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April 1 is the deadline for broadcast stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee and Texas 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 submit their two most recent EEO Public File Reports along with FCC Form 2100, Schedule 396 as part of their license renewal applications due by April 3.

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Pillsbury’s communications lawyers have published the 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:

  • Failure to File License Renewal Application Results in Cancelled License
  • Call Provider Receives Cease-and-Desist Letter From FCC for Apparently Transmitting Illegal Robocalls
  • New York Broadcaster Agrees to Consent Decree for Violations Relating to the Public Inspection File

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The FCC announced this afternoon that due to continuing difficulties with its Licensing Management System (LMS) and Online Public Inspection File (OPIF) filing systems, the deadlines to file or upload a number of documents are being extended. The new deadline for these documents will be February 28, 2023.

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February 1 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 submit their two most recent EEO Public File Reports along with FCC Form 2100, Schedule 396 as part of their license renewal applications due by February 1. 

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,[1] (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.  As discussed below, nonexempt SEUs must submit to the FCC their two most recent Annual EEO Public File Reports when they file their license renewal applications.

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. Continue reading →

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The FCC announced late this afternoon that all items required to be placed in the Online Public Inspection File (“OPIF”) between January 1 and January 31, 2023 may now be uploaded to the OPIF by January 31, 2023 and be considered timely.  The FCC released a Public Notice today announcing that the OPIF filing system has been experiencing technical difficulties since at least January 1, 2023, necessitating the extension.

This extension impacts, among other things, broadcasters’ Quarterly Issues-Programs Lists, normally due on January 10, 2023, and television stations’ 2022 annual certification of compliance with the commercial limits in children’s programming, which would normally be due on January 30, 2023.  Note that the extension does not affect the filing deadline for television stations’ 2022 Annual Children’s Television Programming Report due on January 30, 2023, because that filing is submitted via the FCC’s Licensing and Management System and then is automatically transferred into the OPIF.  Accordingly, television stations should be sure to file that Report by the normal January 30th deadline.

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The FCC’s Public Safety & Homeland Security Bureau has announced that technical updates to the EAS Test Reporting System (“ETRS”) have been completed and the ETRS is open and available to accept filings of Form One by EAS participants. Under the FCC’s EAS Rules, EAS participants must update their identifying information annually via a Form One filing. This is typically done in connection with a nationwide EAS test. However, the Federal Emergency Management Agency did not conduct such a test in 2022, and has not yet announced a 2023 nationwide test. Therefore, the Form One must be submitted independently of a test to comply with the annual updating requirement.

All broadcasters are generally required to submit a Form One, including low power FM stations, Class D noncommercial educational FM stations, and stations that are silent pursuant to a grant of Special Temporary Authority. Certain broadcasters are exempt from filing a Form One, including:

  • TV translator stations;
  • FM booster stations;
  • FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations; and
  • Stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point). Note that the hub station (or common studio or control point) must file a Form One.

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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:

  • Violations of Environmental, Historic Preservation, and Tribal Notification Rules Lead to $950,000 Penalty
  • Proposed $300 Million Fine Follows Largest-Ever FCC Robocall Investigation
  • Deceased Licensee’s Estate to Pay $7,000 Penalty for Failing to File Required Applications and Documents

Wireless Provider Pays $950,000 for Violating Environmental, Historic Preservation, and Tribal Notification Rules

A national wireless provider entered into a consent decree with the FCC’s Enforcement Bureau, agreeing to pay $950,000 for violating the FCC’s environmental and historic preservation rules, as well as rules requiring entities to coordinate with relevant state governments and tribal nations in the construction of communications sites.

To resolve the FCC’s investigation, the company admitted to prematurely constructing wireless facilities before completing the required environmental and historic preservation reviews and by constructing wireless facilities without onsite monitoring as requested by the affected tribes.  Under Section 1.1307(a)(4) of the FCC’s Rules, applicants and licensees must assess whether proposed facilities may significantly affect the environment and whether the proposed facilities may affect districts, sites, buildings, structures, or objects that are listed (or eligible for listing) in the National Register of Historic Places, or may affect Native American religious sites.  Applicants must also follow other rules set out by the Advisory Council on Historic Preservation or the National Historic Preservation Act Review Process, as applicable.

By early 2020, the company began deploying newer wireless technology, commonly known as small cells.  Small cell antennas are used to improve wireless service and can be mounted to streetlight poles, utility poles, or even traffic control structures.  During the summer of 2020, the company began constructing the small cell antennas that are the subject of the Consent Decree.  After the company reported concerns regarding its compliance with the environmental rules to the FCC, the Commission opened an investigation and issued a Letter of Inquiry (“LOI”) to the company in January 2022.  The company filed several responses to the LOI throughout 2022.  Ultimately, the Commission determined that the company began and or/completed building wireless facilities in three states prior to, or without completing, the required review process and Tribal notification process.  The FCC also concluded that the company failed to comply with Tribal notification procedures in two states.  While some of the noncompliant construction was found to have been caused by a miscommunication between the company and its third-party contractors, other violations were the result of a company employee who lacked expertise on the National Environmental Policy Act and National Historic Preservation Act requirements.  Before and during the FCC’s investigation, the company stated that it had begun the process of removing any wireless facilities found to have an adverse effect on historic streets. Continue reading →

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With the end of another year soon upon us, we have begun to look forward to the highs, lows, joys, and filings that 2023 has in store.  In accordance with a Pillsbury holiday tradition, earlier this month we published our annual Broadcasters’ Calendar of upcoming regulatory deadlines for broadcasters–a compendium of the currently known deadlines occurring throughout 2023. It’s full of dates and deadlines affecting TV and radio in the coming year, and cross-references some of our other Advisories to help stations meet their regulatory obligations in the year ahead. We hope this Calendar helps guide you into and through the new year.  Happy 2023 to all.

Items of Note in 2023[1]

  1. Commercial and Noncommercial Biennial Ownership Report: December 1, 2023 is the deadline by which all commercial and noncommercial radio and television stations must file their biennial ownership reports. Commercial stations will file FCC Form 2100, Schedule 323, and noncommercial stations will file FCC Form 2100, Schedule 323-E. The filing window opens October 1, 2023, and all ownership reports must reflect information current as of that date.
  2. Applications for Renewal of License: The three-year long state-by-state license renewal cycle ends in April 2023 for stations in the television services (full-power television, Class A television, LPTV, and TV Translator). The three-year renewal cycle for stations in the radio services (AM, FM, FM Translator, and LPFM) ended in April 2022. Stations will file their license renewal applications on FCC Form 2100, Schedule 303-S (“Form 303-S”) along with their Equal Opportunity Employment Reports on Form 2100, Schedule 396 (“Form 396”). The date by which the licensee must file a station’s application for license renewal depends on the state or territory of the station’s community of license. All licensees should familiarize themselves now with the dates associated with this important filing. As noted in previous Calendars, stations are no longer required to air pre-filing announcements during the two months preceding the filing of their license renewal application and instead need only air six post-filing announcements over four consecutive weeks, beginning within five business days after the FCC has “accepted for filing” their license renewal application. Additional information can be found in our License Renewal Advisories published on CommLawCenter prior to each state-by-state application deadline.
  • TV Spectrum Repack Progress Report and Reimbursement Deadlines: Because the 39-month post-auction transition period for full-power and Class A television stations ended in 2020, the post-repack Transition Progress Report (FCC Form 2100, Schedule 387) filing deadlines are not noted in this year’s calendar. However, stations that received an extension of time to complete their transition must continue to file Transition Progress Reports on a quarterly basis until they have ceased operating on their pre-repack channels, completed construction of their post-repack facilities, and reported that information to the FCC. In addition to these quarterly reports, transitioning stations must file Transition Progress Reports ten weeks before the end of their assigned construction deadline, ten days after completion of all work related to constructing their post-repack facilities, and five days after ceasing operations on their pre-auction channel. Throughout 2021 and 2022, all repacked full-power and Class A television stations and FM stations and LPTV/translator stations that sought reimbursement had to submit all invoices and supporting documentation, and initiate interim close-out procedures. The FCC announced in February 2022 that it intends to visit a random sample of Broadcaster Relocation Fund participants to verify the existence and operational status of equipment for which the participant received reimbursement.

January 1

Audio Description Requirements Extend to Nielsen Designated Market Areas 81 to 90—Commercial television stations affiliated with one of the top four broadcast networks and assigned to the Madison, Waco-Temple-Bryan, Harlingen-Weslaco-Brownsville-McAllen, Paducah-Cape Girardeau-Harrisburg, Colorado Springs-Pueblo, Shreveport, Syracuse, Champaign and Springfield-Decatur, Savannah, or Cedar Rapids-Waterloo-Iowa City and Dubuque Nielsen Designated Market Areas must comply with the FCC’s audio description (formerly video description) rules.

January 10

Quarterly Issues/Programs List Due—All full-power radio, full-power television, and Class A television stations must upload to their Public Inspection File by this date the Quarterly Issues/Programs List covering the period October 1, 2022 through December 31, 2022. Continue reading →

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This Pillsbury Broadcast Station Advisory is directed to radio and television stations in the areas noted above, and highlights upcoming deadlines for compliance with the FCC’s EEO Rule.

December 1 is the deadline for broadcast stations licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont 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 submit their two most recent EEO Public File Reports along with FCC Form 2100, Schedule 396 as part of their license renewal applications due by December 1. 

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,[1] (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.  As discussed below, nonexempt SEUs must submit to the FCC their two most recent Annual EEO Public File Reports when they file their license renewal applications.

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.

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

Consistent with the above, December 1, 2022 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 Rule, 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 otherwise part of a Nonexempt SEU, it must prepare an Annual EEO Public File Report and place it in its station records file.

These Reports will cover the period from December 1, 2021 through November 30, 2022.  However, Nonexempt SEUs may “cut off” the reporting period up to ten days before November 30, so long as they begin the next annual reporting period on the day after the cut-off date used in the immediately preceding Report.  For example, if the Nonexempt SEU uses the period December 1, 2021 through November 20, 2022 for this year’s report (cutting it off up to ten days prior to November 30, 2022), then next year, the Nonexempt SEU must use a period beginning November 21, 2022 for its report.

Deadline for Performing Menu Option Initiatives

The Annual EEO Public File Report must contain a discussion of the Menu Option initiatives undertaken during the preceding year.  The FCC’s EEO Rule requires each Nonexempt SEU to earn a minimum of two or four Menu Option initiative-related credits during each two-year segment of its eight-year license term, depending on the number of full-time employees and the market size of the Nonexempt SEU.

  • Nonexempt SEUs with between five and ten full-time employees, regardless of market size, must earn at least two Menu Option credits over each two-year segment.
  • Nonexempt SEUs with 11 or more full-time employees and which are located in the “smaller markets” must earn at least two Menu Option credits over each two-year segment.
  • Nonexempt SEUs with 11 or more full-time employees and which are not located in “smaller markets” must earn at least four Menu Option credits over each two-year segment.

The SEU is deemed to be located in a “smaller market” for these purposes if the communities of license of the stations comprising the SEU are (1) in a county outside of all metropolitan areas, or (2) in a county located in a metropolitan area with a population of less than 250,000 persons.

Because the filing date for license renewal applications varies depending on the state in which a station’s community of license is located, the time period in which Menu Option initiatives must be completed also varies.  Radio and television stations licensed to communities in the states identified above should review the following to determine which current two-year segment applies to them:

  • Nonexempt radio station SEUs licensed to communities in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont must earn at least the required minimum number of Menu Option credits during the two year “segment” between December 1, 2021 and November 30, 2023, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt radio station SEUs licensed to communities in Colorado, Minnesota, Montana, North Dakota, and South Dakota must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between December 1, 2020 and November 30, 2022, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Colorado, Minnesota, Montana, North Dakota, and South Dakota must earn at least the required minimum number of Menu Option credits during the two-year “segment” between December 1, 2021 and November 30, 2023, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Alabama, Connecticut, Georgia, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between December 1, 2020 and November 30, 2022, as well as during the previous two-year “segments” of their license terms.

Additional Obligations for Stations Whose License Renewal Applications Are Due by December 1, 2022 (Television Stations Licensed to Communities in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont)

December 1, 2022 is the date by which television stations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont must file their license renewal applications.  In conjunction with that filing, these stations must submit Schedule 396 of FCC Form 2100.  Nonexempt SEUs must include in their Schedule 396 filing their two most recent EEO Public File Reports and a narrative discussing their EEO Program over the past two years.

Recommendations

It is critical that every SEU maintain adequate records of its performance under the EEO Rule and that it practice overachieving when it comes to earning the required number of Menu Option credits.  The FCC will not give credit for Menu Option initiatives that are not duly reported in an SEU’s Annual EEO Public File Report or that are not adequately documented.  Accordingly, before an Annual EEO Public File Report is finalized and made public by posting it on a station’s website or placing it in the Public Inspection File, the draft document, including supporting material, should be reviewed by communications counsel.

Finally, note that the FCC is continuing its program of EEO audits.  These random audits check for compliance with the FCC’s EEO Rule, and are sent to approximately five percent of all broadcast stations each year.  Any station may become the subject of an FCC audit at any time.  For more information on the FCC’s EEO Rule and its requirements, as well as practical advice for compliance, please contact any of the attorneys in Pillsbury’s Communications Practice.

A PDF of this article can be found at EEO Public File Deadline.

[1] In light of the significant layoffs and workforce reductions caused by the COVID-19 pandemic, the FCC has waived the requirement that broadcasters engage in broad outreach when rehiring employees that were laid off in connection with the COVID-19 pandemic, but only where the employee is rehired within nine months of being laid off.  Additional information on this limited waiver of EEO obligations can be found in our CommLawCenter article on this subject.

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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 Seeks $20,000 Fine for Long-Term Unauthorized Operations at California AM Station
  • Failure to File License Applications Brings $13,000 Proposed Fine for Washington LPTV Stations
  • FM Translator’s Violation of Program Origination Rules Leads to $1,500 Fine

AM Station’s Years-Long Unauthorized Modification of Nighttime Facilities Results in $20,000 Proposed Fine

The FCC’s Media Bureau issued a $20,000 Notice of Apparent Liability for Forfeiture (“NAL”) to the licensee of a California AM station for the station’s ongoing operation outside its licensed parameters.  This action comes as the FCC is evaluating the station’s August 2021 license renewal application.  That evaluation requires the FCC to consider whether during its license term: (1) the station has served the public interest, convenience, and necessity; (2) there have been any serious violations by the station of the Communications Act or FCC Rules; and (3) there have been any other violations by the station which, taken together, constitute a pattern of abuse.  The alleged violations at issue were not disclosed in the station’s license renewal application.

Since 1970, the station has been authorized to operate a directional signal at night at a power level of 5 kW.  In 1993, the licensee received special temporary authority (“STA”) from the FCC to operate the station at night in non-directional mode at a reduced power of 1 kW.  That authority was last extended in late October 1996, with a warning that the station needed to “return to licensed operation or to file FCC Form 301 for modification of its nighttime facilities.”  The licensee did not return to licensed operation or file a Form 301.  Following a 2016 complaint and an admission by the licensee, the Enforcement Bureau learned that the station had continued to operate non-directionally at night at 1 kW.  The FCC again warned the licensee that it had to either apply for an STA and then return the station to licensed operation, or apply to modify the station’s license to reflect its actual operation.  The licensee did not request an STA or apply to modify the station’s license.

Four years later, another complaint against the station alleged that the station had been operating non-directionally at 1 kW for more than 30 years.  When contacted, the licensee confirmed this and said that directional operation causes significant loss to the station’s coverage area and that, because the station had not received any consumer or broadcaster complaints, it would not be in the public interest, convenience and necessity for its signal to not cover roughly 75% of the population it seeks to serve.  The licensee also highlighted the public safety role the station has played since it went on the air almost 75 years ago.

Last month, the licensee requested an STA to continue operating non-directionally at night with reduced power.  The Media Bureau denied the request due to the licensee’s lack of justification for needing to operate with an alternate antenna system and at reduced power.  The STA request also did not include any engineering studies proving the proposed facility would protect co-channel and first adjacent stations.  An FCC interference study found that the proposed facility would in fact interfere with multiple stations.  In the STA denial, the Media Bureau ordered the station to immediately terminate its unauthorized non-directional nighttime operation and either resume its licensed directional operation at night or file an application to modify its nighttime operation so as to eliminate the interference being caused by its unauthorized nighttime operation.

The FCC cited several rules it believed the station had violated.  Section 301 of the Communications Act and Sections 73.1350(a), and 73.1745(a) of the FCC’s Rules each require licensees to operate according to their FCC-granted authorizations.  Section 73.1560(a)(1) requires AM stations to maintain their antenna input power “as near as practicable to the authorized antenna input power” and “not [] less than 90 percent nor greater than 105 percent of the authorized power,” which the station would have violated by operating at reduced power without authorization.  The NAL stated that the licensee also violated Sections 73.1635 and 73.1690(b) of the FCC’s Rules, which set out the circumstances under which a station must request an STA to operate at variance and when it must apply for a construction permit to alter the station’s facilities.

Ultimately, the FCC decided an upward adjustment of the $13,000 base fine to $20,000 was appropriate, pointing to the station’s prolonged and intentional unauthorized operation and the licensee’s argument that it, not the FCC, is better positioned to judge how the station can best serve the public interest.  In situations where violations have occurred over many years, the FCC is generally prohibited by the Communications Act from considering any violation that occurred prior to the station’s current license term, which here began in late 2013.  Once this enforcement action is resolved, the FCC indicated it intends to renew the station’s license for two years instead of the typical eight-year term.  This shorter renewal term will give the Commission an opportunity to review the station’s rule compliance and determine whether it is operating in the public interest two years from now.

FCC Proposes $13,000 Fine for Washington LPTV Licensee That Failed to File License Applications for Modifications

A Washington state broadcaster failed to timely file license to cover applications and allegedly engaged in unauthorized operation of two low power televisions stations as a result.  In response, the FCC’s Media Bureau issued an NAL proposing a $13,000 fine.

The stations’ digital channels were displaced in the Broadcast Spectrum Incentive Auction, and they were granted construction permits for new displacement channels in June 2018.  The licensee was also granted STAs to begin temporary operations on the displacement channels.  The displacement permits expired in June 2021.  While the stations claimed to have completed construction to operate on their new channels by October 2018 and December 2018, respectively, both stations failed to file applications for licenses to operate permanently on their new channels before their permits expired.

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