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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.

June 1 is the deadline for broadcast stations licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming 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 application submissions due on June 3.

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.  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.  This publication is available at: http://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, June 1, 2019 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 the station records file.

These Reports will cover the period from June 1, 2018 through May 31, 2019. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before May 31, 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 June 1, 2018 through May 22, 2019 for this year’s report (cutting it off up to ten days prior to May 31, 2019), then next year, the Nonexempt SEU must use a period beginning May 23, 2019 for its report. Continue reading →

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Last April, the broadcast industry was abuzz with the need to register previously unlicensed earth stations in order to reduce the chance of future displacement. In April 2018, the deadline for submitting the registrations was announced, and after two extensions, all fixed-satellite service (FSS) earth stations in use prior to April 19, 2018 that operated in the 3.7 to 4.2 GHz band were to be registered with the FCC by October 31, 2018.

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In a Public Notice released this afternoon, the FCC waived certain quarterly Transition Progress Report requirements for stations in Phases 3, 5, and 8 of the post-auction repack process.

As subscribers to Pillsbury’s legal advisories are aware, stations that were assigned a new channel as part of the post-Incentive Auction repacking process must file Transition Progress Reports on FCC Form 2100, Schedule 387, at various times throughout the transition process.  Along with other reports closer to phase completion, stations must file a report every quarter (“Quarterly Report”) and a report ten weeks out from a station’s phase completion date (“10-Week Report”).

However, as many observers have pointed out, the deadlines for the Quarterly Report and 10-Week Report often fall within days of each other, meaning that a transitioning station would have to expend time and energy on filing one report, only to have to file a near-duplicate report a few days later.

To address this inefficiency, in today’s Public Notice the FCC waived the filing of the April 10 Quarterly Report for Phase 3 stations, the July 10 Quarterly Report for Phase 5 stations, and the January 10, 2020 Quarterly Report for Phase 8 stations.  These stations will still be required to timely file their 10-Week Reports.

This late reprieve may not offer much solace for Phase 3 stations that were already set for their dual Transition Progress Report filings on April 10 and April 12, but better late than never.

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The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ Public Inspection Files by April 10, 2019, reflecting programming aired during the months of January, February and March 2019.

Statutory and Regulatory Requirements

As a result of the Children’s Television Act of 1990 (“Act”) and the FCC rules adopted under the Act, full power and Class A television stations are required, among other things, to: (1) limit the amount of commercial matter aired during programs originally produced and broadcast for an audience of children 12 years of age and under, and (2) air programming responsive to the educational and informational needs of children 16 years of age and under.

These two obligations, in turn, require broadcasters to comply with two paperwork requirements.  Specifically, stations must: (1) place in their Public Inspection File one of four prescribed types of documentation demonstrating compliance with the commercial limits in children’s television, and (2) submit FCC Form 398, which requests information regarding the educational and informational programming the station has aired for children 16 years of age and under.  Form 398 must be filed electronically with the FCC.  The FCC automatically places the electronically filed Form 398 filings into the respective station’s Public Inspection File.  However, each station should confirm that has occurred to ensure that its Public Inspection File is complete.  The base fine for noncompliance with the requirements of the FCC’s Children’s Television Programming Rule is $10,000.

Broadcasters must file their reports via the Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.

Noncommercial Educational Television Stations

Because noncommercial educational television stations are precluded from airing commercials, the commercial limitation rules do not apply to such stations.  Accordingly, noncommercial television stations have no obligation to place commercial limits documentation in their Public Inspection Files.  Similarly, though noncommercial stations are required to air programming responsive to the educational and informational needs of children 16 years of age and under, they do not need to complete FCC Form 398.  They must, however, maintain records of their own in the event their performance is challenged at license renewal time.  In the face of such a challenge, a noncommercial station will be required to have documentation available that demonstrates its efforts to meet the needs of children. 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, 2019, reflecting information for the months of January, February and March 2019.

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 the 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.

It should be noted that the FCC has repeatedly emphasized the importance of the Quarterly Lists and often brings enforcement actions against stations that do not have fully complete Quarterly Lists or that do not timely place such lists in their Public Inspection File.  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, 2019, covering the period from January 1, 2019 through March 31, 2019. Continue reading →

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Each full power and Class A TV station being repacked must file its next Transition Progress Report with the FCC by April 10, 2019.  The Report must detail the progress a station has made in constructing facilities on its newly-assigned channel and in terminating operations on its current channel during the months of January, February and March 2019.[1]

In a March 28, 2019 Public Notice, the FCC waived the quarterly Transition Progress Report requirement with regard to Phase 3 stations for the report due on April 10, 2019, with regard to Phase 5 stations for the report due on July 10, 2019, and with regard to Phase 8 stations for the report due on January 10, 2020.  In all three cases, the quarterly deadline falls within days of the deadline for those stations’ 10-Week Report (which stations must continue to timely file), making the quarterly report redundant.  See infra.

Following the 2017 broadcast television spectrum incentive auction, the FCC imposed a requirement that television stations transitioning to a new channel in the repack file a quarterly Transition Progress Report by the 10th of January, April, July, and October of each year.  The first such report was due on October 10, 2017.

The next quarterly Transition Progress Report must be filed with the FCC by April 10, 2019, and must reflect the progress made by the reporting station in constructing facilities on its newly-assigned channel and in terminating operations on its current channel during the period from January 1 through March 31, 2019.  The Report must be filed electronically on FCC Form 2100, Schedule 387 via the FCC’s Licensing and Management System (LMS), accessible at https://enterpriseefiling.fcc.gov/dataentry/login.html.

The Transition Progress Report form includes a number of baseline questions, such as whether a station needs to conduct a structural analysis of its tower, obtain any non-FCC permits or FAA Determinations of No Hazard, or order specific types of equipment to complete the transition.  Depending on a station’s response to a question, the electronic form then asks for additional information regarding the steps the station has taken towards completing the required item.  Ultimately, the form requires each station to indicate whether it anticipates that it will meet the construction deadline for its transition phase. 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.

April 1, 2019 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 also electronically file an EEO Mid-Term Report on FCC Form 397 by April 1.[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, (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 when they file their license renewal applications.

In addition, all TV station SEUs with five or more full-time employees and all radio station SEUs with 11 or more full-time employees must submit to the FCC the two most recent Annual EEO Public File Reports at the mid-point 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: http://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, April 1, 2019 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 the station records file.

These Reports will cover the period from April 1, 2018 through March 31, 2019.  However, Nonexempt SEUs may “cut off” the reporting period up to ten days before March 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 April 1, 2018 through March 21, 2019 for this year’s report (cutting it off up to ten days prior to March 31, 2019), then next year, the Nonexempt SEU must use a period beginning March 22, 2019 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, 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, 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 to which a station is licensed, 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 Delaware, Indiana, Kentucky, Pennsylvania and Tennessee must earn at least the required minimum number of Menu Option credits during the two year “segment” between April 1, 2018 and March 31, 2020, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt radio station SEUs licensed to communities in Texas must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between April 1, 2017 and March 31, 2019, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Texas must earn at least the required minimum number of Menu Option credits during the two-year “segment” between April 1, 2018 and March 31, 2020, as well as during the previous two-year “segments” of their license terms.
  • Nonexempt television station SEUs licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania and Tennessee must have earned at least the required minimum number of Menu Option credits during the two-year “segment” between April 1, 2017 and March 31, 2019, as well as during the previous two-year “segments” of their license terms.

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At its February 14th meeting, the FCC gave a rather significant Valentine’s Day gift to broadcasters, eliminating the requirement that larger radio and television stations submit the EEO Mid-Term Report (FCC Form 397) at the midpoint of their license terms.  While the FCC will continue to conduct EEO mid-term reviews, it determined that filing the EEO Mid-Term Report was no longer necessary, as most of the information required for an EEO mid-term review is already available in a broadcaster’s Online Public Inspection File.

Specifically, the EEO Mid-Term Report required broadcasters to provide three pieces of information: (i) the number of full-time employees; (ii) the point of contact for the station(s) that is responsible for compliance with the EEO rules; and (iii) the two most recent Annual EEO Public File reports.  In eliminating the obligation to file the EEO Mid-Term Report, the FCC reasoned that the point of contact information and the Annual EEO Public File reports are already kept in a broadcaster’s Online Public Inspection File.  As such, the additional requirement of filing an EEO Mid-Term Report with the FCC was unnecessary.

To gather the third piece of information requested in the EEO Mid-Term Report—the current number of full-time employees—the FCC will require that radio station employment groups indicate when uploading their Annual EEO Public File Reports whether or not they have 11 or more full-time employees (the number which triggers the need for an EEO mid-term review in radio).  Because TV licensees are subjected to EEO mid-term reviews when the station employment group only has five or more full time employees—the same number that triggers the requirement to file Annual EEO Public File Reports—the FCC deemed such a requirement for TV licensees unnecessary (i.e., if a TV station is filing Annual EEO Public File Reports, the FCC already knows the station employment group is large enough to qualify for an EEO mid-term review).

The change in rules will be effective on May 1, 2019.  The FCC noted that television stations in Delaware and Pennsylvania will therefore still be required to file their EEO Mid-Term Reports on April 1, 2019.

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Late today, the FCC released a Public Notice further extending the deadlines for filings that it extended yesterday, which it had already extended by a Public Notice released before the FCC shutdown on January 3 (did you follow that?).  Skipping over those intermediate steps, the final result now boils down to this general rule:  filings that were due between January 3 and January 7 will still be due tomorrow, January 30.  However, filings that otherwise would have been due between January 8 and February 7 are now due by February 8.

HOWEVER, the FCC has established additional deadlines for specific proceedings and classes of proceedings, including:

  • Online Public Inspection File – As an update to our post yesterday,  all public inspection quarterly submissions that were due on January 10, as well as any other filings that were required to be placed in a station’s Online Public Inspection File between January 3 and January 28, are now due by February 11.  Apparently in response to the demo online public file snafu we brought to light a few weeks ago, the FCC cryptically added that any online public file uploads that were made during the shutdown “will need to be resubmitted to the proper Online Public Inspection File site at https://publicfiles.fcc.gov.”
  • EEO Reports – Broadcasters in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma must still place their annual EEO Public File Reports in the Online Public Inspection File by the original due date of February 1.  Because the annual EEO Public File Report is not an FCC “filing” (qualifying for the general filing extension) nor a quarterly report (qualifying for the first type of Public File extension), nor was it required to be placed in the public file by January 28 (qualifying for the second type of Public File extension), it does not fall into any of the further deadline extension categories.  On the other hand, the EEO Mid-Term Report on FCC Form 397 is an FCC filing, and therefore broadcasters in New Jersey and New York will have until February 8 to file it under the general deadline extension described above.
  • ULS Filings – All ULS applications and notifications that were due to be filed between January 3 and February 8 are now due by February 8.  This does not apply to filings related to the incentive auction, which were permitted to be filed during the FCC shutdown and therefore are unaffected by the various deadline extensions.  All ULS filings that were submitted between the commencement of the shutdown and today will be considered received as of today, January 29.

While too voluminous to list here, readers should also be aware that the Public Notice sets additional new deadlines for informal consumer complaints, responsive pleadings, comments in the Carriage Election Notice Modernization proceeding, STA requests, fee filings, and filings in the Tower Construction Notification System and the Antenna Structure Registration System, among other things.  Those potentially affected should review the Public Notice carefully to determine what new deadlines may apply.  In addition, the Public Notice indicates that the FCC will also “consider requests for further extensions in individual matters as appropriate.”  So even now, we may not be done extending the extensions.

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With the partial government shutdown mercifully at an end (for now), broadcasters must hurry to update their Online Public Inspection File and make up for a month’s worth of missed filings.

As we wrote earlier this month, filing deadlines that landed during the shutdown were extended (with a few exceptions) via a January 2 FCC Public Notice. The new deadline was to have been the second day of normal FCC operations (which would have made those filings due tomorrow, Tuesday, January 29).  However, in a Public Notice released a few minutes ago, the FCC extended that deadline an additional day, meaning that FCC filings whose due dates fell from January 3 to January 29 are now due by Wednesday, January 30, 2019.  All public file documents that could not be uploaded to the Online Public Inspection File while it was unavailable during the shutdown should be uploaded as soon as possible, and certainly no later than the January 30 extended deadline for FCC filings.

Backlogged uploads and filings include:  fourth quarter children’s television programming reports on Form 398 (if not already filed in LMS), fourth quarter commercial limits certifications, fourth quarter issues/programs lists, Class A TV continuing eligibility certifications, and NCE fundraising reports.

Because the government is funded for at least the next three weeks, broadcasters in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma will be able (and expected!) to timely upload their annual EEO public file reports in the Online Public Inspection File by Friday, February 1.  See our recent advisory for more information on this obligation.

Broadcasters should also take stock of any other filings that, but for the shutdown, would have been due earlier this month (e.g., Special Temporary Authority requests and extensions).  As noted in an earlier post, the shutdown did not affect the post-incentive auction broadcast repack, and any filings related to the repack should have been filed as scheduled.

Open Meeting “Lite”

On a related note, now that the FCC is open for business again, the January 30 Open Meeting will take place in person instead of via teleconference.  Of course, most of the staff that normally prepare the agenda items and assist the commissioners are just now getting back to work after having been furloughed for several weeks.  The show must go on, given the FCC’s statutory obligation to hold a meeting at least once a calendar month, but instead of reviewing the items announced on the Tentative Agenda, the FCC will use this meeting to go over what it calls “Commission announcements.”

The decision to delay votes on matters originally on the FCC’s meeting agenda for January affects two items of interest to broadcasters.  First, broadcasters are going to have to wait even longer before they can cease thinking about the now-redundant EEO Mid-Term Report on Form 397.  The FCC was prepared to vote on a Report and Order that would have eliminated this reporting requirement.  The impact of the delay will be fairly limited, however.  According to an advance draft of the Report and Order, the substantive changes would not have gone into effect until May 1, 2019.  Given that the last round of EEO Mid-Term Reports for this license renewal cycle are due on April 1, 2019, and the cycle does not resume until 2023, the delay in voting on the item will have no practical impact on stations unless the delay drags on for years.

Also originally up for a vote at the January meeting was a Notice of Proposed Rulemaking seeking several changes in the way the FCC currently processes competing (also known as “mutually exclusive”) license applications for noncommercial educational (“NCE”) FM and television stations and low power FM (“LPFM”) stations.  In this proceeding, the FCC is seeking to improve its review process by eliminating certain requirements for NCE applicants, amending its rules governing the “holding period” during which licensees must maintain certain station characteristics, and generally updating rules that are deemed confusing or unnecessarily time-consuming.  With this item now off the January meeting agenda, action on it will also have to wait, likely until the February Open Meeting (assuming the federal government remains open through then).

Until then, broadcasters should work on meeting their accrued regulatory obligations that couldn’t be fulfilled during the shutdown, and might do well to expedite any planned future filings.  You never know when the next FCC shutdown will occur.