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Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others.  This month’s issue includes:

Headlines:

  • FCC Fires Broadside at Pirate Stronghold: Nearly Half of November Pirate Radio Notices Go to NY/NJ/CT Area
  • Sorry About That: Wireless Broadband Manufacturer Pays $95,000 to End Investigation of Failure to Prevent Harmful Manipulation of Its Products
  • Not Too Bright: FCC Proposes $25,000 Fine for Marketing Unlabeled Fluorescent Lights

No Parlay for Pirates: FCC Turns Up the Heat on Dozens of Alleged Pirate Radio Operators

In its most recent salvo against pirate radio operators, FCC field agents issued dozens of Notices of Violation (“NOV”) or Notices of Unauthorized Operation (“NOUO”) against alleged operators of unlicensed radio stations, particularly in New York, New Jersey, and Connecticut.

Under Section 301 of the Communications Act, transmission of radio signals without FCC authorization is prohibited.  Unlicensed radio operators risk seizure of their equipment, heavy fines, and criminal sanctions.

On just two consecutive days in October, agents from the New York field office investigated no fewer than eight pirate radio operations in New York and New Jersey, and the past month saw half a dozen NOUOs issued for Connecticut pirate radio operations.

In a similar show of force to the south, the FCC warned a dozen Florida residents of potential violations. The FCC also handed out a Notice of Apparent Liability for Forfeiture (“NAL”) to an alleged California pirate, proposing a $15,000 fine.

For many years, broadcasters complained bitterly about both the interference from multiplying pirate stations and the FCC’s glacial response to these illegal operations. Too often, the FCC’s response was to shrug its bureaucratic shoulders and note that it had limited resources. Broadcasters thus became even more disheartened when the FCC greatly reduced its field offices and staffing in 2016, making it harder for FCC personnel to quickly reach and investigate pirate operations, even if given authority to do so.

Fortunately, Commissioner O’Rielly took up the cause early in his tenure at the FCC, and under Chairman Pai, the FCC has made prosecution of unauthorized radio operations a priority. While broadcasters are certainly appreciative of the change, the sudden uptick in enforcement actions by a reduced number of field offices and agents has made clear that it was never a matter of resources, but of regulatory will. If you want to hunt pirates, you have to leave port.

Consent Decree Ends FCC Investigation Into Company’s Modifiable Wireless Broadband Devices

The FCC entered into a Consent Decree with a wireless device manufacturer after investigating whether the company violated various rules pertaining to the authorization and marketing of devices that emit radio frequency (“RF”) radiation.

In particular, the FCC looked into the manufacturer’s U-NII (Unlicensed National Information Infrastructure) devices. These devices are commonly used for Wi-Fi and other broadband access technology. However, U-NII devices that operate in the 5 GHz radio band risk interfering with certain weather radar systems. As a result, the FCC regulates how manufacturers make these devices available to the public. Continue reading →

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This Broadcast Station Advisory is directed to radio and television stations in the areas noted above, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

December 1, 2017 is the deadline for broadcast stations licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont 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 December 1, 2017.

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: http://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, December 1, 2017 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 FCC today released an Order waiving, at least for this year, the requirement that full power, Class A and low power television stations file what has traditionally been known as a Form 317 report by December 1.  More formally known as the DTV Ancillary/Supplementary Services Report, and due each December 1 for the past two decades, the reports are now actually filed on Form 2100, Schedule G rather than on the discontinued Form 317 (small wonder that everyone still refers to it as the Form 317 report).

The purpose of the report is to inform the FCC if a TV station has used its spectrum to provide non-broadcast services during the past year, and if so, to submit a payment to the government equivalent to 5% of the gross revenues derived from that service.  Ancillary or supplementary services are all services provided on any portion of a DTV station’s digital spectrum that is not necessary to provide the single free over-the-air program stream required by the FCC.  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 “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, audio signals, subscription video, and the like.”  If the station charges a fee for such a service, it must pay the government 5% of the gross revenues derived from that service when it files its report.

The FCC first adopted the requirement in 1999 as a result of a directive contained in the Telecommunications Act of 1996.  Since then, the rule has required digital full power commercial and noncommercial TV stations, and later Class A and low power television stations, to report annually “whether they provided ancillary or supplementary services in the 12-month period ending on the preceding September 30.”  The rule requiring the filing of these reports mandates that TV stations file them whether or not they have any non-broadcast services to report.  In fact, the rule pointedly says that failure to file “regardless of revenues from ancillary or supplementary services or provision of such services may result in appropriate sanctions.”  As a result, many thousands of these reports have been filed over the years despite the fact that very few stations have ever offered such services.

When the FCC this summer opened the door in its Modernization proceeding for suggestions as to how to eliminate unnecessary regulatory burdens, a chorus rang out in support of modifying this particular rule.  In one of those now glaringly obvious “how could someone not have thought of this twenty years ago?” moments, first Commissioner O’Rielly and then numerous commenters suggested modifying the rule to eliminate the requirement for all stations except those that actually provide such services.  That led to the FCC voting last month to issue a Notice of Proposed Rulemaking proposing to eliminate the filing requirement for all stations that do not offer ancillary or supplementary services.

Buried in a footnote to that NPRM was the answer to a question many of us had asked over the years; namely, what is the percentage of stations indicating they are actually providing such services?  Having been involved in the filing of well over a thousand of these reports over the years, we had yet to file one indicating a station has actually provided ancillary or supplementary services.  Now we know that, according to the NPRM, fewer than 15 stations nationwide offered such services in 2016, yielding a total payment to the government of roughly $13,000.  That’s fewer than fifteen out of more than 6600 reports filed in 2016 (0.2%).

Stated differently, if the FCC had just asked each of those 6600 stations to mail in $2.00 rather than a report, the government would have garnered more revenue while wasting far less station resources.  Of course, that doesn’t take into account the resources the FCC was forced to expend processing 6600 reports looking for the 15 that actually reported revenues, ensuring that fulfilling this congressional mandate currently costs the FCC more than it brings in.

For that reason, today’s Order waiving this year’s filing requirement for stations not offering such services will likely be welcome news not just for those broadcasters, but for FCC staff as well.  It does, however, remain a short-term fix.  The FCC’s proceeding to permanently change the rule is still underway, with the comment deadline not yet set.  Based on today’s waiver, the odds seem pretty good that by the time December 1, 2018 rolls around, a waiver will no longer be necessary as the change will have been incorporated into the rule.  In a time when even the most mundane proposals for change can generate fervent opposition, this may be the rare Commission rule that lacks a constituency to defend it to the death.

So the vast majority of stations that had been drafting their 2017 report can stop right now.  Of course, if your station is one of the lonely 15 that provided ancillary and supplementary services during the past year, the waiver doesn’t apply and you will still need to file the report and pay the FCC 5% of the gross revenues generated.  Then Congress can debate at length where to spend the $13,000.

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As Lauren Lynch Flick wrote here several weeks ago, the FCC announced in October that it would be lifting its 2013 freeze on certain TV station modification applications that would increase a station’s coverage area.  Lifting the freeze would let full-power and Class A TV stations that weren’t able to expand facilities in the just-ended modification windows for repacked stations (ie, stations that were not affected by the repack) to do so for the first time in nearly five years.

The purpose of the planned thaw is to let these stations implement desired modifications of their facilities long prohibited by the freeze, as well as to react to changes in coverage and interference coming from competing stations that were repacked.  By lifting the 2013 freeze before the FCC opens its planned Special Displacement Window for LPTV stations early next year, the FCC hopes to avoid having LPTV stations apply for and build out displacement facilities only to then be displaced again when these long-frozen full-power and Class A TV stations finally have a chance to modify their facilities.

The news released by the FCC this afternoon is that the thaw will commence on November 28, and will be quite short in duration, ending at 11:59 pm Eastern on December 7.  During this period, full-power and Class A TV stations that were not assigned a new channel in the repack will be able to file for minor modifications of their facilities.  Unlike other recent filing windows where applications filed at any time during the window were all treated as having been filed on the same day, applications filed in this window will be processed on a first come, first served basis.  That means there is a definite benefit to filing on the first day of the window.

While most stations that avoided being moved to a new channel in the repack were thrilled by that fact, being locked in place while those all around them modify and maximize facilities has been frustrating.  Now they have a chance to join other stations in nudging and jostling for position in a post-repack world.  They will need to move quickly, however.  Winter is coming.

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Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others.  This month’s issue includes:

Headlines:

  • Law and Disorder: FCC Fines New York City Man $404,166 for Interfering with NYPD Radio Frequencies
  • A Friendly Port: In Novel FCC Action, Property Owners Face a $144,344 Fine for Housing a Pirate’s Radio Operation
  • Continuous Unidentified Transmissions on a Shared Channel Leads to a $25,000 Fine

FCC Slaps NYC Individual with a $404,166 Fine for Interfering with NYPD Radio Frequencies

After a unique investigation involving a television host’s Twitter account, a New York Police Department investigation into criminal impersonation of a police officer, and a bomb threat to Times Square, the FCC fined a New York City man for operating on NYPD radio frequencies without authorization, malicious interference with officers’ communications, and transmission of false distress calls.

Section 301 of the Communications Act prohibits the unauthorized use of any device for radio transmission of energy, communications, or signals. Section 333 of the Act prohibits willful or malicious interference with any stations licensed, authorized, or operated by the United States Government.  The FCC has interpreted this to include repeated disruptions to public safety communications apparatus.  In addition, Section 325(a) prohibits the utterance or transmission of “any false or fraudulent signal of distress, or communication relating thereto.”

In August, 2016, the Enforcement Bureau responded to a TV host’s Twitter message that stated “A man hacked into the NYPD’s secure radio network to yodel repeatedly . . . .” Several weeks later, the NYPD arrested the individual, who admitted under interrogation to making the transmissions.  The transmissions, which went to several NYPD precincts over the course of four months, included a bomb threat to a Times Square pharmacy, threats to harm police officers, music, and profanity.

Several months after the initial arrest, the FCC issued a Notice of Apparent Liability proposing the statutory maximum of $19,246 for each of the 21 violations it found. The individual was found to have violated Section 301 and Section 333 for each of the nine calls he made, and the FCC found three violations of Section 325(a) (one for each of the false threats and distress calls).

Following the individual’s failure to respond to the Notice, the FCC issued a Forfeiture Order to make the proposed $404,166 fine a reality. The FCC stated in the Order that the man’s actions showed deliberate disregard for “the safety of NYPD officers and the public that they are called to serve and protect.”

FCC Proposes a $144,344 Fine Against Pirate Radio Operator and Property Owners

Taking a new approach, the FCC proposed a fine against not only the operator of a Florida-based unlicensed radio station, but against the owners of the property housing the station.

Section 301 of the Communications Act states that “No person shall use or operate any apparatus for the transmission of energy or communications or signals by radio . . . except under and in accordance with this Act and with a license [granted by the FCC].” In past pirate radio actions, the FCC tended to invoke Section 301 against only the pirate radio operator.  In this case, the FCC broadened the definition of a party that “use[s] or operate[s]” a station to include those who knowingly have control and access to the transmission equipment and pay for the station’s utility costs. Continue reading →

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This evening the FCC released the Agenda for its November 16 Public Meeting, and as anticipated, the two Media items on it are the Reconsideration of the FCC’s Broadcast Ownership Rules and the FCC’s proposed approval of ATSC 3.0.  More importantly, the FCC released the proposed draft orders for each item and an associated “Fact Sheet” summarizing the proposals to be voted on at the November meeting.

The content of the broadcast ownership draft Order matches what Chairman Pai had announced in his testimony before a House subcommittee yesterday and in an FCC blog post this afternoon.  Specifically, the Order proposes to eliminate the Newspaper/Broadcast and TV/Radio Cross-Ownership Rules, permit certain TV duopolies by eliminating the Eight Voices Test and assessing proposed Big-4 station combinations on a case-by-case basis, eliminate attribution of Joint Sales Agreements, and create an incubator program to promote new entry and ownership diversity in the broadcast industry.

That would normally have been enough big news for a day, but in an era that makes what once was referred to as “Internet time” seem excruciatingly slow, most of this information was already old news by tonight.  As far as breaking news goes, the more interesting item was the FCC’s reveal of its plans for ATSC 3.0 (“Next Gen TV”), which it had been holding close to the vest until tonight.

As summarized by the FCC’s Fact Sheet attached to the draft Order, the FCC proposes to:

  • Allow television broadcasters to use Next Gen TV on a voluntary, market-driven basis.
  • Require broadcasters that use Next Gen TV to partner with another local station to simulcast their programming in the current digital television (DTV) transmission standard (ATSC 1.0), so that viewers will continue to receive their existing broadcast service.
  • For five years, require the programming aired on the ATSC 1.0 simulcast channel to be “substantially similar” to the programming aired on the ATSC 3.0 channel. This means that the programming must be the same, except for programming features that are based on the enhanced capabilities of ATSC 3.0, advertisements, and promotions for upcoming programs.
  • Exempt low power TV and TV translator stations from the simulcasting requirement, and permit case-by-case waivers if a station has no viable simulcast partner.
  • Retain mandatory carriage rights on cable and satellite systems for simulcast DTV signals, and afford Next Gen TV signals no mandatory carriage rights while the Commission requires local simulcasting.
  • Subject Next Gen TV signals to the public interest obligations that currently apply to television broadcasters.
  • Require broadcasters to provide advance on-air notifications to educate consumers about Next Gen TV service deployment and simulcasting.
  • Incorporate specific parts of the Next Gen TV technical standard (A/321 and A/322) into [the FCC’s] rules and explain the methodology used to calculate interference. The A/322 requirement would apply only to a broadcaster’s primary video stream and would sunset five years from the effective date of the rules unless extended by the Commission.
  • Conclude that it is unnecessary to adopt a Next Gen TV tuner mandate for new television receivers.

The FCC also proposes to adopt a Further Notice of Proposed Rulemaking to:

  • Seek comment on issues related to exceptions and waivers of the requirement that Next Gen TV broadcasters partner with a local station to simulcast DTV signals.
  • Seek comment on whether to let full power broadcasters use vacant channels in the television broadcast band to encourage use of Next Gen TV.
  • Tentatively conclude that local simulcasting should not change the “significantly viewed ” status of a Next Gen TV station for purposes of cable and satellite carriage.

For broadcasters now diving into the spectrum repack and looking for the silver lining in having to rebuild on a new channel, tonight’s announcement will be welcome news.  Broadcasters have been urging the FCC to move forward on approving ATSC 3.0 so that it can be incorporated into station rebuilds and business planning, where any form of uncertainty complicates matters.  By revealing tonight its working draft of the ATSC 3.0 Order, the FCC has begun to remove that uncertainty. The remainder will hopefully dissipate on November 16.

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In a move that would have once been stunning, but which now was so expected as to be anticlimactic, the FCC today voted to eliminate the Main Studio Rule.  In doing so, it also eliminated various associated requirements such as the mandate that a station’s main studio be staffed during normal business hours with at least two employees (one management, one staff), and that it have the capability to locally originate programming.  The FCC did require that stations eliminating their main studio make any part of their public file that is not yet online available to the public during normal business hours “at an accessible place within its community of license.”  It also required stations to ensure that community members can continue to reach the station by telephone without cost, typically by maintaining a local or toll-free number.

Even though the FCC eliminated the rule on its own motion rather than in response to a petition (the times they are a-changin’ at the FCC), the move was not without controversy, with Commissioners Clyburn and Rosenworcel voting against the change.  Both expressed concern that allowing a station to close its local main studio would forever sever the intimate connection between the station and its community.  That is not a concern to be taken lightly, as the close connection between stations and their communities is what has made broadcasting unique among its many competitors.

Realistically, however, the elimination of the rule will not mark the elimination of main studios.  Main studios did not originally arise from regulatory fiat, but from practicality.  In the early days of radio, when pressure from musicians’ unions caused many radio stations to ban the airing of recorded music, main studios were a necessity.  There were no satellites, fiber feeds, or microwave links to relay programming long distances, so stations had to create programming under their own roof.  Even those stations that did play records had to have a place to play them close to the transmitter.  Early telephone lines were noisy, expensive, unreliable, and depending on your location, possibly unavailable.

But technology marched on.  One of my fun experiences as a young lawyer was representing one of the oldest radio stations in the world and seeing the antique sound lathes used to cut grooves in disks so large you could barely get your arms around them.  Programs were “syndicated” by physically transporting these disks around the country from station to station.  Even with this advance in technology, however, stations still had to have a place near their transmitter to play the disks, so by definition, every station had some local program origination capability.

As wireline connections around the country became more ubiquitous and reliable, and radio networks began to grow, the main studio changed with it.  No longer did every minute of programming need to be produced at the transmitter site; it could be relayed from long distances.  It was during this period, specifically 1939, that the FCC created the Main Studio Rule, forever freezing in bureaucratic amber what a main studio should look like.

Since then, a thousand technological advances have changed broadcasting (one of them being the advent of commercial TV).  Equipment became smaller, more reliable, and automated.  Microwave, satellite, and now Internet transmission made program distribution to stations easy and relatively inexpensive.  Hard-drive based music servers allowed diverse program schedules to be created and aired on radio stations without anyone needing to sit at a turntable flipping an LP every three minutes.  Relieved of these mechanical duties, on-air talent could focus all their energies on connecting with their audience rather than “tending” the station and its equipment.  And because of the ease with which audio and video can be relayed, that on-air talent could now do all of that from nearly anywhere in the world.  The days of having to be within a few hundred feet of the transmitter at all times are long gone.

Of course, that’s the operational side of the equation.  One of the reasons the Main Studio Rule was created was to “enable members of the public to participate in live programs and present complaints or suggestions to the stations.”  However, the wonder of many of the technologies discussed above is not that they exist, but that they are sufficiently inexpensive that not only stations but audiences are using them.  Once, appearing on a live radio program would have required a trip to the main studio.  Later, calling in to a live network program in New York from Kansas would have been so expensive as to likely exceed the value of any prize you might win.

That problem was first solved with toll-free calling to the distant studio — a technology that came on the scene 25 years after the Main Studio Rule was created.  Then toll-free numbers were supplanted by Voice-Over-Internet-Protocol (VOIP) equipment and cellphones that eliminated the need to pay separate long distance charges.  That capability was then improved upon by Skype and other services that allowed viewers and listeners to appear aurally and visually anywhere in the world with a broadband connection.

As for listeners being able to “present complaints or suggestions to the stations,” if toll-free numbers didn’t address that, email certainly did.  And if not email, then texts and social media.  I would be surprised to hear if there is a single station in the country that gets more main studio visits in a year than it receives messages via social media in a day.

So with the elimination of the Main Studio Rule will main studios just disappear?  Hardly.  They’ll just look less like 1939.

For most stations, main studios will continue to be useful hubs for organizing programming and operations.  They just won’t all need to look and operate the same.  Stations emphasizing a hyper-local format will have main studios so sophisticated that the original drafters of the Main Studio Rule would be in awe; a local studio with capabilities far beyond what any national radio network had in 1939 or afterwards.

Other stations, for example those whose formats focus on importing high-quality regional or national programming and distributing it locally, will have main studios with topnotch communications and automation gear, but probably no employee staring at the front door all day just in case someone shows up to see the public file (which is or soon will be online).  We live in the age of optimization, and main studios will be optimized to connect with a station’s audience, not to meet a 1939 conception of what a main studio should look like.

Of course, we have to be realistic.  Some stations will certainly shut down their main studio (particularly if we define a “main studio” as a place of daily program origination) because they believe they can operate more efficiently without that affectation of early radio.  There will also be those that close their main studio to reduce operating costs to the greatest extent possible.  In an era when competition from the Internet and other media has caused numerous rural stations to shut down and mail their licenses back to the FCC, allowing a station to operate without a main studio certainly seems preferable to forcing it to go dark because it can’t meet studio expenses.

And in that regard, perhaps it’s time to acknowledge what the Main Studio Rule really was — a government mandate to maintain a rigid brick-and-mortar presence in an Internet Age.  It’s existence hindered stations from evolving and adapting to the rapidly changing business strategies of their many non-broadcast competitors.  Of course the analogy doesn’t stop there.  Just as most people like the idea of a physical store where they can go and handle the merchandise, they like the idea of a main studio — a place where, if they ever felt like it, they could visit and see the product being created.  Of course, many of the people that like the idea of having a physical store buy everything online, and many that like the idea of a traditional main studio are streaming their music and video from non-broadcast sources.

Broadcasters could perhaps afford the luxury of having a formal main studio designed to suit the FCC when they were the only game in town, but that was then, and this is now.  Most broadcasters will continue operating a main studio in one form or another, and if viewers and listeners find the programming from such stations is better and tune in accordingly, there will be plenty of stations with elegant main studios for the foreseeable future.  If, however, the stations that divert those funds to program acquisition or other initiatives are the ones attracting larger audiences, then, and only then, will the era of the main studio finally draw to a close.

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Pillsbury’s communications lawyers have published FCC Enforcement Monitor monthly since 1999 to inform our clients of notable FCC enforcement actions against FCC license holders and others.  This month’s issue includes:

Headlines:

  • Noncommercial TV Broadcaster Agrees to $5,000 Consent Decree for EEO Violations
  • Taxi Company Fined $13,000 for Failing to Operate a Private Land Mobile Radio Station on a Narrowband Basis and Other Violations
  • FCC Issues Notices of Unlicensed FM Station Operation to Five Individuals

EEO Violations Lead to $5,000 Settlement with FCC

The FCC entered into a Consent Decree with a Maryland noncommercial TV broadcaster to resolve an investigation into whether the broadcaster violated the FCC’s equal employment opportunity (“EEO”) Rules.

Under Section 73.2080(c)(1)(ii) of the FCC’s Rules, licensees must provide notices of job openings to any organization that “distributes information about employment opportunities to job seekers upon request by such organization,” and under Section 73.2080(c)(3), must “analyze the recruitment program for its employment unit on an ongoing basis.” In addition, Section 1.17(a)(2) requires that licensees provide correct and complete information to the FCC in any written statement.

The FCC audited the broadcaster for compliance with EEO Rules for the reporting period June 1, 2008 through May 31, 2010. During the audit, the FCC asserted that the broadcaster filled 11 vacancies at its TV stations without notifying an organization that had requested copies of job announcements. The FCC then concluded that the notification failure revealed a lack of self-assessment of the broadcaster’s recruitment program. Finally, the FCC asserted that the broadcaster provided incorrect information to the FCC when it submitted two EEO public file reports stating that it had notified requesting organizations of vacancies, but later admitted those statements were incorrect.

The FCC subsequently issued a Notice of Apparent Liability for Forfeiture proposing a $20,000 fine. The broadcaster avoided the fine by instead entering into a Consent Decree with the FCC under which the company agreed to make a $5,000 settlement payment to the government, appoint a Compliance Officer, and implement a three-year compliance plan requiring annual reports to the FCC and annual training of station staff on complying with the broadcaster’s EEO obligations.

FCC Fines Taxi Company $13,000 for Failing to Operate a Private Land Mobile Radio Station on a Narrowband Basis and Other Violations

The FCC fined a California taxi company $13,000 for failing to operate a private land mobile radio (“PLMR”) station in accordance with the FCC’s narrowbanding rule, failing to transmit a station ID, and failing to respond to an FCC communication.

Section 90.20(b)(5) of the FCC’s Rules requires licensees to comply with applicable bandwidth limits, and Section 1.903 requires PLMR stations to be “used and operated only in accordance with the rules applicable to their particular service . . . .” In 2003, the FCC adopted a requirement that certain PLMR station licensees reduce the bandwidth used to transmit their signals from 25 kHz to 12.5 kHz or less by January 1, 2013. Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by October 10, 2017, reflecting information for the months of July, August, and September 2017.

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.

Given that program logs are no longer mandated by the FCC, the Quarterly Lists may be the most important evidence of a station’s compliance with its public service obligations. The lists also provide important support for the certification of Class A television station compliance discussed below. We therefore urge stations not to “skimp” on the Quarterly Lists, and to err on the side of over-inclusiveness. Otherwise, stations risk a determination by the FCC that they did not adequately serve the public interest during the license term. Stations should include in the Quarterly Lists as much issue-responsive programming as they feel is necessary to demonstrate fully their responsiveness to community needs. Taking extra time now to provide a thorough Quarterly List will help reduce risk at license renewal time.

It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their public inspection file. The FCC’s base fine for missing Quarterly Lists is $10,000.

Preparation of the Quarterly List

The Quarterly Lists are required to be placed in the public inspection file by January 10, April 10, July 10, and October 10 of each year. The next Quarterly List is required to be placed in stations’ public inspection files by October 10, 2017, covering the period from July 1, 2017 through September 30, 2017. Continue reading →

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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, 2017, reflecting programming aired during the months of July, August, and September 2017.

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.

Broadcasters must 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, 2017, covering programming aired during the months of July, August, and September 2017.

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.

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