Articles Posted in Low Power & Class A Television

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8/15/2011

The FCC has announced that full payment of all applicable Regulatory Fees for Fiscal Year 2011 must be received no later than September 14, 2011.

As of this date, the FCC has not released a Public Notice officially announcing the deadline for payment of FY 2011 annual regulatory fees. However, the FCC’s website indicates that the 2011 annual regulatory fees must be paid no later than 11:59 pm (EST) on September 14, 2011.

As reported in July 2010, beginning in 2011, the Commission has discontinued mailing assessment notices to licensees/permittees. It is the responsibility of each licensee/permittee to determine what fees are due and to pay them in full by the deadline. Information pertaining to the annual regulatory fees is available online at https://www.fcc.gov/fees/regfees.html.

Annual regulatory fees are owed for most FCC authorizations held as of October 1, 2010 by any licensee or permittee which is not otherwise exempt from the payment of such fees. Licensees and permittees may review assessed fees using the FCC’s Media Look-Up website – http://www.fccfees.com. Certain entities are exempt from payment of regulatory fees, including, for example, governmental and non-profit entities. Section 1.1162 of the FCC’s Rules provides guidance on annual regulatory fee exemptions. Broadcast licensees that believe they qualify for an exemption may refer to the FCC’s Media Look-Up website for instructions on submitting a Fee-Exempt Status Claim.

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As we reported previously, in an atypical display of unity among broadcasters and the cable industry, the parties found common ground and filed a Petition with the FCC seeking to extend the deadline for implementing the Common Alerting Protocol (CAP) standard.

Last week, that unified front continued when we filed a further extension request with the FCC on behalf of an even greater assembly of EAS Participants, including the State Broadcasters Associations, representing all fifty States and the District of Columbia, the National Association of Broadcasters, the Broadcast Warning Working Group, the National Cable and Telecommunications Association, the American Cable Association, National Public Radio, the Association of Public Television Stations, and the Public Broadcasting Service. The Petition asks the FCC to grant a further extension of at least 180 days beyond the current September 30, 2011 CAP compliance deadline, with the 180 days to run from the effective date of the Commission’s amendment of its Part 11 rules pursuant to its recently released Third Further Notice of Proposed Rulemaking. (Our discussion of the Third Further Notice can be found here).

In granting the earlier request for an extension of the CAP deadline, the FCC acknowledged that if it failed to extend the 180-day deadline, it could “lead to an unduly rushed, expensive, and likely incomplete process.” As a result, the Commission issued its Order giving EAS Participants until September 30, 2011, to acquire and install equipment able to accept CAP-formatted EAS messages.

In their Petition seeking a further extension of the CAP deadline, the broadcast and cable industries assert that a later deadline is warranted given the regulatory uncertainty that remains regarding CAP compliance. The Petition notes the nearly unanimous view of those who commented on the Third Further Notice that the deadline should be further extended because the FCC has not yet decided whether it will itself conduct EAS equipment certification in addition to the certification being done by FEMA. The Petition also notes that the Third Further Notice may lead to Part 11 rule changes altering the current obligations of EAS Participants in ways that would affect the purchase, installation and operation of new EAS equipment.

The Petition also states that a further extension will allow participants in the scheduled November 9, 2011, National EAS Test to focus their limited engineering resources on ensuring the success of the nationwide test. (We previously reported on the first National EAS Test here and here).

It remains to be seen whether a further extension will be granted, but if the Petition and the majority of comments recently filed in response to the FCC’s Third Further Notice in the EAS proceeding are any indication, EAS Participants — including broadcasters, cable operators and many others — feel strongly that a further extension of the deadline is essential.

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The FCC has released a Report and Order which includes its final determinations as to how much each broadcast licensee will have to pay in Annual Regulatory Fees for fiscal year 2011 (FY2011). The FCC collects Annual Regulatory Fees to offset the cost of its non-application processing functions, such as its rulemaking function.

Each year, the FCC issues a Notice of Proposed Rulemaking setting forth the amounts it proposes to assess each type of license. After taking comments, the FCC releases the final amounts due for that year. It is common for the FCC to adopt its proposed fees without revision, although last year, the FCC significantly increased the fees on Commercial UHF Television Stations and erased promised reductions for radio stations. In contrast, this year, the FCC adopted the fees almost entirely as it had proposed them in the Notice of Proposed Rulemaking put out in May.

Nevertheless, for FY2011, Commercial UHF Television Station fees again increased across the board from the amounts those stations paid in FY2010. Commercial VHF Television Station fees for those stations outside the top 25 markets decreased across the board. In addition, satellite television stations and LPTV, Class A television, TV Translator, TV Booster, FM Translator and FM Booster stations all had their fee amounts reduced from their FY2010 levels. The fees for most categories of radio stations increased modestly. A chart reflecting the fees for the various types of licenses affecting broadcast stations is attached here.

The FCC will release an additional Public Notice announcing the dates of the filing window for the fees and other details; however, it will accept payment beginning immediately. The FCC will not mail the hard copy assessments it has sent to broadcast stations in the past. Therefore, stations must be prepared to file and pay their fees without a specific reminder from the FCC.

As has been the case for the past few years, stations must make an online filing using the FCC’s Fee Filer system to report to the FCC the types and amounts of fees they are obligated to pay. Once they have done that, they can pay their fees electronically or by separately submitting payment to the FCC’s Lockbox.

Finally, the FCC reiterated its commitment to opening a Further Notice of Proposed Rulemaking before the end of 2011 to examine whether it should revise the manner in which it allocates the fee burden among the different industries it regulates, as well as to account for new sectors that have arisen since it first started collecting Annual Regulatory Fees in 1994. Commercial VHF Television Station licensees have previously complained that the FCC assigns too much of the Annual Regulatory Fee burden for media services to VHF stations. Licensees in other services have also objected to the manner in which their fees are calculated. Stations wishing to comment on the rebalancing of the fee obligations will have an opportunity to file Comments once the Further Notice of Proposed Rulemaking is released.

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Every year, television stations whose signals were carried outside of their markets by a cable or satellite television provider during the prior year have the opportunity to obtain copyright royalties for that carriage. However, the claims process contains many rigid requirements. One is that claims must be filed no later than 5:00 pm in Washington, DC on July 31. Since July 31 is a Sunday this year, stations get one additional day, until 5:00 pm on August 1, 2011, to file (4:00 pm for courier-delivered claims).

Stations that aired locally produced programming in 2010 and were carried on cable systems located outside of their DMAs or were delivered to subscribers for home viewing outside of their DMAs by a satellite carrier should review the requirements for eligibility and submission of their claim. If a station’s claim is not filed using an approved method, including the specific addresses for mail and hand deliveries, or if the claim is not filed by the deadline, the station will not be able to seek any copyright royalties for its programming carried out of market in 2010. Stations that successfully file their claims will be asked at a later date to provide additional information to establish the amount of reimbursement to which they may be entitled.

The firm’s Advisory on making copyright royalty claims can be found here, and provides additional information for stations interested in pursuing a claim.

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If you have an LPTV station operating on a channel higher than 51, you have until September 1 of this year to file an application to change to digital operation on channel 51 or below. Failure to file an application by that deadline means the station’s authority to operate will terminate on December 31 of this year, which is the deadline announced late today by the FCC for ending all LPTV operations on channels 52-69.

By establishing this rapid deadline for moving LPTV stations out of channels 52-69, the FCC is seeking to clear the way for the immediate use of that spectrum by wireless operators and public safety systems. Stations that are unable to locate a workable channel below channel 52 and get a modification application on file in the next six weeks will have to shutter their operations by the end of this year.

In the order released today, the FCC also established a hard date of September 1, 2015 for all analog LPTV broadcasting to cease, regardless of channel. The FCC stated that setting the date some four years in advance will allow low power operators ample time to plan for the transition and prepare for the impact of the National Broadband Plan on spectrum availability.

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

  • FCC Fines FM Broadcaster an Extra $5,000 For Inaction
  • Inaccurate Tower Ownership Information Ends in $3,000 Fine

Failure to Heed an FCC Warning Regarding Public Inspection File Violations Results in $15,000 Fine
Following a routine inspection in April 2010, the Enforcement Bureau’s Pennsylvania Field Office issued a Letter of Inquiry (“LOI”) regarding the contents of a Pennsylvania FM station’s public inspection file. According to a recently released Notice of Apparent Liability (“NAL”), all of the station’s issues/programs lists for the current license term, a total of 15 quarters, were unaccounted for in the station’s public inspection file at the time of the inspection. Section 73.3526(e)(12) of the FCC’s Rules requires broadcasters to place in their public inspection file each quarter a list of programs that have provided the station’s most significant treatment of community issues. The base forfeiture for violations of Section 73.3526 is $10,000.

In its response to the LOI, the FM broadcaster admitted that the quarterly issues/programs lists were unavailable on the day of the inspection. The FM broadcaster indicated that it was evident “a person or persons had gone through the file and that some of the items had been removed” and was “committed” to bringing the station’s public inspection file into compliance.

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During the last license renewal cycle, the FCC handed out an unprecedented number of fines to broadcasters who failed to file their license renewal applications on time. In some cases, a station only learned of its failure to file because the FCC sent it a letter notifying it that the FCC had deleted the station’s call sign from the official records and that the station’s operating authority had been terminated. For a broadcaster, that can ruin your whole day.

Such letters usually lead to an immediate call to the station’s counsel to try and fix the problem before the station’s business, goodwill, and call sign are lost permanently. The associated fines and legal costs to try to resuscitate the station’s license provide further incentive to avoid placing yourself in this situation. Because of this, it is no wonder that some broadcasters are anxious to get their license renewal applications on file well in advance of their filing deadline.

There is, however, such as thing as being too early. The FCC has already returned at least four license renewal applications because they were filed too early. Some were radio broadcasters whose stations are licensed to communities in DC, Maryland, Virginia or West Virginia. They are required to file their applications by June 1st, and are the first to use the new version of the renewal form, which the FCC announced it would begin accepting on May 2. At least one of these stations has already refiled its application, this time waiting for the May 2nd official opening of renewal season.

These stations are not alone, however, with numerous other broadcasters also having filed prematurely. Among these early filers are low power television stations whose renewal applications are not due for a year or more from now. Because many FCC compliance obligations are connected to a station’s license renewal cycle, a station that is off on its renewal filing date by such a margin that its application is filed in the wrong year likely has numerous other FCC issues that need to be examined and addressed.

Compounding the danger is the FCC database’s admonition that it does not generate an automatic dismissal letter notifying the applicant that its renewal application has been dismissed. As a result, these early filers may believe they have discharged their license renewal filing obligations only to later find out that their authority to operate has been terminated.

The window within which a station can file a compliant license renewal application is actually quite small. For most stations in the full power services, as well as LPFM stations, the FCC’s rules require that four pre-filing announcements be aired on specific dates and in specific time periods alerting the public that the station will be filing a license renewal application. Once the application is filed, six more announcements must air noting that the application has been filed, again on a prescribed time schedule. Because the last of the pre-filing announcements must air on the 16th (with the license renewal application due on the 1st of the following month), stations that file before that date will be airing an inaccurate public notice. In addition, the EEO portion of the license renewal application, which is submitted separately using FCC Form 396, requires that all but the smallest stations attach their two most recent annual EEO Public Inspection File reports to the filing. However, the FCC’s EEO rule requires that each annual report cover a time period ending no earlier than 10 days before the anniversary of that station’s license renewal filing deadline. A station can’t comply with that requirement if it files its renewal materials before that 10 day period commences.

Therefore, while May 2nd, 2011 has now passed and renewal season has officially begun, stations filing more than a week or two before their license renewal application deadline are likely creating a potential problem for themselves. This goes double for the 396 EEO form. So far in 2011, more than 70 of these forms have been filed at the FCC by stations whose licenses are nowhere near ready for a license renewal review. To avoid this, stations need to familiarize themselves with the license renewal filing and notice dates applicable to them, and not simply mimic what stations in other states or services are doing.

To give that effort a little boost, you can look at our latest post regarding license renewals, which addresses the upcoming license renewal compliance deadlines (beginning June 1) for radio stations in North Carolina and South Carolina. If you are not a radio station licensee in North or South Carolina, don’t worry, your time is coming. When it does, make sure you are ready early; just not too early.

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Last Fall, the FCC adopted final rules allowing Part 15 unlicensed Television Band Devices (TVBDs) to operate in “white spaces”, the slivers of unused spectrum in the television band. To find available slivers of spectrum, the TVBDs will consult a database that is intended to contain information about every use being made of TV spectrum throughout the United States. However, certain users of television spectrum have only until April 5, 2011, to ask the FCC to grant a waiver in order to be included in the interference protection database or risk debilitating interference.

Any facility, including a cable headend, satellite receive facility, TV translator, Class A television station, low power television station or broadcast auxiliary station, that picks up an over-the-air broadcast signal at a point located more than 80 kilometers outside the originating station’s protected contour must file a waiver request with the FCC by April 5, 2011 seeking to have that use included in the white spaces database and protected from interference.

At a later date, the FCC will allow users to register without a waiver those receive sites that are located within the 80 kilometer zone (but outside the station’s protected contour) for interference protection. They cannot do so now because the database is still being developed. In the meantime, waiver requests for locations located outside of the 80 kilometer zone must be filed now and should include the coordinates of the receive site, the call sign of the originating station received over-the-air, and an indication of how potential white space devices would disrupt existing service. According to the FCC, it will accept public comment on waiver requests prior to making a decision on whether or not to grant them.

As a result, any cable headend that has built a tower with a directional receive antenna to pick up particularly distant television station signals, or any broadcaster or TV translator that uses over-the-air signals or a UHF microwave backbone to connect a series of translator facilities, will be prevented from registering such sites outside the 80 kilometer zone unless they seek a waiver by the April 5 deadline. Unintended interference to a cable system’s ability to receive a television station’s signal could result in the television station being dropped from the cable system. Interference to a single link in a long microwave backbone could interrupt signal delivery to all sites further down the line.

While the 80 kilometer “no waiver” zone may seem large, one multiple system cable operator has already filed a waiver request with the FCC indicating that it has headends receiving over-the-air television signals outside that zone in eleven different locations spread across multiple states, including Alabama, Arizona, Illinois, Iowa, Michigan and Minnesota. Thus, if a station is being carried by a far off cable or satellite system, it would be wise for cable and satellite operators as well as TV licensees to double check how and where the TV station’s signal is being received. For TV signals being picked up over-the-air more than 80 kilometers from their protected contour, a waiver request now will be required to ensure continued interference-free signal delivery.

Although receive sites located within the 80 kilometer zone do not face the April 5, 2011 waiver deadline, they will still be affected by the implementation of the white spaces database. Because the data that will be used to populate the database will be taken from the FCC’s existing records, it is important that parties review the data in the FCC’s databases to make sure it is accurate to avoid potential interference from future white space operations.

In January, the FCC’s Office of Engineering and Technology (OET) conditionally designated nine companies as white-space device database administrators: Comsearch, Frequency Finder Inc., Google Inc., KB Enterprises LLC/LS Telcom, Key Bridge Global LLC, Neustar Inc., Spectrum Bridge Inc., Telcordia Technologies, and WSdb LLC. The FCC held a training session for these entities earlier this month. Thus, the rollout of these databases will soon be at hand. OET recently stated that it intends to “exercise strong oversight of the TV bands databases and administrators.” That said, parties should still exercise their own diligence in reviewing the FCC’s databases, registering receive sites, and applying for any needed waivers if they want to avoid interference problems down the road.

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Pity the post office. Even its federal brethren have abandoned it. Today the FCC announced that, with the beginning of the broadcast license renewal cycle fast approaching, it will not be sending its traditional postcard reminders to broadcast licensees. It did say, however, that it would email reminders to broadcasters for which it has email addresses in an effort to minimize the number of enforcement actions it will need to take against those failing to file on time. The base fine for a late-filed renewal is $3,000, but because most stations that miss the filing deadline have their license expire before they realize their mistake, an additional $4,000 fine for unauthorized operation (for a total of $7,000 per station) is nearly automatic.

While those of us following the FCC’s enforcement actions have noticed a fairly dramatic upward trend in the size of FCC fines (noted in an earlier post), the Media Bureau is to be commended for taking steps to assist broadcasters in meeting their filing obligations rather than just fining those that don’t.

To accomplish this, the FCC today released a Public Notice announcing the availability of its new license renewal form, discussing the changes found in it, and providing a link to the state-by-state schedule of license renewal deadlines. The idea is to make the information readily available to broadcasters, though not by way of their mailboxes. Make no mistake, however, as the Public Notice reminds us, that broadcasters are responsible for meeting their own filing deadlines, and cannot defend a failure to timely file by claiming that the FCC didn’t remind them.

More importantly, the Public Notice is not just a procedural announcement. The FCC took the opportunity to address a critical question regarding its new requirement that license renewal applicants certify that their “advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.” This new certification was adopted as a way of preventing advertisers and ad agencies from engaging in “no urban/no Spanish” ad placement practices. In creating the certification requirement, the FCC once again used its authority over broadcasters to force a change in the conduct of those for which the FCC lacks jurisdiction (in this case, advertisers).

In an early February post, our own Dick Zaragoza raised a number of issues that broadcast license renewal applicants need to consider before making this new certification. An additional source of concern is that the FCC had not made clear how far back the certification must reach. The FCC adopted the requirement in 2008, but didn’t provide a specific date by which nondiscrimination clauses had to be incorporated into broadcasters’ advertising contracts. Many communications lawyers told their clients that the requirement had gone into effect in mid-2008, while others, including myself, noted that it could not go into effect until the FCC had taken some additional procedural steps to effectuate it, but when those steps would be completed was impossible to predict.

Thankfully, today’s Public Notice answers that three year old question, stating that the certifications must cover a period starting today, March 14, 2011, to the date a station files its license renewal application. Stations that successfully implemented this change anytime between 2008 and now will be able to make the necessary certification, and stations that were frozen by uncertainty need to implement it immediately or face the consequences at renewal time. While the license renewal process can be a stressful one, particularly for those who barely remember filing their last renewal application eight years ago, the Media Bureau today helped broadcasters by eliminating at least some of the uncertainty that can make it so stressful.

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On March 3, 2011, the FCC released a Notice of Proposed Rulemaking (“NPRM”) setting forth proposed rules to implement the video description requirements contained in the Twenty-First Century Communications and Video Accessibility Act of 2010 (“CVAA”), which became law in October 2010. The CVAA mandates that the FCC take a number of steps to ensure that new communications technologies are accessible to individuals with vision or hearing impairment, including reinstating the video description rules for television broadcasters that had been thrown out by the United States Court of Appeals for the District of Columbia Circuit in 2002. The CVAA directs that the reinstated video description requirements apply to programming that is “transmitted for display in digital format” and authorizes the FCC to extend the video description requirements to stations and situations that were not covered by the prior rules. Accordingly, the FCC is using this NPRM to take a fresh look at the rules.

The Fifty Hour Minimum and Pass-Through Obligations

Video description, which is confusingly sometimes referred to as audio description, assists those who are blind or have impaired vision to view video programming by providing, during a pause in a program’s dialogue, a verbal description of the key visual elements being shown.

As was the case under the FCC’s former rules, all network-affiliated television stations (including non-commercial stations) must pass through video descriptions when the network provides them and the station has the technical capability to air them. For stations that have multiple broadcast streams, the FCC proposes to require the pass-through of video descriptions on each stream. The pass-through obligation also applies to multichannel video programming distributors (“MVPDs”) that have the technical capability to pass through video-described programming on the channel containing the video-described programming. As noted below, the FCC is seeking comments on how it should determine whether a particular station or MVPD has the technical capability to pass through descriptions.

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