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Indian E-music – The right mix of Indian Vibes… » General FCC


FCC Notes Violations for Two LPFM Operators for Spurious Emissions – Make Sure that Your Station is Transmitting Only Within Its Assigned Frequency

Delivered... David Oxenford | Scene | Fri 5 Mar 2021 5:45 pm

In two Notices of Violation issued on one day this week, an FCC Field Office cited Low Power FM operators for using transmission systems that, in addition to transmitting signals on their authorized channels, were also emitting signals on other channels that posed the potential for interference with other users on those other frequencies – sometimes not even broadcast frequencies.  In one case, the FCC noted that it was the FAA that reported the interference (the other notice released the same day is available here).

All broadcast transmissions have the potential for these spurious emissions on channels other than the ones for which a station is authorized, especially if a station is near other stations as frequencies can interact to produce these unintended emissions.  When constructing and operating any broadcast station, care should be given to ensure that these off-channel emissions are not of a signal strength beyond that permitted by the FCC rules as interference can occur and the FCC can potentially impose fines.

Neither of these Notices proposes a fine.  Instead, each asks for a response from the operator of the LPFM station and reserves the right to impose a fine depending on the response and any corrective action that is taken.  The FCC does not often publish these routine Notices of Violation in its Daily Digest of important actions from the Commission, as it did with these two notices.  This publication may be meant as a warning to all stations to ensure that their transmissions are within the permitted limits to avoid any enforcement action. So consider yourself warned!

This Week in Broadcast Regulation: February 20, 2021 to February 26, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 28 Feb 2021 4:01 pm

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • About 200 radio and television stations have been randomly selected to be audited by the FCC for their EEO compliance. The FCC audits about five percent of all broadcast stations each year, requesting documentation of an audited station’s hiring practices.  Stations on the audit list have until April 26 to upload their audit response to their public file.  (Audit Notice and Station List)  (Broadcast Law Blog)
    • A draft of a proposal for changing the broadcast EEO rules is circulating for review among the Commissioners. It appears that this proposal will seek public input on changes arrived at after the Commission’s review of the comments in its 2019 rulemaking that looked at how to make the EEO program more effective.  See our article here on that 2019 rulemaking proceeding.
  • The FCC’s Wireless Telecommunications Bureau reminded parties of their obligation to report in the Antenna Structure Registration system all transfers of ownership of registered towers. The Bureau notes that accurate records are necessary to protect aircraft navigation safety.  (Public Notice).  See our articles here and here about past FCC fines for companies who forgot to update this information.
  • Beginning March 26, broadcasters will no longer have the option of submitting checks or other “manual” payments for fees due for applications processed by the FCC’s Media Bureau. With the closure of Lockbox 979089, all application fee payments must be electronic.  (Federal Register)
  • At the FCC’s March 17’s FCC monthly Open Meeting, the Commissioners will consider an Emergency Alert System proposal for new rules to keep the public safe and informed during emergencies and disasters, including an inquiry as to whether it is possible to deliver emergency alerts through the internet, including over streaming services. (Meeting Details) (Emergency Alert NPRM and NOI)
  • Comments are due by March 29 on the FCC’s proposal to use a terrain-based methodology (such as Longley-Rice) for determining where white space devices can operate in the television band. Reply comments are due by April 26.  The Further Notice of Proposed Rulemaking was released in October.  (Federal Register)
  • Anna Eshoo (D-CA) and Jerry McNerney (D-CA) sent letters to the heads of the country’s biggest cable, satellite, and streaming platforms requesting information on how they intend to police misinformation disseminated by certain news networks they carry. As the inquiry targeted conservative networks and alleged misinformation about the presidential election and the pandemic, Republican objections, including statements from FCC Commissioners Carr and Simington, were swift.  It is likely that the Congressional letter, this week’s congressional hearing on misinformation in the media, and other efforts to address media bias will keep the First Amendment and the Fairness Doctrine in the news.  We wrote about these debates in the context of the Fairness Doctrine, here, and NAB CEO Gordon Smith wrote an op-ed about broadcasters’ dedication to reporting facts, here.
  • The FCC announced the winning bidders of the C-Band auction that raised more than $81 billion selling off spectrum made available, in part, by relocating broadcasters. This moves the FCC another step closer to releasing reimbursement payments to affected broadcasters.  (Public Notice) (Bidding Summary)
  • We published our monthly look at the upcoming regulatory dates and deadlines coming in March and early April. We covered comment periods in rulemaking proceedings, application filing deadlines, and other regulatory dates for the coming month.  Read our blog post, here.

 

March Regulatory Dates for Broadcasters: Copyright, White Spaces, and Zonecasting Comments; LPTV and Translator Analog-to-Digital Extension; Emergency Alerting for Streaming Companies, and More.

Delivered... David Oxenford | Scene | Thu 25 Feb 2021 6:24 pm

March brings springtime and, with it, a likely reprieve from the cold and extreme weather much of the country has been suffering through.  As noted below, though, March brings no reprieve from the routine regulatory dates and deadlines that fill a broadcaster’s calendar.

TV operators have until March 8 to file comments in the Copyright Office’s Notice of Inquiry looking to assess the impact of the abolition of the statutory copyright license that allowed satellite television operators to import distant network signals into TV markets where there were households arguably not being served by a local network affiliate (see our article here).

Reply comments are due by March 12 in the FCC’s FM booster zonecasting proceeding.  The proposal would allow FM boosters to originate limited amounts of programming (up to 5%—or 3 minutes—of any program hour) different from their primary stations (see our blog post, here, for more information).  Stations could target hyper-local content like local news, advertisements, and weather information to different parts of the station’s coverage area.  Several large radio broadcasters, the NAB, and FEMA filed comments opposing the proposal, noting, among other things, that zonecasting could lead to a fragmentation of the already-fragile local radio advertising market, that there are unresolved technical considerations, and that performance of the Emergency Alert System could be harmed in and around booster zones and that additional field testing is needed.  Other radio broadcasters filed in support of zonecasting, pointing to a station’s ability to target advertising that is not relevant to its entire market area and the ability to provide second-language programming to discrete areas of the market.  Comments submitted in the docket can be read, here.

March 13 is the deadline for low power TV and translator stations that need more time to build their digital facilities to request a final extension of up to 180 days.  By July 13, all low power TV and translator stations must stop transmitting in analog and switch to digital.  Stations granted an extension must still cease all analog transmissions by July 13 but will have additional time to build their digital facilities and begin digital transmission.  Applicants seeking an extension must demonstrate that failure to meet the construction deadline is due to circumstances that are either unforeseeable or beyond the licensee’s control and that the licensee has taken all reasonable steps to resolve the problem quickly.  These circumstances include delays in obtaining zoning or other approvals, inability to obtain equipment, or financial hardship.  More details are available in the Public Notice, here.

The FCC in early February announced an auction of 136 FM construction permits and four AM construction permits will begin on July 27, 2021.  Most of the construction permits to be auction were part of Auction 106 before it was postponed due to COVID.  Interested parties can submit comments and reply comments on the proposed bidding procedures by March 15 and March 22, respectively.  A Public Notice with the proposed bidding procedures and more information is available, here, and the list of available permits can be found, here.  The FCC also announced a freeze on applications and proposals that will affect any of the Auction 109 FM allotments.  More information on the freeze is here.

Comments in an FCC proceeding looking to decide whether Longley-Rice or similar terrain-based models of determining signal propagation are appropriate for determining where white-spaces devices can operate in the television band are due on March 29, with reply comments due by April 26.  See the Federal Register notice announcing those dates, here.  Companies seeking to make use of television white spaces devices believe that terrain-based propagation models will allow for more uses of these devices by more accurately predicting where television stations would receive interference, while broadcasters have been concerned about the accuracy and ease of calculation of coverage using these models.  Look for comments detailing these positions by the comment deadline.

The FCC will hold the next of its required monthly open meetings on March 17 with one item on the agenda of interest to TV and radio broadcasters.  The Commissioners will vote on an item that seeks to update the rules for emergency alerting through the Emergency Alert System and the Wireless Emergency Alert system.  The proposal seeks comment on introducing a new class of alerts called “National Alerts,” formalizing the process by which State Emergency Communications Committees review and develop EAS plans, encouraging government entities to self-report false alerts, and exploring the required repetition of alerts.  A companion Notice of Inquiry asks whether it is technically feasible for emergency alerts to be sent through the internet, especially over streaming services.  A public draft of the item and more information about the meeting can be found, here.  At the end of the month, or in early April, keep an eye on the FCC website for the items to be considered at the FCC’s April 22 Open Meeting.

Looking ahead to early next month, by April 1, radio stations in Texas and television stations in Indiana, Kentucky, and Tennessee must file their license renewal applications through the FCC’s Licensing and Management System (LMS).  Those stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396) and, if they are part of a station employment unit (a station or a group of commonly owned stations in the same market that share at least one employee) with 5 or more full-time employees, upload to their public file and post a link on their station website to their annual EEO report covering their hiring and employment outreach activities for the twelve months from April 1, 2020 to March 31, 2021.

TV and radio stations licensed to communities in Delaware and Pennsylvania that are part of an employment unit with 5 or more full-time employees also must upload to their public inspection file and post on their website their annual EEO report by April 1.

And April 10 will be the due date for Quarterly Issues Programs lists for the first quarter of 2021.  Remember that these documents are the only officially-mandated record of how your station served the public interest in its service area.  We wrote about the importance of these lists, here.

These are just some of the dates and deadlines coming up in March and early April.  Be sure to watch our blog, the FCC website, trade publications, and to be in contact with your communications counsel throughout the month for more dates applicable to your operations.

This Week in Regulation for Broadcasters: February 13, 2021 to February 19, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 21 Feb 2021 4:11 pm

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • Bidding in the auction of the C-Band has concluded. The FCC’s auction page for Auction 107 states that a formal public notice will be released shortly announcing the winners and setting deadlines for payment and other post-auction actions.  Broadcasters who elected lump-sum payments for clearing the C-Band spectrum sold in this auction will be paid at some point after the payments by the winning bidders are received, so the close of the auction moves the FCC one step closer to issuing those payments. (Auction Notice)
  • The FCC modified the market of a television station licensed to a community in the northern part of the New York City DMA to include communities in New Jersey which had previously been found to be outside its market (meaning local cable companies had no carriage obligations for the station). The prior decision had been based on the station’s lack of over-the-air coverage of the New Jersey communities. In this week’s decision, the Commission determined that the change in the signal contours of the station because of its post-incentive auction channel sharing agreement with a station licensed to New Jersey, giving it coverage of the communities, warranted a change in the cable carriage of the station in those communities.  The Commission noted that where channel-sharing arrangements change a station’s coverage, those changes can affect its cable carriage rights – positively or negatively.  (Media Bureau decision)
  • At her press conference following the February monthly meeting of the FCC (at which no broadcast matters were considered), Acting Chairwoman Rosenworcel stated that she had a “slate” of upcoming broadcast matters for the Commission to consider, but did not identify what those were. She also noted that, because of the current even representation of Democrats and Republicans on the Commission, major broadcast policy issues might not be addressed in the short term.
  • FCC Commissioner Nathan Simington used his maiden speech to highlight his priorities and guiding principles. Among those principles are a belief that Congress—not the FCC—should make telecom policy reforms, a commitment to pursuing a light regulatory touch, and a willingness to listen to all sides of an argument.  He noted that the video marketplace deserves a “fresh look” without offering more details.  (Simington Remarks)
  • There was much news this week about Facebook pulling all news articles from its service in Australia in response to legislation there that would make large digital media platforms pay for any news posted on their pages when that news came from established media companies, including broadcasters. There is already speculation that such a law could be introduced here, including Microsoft’s call for the US government to explore that possibility. (Microsoft blog)

This Week in Regulation for Broadcasters: February 6, 2021 to February 12, 2021

Delivered... David Oxenford | Scene | Sat 13 Feb 2021 10:34 pm

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC has started planning for its next AM/FM radio auction (Auction 109) scheduled to begin on July 27.  Four AM construction permits in the St. Louis area and 136 FM construction permits across the country will be available, with minimum opening bids ranging from $750 to $75,000.  Comments and reply comments on the proposed bidding procedures are due by March 15 and March 22, respectively.  More details about the auction and proposed bidding procedures can be found, here, and the list of permits to be auctioned is available, here.  For more on the filing process and issues to consider, see our article here.
    • In preparation for Auction 109, the FCC froze any FM filing that proposes to change one of the available allocations’ channel, class, community of license or reference coordinates.  (Public Notice)
  • The renewal applications for seven FCC authorizations in Alabama were designated for hearing to determine if their licensee possesses the basic character qualifications to hold an FCC license.  The licensee’s principal was convicted of six felonies and imprisoned for these crimes he committed while in the Alabama House of Representatives.  This decision serves as a good reminder that, under the FCC’s Character Qualifications Policy Statement, non-FCC misconduct can be grounds to deny FCC licenses and can even prevent a licensee from selling a station as FCC precedent is that someone without the requisite character should not be able to profit from the sale of a government-granted broadcast license (Order).  We took a closer look on our blog at some of the FCC’s considerations in enforcing this policy.
  • Many television stations took advantage of the FCC’s lifting of its freeze on television applications, including channel changes.  This week, numerous proposals for changes in the operating channel of television stations, most proposing changes from VHF to UHF channels better able to operate in a digital environment, were put out for public comment.  Notices of nine channel-change proposals filed immediately after the freeze was lifted were included on the FCC’s Daily Digest of its actions on Friday.
  • The FCC’s Audio Division denied the application of an FM station seeking a waiver of Commission rules to upgrade its facilities to those that would be allowed under the pending proposal to create a new class of FM stations – Class C4.  The letter denying the application said that a waiver for this station would pre-judge the current FCC proceeding which is trying to determine whether to authorize this new class of FM stations (Letter Decision).  For more about the proposed Class C4 for FM stations, see our blog article here.
  • As the FCC reviews radio license renewals filed in recent months in various midwestern states, this week we have again seen a flurry of consent decrees with broadcasters who could not certify compliance with the political broadcasting rules.  These consent decrees require the broadcaster to engage in training for its staff on political broadcasting issues and to report to the FCC for two years on its compliance with the political file rules.  See our article here for more information about these consent decrees.
  • With Democrats in control of the White House, Congress, and the FCC, we have noted increased interest in the Fairness Doctrine.  In light of the many recent articles on the topic, we wrote about the history of the Doctrine and what its reinstatement, however unlikely, would mean for broadcasters.  (Blog)

 

FCC to Hold Hearing to Determine What Felony Conviction of Station Owner Means for License Renewal – What Does the FCC Character Policy Require of Broadcast Applicants?  

Delivered... David Oxenford | Scene | Fri 12 Feb 2021 3:35 pm

This week, the FCC designated for hearing the license renewal applications for a number of Alabama radio stations because of their owner’s conviction on felony ethics violations, stemming from misconduct while he served in the Alabama legislature.  The hearing is to determine the effect of those felony convictions on the character of the licensee to hold a broadcast license.  The Communications Act requires that a broadcast licensee (and its owners) must have the requisite character to operate the station.  Character is reviewed whenever a party seeks to acquire a broadcast license, including when they file for the renewal of that license.  In egregious circumstances, the FCC can even move to revoke the licenses held by a licensee outside of the license renewal process.  Even the sale of a license by a party without the required character qualifications may be prohibited by the FCC, as the Commission does not want to see a wrongdoer profit from the disposition of what is seen as a government asset – the FCC license.

Character has been defined by the FCC through numerous policy statements issued periodically over the last 50 years, and has been further refined by precedents established in individual cases.  This week’s case gives us the opportunity to look at what conduct the FCC considers in assessing the character of any broadcast application, and the factors that are reviewed in determining the impact of bad conduct on the ability of the applicant to hold an FCC license.

While not at issue in this week’s case, perhaps the most common type of character issue that comes before the FCC relates to conduct before the agency itself.  Misrepresentations or “lack of candor” before the agency are serious offenses, as the FCC feels that it must be able to rely on the truthfulness of representations made to it by its licensees.  As the FCC cannot verify every factual statement made in every application or other filing made before the agency, it considers it a serious offense if an applicant makes untrue or misleading statements to the Commission in any of its submissions to the agency.

Similarly, compliance with the FCC’s own rules can be considered in a character context.  While the FCC generally recognizes that licensees are not perfect and can err in their compliance, a pattern of regulatory noncompliance can indicate that the applicant does not have the requisite character to be a licensee.  In most cases, fines (or “forfeitures” as the FCC refers to them) will be imposed for simple violations of FCC rules, but more serious, repeated violations can lead to stiffer penalties or even the loss of a license.

Harder character questions are raised, as in this week’s case, by misconduct that occurs outside the FCC’s jurisdiction.  Over its history, the Commission has struggled to determine how much weight it should give to legal violations by individuals or corporate owners that arise not in the broadcast business, but in other contexts.  In the 1970s and early 1980s, misconduct of any type could be considered by the FCC.  So we saw extensive examinations of the records of broadcast licensees where individuals or corporate affiliates had a wide variety of non-broadcast misconduct – from violations of foreign corrupt practices acts to discriminatory conduct.  The FCC later retreated from that expansive view of misconduct, suggesting that its examination should be limited only to conduct related to a company’s broadcast operations, before quickly determining that such a narrow standard was too restrictive.

In the late 1980s and early 1990s, the FCC arrived at a standard that is generally still used today, where the Commission considers not only broadcast and other media-related legal violations, but also felonies of any sort.  The Commission’s reasoning, as reiterated in this week’s decision, is that any serious crimes could indicate that an applicant cannot be trusted to follow FCC rules.  FCC forms require applicants to list FCC character issues found in other cases, as well as all felonies, all media-related antitrust violations, fraudulent statements to another governmental unit, and any finding of discrimination.  These legal matters need to be reported not just for the applicants, but for other businesses or activities in which the applicant’s principals have interests.

In most cases, the FCC will not itself make the determination as to whether an individual violated some law or regulation, but instead will consider misconduct when it has been adjudicated by a court or other government agency.  However, the FCC has left itself room to look at other egregious misconduct even if that conduct has not already been finally determined by a court or government tribunal.

But in any case, whether it be a felony or any other misconduct, the fact that the conduct occurred does not in and of itself mean that someone is unfit to be a broadcast licensee.  Instead, the FCC needs to weigh multiple factors to determine if the conduct is disqualifying.  The FCC will weigh factors including the willfulness of the conduct, the frequency of the conduct that led to the misconduct findings, how current the findings are, how serious the wrongdoing was, whether individuals with management authority over the stations were involved in the misconduct, whether there were efforts to rectify any wrongs that were done, the history of FCC compliance of the applicant, and whether there has been a rehabilitation of the applicant.  This is a balancing process. An individual who was involved in some minor crime long ago, served his or her time, and has led a productive post-conviction career might not be disqualified from broadcast ownership.  But other more recent crimes, or those that are particularly shocking to the conscience, can lead to a stigma for much longer periods.

All of these factors are weighed through an administrative hearing, which as of November 2020 will largely be a paper-based process, rather than the previous approach of a live hearing before an FCC Administrative Law Judge.  Under these new procedures, the hearing proceedings are resolved on a written record consisting of an affirmative case, responsive case, and reply case submissions, along with all associated evidence in the record, including stipulations and agreements of the parties and official notice of material facts.  Live testimony will only occur if the Judge believes it to be necessary to give the parties due process.  Based on that record, the ALJ will issue an Initial Decision.  That Initial Decision will be subject to review by the full Commission.

As with any area of FCC law, this article cannot cover the many nuances of the Commission’s policies in assessing the character of an applicant coming before it.  Suffice it to say that if an applicant, or any principal in an applicant, has had any issues in dealing with the FCC or any other legal trouble in any business or activity in which they are involved, consult counsel, as particular facts can make big differences in the outcome.  Even in the most serious cases, there may be circumstances where a station can be sold or otherwise disposed of in a way to avoid a total loss that would arise from a lost license.  It is a complex area that needs to be navigated carefully.

This Week in Regulation for Broadcasters: January 30, 2021 to February 5, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 7 Feb 2021 5:02 pm

The past week was another light one for broadcast regulation at the FCC.  But here are some actions of note for broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • Two Kentucky FM translator stations filed their license renewal applications nearly four months late and now face $1,500 fines. From time to time, the FCC has announced that numerous stations failed to file their renewal applications on time during this license renewal cycle, putting at risk their authority to operate.  These cases also remind broadcasters to remember to renew their translator licenses as well as those for their primary stations.  Be sure to mark your calendar with your renewal filing deadline date (radio dates here; TV dates here) and start your preparations early.  Radio stations in Texas and TV stations in Indiana, Kentucky, and Tennessee are the next groups to file for renewal and must do so by April 1.  (W278BK Notice) (W280FH Notice)
  • TVNewsCheck published our updated high-level look at the state of play in Washington for broadcast television issues. This is a good resource to learn about new issues and to get caught up with the latest on issues that have been around for a while.  (Broadcast Law Blog)
  • We wrote about the “performance complement” and other music licensing issues while we wait for the Copyright Royalty Board to say how much webcasters(including broadcasters who simulcast their over-the-air programming on the internet) will pay for the public performance of sound recordings for 2021 through 2025.  (Broadcast Law Blog)

This Week in Regulation for Broadcasters: January 30, 2021 to February 5, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 7 Feb 2021 5:02 pm

The past week was another light one for broadcast regulation at the FCC.  But here are some actions of note for broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • Two Kentucky FM translator stations filed their license renewal applications nearly four months late and now face $1,500 fines. From time to time, the FCC has announced that numerous stations failed to file their renewal applications on time during this license renewal cycle, putting at risk their authority to operate.  These cases also remind broadcasters to remember to renew their translator licenses as well as those for their primary stations.  Be sure to mark your calendar with your renewal filing deadline date (radio dates here; TV dates here) and start your preparations early.  Radio stations in Texas and TV stations in Indiana, Kentucky, and Tennessee are the next groups to file for renewal and must do so by April 1.  (W278BK Notice) (W280FH Notice)
  • TVNewsCheck published our updated high-level look at the state of play in Washington for broadcast television issues. This is a good resource to learn about new issues and to get caught up with the latest on issues that have been around for a while.  (Broadcast Law Blog)
  • We wrote about the “performance complement” and other music licensing issues while we wait for the Copyright Royalty Board to say how much webcasters(including broadcasters who simulcast their over-the-air programming on the internet) will pay for the public performance of sound recordings for 2021 through 2025.  (Broadcast Law Blog)

A TV Broadcaster’s Guide to Where Washington Regulatory Issues Stand

Delivered... David Oxenford | Scene | Tue 2 Feb 2021 4:25 pm

Where do all the Washington DC legal issues facing TV broadcasters stand in these early days of a new Administration? While we try on this Blog to write about many of those issues, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck.  The latest version, published today, is available on their website here. It provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of the status of the FCC’s consideration of other issues including issues such as Ownership Rule Changes, Children’s Television, C-Band Earth Station repacking, DTS, EEOPolitical Advertising, Sponsorship Identification and dozens of other topics, many with links to more detailed discussions here on the Blog.

This is an easy place to go to see where, as of last week when we finished writing the article, legal matters related to TV broadcasting stand.  Of course, the status of these issues changes almost daily, so watch this Blog and other trade publications, and consult your own legal counsel, for the latest Washington news of interest to broadcasters and to you and your operations.

This Week in Regulation for Broadcasters: January 23, 2021 to January 29, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 31 Jan 2021 4:43 pm

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • Often when a new administration takes over and a new Chairperson is installed at the FCC, some of the agency’s non-routine work slows down as the new Chair and her staff look to align the bureaus and offices with their priorities. The last week under Acting Chairwoman Jessica Rosenworcel has been no exception to this, with few public releases coming out of the Media Bureau.  But the FCC’s routine work, like license renewals, EEO filings, and comment deadlines, continues and our monthly feature on broadcast regulatory dates and deadlines highlights some of these upcoming obligations.
  • With the Super Bowl next Sunday, if you are planning any advertising or promotions tied to the game, we published an article by our law partner Mitch Stabbe on how broadcasters and advertisers can steer clear of the NFL’s aggressive efforts to protect its Super Bowl trademarks and other intellectual property rights. (Broadcast Law Blog)
  • Parties interested in the future of copyright law and the Copyright Office should note that Sen. Thom Tillis (R-NC) has drafted legislation on various copyright topics and is accepting comments on the legislation through March 5th. The legislation seeks changes to the Copyright Act which would, among other things, lessen protections that online services have from infringement claims about user-generated content, as well as changing the organization and authority of the Copyright Office.  Legislators do not often release draft legislation this far in advance and ask for public input, so, as these changes would affect all media companies, be sure to take advantage of the open process and send in your ideas.  We wrote about the draft legislation, here.

February Regulatory Dates for Broadcasters: License Renewals, EEO Reporting, KidVid Reports, Zonecasting Comments, FCC Open Meeting, and More

Delivered... David Oxenford and Adam Sandler | Scene | Tue 26 Jan 2021 3:48 pm

With the federal government and the FCC under new management, Acting Chairwoman Jessica Rosenworcel may well take the Commission in a direction that aligns with the policies she supported during her time as a Commissioner.  It is notable that, no matter what policies she advances, the routine regulatory dates that fill up a broadcaster’s calendar are generally unchanged.  Some of the dates and deadlines which broadcasters should remember in February are discussed below.  Given the transition period that we have just been through, the number of February dates are somewhat lighter than in most months – but that is sure to pick up as everyone settles into their new roles at the FCC.

On or before February 1, radio stations in Kansas, Nebraska, and Oklahoma and television stations in Arkansas, Louisiana, and Mississippi must file their license renewal applications through the FCC’s Licensing and Management System (LMS).  Those stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396) and, if they are part of a station employment unit (a station or a group of commonly owned stations in the same market that share at least one employee) with 5 or more full-time employees, upload to their public file and post a link on their station website to their Annual EEO Public Inspection File report covering their hiring and employment outreach activities for the twelve months from February 1, 2020 to January 31, 2021.  TV and radio stations licensed to communities in New Jersey and New York which are part of an employment unit with 5 or more full-time employees also must upload to their public inspection file their Annual EEO Public Inspection File report by February 1.

For the first time, TV broadcasters must submit a Children’s Television Programming Report that covers a full year and not just one quarter.  Following the FCC’s 2019 KidVid rule changes, which we summarized here, reports are now submitted to the FCC annually by January 30.  Because January 30 is a Saturday this year, the report is due to be filed by the next business day—Monday, February 1.  FCC rules also require that stations place in their public files by January 30 of each year records documenting compliance with the limits on the number of commercial minutes that stations can run during children’s programming.  Note that the commercial limits records are not formally filed with the FCC so arguably the January 30 deadline applies, although an FCC staff presentation indicated that the deadline is February 1.

Interested parties should be aware that comments are due by February 10 in the FCC’s FM booster zonecasting proceeding.  The proposal would allow FM boosters to originate limited amounts of programming (up to 5%—or 3 minutes—of any program hour) different from their primary stations.  Stations could target hyper-local content like local news, advertisements, and weather information to different parts of the station’s coverage area.  Reply comments are due by March 12.  See our blog post, here, for more information.

The FCC is scheduled to hold its next Open Meeting on February 17—the first Open Meeting under Acting Chairwoman Jessica Rosenworcel.  At the time of writing this post, it is unclear what will be on the agenda for the meeting.  The agenda will be available, here, when it becomes available.

Looking ahead to March, any analog LPTV or TV translator that believes that it will not be ready to digital operations by the July 13 deadline has until March 13 to file a request for an extension of that deadline date.  Also, TV operators may be interested in filing comments by the March 8 deadline in the Copyright Office’s Notice of Inquiry looking to assess the impact of the abolition of the statutory copyright license that allowed satellite television operators to import distant network signals into TV markets where there were households arguably not being served by a local network affiliate (see our article here).

These are highlights of the dates to watch in February but be sure to keep in touch with your station’s counsel to stay on top of specific dates and deadlines applicable to your operations.  As the new administration takes shape, watch our blog, the trade press, and the FCC website for more information on new FCC actions.

This Week in Regulation for Broadcasters: January 16, 2021 to January 22, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 24 Jan 2021 5:44 am

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • President Joe Biden named Jessica Rosenworcel as Acting Chair of the FCC, where she will set the agenda for the Commission until a permanent Chair is appointed (and she may be a candidate for that permanent position). The Biden administration has not said when it will name a permanent chair.  (News Release)
  • The U.S. Supreme Court heard oral argument in Federal Communications Commission, et al. v. Prometheus Radio Project, et al., the Court’s review of the FCC’s 2017 media ownership rule changes. The changes at issue include the abolition of the newspaper-broadcast cross-ownership rule and several local TV ownership restrictions.  A decision in the case is expected by early summer.  Audio of the argument and a written transcript are available, here.  In an article, here, we looked at the argument and how the Court’s decision could impact the future review of ownership issues by the Commission.
  • The FCC issued new technical rules regarding the use by TV stations of Distributed Transmission Systems (DTS) (also known as single frequency networks). The new rules expand and clarify the permissible range of “spillover” beyond a station’s protected contour.  DTS gives stations a more uniform signal strength throughout their service area which would be beneficial to new services that can be offered with the ATSC 3.0 (Next Gen TV) transmission standard.  (Report and Order)
  • A Georgia low power FM station settled an FCC investigation by acknowledging it violated the underwriting rules for noncommercial stations and agreeing to pay a $10,000 fine. The station was paid by a for-profit entity to air nine announcements that included prohibited promotional references.  (Order)
  • As we noted in last week’s summary, the Department of Justice declined to act on the ASCAP and BMI consent decrees. We took a deeper look, here, at what this means for the future of the consent decrees and the state of play in the music licensing world.

This Week in Broadcast Regulation: January 9, 2021 to January 15, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 17 Jan 2021 1:21 am

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.  We also note an upcoming event to which broadcasters will want to pay attention.

  • After a multi-year review of the ASCAP and BMI consent decrees, Makan Delrahim, the outgoing head of the Department of Justice’s Antitrust Division, announced that the DOJ will not seek changes to the decrees. Instead, the Division laid out principles that the incoming Biden Administration should consider in future reviews of the decrees.  The review found that, while there was a desire by ASCAP and BMI and some in the music industry for reforms to the decrees, music users believe that they are generally working well.  The consent decrees are important as they allow ASCAP and BMI to license a broad array of musical works to users, including broadcasters, on terms that cannot discriminate between similar users, at rates subject to judicial review to ensure that they are reasonable. (Remarks of Mr. Delrahim)  See our blog article on the initiation of the review, describing the issues which the DOJ explored.
  • The FCC published in the Federal Register its Notice of Proposed Rulemaking that looks at allowing zonecasting by FM boosters, setting the comment dates in this proceeding. The FCC proposes allowing FM boosters to originate up to three minutes of hyperlocal programming (news, weather, advertising, etc.) per hour and seeks comment on the concept and on the proposed rules to implement the idea.  Comments and reply comments are due by February 10 and March 12, respectively.  We wrote about the proposal, here.  (Federal Register)
  • Rules designed to increase unlicensed wireless device use in TV “white spaces” will go into effect on February 11. The rules expand the ability of unlicensed white space devices to operate in unused portions of the TV band (channels 2-35) to provide rural broadband services and Internet of Things applications.  We wrote about the new rules, here.  (Federal Register)
  • Cumulus Radio was fined $233,000 for airing paid programming without the required sponsorship identification and for failing to abide by the terms of a 2016 consent decree that required the company to timely notify the FCC of such violations. Broadcasters are required to disclose information about the sponsors of programming for which they receive payment or other valuable consideration.  (Forfeiture Order)
  • The FCC released a report on the relationship between the number of independent local television news operations in a market and market size. The report concludes, among other things, that there is a strong relationship between the market size, number of television households, and the number of independent local TV news operations.  This information may be considered in future reviews of the FCC’s ownership rules.  (Working Paper)

Next week, the Supreme Court will hear oral argument in Federal Communications Commission, et al. v. Prometheus Radio Project, et al., the Court’s review of the FCC’s 2017 media ownership rule changes.  Live audio of the January 19 proceeding will be available on C-SPAN at 10 am EST and a downloadable recording should be available by January 22 on the Supreme Court’s website.  A decision is expected in early summer.  To get caught up on this case and other media ownership issues, see our blog post, here.  (Case Docket)

This Week in Broadcast Regulation: January 2, 2021 to January 8, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 10 Jan 2021 3:52 pm

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.  Also, we include a quick look at some important dates in the future.

  • The Enforcement Bureau advised broadcasters (and other participants) of their Emergency Alert System obligations, including the requirement to make EAS messages accessible. The advisory provides a good reminder of a broadcaster’s EAS obligations. (Advisory)
  • The FCC issued a status report on the incentive auction repack and announced that it has sufficient funds available for the reimbursement of costs incurred by LPTV and TV translator stations because of the repacking to increase their payments from 85% of verified estimates to 92.5%. According to the status report, all of the stations repacked as part of the incentive auction have vacated their pre-auction channels and, as of this week, over 95% of the stations are operating with their final technical facilities.  (Public Notice)
  • The FCC released its count of broadcast stations as of year-end 2020, finding more than 33,500 stations, including more than 15,000 full-power radio stations and nearly 1,200 full-power TV stations. (Broadcast Station Totals)
  • The FCC submitted its annual report to Congress on the implementation of the PIRATE Act and the enforcement actions it has taken over the last year. The report notes that COVID-19 and the lack of congressionally-appropriated funds in FY 2020 for the Act have limited implementation and enforcement activities.  (Report)
  • Four low power FM stations in Iowa and Missouri failed to file license renewal applications by their October 1, 2020 filing deadline and are in danger of seeing their licenses expire. This serves as a reminder to television stations in Arkansas, Louisiana, and Mississippi and radio stations in Kansas, Nebraska, and Oklahoma to file their renewal applications, due by February 1, 2021.  (Public Notice)
  • In the copyright world, the Copyright Office released a Notice of Inquiry to review changes to the copyright license granted to satellite TV providers under 2019’s Satellite Television Community Protection and Promotion Act to provide local-into-local retransmission of television stations. The review seeks comments by March 8 as to how the new law impacts affected parties including consumers and stations.  Read more about the inquiry, here.
  • A handful of large radio groups and webcasters will be audited by SoundExchange over their compliance with their copyright licenses for the public performance of sound recordings required when they transmit their programming on the Internet.  Read more about this and other music licensing audits, here.

To help you stay on top of the many scheduled regulatory dates for the rest of the year, we published our Broadcaster’s Regulatory Calendar for 2021, which sets out many of the broadcast regulatory dates and deadlines in 2021.  (Broadcast Law Blog)

Looking ahead, on Monday, a notice is scheduled to appear in the Federal Register announcing the comment period for the FCC’s FM booster rulemaking (we covered the “zonecasting” proposal in more detail, here).  The proceeding asks if boosters should be allowed to originate hyperlocal program that is different from the programming carried on the station they rebroadcast.  Comments will be due by February 10, 2021 and reply comments will be due 30 days later on March 12, 2021.  On Wednesday, the FCC will hold the first of its required monthly Open Meetings of 2021.  After releasing a tentative agenda with only bureau and staff presentations about the FCC’s accomplishments during his term, Chairman Pai, who will preside over his last Open Meeting, added three items for Commissioners to vote on – none of which directly impact broadcasters.  The meeting will be streamed live, here, at 10:30 pm Eastern on January 13.

A Broadcaster’s 2021 Regulatory Calendar – Looking at Some of the Important Dates for the Year Ahead

Delivered... David Oxenford | Scene | Tue 5 Jan 2021 6:21 pm

Here we are, in a new and hopefully more “normal” year – wondering what will be ahead.  Each year, at about this time, we put together a look at the regulatory dates ahead for broadcasters – or at least the primary ones that we already know.  This year is no different – and we offer for your review our Broadcaster’s Regulatory Calendar for 2021.  While this calendar should not be viewed as an exhaustive list of every regulatory date that your station will face, it highlights many of the most important dates for broadcasters in the coming year – including dates for license renewalsEEO Public Inspection File ReportsQuarterly Issues Programs listschildren’s television obligations, annual fee obligations and much more.  This year, for LPTV and TV translator operators, there are also dates associated with this summer’s deadline for all such stations to be operating digitally (see our article here).

While this likely will not be a big political advertising year like 2020, there will be some state and local races – so we note the start of the Lowest Unit Charge window for this year’s November election – relevant in states like New Jersey and Virginia where there are races for governor and state legislature, and to the many locations across the country that will have mayor’s races and other state and local political contests.  Look for local information about the dates for any primary elections for these elections – as those primaries have their own LUC windows for the 45 days preceding the primary.  See our article here on how the other political broadcasting rules apply to state and local elections.

Certainly, as the year progresses, there will be plenty more dates to note.  Follow our blog where we weekly post a summary of the prior week’s regulatory actions relevant to broadcasters and a look ahead prior to the start of each month at the regulatory dates in the coming month, read other newsletters and trade publications and consult your own attorney to stay on top of the regulatory obligations that apply to your stations.  We hope that this 2021 Broadcasters Regulatory Calendar will give you a good start on spotting some of the important dates that may be ahead and affect your operations.

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