the FCC’s database is correct, or identify any errors.

If the error in the database is the FCC’s mistake, it will be corrected in the database and the corrected facilities protected in the auction and repack.  Where the discrepancy is due to the licensee’s error, the licensee must file a modification application to correct the error and seek Special Temporary Authority to operate at variance until a new license is issued. In the latter case, the corrected facilities will not be used for the reverse auction, nor protected in the repacking if licensed after May 29.  Accordingly, the Public Notice urges licensees to make use of the remaining window of opportunity to modify their authorizations to reflect the parameters that they wish to carry into the auction and repacking process.

As you may have guessed, there will be another form involved, so the Public Notice also officially releases Form 2100, Schedule 381, which stations will have to complete not only to make the certification above, but to provide a significant amount of technical information that the FCC has not previously collected.  The information appears designed to assist the FCC in analyzing the impact its repack decisions will have on individual stations and to identify hurdles to completing the repack in the 39-month time period the FCC anticipates.  Among the requested items are: the year of the last structural analysis of the station’s antenna structure and the standard under which that analysis was conducted; whether the station’s antenna is shared with another station and the antenna’s frequency range if it is capable of operating over multiple channels; and the make, model number and maximum power output capacity of the station’s transmitter.

The information sought is detailed and may take stations time to collect. However, today’s Public Notice announces that stations are expected to file the form within 30 days of the FCC’s release in June of its “protected facilities” list. Accordingly, all full power and Class A television stations that have not already done so should review their facility parameters as reflected in the FCC’s CDBS and Antenna Structure Registration databases to confirm their accuracy and immediately file any needed corrective applications. In doing so, stations should also compile the information they are going to need to complete Schedule 381, as the FCC will be looking for that completed form in July.

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By Lauren Lynch Flick and Scott R. Flick

March 2015
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 Texas and noncommercial television stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee must electronically file their Biennial Ownership Reports by April 1, 2015. Licensees must file using FCC Form 323-E and must also place the form as filed in their stations’ public inspection files. Television stations must assure that a copy of the form is posted to their online public inspection file at https://stations.fcc.gov.

In 2009, the FCC issued a Further Notice of Proposed Rulemaking seeking comments on whether the Commission should adopt a single national filing deadline for all noncommercial radio and television broadcast stations like the one that the FCC has established for all commercial radio and television stations. In January 2013, the FCC renewed that inquiry. Until a decision is reached, noncommercial radio and television stations continue to be required to file their biennial ownership reports every two years by the anniversary date of the station’s license renewal application filing deadline.

A PDF version of this article can be found at Biennial Ownership Reports are due by April 1, 2015 for Noncommercial Radio Stations in Texas and Noncommercial Television Stations in Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee.