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Sometimes it seems the world really is out to get you.

Being in a highly regulated business, broadcasters are quite dedicated to meeting regulatory obligations.  More specifically, being subject to fines (or worse) for every shortcoming makes the average broadcaster not just diligent, but justifiably paranoid in ensuring that every regulatory requirement has been met and checked off the list.  Events like government shutdowns therefore give broadcasters particular angst as they throw the normal processes and routines for compliance into disarray.

We discussed this in a post last week, which parsed obligations that must be met even while the FCC is closed from those for which a broadcaster has no option but to wait until the FCC reopens.  As detailed in that post, the distinction is not always a commonsense one.  For example, we noted that stations must still prepare various quarterly reports for placement in the Public Inspection File by January 10th, but that those reports cannot actually be uploaded to the online Public File until the FCC reopens, as the FCC took its Public Inspection File database offline when it closed on January 3rd, making it impossible for stations to upload those reports.

I therefore listened with interest when a broadcaster indicated last night that after four days of being dark, the FCC’s online Public Inspection File database was suddenly working again.  That seemed unlikely, and sure enough, when I tried to access the database, I was redirected to a page announcing the FCC’s closure during the federal shutdown.  When I noted this, the broadcaster responded that not only was he successfully uploading his Public File documents, but that the “ticker” on the FCC’s website listing recent Public File uploads indicated stations from all over the country were uploading reports at a frantic pace.

I asked for the link he was using, and it took me to what appeared to be the opening page of the FCC’s shuttered online Public File database, including the familiar “Sign in” link and recent uploads ticker on the right side of the screen.  I could successfully sign in on behalf of clients, and on my first visit, the ticker indicated that eight different stations had filed more than a dozen documents in just the past six minutes.  Each time I went back to the page, the ticker had updated, listing more recent uploads by a totally different batch of stations.  Since the ticker only shows the most recent dozen or so uploads, it was impossible to know how many stations had recently uploaded documents to the site, but I counted more than 50 different radio and TV call signs in an hour.

The website looked like the online Public File database in every respect.  It included Public Files for, as best as I could tell, every station in the country that has a Public File, and most convincingly of all, listed all of the uploaded Public File documents for each and every station.  In other words, it did indeed look like the FCC had restored access to the Public File database or that stations had found a backdoor way into it.

Upon closer inspection, however, it took on the appearance of a movie set—all facades without anything behind them.  It listed the various documents in a station’s Public File, including the time of uploading and the precise file size, but clicking on those documents revealed only dead links.  Also suspicious was that it was only up-to-date through September 2018.  The Third Quarter filings stations would have made by October 10th, 2018 were missing across the board with one exception—those stations that had uploaded them in the past few days after apparently spotting them as being missing from the database.  Indeed, the only links to documents that actually took you to a document seemed to be those uploaded in the past few days; older document listings were just dead links.

Given the eerie accuracy of these station Public Files and their odd shortcomings, it seemed clear that they represented a snapshot of stations’ Public Files as they existed in the latter part of September 2018—doppelgangers of stations’ real Public Files, but definitely not the genuine article.  When I asked where the broadcaster had obtained the link, I was told “Google”, and sure enough, when you search for “public inspection file” on Google, it is the first search result listed.  Those interested can find the site here.  Just don’t waste your time uploading any documents to it.

The reason reveals itself when you take a closer look at the link address: https://publicfiles-demo.fcc.gov.  The good news is that it is an actual FCC website and not a phishing website designed to steal station passwords, etc.  The bad news is that it is, as the web address suggests, just a demo site created by the FCC to demonstrate how to use the online Public File database (which all broadcast stations are now required to use).  Its demo nature was confirmed when I found a reference to it in a 2016 post we published here on CommLawCenter.  The FCC launched it on May 12, 2016 for training purposes when it moved TV stations and the first group of radio stations to its new online Public File database.

It is pretty much identical to the real online Public File database in every way, but there is one big difference—the demo site is still functioning, while trying to go to the real database takes you instead to an FCC shutdown notice.

Curiously, there is no hint anywhere on the demo webpage that it is just a demo and not the real online Public File database.  It being a demo does, however, explain why the FCC didn’t bother shutting it down when it shut down many of its other databases.  Unfortunately, when the real database became unavailable, many broadcasters came upon this site through Google or other search engines, and either failed to notice it wasn’t the real Public File database, or thought they had found a way around the FCC’s closed front door to the database.

While it is certainly unfortunate that a lot of stations appear to have wasted a lot of time uploading their Public File documents to a faux database, the far more insidious impact is that these stations have now been misled into believing they have successfully completed their uploads.  As a result, when the FCC eventually reopens and the real online Public File database is made available, these stations won’t know to upload their documents to the correct database, leaving them vulnerable to license renewal challenges and Public File fines (the FCC’s base fine for a Public Inspection File violation is $10,000).  If you hear from any broadcasters claiming that they were able to successfully upload their quarterly Public File reports while the FCC was closed, please disabuse them of that notion.  Let them know that they could not have, and that they need to upload those documents to the correct database no later than the day after the day the FCC reopens.

But that isn’t the end of this already stranger-than-fiction story.  At the beginning of December 2018, the FCC sent emails to over 1,000 radio stations indicating that the FCC had determined from a review of its online Public File database that those stations had failed to populate their online Public Files.  Those emails asked the stations to acknowledge receipt and to respond by providing the FCC with a date by which each station would “complete the upload of all required information.”

At the time the emails went out, I heard from a number of stations that were totally baffled by the FCC’s assertion that they had not uploaded everything, as they were sure they had.  In addition, it seemed incredibly unlikely that such a large number of radio stations could have failed to migrate their Public Files to the FCC’s online database.  It represented a real unsolved mystery, and many of us were intrigued as to what could possibly explain it when the requirement to move radio Public Files online had been so heavily publicized (for example, just here on CommLawCenter, you’ll find it discussed here, here, here, here, here, and here).

Now, however, I’m thinking we may have solved this mystery.  It is indeed possible for the FCC’s assertion that a large number of radio stations have empty online Public Files, and the assertion from many of those stations that they have already uploaded their Public Files, to both be true.  Ironically, in creating the demo site, the FCC was attempting to help broadcasters, but in leaving it up, the FCC has unwittingly set a trap for stations that continues to swallow innocent victims hourly.  I’m betting that a lot of those missing Public Files can be found at the FCC’s online Public File demo site https://publicfiles-demo.fcc.gov—the Bermuda Triangle of online Public File uploads.

[Postscript: In response to the publication of this post, the FCC has taken the demo database offline, preventing more stations from falling into this trap.  While that is obviously a good result overall, it unfortunately means that: (1) communications counsel now cannot determine whether stations they represent mistakenly uploaded to the demo site instead of the real one in order to notify those clients, and (2) stations that mistakenly uploaded their entire Public File to the demo site long before the FCC shutdown have lost the ability to access it in order to demonstrate to the FCC that they made a good faith effort to upload their Public File (albeit to the wrong database).  As a result, stations will need to talk to their employees handling Public File matters and ascertain directly from them what they have uploaded and to where to ensure that, as soon as the FCC reopens, the appropriate Public File documents are uploaded to the correct FCC database.] 

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Proving once again that nature abhors a vacuum, we’ve just learned of another bit of fallout for broadcasters from the federal shutdown—scammers are apparently calling broadcast stations pretending to be calling on behalf of the FCC and seeking to collect “FCC fees” over the telephone.  The first of these calls that we heard about occurred within six hours of the FCC shutting down.

With the FCC largely closed at this point, these callers are likely assuming that it will be very difficult for a broadcaster to ascertain the veracity of a fee claim or to confirm whether a caller is actually connected to the FCC.  As detailed in our earlier post, however, the FCC, along with the rest of the federal government, is operating only at a bare-bones “protecting life and property” level at this point.  While it could certainly use the money given the current absence of congressional funding, a closed FCC is not seeking to collect it from broadcasters, and certainly not over the telephone.

So if you get a call claiming to be on behalf of the FCC and demanding money, be skeptical.  Be even more skeptical if the caller wants you to pay with gift cards—the preferred payment method of phone scammers.  The FCC is really more of a check and credit card operation, and has very complex systems for processing those forms of payment.  It will not allow you to pay your regulatory fees with gift cards, and certainly doesn’t do it over the telephone.

If you do get such a call, one place you can report it to is the Federal Trade Commission, but you may have to wait until the federal shutdown is over, as processing complaints regarding phone scammers is one of the many FTC activities that have ceased due to the government shutdown.

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Broadcasters were spared some of the uncertainty related to the December 22, 2018 government shutdown because the FCC was able to independently fund its operations until January 3, 2019.  Yesterday, those funds ran out, and under the Antideficiency Act, FCC employees are prohibited from continuing to work until funds are available to pay them.  While the Antideficiency Act doesn’t directly affect the FCC’s filing and other databases (being automated, they don’t get paid as FCC employees), some of those systems are incapable of operating without regular human intervention, and some can operate without human intervention only until they “break”, at which point the Antideficiency Act prohibits anyone from maintaining or repairing them.

As a result, it wasn’t clear until the past two days which systems might remain online, and which systems would be preemptively taken down to avoid “breakage”.  The FCC released a Public Notice on Wednesday clarifying that the last normal day of business prior to the shutdown was January 2, 2019 (January 3 being only a half-day), so any FCC filings due on January 3rd or thereafter are now due on the day after the day the Commission eventually reopens.

The Public Notice also listed certain Commission electronic filing and database systems that would remain operational during the shutdown, and certain systems that would be taken offline.  Absent from either list was the FCC’s online Public Inspection File database, and conversations with FCC staff minutes before they were required to leave the building indicated that even they didn’t know for sure whether the public file database would continue operating during the shutdown.

The answer became clear late yesterday afternoon when the online Public Inspection File database ceased to function, redirecting stations trying to upload documents and any members of the public wishing to view them to a webpage describing the shutdown.  The public’s inability to access the online Public File triggers the obligation on the part of broadcasters and cable/DBS systems to make available to the public a back-up copy of the political broadcasting portion of their Public Inspection File (generally referred to as the “Political File”).  At the time the Commission created that obligation, it said stations could keep the Political File either electronically or in paper and make it available either at their main studio or on their website.

With the elimination of the Main Studio rule, however, that obligation was further modified such that Political File documents that are not available via the Commission’s online database must now be made available at an “accessible location” in the station’s community of license during normal business hours.  An accessible location would include a station office, the local library, the office of another broadcaster, or any other business.  Broadcasters are not required to make any other portion of their Public Inspection File beyond the Political File available during the federal shutdown.

Moving beyond the Political File “backup” obligation, the shutdown of the online Public Inspection File database also means that broadcasters cannot upload their Quarterly Issues/Programs List or Children’s Commercial Television Limits compliance documents that would otherwise be due in the online Public Inspection File on January 10, 2019.   Accordingly, while the upload of Public File documents is not considered an FCC “filing”, the date to upload those documents has effectively been extended until after the Commission reopens.

However, the inability to upload materials to the Public File does not relieve stations of their recordkeeping obligations.  As stated in a 2016 Public File Report and Order by the FCC, “[i]f the Commission’s online file becomes temporarily inaccessible for the uploading of new documents, [the FCC] will require entities to maintain those documents and upload them to the file once it is available again for upload.”  These materials do not need to be made available to the public during the shutdown, but stations should proceed as usual in the creation of their January 10th documentation and be prepared to upload those materials once the online Public Inspection File database becomes accessible.

Note also that television stations, while not obligated to, can still file their Children’s Television Programming Reports (that would normally be due on January 10th) with the FCC.  This is because the FCC has left the LMS filing system up and running for incentive auction-related filings (which are excluded from the shutdown because auction-related activities at the FCC are separately funded—see below).  However, the Commission’s Public Notice is clear that, other than auction filings and those necessary for the protection of life and property, filings at the FCC during the lapse in government funding “will not be reviewed or processed and will be considered accepted on the day following the day of return to normal operations.”

Finally, be aware that because the spectrum auction operations of the FCC remain fully funded, they are NOT affected by the government shutdown.  FCC staff will continue to be available to answer questions, grant requests for Special Temporary Authority and process requests for reimbursement from television broadcasters that are transitioning to another channel as a result of the broadcast incentive auction and repack.  Because those FCC operations continue, the FCC left its LMS database up and running, which means that transitioning television stations CAN and MUST make filings related to their transition.  This includes the Quarterly Transition Progress Report due on January 10, which must still be filed by that date.  For stations assigned to Phase 2 of the transition, the obligation to notify cable and satellite TV distributors 90 days prior to a station’s transition to a new channel, and the deadline for filing with the FCC a request for any extension of time to transition, remain unchanged.  In that regard, FCC staff will still be available to provide Phase 2 transition stations with the mailing addresses of the multichannel video programming distributors to which the notices must be sent.

So if upon hearing of the FCC shutdown you thought you could extend that holiday vacation, think again.  Your regulatory obligations didn’t go away, they just became more complicated to fulfill.

 

 

 

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The FCC announced late today that the freeze that has been in place since April 2013 which prevents full-power and Class A TV stations from filing applications to expand their coverage areas will be lifted temporarily, likely before the end of this year.  The lifting of the freeze allows stations that were not repacked following the Broadcast Incentive Auction to file minor modification applications to expand their signal for the first time in nearly five years.

Earlier this year, television stations that were repacked filed applications specifying facilities on their new channel assignments.  A small group of repacked stations that were unable to build on their assigned channel, and stations that were predicted to receive excessive interference as a result of the repack, were allowed to file applications for different facilities in a priority filing window that closed on September 15.  A second priority window for repacked stations to further modify their facilities is currently underway.  CommLawCenter reported on these various repack milestones here and here.

Today’s announcement alerts full-power and Class A TV stations which were not repacked that the freeze on filing modification applications will be lifted temporarily some time after the second priority window for repacked stations closes on November 2, but before a planned Special Displacement Window for LPTV stations is opened, which is predicted to occur early next year.

Given the timing of those two windows, the odds seem good that the temporary lifting of the freeze will occur before the end of this calendar year.  By allowing these stations to file modification applications before the opening of next year’s LPTV window, the FCC hopes to avoid having LPTV stations file in that window only to find their newly authorized facilities subsequently displaced by full-power and Class A TV stations that have been waiting to file a modification application since 2013.

While the freeze is lifted, applications to modify facilities will be accepted on a first come, first served basis.  Only applications that qualify as minor modifications will be permitted.  The temporary lifting of the freeze also means that processing of modification applications that were pending in April of 2013 can resume.

In this complex game of upgrade chess, LPTV station licensees should file any minor modification applications they are contemplating as soon as possible, since the FCC indicates that the filing of those types of applications will be frozen 30 days prior to the opening of the LPTV Special Displacement Window.  Such is the freeze-thaw cycle at the FCC.

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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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As we previously reported, the FCC last year adopted a number of changes to its rules and policies aimed at revitalizing the AM radio service, which for many years has lived in the shadow of the more robust FM service.  One of these changes was to expand the ability of AM broadcasters to use FM translators to rebroadcast their AM signals, thereby improving coverage, particularly at night.  To accomplish this, the FCC gave each AM station the right to file one, and only one, application to move an FM translator up to 250 miles and change the translator’s frequency, provided that it is used to rebroadcast the designated AM station for the next four years.  If that application does not make it through the FCC process for any reason, the broadcaster is barred from filing another.

The FCC gave smaller Class C and D AM stations first crack at its new policy by opening a window on January 29, 2016, during which Class C and D licensees could file modification applications on a first-come, first-served basis.  In other words, if you filed your application on January 29, you trumped anyone who filed a conflicting application after that date.  If parties file mutually exclusive applications on the same day, the applicants need to resolve the mutual exclusivity through settlement negotiations and/or technical amendments (e.g., one or both parties move to a different frequency).

The first window, limited to Class C and D AM stations, closes on July 28, 2016.  On the next day, July 29, a second window opens during which Class A and B AM stations (as well as Class C and D stations that did not file in the first window) may file modification applications to relocate FM translators to be used for AM station rebroadcasts.

AM stations that have not yet filed should keep in mind that:

  1. If you have a Class A or B AM station and plan to relocate an FM translator for AM rebroadcast purposes, you should get your modification application filed on July 29 in order to give yourself the maximum protection against being bumped by an earlier-filed mutually exclusive application.  If you are planning to buy a translator but haven’t actually acquired it yet, there are still ways to get the modification application on file before closing the acquisition.
  2. If you have a Class C or D AM station and plan to relocate an FM translator for rebroadcasts (and haven’t filed a modification application yet), file by July 28.  While Class C and D stations will not be precluded from filing in the second window, July 29 is sure to bring a wave of new modification applications that will change the translator landscape significantly.

But even having these deadlines circled on your calendar won’t help if your modification application is dismissed.  When it comes to modification applications filed in either of these windows, the FCC has made clear that its policy is one and done.  A dismissed application means that you not only lose your place in the processing line, but cannot file again in the windows.  Such a dismissal could occur due not only to deficiencies in the application itself, but also if your deal to acquire the translator falls through.  AM broadcasters buying a translator are therefore well advised to pay careful attention to the due diligence process, the closing conditions in the acquisition agreement, the compliance of the proposed move with FCC technical rules, and their financing for the acquisition.  If a deal falls through, the reason is irrelevant.  You’ll be sitting out the filing window watching your competitors get their FM translators.

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The FCC today announced the application procedures to be used for broadcast stations wishing to participate in the spectrum auction, as well as application procedures for those wishing to purchase that spectrum in the forward auction.  Of particular interest to broadcast stations wishing to participate in the reverse auction is the announcement that the window for filing those auction applications will run from 12 noon Eastern Time on December 1, 2015 to 6pm Eastern Time on December 18, 2015.

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As we reported here, the FCC released its proposals regarding 2015 regulatory fees last May. As August turned into September, licensees were getting anxious as to when the FCC would get around to issuing an order setting the fees and opening the “Fee Filer” online payment system. That happened today with the release of this Public Notice and this Report and Order and Further Notice of Proposed Rulemaking (note that for the reasons discussed below, these FCC website links will not function correctly until the FCC’s website resumes normal operation on September 8th).

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The FCC has released a Notice of Proposed Rulemaking, Report and Order, and Order (really, that’s the title of it) (“NPRM/R&O”) proposing regulatory fees for Fiscal Year 2015 and making other changes to its regulatory fee structure. Comments on the FCC’s proposals are due June 22, 2015, with reply comments due July 6, 2015.

For the fourth consecutive year, the FCC proposed $339,844,000 in regulatory fee payments. The proposed fee tables are attached to the NPRM/R&O as Appendix C and can be used to estimate your likely 2015 regulatory fee burden. Note that effective this year, regulatory fees on Broadcast Auxiliary licenses and Satellite TV construction permits have been eliminated from the fee schedule.

In the NPRM, the FCC requested comment on whether the apportionment of regulatory fees between TV and radio broadcasters should be changed, noting that it expects to collect approximately $28.4 million from radio broadcasters and $23.6 million from TV broadcasters, but that commercial radio stations outnumber commercial TV stations by 10,226 to 4,754. Because the FCC generally allocates regulatory fees based upon the number of FCC employees employed in regulating a particular service, the FCC appears to be suggesting that radio broadcasters may have to shoulder a larger share of the broadcast regulatory fee burden

The FCC also noted that while TV regulatory fees are based upon the size of the DMA in which the TV station is located, radio fees are based upon the population actually served and the class of the station. The NPRM seeks comment on whether changes should be made to this structure, but indicated that any changes made would be unlikely to impact fees this year.

In addition, the FCC requested comment on a petition filed by the Puerto Rico Broadcasters Association requesting regulatory fee relief for broadcasters in Puerto Rico due to economic hardships and population declines specific to Puerto Rico.

Finally, the FCC adopted some changes to its regulatory fee structure. The most significant of these is a new regulatory fee, proposed to be set at $0.12 per subscriber annually, imposed upon direct broadcast satellite (“DBS”) providers (i.e., DISH and DIRECTV). The FCC pointed out that while DBS providers historically have paid regulatory fees with respect to regulation by the International Bureau, they have not paid fees with respect to the Media Bureau which also regulates the service. The payment of fees by DBS providers to recover costs associated with Media Bureau regulation of DBS was teed up in a notice of proposed rulemaking last year and was adopted in the NPRM/R&O.

After comments and reply comments are received, the FCC will release an order setting forth the final 2015 regulatory fee amounts. This order is usually released in August but sometimes isn’t available until September. The order will also establish the precise filing window for submitting regulatory fees, which is typically in the latter part of September.

Those wishing to oppose the proposed regulatory fee changes will need to file their comments and reply comments with the FCC by the respective June 22, 2015 and July 6, 2015 deadlines.

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March 2015
The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by April 10, 2015, reflecting information for the months of January, February and March 2015.

Content of the Quarterly List

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

To demonstrate a station’s compliance with this public interest obligation, the FCC requires the station to maintain and place in the public inspection file a Quarterly List reflecting the “station’s most significant programming treatment of community issues during the preceding three month period.” By its use of the term “most significant,” the FCC has noted that stations are not required to list all responsive programming, but only that programming which provided the most significant treatment of the issues identified.
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