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To use a metaphor those headed to Vegas for the NAB Show will appreciate, two of the three wheels on the Spectrum Repack slot machine had stopped spinning, and all eyes have since been anxiously watching that third and final wheel.  The first stopped spinning on January 13, 2017 when the Reverse Auction concluded.  The second stopped on March 30, 2017 when the Assignment Phase of the Forward Auction came to an end.  The third wheel stopped this afternoon with the release of the FCC’s long-awaited Incentive Auction Closing and Channel Reassignment Public Notice.  That Public Notice formally marks the end of the Incentive Auction, and publicly reveals which stations got cherries and which stations got lemons in the auction and repack.

According to the FCC, there were 175 TV stations that sold spectrum in the auction for just over $10 Billion in total.  Of these 175, 30 are moving to a VHF channel and 133 have indicated that they will be channel sharing with a station that did not sell spectrum in the auction.  That suggests only twelve stations nationwide sold their spectrum with the intent to go dark permanently.

For those stations that did not sell spectrum in the auction, the FCC indicates that 957 of them are being involuntarily moved to new channels.  As a result, the Spectrum Repack looks like it will be every bit as complex and all-encompassing as many had feared.

In that regard, the Public Notice also locks in the deadlines broadcasters must meet for the 39-month Spectrum Repack, officially launching the rush to secure equipment and services needed by each repacked TV station to build out new transmitting facilities. The FCC had addressed in general terms many of the repack deadlines in various notices and webinars, but nearly all were geared to the release date of the Public Notice.  As a result, while we generally knew how long the FCC was allotting for various steps of the repack, they all remained moving targets until today’s release of the Public Notice.

With the Public Notice now in hand, we have assembled below the key deadlines. Continue reading →

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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:

  • Failing to Make Timely Uploads to Online Public File Costs TV Station $13,500
  • FCC Fines Church’s Pirate Radio Station $25,000
  • FCC Proposes $7,000 Fine Against TV Station for Public File Violations

Slow Upload Speed: TV Licensee Agrees to Pay $13,500 to Settle FCC Investigation into Online Public File Violations

The FCC entered into a Consent Decree with an Iowa TV station to resolve an investigation into the licensee’s failure to timely upload required documents to its online public inspection file.

Section 73.3526 of the FCC’s Rules requires commercial broadcasters to maintain public inspection files containing specific types of information related to station operations, and subsection 73.3526(b)(2) requires TV and non-exempt radio licensees to upload most of that information to the FCC-hosted online public inspection file. For example, subsection 73.3526(e)(7) requires broadcasters to retain records that document compliance with equal employment opportunity rules; subsection 73.3526(e)(10) requires broadcasters to maintain materials relating to FCC investigations or complaints; and subsection 73.3526(e)(11) requires TV stations to place in their public inspection file (i) Quarterly Issues/Programs Lists describing the “programs that have provided the station’s most significant treatment of community issues during the preceding three month period” and (ii) certifications of compliance with the commercial limits on children’s programming.

In October 2013, the licensee filed its license renewal application, certifying that it timely placed in its public file all required documentation. However, an FCC investigation found that, with the exception of electronically submitted documents that the FCC automatically places in a station’s online file, the station’s online file was empty, meaning the licensee failed to upload any of the other required documents.

The FCC contacted the licensee in March 2014 to request that the station upload all required documents, and the licensee subsequently complied. However, the FCC discovered in January 2016 that the licensee failed to upload Issues/Program Lists and Commercial Limits Certifications for four quarters in 2014 and 2015. The FCC again contacted the licensee, at which point the licensee uploaded the missing documents. Still, in April 2016, the FCC found yet again that the licensee had failed to upload a required Issues/Programs List and commercial limits certification.

The licensee subsequently entered into a Consent Decree with the FCC to resolve the investigation into these public inspection file violations. As part of the Consent Decree, the licensee admitted liability, agreed to make a payment of $13,500 to the U.S. Treasury, and agreed to implement a compliance plan. The compliance plan must, among other things, designate a compliance officer responsible for ensuring compliance with the FCC’s Rules. The compliance officer must conduct training for all station employees and management at least once every 12 months. The compliance plan will remain in effect until FCC action on the station’s next license renewal application (which will be filed in 2021) is complete. Ultimately, the FCC decided to grant the station’s pending license renewal application, provided that the licensee makes the $13,500 payment on time and in full.

Praying with Fire: Church’s Pirate Radio Station Fined $25,000

After repeated warnings, the FCC fined the operators of an unlicensed radio station in California $25,000. Section 301 of the Communications Act prohibits any person from operating any apparatus for the transmission of energy, communications, or signals by radio within the United States without FCC authorization. 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 April 10, 2017, reflecting programming aired during the months of January, February, and March 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 April 10, 2017, covering programming aired during the months of January, February, and March 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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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by April 10, 2017, reflecting information for the months of January, February and March 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 April 10, 2017, covering the period from January 1, 2017 through March 31, 2017. All TV stations, as well as commercial radio stations in the Top-50 Nielsen Audio markets that have five or more full-time employees, must post their Quarterly Lists to the online public inspection file. Continue reading →

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March 2017

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, 2017 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. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by April 3, 2017 (as April 1 falls on a weekend).

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

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

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the public inspection files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application. The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities. Nonexempt SEUs must submit to the FCC the two most recent Annual EEO Public File Reports with their license renewal applications.

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

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

For a detailed description of the EEO rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters published by Pillsbury’s Communications Practice Group. This publication is available at: https://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

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

Consistent with the above, April 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.

These Reports will cover the period from April 1, 2016 through March 31, 2017. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before March 31, so long as they begin the next annual reporting period on the day after the cut-off day used in the immediately preceding Report. For example, if the Nonexempt SEU uses the period April 1, 2016 through March 21, 2017 for this year’s report (cutting it off up to ten days prior to March 31, 2017), then next year, the Nonexempt SEU must use a period beginning March 22, 2017 for its report. Continue reading →

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

  • FCC Proposes $25,000 Fine Against Individual for Operating a Pirate Radio Station
  • FCC Admonishes Wireless Carrier for Data Breach
  • Telecommunications Relay Service Providers Agree to $9.1 Million Settlement

Pirate Radio Operator Faces $25,000 Proposed Fine After Flaunting Multiple FCC Warnings

After issuing multiple warnings, the FCC proposed a $25,000 fine against a New Jersey man for operating an unlicensed radio station. Section 301 of the Communications Act prohibits any person from operating any apparatus for the transmission of energy or communications or signals by radio within the United States without FCC authorization.

In October 2015, the licensee of an FM translator station in Jersey City complained to the FCC that an unauthorized station was causing co-channel interference. FCC agents verified the complaint and issued a Notice of Unlicensed Operation (“NOUO”) to the owner of the apartment building where the unlicensed station was operating. The unauthorized broadcast subsequently stopped. However, in May 2016, the FCC received another complaint and found that the unlicensed station was operating again. FCC agents issued a second NOUO, this time to both the individual operating the pirate station and the building owner. The individual contacted the FCC in June 2016, at which time he was warned he could face additional enforcement action if unlicensed operations continued.

Despite that admonition, FCC agents found the individual again engaged in unlicensed operation in August 2016, this time at a different site. The FCC issued another NOUO, but later that month found the individual operating without a license again, this time at yet another site.

FCC guidelines set a base fine for unauthorized operation of $10,000 for each violation or each day of a continuing violation. The FCC may adjust the fine upward or downward after taking into account the particular facts of each case. Here, the FCC found that a “significant upward adjustment was warranted” due to the individual’s disregard of multiple warnings. As a result, the FCC proposed a $20,000 base fine—$10,000 for the May 2016 operations and another $10,000 for the August 2016 operations—and applied a $5,000 upward adjustment, for a total proposed fine of $25,000.

Hack of Wireless Carrier Leads to Admonishment by FCC

The FCC admonished a national wireless phone carrier for a 2015 data breach in which a third party gained unauthorized access to personal information collected by the carrier to run credit checks on customers.

Section 222(a) of the Communications Act requires telecommunications carriers to “protect the confidentiality of proprietary information of, and relating to . . . customers.” It also requires carriers to “take every reasonable precaution” to protect personal customer information. Section 201(b) of the Act requires practices related to interstate or foreign telecommunications to be “just and reasonable.” Continue reading →

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After the election, it was clear that we would be seeing a much different FCC in 2017. Such transitions typically take time, as a president’s nomination of new candidates to fill the Chairman’s or commissioners’ seats, along with the delay typically associated with obtaining Senate confirmation, means that a new fully-staffed FCC won’t typically be ready for action until May or June following the January change in administrations. By that time, the actions of the prior FCC have often become final and unappealable, or at least the regulated industries have already begun to adapt their operations to comply with those rules, making subsequent changes more complicated.

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

  • FCC Proposes $10,000 Fine to FM Licensee for Public Inspection File Violations
  • Spoofed Calls Lead to $25,000 Fine
  • Wireless Licensee Agrees to Pay $28,800 Settlement for Operating on Unauthorized Frequencies

FM Licensee Hit with $10,000 Proposed Fine for “Extensive” Public Inspection File Violations

The FCC proposed a $10,000 fine against a South Carolina FM licensee for “willfully and repeatedly” failing to retain all required public inspection file documents.

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It took a while to get to this point, but at the first public meeting of the Pai FCC, the Commission voted today to eliminate the requirement that stations maintain “Letters and Emails from the Public” in their public inspection files. As discussed below, that decision will have differing impacts on TV and radio stations, and even among radio stations.

When the FCC charged ahead to move television public inspection files online in 2012, there didn’t seem to be any upside for broadcasters, who objected loudly. Those objections were primarily based upon the fact that the FCC had managed to find a way to expend even more of a broadcaster’s resources on the rarely-read file, requiring that it now also be uploaded to an online FCC database. Uploading a public file is no small task, as an FCC review of TV public files in Baltimore in 2012 revealed that some contained more than 8,000 pages. In response to those objections, the FCC announced when it adopted the change that it would automatically upload applications, kidvid reports, and other documents it had access to, reducing the number of documents stations would need to upload themselves.

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January 2017

This Broadcast Station Advisory is directed to radio and television stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

February 1, 2017 is the deadline for broadcast stations licensed to communities in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma 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 February 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: https://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

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

Consistent with the above, February 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.

These Reports will cover the period from February 1, 2016 through January 31, 2017. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before January 31, so long as they begin the next annual reporting period on the day after the cut-off day used in the immediately preceding Report. For example, if the Nonexempt SEU uses the period February 1, 2016 through January 21, 2017 for this year’s report (cutting it off up to ten days prior to January 31, 2017), then next year, the Nonexempt SEU must use a period beginning January 22, 2017 for its report. Continue reading →