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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.

October 1, 2018 is the deadline for broadcast stations licensed to communities in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, and the Virgin Islands 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 October 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, October 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 October 1, 2017 through September 30, 2018.  However, Nonexempt SEUs may “cut off” the reporting period up to ten days before September 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 October 1, 2017 through September 20, 2018 for this year’s report (cutting it off up to ten days prior to September 30, 2018), then next year, the Nonexempt SEU must use a period beginning September 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 →

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The Federal Emergency Management Agency (FEMA), in coordination with the FCC, announced this morning that the National Emergency Alert System (EAS) and Wireless Emergency Alerts (WEA) tests scheduled for this Thursday, September 20, have been postponed due to “ongoing response efforts to Hurricane Florence.”

Instead, the tests will be conducted on the previously announced backup date of October 3.  The Wireless Emergency Alerts test will commence at 2:18 p.m. EDT and the EAS test will commence at 2:20 p.m. EDT on that date.  FEMA has indicated that the purpose of the tests is to “assess the operational readiness of the infrastructure for distribution of a national message and determine whether improvements are needed.”

As we previously discussed on CommLawCenter, in preparation for the national test, all EAS Participants were required to file their Form 1 with the FCC by August 27, 2018.  They were then to file their Form 2 (day of test data) on September 20, 2018, with the final test report to be filed on Form 3 by November 5, 2018.

The Form 2 (and likely the Form 3) deadline will now shift to align with the new October 3 test date.  As of the publication of this post, the FCC had not yet announced new filing deadlines, but the Form 2 will likely be due on October 3, 2018, and since the FCC’s Rules require that EAS Participants “are required to file detailed post-test data 45 days following a nationwide EAS test,” the Form 3 deadline will most likely move to November 19, 2018.  Those are just predictions, however, and broadcasters and other EAS Participants should watch for a formal announcement from the FCC with the new filing deadlines.

[Editor’s Note: Subsequent to publication, the FCC did in fact release a Public Notice confirming the October 3 deadline for Form 2, and the November 19 deadline for Form 3.]

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Whether tracking a developing storm so the public can prepare, or disseminating evacuation orders and alerts, broadcasters continue to serve as the bedrock of the nation’s warning system in emergencies.  As Hurricane Florence approaches the East Coast, TV and radio stations are hurrying to make sure they are in position to warn and inform their audiences of new developments.

Continuing operations during a hurricane is tough enough with employees sleeping in the studio while wondering if their house is still standing, but TV stations are also required by the FCC to ensure that all viewers, regardless of hearing or vision challenges, are able to receive emergency information being relayed.  As a result, emergency information presented on-air aurally must also be made available visually, and emergency information presented visually must also be made available aurally.  In past disasters, the FCC has proposed fines of up to $24,000 ($8,000 per “incident”) for TV stations that effectively said “run for shelter” but didn’t air a crawl or other graphic at that time conveying the same information.

To help television stations in this week’s storm path meet their obligations, Pillsbury today published an updated edition of Keep Calm and Broadcast On: A Guide for Television Stations on Airing Captions and Audible Crawls in an Emergency.  Stations whose communities are near the path of Hurricane Florence should review it, both as a refresher on what they will need to do in the next few days, and on how best to do it.

While broadcasters are working to help their communities prepare for the storm, the FCC is also trying to do its part to help broadcasters.  Earlier today, the FCC released a Public Notice providing emergency contact info for various divisions of the FCC relevant to an emergency, as well as procedures for making emergency requests for Special Temporary Authority to operate at variance from normal license parameters where needed due to equipment damage, etc.  The Public Notice also states that licensees requiring emergency assistance or STAs outside of business hours can “call the FCC’s Operations Center, which is open 24 hours a day, 7 days a week, at (202) 418-1122 or by e-mail at FCCOPCenter@fcc.gov.”

State governments are doing their part as well—nearly a dozen states have adopted laws granting broadcast personnel First Responder/First Informer status.  During earlier hurricanes in Florida, dedicated broadcasters stayed at their stations rather than protect their homes, only to find their transmissions halted when the station generator ran out of fuel and government officials prevented fuel trucks from entering the disaster area to resupply stations.  First Responder/First Informer laws allow broadcasters access to crisis areas, both for reporting on a disaster and maintaining station operations.  This includes granting priority to broadcasters for scarce fuel supplies (and emergency access for vehicles transporting fuel to stations) to keep their stations’ emergency generators—and the transmitters they power—running during emergencies.

Recognizing the limitations of a state-by-state approach, in March of this year, Congress granted broadcasters First Informer status in federal disaster areas throughout the nation.  Hurricane Florence will serve as one of the first tests of broadcasters’ new federal First Informer status.

While the last decade has brought progress in making communications infrastructure more resilient in emergencies, cable and Internet service is often disrupted in disasters, and cell phone networks, where they don’t fail outright, become overwhelmed by increased usage during a disaster.  Unlike communications infrastructure that requires wired connections over a broad area, or numerous short-range towers and repeaters, broadcast stations just need an upright tower or tall building for their antenna, fuel for their generator, and access for their employees.  That resilience in extreme conditions—and the ubiquity of radios and TVs—is critical in emergencies.

It’s time for broadcasters to once again weather the storm, and to help their communities survive it.

 

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Many thought the broadcast incentive auction was the most complex task ever undertaken by the FCC, but the ten-phase spectrum repack following the auction is running a close second.  The TV stations being repacked in Phase 1 are serving as the pioneers of the repack process, and since they must complete the transition to their post-repack channel by November 30, 2018, the applicable deadlines are coming at a fast and furious pace.

The process of repacking these Phase 1 stations has led to lots of questions, and in an effort to answer at least some of them, the FCC released a Public Notice this week discussing a variety of details for stations completing the repack.  Since Phase 1 will be the template for all subsequent phases, all stations being repacked should review the Public Notice with an eye toward discerning their obligations and timely meeting the various milestones.

The Public Notice also reminds transitioning stations that they can, where necessary, seek authority from the FCC to go silent, operate with alternate facilities or reduced power, remain on their pre-transition channels for a period of time, or commence early operations on their post-transition channels.  All of these require filing for Special Temporary Authority and obtaining Commission consent in advance.  While such flexibility will be useful for stations facing unusual repack obstacles, such stations must be sure to schedule adequate time to request and secure Special Temporary Authority from the Commission, lest they find themselves in the uncomfortable position of being forced to violate either the FCC’s repack requirements or the FCC’s operating rules (or being forced off the air entirely).

While the Public Notice provides various ground rules for stations, it also provides a lot of densely packed information on the procedures stations must follow during the repack.  To assist stations, we have consolidated that information below in a concise format that will hopefully make it easier to follow.  While the dates will obviously be different for stations assigned to other phases of the repack, the information below provides a good overview of the path that all repacked stations must navigate during their own repack phase.  Note that the information below assumes that a station will not terminate operations on its pre-transition channel until the last day of the phase (November 30, in the case of Phase 1 stations).  Stations transitioning before that time will need to adjust the other various dates accordingly. 

The Public Notice makes clear that between September 14, 2018 and November 30, 2018, Phase 1 stations may test their equipment/signal and commence operating on their new channel pursuant to program test authority.  The testing phase, however, is strictly for testing, and does not permit stations to simulcast content on both their pre-transition and post-transition channels.  Broadcasters should be aware that some stations’ construction permits do not grant them automatic program test authority (e.g., stations transitioning to Channel 14), so those stations must build extra time into their schedules to request and obtain such authority.

Finally, the Public Notice indicates that linked stations cannot simply test their own equipment and commence operations on their post-transition channel as they choose.  They must coordinate with the other stations in their phase with which they are linked by interference concerns.

The schedule for Phase 1 stations is as follows:

September 1, 2018 Last day to provide notice of channel change to MVPDs.  Any stations granted additional time or flexibility to transition by the FCC must provide MVPDs with this notice 90 days prior to commencing operation on their post-transition channel.  Stations should also review their construction permits for individual notice requirements.  For example, a station must provide notice of its channel change to health care facilities in its service area an “ample time before commencing operation” on its new channel, and some stations may be required to give notice to nearby AM stations, as discussed in more detail in the Public Notice.
September 4, 2018 Last day to request 180-day Construction Permit Extension on Form 2100, Schedule 337.  Stations may request one extension of up to 180 days in which to complete construction of their new facility.  An extension application must include an exhibit demonstrating circumstances that, despite all reasonable efforts by the station, were either unforeseeable or beyond the station’s control.
September 14, 2018 Testing Period begins.
September 21, 2018 File Transition Progress Report on Form 2100, Schedule 387.  Transitioning stations must file a transition progress report ten weeks before the end of their assigned construction deadline.
October 1, 2018 Deadline for channel-sharing repacked stations to file a minor modification application.  Applications must specify the host’s post-auction channel and the parameters of the sharee’s facility.
October 10, 2018 File Quarterly Transition Progress Report on Form 2100, Schedule 387.  Transitioning stations must file a transition progress report on the tenth day following each calendar quarter, providing information regarding the steps taken during the previous quarter to construct facilities for its new channel and end operations on its current channel.  This obligation ceases when a station has completed its transition and has filed a final report with the FCC indicating that fact.
November 1, 2018 Last day to commence consumer notifications of channel change.  Any stations granted additional time or flexibility by the FCC must provide viewers with this notice 30 days prior to commencing operations on their post-transition channel.
November 30, 2018 Last day to operate on pre-auction channel absent FCC consent.
December 5, 2018 Last day to file “Pre-Auction Termination” Transition Progress Report on Form 2100, Schedule 387.  Any stations that terminate operations on their pre-auction channel earlier than November 30 must file this report within 5 days of terminating operations on their pre-auction channel.
December 10, 2018 Last day to file “Construction Completion” Transition Progress Report on Form 2100, Schedule 387.  Any stations that complete construction earlier (including before September 14, 2018) must file this report within 10 days of completion of all construction-related work.
December 10, 2018 Last day to file License to Cover Application on FCC Form 2100, Schedule B (full power) or Schedule F (Class A).  Any stations that commence program test operations earlier than November 30 must file this application within 10 days of commencing program test operations.
December 30, 2018 Last day to file certification of compliance with viewer notification obligations.  Any stations that complete their transitions earlier than November 30 must place these certifications in the public file within 30 days of completing the transition.

Considering the variety of notices, reports, applications, and certifications involved in the repack process, and how tightly interwoven the associated deadlines are, stations should not dally in finalizing their repack plans.  One missed deadline can quickly cascade into multiple missed deadlines, severely undercutting a station’s prospects for achieving a successful repack.

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The FCC and FEMA have established September 20, 2018 as the date for the next nationwide test of the Emergency Alert System (EAS).  The nationwide test is designed to study the effectiveness of the EAS and to monitor the performance of EAS participants.  The Wireless Emergency Alert (WEA) system will be tested immediately prior to the test of the EAS.  The FCC and FEMA have designated October 3, 2018 as the back-up date should circumstances prevent testing on September 20.

While the test itself is a month away, all EAS participants must file their Form One with the FCC by August 27, 2018 in preparation for the test.  To make this filing, EAS participants must log in to the EAS Test Reporting System using an FCC Username Account.  Those filers who do not already have an account can register for one in the FCC’s updated CORES system.  Once a username account is set up, it will need to be associated with a licensee’s FCC Registration Number (FRN) before the user can draft or file forms for that licensee’s station(s).  Many filers struggled to successfully register in past years, but those who participated in the annual test in 2017 should already be registered.

Form One requests information about a station’s transmitter location, EAS equipment, and the stations it is assigned to monitor.  For most EAS participants, this information will prefill from last year’s Form One (so be particularly careful reviewing it if your monitoring assignments, equipment, or something else has changed since last year).  Stations will also see an instruction to file a separate Form One for each encoder, decoder or combination unit.  Most broadcasters will likely have a combination unit and therefore only need to file a single Form One.  However, there may be situations where multiple filings are needed, for example where a cluster of co-owned radio stations share a studio but have to employ separate encoders and decoders to deal with stations in the group having different monitoring assignments.

As in the past, after the test is completed, participants must report the results of the test by filing Form Two, which requests abbreviated “day of test” data, and then Form Three, which collects more detailed data about the station’s performance.

Filing Deadlines:

  • Form One must be filed on or before August 27, 2018.
  • Form Two (“day of test” data) must be filed by 11:59 PM (EDT) on September 20, 2018.
  • Form Three must be filed on or before November 5, 2018.

Additional Requirements

To prepare for the test, the FCC recommends that EAS participants review the EAS Operating Handbook and be sure that it is available at normal duty positions or EAS equipment locations, and is otherwise readily accessible to employees responsible for managing EAS actions.

Participants should also use this time to ensure their facilities are in a state of “operational readiness.”  Operators should confirm that their EAS equipment has any necessary software and firmware upgrades and that it is capable of receiving the various test codes.  If not automatic, operators must also manually set their EAS equipment to the “official time” as established by the National Institute of Standards and Technology.  Each of these issues has been a significant cause of stations being unable to receive or transmit past tests.

Finally, the person filing for each station should verify that they have the right username, password, and licensee FRN in advance of the filing deadline.  Experience from the the past two national tests revealed that many stations were caught off guard not by the test itself, but by their inability to access the ETRS to make required filings, often because of confusion surrounding how to log in.

Summer break notwithstanding, this is one test that broadcasters should study for ahead of time.

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This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider that provided service to at least one viewer outside the station’s local service area during 2017. These stations may be eligible to file royalty claims for compensation with the United States Copyright Royalty Board. These filings are due by July 31, 2018.

Under the federal Copyright Act, cable systems and satellite operators must pay license royalties to carry distant TV signals on their systems. Ultimately, the Copyright Royalty Board divides the royalties among those copyright owners who claim shares of the royalty fund. Stations that do not file claims by the deadline will not be able to collect royalties for carriage of their signals during 2017.

In order to file a cable royalty claim, a television station must have aired locally-produced programming of its own and had its signal carried outside of its local service area by at least one cable system in 2017. Television stations with locally-produced programming whose signals were delivered to subscribers located outside the station’s Designated Market Area in 2017 by a satellite provider are also eligible to file royalty claims. A station’s distant signal status should be evaluated and confirmed by communications counsel.

Both the cable and satellite claim forms may be filed electronically or in paper form. Paper forms may be downloaded from https://www.crb.gov/cable; however, with the recent introduction of the Copyright Royalty Board’s new online filing system, eCRB, claimants are strongly encouraged to file claims online. Prior to filing electronically, claimants or their authorized representatives must register for an eCRB account at https://app.crb.gov. To submit claims, stations are required to supply the name and address for the filer and for the copyright owner, and must provide a general statement as to the nature of the copyrighted work (e.g., local news, sports broadcasts, specials, or other station-produced programming). Claimants should keep copies of all submissions and confirmations of delivery, including certified mail receipts.

Those filing paper forms should be aware that detailed rules as to how the claims must be addressed and delivered apply. Claims that are hand-delivered by a local Washington, D.C. commercial courier must be delivered between 8:30 am and 5:30 pm (those hand-delivered by a private party must arrive by 5:00 pm). Claims may be sent by certified mail if they are properly addressed, postmarked by July 31, 2018, and include sufficient postage. Claims filed via eCRB must be submitted by 11:59 pm (EDT) on July 31. The Copyright Royalty Board will reject any claim filed prior to July 1, 2018 or after the deadline. Overnight delivery services such as Federal Express cannot be used. Stations filing paper claims should verify the proper procedures with communications counsel.

Please contact any of the group’s attorneys for assistance in determining whether your station qualifies to make a claim and in filing the claim itself.

A PDF version of this article can be found here.

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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.

August 1 is the deadline for broadcast stations licensed to communities in California, Illinois, North Carolina, South Carolina, and Wisconsin 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 August 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, August 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 August 1, 2017 through July 31, 2018. However, Nonexempt SEUs may “cut off” the reporting period up to ten days before July 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 August 1, 2017 through July 21, 2018 for this year’s report (cutting it off up to ten days prior to July 31, 2018), then next year, the Nonexempt SEU must use a period beginning July 22, 2018 for its report. 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 July 10, 2018. 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 April, May, and June 2018. Continue reading →

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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 July 10, 2018, reflecting programming aired during the months of April, May, and June 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.

For commercial stations, proof of compliance with these commercial limitations must be placed in the online public inspection file by the tenth day of the calendar quarter following the quarter during which the commercials were aired. Consequently, this proof of compliance should be placed in your online public inspection file by July 10, 2018, covering programming aired during the months of April, May, and June 2018.

Documentation to show that the station has been complying with this requirement can be maintained in several different forms:

  • Stations may, but are not obligated to, keep program logs in order to comply with the commercial limits rules. If the logs are kept to satisfy the documentation requirement, they must be placed in the station’s public inspection file. The logs should be reviewed by responsible station officials to be sure they reflect compliance with both the numerical and content requirements contained in the rules.
  • Tapes of children’s programs will also satisfy the rules, provided they are placed in the station’s public inspection file and are available for viewing by those who visit the station to examine the public inspection file. The FCC has not addressed how this approach can be utilized since the advent of online public inspection files.
  • A station may create lists of the number of commercial minutes per hour aired during identified children’s programs. The lists should be reviewed on a routine basis by responsible station personnel to be sure they reflect compliance with both the numerical and content requirements contained in the rule.
  • The station and its network/syndicators may certify that as a standard practice, they format and air the identified children’s programs so as to comply with the statutory limit on commercial matter, and provide a detailed listing of any instances of noncompliance. Again, the certification should be reviewed on a routine basis by responsible station officials to ensure that it is accurate and that the station did not preempt programming or take other action that might affect the accuracy of the network/syndicator certification.
  • Regardless of the method a station uses to show compliance with the commercial limits, it must identify the specific programs that it believes are subject to the rules, and must list any instances of noncompliance. As noted above, commercial limits apply only to programs originally produced and broadcast primarily for an audience of children ages 12 and under.

Continue reading →

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The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by July 10, 2018, reflecting information for the months of April, May, and June 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 July 10, 2018, covering the period from April 1, 2018 through June 30, 2018.

  • 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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