Published on:

By and

This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider that provided service to at least one viewer outside the station’s local service area during 2015. These stations may be eligible to file royalty claims for compensation with the United States Copyright Royalty Board. These filings are due by August 1, 2016 at 5:00 pm (EDT).

Under the federal Copyright Act, cable systems and satellite operators must pay license royalties to carry distant TV signals on their systems. Ultimately, the Copyright Royalty Board divides the royalties among those copyright owners who claim shares of the royalty fund. Stations that do not file claims by the deadline will not be able to collect royalties for carriage of their signals during 2015.

In order to file a cable royalty claim, a television station must have aired locally-produced programming of its own and had its signal carried outside of its local service area by at least one cable system in 2015. Television stations with locally-produced programming whose signals were delivered to subscribers located outside the station’s Designated Market Area (“DMA”) in 2015 by a satellite provider are also eligible to file royalty claims. A station’s distant signal status should be evaluated and confirmed by communications counsel.

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

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

A PDF version of this article can be found here.

Published on:

By and

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

Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 (“Act”) and the FCC rules adopted under the Act, full power and Class A television stations are required, among other things, to: (1) limit the amount of commercial matter aired during programs originally produced and broadcast for an audience of children 12 years of age and under, and (2) air programming responsive to the educational and informational needs of children 16 years of age and under.

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

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

Noncommercial Educational Television Stations

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

Commercial Television Stations

Commercial Limitations

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

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

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

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

Programming Requirements

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

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

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

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

Filing of FCC Form 398

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

Preparation of the Programming Documentation

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

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

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

Class A Television Stations Only

Although not directly related to the requirement that Class A stations file children’s programming reports, it is important to note that Class A stations must certify that they continue to meet the FCC’s eligibility and service requirements for Class A television status under Section 73.6001 of the FCC’s Rules. While the relevant subsection of the public inspection file rule, Section 73.3526(e)(17), does not specifically state when this certification should be prepared and placed in the public inspection file, we believe that since Section 73.6001 assesses compliance on a quarterly basis, the prudent course for Class A television stations is to place the Class A certification in the public inspection file on a quarterly basis as well.

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

Published on:

By and

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 Refuses TV Licensee’s Request to Defer $15,000 Fine Until After Incentive Auction
  • FCC Proposes $20,000 Fine for Radio Licensee’s Violation of Multiple Ownership Rule
  • FCC Imposes $12,000 Fine and Short-Term License Renewal for Failure to Maintain Public Inspection File and File Ownership Reports

Red Light Blues: FCC Refuses TV Licensee’s Request to Defer Fine Collection Until After Incentive Auction

The FCC’s Media Bureau rejected a Kansas TV licensee’s request to defer a $15,000 fine for failing to timely file fourteen Children’s Television Programming Reports, and for failing to disclose the violations in its license renewal application.

Section 73.3256 of the FCC’s Rules requires each commercial broadcast licensee to maintain a public inspection file containing specific information related to station operations. Subsection 73.3526(e)(11)(iii) of the rule requires licensees to prepare and place in their public inspection files a Children’s Television Programming Report for each calendar quarter showing, among other things, the efforts made during that three-month period to serve the educational and informational needs of children.

In addition, Section 73.3514(a) of the FCC’s Rules requires licensees to include all information requested by an application form when filing it with the FCC. The license renewal application form requires licensees to certify that they have complied with Section 73.3526 and have timely filed their Children’s Television Programming Reports with the FCC.

In April 2016, the FCC issued a Notice of Apparent Liability (“NAL”) to the licensee, asserting that since 2011 the licensee had filed fourteen Children’s Television Programming Reports late, and had subsequently failed to report those violations in its license renewal application. After determining that these actions constituted violations of Sections 73.3526(e)(11)(iii) and 73.3514(a), the FCC proposed a fine of $12,000 for the fourteen late reports and another $3,000 for failing to disclose the violations in the license renewal application—for a total proposed fine of $15,000.

The licensee did not dispute the violations. Instead, it requested a waiver of the FCC’s red light rule, which bars stations from receiving certain benefits if they have an outstanding balance owed to the FCC. In October 2015, the FCC waived the red right rule to allow broadcasters that owed debts to the FCC to participate in the Spectrum Auction.

In requesting a waiver of the red light rule and deferral of the fine until after the Auction concludes, the licensee argued that while it did not owe money to the FCC when it filed its reverse auction application, the current $15,000 fine could make it subject to the red light rule in the near future because it is unable to pay that fine. The licensee explained that if it were a winning bidder in the Auction, it would then be able to pay the fine. Alternatively, the licensee requested a 30 day extension to pay the proposed fine in the event that it was unsuccessful in the Auction.

The FCC rejected the licensee’s requests. In doing so, it first noted that the FCC waived the red light rule for only a very limited purpose at the start of the Auction. Second, it stated that since the licensee admitted that it was not subject to a red light restriction when it filed its reverse auction application and is not currently subject to one, and given that the licensee had provided no documentation showing its inability to pay the fine, any request for a waiver would be prospective and speculative.

The FCC indicated the licensee therefore had two options: (i) pay the proposed fine in full, or (ii) seek a reduction or cancellation. Because the licensee did neither, and instead merely provided a statement about its inability to pay the fine without any supporting documentation, the FCC ordered the licensee to pay the $15,000 fine.

Too Soon? Radio Licensee Faces $20,000 Fine for Premature Implementation of Time Brokerage Agreement

The FCC proposed to fine a New York radio licensee $20,000 for implementing a Time Brokerage Agreement (“TBA”) that violated the Commission’s multiple ownership rule before the FCC had an opportunity to rule on the licensee’s waiver request. Continue reading →

Published on:

By , and

May 2016

On May 18, 2016, the U.S. Department of Labor published final regulations under the Fair Labor Standards Act (“FLSA”) that more than double the minimum salary level necessary to be exempt from the Act’s overtime rules.  While the changes affect all businesses subject to the FLSA, broadcasters in particular may feel the impact of the changes given the staffing models used by many TV and radio stations. The new requirements will go into effect on December 1, 2016, and broadcasters need to take steps to adapt to, and minimize the impact of, those changes prior to that deadline.

The Fair Labor Standards Act (“FLSA”) is the federal law governing wage and hour requirements for employees.  Pursuant to the FLSA, employers must pay employees a minimum wage and compensate them for overtime at 1.5 times their regular rate of pay for any time worked exceeding 40 hours in a workweek unless those employees are exempt from the requirement. On May 18, 2016, the Department of Labor issued a Final Rule that effectively doubled the minimum salary threshold for certain types of employees to be exempt from the FLSA’s overtime rules, and significantly raised the salary threshold for other types of employees. As a result, many currently exempt employees whose salaries are below the new thresholds will soon be eligible for overtime pay. The White House projects the change will impact over four million previously exempt American employees.

Although the FLSA applies to almost all employers, it contains exemptions for certain types of employees at small-market broadcast stations. The Final Rule does not affect these specific broadcast industry exemptions, but will affect many other currently exempt employees in the broadcast industry who, unless they receive salary raises, will soon become eligible for overtime pay.

This Advisory only addresses federal law. Some state laws impose stricter standards than federal law as to which employees are exempt from overtime pay. Employers must ensure that they also meet the requirements of any applicable state or local employment laws.

Overview

The FLSA requires employers to pay non-exempt employees an overtime rate of 1.5 times their regular rate for all hours worked over 40 hours per workweek. However, the FLSA exempts from its overtime rules certain classes of employees who are paid on a salary basis and meet specific “white collar” duties tests. The Department of Labor’s Final Rule increases the minimum salary necessary for these classes of employees to be deemed exempt from the FLSA’s overtime rules, but does not alter the duties tests for those exemptions.  (Continued…)

A PDF version of this entire article can be found at A Broadcaster’s Guide to the U.S. Department of Labor’s New Overtime Exemption Requirements.

Published on:

By , and

This Advisory is designed to aid commercial and noncommercial radio and television stations comply with the FCC’s public inspection file rules, including the online public inspection file requirements. See 47 C.F.R. §§ 73.3526 and 73.3527.  This Advisory discusses the public access, content, retention, and organizational requirements of these regulations. Previous editions of this Advisory are obsolete, and should not be relied upon.

For decades, the FCC required that public inspection files be kept at a station’s main studio in paper or electronic form. In a 2012 push to “modernize” the broadcast disclosure rules, the FCC modified this requirement by requiring stations to make most public file information available online in a Commission-hosted database. In January of 2016, the FCC extended the online public file requirement to broadcast radio stations,
starting with commercial radio stations in the Top 50 Nielsen Audio markets that have five or more full-time employees. Beginning on June 24, 2016, this “first wave” of radio stations must upload their public file materials created on or after that date to the online public inspection file. These stations have until December 24, 2016 to upload all public file documents (with a few exceptions discussed below) created prior to June 24.

All other radio stations (i.e., all non-commercial educational radio stations, commercial radio stations in the Top 50 Nielsen Audio markets with fewer than five full-time employees, and all commercial radio stations located outside of the Top 50 Nielsen Audio markets) will be required to upload their public inspection file documents to the online public inspection file by March 1, 2018, and then use the online public file going forward. This “second wave” of radio stations may continue to maintain their public inspection files exclusively at their main studio until that time, or can voluntarily transition to the online file early. Once a station has transitioned to the online public inspection file, it must provide a link to that file from the home page of that station’s website, if it has one. Beginning on June 24, 2016, online public inspection files will be hosted at https://publicfiles.fcc.gov/.  Full power and Class A TV stations that already have a link on their stations’ websites to the FCC’s “old” public file database will need to verify that the link redirects to this new website address for online public inspection files and update the link on their station website, if they have one, to their current EEO Public Inspection File report in the online public file, which will not be redirected automatically.

With the following two exceptions, all content and retention requirements are the same for local and online public inspection files. First, the FCC does not require station licensees to make letters and email from the public available online due to privacy concerns. As of the date of this publication, each station must continue to maintain these documents in paper or electronic form in a local file at the station’s main studio. The FCC is considering eliminating altogether the requirement that correspondence from the public be kept in the public inspection file, and has released a Notice of Proposed Rulemaking proposing that change. However, until the FCC actually changes the requirement, stations must continue to retain such correspondence in a file located at their main studio.

Second, stations need only upload political file documentation on a going-forward basis. Thus, commercial radio stations in the Top 50 markets with five or more full-time employees that make up the “first wave” of radio stations subject to the online filing requirements may continue to maintain political file documentation that existed prior to June 24, 2016 in their local public file until the expiration of the two-year retention period. Similarly, radio stations moving to the online file as part of the “second wave” may continue to maintain political file documentation that existed prior to March 1, 2018 in their local public file until the expiration of the two-year retention period.

Public Access to the Public Inspection File

The FCC requires every applicant, permittee, or licensee of a full-power AM, FM, or TV station or of a Class A TV station to maintain a public inspection file. The purpose of this file, according to the Commission, is “to make information to which the public already has a right more readily available, so that the public will be encouraged to play a more active part in a dialogue with broadcast licensees.” Because the public file rules are part of the FCC’s commitment to responsive broadcasting, the Commission places great importance on the public’s ability to readily access all of the information required to be in the public file. (Continued…)

A PDF version of this entire article can be found at Special Advisory for Commercial and Noncommercial Broadcasters: Meeting the Radio and Television Public Inspection File
Requirements.

Published on:

By and

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 Enforcement Bureau and Long-Distance Provider Agree to $100,000 Settlement for Violations of FCC’s Rural Call Completion Rules
  • FCC Cancels $3,000 Fine Against TV Licensee for Untimely Kidvid Filings, Upholds $10,000 Fine for Missing Issues/Programs Lists
  • FM Construction Permit Auction Winner Fined $3,000 For Late Application

Dropped Call of the Wild: Investigation of Rural Call Problems Ends With $100,000 Consent Decree

The FCC’s Enforcement Bureau entered into a Consent Decree with a Utah-based long distance carrier to resolve an investigation into whether the carrier failed to sufficiently respond to a rural customer’s complaints of poor call quality and failed to cooperate with the FCC’s resulting investigation.

The FCC has adopted several “Rural Call Completion Rules” in recent years to address poor call quality and call completion problems in rural and other high-cost areas. The Commission clarified in a 2012 declaratory ruling that a carrier violates Section 201 of the Communications Act of 1934 when it knows or should know that calls are not being completed to certain areas and fails to correct the problem or fails to ensure that its intermediate providers correct the problem.

The FCC has also determined that practices that allow lower quality service to rural or traditionally high-cost areas to persist constitute unjust or unreasonable discrimination (based on locality) in violation of Section 202 of the Communications Act. Further, the FCC has interpreted Section 208 of the Act and Section 1.717 of the Commission’s Rules to require that a carrier satisfy (or adequately explain why it cannot satisfy) any informal rural call completion complaints.

In December 2014, a consumer filed an informal complaint with the FCC detailing ongoing problems with receiving work calls. The calls were sent over the carrier’s long distance network to the consumer’s home office, which is served by an intermediate rural local exchange carrier. The carrier investigated the matter and explained in its response to the informal complaint that (1) the consumer had not responded to a follow-up email about the complaint, and (2) the consumer was not its customer.

The carrier took action in March 2015—after the FCC reminded the carrier of its obligations to address rural call quality problems—but the problem recurred. The consumer subsequently filed additional complaints alleging continued call problems in May and June of 2015. Finding that the carrier failed to sufficiently address and resolve the call quality problems with its intermediate provider until late July 2015, the FCC issued a Letter of Inquiry to the carrier and opened an investigation.

To settle the matter, the carrier entered into a Consent Decree with the FCC, wherein the carrier: (1) admitted that it failed to ensure call quality from its intermediate providers and that it did not cooperate with the FCC’s investigation; (2) agreed to pay a $100,000 civil penalty; and (3) agreed to implement a compliance plan going forward. As part of the plan, the carrier must establish operating procedures and training on the Rural Call Completion Rules, and file regular compliance reports with the FCC during the three-year compliance period.

Island Jam: Guam TV Station Successfully Appeals Proposed Fine for Late Kidvid Reports, But Remains on the Hook for Issues/Programs List Violations

The FCC’s Media Bureau cancelled a proposed $3,000 fine against a Guam TV licensee for failing to timely file five Children’s Television Programming Reports, but upheld a $10,000 fine against the licensee for failing to place fifteen Quarterly Issues/Programs Lists in the station’s public inspection file. The FCC also admonished the licensee for its failure to upload copies of its Quarterly Issues/Programs Lists that were in the station’s local file prior to August 2, 2012.

Continue reading →

Published on:

By and

June 1, 2016 is the deadline for broadcast stations licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming to place their Annual EEO Public File Report in their public inspection file and post the report on their station website. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by June 1, 2016.

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

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

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

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

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

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

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

Consistent with the above, June 1, 2016 is the date by which Nonexempt SEUs of radio and television stations licensed to communities in the states identified above, including Class A television stations, must (i) place their Annual EEO Public File Report in the public inspection files of all stations comprising the SEU, and (ii) post the Report on the websites, if any, of those stations. LPTV stations are also subject to the broadcast EEO rules, even though LPTV stations are not required to maintain a public inspection file. Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request. Therefore, if an LPTV station has five or more full-time employees, or is part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file.

Continue reading →

Published on:

By and

May 2016

Noncommercial radio stations licensed to communities in Michigan and Ohio and noncommercial television stations licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, and Wyoming must electronically file their Biennial Ownership Reports by June 1, 2016. Licensees must file using FCC Form 323-E and must also place the form as filed in their station’s public inspection file. Television stations must ensure that a copy of the form is posted to their online public inspection file at https://stations.fcc.gov.

On January 8, 2016, the Commission adopted a single national filing deadline for all noncommercial radio and television broadcast stations like the one that the FCC established for all commercial radio and television stations. The new deadline will not become effective until the revised rule is published in the Federal Register. Until then, noncommercial radio and television stations should continue to file their biennial ownership reports every two years by the anniversary date of the station’s license renewal application filing deadline.

A PDF of this article can be found at Biennial Ownership Reports are due by June 1, 2016 for Noncommercial Radio Stations in Michigan and Ohio and Noncommercial Television Stations in Arizona, the District of Columbia, Idaho, Maryland, Nevada, New Mexico, Utah, Virginia, West Virginia, and Wyoming.

Published on:

By and

The FCC released the tentative agenda for its May 25 Open Meeting today, and topping the agenda is an item that could lift a burden that has been on the shoulders of commercial broadcasters for half a century.  The FCC will vote on adopting a Notice of Proposed Rulemaking to eliminate the requirement that commercial broadcast stations retain copies of letters and emails from the public in their public inspection files.

That simple description understates, however, the actual impact the proposed change could have.  Letters and emails from the public may have at one time simply been one category of documents among many that broadcasters were required to keep in the public file, but when the FCC started requiring that public files be moved online, it recognized that “including these documents in the online file could risk exposing personally identifiable information and . . . requiring stations to redact such information prior to uploading these documents would be overly burdensome.”  As a result, the FCC decided that while it would require broadcasters to upload all other public file documents to the online file, broadcasters would not be permitted to upload letters or emails from the public and instead would have to continue to maintain those documents in the local public file at the station’s main studio.

In the rulemaking proceeding that resulted in the online public file requirement being expanded to radio, we filed comments on behalf of all 50 State Broadcasters Associations questioning the utility of maintaining a physical public file at the station solely to hold letters from the public:

If every part of the file is moved online except Letters from the Public, it’s hard to imagine anyone ever visiting a station solely for the thrill of reading its mail.  Still, station personnel must remain eternally vigilant for that one person who might show up to look at what will be the last vestige of a station’s local public file.

Those comments encouraged the FCC to take steps to eliminate the requirement, explaining that “as long as this single requirement effectively forces stations to maintain a local public file regardless of whether they also have an online public file, the burden of maintaining both files will for many small stations be a bridge too far.”  Commissioner O’Rielly added his support in a blog post this past September.

The biggest benefit of this change, if adopted, would be to allow stations to cease having to maintain a local “paper” public file and ensure that it is continuously available to the public during regular business hours (including lunchtime).  This would not only benefit stations struggling to ensure that there is always a staffer standing by to provide immediate access to the file, but increasingly important, eliminate a major security risk for broadcast stations seeking to prevent dangerous individuals from entering the building, as happened last week in Baltimore.

If the FCC ultimately eliminates the requirement to maintain letters and emails from the public in a local public file, access to the other content in the file will still be available to the public (online), and stations will no longer have to grant access to an individual just because he knows the “open sesame” phrase of American broadcasting: “I’m here to see the public file.”

In a blog post today (All That’s Old is New Again), Chairman Wheeler hinted that this rulemaking is unlikely to see much resistance, stating that elimination of this “outdated public file requirement[]” would be consistent with the agency’s “process reform initiative to review all Commission regulations and update or repeal outdated and unnecessary rules.” Broadcasters couldn’t agree more.

Published on:

By and

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:

  • Class A TV Licensee Hit With $89,200 Fine for Dodging FCC Inspectors
  • Student-Run FM Station Faces $12,000 Fine and Shortened License Term for Public Inspection File Violations
  • Wireless Synchronized Clock Company Agrees to Pay $12,000 for Violating License Terms

FCC Throws the ($89,200) Book at Class A Licensee for Evading Main Studio Inspections

The FCC’s Enforcement Bureau imposed a fine of $89,200 against a Philadelphia Class A TV licensee for failing to (1) make its station available for inspection by FCC agents on multiple occasions, (2) maintain a fully staffed main studio, and (3) operate the station’s transmitter from its authorized location.

Section 73.1225(a) of the FCC’s Rules requires broadcast licensees to make a station “available for inspection by representatives of the FCC during the station’s business hours, or at any time it is in operation.” In addition, Section 73.1125(a) of the Rules has been interpreted by the FCC to require broadcast licensees to maintain a main studio with a “meaningful management and staff presence” during normal business hours. Finally, Section 73.1350(a) of the Rules requires a broadcast licensee to “maintain[] and operat[e] its broadcast station in a manner which complies with the technical rules . . . and in accordance with the terms of the station authorization.”

In August 2011, FCC agents attempted to inspect the station’s main studio. After observing that the main studio was inaccessible due to a locked gate, the agents called the station manager and requested access to inspect the main studio. Ten minutes later, the station manager emerged and informed the agents that he could not facilitate the inspection because he was leaving for a medical appointment, and requested that the agents return the next day. When asked about staffing, the station manager said that no one else was available to facilitate the inspection. One of the agents called the sole principal of the station and advised him that the station manager had failed to make the station available for inspection, and asked the principal to call the agent back. The principal did not return the phone call.

Over one month later, in September 2011, the agents returned to the station to inspect the main studio. The station manager appeared at the locked gate, and asked the agents to wait as he returned to the building. After waiting for ten minutes, the agents left. The agents returned that afternoon and found that the gate was still locked. An agent called the station manager, who said the gate was locked for security purposes and that the public must contact the station to obtain access. However, the agents noted that there was no contact information on the gate. An agent called the sole principal about the second failed attempt to inspect the studio, and again did not receive a return phone call.

In addition to the two failed inspection attempts, FCC agents found in March 2012 that the station’s antenna was actually 0.2 miles from the site listed in the station’s license. The agents determined that the station had operated from the unauthorized location for approximately eight years.

The FCC subsequently issued a Notice of Apparent Liability (“NAL”), proposing an $89,200 fine against the station. The base fine for failing to make a station available for inspection is $7,000. However, due to the “unacceptable” conduct of the station, the FCC used its discretion under Section 503(b)(2)(A) of the Communications Act to adjust the proposed fine upward to the maximum amount allowed under the Act: $37,500 for each of the two failed inspections. The FCC also proposed an upward adjustment of the base fine for operating the station from an unauthorized location, from $4,000 to $7,200. In addition, the FCC proposed a $7,000 fine (the base fine amount) for the violation of the main studio rule, for a total fine of $89,200.

Continue reading →