Articles Posted in Low Power &amp; Class A Television

By Pillsbury's Comm Law Center Team

The next Quarterly List for months of July, August and September must be placed in stations’ public inspection files by October 10, 2016.

Content of the Quarterly List

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

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

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

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

Preparation of the Quarterly List

The Quarterly Lists are required to be placed in the public inspection file by January 10, April 10, July 10, and October 10 of each year. The next Quarterly List is required to be placed in stations’ public inspection files by October 10, 2016, covering the period from July 1, 2016 through September 30, 2016. All TV stations must post their Quarterly Lists to the online public inspection file. Additionally, commercial radio stations in the Top-50 Nielsen Audio markets that have five or more full-time employees are now required to post their Quarterly Lists to the online public inspection file as a result of the FCC’s January 2016 decision to extend the online public file requirement to broadcast radio stations. Note that, effective as of June 24, 2016, the website for the new online public inspection file for both TV and radio stations is https://publicfiles.fcc.gov/.

Stations should keep the following in mind:

Stations should maintain routine outreach to the community to learn of various groups’ perceptions of community issues, problems, and needs. Stations should document the contacts they make and the information they learn. Letters to the station regarding community issues should be made a part of the station’s database.
There should be procedures in place to organize the information that is gathered and bring it to the attention of programming staff with a view towards producing and airing programming that is responsive to significant community issues. This procedure and its results should be documented.
Stations should ensure that there is some correlation between the station’s contacts with the community, including letters received from the public, and the issues they have identified in their Quarterly Lists. A station should not overlook significant issues. In a contested license renewal proceeding, while the station may consider what other stations in the market are doing, each station will have the burden of persuading the FCC that it acted “reasonably” in deciding which issues to address and how.
Stations should not specify an issue for which no programming is identified. Conversely, stations should not list programs for which no issue is specified.
Under its former rules in this area, the FCC required a station to list five to ten issues per Quarterly List. While that specific rule has been eliminated, the FCC has noted that such an amount will likely demonstrate compliance with the station’s issue-responsive programming obligations. However, the FCC has noted that some licensees may choose to concentrate on fewer than five issues if they cover them in considerable depth. Conversely, the FCC has noted that other broadcasters may address more than ten issues in a given quarter, due perhaps to program length, format, etc.
The Quarterly Lists should reflect a wide variety of significant issues. For example, five issues affecting the Washington, DC community might be: (1) the fight over statehood for the District of Columbia; (2) fire code violations in DC school buildings; (3) clean-up of the Anacostia River; (4) reforms in the DC Police Department; and (5) proposals to increase the use of traffic cameras on local streets. The issues should change over time, reflecting the station’s ongoing ascertainment of changing community needs and concerns.
Accurate and complete records of which programs were used to discuss or treat which issues should be preserved so that the job of constructing the Quarterly List is made easier. The data retained should help the station identify the programs that represented the “most significant treatment” of issues, e.g., duration, depth of presentation, frequency of broadcast, etc.
The listing of “most significant programming treatment” should demonstrate a wide variety in terms of format, duration (long-form and short-form programming), source (locally produced is presumptively the best), time of day (times of day when the programming is likely to be effective), and days of the week. Stations should not overlook syndicated and network programming as ways to address issues.
Stations should prepare each Quarterly List in time for it to be placed in their public inspection file on or before the due date. If the deadline is not met, stations should give the true date when the document was placed in the public inspection file and explain its lateness. Stations should avoid creating the appearance that a document was timely placed in the public inspection file when it was not.
Stations should show that their programming commitment covers all three months within each quarter.

A PDF version of this article can be found at 2016 Third Quarter Issues/Programs List Advisory for Broadcast Stations.

Published on: September 6, 2016

September 27 Is the Deadline for 2016 Regulatory Fees

Pillsbury's Comm Law Center Team

Just before the Labor Day weekend, the FCC issued its Report and Order launching the annual regulatory fee payment process for Fiscal Year 2016. The FCC has also opened the “Fee Filer” system that must be used to pay regulatory fees. More information and FAQs about the FY 2016 regulatory fees can be found here.

Payment in full of regulatory fees must be made by 11:59 p.m. Eastern Time on September 27, 2016. Late payment of regulatory fees will result in a 25% penalty and “red light” status, which restricts the FCC’s processing of a late payer’s applications until payment of the fees and penalties has been made. The FCC specifically reminded participants in the ongoing TV broadcast Incentive Auction that they must pay regulatory fees for FY 2016 if they held a license or construction permit as of October 1, 2015 (and will be liable for next year’s fees if they hold a license or CP as of October 1, 2016). The FCC also noted that payment of regulatory fees is required before Incentive Auction participants can receive any proceeds resulting from the auction, although given the pace at which the auction is proceeding, that seems unlikely to be an issue until well into next year.

As expected, regulatory fees for broadcast stations generally increased over last year, and the total fees assessed rose from $339,844,000 in FY 2015 to $384,012,497 in FY 2016. Although the fees assessed for “operational expenses” remained the same as last year, the FCC (in a move which some might find ironic) assessed an additional $44,168,497 to offset FCC “facilities reduction costs.” According to the FCC, those costs reflect the one-time expense of reducing the FCC’s office footprint and/or moving the FCC to a new location, and are required by Congress to be collected.

Despite the increase in total fees, middle market TV stations caught a break, with fees for stations in markets 51-100 falling from $16,275 last year to $15,200 this year. Fees for TV stations in markets 1-10, on the other hand, took the biggest jump — going from $46,825 to $60,675.

As for radio, rates increased over last year for most, but not all, stations. In light of comments asserting that the regulatory fees proposed by the FCC last May were too burdensome for small independent radio stations, the FCC reduced the fees in the two lowest population tiers for AM and FM broadcasters. Stations located in markets with populations of more than 3 million, previously the highest of the radio fee tiers, have been split into two groups by the FCC: (1) markets of 3,000,000-6,000,000, and (2) markets over 6,000,000. Charts showing the regulatory fees for the various TV and radio groups are below:

Broadcast Television and TV/FM Translators and Boosters

Markets 1-10	$60,675
Markets 11-25	$45,675
Markets 26-50	$30,525
Markets 51-100	$15,200
Remaining Markets	$5,000
Construction Permits	$5,000
Satellite TV Stations (all markets)	$1,750
Low Power TV, Class A TV, TV/FM Translators & Boosters	$455

Broadcast Radio (AM and Full Power FM)

Population	AM Class A	AM Class B	AM Class C	AM Class D	FM Classes A, B1 & C3	FM Classes B, C, C0, C1 & C2
25,000 or fewer	$990	$715	$620	$685	$1,075	$1,250
25,001-75,000	$1,475	$1,075	$925	$1,025	$1,625	$1,850
75,001-150,000	$2,200	$1,600	$1,375	$1,525	$2,400	$2,750
150,001-500,000	$3,300	$2,375	$2,075	$2,275	$3,600	$4,125
500,001-1,200,000	$5,500	$3,975	$3,450	$3,800	$6,000	$6,875
1,200,001-3,000,000	$8,250	$5,950	$5,175	$5,700	$9,000	$10,300
3,000,001-6,000,000	$11,000	$7,950	$6,900	$7,600	$12,000	$13,750
Greater than 6,000,000	$13,750	$9,950	$8,625	$9,500	$15,000	$17,175

In addition, initial AM Construction Permits were assessed a $620 regulatory fee per station for FY 2016, with initial FM Construction Permits drawing a regulatory fee of $1,075 per station.

Finally, the FCC rejected a proposal by the Puerto Rico Broadcasters Association to reduce regulatory fees for stations located in Puerto Rico by 30% to reflect the economic hardships being experienced there. The FCC responded that individual stations in Puerto Rico may request waivers of regulatory fees if they believe their conditions warrant such relief, but the Commission was unwilling to reduce the fees on a blanket basis.

Published on: July 7, 2016

2016 Second Quarter Children’s Television Programming Documentation

By Lauren Lynch Flick and Scott R. Flick

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: June 2, 2016

New Online Public File Demonstration Set for June 13

In a Public Notice released today, the FCC has taken the next steps towards implementing the expanded online public inspection file, which is set to go live on June 24th. Specifically, the FCC announced that on June 13, 2016 at 1:00 p.m. Eastern Time, it will hold an online demonstration on using the new online public file. In addition, the FCC publicized the Internet address for the new online public file, which licensees must use to create the required link from their websites to the online public file.

As we previously described in Neither Sleet Nor Snow Can Keep the Radio Public File from Going Online and All New Online Public File for TV, Radio, Cable and Satellite Coming June 24th, the FCC adopted a Report and Order in January 2016 extending the online public inspection file requirement to broadcast and satellite radio licensees and cable and satellite television operators. That requirement is currently applicable only to full power and Class A television stations. Pursuant to a phased-in schedule, commercial radio stations that have five or more employees and are located in the Top 50 Nielsen Audio markets, as well as satellite radio licensees, cable systems with 1000 or more subscribers, and DBS operators, must begin using the new system on June 24, 2016. While commercial radio stations not included in this group as well as all noncommercial radio stations are exempt from the new online public file requirement until March 1, 2018, they are allowed to voluntarily commence use of the new system sooner. Because these exempt stations are permitted to transition early, the demonstration should be of interest to all radio station licensees. The demonstration will take place in the Commission Meeting Room, but can be viewed live at https://www.fcc.gov/news-events/events/2016/06/demonstration-expanded-online-public-inspection-file-interface.

Today’s Public Notice also notes that the website address where the new online public file will be hosted will be https://publicfiles.fcc.gov/. Once a station has transitioned to the online public file, it must provide a link to the new online public inspection file from the home page of the station’s website, if it has one. Full power and Class A television stations that already have such a link will need to update that link to reflect the new website address.

Published on: May 12, 2016

All New Online Public File for TV, Radio, Cable and Satellite Coming June 24th

Television broadcasters have had to comply with an online Public Inspection File requirement since 2012. This past January, the FCC announced that it would expand the online Public File requirement to certain broadcast radio, satellite radio, cable system, and DBS operators. Today, the FCC released a Public Notice announcing the effective date of that new obligation. It also announced that it has established a new filing system, the Online Public Inspection File (“OPIF”), for use by these newly-covered entities, as well as by television broadcasters who until now have been using the existing online Broadcast Public Inspection File (“BPIF”).

The entities that are newly covered by the online Public File requirement will begin use of the new system in two “waves,” with larger entities going first and having a phase-in period, and smaller entities going later, but having no phase-in period. There are lots of dates to keep track of, which include:

Today, May 12, 2016: the New Online Public Inspection File is available for preview at https://publicfiles-demo.fcc.gov/admin/

To Be Announced: FCC Webinar Demonstrating Use of OPIF

June 24, 2016: Public Inspection File documents (including Political File documents) created on or after this date must be uploaded to OPIF by the “first wave” of newly-covered entities:
- Commercial radio stations that have five or more full-time employees and are located in the Top 50 Nielsen Audio markets
- DBS providers
- SDARS licensees
- Cable systems with 1,000 or more subscribers (except with respect to the Political File, for systems with fewer than 5,000 subscribers)

June 24, 2016: OPIF use by full-power and Class A television stations becomes mandatory and BPIF use is disabled
- The FCC says it will transition television stations’ existing documents from the BPIF to the OPIF automatically by this date

December 24, 2016: Public Inspection (but not Political) File documents created prior to June 24, 2016 must be uploaded to the OPIF by the “first wave” entities listed above

March 1, 2018: A “second wave” of newly-covered entities must begin use of OPIF for all newly created Public Inspection and Political File documents and upload all existing Public Inspection (but not Political) File documents. The “second wave” consists of:
- All NCE radio stations
- Commercial radio stations that have fewer than five full-time employees and are located in the Top 50 Nielsen Audio markets
- Commercial radio stations located outside of the Top 50 Nielsen Audio markets, regardless of staff size
- Cable systems with between 1,000 and 5,000 subscribers, with respect to newly-created Political File documents only

Commercial broadcast licensees must continue to retain letters and emails from the public at their main studios; the FCC will not let them be posted in the online public file. However, as we noted last week, the FCC is circulating a Notice of Proposed Rulemaking that proposes eliminating such letters and emails from the public file entirely.

The Public Notice announces that the OPIF will include a number of technical improvements not found in the BPIF system currently used by television licensees. According to the FCC, these improvements are meant to allow stations to better manage their online files, including implementing APIs to enable the upload of multiple documents from a third-party website and permitting a document to be placed into multiple folders. OPIF will also feature improved .pdf conversion software to speed uploads, and allow more flexibility to delete empty folders.

While radio stations have been nervously gearing up to face the new frontier of online public files, TV stations may be a bit surprised that the online file is changing for them as well. Particularly surprised will be those TV stations who haven’t been following these developments and who try to log into the old public file system on July 10 to file their quarterly reports. Whether you are a TV or radio broadcaster, or a cable, DBS, or SDARS provider, now is the time to start learning how OPIF will work; it’s not a BPIF world anymore.

Published on: April 30, 2016

FCC Enforcement Monitor ~ April 2016

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 →

Published on: March 28, 2016

2016 First Quarter Issues/Programs List Advisory for Broadcast Stations

The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by April 10, 2016, reflecting information for the months of January, February, and March 2016.

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 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.

Continue reading →

Published on: March 18, 2016

Broadcast Incentive Auction SecurID Tokens Are in the Mail

It’s not just high school seniors who should be waiting by the mailbox for a thick package to arrive this coming week. All television stations that filed a Form 177 application in Auction 1001 should be looking for their Second Confidential Status Letter between today and March 22nd. The FCC has released a Public Notice stating that the letters have now been mailed to auction applicants.

THE SECOND CONFIDENTIAL STATUS LETTER REQUIRES A SIGNATURE

The Second Confidential Status Letter was sent to the contact person for each applicant. Someone must be available to sign for the package. It does not have to be the contact person, but applicants will want to be sure someone is available at the address used in their Form 177 to sign for the package.

APPLICANTS THAT DO NOT RECEIVE THEIR LETTER BY NOON ET ON MARCH 22ND MUST CONTACT THE AUCTIONS HOTLINE BY TELEPHONE

The Second Confidential Status Letter will inform applicants as to whether their Form 177 applications have been deemed complete. Those applicants whose applications are deemed complete with respect to at least one selected station will receive the SecurID tokens for each of the applicants’ authorized bidders. To participate in the auction, the applicant will need the SecurID token, the FCC-assigned Username associated with that token, and the password associated with that licensee’s Federal Registration Number. Note that group owners that hold licenses in multiple licensees will receive a token and Username for each licensee and will have to sign in to the auction system separately for each licensee.

The Second Confidential Status Letter will also provide applicants with instructions for signing in to the auction online system and submitting their Initial Commitment by the deadline of 6:00 p.m. ET on March 29, 2016. As we have previously written, there will be a preview period beginning at 10:00 a.m. on March 24, 2016. All applicants should sign in to the system during the preview period to familiarize themselves with the system.

The FCC held a Workshop on March 11th to educate applicants about the Initial Commitment process. The presentation is available for review here. In the Initial Commitment, applicants will have the opportunity to designate their preferred relinquishment option from among the relinquishment option(s) they selected on their Form 177. Any applicant that selects the “Go Off Air” option will be accommodated, unless the FCC determines that their station is not needed. Stations that select one of the options to move to the High VHF or Low VHF band will also have the ability to select one or more “fall back” options.

It is important for applicants to understand their Initial Commitment options. Once the Initial Commitment window closes, the FCC will take several weeks to recalculate its spectrum clearing targets. The FCC will then send applicants a Final Confidential Status Letter which will advise them whether their station is needed in the auction (recall that when the FCC released the opening bids, it identified some stations that would not be needed in the auction because its analysis showed those stations will always have a channel to repack to, regardless of the elections made by other broadcasters). Stations previously deemed needed could be recategorized as not needed based on the information the FCC receives in the Initial Commitments.

In addition, any station that selects the move to High VHF or Low VHF band in the Initial Commitment window will be informed whether that selection can be accommodated. If a station making a VHF selection cannot be accommodated because of the limited number of channels available in that band, the station will be repacked in its original band and not be eligible to participate in the auction unless the station has selected a “fall back” option that can be accommodated. As noted, the “Go Off Air” option can always be accommodated unless the station is deemed not needed.

The learning curve for the Broadcast Incentive Auction is steep. Applicants should take advantage of the educational materials that the FCC has released thus far, and keep a sharp eye out for the arrival of the Second Confidential Status Letter.

Published on: February 29, 2016

FCC Releases Spectrum Auction User Guide and Online Tutorial for March 28-29 Initial Commitment Window

Today, the FCC posted to the Auction 1001 website the Reverse Auction Initial Commitment User Guide and Online Tutorial. Broadcasters that submitted an FCC Form 177 to participate in the Reverse Auction should review these materials to gain a better understanding of how the system will work so that they are prepared to participate when the Initial Commitment Window opens. The Tutorial is easy to use, and you can pause it as needed to study and better understand the materials. The User Guide is largely duplicative, but does contain important information such as technical requirements for using the system and contact information for help troubleshooting problems.

A few informational highlights include:

Important Dates:

March 28, 2016 10am ET – March 29, 2016 6pm ET: The Initial Commitment Window – a total of 32 hours – during which broadcasters must file their Initial Commitments. The Initial Commitment may be changed until the close of the window, but if no commitment is made by the close of the window, the station will be excluded from the auction and repacked in its pre-auction band.
March 24, 2016 10am ET – March 28, 2016 9:59am ET: The Initial Commitment Preview Period – a four-day period during which all participating stations are encouraged to log into the system, set their PINs, and view the list of stations and Relinquishment Options available to them.

What to Do in the Preview Period: During the Preview Period, broadcasters should log in to the system and familiarize themselves with it. You will understand why this is important as you read through the paragraph below.

To log in to the system for the first time, each authorized bidder must activate their FCC-supplied RSA token (which displays a code randomly generated every 60 seconds) and select a PIN. To do so, select the “Click here for the login screen” link, enter the FCC-assigned Username for the authorized bidder logging in, the password associated with the FRN listed on the licensee’s Form 177, and the current code displayed on the FCC-supplied RSA token. Click the Log In button. Next, choose a 4-8 digit PIN, enter it twice in the fields provided, and click the Continue button. There is a limited time to complete this step, with the remaining time shown on the screen. On the next screen, type in the PIN you selected and the code shown on the RSA token. This code cannot be the same as the one used on the prior screen. If that code is still showing (because you have proceeded through these steps in less than 60 seconds), wait for the next code to appear. Click the Continue button.

Once these steps are completed, each authorized bidder will log in by entering the bidder’s FCC-assigned Username, the password associated with the licensee’s FRN, the PIN selected in the step above, and the current code shown on the RSA token assigned to that bidder. Multiple bidders for a licensee can be logged into the system at the same time, but only one will be able to place bids at a time.

Overview of the System: Once logged in, the broadcaster will see three options displayed on a navigation bar to the left of the screen: Make Commitment, Messages, and Station Info. In addition, clocks showing the current date and time as well as the countdown to the opening of the Initial Commitment Window are displayed.

Make Commitment: When clicking on this tab, the broadcaster will see its station or stations, if they have been deemed eligible to participate. The Preferred Relinquishment option the broadcaster selected in its Form 177 (and the associated opening bid) will appear in a column to the right of the call sign. To choose this Relinquishment Option as the station’s Initial Commitment, the broadcaster need only click the “Submit” button and will then see a green checkmark appear. If the station has additional options available to it based on its frequency band and the selections the station made in its Form 177, these are available from a dropdown menu under the Preferred Relinquishment option. As noted above, the FCC indicates that the choice the station makes from among these options can be changed until the end of the Initial Commitment Window. Stations that no longer wish to participate in the auction will select the “Decline Commitments” option from the dropdown menu.

If the broadcaster chooses either the Move to a High VHF channel or Move to a Low VHF channel option as its Preferred Relinquishment choice, a window will open advising that the system will attempt to fulfill this choice, but that because of limited channels in the VHF band, this option is not guaranteed. These stations will be given fallback options, if available to them based on their Form 177 choices, and the option to decline fallback options. It is important to understand the impact of selecting a VHF band option. If the choice can be accommodated, it will be. If the option cannot be accommodated, the station will be eliminated from the auction and repacked in its current band, unless one or more fallback options has been selected.

Messages: In this section, FCC staff can communicate with the licensee and the licensee can communicate with FCC staff. All authorized bidders for a station can see messages sent by that station’s other authorized bidders as long as they are logged into the system.

Station Info: This section lists all of the licensee’s stations that are eligible to participate in the auction, along with the Relinquishment Option(s) available to each station based on its frequency band and the station’s selections in its Form 177. This is the only section that the broadcaster can see during the Preview Period.

The FCC has also announced an Initial Commitment Window Workshop to take place on March 11, 2016 from 10am – 1pm ET. Participants can attend in person or watch online remotely, and the FCC’s staff highly recommends those interested in participating in the reverse auction also participate in the Workshop. The FCC has said that additional tutorials and resources for participation in the next stages of the auction will be made available to licensees at a later date. Those, however, will only be useful to broadcasters that successfully make their Initial Commitment, so time to open the Tutorial and start studying.

Published on: February 26, 2016

FCC Enforcement Monitor ~ February 2016