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One of the intriguing aspects of posting on CommLawCenter is the level of interest a particular post generates.  Posts announcing something of vital importance to broadcasters will sometimes make hardly a ripple, while more mundane posts attract surprising interest.

Indeed, one of CommLawCenter’s most-read posts in its early years was a discussion of the first national EAS test.  It wasn’t that non-broadcasters had suddenly become infatuated with EAS; it was because the first national EAS test happened to coincide with a near-miss between Earth and what was described as a “huge asteroid”.  There apparently was a sizable contingent of conspiracy theorists who thought that a national EAS test being held at the same time as the asteroid’s arrival indicated a government cover-up of the asteroid’s imminent collision with Earth.  I never understood the logic of that claim, but a four-month-old post on CommLawCenter announcing the national EAS test date suddenly became red hot in web readership until the asteroid peacefully passed by Earth.

So it was when we recently reported that shortly after the FCC shut down, some stations were getting calls claiming to be on behalf of the FCC and asking for payment of “FCC fees”.  When stations pressed for more information, the callers became belligerent or hung up.  In response, we alerted stations to be wary of such calls and to be especially leery of any caller that requested payment by gift card, which is the most common form of payment demanded by scammers (because they can’t be traced).

That brief alert received a lot of trade press coverage afterwards, and I certainly hope it saved a few stations some headaches.  We subsequently sought more information to see if there was anything that could be learned about the calls (were they all actually scams, were there multiple approaches, or just one unified effort?).  Unfortunately, there wasn’t much more information available, as it seemed most stations had just hung up and moved on with their lives.  However, we did get an interesting tidbit from one station—the callback number the caller had left on voicemail.  While that may seem odd, it’s common for phone scammers to leave a toll-free number behind so that those called can run out, obtain the necessary gift cards to make payment, and have a number they can call back to relay the gift card payment information to the scammer.

This particular number didn’t generate any useful information from a web search, but the way this particular call had been described seemed more formal and organized than you would expect the typical scam call to be (although the caller apparently still became belligerent when pressed).  As noted in the original post, the FCC (particularly when shut down) doesn’t make collection calls itself, but it does typically send a written “Past Due Notice” to licensees when a debt has stayed unpaid for 30 days.

I checked my files for a Past Due Notice a client received a few years ago, and sure enough, at the very bottom of the Notice was the phone number the station had provided.  Now we were getting somewhere.  As it turns out, despite being on a piece of FCC correspondence, it was not an FCC telephone number, but one associated with the Department of Treasury.  While the FCC does refer past due amounts to Treasury for collection (a questionable practice given that when you want to sell your station or renew its license, the FCC already has all the leverage it needs to get paid), the Treasury Department shut down long before the FCC.  Since the FCC doesn’t make collection calls, and both the FCC and Treasury were closed when this particular call was made, who was doing the calling?

Making the circumstances even more curious is the fact that the FCC actually pays Treasury to handle the collection of overdue FCC accounts.  If the FCC and Treasury are both shut down because they have no appropriated funds to operate, then the obvious question is: Who is paying a Treasury employee to do FCC collections if neither agency has funding to operate in the first place?

So I called the number to ask.  A very pleasant person (not belligerent at all, at least to me) answered the phone and indicated that she wasn’t sure exactly how the contract between the FCC and Treasury worked, but that money was apparently available for their continued operations, as they had not been informed they were at risk of being furloughed anytime soon.  She also said that any of the calls to stations in which the caller hung up when pressed would not have come from Treasury, as they are used to people thinking they are a scam caller and therefore work hard to persuade people that the call is a legitimate one.

I told her that with the FCC shut down, stations couldn’t access the FCC’s Fee Filer or Red Light systems to determine the validity of any claimed debt, so there were some serious concerns about which callers were scammers and which might be legitimate outreach from Treasury.  She responded that they were was unaware the FCC had taken the Fee Filer and Red Light systems down, and appreciated knowing that.  She added that she certainly understood why a broadcaster might be skeptical of a call given the shutdown and the inability to verify the existence of a debt until the FCC reopens.  I suggested Treasury might want to focus its collection efforts on other types of debts until the FCC reopens, but in any event, that Treasury should be aware that their calls might be viewed with more than the typical amount of skepticism until the government reopens.

As we finished the conversation, she confirmed that Treasury only takes traditional forms of payment, so again, if a caller asks to be paid in gift cards, the call is a scam.

But what if the call successfully passes that first test?  How do you tell if the call is legitimate, and equally important, whether you actually owe the amount claimed?  Under normal circumstances, the first thing you should do is log into the FCC’s Fee Filer and Red Light systems to determine whether any debt is outstanding and the amount of it (if there are amounts due, you’ll be able to pull up a “Remittance Advice – Bills for Collection (Form 159B) for the amounts owed).  Since those systems are currently unavailable during the shutdown, if you aren’t aware of any outstanding payment due, you may want to wait until the FCC reopens and the debt can be confirmed before sending any payment.

Alternatively, if you get a call from someone claiming to be with the Department of Treasury, ask them to send you their copy of your Form(s) 159B, which is also used by Treasury as the basis for their collection process.  Once you are satisfied that you owe the debt (and interest), they will walk you through the payment options (again, no gift cards).  If you believe the debt claim to be an error, you can challenge it, but be aware that if you earlier received a Past Due Notice from the FCC and did not challenge it within 30 days of the date on the Notice, the government may take the position that you waived your right to challenge it.

So if you get a suspicious call claiming you owe FCC fees, whether you think it is a scam or not, it’s wise to check the FCC’s Fee Filer to make sure you are all paid up.  If not, the call might be legitimate, particularly if the amount the caller is saying you owe is similar to the amount the Fee Filer is indicating.  Note that the amounts may not be identical, as the Fee Filer indicates the initial amount owed plus any payment penalty (for example, missing a regulatory fee payment results in an immediate 25% penalty), but may not include all accrued interest, which Treasury will also insist on collecting.

But what happens if you still don’t pay?  Well, you will continue to have “Red Light” status at the FCC, which means the FCC will place a hold on processing your applications.  You won’t be able to sell your station, get its license renewed, etc., until the Red Light status is removed.  Also, once the FCC refers the debt to the Department of Treasury, if Treasury fails to collect it within a certain period of time, it will actually hand the bill to private debt collection agencies for collection.  Those entities are renowned for their skill at harassing debtors (sometimes legally, sometimes not) into paying.  If you have the misfortune to reach that state of affairs, you’ll dream of the days when you were only getting calls from scammers.

 

 

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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.

*A Note About the Government Shutdown

Due to the ongoing partial government shutdown, the online Public Inspection File database is not currently accessible.  As a result, the filing date for stations required to file their Annual EEO Public File Report has been extended until after the Commission reopens.  However, the Commission still requires stations to “maintain” these documents until they can be uploaded.  As we discussed in a recent CommlawCenter article, stations should therefore proceed as usual in the timely creation of these materials and upload them once the Public Inspection File database becomes available.  

Stations that are required to upload an EEO Mid-Term Report can still do so if they choose.  This is because the FCC has left the LMS filing system operating for incentive auction-related filings (which are excluded from the shutdown).  However, the Commission has made clear that, other than auction filings and those necessary for the protection of life and property, filings at the FCC during shutdown “will not be reviewed or processed and will be considered accepted on the day following the day of return to normal operations.”

February 1, 2019 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 also electronically file an EEO Mid-Term Report on FCC Form 397 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, (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, February 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 February 1, 2018 through January 31, 2019.  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, 2018 through January 21, 2019 for this year’s report (cutting it off up to ten days prior to January 31, 2019), then next year, the Nonexempt SEU must use a period beginning January 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. Continue reading →

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Sometimes it seems the world really is out to get you.

Being in a highly regulated business, broadcasters are quite dedicated to meeting regulatory obligations.  More specifically, being subject to fines (or worse) for every shortcoming makes the average broadcaster not just diligent, but justifiably paranoid in ensuring that every regulatory requirement has been met and checked off the list.  Events like government shutdowns therefore give broadcasters particular angst as they throw the normal processes and routines for compliance into disarray.

We discussed this in a post last week, which parsed obligations that must be met even while the FCC is closed from those for which a broadcaster has no option but to wait until the FCC reopens.  As detailed in that post, the distinction is not always a commonsense one.  For example, we noted that stations must still prepare various quarterly reports for placement in the Public Inspection File by January 10th, but that those reports cannot actually be uploaded to the online Public File until the FCC reopens, as the FCC took its Public Inspection File database offline when it closed on January 3rd, making it impossible for stations to upload those reports.

I therefore listened with interest when a broadcaster indicated last night that after four days of being dark, the FCC’s online Public Inspection File database was suddenly working again.  That seemed unlikely, and sure enough, when I tried to access the database, I was redirected to a page announcing the FCC’s closure during the federal shutdown.  When I noted this, the broadcaster responded that not only was he successfully uploading his Public File documents, but that the “ticker” on the FCC’s website listing recent Public File uploads indicated stations from all over the country were uploading reports at a frantic pace.

I asked for the link he was using, and it took me to what appeared to be the opening page of the FCC’s shuttered online Public File database, including the familiar “Sign in” link and recent uploads ticker on the right side of the screen.  I could successfully sign in on behalf of clients, and on my first visit, the ticker indicated that eight different stations had filed more than a dozen documents in just the past six minutes.  Each time I went back to the page, the ticker had updated, listing more recent uploads by a totally different batch of stations.  Since the ticker only shows the most recent dozen or so uploads, it was impossible to know how many stations had recently uploaded documents to the site, but I counted more than 50 different radio and TV call signs in an hour.

The website looked like the online Public File database in every respect.  It included Public Files for, as best as I could tell, every station in the country that has a Public File, and most convincingly of all, listed all of the uploaded Public File documents for each and every station.  In other words, it did indeed look like the FCC had restored access to the Public File database or that stations had found a backdoor way into it.

Upon closer inspection, however, it took on the appearance of a movie set—all facades without anything behind them.  It listed the various documents in a station’s Public File, including the time of uploading and the precise file size, but clicking on those documents revealed only dead links.  Also suspicious was that it was only up-to-date through September 2018.  The Third Quarter filings stations would have made by October 10th, 2018 were missing across the board with one exception—those stations that had uploaded them in the past few days after apparently spotting them as being missing from the database.  Indeed, the only links to documents that actually took you to a document seemed to be those uploaded in the past few days; older document listings were just dead links.

Given the eerie accuracy of these station Public Files and their odd shortcomings, it seemed clear that they represented a snapshot of stations’ Public Files as they existed in the latter part of September 2018—doppelgangers of stations’ real Public Files, but definitely not the genuine article.  When I asked where the broadcaster had obtained the link, I was told “Google”, and sure enough, when you search for “public inspection file” on Google, it is the first search result listed.  Those interested can find the site here.  Just don’t waste your time uploading any documents to it.

The reason reveals itself when you take a closer look at the link address: https://publicfiles-demo.fcc.gov.  The good news is that it is an actual FCC website and not a phishing website designed to steal station passwords, etc.  The bad news is that it is, as the web address suggests, just a demo site created by the FCC to demonstrate how to use the online Public File database (which all broadcast stations are now required to use).  Its demo nature was confirmed when I found a reference to it in a 2016 post we published here on CommLawCenter.  The FCC launched it on May 12, 2016 for training purposes when it moved TV stations and the first group of radio stations to its new online Public File database.

It is pretty much identical to the real online Public File database in every way, but there is one big difference—the demo site is still functioning, while trying to go to the real database takes you instead to an FCC shutdown notice.

Curiously, there is no hint anywhere on the demo webpage that it is just a demo and not the real online Public File database.  It being a demo does, however, explain why the FCC didn’t bother shutting it down when it shut down many of its other databases.  Unfortunately, when the real database became unavailable, many broadcasters came upon this site through Google or other search engines, and either failed to notice it wasn’t the real Public File database, or thought they had found a way around the FCC’s closed front door to the database.

While it is certainly unfortunate that a lot of stations appear to have wasted a lot of time uploading their Public File documents to a faux database, the far more insidious impact is that these stations have now been misled into believing they have successfully completed their uploads.  As a result, when the FCC eventually reopens and the real online Public File database is made available, these stations won’t know to upload their documents to the correct database, leaving them vulnerable to license renewal challenges and Public File fines (the FCC’s base fine for a Public Inspection File violation is $10,000).  If you hear from any broadcasters claiming that they were able to successfully upload their quarterly Public File reports while the FCC was closed, please disabuse them of that notion.  Let them know that they could not have, and that they need to upload those documents to the correct database no later than the day after the day the FCC reopens.

But that isn’t the end of this already stranger-than-fiction story.  At the beginning of December 2018, the FCC sent emails to over 1,000 radio stations indicating that the FCC had determined from a review of its online Public File database that those stations had failed to populate their online Public Files.  Those emails asked the stations to acknowledge receipt and to respond by providing the FCC with a date by which each station would “complete the upload of all required information.”

At the time the emails went out, I heard from a number of stations that were totally baffled by the FCC’s assertion that they had not uploaded everything, as they were sure they had.  In addition, it seemed incredibly unlikely that such a large number of radio stations could have failed to migrate their Public Files to the FCC’s online database.  It represented a real unsolved mystery, and many of us were intrigued as to what could possibly explain it when the requirement to move radio Public Files online had been so heavily publicized (for example, just here on CommLawCenter, you’ll find it discussed here, here, here, here, here, and here).

Now, however, I’m thinking we may have solved this mystery.  It is indeed possible for the FCC’s assertion that a large number of radio stations have empty online Public Files, and the assertion from many of those stations that they have already uploaded their Public Files, to both be true.  Ironically, in creating the demo site, the FCC was attempting to help broadcasters, but in leaving it up, the FCC has unwittingly set a trap for stations that continues to swallow innocent victims hourly.  I’m betting that a lot of those missing Public Files can be found at the FCC’s online Public File demo site https://publicfiles-demo.fcc.gov—the Bermuda Triangle of online Public File uploads.

[Postscript: In response to the publication of this post, the FCC has taken the demo database offline, preventing more stations from falling into this trap.  While that is obviously a good result overall, it unfortunately means that: (1) communications counsel now cannot determine whether stations they represent mistakenly uploaded to the demo site instead of the real one in order to notify those clients, and (2) stations that mistakenly uploaded their entire Public File to the demo site long before the FCC shutdown have lost the ability to access it in order to demonstrate to the FCC that they made a good faith effort to upload their Public File (albeit to the wrong database).  As a result, stations will need to talk to their employees handling Public File matters and ascertain directly from them what they have uploaded and to where to ensure that, as soon as the FCC reopens, the appropriate Public File documents are uploaded to the correct FCC database.] 

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Proving once again that nature abhors a vacuum, we’ve just learned of another bit of fallout for broadcasters from the federal shutdown—scammers are apparently calling broadcast stations pretending to be calling on behalf of the FCC and seeking to collect “FCC fees” over the telephone.  The first of these calls that we heard about occurred within six hours of the FCC shutting down.

With the FCC largely closed at this point, these callers are likely assuming that it will be very difficult for a broadcaster to ascertain the veracity of a fee claim or to confirm whether a caller is actually connected to the FCC.  As detailed in our earlier post, however, the FCC, along with the rest of the federal government, is operating only at a bare-bones “protecting life and property” level at this point.  While it could certainly use the money given the current absence of congressional funding, a closed FCC is not seeking to collect it from broadcasters, and certainly not over the telephone.

So if you get a call claiming to be on behalf of the FCC and demanding money, be skeptical.  Be even more skeptical if the caller wants you to pay with gift cards—the preferred payment method of phone scammers.  The FCC is really more of a check and credit card operation, and has very complex systems for processing those forms of payment.  It will not allow you to pay your regulatory fees with gift cards, and certainly doesn’t do it over the telephone.

If you do get such a call, one place you can report it to is the Federal Trade Commission, but you may have to wait until the federal shutdown is over, as processing complaints regarding phone scammers is one of the many FTC activities that have ceased due to the government shutdown.

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Broadcasters were spared some of the uncertainty related to the December 22, 2018 government shutdown because the FCC was able to independently fund its operations until January 3, 2019.  Yesterday, those funds ran out, and under the Antideficiency Act, FCC employees are prohibited from continuing to work until funds are available to pay them.  While the Antideficiency Act doesn’t directly affect the FCC’s filing and other databases (being automated, they don’t get paid as FCC employees), some of those systems are incapable of operating without regular human intervention, and some can operate without human intervention only until they “break”, at which point the Antideficiency Act prohibits anyone from maintaining or repairing them.

As a result, it wasn’t clear until the past two days which systems might remain online, and which systems would be preemptively taken down to avoid “breakage”.  The FCC released a Public Notice on Wednesday clarifying that the last normal day of business prior to the shutdown was January 2, 2019 (January 3 being only a half-day), so any FCC filings due on January 3rd or thereafter are now due on the day after the day the Commission eventually reopens.

The Public Notice also listed certain Commission electronic filing and database systems that would remain operational during the shutdown, and certain systems that would be taken offline.  Absent from either list was the FCC’s online Public Inspection File database, and conversations with FCC staff minutes before they were required to leave the building indicated that even they didn’t know for sure whether the public file database would continue operating during the shutdown.

The answer became clear late yesterday afternoon when the online Public Inspection File database ceased to function, redirecting stations trying to upload documents and any members of the public wishing to view them to a webpage describing the shutdown.  The public’s inability to access the online Public File triggers the obligation on the part of broadcasters and cable/DBS systems to make available to the public a back-up copy of the political broadcasting portion of their Public Inspection File (generally referred to as the “Political File”).  At the time the Commission created that obligation, it said stations could keep the Political File either electronically or in paper and make it available either at their main studio or on their website.

With the elimination of the Main Studio rule, however, that obligation was further modified such that Political File documents that are not available via the Commission’s online database must now be made available at an “accessible location” in the station’s community of license during normal business hours.  An accessible location would include a station office, the local library, the office of another broadcaster, or any other business.  Broadcasters are not required to make any other portion of their Public Inspection File beyond the Political File available during the federal shutdown.

Moving beyond the Political File “backup” obligation, the shutdown of the online Public Inspection File database also means that broadcasters cannot upload their Quarterly Issues/Programs List or Children’s Commercial Television Limits compliance documents that would otherwise be due in the online Public Inspection File on January 10, 2019.   Accordingly, while the upload of Public File documents is not considered an FCC “filing”, the date to upload those documents has effectively been extended until after the Commission reopens.

However, the inability to upload materials to the Public File does not relieve stations of their recordkeeping obligations.  As stated in a 2016 Public File Report and Order by the FCC, “[i]f the Commission’s online file becomes temporarily inaccessible for the uploading of new documents, [the FCC] will require entities to maintain those documents and upload them to the file once it is available again for upload.”  These materials do not need to be made available to the public during the shutdown, but stations should proceed as usual in the creation of their January 10th documentation and be prepared to upload those materials once the online Public Inspection File database becomes accessible.

Note also that television stations, while not obligated to, can still file their Children’s Television Programming Reports (that would normally be due on January 10th) with the FCC.  This is because the FCC has left the LMS filing system up and running for incentive auction-related filings (which are excluded from the shutdown because auction-related activities at the FCC are separately funded—see below).  However, the Commission’s Public Notice is clear that, other than auction filings and those necessary for the protection of life and property, filings at the FCC during the lapse in government funding “will not be reviewed or processed and will be considered accepted on the day following the day of return to normal operations.”

Finally, be aware that because the spectrum auction operations of the FCC remain fully funded, they are NOT affected by the government shutdown.  FCC staff will continue to be available to answer questions, grant requests for Special Temporary Authority and process requests for reimbursement from television broadcasters that are transitioning to another channel as a result of the broadcast incentive auction and repack.  Because those FCC operations continue, the FCC left its LMS database up and running, which means that transitioning television stations CAN and MUST make filings related to their transition.  This includes the Quarterly Transition Progress Report due on January 10, which must still be filed by that date.  For stations assigned to Phase 2 of the transition, the obligation to notify cable and satellite TV distributors 90 days prior to a station’s transition to a new channel, and the deadline for filing with the FCC a request for any extension of time to transition, remain unchanged.  In that regard, FCC staff will still be available to provide Phase 2 transition stations with the mailing addresses of the multichannel video programming distributors to which the notices must be sent.

So if upon hearing of the FCC shutdown you thought you could extend that holiday vacation, think again.  Your regulatory obligations didn’t go away, they just became more complicated to fulfill.

 

 

 

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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 January 10, 2019, reflecting programming aired during the months of October, November, and December 2018.

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 online 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 online public inspection file.  However, each station should confirm that has occurred to ensure that its online 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.

Commercial Television Stations

Commercial Limitations

The FCC’s rules require that stations limit the amount of “commercial matter” appearing in children’s programs to 12 minutes per clock hour on weekdays and 10.5 minutes per clock hour on the weekend.  In addition to commercial spots, website addresses displayed during children’s programming and promotional material must comply with a four-part test or they will be considered “commercial matter” and counted against the commercial time limits.  In addition, the content of some websites whose addresses are displayed during programming or promotional material are subject to host-selling limitations.  Program promos also qualify as “commercial matter” unless they promote (i) children’s educational/informational programming, or (ii) other age-appropriate programming appearing on the same channel.  Licensees must prepare supporting documents to demonstrate compliance with these limits on a quarterly basis. 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 January 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 October, November, and December 2018.

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 January 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 October 1 through December 31, 2018.  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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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by January 10, 2019, reflecting information for the months of October, November, and December 2018.

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 January 10, 2019, covering the period from October 1, 2018 through December 31, 2018.

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 they have 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 Quarterly List.  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 noted that some licensees may choose to concentrate on fewer than five issues if they cover them in considerable depth.  Conversely, the FCC has noted that other broadcasters may address more than ten issues in a given quarter, due perhaps to program length, format, etc.
  • The Quarterly Lists 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.

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As 2018 moves into the rear view mirror, 2019 promises to be a consequential year for broadcasters.  In accordance with a Pillsbury holiday tradition that goes back farther than any of us can remember, earlier this month we published our annual calendar of upcoming regulatory deadlines for broadcasters–a compendium of the currently “known knowns” of 2019 (this year’s edition being innovatively titled, for the first time ever, the 2019 Broadcasters’ Calendar).  It’s chock-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.

Of course, 2019 will also bring some currently “known unknowns” into focus, with one of the biggest being the FCC’s recently-launched 2018 Quadrennial Review of its media ownership rules–a proceeding that could well alter the broadcast landscape when it reaches completion.

But as broadcasters look ahead to 2019, pondering both the knowns and unknowns of the coming year, they can at least recount with the confidence of hindsight what rule changes 2018 dropped into their regulatory stocking, right?  Perhaps not.  In a year when deregulatory changes were announced at a steady pace, some broadcasters have become confused as to whether a particular rule change was just proposed, voted on, or has actually gone into effect.

So as we prepare for 2019, let’s take a quick refresher on the changes to the FCC’s Rules 2018 brought, and what’s still to come in 2019:

  • Myth: In 2018, the FCC eliminated the requirement that stations file copies of contracts like TV network affiliations, articles of incorporation, bylaws, options, etc. with the FCC.
  • Fact: While the FCC voted in 2018 to eliminate the paper filing of certain contracts, the process for implementing that change has not yet been completed.  As a result, the rule remains in effect, and stations must continue to file such contracts in paper form at the FCC until January 22, 2019.  Also, while paper copies of these contracts need no longer be filed after that date, stations must still either upload them to their online public file or upload a list of such contracts to the online public file and promptly make copies available to those requesting them.  Check out our CommLawCenter article on this topic.
  • Myth: Broadcasters have been relieved of the need to post a copy of their license at their transmission facility.
  • Fact: Not yet! Even though the FCC voted to eliminate the posting requirement in December 2018, the rule change won’t go into effect until after it has been published in the Federal Register.  As a result, this “2018 rule change” also won’t go into effect until sometime in 2019.
  • Myth: Since all stations were required to file their biennial ownership reports in 2018, that means no more biennial ownership reports until 2020, right?
  • Fact: Unfortunately not the case.  The biennial ownership reports filed in 2018 reported station ownership as of October 1, 2017.  That filing deadline was extended from December 1, 2017 to March 2, 2018 due to the merging of the filing deadlines for all commercial and noncommercial stations, as well as delays in bringing the FCC’s new ownership report filing system online.  As a result, the next batch of biennial ownership reports are due December 1, 2019, and must report station ownership as it exists on October 1, 2019.
  • Myth: In 2019, the FCC will reimburse LPTV, TV translator, and FM broadcast stations for all their costs incurred as a result of the TV spectrum repack.
  • Fact: A partial Yes. In March 2018, Congress passed legislation allocating more repack reimbursement funds and expanding the list of entities eligible for reimbursement to include these types of facilities.  However, in its August Notice of Proposed Rulemaking, the FCC noted that Congress had limiting eligibility for LPTV stations to those that were licensed and operating for nine of the twelve months prior to April 13, 2017.  The FCC also proposed reimbursing FM radio stations on a sliding scale based on the length of their time off-air, with only those stations off for more than thirty days entitled to 100% reimbursement.  All in all, certain stations may be on their way to receiving reimbursements, but who will be reimbursed and for how much (and in what order of priority) remains to be determined in 2019.  For more, check out our CommLawCenter article on this topic.
  • Myth: In 2019, CommLawCenter will be the place to go for up-to-date news and analysis in the world of communications law and business.
  • Fact: Actually, this one is true!  Best wishes to all for a New Year that holds few unpleasant regulatory surprises.  Keeping the 2019 Broadcasters’ Calendar close at hand will go a long way in achieving that result.
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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, 2018 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 electronically file an EEO Mid-Term Report on FCC Form 397 by December 3 (because December 1 falls on a Saturday this year, the Form 397 filing deadline rolls to the next business day).

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, December 1, 2018 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 December 1, 2017 through November 30, 2018.  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 day used in the immediately preceding Report.  For example, if the Nonexempt SEU uses the period December 1, 2017 through November 20, 2018 for this year’s report (cutting it off up to ten days prior to November 30, 2018), then next year, the Nonexempt SEU must use a period beginning November 21, 2018 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. Continue reading →