Articles Posted in Low Power & Class A Television

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The FCC’s new Licensee-Conducted Contest Rule became effective this past Friday.  Under the new rule, a broadcast licensee conducting a contest still has the obligation to disclose the material terms of the contest “fully and accurately” and to conduct the contest substantially as announced.  However, as we wrote last September, the new rule allows broadcasters to meet these requirements by posting the contest terms on their websites rather than reading them on-air.  To take advantage of this new flexibility, broadcasters must:

  • Post the terms on the station’s or licensee’s website, or if neither the station nor the licensee has a website, on a free website that is available to the public 24/7, without registration;
  • Broadcast the website address with sufficient information for a consumer to find the terms easily, using simple instructions or natural language;
  • Broadcast the website address periodically throughout the term of the contest;
  • Establish a conspicuous link or tab on the home page of the website that takes consumers to the contest terms;
  • Maintain the terms on the website for at least 30 days after the contest has ended and conspicuously mark those that are expired, including the date a winner was selected;
  • On the rare occasions that a change in terms occurs during the contest, announce the changes on-air within 24 hours and periodically thereafter, and direct participants to the written terms on the website; and
  • Assure that the contest rules posted online conform to those announced on-air.

The effective date of the new rule has been eagerly anticipated by broadcasters as the change grants them more flexibility in announcing contest terms, avoids long and complicated contest announcements on-air, and permits participants to review the rules at their leisure.  However, in making the change, the FCC noted that “[a]s with all elements of contest-related announcements, the burden is on the broadcaster to inform the public, not on the public to discern the message.”

Indeed, the law views the rules of a contest or sweepstakes to be a contract between the sponsor (station) and anyone who enters the contest, or even anyone who tries to enter and fails to do so successfully.  If the sum total of your on-air contest rules are “be the 103rd caller after X song is played” and a vague “station policy” somewhere on the website that says you can only win once every 30 days, you have left a lot out of your “contract.”  For example, when a station ran a contest on-air like the one above and did not get many callers, the DJ simply awarded the prize to the last person to call in after hours of trying to attract more callers.  The station was fined by the FCC because it did not run the contest substantially as advertised.  Properly written contest rules should account for such situations, as well as other foreseeable developments, such as the phone lines going down after the trigger song has been played.  A station with contest rules that don’t address likely (or even unlikely) contest developments is inviting challenges from both contestants and regulators.

In that regard, as we noted in FCC Proposes to Clear Airwaves of Boring Contest Disclosures, But State Issues Remain, stations should remember that the FCC is not the only regulator watching out for contest and sweepstakes violations.  For example, some states’ contest laws require that all announced prizes be awarded in order to prevent “bait and switch” contests.  For stations giving away “time sensitive” prizes such as concert tickets that have to be used on a specific date, the rules should address the situation where a winner is chosen but then turns down the prize or simply does not claim it because they cannot attend on the date specified.  If the rules say that an alternate winner will be chosen after 10 days, there may not be enough time left before the concert to award the prize.  The station with poorly written contest rules must then choose between violating the law by failing to award a prize, or violating the law by failing to conduct the contest in accordance with the announced rules.  Badly-drafted contest rules are a liability for any business, but are worse for broadcasters, as in addition to all of the state and federal laws governing contests, broadcasters are uniquely subject to the FCC’s contest oversight as well.

Finally, while you might imagine that contest complaints come from those who lost the contest (and indeed they often do), many come from contest winners.  While professional contestants who enter every contest will complain about the valuation placed on a prize for tax purposes, first-time winners are more likely to complain about having to sign a release to claim the prize, or where the prize is large, having to provide the station with their Social Security Number, appear in person, or attend a further event, such as the day when all the winners of keys must try them out in the grand prize car.  These obligations need to be clear in the contest rules, not just to avoid liability, but to ensure the station is able to get the promotional value it anticipated from the contest.  Contestants who demand anonymity and refuse to sign releases greatly undercut the promotional value of a big contest.

The bottom line is, now that the FCC will let you post your rules online for contestants and regulators to scrutinize, you need to ensure you have rules that can withstand scrutiny.

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January 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:

  • TV Licensee Agrees to Pay $18,000 for Public Inspection File Violations
  • FM Translator Licensee Faces $9,000 Fine for False Certification and Unauthorized Operation Violations
  • AM Station Licensee Pays $10,000 to End Investigation into Alleged Ownership Violations

Mistakes Over Off-Air Time in Public Inspection File Cost TV Licensee $18,000

The FCC’s Media Bureau entered into a Consent Decree with a Las Vegas Class A television licensee to resolve an investigation into whether the licensee violated the FCC’s Rules by improperly indicating  on four Children’s Television Programming Reports and TV Issues/Programs Lists that it was off-air, and failing to prepare mandatory certifications of Class A eligibility for over five years.

Section 73.3526 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) requires TV licensees to prepare and place in their public 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, Subsection 73.3526(e)(11)(i) requires TV licensees to place in their public file, on a quarterly basis, an Issues/Programs List that details programs that have provided the station’s most significant treatment of community issues during the preceding quarter.  Also, Subsection 73.3526(e)(17) requires each Class A television station to include in its public file documentation sufficient to demonstrate that it continues to meet the Class A eligibility requirements as set forth in Section 73.6001.

On May 28, 2014, the licensee filed its station’s license renewal application. In the process of evaluating the application, FCC staff found that the licensee indicated the station was off-air in its Children’s Television Reports and Issues/Programs Lists for two quarters during which it was on the air for a portion of the quarter, and for two quarters during which the station did not have Special Temporary Authorization (“STA”) to go off-air.  In addition, the station failed to prepare any Class A certifications during its license term, which began in the third quarter of 2009.

The licensee explained that it had mistakenly indicated that the station was off-air in the Children’s Television Reports and Issues/Programs Lists filed for the last three quarters of 2010 because its compliance official mistook the station’s engineering STA for an STA to go off-air. With regard to the first quarter 2012 reports, the licensee explained that the compliance official mistook another station’s STA to go off-air for this station’s STA.

To resolve the investigation, the licensee admitted to the violations and agreed to pay an $18,000 fine. The licensee also agreed to a two-year compliance plan, which directs the licensee to institute management checks, training, and other measures designed to prevent a re-occurrence of the violations.   Despite the imposition of a fine and compliance plan, the FCC renewed the station’s license, finding that the licensee met the minimum qualifications to hold an FCC license, and that grant of the license renewal application was in the public interest.

FCC Proposes $9,000 Fine for FM Translator Licensee Based on False Certification and Unauthorized Operation Violations

The FCC’s Media Bureau proposed to fine a Texas FM translator licensee $9,000 for falsely certifying in a license application that its translator was constructed as specified in its construction permit, and for operating the translator at variance from its license. The FCC also admonished the licensee for including incorrect information in a related application.

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In a Report and Order that has been in the making since at least 1998, the FCC yesterday adopted new ownership reporting forms for both commercial and noncommercial broadcast stations. The FCC’s goal in adopting these new forms is to enhance the completeness and accuracy of its broadcast ownership data by (i) again imposing a unique identifier for each attributable interest holder—one that is tied to that individual’s Social Security Number (SSN); (ii) collecting race, gender and ethnicity data from noncommercial licensees as it has for some time now from commercial licensees; and (iii) consolidating the noncommercial biennial ownership report filing deadline with that of biennial ownership reports for commercial broadcast stations, which will now be December 1 of odd-numbered years for both commercial and noncommercial stations. In the process, the FCC has modified the reports to incorporate a number of reforms requested by broadcasters and their counsel to eliminate redundant and burdensome idiosyncrasies, glitches, and design flaws in the current commercial ownership reporting form.  This will hopefully alleviate at least some of the pain involved in filing what has been one of the FCC’s most duplicative and burdensome forms.

For the past several years, the FCC has required commercial broadcast licensees to include in their ownership reports a unique identifier, called a Federal Registration Number (FRN), for each attributable interest holder.  When first imposed, stations objected to the FRN mandate because the FCC requires individuals seeking an FRN to supply their full SSN to the Commission. In an attempt to quell that outcry, the FCC created a temporary solution called a Special Use FRN (SUFRN), that broadcasters could utilize when attributable interest holders balked at providing their SSNs.

The FCC has now introduced another alternative to obtaining a full FRN, called the Restricted Use FRN (RUFRN), available only for use in filing ownership reports. The FCC considers the RUFRN to be a superior solution to the SUFRN (had enough acronyms yet?) because the SUFRN collected no information whatsoever about the person to which it was assigned and therefore did not further the FCC’s goal of increased accuracy in the ownership data being collected. The basis for the FCC’s belief in the superiority of the RUFRN is that in order to apply for a RUFRN, an individual must supply the FCC with their full name, date of birth, home address, the last four digits of their SSN, and all of that individual’s previously used FRNs and SUFRNs. This information will not be made publicly available, but will enable the FCC to uniquely identify each attributable interest holder in a broadcast station.

Noncommercial broadcasters in particular still oppose the FCC’s efforts to collect such personal data, since the Commission’s multiple ownership rules do not even apply to them, and they worry that the data breaches and hacks that have afflicted other federal agencies will eventually affect the FCC as well.  Commissioner Pai’s separate statement is particularly worth reading in that regard.  While the FCC will allow continued use of a SUFRN, it will permit such use only where an interest holder has refused to apply for a RUFRN or to provide the broadcaster in which it holds an interest with the information needed to obtain a RUFRN for that investor.  The FCC has indicated that stations are at risk of significant enforcement actions should the SUFRN option be abused. With the new RUFRN in place, the FCC will fix its search engine so that the “search by FRN/RUFRN” function will actually return a list of the broadcast stations in which the holder of the searched FRN/RUFRN has an attributable interest.

The FCC also consolidated the ownership report filing deadline for noncommercial stations with that of commercial stations, and extended that date an extra month, from November 1 to December 1 of odd-numbered years, to allow more time for all U.S. broadcast stations to draft their reports, hit the file button, and crash the Commission’s filing system.  Here’s hoping that the FCC will make the biennial filing system available well in advance of October 1, 2017 to allow more time for the increased number of filers to draft and file their reports by the December 1 deadline.

As expected, the FCC revised the ownership report form for noncommercial licensees to collect race, gender and ethnicity information for all interest holders, just as it now does for commercial licensees. In addition, for both commercial and noncommercial filers, it will now be possible to select more than one ethnicity from the list to better report those who identify as being multiracial, a change required by OMB.

In a welcome expression of candor, the Commission conceded that the current version of the commercial station ownership report form has led to widespread errors in those reports, undermining the integrity of all ownership data reported. In light of that big admission, the FCC adopted a number of simplifications suggested by broadcasters that will hopefully ease the filing burden and increase the accuracy of the information submitted. Here are the highlights:

  • A parent company will be able to report its ownership interest in multiple licensees on the same form. Previously, each ownership report could only contain data about a single licensee. As a result, companies that held their broadcast licenses in separate licensee subsidiaries had to file multiple parent company reports, most of which were identical to one another except for the substitution of one licensee name and call sign(s) for another.  The multiple duplicative reports clogged the filing system, causing it to grind to a halt for all filers, even those with simpler reporting structures.
  • There will be no more spreadsheets.  Because the FRN search function never worked and only one licensee could be reported per ownership report, it was nearly impossible to determine whether an interest holder reported on one station’s report also had an interest in stations reported in another report.  The FCC’s fix to this was to have broadcasters prepare spreadsheets, some of which were thousands of lines long, and upload them to the ownership reports.  This again slowed the system for all filers and the spreadsheets were difficult to read, undermining the transparency the FCC was seeking.  Now, if additional stations need to reported, they can be added directly in the form itself.
  • Additional options and questions will be added to make the form itself more useful to the FCC.  These include allowing filers to indicate whether they are organized as a Limited Liability Company, and whether an ownership interest is held jointly, such as a stock interest that is held by spouses as tenants by the entirety.  The new forms will also require filers to indicate whether they are a Tribal Entity, which furthers the Commission’s diversity goals, as well as to list those that are deemed to have an attributable interest in a station due to a Local Marketing or Joint Sales agreement.

Finally, the Report and Order indicates that the FCC is also making a number of common sense changes to the functionality of the ownership report filing system, including sub-form cloning, auto-fill mechanisms, data saving and validation routines, and enhanced checking for inconsistent data.  If these terms sound like Greek to you, then you clearly have not been involved in the filing of ownership reports at the FCC.  If that is indeed the case, count yourself fortunate, and rejoice that the FCC has taken steps to alleviate that mysterious pain broadcasters experience in odd-numbered years.

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The FCC today released a Public Notice with instructions for filing Form 177, the application for licensees of full-power and Class A TV stations to participate in the reverse auction. As a reminder, the FCC recently extended the application filing deadline, so the filing window now begins at noon Eastern Time on December 8, 2015 and runs until 6 p.m. Eastern Time on January 12, 2016. The auction itself, however, is still on track to begin March 29, 2016.

To access Form 177, applicants must use their FRN and associated password to log into the Auction System, accessible at http://auctions.fcc.gov/ (primary location) or http://auctions2.fcc.gov/ (secondary location).  As detailed in Attachment 1 to the Public Notice, the Form requires applicants to (i) provide, among other things, basic information about their legal classification, contact information, and authorized bidders; (ii) identify one or more relinquishment options for each station; (iii) disclose information about their ownership structure; and (iv) make certain certifications.

If an applicant has entered into an executed channel sharing agreement as a sharee for the station(s) at issue, the applicant must upload at least two channel sharing attachments before submitting the application: (i) a channel sharer certification, and (ii) an unredacted copy of the executed channel sharing agreement. A Channel Sharer Certification for full-power station sharers is attached to the Public Notice as Attachment 2, and one for Class A station sharers is included as Attachment 3.

The Auction System will display both “error” and “warning” messages for each section of the Form prior to allowing an applicant to file. While the Form cannot be submitted with an uncorrected error message, the Auction System will allow applicants to proceed to the Certify & Submit screen even if the application has a warning message. The FCC cautions that applicants should not rely on their ability to certify and submit an application with a warning message as evidence that the FCC has approved the submission, and reminds applicants that the automated check may not catch all errors.

The FCC will allow you to make as many changes as you’d like to an application during the filing window, and will not consider information in your application until you click the CERTIFY & SUBMIT button.  You can even withdraw a previously submitted application up until the close of the filing window.  So while you should strive to get it right the first time, if at first you don’t succeed, try, try again (until 6 p.m. Eastern Time January 12)!  And, if 22 pages of instructions aren’t helpful enough, you may want to check out the FCC’s reverse auction tutorial regarding the pre-auction process, which will be available online tomorrow, November 20, 2015 on the Auction 1001 website.

 

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October has come and gone, and now the season is upon us—filing season, that is!  Though winter is coming, December will be a hot month for radio and television FCC filings. Failure to meet any of these filing deadlines could result in fines or lost opportunities, putting a real damper on the holidays.  With that in mind, we’ve compiled a summary of some of the major upcoming filing obligations and deadlines.

  • December 1: Annual DTV Ancillary/Supplementary Services Reports (FCC Form 2100 Schedule G)

Commercial television, digital Class A television, and digital LPTV stations must electronically file by December 1, 2015 FCC Form 2100 Schedule G, the Annual DTV Ancillary/Supplementary Services Report for Commercial Digital Television Stations, regardless of whether they have received any income from transmitting ancillary or supplementary services. If a digital station provided ancillary or supplementary services during the 12-month time period ending September 30, 2015, and received compensation for doing so, that station is required to pay to the FCC five percent of the gross revenue from such services concurrently with the filing of Form 2100 Schedule G.

Note that this Report was formerly known as FCC Form 317.  With the introduction of the FCC’s new Licensing and Management System, it is now FCC Form 2100 Schedule G.

For a more detailed summery of this filing requirement, you can review our Annual DTV Ancillary/Supplementary Services Report Client Advisory.

  • December 1: Annual EEO Public File Reports for AL, CO, CT, GA, MA, ME, MN, MT, ND, NH, RI, SD, and VT

Station Employment Units (“SEUs”) that have five or more full-time employees and are comprised of radio and/or television stations licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, or Vermont must by this date place in their public inspection file and post on their station website a report regarding station compliance with the FCC’s EEO Rule during the period December 1, 2014 through November 30, 2015.

December 1 is also the mid-point in the license renewal term of radio stations licensed to communities in Alabama and Georgia; therefore, by this date radio SEUs with 11 or more full-time employees in these states must electronically file the FCC Form 397 Broadcast Mid-Term Report along with copies of the SEU’s two most recent Annual EEO Public File Reports.

We’ve prepared an Annual EEO Public File Report Client Advisory with more information regarding these obligations.

  • December 1:  Biennial Ownership Reports for Noncommercial  Stations in AL, CO, CT, GA, MA, ME, MN, MT, ND, NH, RI, SD, and VT (FCC Form 323-E)

In addition to their Annual EEO Public File Reports, noncommercial television stations licensed to communities in Colorado, Minnesota, Montana, North Dakota, or South Dakota, and noncommercial radio stations licensed to communities in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, or Vermont (other than sole proprietorships or partnerships composed entirely of natural persons) must electronically file by December 1, 2015 their biennial ownership reports on FCC Form 323-E, unless they have consolidated this filing date with that of other commonly owned stations licensed to communities in other states. The FCC Form 323-E does not require a filing fee.

Note that the Commission’s August 6, 2015 Order extending the biennial ownership report filing deadline for commercial television and radio stations to December 2 does not apply to these Form 323-E filings for noncommercial stations.

Our Noncommercial Station Biennial Ownership Report Client Advisory has more information on this filing requirement.

  • December 2: Biennial Ownership Reports for Commercial Stations (FCC Form 323)

All commercial radio, full-power television, low-power television, and Class A television stations must electronically file by December 2, 2015 their biennial ownership reports on FCC Form 323 and pay the required FCC filing fee. This year, the fee is $65.00 per station. As a reminder, the FCC extended the usual November filing deadline to December through an Order released this summer, giving commercial licensees an additional month to prepare their reports while maintaining the “as of” reporting date of October 1, 2015.

For a more detailed summary of this filing requirement, check out our Commercial Station Biennial Ownership Report Client Advisory.

  • December 18: Spectrum Auction Applications (FCC Form 177)

As we posted last month, the FCC released its Auction Application Procedures Public Notice, announcing the filing window and application procedures to be used for broadcast stations wishing to participate in the spectrum auction. The auction application form, FCC Form 177, must be filed by each licensee interested in participating in the auction.  The application filing window opens at 12 p.m. Eastern Time on December 1, 2015 and runs until 6 p.m. Eastern Time on December 18, 2015.

After the December 18 deadline for filing Form 177, (1) no major changes may be made to the application (e.g., changing the bid options or licenses offered in the auction, or, except in certain circumstances, making major ownership changes), and (2) the Form 177 must be updated within five days of the applicant learning that information in the form is no longer accurate.

FCC staff will send letters to individual applicants indicating that the applicant’s form is (1) complete, (2) rejected, or (3) incomplete or deficient in a minor way that may be corrected. In the case of the third option, the letter will specify a deadline for submitting a corrected application, and applications that are not corrected by that time will be dismissed with no opportunity to refile.

With so many FCC deadlines stacking up in December, we recommend broadcasters start preparing their reports and applications sooner rather than later.  As Dr. Seuss reminded us:

How did it get so late so soon?
It’s night before its afternoon.
December is here before its June.
My goodness how the time has flewn.
How did it get so late so soon?

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September 2015

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by October 10, 2015, reflecting programming aired during the months of July, August, and September 2015.

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.

Noncommercial Educational Television Stations

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

Commercial Television Stations

Commercial Limitations

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

For commercial stations, proof of compliance with these commercial limitations must be placed in the online public inspection file by the tenth day of the calendar quarter following the quarter during which the commercials were aired. Consequently, this proof of compliance should be placed in your online public inspection file by October 10, 2015, covering programming aired during the months of July, August, and September 2015.

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 with the FCC by October 10, 2015.

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 2015 Third Quarter Children’s Television Programming Documentation.

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July 2015

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:

  • Repetitive Children’s Programming Costs TV Licensee $90,000
  • It’s Nice to Be Asked: FCC Faults Red-Lighted Licensee’s Failure to Request STA
  • FCC Proposes $25,000 Fine for Hogging Shared Frequencies

“Repeat” Offender: Children’s Programming Reports Violations Cost Licensee $90,000

A licensee of several full power and Class A TV stations in Florida and South Carolina paid $90,000 to resolve an FCC investigation into violations of the Children’s Television Act (CTA) threatening to hold up its stations’ license renewal grants.

The CTA, as implemented by Section 73.671 of the FCC’s Rules, requires full power TV licensees to provide sufficient programming designed to serve the educational and informational needs of children, known as “Core programming”, and Section 73.6026 extends this requirement to Class A licensees. The FCC’s license renewal application processing guideline directs Media Bureau staff to approve the CTA portion of any license renewal application where the licensee shows that it has aired an average of 3 hours per week of Core programming. Staff can also approve the CTA portion of a license renewal application where the licensee demonstrates that it has aired a package of different types of educational and informational programming, that, even if less than 3 hours of Core programming per week, shows a level of commitment to educating and informing children equivalent to airing 3 hours per week of Core programming. Applications that do not satisfy the processing guidelines are referred to the full Commission, where the licensee will have a chance to prove its compliance with the CTA.

Among the seven criteria the FCC has established for evaluating whether a program qualifies as Core programming is the requirement that the program be a regularly scheduled program. The FCC has explained that regularly scheduled programming reinforces lessons from episode to episode and “can develop a theme which enhances the impact of the educational and informational message.” With this goal in mind, the FCC has stressed that the CTA intends for regularly scheduled programming to be comprised of different episodes of the same program, not repeats of a single-episode special.

Applying this criteria to each of the licensee’s 2012 and 2013 license renewal applications, the FCC staff questioned whether certain programming listed in the Children’s Television Programming Reports for the stations complied with the episodic program requirement. In particular, the staff looked at single-episode specials that the licensee counted repeatedly for the purpose of demonstrating the number of Core programs aired during each quarter—for example, the licensee listed one single-episode special as being aired 39 times in one quarter. After determining that it could not clear the renewal applications under the FCC’s processing guidelines, the staff referred the matter to the full Commission for review.

The FCC and the licensee subsequently negotiated the terms of a consent decree to resolve the CTA issues raised by the Media Bureau. Under the terms of the consent decree, the licensee agreed to make a $90,000 voluntary contribution to the U.S. Treasury. The licensee also agreed to enact a plan to ensure future compliance with the CTA, to be reflected in each station’s Quarterly Children’s Television Programming Reports. In light of the consent decree and after reviewing the record, the FCC concluded that the licensee had the basic qualifications to be an FCC licensee and ultimately granted each station’s license renewal application.

FCC Clarifies “Red Light” Policy Is a Barrier to Grants, Not a Road Block to Filing Requests

An Indiana radio licensee faces a $15,000 fine for failing to retain all required documentation in its station’s public inspection file and for suspending operation of the station without receiving special temporary authority (STA) to do so.

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June 2015

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:

  • Educational FM Licensee Receives $8,000 Fine for Unauthorized Operation
  • FCC Cancels $6,000 Fine for Late Filings due to Licensee’s Inability to Pay
  • Blaming Prior Legal Counsel, Telecommunications Provider Pays $2,000,000 Civil Penalty

Continued Unauthorized Operation Leads to $8,000 Fine

A New York noncommercial educational radio station received an $8,000 fine after repeatedly failing to operate its station in accordance with its authorization. Section 301 of the Communications Act prohibits the use or operation of any apparatus for the transmission of communications or signals by radio, except in accordance with the Act and with a license granted by the FCC. In addition, Section 73.1350(a) of the FCC’s Rules requires a licensee to maintain and operate its broadcast station in accordance with the terms of the station authorization.

In response to a complaint, an FCC agent discovered in October of 2012 that the licensee was operating the station from a transmitter site in Buffalo, New York, a location about 36 miles from the authorized site. The FCC made repeated attempts to contact the licensee. Ultimately, the president of the licensee confirmed the unauthorized operation and agreed to cease operating from Buffalo. The FCC then issued a Notice of Unlicensed Operation to the licensee, warning it that future unauthorized operations could result in monetary penalties.

After receiving another complaint, the FCC determined that the licensee had resumed unauthorized operation in November of 2012. In response, the FCC’s Enforcement Bureau issued a Notice of Apparent Liability (NAL) proposing an $8,000 fine. The FCC explained in the NAL that although the base fine for operating at an unauthorized location is $4,000, the egregiousness of the licensee’s violation warranted an upward adjustment of an additional $4,000. The FCC based this decision on the fact that the licensee had moved the location of its transmitter to a significantly more populous area more than 30 miles from its authorized location in an effort to increase the station’s audience while potentially causing economic or competitive harm to radio stations licensed to that community.

Following the NAL, the licensee sought a reduction or cancellation of the fine, claiming that it made good faith efforts to remedy the violation, had a history of compliance with the FCC’s Rules, and was unable to pay the fine. The FCC concluded that the licensee took no remedial actions until after it was notified of the violation, and found that the licensee’s continued operation from the unauthorized location after receiving a Notice of Unlicensed Operation demonstrated a deliberate disregard for the FCC’s Rules. Finally, the licensee failed to provide any documentation supporting its inability to pay claim. Accordingly, the FCC rejected the licensee’s arguments and declined to cancel or reduce the $8,000 fine.

In Rare Decision, FCC Cancels Fine Based on Station’s Operating Losses

In October of 2014, the FCC’s Video Division proposed a $16,000 fine against the licensee of a Class A TV station for violating (i) Section 73.3539(a) of the FCC’s Rules by failing to timely file its license renewal application, (ii) Section 73.3526(11)(iii) for failing to timely file its Children’s Television Programming Reports for eight quarters, (iii) Section 73.3514(a) for failing to report those late filings in its license renewal application, and (iv) Section 73.3615(a) for failing to timely file its 2011 biennial ownership report. The FCC also noted a violation of Section 301 of the Communications Act because the station continued operating after its authorization expired. Continue reading →

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Today, the FCC released a Public Notice with a 45-page Appendix listing all full-power and Class A television stations eligible to participate in the reverse auction and receive protection in the repacking process. Licensees should immediately review the Appendix to ensure their station has been included and to determine whether the appropriate authorization for their facility has been listed for auction participation and protection in the repacking. Any station that believes it has been wrongly omitted from the Appendix must file a Petition for Eligible Entity Status by July 9, 2015.

In addition, the Public Notice announces that Form 2100, Schedule 381, the Pre-Auction Technical Certification Form, must also be filed by July 9, 2015. This form requires that the licensee review the station’s authorization listed in the Appendix, as well as the underlying technical information contained in the FCC’s database, and certify whether that information is correct. If it is not, the licensee must state in the form whether the discrepancy is the result of a Commission error or of the licensee operating at variance from its authorization.

If the discrepancy is due to an error by the FCC in its records, the corrected facilities will be used by the Commission for participation in the reverse auction and protection in the repacking process. Where the discrepancy is due to the licensee operating at variance, the licensee must file the appropriate applications to correct that information in the FCC’s database.  Those corrected parameters will not, however, be used for participation in the reverse auction or protection in the repacking process.

As we have written previously, Schedule 381 requests a great deal of information, such as the year of the last structural analysis of the station’s antenna structure and the standard under which that analysis was conducted; whether the station’s antenna is shared with another station; the antenna’s frequency range if it is capable of operating over multiple channels; and the make, model number and maximum power output capacity of the station’s transmitter.

The Public Notice states that if a licensee does not file a Schedule 381, the FCC will assume that the information in the station’s authorization and in the FCC’s database is correct. However, in that circumstance, the Commission will not have the same information regarding that station as it has for stations that did file the Schedule 381, so it is unclear at this time how the FCC will handle that situation.

The FCC will ultimately release a detailed summary of the baseline coverage and population served by each station eligible for participation in the auction and protection in the repacking process. That summary will reflect the information submitted in the Schedule 381, including corrections of discrepancies resulting from FCC errors, along with any changes made as a result of successful Petitions for Eligible Entity Status.

With today’s Public Notice, the FCC moves the spectrum auction a significant step closer to reality.

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While the road to hell may be paved with good intentions, the path to any government objective is usually paved with forms and paperwork. We were reminded of that today when the FCC released a Public Notice reminding full power and Class A television stations of the May 29 Pre-Auction Licensing Deadline. Only those facilities that a station has constructed and for which a license application has been filed by May 29 will be recognized by the FCC for purposes of the reverse auction and spectrum repacking process. That is, stations will not be able to benefit in the reverse auction from, or claim protection in the repacking process for, any facilities modifications completed after May 29, despite the current September 1, 2015 deadline for transitioning Class A stations to digital operation. We wrote about this deadline back in January.

More importantly, the Public Notice further fleshes out the pre-auction process, announcing that the FCC will release a list, expected in mid-June, of each station’s eligible facilities as reflected in the FCC’s database on May 29. Every full power TV and Class A station will then be required to certify to the FCC that the information for that station in the FCC’s database is correct, or identify any errors.

If the error in the database is the FCC’s mistake, it will be corrected in the database and the corrected facilities protected in the auction and repack.  Where the discrepancy is due to the licensee’s error, the licensee must file a modification application to correct the error and seek Special Temporary Authority to operate at variance until a new license is issued. In the latter case, the corrected facilities will not be used for the reverse auction, nor protected in the repacking if licensed after May 29.  Accordingly, the Public Notice urges licensees to make use of the remaining window of opportunity to modify their authorizations to reflect the parameters that they wish to carry into the auction and repacking process.

As you may have guessed, there will be another form involved, so the Public Notice also officially releases Form 2100, Schedule 381, which stations will have to complete not only to make the certification above, but to provide a significant amount of technical information that the FCC has not previously collected.  The information appears designed to assist the FCC in analyzing the impact its repack decisions will have on individual stations and to identify hurdles to completing the repack in the 39-month time period the FCC anticipates.  Among the requested items are: the year of the last structural analysis of the station’s antenna structure and the standard under which that analysis was conducted; whether the station’s antenna is shared with another station and the antenna’s frequency range if it is capable of operating over multiple channels; and the make, model number and maximum power output capacity of the station’s transmitter.

The information sought is detailed and may take stations time to collect. However, today’s Public Notice announces that stations are expected to file the form within 30 days of the FCC’s release in June of its “protected facilities” list. Accordingly, all full power and Class A television stations that have not already done so should review their facility parameters as reflected in the FCC’s CDBS and Antenna Structure Registration databases to confirm their accuracy and immediately file any needed corrective applications. In doing so, stations should also compile the information they are going to need to complete Schedule 381, as the FCC will be looking for that completed form in July.