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After the election, it was clear that we would be seeing a much different FCC in 2017. Such transitions typically take time, as a president’s nomination of new candidates to fill the Chairman’s or commissioners’ seats, along with the delay typically associated with obtaining Senate confirmation, means that a new fully-staffed FCC won’t typically be ready for action until May or June following the January change in administrations. By that time, the actions of the prior FCC have often become final and unappealable, or at least the regulated industries have already begun to adapt their operations to comply with those rules, making subsequent changes more complicated.

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Just 29 days ago, the FCC’s Media Bureau issued an unusual decision denying Petitions for Reconsideration of an order adopted by the commissioners themselves, raising questions as to who’s in charge at the FCC.  The petitions were filed by noncommercial broadcasters in the Commission’s long-running proceeding to update its broadcast ownership reporting requirements.  Today, a much different Media Bureau backtracked on that decision—the FCC’s rules give it 30 days to change its mind—and decided that ruling on petitions seeking reconsideration of a Commission-level order is a matter best left to the commissioners themselves.

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

  • FCC Proposes $10,000 Fine to FM Licensee for Public Inspection File Violations
  • Spoofed Calls Lead to $25,000 Fine
  • Wireless Licensee Agrees to Pay $28,800 Settlement for Operating on Unauthorized Frequencies

FM Licensee Hit with $10,000 Proposed Fine for “Extensive” Public Inspection File Violations

The FCC proposed a $10,000 fine against a South Carolina FM licensee for “willfully and repeatedly” failing to retain all required public inspection file documents.

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It took a while to get to this point, but at the first public meeting of the Pai FCC, the Commission voted today to eliminate the requirement that stations maintain “Letters and Emails from the Public” in their public inspection files. As discussed below, that decision will have differing impacts on TV and radio stations, and even among radio stations.

When the FCC charged ahead to move television public inspection files online in 2012, there didn’t seem to be any upside for broadcasters, who objected loudly. Those objections were primarily based upon the fact that the FCC had managed to find a way to expend even more of a broadcaster’s resources on the rarely-read file, requiring that it now also be uploaded to an online FCC database. Uploading a public file is no small task, as an FCC review of TV public files in Baltimore in 2012 revealed that some contained more than 8,000 pages. In response to those objections, the FCC announced when it adopted the change that it would automatically upload applications, kidvid reports, and other documents it had access to, reducing the number of documents stations would need to upload themselves.

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January 2017

This Broadcast Station Advisory is directed to radio and television stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

February 1, 2017 is the deadline for broadcast stations licensed to communities in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma to place their Annual EEO Public File Report in their public inspection file and post the report on their station website. In addition, certain of these stations, as detailed below, must electronically file their EEO Mid-term Report on FCC Form 397 by February 1, 2017.

Under the FCC’s EEO Rule, all radio and television station employment units (“SEUs”), regardless of staff size, must afford equal opportunity to all qualified persons and practice nondiscrimination in employment.

In addition, those SEUs with five or more full-time employees (“Nonexempt SEUs”) must also comply with the FCC’s three-prong outreach requirements. Specifically, Nonexempt SEUs must (i) broadly and inclusively disseminate information about every full-time job opening, except in exigent circumstances, (ii) send notifications of full-time job vacancies to referral organizations that have requested such notification, and (iii) earn a certain minimum number of EEO credits, based on participation in various non-vacancy-specific outreach initiatives (“Menu Options”) suggested by the FCC, during each of the two-year segments (four segments total) that comprise a station’s eight-year license term. These Menu Option initiatives include, for example, sponsoring job fairs, participating in job fairs, and having an internship program.

Nonexempt SEUs must prepare and place their Annual EEO Public File Report in the public inspection files and on the websites of all stations comprising the SEU (if they have a website) by the anniversary date of the filing deadline for that station’s license renewal application. The Annual EEO Public File Report summarizes the SEU’s EEO activities during the previous 12 months, and the licensee must maintain adequate records to document those activities. Nonexempt SEUs must submit to the FCC the two most recent Annual EEO Public File Reports with their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with more than ten full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the midpoint of their eight-year license term along with FCC Form 397 – the Broadcast Mid-Term EEO Report.

Exempt SEUs – those with fewer than five full-time employees – do not have to prepare or file Annual or Mid-Term EEO Reports.

For a detailed description of the EEO rule and practical assistance in preparing a compliance plan, broadcasters should consult The FCC’s Equal Employment Opportunity Rules and Policies – A Guide for Broadcasters published by Pillsbury’s Communications Practice Group. This publication is available at: https://www.pillsburylaw.com/publications/broadcasters-guide-to-fcc-equal-employment-opportunity-rules-policies.

Deadline for the Annual EEO Public File Report for Nonexempt Radio and Television SEUs

Consistent with the above, February 1, 2017 is the date by which Nonexempt SEUs of radio and television stations licensed to communities in the states identified above, including Class A television stations, must (i) place their Annual EEO Public File Report in the public inspection files of all stations comprising the SEU, and (ii) post the Report on the websites, if any, of those stations. LPTV stations are also subject to the broadcast EEO rules, even though LPTV stations are not required to maintain a public inspection file. Instead, these stations must maintain a “station records” file containing the station’s authorization and other official documents and must make it available to an FCC inspector upon request. Therefore, if an LPTV station has five or more full-time employees, or is part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in the station records file.

These Reports will cover the period from February 1, 2016 through January 31, 2017. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before January 31, so long as they begin the next annual reporting period on the day after the cut-off day used in the immediately preceding Report. For example, if the Nonexempt SEU uses the period February 1, 2016 through January 21, 2017 for this year’s report (cutting it off up to ten days prior to January 31, 2017), then next year, the Nonexempt SEU must use a period beginning January 22, 2017 for its report. Continue reading →

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Last May, Jessica Nyman and I wrote about the potential impact of an FCC Notice of Proposed Rulemaking proposing to eliminate the requirement that stations keep “Letters and Emails from the Public” in their Public Inspection File.  In moving public inspection files online, the FCC recognized that posting such letters and emails online creates privacy concerns, and required that stations continue to maintain such correspondence at the main studio in the local public file.  The result was that many stations had to maintain and provide public access to a local public file solely to provide this one category of document.

Earlier today, the FCC released the tentative agenda for its January 31 meeting, and the sole item on it is:

Streamlining the Public File Rules: The Commission will consider a Report and Order that would eliminate the requirement that commercial broadcast stations retain copies of letters and emails from the public in their public inspection file and the requirement that cable operators retain the location of the cable system’s principal headend in their public inspection file.

While we are still waiting to hear who will be chairing that post-inaugural meeting, for broadcasters, it’s a nice way to start the year.  For more background on the proceeding and information on the likely benefits for stations, please check out our earlier post on the subject.

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If trying to maintain the required paperwork for political advertising aired by your station gives you a headache, prepare for a migraine of biblical proportions.

With the departure of Commissioner Rosenworcel leaving the FCC in a 2-2 partisan split, there are really only two types of broadcast orders coming out of the FCC these days—those having the unanimous support of all four remaining commissioners, and those that can be done by the Media Bureau on delegated authority with or without the support of the two Republican commissioners.  That was evidenced twice last week.  The first was the Media Bureau’s rejection of various petitions seeking reconsideration of increased ownership reporting requirements for noncommercial stations.  That action generated an immediate response from Republican commissioners Pai and O’Rielly, who released a joint statement chiding the Media Bureau for taking the action right before the FCC changes control, and encouraging the rejected petitioners to appeal the decision to the full Commission for reversal:

The Commission’s ruling no longer enjoys the support of the majority of Commissioners—nor is there a majority that supports today’s Media Bureau decision—so it was wrong for the Bureau to bypass Commissioners and reaffirm these reporting requirements unilaterally. . . . The good news is that today’s decision need not be the final word. We encourage public broadcasters to file an application for review so that the newly constituted Commission will have an opportunity to revisit this matter. It is pointless to require board members of NCE stations to report sensitive personal information (like the last four digits of individual Social Security numbers) to the Commission and will only serve to discourage these volunteers from serving their communities.

We might now be headed down a similar path with the political file.  This past Friday evening, the Media Bureau released an Order expanding the recordkeeping associated with airing political advertising.  Perhaps simply an error, but contributing to the appearance that the Order was rushed out to beat the change in administrations, is the fact that the formatting and text of the Friday night version deteriorates badly in the last third of the Order, with no text at all in the last 49 footnotes, the paragraph numbering changing, and the text of some paragraphs being in bold type and/or all capitals.  The cleaned up version can now be found here.  The Order responds to complaints filed by activist groups against eleven different stations owned by a Who’s Who of television broadcasters, with the FCC admonishing nine of the eleven stations for political ad recordkeeping violations.  A separate order admonishing a twelfth station in response to a more recent complaint was also released Friday night.

But why would an order admonishing stations for alleged recordkeeping violations (which originated from complaints sitting at the FCC since mid-2014) need to be rushed out?  Perhaps because it also “clarifies” that the admittedly vague rules on political ad recordkeeping require much more expansive political file records than most anyone has previously suggested (at least anyone who wasn’t trying to use the records for other than their intended purpose; for example, as a proxy for overall political ad expenditures).  The clarifications apply not just to broadcasters, but to cable, DBS, and satellite radio providers as well.

Read without an understanding of the current political ad landscape, the clarifications probably seem dryly mundane.  They include the following: 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:

Headlines:

  • Broadcaster Loses Appeal of $20,000 FCC Fine
  • FCC Issues Citation for Violations of Radio Frequency Equipment Authorization and Labeling Rules
  • FCC Proposes $392,930 Fine to Telecom Provider for Excessive USF Fees, Unauthorized Transfers, and Delinquent Regulatory Fees

Ninth Circuit Upholds $20,000 Fine Against FM Broadcaster for Unauthorized Operation

The U.S. Court of Appeals for the Ninth Circuit upheld a $20,000 FCC fine against a New Mexico FM broadcaster for operating outside the parameters of the broadcaster’s construction permit.

Section 301 of the Communications Act bans the unlicensed transmission of “energy or communications or signals by radio.” Section 503 of the Act authorizes monetary fines where the FCC finds “willful[] or repeated[]” failure to comply “with the terms and conditions of any license, permit, certificate, or other instrument or authorization” issued by the FCC.

In November 2009, the FCC issued a $20,000 fine to the broadcaster for operating at variance from the broadcaster’s construction permit. Specifically, the FCC found that the station was broadcasting without authorization, and was being operated at a facility 34 miles from its authorized location.

When the broadcaster failed to pay the $20,000 fine, the FCC referred the matter for collections to the Department of Justice (“DOJ”), which, in turn, sued the broadcaster in Nevada District Court to recover the $20,000. The District Court granted the DOJ’s motion for summary judgment, and in doing so upheld the fine against the broadcaster. The broadcaster, representing himself in court, subsequently appealed the District Court’s ruling to the Ninth Circuit.

The Ninth Circuit affirmed the District Court’s ruling, stating that the DOJ provided “substantial” evidence that, for more than a year, the broadcaster “willfully and repeatedly” transmitted radio signals from a different location and at different technical parameters than those specified in the broadcaster’s construction permit. In contrast, the court explained, “taking his submissions in the most generous light, [the broadcaster has] not shown a genuine issue of material fact for trial.” The broadcaster failed to contradict any of the facts underlying the alleged unauthorized operation: (1) because his construction permit required FCC approval before commencing program testing—which the FCC never granted—the transmissions were not valid under the FCC’s Rules; and (2) because the broadcaster transmitted at variance from the terms of the permit, he was not conducting valid equipment tests, which only allow transmission to assure compliance with the permit’s terms. In reviewing the amount of the fine, the Ninth Circuit found the FCC’s decision to impose the full $10,000 base fine for each of the two instances of unauthorized operation “reasonable and not an abuse of discretion.”

Going, Going, but Not Gone: FCC’s Parting Gift to Company Winding Down Business Is Citation for Equipment Authorization and Labeling Violations

The FCC’s Enforcement Bureau issued a citation to a company for marketing radio frequency (“RF”) transmitters that were not properly certified or labeled.

Section 302 of the Communications Act prohibits the manufacture, import, sale, or shipment of home electronic equipment and devices that fail to comply with the FCC’s regulations. Section 2.803 of the FCC’s Rules provides that a device subject to FCC certification must be properly authorized, identified, and labeled in accordance with Section 2.925 of the Rules before it can be marketed to consumers. Continue reading →

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Being close observers of the FCC, Congress, and the federal government in general, we get a lot of questions about what the next year will likely bring in DC.  While changes in administrations tend to increase the number of questions like that, rarely have I been as deluged with such requests as this year.  Everyone wants to know what a Trump presidency will bring, particularly to the FCC.  In the absence of solid information, many have rushed in to fill the information vacuum.

These prognosticators tend to fall into two camps: those who project onto the new FCC all their hopes and wishes (and who inevitably will be disappointed when the FCC charts its own path), and those who are just plain guessing, figuring that they will turn out to be right 50% of the time (overlooking the fact that there are way more than two answers to most problems in Washington).  As a result, the only somewhat reliable chatter remains characteristically vague, focusing on very general trends (deregulation anyone?) and avoiding specifics.

However, even with a level of uncertainty at the FCC rarely seen in its 82-year history, there are quite a few things we can predict for 2017 with near certainty.  You’ll find all of them in the Pillsbury 2017 Broadcasters’ Calendar, published earlier this week.

For example, without even knowing what proceedings a reconstituted FCC will elect to launch this coming year, we can already predict with a high degree of certainty that the most likely day for the FCC’s filing system to implode will be December 1.  Why?  Because with the FCC’s announcement this week that NCE stations will join commercial stations in having a unified December 1 ownership report filing deadline (yes, our Broadcast Calendar is that up-to-the-minute), pretty much every station in America will be making at least one filing by that deadline, with most making multiple filings (it is also the deadline for TV stations to file their DTV Ancillary Services Reports, and for stations in eleven states to file Mid-Term EEO Reports).

There are many other deadlines and requirements spelled out in the Broadcasters’ Calendar, so at least in that regard, broadcasters will know what is coming at them in 2017.  And, as new developments occur in what promises to be a singularly interesting year at the FCC, you can be certain we’ll be discussing them here at CommLawCenter.

So if all the uncertainty is stressing you out, keep a copy of the Broadcasters’ Calendar close at hand, stay tuned to CommLawCenter, and remind yourself that 2017 isn’t a complete unknown.

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Noncommercial stations caught a break today.  For many years, broadcast stations filed annual ownership reports on the anniversary date of their license renewal deadline.  Since those deadlines varied from state to state (and even between radio and TV in the same state), determining whether a station had filed its reports on time could be challenging.  That task was further complicated by the fact that a licensee owning stations in multiple states could elect to consolidate the filing of its ownership reports for all stations on the license renewal date for any one state in which it had a station.

Ultimately, the FCC concluded that the reports didn’t need to be filed annually, and made them biennial.  The result was that it became even more difficult for the FCC to keep track of whether a station had filed on time.  In fact, a licensee that had consolidated its ownership report filing date across multiple states might not even be filing in the same year as the FCC would normally expect.

Ultimately, the FCC gave up and decided to adopt a unified national deadline for commercial TV and radio stations in 2009.  At the same time, it expanded the list of entities that were required to file the reports (previously, sole proprietorships, general partnerships composed only of individuals, and LPTV licensees were exempt).  It set November 1 of odd-numbered years as the consolidated filing deadline, and indicated that it planned to eventually adopt a unified national deadline for noncommercial stations as well.

However, the FCC quickly discovered that given the increased complexity of the reports, and the fact that the information reported in them was required to reflect a station’s ownership as of October 1 of that same year, broadcasters were having trouble generating all of the required ownership reports in just 30 days.  The FCC also had some teething pains with the new electronic form, with the result that the November 1, 2009 deadline ended up being extended multiple times, ultimately resulting in a deadline for the 2009 reports of July 8, 2010.

After that painful ordeal, the FCC in 2011 permanently moved the commercial station deadline to December 1 of odd-numbered years, providing stations with a 61-day period to file the reports.  Perhaps because of how difficult and drawn out the process of establishing a unified deadline for commercial stations had been, the FCC moved very slowly in establishing the promised unified deadline for noncommercial stations.  It wasn’t until January 8, 2016 that the FCC moved forward on that front, adopting an Order creating a new online form (FCC Form 2100, Schedule 323-E) and establishing a unified national deadline for noncommercial stations to file it.  Because the new form had to be approved by the Office of Management and Budget (and that approval published in the Federal Register) before it could be used, it has still not gone into effect, meaning that throughout 2016, noncommercial stations have continued to file on a state-by-state basis using the old form.  It therefore seemed likely that a lot of noncommercial stations would end up filing two sets of ownership reports in 2017—one set on a station’s license renewal anniversary, and one set on the likely December 1, 2017 unified filing date.

Thankfully, the FCC announced this afternoon that it would not be burdening noncommercial stations with dual filings in 2017, releasing an Order suspending all 2017 biennial ownership reporting deadlines for noncommercial stations and announcing that 2017 will indeed be the year that noncommercial stations will finally have a common ownership reporting deadline.  That deadline will be December 1 of odd-numbered years, the same as the deadline for commercial stations.

That’s good news for noncommercial stations in general, and particularly for those with limited resources to make such filings.  Consider it an early Christmas gift from the FCC.