Articles Posted in Low Power & Class A Television

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Full power TV, Class A TV, LPTV, and TV Translator stations licensed to communities in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont must file their license renewal applications by December 1, 2022.

December 1, 2022 is the license renewal application filing deadline for commercial and noncommercial TV broadcast stations licensed to communities in the following states:

Full Power TV, Class A, LPTV, and TV Translator Stations:
Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont

Overview

The FCC’s state-by-state license renewal cycle began in June 2019 for radio stations and in June 2020 for television stations. TV stations licensed to communities in the respective states listed above should be moving forward with their license renewal preparation. This includes becoming familiar with the requirements for the filing itself, as well as being aware of changes the FCC has made to the public notice procedures associated with the filing (discussed below).

The license renewal application (FCC Form 2100, Schedule 303-S) primarily consists of a series of certifications in the form of Yes/No questions. The FCC advises that applicants should only respond “Yes” when they are certain that the response is correct. Thus, if an applicant is seeking a waiver of a particular rule or policy, or is uncertain that it has fully complied with the rule or policy in question, it should respond “No” to that certification. The application provides an opportunity for explanations and exhibits, so the FCC indicates that a “No” response to any of the questions “will not cause the immediate dismissal of the application provided that an appropriate exhibit is submitted.” An applicant should review any such exhibits or explanations with counsel prior to filing.

When answering questions in the license renewal application, the relevant reporting period is the licensee’s entire 8-year license term. If the licensee most recently received a short-term license renewal, the application reporting period would cover only that abbreviated license term. Similarly, if the license was assigned or transferred via FCC Form 314 or 315 during the license term, the relevant reporting period is just the time since consummation of that last assignment or transfer.

Schedule 303-S: Application for Renewal of TV Broadcast Station Licenses

Parties to the Application

Some of the certifications an applicant is asked to make in Schedule 303-S relate solely to the station, and some—such as character certifications—relate to any “party to the application.” A party to the application is any individual or entity that has an attributable interest in a station. This includes all parties whose ownership interest, positional interest (i.e., an officer or director), or other relation to the applicant confers on that party a sufficient degree of influence or control over the licensee to merit FCC attention.

For a corporation, this typically includes all officers, directors, and shareholders with a 5% or greater voting interest; for an LLC, its officers and members; and for a partnership, all partners. However, each form of entity comes with its own caveats, limitations, and unique rules for determining attributable interest holders. For example, limited partners are normally attributable interest holders unless they have been “insulated” from partnership decisions pursuant to very specific FCC requirements. Filers should reach out to counsel prior to filing if there are any questions about who the FCC would consider a party in interest to the license renewal application.

Character Issues, Adverse Findings and FCC Violations

Pursuant to the FCC’s statutory obligation to consider any serious rule violations or patterns of abuse, each licensee must certify that neither it nor any party to the application has had “any interest in or connection with an application that was or is the subject of unresolved character issues.” Where the applicant is unable to make this certification, it must include an exhibit identifying the party involved, the call letters and location of the station (or file number of the FCC application or docket), and describe the party’s connection to the matter, including all relevant dates. The applicant must also explain why the unresolved character issue “is not an impediment” to grant of the license renewal application.

Applicants must also certify whether the licensee or any party to the application has been the subject of an adverse finding in any civil or criminal proceeding involving a felony, a mass-media related antitrust or unfair competition charge, a false statement to another governmental entity, or discrimination. The applicant must report adverse findings from the past ten years and include an exhibit explaining the matter in detail and why it should not be an impediment to a grant of the license renewal application. Note, however, that a station does not need to report an adverse finding that was disclosed to the FCC in the context of an earlier station application where it was subsequently found by the FCC to be not disqualifying.

The application form also asks the applicant to certify that “there have been no violations by the licensee of the Communications Act of 1934, as amended, or the rules or regulations of the Commission during the preceding license term.” The instructions to the form make clear that this question is only asking the applicant to certify that there have been no formal findings of a violation by the FCC or a court, such as a Notice of Apparent Liability, Notice of Violation, or similar finding of a rule violation. Applicants should not use this section to self-disclose any violations not previously identified by the FCC.

Foreign Ownership and Control

The applicant must also certify that the licensee has complied with Section 310 of the Communications Act regarding foreign influence over the station. Section 310 generally prohibits the FCC from issuing a license to an alien, a representative of an alien, a foreign government or the representative thereof, or a corporation organized under the laws of a foreign government. It also prohibits a license being issued to an entity of which more than 20% of the capital stock is owned or voted by aliens, their representatives, a foreign government or its representative, or an entity organized under the laws of a foreign country, or, absent a special ruling from the FCC, to an entity whose parent company  has more than 25% of its capital stock owned or voted by aliens, their representatives, a foreign government or its representative, or an entity organized under the laws of a foreign country.

Station Operations

The license renewal application also requires stations to certify that they are currently operational, as the FCC will not renew the license of a station that is not broadcasting.

In a similar vein, Section 73.1740 of the FCC’s Rules sets forth the minimum operating hours for commercial broadcast stations. In the license renewal application, stations must certify that they were not silent or operated less than the required minimum number of hours for a period of more than 30 days during the license term. If they cannot, they must include an exhibit disclosing the relevant details and explaining why it should not adversely affect the station’s license renewal.

Stations must also certify as to several statements regarding Radiofrequency Electromagnetic (RF) exposure of the public and workers at the transmitter site. Stations that were previously renewed and which have had no changes at their transmitter site since their last renewal application will generally be able to certify compliance with this statement. Stations that have had a material change in the RF environment at their transmitter site must assess the impact of that change before certifying RF compliance and may need to submit an exhibit demonstrating the station’s compliance with RF requirements.

Related Filings and Materials

Other Certifications

Successfully navigating the license renewal application also requires stations to certify that the rest of their regulatory house is in order. For example, applicants must certify that they have timely made other regulatory filings, such as the Biennial Ownership Report on FCC Form 323 or 323-E, and confirm that their advertising agreements do not discriminate on the basis of race or gender and contain non-discrimination clauses. Applicants must also certify that they have placed all items required to be in the station’s Public Inspection File in the File, and that they have done so on a timely basis. Public File violations have traditionally been a significant cause of fines at license renewal time. As the Public Inspection File is now online, stations should be mindful that third parties are able to easily review and confirm the timeliness of Public File documents. As with all other certifications in the application form, stations must accurately respond and be prepared to provide documentation supporting their certifications if later requested by the FCC.

EEO

Depending on staff size, one of the items stations must certify is that they have timely placed in their Public Inspection File, as well as on their website, the annual Equal Employment Opportunity (“EEO”) Public File report.

Generally, a station that is part of a Station Employment Unit that employs fewer than five full-time employees is exempt from these requirements. However, at license renewal time, all stations, regardless of staff size, must file FCC Form 2100, Schedule 396, the Broadcast EEO Program Report. Stations in a Station Employment Unit with fewer than five full-time employees will only need to complete part of the form before filing it. As a practical matter, because of the mechanics of the FCC’s filing system, an applicant will generally be unable to file its license renewal application until it can provide in that form the file number generated by the FCC when the station’s completed Schedule 396 is filed.

Certifications for Full Power TV and Class A TV Stations Only

While there is significant overlap between the certifications included in both the radio and TV license renewal applications, an important portion of the form specific to full power TV and Class A TV stations concerns certifications regarding the station’s children’s television programming obligations.

The Children’s Television Act of 1990 requires commercial full power TV and Class A TV stations to: (1) limit the amount of commercial matter aired during programming designed for children ages 12 and under, and (2) air programming responsive to the educational and informational needs of children ages 16 and under. While stations have been required to submit Children’s Television Programming Reports and commercial limits certifications demonstrating their compliance with these requirements on a quarterly or annual basis,[1] the license renewal application requires applicants to further certify that these obligations have been satisfied and documented as required over the entire license term and to explain any instances of noncompliance. Stations can find additional information on the children’s television programming and reporting obligations in our most recent Children’s Television Programming Advisory.

Although noncommercial TV stations are not subject to commercial limitations or required to file Children’s Television Programming Reports, such stations are required to air programming responsive to children’s educational and informational needs. In preparation for license renewal, such stations should therefore ensure they have documentation demonstrating compliance with this obligation in the event their license renewal is challenged.

For Class A television stations, in addition to certifications related to children’s television programming, the application requires certification of compliance with the Class A eligibility and service requirements under Section 73.6001 of the FCC’s Rules. Specifically, such stations must broadcast a minimum of 18 hours a day and average at least three hours per week of locally produced programming each quarter to maintain their Class A status. Applicants must certify that they have and will continue to meet these requirements.

Post-Filing License Renewal Announcements

In prior license renewal cycles, stations were required to give public notice of a license renewal application both before and after the filing of that application. For the current cycle, the FCC eliminated the pre-filing public notices and modified the procedures for post-filing notices. These changes modify the timing and number of on-air announcements required, replace newspaper public notice requirements with an online notice, and revise the text of the announcements themselves.

As a result, full power and Class A TV stations, as well as LPTV stations capable of local origination, must broadcast a total of six post-filing license renewal announcements over four consecutive weeks, with at least one airing each week and no more than two airing in any week (each of which must air on different days). The first such announcement must air within five business days after the FCC has issued a Public Notice announcing its acceptance for filing of the application.

On-air post-filing announcements must be broadcast on a weekday (Monday through Friday) between 7:00 am and 11:00 pm local time based on the applicant station’s community of license. The text of the announcement is as follows:

On [date], [applicant name], licensee of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license.  Members of the public wishing to view this application or obtain information about how to file comments and petitions on the application can visit publicfiles.fcc.gov, and search in [station call sign’s] public file.

For those types of stations that do not have Public Inspection Files, the on-air post-filing announcement should instead be:

On [date], [applicant name], licensee of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license.  Members of the public wishing to view this application or obtain information about how to file comments and petitions can visit www.fcc.gov/stationsearch, and search in the list of [station call sign’s] filed applications.

For television broadcast stations, when these on-air announcements are presented aurally, the public notice text must also be presented visually onscreen.

Special rules apply to noncommercial educational stations that do not normally operate during any month when their announcements would otherwise be due to air, as well as to other silent stations. These stations should contact counsel regarding how to provide the required public notice.

Certification of Compliance

Within seven days of the broadcast of the last required announcement, full power TV station and Class A TV station license renewal applicants should complete the Statement of Compliance linked below and place it in the station’s Public Inspection File.  LPTV license renewal applicants should complete the attached Statement of Compliance and place it in their station records file.

Online Public Notice Required for TV Translator and Certain LPTV Stations

TV translator and LPTV stations not capable of local origination are not required to broadcast post-filing announcements, and have typically been required to publish public notices in a local newspaper instead. The FCC has eliminated the newspaper publication requirement in favor of online notices, requiring such stations to publish written notice on a station-affiliated website upon filing a license renewal application.

A prominently displayed link or tab that reads “FCC Applications” must be posted on the station website homepage, and link to a separate page containing the following notice:

On [date], [applicant name], [permittee / licensee] of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license. Members of the public wishing to view this application or obtain information about how to file comments and petitions on the application can visit [insert hyperlink to application location in the Media Bureau’s Licensing and Management System].

This separate page must also include the date the page was last revised. The notice and corresponding link to the license renewal application must be posted within five business days after the FCC has issued a Public Notice announcing its acceptance for filing of the application and remain on the station’s website for 30 consecutive days. At the end of the 30-day period, the notice can be removed, and if no other applications requiring online notice are pending, the webpage should be updated to include the following text instead:

There are currently no applications pending for which online public notice is required.

The rules contain specific requirements as to where station applicants that do not have websites should post their announcement. These stations should consult with counsel on the proper online notice procedures.

After publishing the notice, the licensee should complete and execute a Statement of Compliance regarding that publication and place the Statement of Compliance in its Public Inspection File. While TV translator and LPTV station licensees are not required to keep a Public Inspection File, they are required to maintain and make available to FCC representatives a station records file that contains their current authorization and copies of all FCC filings and correspondence with the Commission. For them, the completed Statement of Compliance should be included in their station records file.

The full article, along with examples of compliance statements, can be found at License Application Renewal Reminder.

[1] Note that in 2019, the FCC changed the obligation to file the Children’s Television Programming Report and place the commercial limits certification in the Public Inspection File from a quarterly requirement to an annual obligation.

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by October 10, 2022, reflecting information for the months of July, August, and September 2022.

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 their 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.

The FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have complete Quarterly Lists in their Public Inspection File or which have failed to timely upload such lists when due. 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, 2022, covering the period from July 1, 2022 through September 30, 2022.

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 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 quarter. 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 indicated that licensees may choose to concentrate on fewer than five issues if they cover them in considerable depth. Conversely, the FCC has noted that broadcasters may seek to address more than ten issues in a given quarter, due perhaps to program length, format, etc.
  • The Quarterly List 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 show that their programming commitment covers all three months within each quarter.

These are just some suggestions that can assist stations in meeting their obligations under the FCC’s rules. The requirement to list programs providing the most significant treatment of issues may persuade a station to review whether its programming truly and adequately educates the public about community concerns.

Below is a sample format for a “Quarterly Issues/Programs List” to assist stations in creating their own Quarterly List. Please do not hesitate to contact the attorneys in the Communications Practice for specific advice on how to ensure your compliance efforts in this area are adequate.

Class A Television Stations Only

Class A television 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.

Sample Quarterly Issues/Programs List[1]

Below is a list of some of the significant issues responded to by Station [call sign], [community of license], [state of license], along with the most significant programming treatment of those issues for the period [date] to [date].  This list is by no means exhaustive.  The order in which the issues appear does not reflect any priority or significance.

2nd-Quarter-Issues

[1] This sample illustrates the treatment of one issue only.

A PDF version of this article can be found at 2022 Third Quarter Issues/Programs List Advisory for Broadcast Stations

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The FCC released its Report and Order adopting the final amounts that regulatees must pay in annual regulatory fees for FY2022, and opened the filing window for making those payments. The window closes at 11:59 p.m. Eastern Time on September 28, 2022.

If paying the fees wasn’t challenging enough, as part of its continuing rollout of the Commission Registration System (CORES), the FCC has retired the familiar Fee Filer system that regulatees previously used to make these payments. As a result, regulatory fee payments must now be made through CORES, meaning that payors will have to contend with a new fee filing system for this year’s regulatory fees. Given the initial reactions of some that attempted to submit their regulatory fees since the window first opened, regulatees would be wise to start the process early, ensuring they have enough time to deal with the inevitable filing hiccups and still meet the September 28, 2022 deadline.

In the past, a party owing regulatory fees signed into the FCC’s Fee Filer system using the Federal Registration Number (FRN) of the licensee and the password established for that FRN. If a filer lost either the FRN or password they had used in prior years to pay the station’s fees, they could create a new account or reset the password on the spot to get their payments on file in a timely manner. The new filing system, however, uses a more cumbersome two-step process that is not conducive to overcoming last-minute issues involving a lost FRN or password, and has the potential to trip up those unaccustomed to it.

This is the same two-step process that broadcasters first had to navigate to file their Forms 1, 2 and 3 in the EAS Test Reporting System (ETRS) in connection with nationwide tests of the EAS, which we wrote about back in 2017. That two-step process proved difficult for many and prevented some broadcasters from timely making their required filings, so we are describing the individual steps in detail below. However, stations should also be aware that if their engineer or lawyer completed this process in connection with the ETRS filings in 2017, they may now be considered by the FCC’s system as the Administrator of the licensee’s FRN.  If so, they will need to be consulted to get the station’s regulatory fees on file this year.

To begin the process, the individual making the regulatory fee payment on behalf of the licensee must create a personal account in CORES here using their email address and a password of their choosing. This account is personal to the filer, not the licensee, and identifies who is making the filing on the licensee’s behalf.

Next, the filer must sign in to CORES here using that new account and choose the option to “Associate Username to FRN” on the main screen to be able to make filings under the licensee’s FRN. As noted, if someone else has already done this, that person will be the Administrator and must grant the “associate” request before the submission can proceed, delaying the regulatory fee filing until that person responds to a request to approve the association (assuming they respond at all if they have retired, departed, etc.).

Once the filer’s account is associated with the licensee’s FRN, the filer must sign into CORES and select the “Manage Existing FRNs/FRN Financial/Bill and Fees” option on the main screen.

On the next screen, they must select the “Regulatory Fee Manager” option.

Finally, they need to select the licensee’s FRN from a dropdown list of all FRNs associated with the account and click the “Find Assessments” button. The next screen should display the licensee’s name and a total fee due amount.

Licensees should click the link labeled “View” to see the details of what stations and fees are included in the total shown. Errors in importing prior year data are common, especially where a licensee has used multiple FRNs in the past, and early reports indicate that the system-generated fee totals are sometimes missing stations, putting those licensees at risk of interest and penalties if they do not add the missing stations/fees before filing. If fees or stations are missing, the licensee must click the button labeled “Add More Manually” to add the missing stations/fees. If all fees are accounted for, the filer clicks on the “Continue to Pay” button to complete the payment process.

As for the fee amounts themselves, broadcasters can review the Commission’s Media Services Regulatory Fees Factsheet summarizing the fees due in each Media Service category and look up the fees due for individual broadcast call signs here. The FCC notes that “[i]n some instances, it may be necessary to clear your browser before logging onto the website” to look up fees. Fees for authorizations in other services such as transmit earth stations can be found in the Factsheets for those services on the FCC’s regulatory fee page here. Information about seeking deferrals or exemptions from paying the fees (for those who might qualify) can be found here.

The bottom line is that broadcasters should act quickly to begin the FY2022 regulatory fee payment process because it will look very different from how it appeared in the past, and late or missed payments can incur significant interest and penalties.

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Full power TV, Class A TV, LPTV, and TV Translator stations licensed to communities in Alaska, Hawaii, Oregon, Washington, Guam, Mariana Islands, and American Samoa must file their license renewal applications by October 3, 2022.

October 3, 2022 is the license renewal application filing deadline for commercial and noncommercial TV broadcast stations licensed to communities in the following states:

Full Power TV, Class A, LPTV, and TV Translator Stations:
Alaska, Hawaii, Oregon, Washington, Guam, Mariana Islands, and American Samoa

Overview

The FCC’s state-by-state license renewal cycle began in June 2019 for radio stations and in June 2020 for television stations. TV stations licensed to communities in the respective states listed above should be moving forward with their license renewal preparation. This includes becoming familiar with the requirements for the filing itself, as well as being aware of changes the FCC has made to the public notice procedures associated with the filing (discussed below).

The license renewal application (FCC Form 2100, Schedule 303-S) primarily consists of a series of certifications in the form of Yes/No questions. The FCC advises that applicants should only respond “Yes” when they are certain that the response is correct. Thus, if an applicant is seeking a waiver of a particular rule or policy, or is uncertain that it has fully complied with the rule or policy in question, it should respond “No” to that certification. The application provides an opportunity for explanations and exhibits, so the FCC indicates that a “No” response to any of the questions “will not cause the immediate dismissal of the application provided that an appropriate exhibit is submitted.” An applicant should review any such exhibits or explanations with counsel prior to filing.

When answering questions in the license renewal application, the relevant reporting period is the licensee’s entire 8-year license term. If the licensee most recently received a short-term license renewal, the application reporting period would cover only that abbreviated license term. Similarly, if the license was assigned or transferred via FCC Form 314 or 315 during the license term, the relevant reporting period is just the time since consummation of that last assignment or transfer. Continue reading →

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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:

  • Sponsorship ID Violations Lead to Consent Decree With $60,000 Payment
  • Unauthorized Station Transfers and Silent Stations Result in $25,000 Civil Penalty and Compliance Plan
  • Retailer Fined More Than $685,000 for Marketing Unauthorized Wireless Microphones

LPTV Station Fails to Identify Programming as Sponsored, Enters Into $60,000 Consent Decree

The licensee of an Arkansas low power TV station entered into a consent decree with the FCC’s Media Bureau, agreeing to pay a $60,000 penalty for violating sponsorship identification laws.

Broadcast stations are required under federal law (47 U.S.C. § 317(a)(1) and 47 C.F.R. § 73.1212) to identify the sponsor of any program the station has been paid to air.  This requirement applies to advertising, music and any other broadcast content.  The FCC has said that the sponsorship identification laws are “grounded in the principle that listeners and viewers are entitled to know who seeks to persuade them . . . .”  Those who lived through the 1950s and 1960s or who followed the payola/plugola scandals of those decades may recall that the principal issue wasn’t the pay-to-play scheme itself, but rather disc jockeys’ failure to disclose to listeners that something of value had been given in exchange for playing a record.

In this case, in an effort to increase station revenue, an LPTV station urged political candidates to buy advertising packages.  However, the packages being sold by the station included appearances for the candidate on the station’s daily news and public affairs program.  Multiple candidates bought these packages and were subsequently interviewed live on the air.  The station failed to disclose to its viewers that the interviewees were not chosen for their newsworthiness, but instead were interviewed merely because the station had been paid.  While stations may conduct paid interviews, under the sponsorship identification laws, viewers/listeners must be told on-air that the station was paid to air the content, and the station must identify the sponsor.

Along with political candidates, the station accepted payments to interview spokespeople for several commercial entities on the program.  In both cases, that station failed to disclose that the content was sponsored and by whom.  The Media Bureau noted that these undisclosed appearances on a news and public affairs program misled the public into thinking that the interviewees were selected based on their newsworthiness and the station’s editorial judgment.

To resolve the FCC’s investigation, the station entered into a Consent Decree.  Along with paying a $60,000 monetary penalty, the station must implement a compliance plan overseen by a compliance officer that includes written procedures, a compliance manual, and a training program for employees designed to prevent future violations of the sponsorship identification laws.  The license must also file compliance reports with the FCC annually for the next five years, and must notify the FCC within 15 days of discovering any future violation of the sponsorship identification rules.

Family of Deceased Radio Owner Fails to File Necessary Transfer Applications, Agrees to Consent Decree With $25,000 Penalty

The family of a deceased radio owner failed to file the necessary FCC applications to transfer the owner’s stations after his death and also failed to timely request authority for two stations to be silent.  These violations resulted in a Consent Decree with the FCC’s Media Bureau requiring payment of a $25,000 penalty.

On January 13, 2021, the controlling shareholder of a number of radio licensees passed away.  Under Section 310(d) of the Communications Act and Sections 73.3540 and 7.3541 of the FCC’s transfer of control rules, involuntary transfer of control applications should have been filed within 30 days of the controlling shareholder’s passing.  Those applications must apprise the FCC of the facts surrounding the involuntary transfer, and seek Commission consent to the transfer of control of the licenses from, for example, the decedent to the decedent’s estate/executor.  Once the FCC approves the involuntary transfer, there will typically be a second set of applications to transfer the licenses out of the estate to the party inheriting the stations (or sometimes to a party buying the stations directly from the estate).

Here, the stations were also later placed into trusts created two months after the controlling shareholder’s death, but applications seeking FCC approval were not filed until several months after that.  During that time, the former controlling shareholder’s son became the sole trustee of the trusts and assumed de facto control of the licensees and their radio licenses without having obtained the additional FCC approvals to do so.

Unrelated to these transfer issues, the license renewal applications for an AM station and FM translator formerly controlled by the deceased owner disclosed that the stations were off the air without FCC authorization.  In the case of the AM station, special temporary authority (“STA”) to remain silent was not requested until two months after a previous STA to be silent had expired.  With regard to the FM translator, it was silent for seven months before the licensee requested special temporary authority for it to be silent.

Under Section 73.1740(a)(4) (full power stations) and Section 74.1263(c) (FM translators) of the FCC’s Rules, licensees must notify the FCC within 10 days of a station going silent if it does not return to the air within that time.  If that silence is expected to last more than 30 days, the licensee must obtain FCC authorization to be silent for longer than 30 days.  Even where a station has received permission to remain silent for the maximum duration of an STA (six months), the licensee must seek renewal of that authorization every six months thereafter if the station continues to be silent.  Absent a special finding by the FCC preventing it, the license of a station that has been silent for more than 12 consecutive months (even with the required STAs in place) automatically expires under Section 312(g) of the Communications Act.

To conclude the FCC’s investigation of the alleged violations, the licensees agreed to enter into a Consent Decree.  Under the terms of the Decree, the licensees must pay a civil penalty of $25,000 and appoint a compliance officer to implement and administer a compliance plan.  The compliance plan must include a compliance manual and training program to prevent future violations.  The licensees must also submit a compliance report within 90 days, and then submit annual compliance reports for the next three years.

FCC Fines New York Retailer $685,338 for Marketing Noncompliant or Unauthorized  Wireless Microphones

The FCC recently fined a wireless microphone retailer $685,338 after years of warning the company to obtain proper FCC authorizations for the wireless microphones it was selling.  As we discussed in 2020, the FCC previously proposed the fine, asserting that the retailer had advertised 32 models of wireless microphones that did not comply with the Communications Act or the FCC’s equipment marketing rules.

Section 302(b) of the Communications Act prohibits, among other things, the sale or offering for sale of devices that fail to comply with the FCC’s radiofrequency (“RF”) equipment authorization regulations.  Similarly, Section 2.803(b) of the FCC’s Rules prohibits, with limited exceptions, the marketing of an RF device unless the device has first been properly authorized, identified, and labeled in accordance with the FCC’s Rules.  Section 74.851(f) of the FCC’s Rules requires devices emitting radiofrequency energy (such as wireless microphones) to be authorized in accordance with the FCC’s certification procedures to prevent interference before they can be marketed in the United States.  As detailed in Pillsbury’s Primer on FCC Radio Frequency Device Equipment Authorization Rules, equipment authorization procedures differ depending on the type of equipment involved.

The Commission initially cited the company in 2011 (the “2011 Marketing Citation”) for marketing wireless microphones that did not comply with the FCC’s equipment marketing rules.    Despite this citation, the retailer continued to market noncompliant microphones.  In response to a 2016 complaint alleging the company was still marketing noncompliant microphones, the FCC issued a Letter of Inquiry (“LOI”) in 2017.  This prompted a years-long investigation, during which the retailer never provided complete answers regarding the authorization status of its microphones.  In many cases, the FCC ID numbers provided by the retailer did not match the microphone’s advertised descriptions and/or claimed operating frequencies.

The FCC then issued another LOI in 2019 asking for (i) the actual frequencies, (ii) the FCC IDs, and (iii) the authorized frequencies for 82 wireless microphone models that were available for sale on the retailer’s website.  The retailer only provided answers for some of the wireless microphones.  The FCC determined that 32 of the 82 microphone models advertised for sale were not properly authorized and issued a Notice of Apparent Liability for Forfeiture in April 2020 (the “2020 NAL”) proposing a $685,338 fine.

In the 2020 NAL, the FCC found that the retailer apparently willfully and repeatedly violated Section 302 of the Communications Act and Sections 2.803 and 74.851 of the Commission’s Rules when it marketed 32 models of wireless microphones that were noncompliant or unauthorized.  The FCC also proposed a significant upward adjustment of the total “base fine” for such violations due to the retailer’s long record of repeated and continuous marketing violations and the egregious nature of the violations, specifically noting that the retailer marketed two microphones that apparently operated in the aviation band and thus had the potential to cause harmful interference to a critical public safety radio service.

The retailer responded to the 2020 NAL on July 10, 2020.  First, it asserted that the 2020 NAL should be cancelled because it did not prove a violation occurred, and it claimed that screenshots of its website showing prices and a shopping cart do not prove that a specific microphone was available for purchase.  The retailer also argued that to prove a violation, the FCC must show that the retailer had “the intention or ability to sell or lease” the microphones.  The FCC reasoned that a website containing images, descriptions, prices, the word “shop” and a shopping cart, and an “add to cart” function clearly indicated the products were advertised for sale.  The FCC further noted that the actual sale of an unauthorized device is not necessary to prove a marketing violation, and a website with thorough descriptions and pictures of the microphones is a clear indication that the retailer was marketing the microphones to the public.

Second, the retailer claimed the 2011 Marketing Citation provided insufficient and stale notice to support the 2020 NAL.  In many cases, entities that violate a rule and do not hold an FCC authorization or license are entitled to a non-monetary citation before an NAL can be issued, but the FCC pointed out that there is no expiration date for a citation, and the 2017 LOI followed by the 2020 NAL kept the retailer on notice that the FCC was continuing to investigate.  The FCC also rejected the claim that the rules cited in the Marketing Citation did not match the rules cited in the 2020 NAL, noting that the difference in the rule numbers was due to that rule section being reordered in 2013.

Third, the retailer argued that the proposed fine should be lowered because some microphones were authorized or should be grouped together and considered one model.  The FCC rejected this argument, noting the company did not provide any technical documentation to prove the devices were identical and should be grouped together.  The FCC also rejected the argument that some of the microphones had not been sold for more than a year prior to the 2020 NAL, explaining that a model does not have to be sold to be marketed.  The FCC also rejected the argument that some of the models were actually authorized, instead showing that the frequencies authorized under the FCC ID for a particular model did not match the frequencies provided by the retailer in its 2020 NAL response.

Finally, the retailer claimed that the upward adjustments were excessive and unwarranted.  The retailer argued that the fines for the microphones capable of operating in the aviation band should be eliminated or reduced because it was not proven that the models in fact operated in the aviation band.  However, the FCC pointed out that the retailer never actually stated that the two models were not capable of operating in the aviation band and had not provided information to show the devices could not operate in that band.  The retailer also claimed that there was no evidence of a continuing violation to support the upward adjustment.  The FCC reaffirmed its conclusion that the facts supported an upward adjustment, noting that the 2011 Marketing Citation and the 2020 NAL both showed noncompliant wireless microphones being marketed on the retailer’s websites.  In addition, the FCC rejected the retailer’s argument that it did not understand the FCC’s inquiries because it is not involved in the communications business.  The FCC explained that the retailer received multiple citations and communications from the FCC and any continued ignorance of the law did not excuse or mitigate the violations.  The Commission also noted that the retailer’s website continues to show many of the models at issue – a clear indication the company had no intent of complying with the FCC’s Rules.

A PDF version of this article can be found at FCC Enforcement ~ August 2022.

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Full power TV, Class A TV, LPTV, and TV Translator stations licensed to communities in California must file their license renewal applications by August 1, 2022.

August 1, 2022 is the license renewal application filing deadline for commercial and noncommercial TV broadcast stations licensed to communities in the following states:

Full Power TV, Class A, LPTV, and TV Translator Stations:
California

Overview

The FCC’s state-by-state license renewal cycle began in June 2019 for radio stations and in June 2020 for television stations. TV stations licensed to communities in the respective states listed above should be moving forward with their license renewal preparation. This includes becoming familiar with the requirements for the filing itself, as well as being aware of changes the FCC has made to the public notice procedures associated with the filing (discussed below).

The license renewal application (FCC Form 2100, Schedule 303-S) primarily consists of a series of certifications in the form of Yes/No questions. The FCC advises that applicants should only respond “Yes” when they are certain that the response is correct. Thus, if an applicant is seeking a waiver of a particular rule or policy, or is uncertain that it has fully complied with the rule or policy in question, it should respond “No” to that certification. The application provides an opportunity for explanations and exhibits, so the FCC indicates that a “No” response to any of the questions “will not cause the immediate dismissal of the application provided that an appropriate exhibit is submitted.” An applicant should review any such exhibits or explanations with counsel prior to filing.

When answering questions in the license renewal application, the relevant reporting period is the licensee’s entire 8-year license term. If the licensee most recently received a short-term license renewal, the application reporting period would cover only that abbreviated license term. Similarly, if the license was assigned or transferred via FCC Form 314 or 315 during the license term, the relevant reporting period is just the time since consummation of that last assignment or transfer.

Schedule 303-S: Application for Renewal of TV Broadcast Station Licenses

Parties to the Application

Some of the certifications an applicant is asked to make in Schedule 303-S relate solely to the station, and some—such as character certifications—relate to any “party to the application.” A party to the application is any individual or entity that has an attributable interest in a station. This includes all parties whose ownership interest, positional interest (i.e., an officer or director), or other relation to the applicant confers on that party a sufficient degree of influence or control over the licensee to merit FCC attention.

For a corporation, this typically includes all officers, directors, and shareholders with a 5% or greater voting interest; for an LLC, its officers and members; and for a partnership, all partners. However, each form of entity comes with its own caveats, limitations, and unique rules for determining attributable interest holders. For example, limited partners are normally attributable interest holders unless they have been “insulated” from partnership decisions pursuant to very specific FCC requirements. Filers should reach out to counsel prior to filing if there are any questions about who the FCC would consider a party in interest to the license renewal application.

Character Issues, Adverse Findings and FCC Violations

Pursuant to the FCC’s statutory obligation to consider any serious rule violations or patterns of abuse, each licensee must certify that neither it nor any party to the application has had “any interest in or connection with an application that was or is the subject of unresolved character issues.” Where the applicant is unable to make this certification, it must include an exhibit identifying the party involved, the call letters and location of the station (or file number of the FCC application or docket), and describe the party’s connection to the matter, including all relevant dates. The applicant must also explain why the unresolved character issue “is not an impediment” to grant of the license renewal application.

Applicants must also certify whether the licensee or any party to the application has been the subject of an adverse finding in any civil or criminal proceeding involving a felony, a mass-media related antitrust or unfair competition charge, a false statement to another governmental entity, or discrimination. The applicant must report adverse findings from the past ten years and include an exhibit explaining the matter in detail and why it should not be an impediment to a grant of the license renewal application. Note, however, that a station does not need to report an adverse finding that was disclosed to the FCC in the context of an earlier station application where it was subsequently found by the FCC to be not disqualifying.

The application form also asks the applicant to certify that “there have been no violations by the licensee of the Communications Act of 1934, as amended, or the rules or regulations of the Commission during the preceding license term.” The instructions to the form make clear that this question is only asking the applicant to certify that there have been no formal findings of a violation by the FCC or a court, such as a Notice of Apparent Liability, Notice of Violation, or similar finding of a rule violation. Applicants should not use this section to self-disclose any violations not previously identified by the FCC.

Foreign Ownership and Control

The applicant must also certify that the licensee has complied with Section 310 of the Communications Act regarding foreign influence over the station. Section 310 generally prohibits the FCC from issuing a license to an alien, a representative of an alien, a foreign government or the representative thereof, or a corporation organized under the laws of a foreign government. It also prohibits a license being issued to an entity of which more than 20% of the capital stock is owned or voted by aliens, their representatives, a foreign government or its representative, or an entity organized under the laws of a foreign country, or, absent a special ruling from the FCC, to an entity whose parent company  has more than 25% of its capital stock owned or voted by aliens, their representatives, a foreign government or its representative, or an entity organized under the laws of a foreign country.

Station Operations

The license renewal application also requires stations to certify that they are currently operational, as the FCC will not renew the license of a station that is not broadcasting.

In a similar vein, Section 73.1740 of the FCC’s Rules sets forth the minimum operating hours for commercial broadcast stations. In the license renewal application, stations must certify that they were not silent or operated less than the required minimum number of hours for a period of more than 30 days during the license term. If they cannot, they must include an exhibit disclosing the relevant details and explaining why it should not adversely affect the station’s license renewal.

Stations must also certify as to several statements regarding Radiofrequency Electromagnetic (RF) exposure of the public and workers at the transmitter site. Stations that were previously renewed and which have had no changes at their transmitter site since their last renewal application will generally be able to certify compliance with this statement. Stations that have had a material change in the RF environment at their transmitter site must assess the impact of that change before certifying RF compliance and may need to submit an exhibit demonstrating the station’s compliance with RF requirements.

Related Filings and Materials

 Other Certifications

Successfully navigating the license renewal application also requires stations to certify that the rest of their regulatory house is in order. For example, applicants must certify that they have timely made other regulatory filings, such as the Biennial Ownership Report on FCC Form 323 or 323-E, and confirm that their advertising agreements do not discriminate on the basis of race or gender and contain non-discrimination clauses. Applicants must also certify that they have placed all items required to be in the station’s Public Inspection File in the File, and that they have done so on a timely basis. Public File violations have traditionally been a significant cause of fines at license renewal time. As the Public Inspection File is now online, stations should be mindful that third parties are able to easily review and confirm the timeliness of Public File documents. As with all other certifications in the application form, stations must accurately respond and be prepared to provide documentation supporting their certifications if later requested by the FCC.

EEO

Depending on staff size, one of the items stations must certify is that they have timely placed in their Public Inspection File, as well as on their website, the annual Equal Employment Opportunity (“EEO”) Public File report.

Generally, a station that is part of a Station Employment Unit that employs fewer than five full-time employees is exempt from these requirements. However, at license renewal time, all stations, regardless of staff size, must file FCC Form 2100, Schedule 396, the Broadcast EEO Program Report. Stations in a Station Employment Unit with fewer than five full-time employees will only need to complete part of the form before filing it. As a practical matter, because of the mechanics of the FCC’s filing system, an applicant will generally be unable to file its license renewal application until it can provide in that form the file number generated by the FCC when the station’s completed Schedule 396 is filed.

Certifications for Full Power TV and Class A TV Stations Only

While there is significant overlap between the certifications included in both the radio and TV license renewal applications, an important portion of the form specific to full power TV and Class A TV stations concerns certifications regarding the station’s children’s television programming obligations.

The Children’s Television Act of 1990 requires commercial full power TV and Class A TV stations to: (1) limit the amount of commercial matter aired during programming designed for children ages 12 and under, and (2) air programming responsive to the educational and informational needs of children ages 16 and under. While stations have been required to submit Children’s Television Programming Reports and commercial limits certifications demonstrating their compliance with these requirements on a quarterly or annual basis,[1] the license renewal application requires applicants to further certify that these obligations have been satisfied and documented as required over the entire license term and to explain any instances of noncompliance. Stations can find additional information on the children’s television programming and reporting obligations in our most recent Children’s Television Programming Advisory.

Although noncommercial TV stations are not subject to commercial limitations or required to file Children’s Television Programming Reports, such stations are required to air programming responsive to children’s educational and informational needs. In preparation for license renewal, such stations should therefore ensure they have documentation demonstrating compliance with this obligation in the event their license renewal is challenged.

For Class A television stations, in addition to certifications related to children’s television programming, the application requires certification of compliance with the Class A eligibility and service requirements under Section 73.6001 of the FCC’s Rules. Specifically, such stations must broadcast a minimum of 18 hours a day and average at least three hours per week of locally produced programming each quarter to maintain their Class A status. Applicants must certify that they have and will continue to meet these requirements.

Post-Filing License Renewal Announcements

In prior license renewal cycles, stations were required to give public notice of a license renewal application both before and after the filing of that application. For the current cycle, the FCC eliminated the pre-filing public notices and modified the procedures for post-filing notices. These changes modify the timing and number of on-air announcements required, replace newspaper public notice requirements with an online notice, and revise the text of the announcements themselves.

As a result, full power and Class A TV stations, as well as LPTV stations capable of local origination, must broadcast a total of six post-filing license renewal announcements over four consecutive weeks, with at least one airing each week and no more than two airing in any week (each of which must air on different days). The first such announcement must air within five business days after the FCC has issued a Public Notice announcing its acceptance for filing of the application.

On-air post-filing announcements must be broadcast on a weekday (Monday through Friday) between 7:00 am and 11:00 pm local time based on the applicant station’s community of license. The text of the announcement is as follows:

On [date], [applicant name], licensee of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license. Members of the public wishing to view this application or obtain information about how to file comments and petitions on the application can visit publicfiles.fcc.gov, and search in [station call sign’s] public file.

For those types of stations that do not have Public Inspection Files, the on-air post-filing announcement should instead be:

On [date], [applicant name], licensee of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license. Members of the public wishing to view this application or obtain information about how to file comments and petitions can visit www.fcc.gov/stationsearch, and search in the list of [station call sign’s] filed applications.

For television broadcast stations, when these on-air announcements are presented aurally, the public notice text must also be presented visually onscreen.

Special rules apply to noncommercial educational stations that do not normally operate during any month when their announcements would otherwise be due to air, as well as to other silent stations. These stations should contact counsel regarding how to provide the required public notice.

Certification of Compliance

Within seven days of the broadcast of the last required announcement, full power TV station and Class A TV station license renewal applicants should complete the attached Statement of Compliance and place it in the station’s Public Inspection File. LPTV license renewal applicants should complete the attached Statement of Compliance and place it in their station records file.

Online Public Notice Required for TV Translator and Certain LPTV Stations

TV translator and LPTV stations not capable of local origination are not required to broadcast post-filing announcements, and have typically been required to publish public notices in a local newspaper instead. The FCC has eliminated the newspaper publication requirement in favor of online notices, requiring such stations to publish written notice on a station-affiliated website upon filing a license renewal application.

A prominently displayed link or tab that reads “FCC Applications” must be posted on the station website homepage, and link to a separate page containing the following notice:

On [date], [applicant name], [permittee / licensee] of [station call sign], [station frequency], [station community of license], filed an application with the Federal Communications Commission for renewal of its license. Members of the public wishing to view this application or obtain information about how to file comments and petitions on the application can visit [insert hyperlink to application location in the Media Bureau’s Licensing and Management System].

This separate page must also include the date the page was last revised. The notice and corresponding link to the license renewal application must be posted within five business days after the FCC has issued a Public Notice announcing its acceptance for filing of the application and remain on the station’s website for 30 consecutive days. At the end of the 30-day period, the notice can be removed, and if no other applications requiring online notice are pending, the webpage should be updated to include the following text instead:

There are currently no applications pending for which online public notice is required.

The rules contain specific requirements as to where station applicants that do not have websites should post their announcement. These stations should consult with counsel on the proper online notice procedures.

After publishing the notice, the licensee should complete and execute a Statement of Compliance regarding that publication and place the Statement of Compliance in its Public Inspection File. While TV translator and LPTV station licensees are not required to keep a Public Inspection File, they are required to maintain and make available to FCC representatives a station records file that contains their current authorization and copies of all FCC filings and correspondence with the Commission. For them, the completed Statement of Compliance should be included in their station records file.

[1] Note that in 2019, the FCC changed the obligation to file the Children’s Television Programming Report and place the commercial limits certification in the Public Inspection File from a quarterly requirement to an annual obligation.

The full article, along with examples of compliance statements, can be found at License Application Renewal Reminder.

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by July 10, 2022, reflecting information for the months of April, May, and June 2022.

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 their 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.

The FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have complete Quarterly Lists in their Public Inspection File or which have failed to timely upload such lists when due.  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 July 10, 2022, covering the period from April 1, 2022 through June 30, 2022.

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 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 quarter. 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 indicated that licensees may choose to concentrate on fewer than five issues if they cover them in considerable depth.  Conversely, the FCC has noted that broadcasters may seek to address more than ten issues in a given quarter, due perhaps to program length, format, etc.
  • The Quarterly List 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 show that their programming commitment covers all three months within each quarter.

These are just some suggestions that can assist stations in meeting their obligations under the FCC’s rules.  The requirement to list programs providing the most significant treatment of issues may persuade a station to review whether its programming truly and adequately educates the public about community concerns.

Attached is a sample format for a “Quarterly Issues/Programs List” to assist stations in creating their own Quarterly List.  Please do not hesitate to contact the attorneys in the Communications Practice for specific advice on how to ensure your compliance efforts in this area are adequate.

Class A Television Stations Only

Class A television 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.

Sample Quarterly Issues/Programs List[1]

Below is a list of some of the significant issues responded to by Station [call sign], [community of license], [state of license], along with the most significant programming treatment of those issues for the period [date] to [date].  This list is by no means exhaustive.  The order in which the issues appear does not reflect any priority or significance.

2nd-Quarter-Issues

[1] This sample illustrates the treatment of one issue only.

A PDF version of this article can be found at 2022 Second Quarter Issues/Programs List Advisory for Broadcast Stations.

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Full power TV, Class A TV, LPTV, and TV Translator stations licensed to communities in Arizona, Idaho, New Mexico, Nevada, Utah, and Wyoming, must file their license renewal applications by June 1, 2022.

June 1, 2022 is the license renewal application filing deadline for commercial and noncommercial TV broadcast stations licensed to communities in the following states:

Full Power TV, Class A, LPTV, and TV Translator Stations:
Arizona, Idaho, New Mexico, Nevada, Utah, and Wyoming

Overview

The FCC’s state-by-state license renewal cycle began in June 2019 for radio stations and in June 2020 for television stations. TV stations licensed to communities in the respective states listed above should be moving forward with their license renewal preparation. This includes becoming familiar with the requirements for the filing itself, as well as being aware of changes the FCC has made to the public notice procedures associated with the filing (discussed below).

The license renewal application (FCC Form 2100, Schedule 303-S) primarily consists of a series of certifications in the form of Yes/No questions. The FCC advises that applicants should only respond “Yes” when they are certain that the response is correct. Thus, if an applicant is seeking a waiver of a particular rule or policy, or is uncertain that it has fully complied with the rule or policy in question, it should respond “No” to that certification. The application provides an opportunity for explanations and exhibits, so the FCC indicates that a “No” response to any of the questions “will not cause the immediate dismissal of the application provided that an appropriate exhibit is submitted.” An applicant should review any such exhibits or explanations with counsel prior to filing.

When answering questions in the license renewal application, the relevant reporting period is the licensee’s entire 8-year license term. If the licensee most recently received a short-term license renewal, the application reporting period would cover only that abbreviated license term. Similarly, if the license was assigned or transferred via FCC Form 314 or 315 during the license term, the relevant reporting period is just the time since consummation of that last assignment or transfer. Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ Public Inspection Files by April 10, 2022, reflecting information for the months of January, February, and March 2022.

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 their 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.

The FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have complete Quarterly Lists in their Public Inspection File or which have failed to timely upload such lists when due.  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 April 10, 2022, covering the period from January 1, 2022 through March 31, 2022. Continue reading →

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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:

  • LPTV Owner Pays $250,000 for Abusing FCC’s Licensing Processes
  • FCC Proposes $32,000 Fine for Radio EEO Violations
  • Florida Radio Station Receives $20,000 Proposed Fine for Contest Rule Violations

Abuse of FCC Licensing Processes Leads to $250,000 Penalty

The FCC entered into a Consent Decree earlier this month with an LPTV broadcaster (the “Company”) that held 80 LPTV licenses and more than 120 unbuilt LPTV construction permits, resolving an investigation into whether the Company abused the Commission’s licensing processes. The FCC was investigating whether the Company had filed a series of minor modification applications to construct and license temporary facilities with the intent of relocating stations substantial distances from their originally authorized sites to evade FCC restrictions on filing major modification applications.

In response to a Media Bureau inquiry concerning the Company’s construction and licensing practices and the operational status of its stations, the Company claimed that each licensed station was constructed in compliance with the parameters set forth in the underlying construction permit. It conceded, however, that it had installed temporary transmission equipment that was later removed, and that the stations were never built to provide permanent television service. The FCC recognized that in some instances, the temporary equipment was installed because pandemic-related supply chain issues made it difficult for the Company to obtain equipment. However, the FCC found that at least 30 stations were constructed with temporary equipment as a way to effectuate a series of repeated, short moves with the ultimate goal of moving the stations a large distance – sometimes over 100 miles from the location listed in the initial construction permit.

Under Section 74.787(b) of the FCC’s Rules, any change in an LPTV’s antenna location greater than 30 miles, or a move where the proposed protected contour does not overlap some portion of the protected contour of the existing station, is considered a major change requiring the permittee/licensee to file a major modification application. Major modification applications in the LPTV service are currently frozen and may only be filed upon the opening of a filing window. The FCC has held that the filing of any facility application implies that the applicant is “ready, willing, and able” to construct and operate the facility as proposed. When determining whether a permittee has engaged in an abuse of process based on serial minor modification applications, the FCC looks at several factors, including (1) the nature of the broadcast facilities (i.e., temporary construction); (2) the duration of operations; (3) the purpose of the relocations; and (4) any pattern of relocations.

The FCC explained that the Company undertook the series of short moves by: (1) filing an application for minor modification to relocate the station within 30 miles of its licensed site; (2) building temporary facilities upon grant of the minor modification application with no intent to provide permanent service at the new location; (3) filing a license to cover the temporary location and then applying for special temporary authority to go silent once the license was granted; and (4) removing the equipment from the site and filing for a new minor modification to move the station up to 30 miles again. The Company would repeat this process until the station was moved from a rural unserved or underserved area with low population density to a densely populated urban or suburban area.

While the FCC accepted that some stations were built with temporary facilities due to difficulty obtaining equipment, it found that at least 30 stations were constructed with temporary facilities and operated only a short time. The FCC believed the Company lacked intent to use those facilities to provide a permanent television program service to viewers, and that their plan was instead to undertake a pattern of relocating the stations as a way of circumventing the major change rule and the freeze on major modification applications.

In agreeing to the Consent Decree, the Company admitted that its actions violated the FCC’s rules and agreed to pay a $250,000 penalty along with implementing a comprehensive compliance program. It also agreed to surrender authorizations for nearly a hundred LPTV stations. Due to delays resulting from the investigation as well as supply chain delays, the FCC agreed to toll the construction permit expiration dates for certain of the Company’s other stations for four months, but required that the Company commence operation of all licensed and silent facilities within one year of going silent.

Radio Stations Receive Proposed Fine of $32,000 for EEO Violations

The FCC proposed a $32,000 fine against the licensee of a number of Georgia radio stations for failing to timely upload an Annual EEO Public File Report to the stations’ Public Inspection Files, failing to timely upload the Report to the stations’ websites and, based on those failures, failing to analyze its EEO program.

Section 73.2080(c)(6) of the FCC’s Rules requires every non-exempt broadcast station to prepare and place an Annual EEO Public File Report in its Public Inspection File and on its website, if it has one. The Annual EEO Public File Report contains information regarding a station employment unit’s full-time vacancies during the preceding year, the recruitment sources used to fill those vacancies, the referral source for each of the resulting hires, the total number of interviewees grouped by referral source, and a description of the station’s recruitment initiatives not connected to specific vacancies. Separately, Section 73.2080(c)(3) of the FCC’s Rules requires a licensee to analyze its EEO recruitment program on an ongoing basis to ensure it is achieving broad outreach to potential applicants.

In a recent license renewal application, the broadcaster disclosed that it had not uploaded its 2018 Annual EEO Public File Report to the stations’ Public Inspection Files by the applicable deadline. The Enforcement Bureau issued a Letter of Inquiry in July 2020 and the broadcaster responded, acknowledging that the report was uploaded over nine months late and citing an “administrative change” and loss of a former employee as the reason. Finding that such circumstances do not excuse or nullify a rule violation, the FCC concluded that the licensee violated Section 73.2080(c)(6) of the FCC’s Rules in two different ways: (1) by failing to timely upload the report to the Public Inspection Files of the stations, and (2) by failing to timely upload it to the stations’ websites. The Commission found that failure to timely upload the report denied the public of the ability to participate in monitoring and providing input on the stations’ EEO programs, thereby preventing the stations from analyzing their recruitment program and thus also violating Section 73.2080(c)(3) of the FCC’s Rules.

Section 503(b)(2)(A) of the Communications Act allows the FCC to assess a fine of up to $55,052 per day of a continuing violation, up to a maximum of $550,531 for a single act. When determining the amount of a fine, the FCC considers the “nature, circumstances, extent, and gravity of the violation” as well as the violator’s history of any prior offenses and its ability to pay. The FCC’s base fine for a Public Inspection File violation is $10,000. Here, the FCC noted the broadcaster’s large number of stations across the country, the large number of people it employs, how routinely it fills job openings, and its prior history of both EEO and non-EEO rule violations. In light of these factors, the FCC proposed a $26,000 fine for the failure to prepare and upload the report.

Because there is not an established base fine for failing to analyze a station’s EEO program, the FCC looked to prior Notices of Apparently Liability (NAL) issued to the broadcaster in 2008 and 2017 for various EEO rule violations. In both NALs, the FCC proposed a $2,000 fine. Considering the prior history of EEO offenses, the FCC felt an upward adjustment was warranted and issued a $6,000 fine for the failure to analyze the stations’ EEO program. In total, the FCC proposed a $32,000 fine. The broadcaster has 30 days from release of the NAL to pay the fine or file a written statement seeking reduction or cancellation of it.

FCC Fines Florida Radio Station for Contest Rule Violations

The FCC proposed a fine of $20,000 against the licensee of a Florida radio station for apparent violations of the Commission’s contest rules. Specifically, the FCC found that the licensee apparently failed to fully disclose material contest terms, to conduct the contest as advertised, and to maintain the contest’s rules on the station’s website for at least 30 days after the end of the contest.

Section 73.1216 of the FCC’s Rules requires a licensee to “fully and accurately disclose the material terms” of a contest it broadcasts or promotes and to conduct the contest “substantially as announced and advertised.”  Material terms may be disclosed by either airing those terms or making them available in writing on a publicly accessible website. If the latter, the contest rules must stay on the website for at least 30 days after the contest ends. Material terms include, among other things, eligibility restrictions and the means of selecting winners. Contest rules that are ambiguous or open to interpretation are susceptible to an FCC finding that the station failed to disclose the material terms.

The Enforcement Bureau received a complaint from a person alleging they had been incorrectly excluded from a contest and that the radio station had violated its contest rules. The complainant had won a different station-run contest on March 1, 2019 and attempted to enter the contest at issue in the complaint on May 30, 2019. A station employee applied a “90-day lockout” on prior winners and excluded the complainant. The written contest rules, however, specified that only persons who had won a contest in the prior 30 days were to be excluded.

In response to an FCC Letter of Inquiry, the station admitted that, as a result of human error, it did not conduct the contest “in strict compliance with the written rules” when its employee applied the incorrect eligibility exclusion to the complainant. The station also admitted that it took the rules off the website the day the contest ended, rather than leaving the rules up for 30 days as required. However, the station contended that the complaint was not material because the contest rules not only excluded persons who had won a prize in the 30 days prior to the January 7, 2019 start of the contest, but also excluded anyone who won a prize while the contest was ongoing.

The FCC disagreed, finding that the station’s application of its contest rules was not supported by the plain language of its rules or its standard screening protocol. The FCC noted that even if the contest rules could be interpreted as the station claimed they should be, FCC precedent makes clear that ambiguous rules are to be “construed against the interests of the promoter of the contest.” Further, the FCC clarified that regardless of the complainant’s eligibility to participate in the contest, the complaint was not “immaterial” because a person does not need to be a qualified contestant to have standing to bring a contest rules complaint at the FCC regarding the manner in which a contest was conducted.

The FCC’s base fine for each “violation of requirements pertaining to broadcasting of lotteries or contests” is $4,000. In this case, the FCC noted that it may adjust the proposed fine upward for “violations that are egregious, intentional, or repeated, or that cause substantial harm or generate substantial economic gain for the violator.” Considering the totality of the circumstances, the FCC determined an upward adjustment was warranted, explaining that the licensee’s owner had a history of contest rule violations, and that the station also failed to maintain the rules on its website for the required 30 days after the end of the contest. As a result, the FCC proposed a total fine of $20,000. The station has 30 days from release of the NAL to pay the fine or file a written statement seeking reduction or cancellation of it.

A PDF version of this article can be found at FCC Enforcement ~ March 2022.