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March 2015
This Broadcast Station Advisory is directed to radio and television stations in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

April 1, 2015 is the deadline for broadcast stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas to place their Annual EEO Public File Report in their public inspection file and post the report on their station website.

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

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.
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March 2015
The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by April 10, 2015, reflecting information for the months of January, February and March 2015.

Content of the Quarterly List

The FCC requires each broadcast station to air a reasonable amount of programming responsive to significant community needs, issues, and problems as determined by the station. The FCC gives each station the discretion to determine which issues facing the community served by the station are the most significant and how best to respond to them in the station’s overall programming.

To demonstrate a station’s compliance with this public interest obligation, the FCC requires the station to maintain and place in the public inspection file a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.
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March 2015
The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by April 10, 2015, reflecting programming aired during the months of January, February and March 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.
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Everyone with a cell phone has probably received an unsolicited telemarketing robocall or text made by a company using an automated dialing system at some point. As we have previously written, a federal statute, the Telephone Consumer Protection Act (“TCPA”), prohibits making any autodialed call or sending a text to mobile phones, except in the case of an emergency or where the called party has provided their consent. And, where the autodialed call is a telemarketing call, that consent must be in writing. Significant fines have been levied against companies that violate the TCPA and related regulations.

Recently, however, there has been considerable debate as to whether a consumer’s consent to receive such calls, once given, can be withdrawn, and if so, whether consumers can waive that right so that marketers can continue to contact them despite a request to opt out. Although the TCPA and its implementing regulations give consumers the right to opt in to receiving telemarketing robocalls and texts, they are actually silent as to consumers’ ability to later change their minds and revoke that consent or opt out.

The further issue of whether consumers can waive their right to revoke their consent after having given it is discussed in a recent Pillsbury Client Alert by Pillsbury attorneys Catherine D. Meyer, Andrew D. Bluth, Amy L. Pierce and Elaine Lee entitled Stop Calling Me: Can Consumers Waive the Right to Revoke Consent under the TCPA? As the Client Alert points out, while most authorities and courts imply a right under the TCPA to revoke previously given consent, some recent decisions have revolved around whether the consumer can contractually give up that right to revoke.

Because the TCPA’s restrictions apply not just to businesses that use autodialers, but to businesses that use telephones capable of autodialing (which, some are arguing at the FCC, include pretty much any smartphone), the answer to this question could affect a large number of businesses and not just telemarketers.

In short, while the permanence of a consumer’s consent to be called is now somewhat up in the air, businesses calling consumer cell phones using equipment capable of autodialing need to be knowledgeable about all of the requirements of the TCPA, including whether they have received, and continue to have, a consumer’s consent to make that call.

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Yesterday, the FCC released a Notice of Proposed Rulemaking proposing that broadcast radio licensees, satellite TV/radio licensees, and cable system operators move the bulk of their public inspection files online. The FCC previously adopted an online public file requirement for broadcast TV, and sees this as the logical next step.

The FCC noted that adoption of the online broadcast TV public file “represent[ed] a significant achievement in the Commission’s ongoing effort to modernize disclosure procedures to improve access to public file material.” As such, the FCC is proposing the same general approach for transitioning broadcast radio, satellite TV/radio, and cable system operators to an online public file.

Specifically, the FCC proposes to:

  • require entities to upload only documents that are not already on file with the FCC or for which the FCC does not maintain its own database; and
  • exempt existing political file material from the online file requirement and instead require that political file documents be uploaded only on a going-forward basis.

While the FCC indicates it is not generally interested in modifying the content of public inspection files in this proceeding, it does propose some new or modified public inspection file requirements, including:

  • requiring broadcast radio, satellite TV/radio, and cable system operators to post online the location and contact information for their local public file;
  • requiring cable system operators to provide information about the geographic areas they serve; and
  • clarifying the documents required to be kept in the cable public file.

To address online file capacity and technical concerns related to the significant increase in the number of online file users that the proposed expansion will bring, the FCC seeks comment on:

  • whether it should require that only certain components of the public file be moved online;
  • any steps the FCC might take to improve the organization of the online file and facilitate the uploading and downloading of material;
  • the amount of time the FCC should provide entities to upload documents to the online file;
  • whether the FCC should adopt staggered filing dates by service (broadcast radio, satellite radio, satellite TV, and cable);
  • whether to otherwise stagger or alter existing filing deadlines; and
  • any other ways the FCC can improve performance of the online public file database.

With respect to broadcast radio, the proposed online public file rule would require stations to upload all documents required to be in the public file that are not also filed in CDBS (or LMS) or otherwise available at the FCC’s website. Just as with the online broadcast TV file, the FCC proposes to exempt letters and emails from the public from being uploaded due to privacy concerns, instead requiring that those documents continue to be maintained in the “paper” local public file.

The FCC “recognize[s] that some radio stations may face financial or other obstacles that could make the transition to an online public file more difficult.” In response, the FCC proposes to:

  • begin the transition to an online public file with commercial stations in the top 50 markets that have five or more full-time employees;
  • initially exempt, for two years, non-commercial educational (NCE) radio stations, as well as stations with fewer than five full-time employees from all online public file requirements; and
  • permit exempted stations to voluntarily transition to an online public file early.

The Commission also is seeking comment on:

  • whether it is appropriate to temporarily exempt other categories of radio stations from all online public file requirements, or at least from an online political file requirement;
  • how the FCC should define the category of stations eligible for a temporary exemption;
  • whether the FCC should permanently exempt certain radio stations, such as NCEs and stations with fewer than five full-time employees, from all online public file requirements; and
  • whether the FCC should exclude NCE radio station donor lists from the online public file, thereby treating them differently than NCE TV station donor lists, which must currently be uploaded to the TV online file.

The FCC proposes to treat satellite TV/radio licensees and cable system operators in essentially the same manner as broadcast radio by requiring them to upload only material that is not already on file with the Commission. Because the only document these entities file with the FCC that must be retained in the public inspection file is the EEO program annual report (which the FCC will upload to the file), almost all material required to be kept by these entities in the online file will need to be uploaded.

Comments will be due 30 days after publication of the NPRM in the Federal Register and reply comments will be due 30 days thereafter.

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At its Open Meeting this morning, the FCC adopted a Notice of Proposed Rulemaking to “modernize” its station-conducted contest rule, which was originally adopted in 1976. The proposal would allow broadcasters to post the rules of a contest on any publicly accessible website. Stations would no longer have to broadcast the contest rules if they instead announce the full website address where the rules can be found each time they promote or advertise the contest on-air.

Currently, the FCC’s rule requires that broadcasters sponsoring a contest must “fully and accurately disclose the material terms of the contest” and subsequently conduct the contest substantially as announced. A note to the rule explains that “[t]he material terms should be disclosed periodically by announcements broadcast on the station conducting the contest, but need not be enumerated each time an announcement promoting the contest is broadcast. Disclosure of material terms in a reasonable number of announcements is sufficient.”

Of course what terms are “material” and what number of announcements is “reasonable” have been open to interpretation. A review of many past issues of Pillsbury’s Enforcement Monitor reveals numerous cases where a station was accused of having failed to disclose on-air a material term of a contest, or of deviating from the announced rules in conducting a contest. Even where a station’s efforts are ultimately deemed sufficient, the licensee has been put in the delicate position of defending its disclosure practices as “reasonable,” which has the effect of accusing a disappointed listener or viewer of being “unreasonable” in having not understood the disclosures made.

Adopting the rule change proposed by the FCC today would simplify a broadcaster’s defense of its actions because a written record of what was posted online will be available for the FCC to review. Accordingly, questions about whether the station aired the rules, or aired them enough times for the listener/viewer to understand all the material terms of the contest would be less important from an FCC standpoint. Instead, the listener/viewer will be expected to access the web version of the rules and benefit from the opportunity to review those rules at a more leisurely pace, no longer subjected to a fast-talker recitation of the rules on radio, or squinting at a mouseprint crawl at the bottom of a television screen. While the FCC’s willingness to accept online disclosures is certainly welcome, the question of what disclosures must be made in the first instance remains. In fact, the FCC asks in the NPRM whether its rules should dictate a set of “material” terms to be disclosed online.

In our Advertising and Sweepstakes practice, we frequently advise sponsors of contests and sweepstakes on how to conduct legal contests, including the drafting of contest rules and the sufficiency of the sponsor’s disclosure of those rules in advertisements. In addition to the FCC’s rule requiring disclosure of “material” terms, the consumer protection laws of nearly every state prohibit advertising the availability of a prize in a false or misleading manner. What terms will be “material” and essential to making a disclosure not false or misleading is a very fact-specific issue, and will vary significantly depending on the exact nature of the contest involved. As a result, regardless of whether the FCC dictates a prescribed set of “material” terms to be disclosed, the terms will still have to satisfy state disclosure requirements.

The FCC (with regard to station-conducted contests) and state Attorney Generals (with regard to all contests and sweepstakes) investigate whether contests and sweepstakes have been conducted fairly and in accordance with the advertised rules. These investigations usually arise in response to a consumer complaint that the contest was not conducted in the manner the consumer expected. Many of these investigations can be avoided by: (1) having well-drafted contest rules that anticipate common issues which often arise in administering a contest or sweepstakes, and (2) assuring that statements promoting the contest are consistent with those rules.

While, as Commissioner Pai noted, the public does not generally find contest disclosure statements to be “compelling” listening or viewing, and may well change channels to avoid them, the individual states are going to continue to require adequate public disclosure of contest rules, even if that means continued on-air disclosures. If the FCC’s on-air contest disclosure requirements do go away, stations will need to focus on how state law contest requirements affect them before deciding whether they can actually scale back their on-air disclosures.

In fact, while a violation of the FCC’s contest disclosure requirements often results in the imposition of a $4,000 fine, an improperly conducted contest can subject the sponsor, whether it be a station or an advertiser, to far more liability under consumer protection laws and state and federal gambling laws. In addition, state laws may impose record retention obligations, require registration and bonding before a contest can commence, or impose a number of other obligations. As promotional contests and sweepstakes continue to proliferate, knowing the ground rules for conducting them is critically important. If the FCC proceeds with its elimination of mandatory on-air contest disclosures for station-conducted contests, it will make broadcasters’ lives a little easier, but not by as much as some might anticipate.

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Late today, the FCC released a Public Notice stating that “[e]ffective immediately, the expiration dates and construction deadlines for all outstanding unexpired construction permits for new digital low power television (LPTV) and TV translator stations are hereby suspended pending final action in the rulemaking proceeding in MB Docket No. 03-185 initiated today by the Commission.”

As referenced in that statement, the FCC simultaneously released a Third Notice of Proposed Rulemaking (NPRM) seeking comment on a number of issues related to the transition of LPTV stations to digital and their fate in the post-auction spectrum repacking. Specifically, the FCC states in the NPRM that:

In this proceeding, we consider the measures discussed in the Incentive Auction Report and Order, other measures to ensure the successful completion of the LPTV and TV translator digital transition and to help preserve the important services LPTV and TV translator stations provide, and other related matters. Specifically, we tentatively conclude that we should: (1) extend the September 1, 2015 digital transition deadline for LPTV and TV translator stations; (2) adopt rules to allow channel sharing by and between LPTV and TV translator stations; and (3) create a “digital-to-digital replacement translator” service for full power stations that experience losses in their pre-auction service areas. We also seek comment on: (1) our proposed use of the incentive auction optimization model to assist LPTV and TV translator stations displaced by the auction and repacking process to identify new channels; (2) whether to permit digital LPTV stations to operate analog FM radio-type services on an ancillary or supplementary basis; and (3) whether to eliminate the requirement in section 15.117(b) of our rules that TV receivers include analog tuners. We also invite input on any other measures we should consider to further mitigate the impact of the auction and repacking process on LPTV and TV translator stations.

While primarily focused on the future of the LPTV and TV translator services, the NPRM definitely includes some issues of interest to full-power TV stations as well, including the idea that repacking full-power stations may necessitate the construction of digital-to-digital translators to address situations where such stations “experience losses in their pre-auction service areas”. The extent to which the FCC may create such losses is of course one of the issues currently on appeal before the courts, but such losses might also result from stations voluntarily moving from UHF to VHF channels in the auction, or moving from a High VHF to a Low VHF channel. The FCC proposes to permit such translators only where a loss of service has occurred, and to limit such translators to replicating, rather than extending, a station’s prior coverage area.

Another interesting issue for which the FCC is seeking input in the NPRM is whether to allow LPTV and TV translator stations to channel-share with full-power and Class A TV stations. That issue, as well as the proposal to allow Channel 6 LPTV stations to provide an analog FM audio service as an ancillary service, will make this a particularly interesting proceeding likely to attract lots of comments.

The comment dates have not yet been set, but Comments will be due 30 days after the NPRM is published in the Federal Register, with Reply Comments due 15 days after that. Those operating LPTV and TV translator stations will no doubt be happy to see that the FCC is taking steps to “mitigate the potential impact of the incentive auction and the repacking process on LPTV and TV translator stations,” but the many issues covered by the NPRM make clear that, for many of these stations, it will definitely be an uphill climb.

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March 2014

TV, Class A TV, and locally originating LPTV stations licensed to communities in Arizona, Idaho, New Mexico, Nevada, Utah, and Wyoming must begin airing pre-filing license renewal announcements on April 1, 2014. License renewal applications for all TV stations in these states are due by June 2, 2014.

Pre-Filing License Renewal Announcements

Stations in the video services that are licensed to communities in Arizona, Idaho, New Mexico, Nevada, Utah, and Wyoming must file their license renewal applications by June 2, 2014 (June 1 being a Sunday).

Beginning two months prior to that filing, full power TV, Class A TV, and LPTV stations capable of local origination must air four pre-filing renewal announcements alerting the public to the upcoming license renewal application filing. These stations must air the first pre-filing announcement on April 1, 2014. The remaining announcements must air on April 16, May 1, and May 16, 2014, for a total of four announcements. A sign board or slide showing the licensee’s address and the FCC’s Washington DC address must be displayed while the pre-filing announcements are broadcast.

For commercial stations, at least two of these four announcements must air between 6:00 p.m. and 11:00 p.m. (Eastern/Pacific) or 5:00 p.m. and 10:00 p.m. (Central/Mountain). Locally-originating LPTV stations must broadcast these announcements as close to the above schedule as their operating schedule permits. Noncommercial stations must air the announcements at the same times as commercial stations, but need not air any announcements in a month in which the station does not operate. A noncommercial station that will not air some announcements because it is off the air must air the remaining announcements as listed above, i.e., the first two must air between 6:00 p.m. and 11:00 p.m. (Eastern/Pacific) or 5:00 p.m. and 10:00 p.m. (Central/Mountain).

The text of the pre-filing announcement is as follows:

On [date of last renewal grant], [call letters] was granted a license by the Federal Communications Commission to serve the public interest as a public trustee until October 1, 2014. [Stations which have not received a renewal grant since the filing of their previous renewal application should modify the foregoing to read: “(Call letters) is licensed by the Federal Communications Commission to serve the public interest as a public trustee.”]

Our license will expire on October 1, 2014. We must file an application for renewal with the FCC by June 2, 2014. When filed, a copy of this application will be available for public inspection at www.fcc.gov. It contains information concerning this station’s performance during the last eight years [or other period of time covered by the application, if the station’s license term was not a standard eight-year license term].

Individuals who wish to advise the FCC of facts relating to our renewal application and to whether this station has operated in the public interest should file comments and petitions with the Commission by September 1, 2014.

Further information concerning the FCC’s broadcast license renewal process is available at [address of location of the station] or may be obtained from the FCC, Washington, DC 20554.

If a station misses airing an announcement, it should broadcast a make-up announcement as soon as possible and contact us to further address the situation. As noted above, special rules apply to noncommercial stations that do not normally operate during any month when their announcements would otherwise be required to air, as well as to other silent stations. These stations should contact us to ensure they give the required public notice.

Article continues — the full article can be found at Pre-Filing and Post-Filing License Renewal Announcement Reminder

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A few minutes ago, the FCC released an Order extending the December 2, 2013 deadline for commercial broadcast stations to file their biennial ownership reports to December 20, 2013. The extension is meant to respond to the fact that the FCC took its website (including the Consolidated Database System used for preparing and filing reports and applications) offline during the October government shutdown. Because of this, broadcasters were prevented from preparing their voluminous ownership reports until the FCC reopened and the website was reactivated.

Since the biennial ownership report requires filers to provide their ownership information as it existed on October 1, 2013, broadcasters normally have sixty days after the October 1 reporting date to prepare and submit their reports. By extending the deadline to December 20, the FCC is seeking to maintain that sixty day preparation period.

Noncommercial broadcasters whose biennial ownership reports are due on December 2, 2013 (radio stations licensed to communities in Alabama, Connecticut, Georgia, Massachusetts, Maine, New Hampshire, Vermont, and Rhode Island and noncommercial television stations licensed to communities in Colorado, Minnesota, Montana, North Dakota, and South Dakota) should be aware that this extension does not apply to noncommercial ownership reports. Barring further action by the FCC, noncommercial stations in the listed states should continue to plan on filing their ownership reports by the current December 2, 2013 deadline.

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Beginning tomorrow, October 16, 2013, new FCC “robocalling” rules go into effect that require all businesses to obtain specific written consent from a consumer before sending that consumer marketing messages by telephone or text. While we did an earlier Pillsbury Advisory on these rules, they still appear to be catching businesses off-guard, as many business owners incorrectly assumed that the rules were targeted only at robocallers and text spammers, and are just now beginning to realize that the breadth of business activities reached by these rules is far more extensive.

When calling or texting a cell phone for any non-emergency reason, the FCC’s rules have always required that businesses using autodialer technology, like that used in text campaigns, or pre-recorded voices, must first get express consent from the recipient. Prior express consent has also been required before making marketing calls to residential landlines, but the rules contained an exception to that requirement if the business had an established business relationship with the called party (e.g., you ordered something from their catalog in the past eighteen months).

The big change under the new rules is that the prior express consent required to send marketing messages to cell phones (the FCC treats calls and texts the same) or to residential landlines must now be in writing, and there is no longer an exception to that requirement for those with an established business relationship with the called party.

While the impact of this rule change on robocallers is obvious, it applies to most other businesses as well. For example, many broadcast stations have a variety of texting programs, ranging from news, weather and traffic alerts to promotional texts about upcoming programming events or contests. Those stations should now review how the numbers they are texting were originally added to their contact lists, and either be certain that they meet the FCC’s new requirements, or suspend texting to those numbers.

For purely informational texts, such as news, weather and traffic alerts, the station need only have previously received express consent to send the type of text message involved. Written consent was not required and is still not required if there is no marketing component to the call. As a result, if the station previously stated it would only use the consumer’s cell phone number to send weather alert texts, then weather alerts are the only type of texts the station can send to those who signed up for that type of text message. The weather alert contact database therefore could not be combined with the station’s marketing contact database.

The rub is that such stations must also make sure that those weather texts do not include any marketing messages in addition to the weather-related messages. If a marketing component is included (and the definition of marketing for this purpose is very broad), starting tomorrow, they will need to get written consent before sending any more of those messages.

To send promotional or other forms of marketing texts, a business needs to have made a clear and conspicuous disclosure and received clear consent in writing. Importantly, the business cannot require that the written consent be given as a condition of purchasing any product or service. As to the consent being in writing, the FCC permits electronic signatures collected via webforms, email, text messages, telephone keypresses, or voice recordings.

Businesses that previously signed consumers up for their texting programs via a webform, for example, may have given sufficiently clear notice and generated an electronic signature sufficient to fulfill these requirements. Affected businesses should therefore review the language used in their disclosures to be sure that it clearly communicated to the consumer what the texting program involves, and that it did not condition the consumer’s ability to make a purchase on their giving this consent. If a business is able to meet these tests, then it should verify that it has retained sufficient records to demonstrate that it obtained the necessary written consent before continuing to text the affected consumers.

While we have covered the high points of the new rules in this post, those affected should definitely read the more detailed description found in our Pillsbury Advisory. In particular, businesses need to be aware that these new rules were adopted pursuant to the Telephone Consumer Protection Act. That law is the source of many class action lawsuits brought on behalf of consumers who have received texts or calls alleged to be in violation of the law, and provides statutory damages where violations are found to have occurred.

Unfortunately, the prospect of class action damages is likely to attract lawsuits for even benign potential violations of the new rules, and just being named a defendant in such a lawsuit can have devastating consequences for that business. While the effort involved in ensuring that your business is in compliance with these rules could be substantial, the risks of proceeding to contact consumers via marketing texts or calls, even where they are your existing customers, is far too great to be ignored.