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

This Week in Regulation: September 19, 2020 to September 25, 2020

Delivered... David Oxenford | Scene | Sun 27 Sep 2020 5:04 pm

Here are some of the regulatory and legal actions and 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 day before 2020 annual regulatory fees were due, the FCC extended the deadline from 11:59 p.m. on Friday, September 25 to 11:59 p.m. on Monday, September, 28. (Public Notice)
  • Broadcast trade publication TVNewsCheck published “A Broadcaster’s Guide to Washington Issues, our periodic survey of the legal and regulatory issues facing television   It is a good resource for both new and veteran broadcasters looking to understand the status of pending legal and regulatory issues for the television industry.
  • For stations looking to stay on top of their KidVid reporting, the updated form to be used for the 2020 Children’s Television Programming Report is now available and can be accessed through the FCC’s Licensing and Management System (LMS). Stations can begin to prepare the form, update it during the remainder of the year, saving the information to be ready to file in January.  The FCC reminds television broadcasters that the form cannot be finalized and submitted until January 1, 2021.  As a reminder, KidVid reports are now filed annually, not quarterly as they were until the rules were changed in 2019.  (Public Notice)
  • The FCC’s Media Bureau has waived the requirement for noncommercial educational (NCE) translator stations to send their carriage election notifications by email to multichannel video programming distributors (MVPD), as required under the FCC’s new carriage election requirements.  The waiver came out of a petition from PBS and the trade association America’s Public Television Stations who said that, in many cases, NCE translators do not even know which MVPDs are carrying them and have no easy way to determine this information, making notification time-consuming and costly with no practical benefit as NCE translators can only “elect” must-carry. (Memorandum Opinion and Order)

A TV Broadcaster’s Guide to Washington Legal Issues – An Update on Where Things Stand

Delivered... David Oxenford | Scene | Tue 22 Sep 2020 4:12 pm

Where do all the Washington DC legal issues facing TV broadcasters stand? 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 and 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 other issues including the many actions that the FCC took in response to the pandemic to the more traditional issues including Ownership Rule Changes, Children’s Television, Media Regulation Modernization, EEO CompliancePolitical Advertising, Sponsorship Identification and dozens of other topics, many with links to more detailed discussions here on the Blog. The article 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.

FCC Proposes $512,228 in Fines to TV Stations for Violating Rules Requiring Good Faith Negotiation of Retransmission Consent Agreements

Delivered... David Oxenford | Scene | Mon 21 Sep 2020 5:06 pm

With the October 1 deadline coming up for retransmission consent/must carry elections, and the likely commencement of many retransmission consent negotiations throughout the country, the FCC last week issued a decision that emphasizes the importance of “good faith” retransmission consent negotiations.  In this action, the full Commission denied an Application for Review that sought to reverse the Media Bureau’s ruling that eighteen stations had failed to negotiate in good faith with an MVPD for retransmission consent. The Commission’s decision also included a Notice of Apparent Liability announcing that each station faces a $512,228 penalty for these violations of the requirements for good faith negotiation.

In May, we wrote about the earlier stages of this case where another licensee agreed to a consent decree based on essentially the same allegations addressed in last week’s decision. The consent decree was based on violations described in a decision of the FCC’s Media Bureau released last November (here) finding that 18 television station licensees, operating stations in separate markets, had failed to negotiate retransmission consent in good faith.  Given the size of the proposed fines on the stations named in last week’s Notices of Apparent Liability, it is worth reviewing the basis of this decision.  Even though many of the details are redacted to protect proprietary information, the basis for the decision can still be gleaned from this series of decisions.

The Commission upheld the decision of the Media Bureau which found that all of the named companies had used a single negotiating agent who the Bureau found failed to comply with three of the Commission’s nine “per se” good faith negotiating standards set out in Section 76.65(b)(1) of the Commission’s rules.  Specifically, the Bureau found that the stations had not operated in good faith based on these perceived violations: (1) refusal to negotiate retransmission consent agreements; (2) refusal to meet and negotiate retransmission consent at reasonable times and locations, or acting in a manner that unreasonably delays retransmission consent negotiations; and (3) failure to respond to a retransmission consent proposal of the other party, including the reasons for the rejection of any such proposal.

In reaching this conclusion, the Bureau pointed to instances where the negotiating agent did not respond to offers for the carriage of single stations in the negotiating group, did not put forward proposals for the carriage of such stations and was slow in responding to proposals put forth by the MVPD and did not respond in detail to those proposals or make meaningful counterproposals.  The Bureau, at the time, ordered the stations to negotiate in good faith and reserved questions of liability, indicating that those could be taken up in the future.  That reservation of a decision on the question of liability is the basis for the Notices of Apparent Liability released last week.

Takeaways for TV stations?  While the FCC will not get into the substance of retransmission consent negotiations (for example, it will not question the economics proposed by either side – see this article from over a dozen years ago where the FCC made that clear), it does require that the parties seriously negotiate over the terms of such carriage.  Parties cannot simply say no and not advance proposals as to what they would accept to resolve the negotiations.  Parties cannot unilaterally cut off negotiations.  And the obligation is one that is unique to each station – so unrelated stations cannot join together and refuse to even consider deals offered for any particular station.  This decision shows that there are real teeth in these regulations – and substantial penalties may follow for violation of the Commission’s standards.

FCC Releases Order on Regulatory Fees – No Widespread Waivers of Fees But Some Deferred Payments Possible – Payment Dates Coming Soon

Delivered... David Oxenford | Scene | Wed 2 Sep 2020 4:38 pm

The FCC’s order on this year’s annual regulatory fees was released by the FCC this week.  The FCC rejected calls to forgive broadcast regulatory fees because of the economic fallout of the pandemic, noting that only Congress could pass such relief, as the FCC is required by law to collect fees sufficient to cover the costs of its operations.  The Commission did, however, offer some terms for the payment over time of the fees by companies that are hard-hit by the economic conditions that resulted from COVID-19, and simplified the waiver process for stations that can demonstrate that they cannot pay the fees without imperiling their service to the public.  The order also rejected the NAB’s request to revisit the fees for radio, though some minor downward adjustments were made in those fees based on the FCC’s finding that it had undercounted the number of radio stations that were to share in the payment of these fees.

The FCC determined that it could not waive all regulatory fees for broadcasters, or broadly excuse them from the 25% late-payment penalty, because these obligations are in the statute and cannot be waived without Congressional authorization.  The FCC is required by law to collect these fees before the October 1 start of the next fiscal year in an amount sufficient to reimburse the US Treasury for the costs of operating the Commission.  While the FCC felt itself powerless to totally waive the rules, it did simplify the process for individual stations to make requests for waiver of the fees if the payment of the fees would imperil their ability to serve the public or to extend the payments out over time – without the need for any upfront payment of a significant portion of the fees.  The FCC noted that the Office of the Managing Director will be issuing a separate Public Notice establishing the process for asking for waiver or deferral, so watch for the notice coming soon as these request will likely need to be filed before the payment deadline, which will also be established in a subsequent public notice.  But the Order does say that the requests for waiver and payment over time can be made in a single email to the FCC, and that the Managing Director’s office is to work with broadcasters to try to help them provide the necessary documentation to support the waiver or deferral of payments.

The fees for television stations are set out in an attachment to the order, and basically follow what was proposed in the Notice of Proposed Rulemaking several months ago.  For radio, the FCC rejected arguments that the NAB had advanced, arguing that the FCC’s methodology of allocating its employees to different services regulated by the Commission (the basis for the computation of fees) allocated too many to broadcast services, and resulted in too big of a burden on radio broadcasters in excess of the benefits they get from regulation.  But the FCC did note that it had undercounted the number of radio stations subject to the fees and thus slightly lowered the amount of the fees for radio broadcasters, as set out on the table below:





AM Class A AM Class B AM Class C AM Class D

FM Classes

A, B1 & C3

FM Classes

B, C, C0, C1 & C2

<=25,000 $975 $700 $610 $670 $1,075 $1,225
25,001 – 75,000 $1,475 $1,050 $915 $1,000 $1,625 $1,850
75,001 – 150,000 $2,200 $1,575 $1,375 $1,500 $2,425 $2,750
150,001 – 500,000 $3,300 $2,375 $2,050 $2,275 $3,625 $4,150
500,001 – 1,200,000 $4,925 $3,550 $3,075 $3,400 $5,450 $6,200
1,200,001 – 3,000,000 $7,400 $5,325 $4,625 $5,100 $8,175 $9,300
3,000,001 – 6,000,000 $11,100 $7,975 $6,950 $7,625 $12,250 $13,950
>6,000,000 $16,675 $11,975 $10,425 $11,450 $18,375 $20,925


Watch for further Public Notices from the FCC about the waiver and installment payment process, as well as specific notices as to payment dates and instructions for broadcasters for paying their fees.  These notices should be out soon as these payments must be made in September.

September Regulatory Dates for Broadcasters: Annual Regulatory Fees, Lowest Unit Rate Window Opening, C-Band Reimbursement, Rulemaking Comments and More

Delivered... David Oxenford | Scene | Thu 27 Aug 2020 5:18 pm

As broadcasters continue to respond to the coronavirus while sometimes juggling work duties with family responsibilities like at-home virtual schooling, it would be easy to overlook regulatory dates and responsibilities.  This post should help alert you to some important dates in September that all stations should keep in mind – and we will also provide a reminder of some of the dates to remember in early October.  As in any year, as summer ends, regulatory activity picks up – and this year appears to be no different.

Each year, in September, regulatory fees are due, as the FCC is required to collect them before the October 1 start of the new fiscal year.  We expect that the final amount of those fees, and the deadlines and procedures for payment, should be announced any day.  For broadcasters, one of the big issues is whether those fees will be adjusted downward from what was initially proposed by the FCC in their Notice of Proposed Rulemaking in this proceeding.  The National Association of Broadcasters has been leading an effort (we wrote about this here and NAB detailed recent meetings between CEO Gordon Smith and members of its legal department with FCC staff here and here) urging the FCC to reduce the amount of fees owed by broadcasters, in part because of the financial toll the pandemic has taken on the industry and in part because the proposed fee structure, which is determined by estimates as to how many FCC staffers are detailed to regulating an industry and the related benefit that industry receives, inaccurately reflects the number of FCC employees who work on radio issues.  Look for that decision very soon.

All commercial broadcasters need to remember that, on September 4, the lowest unit rate period for political candidate advertising— the “political window”—opens for the November 3 general election.  During this 60-day period prior to the general election, legally qualified candidates buying advertising on a broadcast station get the lowest rate for a spot that is then running on the station within the same class of advertising time and in the same daypart.  Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as the station’s most favored advertiser gets for buying hundreds of spots of the same class.  Station personnel who deal with political advertisers must understand how to compute lowest unit rate and the many other rules that apply to political broadcasting.  See our post on computing lowest unit rate here and our Political Broadcasting Guide, which covers a range of political broadcasting issues, here.

Broadcast stations that receive satellite-delivered programming are likely affected by the repacking of the C-Band – the swath of spectrum in which much programming is delivered to satellite earth stations.  As part of that band is being repurposed for wireless 5G operations, companies that have dishes using that spectrum will need to be prepared for changes to their facilities – for which they are entitled to reimbursement.  By September 14, parties with eligible earth stations involved in the C-Band transition can elect to receive a lump sum reimbursement payment instead of reimbursement for their relocation costs.  That election will put the burden on the party taking that payment to plan and fund all changes necessary to comply with the new C-Band operating requirements.  We wrote about the considerations in that choice to take a lump sum payment here.

Also in September, parties can comment, on or before September 2, on the Petition for Rulemaking submitted to the FCC by the National Telecommunications and Information Administration (NTIA) Section 230 of the Communications Decency Act.  Section 230 gives online platforms legal protections from liability for content that third-party users post on those platforms.  These protections have drawn scrutiny from President Trump, culminating in a late-May Executive Order on Preventing Online Censorship.  As this executive order cannot on its own change current law, the NTIA is asking the FCC to take a new look at Section 230 and ensure the Commission’s interpretation of a law passed in 1996 makes sense in 2020.  After this comment and reply comment period, the FCC would still need to issue a Notice of Proposed Rulemaking and accept comments and reply comments before it can take any substantive action.  Reply comments are due on or before September 17.  Read more about this issue and its applicability to broadcast operations here and here.

At their September 29 conference, Justices of the U.S. Supreme Court may well decide whether to review Federal Communications Commission, et al. v. Prometheus Radio Project, et al.  This is the FCC’s appeal of the Third Circuit decision throwing out the FCC’s 2017 order changing many of the broadcast ownership rules – including the abolition of the newspaper-broadcast cross-ownership rule.  Should the Justices decide to take the case, further briefings and oral arguments will be conducted, and a decision could come sometime in 2021.  If not, the Third Circuit decision stands and the FCC will have to evaluate its media ownership rules in line with what the appeals court ordered.  Get caught up with the details of the case, here.

On September 30, the FCC will hold its monthly Open Meeting.  Should there be any broadcast items on the agenda, which should be released during the second week of September, watch the blog for our comments.

As a preview of what is to come in early October, radio stations in Iowa and Missouri and TV stations in Florida, Puerto Rico, and the U.S. Virgin Islands should be preparing their license renewal applications that are due by October 1, along with the accompanying EEO program report.  Because a license from the FCC is required to operate a broadcast station, filing for renewal of your license is necessary and should be taken seriously.  As part of the preparation of the license renewal application, stations should review their public file to be sure all relevant documents have been uploaded and in a timely manner.  The FCC, as we have written about here and here, will use the tools at its disposal (fines, delayed renewal grants, consent decrees, etc.) to punish stations that have not taken the proper care with their public file.  And recently, the FCC has shown heightened interest in the completeness and timeliness of stations’ political files and has proposed consent decrees with many stations that could not certify on their license renewal application that the political documentation required by FCC rules was placed in the public file at the appropriate times.  We wrote about the first round of these consent decrees, here.  Stations should also be readying to air their post-filing announcements, which for these October 1 renewal stations, begin to air on October 1 and continue through December 16.  Stations are no longer required to air pre-filing announcements.  Click here for more on the license renewal process and to watch a webinar we did on preparing for license renewal.

Also due by October 1 are EEO public inspection file reports for stations that are part of a station employment unit with 5 of more full-time employees in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, and the U.S. Virgin Islands.  An employment unit is one or more commonly controlled stations in the same geographic area that share at least one employee.  By October 1, these reports are to be uploaded to the station’s FCC-hosted online public file and a link to that report need to be placed on the homepage of the station’s website (if the station has a website).

By October 1, television stations must make their elections as to must-carry or retransmission consent for MVPDs that carry their signals.  Full-power and Class A TV stations must place in their online public inspection file by October 1 notice of whether they elect retransmission consent or must-carry carriage from their area’s MVPDs for the three-year cycle beginning on January 1, 2021.  We summarized this new rule, here.

By October 10, all TV and radio stations must upload to their public file their Quarterly Issues/Programs Lists for the 3rd quarter (July, August, and September).  As a reminder, the Quarterly Issues/Programs Lists are a station’s evidence of how it operated in the public interest, demonstrating its treatment of its community’s most significant issues.  As we have written previously, the FCC takes this requirement seriously and will fine stations, hold up granting license renewals, or both if it finds problems with a station’s compliance.  For a short video on complying with the Quarterly Issues/Programs List requirement, see here.

These are just the highlights of some of the regulatory activity to which broadcasters can look forward in the coming weeks.  Regulatory compliance requires close attention and stations should consult their own attorneys and advisors for more information about these dates and for any other deadlines applicable to their operation.

C-band Earth Station Licensee Can Elect Lump Sum Reimbursement Payments for Repacking Costs by September 14 – NAB Webinar Helps Clarify the Choice

Delivered... David Oxenford | Scene | Wed 26 Aug 2020 4:27 pm

Many broadcasters who receive satellite-delivered programming do so through satellite dishes picking up transmissions from spectrum referred to as the C-band.  Part of that spectrum is to be auctioned to wireless users for 5G service starting in December.  Because of that auction, those using the band to receive satellite-delivered programs will be compressed into a smaller swath of spectrum which will require the reconfiguration of their technical facilities.  Those broadcasters who timely registered their dishes are entitled to reimbursement for the costs of the changes in their technical facilities necessitated by this repacking – but they have a choice to make by September 14 as to how to receive that reimbursement.  That choice was explained in a helpful webinar hosted by the NAB which can be ordered on the NAB website here.

As explained in far more detail in the webinar, those affected by the shrinking of the C-band can choose a traditional method of reimbursement, where the satellite carrier will take care of most of the transition costs (for which it will receive reimbursement) and the broadcaster would be able to file with the FCC and be reimbursed for certain costs set forth in the FCC’s Cost Catalog.  However, the FCC has offered an alternative reimbursement methodology, where the broadcaster gets a lump-sum payment and it is then responsible for the purchase and installation of all required equipment, repositioning, and other changes that are necessary to communicate in the upper portion of the C-band.  For some broadcasters planning to adopt alternate delivery methods for their programming, such as by fiber or Internet, that lump sum payment may be an attractive alternative.  For others, a careful analysis of the costs of buying and installing new equipment on their own needs to be weighed against what might be the simpler and more cost-effective option of allowing the satellite company to quarterback the technical changes.

If a broadcaster wants to accept the lump-sum payment, that election needs to be made by September 14.  Carefully review the FCC notices on this election (here and here), listen to the webinar, and consult your legal and engineering advisors for full details on the information required for the election and to assess which option best suits your needs.

This Week in Regulation: August 15, 2020 to August 21, 2020

Delivered... David Oxenford and Adam Sandler | Scene | Sun 23 Aug 2020 3:57 pm

Here are some of the regulatory and legal actions and 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 noted in last week’s update that the FCC’s Annual Regulatory Fees Order, setting the the fees to be paid by broadcasters by October 1, has been drafted and is likely to be released by the FCC very soon. In advance of the Order being released, NAB CEO Gordon Smith talked with Chairman Ajit Pai and expressed his concern that the proposed fee structure, which is determined by estimates as to how many FCC staffers are detailed to regulating an industry and the related benefit that industry receives, inaccurately reflects the number of employees that work on radio issues.  The NAB has been urging the Commission to freeze radio regulatory fees at last year’s amounts rather than increasing the amount of those fees as the Commission proposed in its Notice of Proposed Rulemaking.  Watch for a final decision from the FCC on regulatory fees possibly this week.  (NAB Phone Call Summary)
  • Earth station licensees, including broadcasters who receive satellite-delivered programming, who want to receive a lump sum payment for their costs associated with technical changes made necessary by the upcoming repacking of the C-Band, must make the election to receive that lump-sum payment (instead of having to prove their actual expenses) by September 14. The deadline had been August 31 but was extended this week.  (Order).  The NAB will be conducting a webinar to explain what this election means (NAB Notice of Webinar).
  • Comments were due by Monday, August 17 in the FCC’s Broadcast Internet proceeding (looking at the use of TV ATSC 3.0 spectrum for datacasting). The FCC sought comment on potential real-world uses for broadcast internet and how the FCC might change its rules to foster deployment and adoption of these new services.  Reply comments are due by August 31.  We took a closer look at this proceeding here and here.  (Docket 20-145 Comments)
  • Broadcasters and other media groups submitted their reply brief in National Association of Broadcasters, et al. v. Prometheus Radio Project, et al. This is the FCC’s appeal to the Supreme Court of the Third Circuit decision throwing out the FCC’s 2017 order changing many of the broadcast ownership rules – including the abolition of the newspaper-broadcast cross-ownership rule.  The justices will review the briefs filed in this case and decide this Fall whether to consider the appeal.  If they decide to do so, the Court’s decision would likely come in 2021.  If the Supreme Court declines to hear the case, the Third Circuit decision stands, and the FCC will have to come up with a new evaluation of its ownership rules consistent with that decision.  You can catch up on the twists and turns of this case here.  (Industry Reply Brief)
  • With an eye on the November 3 general election and the September 4 opening of the lowest unit charge “political window,” we published to the Broadcast Law Blog a review of the FCC rules and policies that affect the rates a broadcaster can charge for political advertising. (Broadcast Law Blog)
  • School administrators across the country are grappling with whether and when students should physically return to schools, with much interest about how college athletics should be handled. Receiving less attention has been how operators of noncommercial stations licensed to educational institutions should navigate the FCC rules on their minimum required operations when students are absent from campus, on a modified attendance schedule, or adhering to other policies that make running a broadcast station difficult or impossible.  The FCC in March released guidance for these stations to follow when schools send their students home, namely that college stations could treat campus shutdowns as a “recess period” under the minimum operating schedule rules.  Under those rules, during a recess, stations licensed to schools do not need special FCC permission to be silent.  On our Blog this past week, we looked at how those FCC minimum operating rules apply to today’s conditions at educational institutions.  The facts of each situation will be different, so be sure to get in touch with your station’s FCC lawyer to evaluate your own case.


Lowest Unit Rate Window for the November Election Opens on September 4 – Thoughts on Computing Your Lowest Unit Charges to Political Candidates

Delivered... David Oxenford | Scene | Mon 17 Aug 2020 4:59 pm

With the lowest unit charge window for the November elections going into effect on September 4, just two and a half weeks from now, we thought that it was a good idea to review the basic FCC rules and policies affecting those charges. In this election, with the Presidency and control in both houses of Congress at stake as well as many state offices, and with in-person campaigning limited by the pandemic, there may have never been a time when broadcast advertising was more important to political candidates – and likely more in demand by those candidates.  Your station needs to be ready to comply with the FCC’s political advertising rules. Today, we will look at lowest unit rate issues.  Lowest unit charges (or “Lowest Unit Rates”) guarantee that, in the 45 days before a primary and the 60 days before a general election, legally qualified candidates get the lowest rate for a spot that is then running on the station within any class of advertising time running in any particular daypart. Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as your most favored advertiser gets for buying hundreds of spots of the same class. But there are many other aspects to the lowest unit rates, and stations need to be sure that they get these rules right.

It is a common misperception that a station has one lowest unit rate, when in fact almost every station will have several – if not dozens of lowest unit rates – one lowest unit rate for each class of time in each daypart. Even at the smallest radio station, there are probably several different classes of advertising spots. For instance, there will be different rates for spots running in morning drive than for those spots that run in the middle of the night. Each time period for which the station charges a differing rate is a class of time that has its own lowest unit rate. On television stations, there are often classes based not only on daypart, but on the individual program. Similarly, if a station sells different rotations, each rotation that offers substantially different benefits to an advertiser will be its own class of time with its own lowest unit rates (e.g. a 6 AM to Noon rotation is a different class than a 6 AM to 6 PM rotation, and both are a different class from a 24-hour rotator – and each can have its own lowest unit rate). So, in the same time period (e.g. morning drive on a radio station), there may be spots running in that period that have multiple lowest unit rates (e.g.  spots may end up running in that period that were sold just for morning drive, as well as cheaper spots that were sold as part of a 6 AM to 6 PM rotation that just happened to fall within that period).  Federal candidates can buy into any of those classes of time, and they take the same chances as does a commercial advertiser as to where their spots will land (e.g. if a candidate buys a 6 AM to 6 PM rotator, and that rotator ends up in morning drive, another candidate may buy that same rotator the next week and end up at 4 PM. That second candidate can only guarantee that they will end up in morning drive by buying a spot guaranteed in that time period).

Even in the same time period, there can be preemptible and non-preemptible time, each with different costs and thus are different classes of time, each with its own lowest unit rate. Any class of spots that run in a unique time period, with a unique rotation or unique rights attached to it (e.g., different levels of preemptibility, different make-good rights, etc.), will have a different lowest unit rate. Stations need to review each class of time sold on their station, find the lowest rate charged to a commercial advertiser for a spot of the same class that is running at the same time that the candidate wants to buy a spot, and make sure that lowest rate will be what the candidate is charged.

One question that still comes up with surprising regularity is whether these rates apply to state and local candidates, as well as federal candidates. Indeed they do – so if your station is running advertising for candidates for mayor or city council; or for governor or the state senate; or even for the board of education, municipal court judge, or state attorney general – they and any other candidate in any public election for which your station chooses to accept advertising gets lowest unit rates. See our past articles on this topic here and here.

In modern political elections, where PACs, Super PACs and other non-candidate interest groups are buying much political advertising time, broadcasters need to remember that these spots don’t require lowest unit rates. Even if the picture or recognizable voice of the candidate that the PAC is supporting appears in the ad, spots that are sponsored by an independent organization not authorized by the candidate do not get lowest unit rates (note, however, that spots purchased by independent groups featuring the voice or picture of the candidate may trigger public file and equal opportunities obligations for the station if the station decides to run those spots).  Under federal law, stations can charge these advertisers anything that the station wants for non-candidate ads – no need to stick to lowest unit rates.

From time to time stations may face the one exception to the above paragraph, where political buyers are requesting lowest unit charges and are authorized by a candidate. In these cases, these parties may in fact be entitled to these rates – but only where the spot features the recognizable voice or picture of the candidate and the message is specifically authorized by the candidate.  Under federal law for federal candidates, these purchases will be by political parties and subject to political campaign donation limitations (known as “hard money”).  To get lowest unit rates, the advertising purchases must be authorized and “coordinated” with a candidate and, in federal races, the spots should make that coordination clear with the “I approved this message” tag.  While the FCC has not formally ruled on it, it appears that some states have similar state laws that allow third parties to buy spots that are authorized by a candidate and may be entitled to lowest unit rates. Talk to your own attorney if you are faced with that issue. Not all third-party spots are entitled to this treatment – only this special class of coordinated expenditures – and stations are entitled to get written confirmation from the candidate that the expenditures are coordinated under applicable election laws. If not coordinated, the parties get charged the same as any other third-party organization.

Various advertising sales packages, and how they are factored into lowest unit rate calculations, also seem to lead to many questions by broadcasters. Candidates cannot be forced to buy single-station packages to get low unit rates. Instead, the package must be broken down by the station into a price per spot for each class of spot that is contained in the package. That is done by allocating the package price to the various spots of each class that are contained in the package. Then the allocated rates, on a unit basis, are compared to other spots of the same class that have been sold on the station either on their own or in other packages to determine if the spots from this package have any impact on the station’s lowest unit rates. This allocation is done in an internal station record, which does not need to go into the public file and does not need to be revealed to the candidate. Other than the station, only the FCC will see this allocation if they decide to conduct some sort of audit. We wrote more about this process of allocating spots in a package here.

These are just some of the myriad issues that arise in computing lowest unit rates. Stations need to be familiar with these rules and apply them accurately through the lowest unit rate window. Check with your own legal advisor to discuss the specifics of these issues as they arise as they are often very difficult to apply in the real world.  Some of the other situations that arise with lowest unit rates, and with other political issues that come up in any election season, are covered in our Political Broadcasting Guide, available here.  This article in an update of an article from a series that we did several years ago on Political Broadcasting Basics, which we may update from time to time over the next few weeks.  Other articles that deal with other political broadcasting subjects can be found on our blog by clicking on these links:  equal opportunitiesreasonable access, the no-censorship provision that governs candidate ads, and the potential for station liability for untruthful statements made in third party ads.  Also, see our article here about the obligations for the political file required as part of the online public file, and the importance that the FCC puts on that file.  And our articles hereherehere and here on the new requirements for the identification in the public file of all the issues mentioned in any advertising on federal political issues or candidates.  The laws regarding political broadcasting are extremely complicated – talk to your own attorney for specific advice on situations that arise at your station.


FCC Eliminates Rule Requiring Broadcast Station Tower Owners to Give Access to Competing Stations

Delivered... David Oxenford | Scene | Thu 6 Aug 2020 4:04 pm

The FCC yesterday acted to resolve the proceeding begun a year ago (see our article here) to eliminate the rule that prevented an FM or TV broadcaster from denying space to a competing broadcaster on a broadcast tower that it controls.  As expected, that rule was eliminated by an order to become effective when it is published in the Federal Register (as it adopts no new paperwork requirements, review under the Paperwork Reduction Act which so often delays the effective date of FCC actions is not required).  This rule was initially adopted 75 years ago and, in the past, it had been seen as a way to ensure that a broadcaster could not, by withholding access to a unique tower site that the existing broadcaster controlled, foreclose a new competing station from coming on the air.

The FCC justified its abolition of the rule by finding that there are many more towers now available to broadcasters than were available when this rule was first adopted, and most of these new towers are owned by companies that do not own broadcast stations and have no incentive to stop a new broadcast station from leasing space on their facilities.  Also, the FCC noted that it is not the lack of access to tower space that limits the ability of potential broadcasters to launch new competitive stations in a market, but instead the lack of available spectrum in any community on which to operate a new FM or TV station.

The rule was always very narrow in scope, and thus had never been successfully used.  The rule only prohibited the renewal of the license of a radio or TV station that did not provide access to a unique tower site to a potential competitor.  The FCC could never force a broadcaster to provide access to a competitor – it could only wait to the next renewal and decide not to renew a station license if the competitor was denied access.  Moreover, the competitor had to prove that the site to which it was denied access was unique – that there was no other suitable site from which the competitor could operate.  As there were always arguments that some new tower could be built to accommodate the competitor, or some building might exist where its antenna could be mounted, that uniqueness requirement limited the applicability of the rule.

Many years ago, I represented a new broadcaster who had tried to use that rule to gain access to a tower site that appeared to be the only one from which it could launch its new TV station.  While in initial orders the FCC declined to order the licensee to make the site available (as its renewal was pending), the complaint based on this rule did eventually result in the new TV station getting access to the tower.  But that was a different time, when there were few towers and many more new entrants to the broadcast industry.  Now, when towers have become much more plentiful with the explosion of wireless companies that demand tower space, and so few new broadcast stations, the rule appears to have outlived its usefulness.  So, as the FCC noted, no broadcaster supported its retention.  Now it is one less rule broadcasters have to remember.

This Week in Regulation for Broadcasters: July 11, 2020 to July 17, 2020

Delivered... David Oxenford | Scene | Sat 18 Jul 2020 7:27 pm

Here are some of the FCC regulatory and legal actions of the last week—and congressional action in the coming 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 Media Bureau reminded broadcasters that July 13, 2021—the hard deadline for LPTV stations and TV translators to transition to digital—is one year away. Stations that have not yet constructed a digital facility must cease analog television operations no later than July 13, 2021 and remain silent until construction is completed.  The Public Notice details the steps stations must take if they may not meet the deadline due to delays with obtaining zoning or other approvals, inability to obtain equipment, financial hardship, the need to modify their current permits for digital operations, and similar constraints.  (Public Notice)  (Broadcast Law Blog)
  • The FCC issued a reminder that cable and satellite TV operators must, after July 31, 2020, deliver certain notices to TV stations by email. This rule change syncs with the FCC’s requirement that TV broadcasters post to their public files, by July 31, 2020, an email address to receive notices from cable and satellite operators relating to carriage matters including must-carry and retransmission consent elections.  (Public Notice)  (Report and Order)  (Broadcast Law Blog)
  • Clarifications and rule changes regarding Next Generation TV (ATSC 3.0), that were released in June, become effective on August 17. The FCC provided additional guidance on waivers (“No Viable Local Simulcasting Partner” and “’Reasonable Efforts’ to Preserve Service”) of the local simulcasting rules to broadcasters deploying Next Gen TV, declined to allow the use of vacant broadcast channels for Next Gen TV deployment, and clarified that the “significantly viewed” status of a Next Gen TV station will not change if it moves its ATSC 1.0 simulcast channel to a host facility.  (Federal Register)  (Broadcast Law Blog)
  • The Media Bureau set aside a grant of consent to assign an FM license and remanded the assignment application to the Bureau for further proceedings after learning more about the proposed assignor’s criminal conviction. This is a good reminder that the FCC can—and will—consider even non-FCC-related wrongdoing when evaluating applications, and generally it will not allow a person with character issues to profit from the sale of a broadcast station.  (Order)
  • Eighteen radio stations in Indiana, Kentucky, and Tennessee were warned that their licenses will expire if they do not file license renewal applications by midnight on August 1, 2020. Stations in these three states were required to file applications for license renewal by April 1, 2020 for terms expiring on August 1, 2020, and these stations did not meet the required deadline.  This is a good reminder to check the date that your license renewal application is due and remember to timely file that application.  (Public Notice)
  • Two “Broadcast Internet” items were published in the Federal Register.
    • The first item, a declaratory ruling, makes clear that television spectrum leased for datacasting does not trigger FCC multiple ownership issues. (Declaratory Ruling)
    • The second item, a Notice of Proposed Rulemaking, seeks comment generally on the industry’s ideas for potential uses of the datacasting potential of ATSC 3.0, what the FCC has termed the Broadcast Internet, and what regulatory barriers exist to deployment of new services. Comments and reply comments are due by August 17 and August 31 respectively.  (NPRM)(Broadcast Law Blog on Broadcast Internet)
  • Chairman Ajit Pai announced the items the Commission will consider at its August 6 Open Meeting. Two items relevant to broadcasters made it to the agenda.(Blog)  (Tentative Agenda and Draft Items)
    • The Commission will vote on an order to eliminate the radio duplication rule for AM stations, while retaining the rule for FM stations. The Chairman notes that the realities of the marketplace and technical challenges faced by AM broadcasters point to elimination of the rule. The current rule prohibits a radio station in one service (either AM or FM) from duplicating more than 25% of the weekly programming of another station in the same service, if there is more than 50% overlap of the principal community contour of either of the stations. We wrote about this proposal here.  (draft Report and Order)
    • The second item to be voted is an attempt to clear what many might consider “regulatory underbrush” by eliminating a rule that requires a broadcaster who owns a unique tower site to share that site with competing local stations. The Commission believes there has never been a case where there was never a case where this rule was used as there was never a showing that a site was unique and, as no broadcast licensees submitted comments during the rulemaking, it plans to abolish the rule.  (draft Report and Order)
  • We wrote on the blog about some issues that businesses of many stripes should consider as more of normal life shifts online, namely music licensing and unlicensed use of spectrum. Music license holders need to review carefully the licenses they hold to be sure that the new activities they are involved in due to the pandemic, including conducting business and other public gatherings on ZOOM and similar platforms, are covered by the rights they hold.  Similarly, businesses that have shifted to serving customers outdoors need to be mindful of their spectrum use (particularly regarding unlicensed low power FM broadcasts) and not run afoul of the FCC’s permitted uses.  You may wish to share our blog post with your advertisers and clients that are dealing with the concerns we discuss in the article.  (Broadcast Law Blog)
  • The FCC took a victory lap now that the 39-month post-incentive auction repacking of the television band has come to a close. In Chairman Ajit Pai’s remarks before the American Consumer Institute Center for Citizen Research and in a news release, the FCC touted the success of the repack and thanked the broadcast and wireless industries, the tower crews, the equipment manufacturers, the radio frequency engineers, and the Commission staff that made the repack possible.  Chairman Pai acknowledged the difficulties encountered—and overcome—along the way and how all parties pulled together to accomplish what was once seen as a task tied to an impossible-to-meet deadline.  (News Release)  (Remarks)  (Broadcast Law Blog)
  • Broadcasters planning to provide on-the-ground coverage of the upcoming national political conventions in Charlotte, NC, Jacksonville, FL, and Milwaukee, WI, and the 2021 Presidential Inauguration in Washington, DC must coordinate their frequency and spectrum use with Louis Libin, the newly-named special frequency coordinator and RF spectrum manager for these events. The FCC established a single point of contact for Broadcast Auxiliary System operations coordination to manage spectrum congestion and alleviate harmful interference.  Libin can be reached at (516) 374-6400 and louislibin@broad-comm.com.  (Public Notice)

And, next week, be aware that this activity is taking place on Capitol Hill:

  • The Senate Commerce Committee on July 22 will vote on Commissioner Michael O’Rielly’s nomination to another five-year term at the FCC. Should the nomination be voted favorably by the committee, the Commissioner’s nomination moves on to consideration by the full Senate.  (Executive Session)


FCC Reminder to TV Stations – July 31 Deadline for Adding to Their Public File Contacts for Must-Carry/Retransmission Consent Communications

Delivered... David Oxenford | Scene | Fri 17 Jul 2020 3:24 pm

Broadcast TV stations have until July 31, 2020 to upload to their public file a phone number and email address to be used for receiving signal carriage notices and questions.  This information must be kept current and will be used in the must-carry and retransmission consent carriage election statements that must be uploaded by stations to their online public files by October 1 of this year for the 2021-2023 cycle.  Under new FCC rules adopted last year, stations now upload their must-carry/retransmission consent elections to their public file every three years within the normal election cycle.  A similar obligation is placed on MVPDs (cable and satellite TV providers) to upload their contact information for carriage election purposes to the Cable Operations and Licensing System by July 31.  The FCC issued a Public Notice this week reminding cable operators of this requirement.  Broadcasters need to notify MVPDs of their must-carry/retransmission consent election only if that election changed from the prior cycle (see our article here). Don’t miss these important deadlines.

The Evolution of TV – The End of the Repack, a One-Year Reminder to the End of Analog LPTV, and the Start of the ATSC 3.0 Roll-Out

Delivered... David Oxenford | Scene | Thu 16 Jul 2020 2:32 am

Tuesday marked the end of the TV repacking following the TV incentive auction – shrinking the TV band by moving all TV stations to channels below what used to be Channel 37 (with a few exceptions for stations given a couple of extra months due to last minute COVID-19 delays, as discussed in the FCC decision here).  The FCC announced the end of the transition in a Press Release, and Chairman Pai delivered remarks on an American Consumer Institute webcast, thanking his staff for making the transition happen.  Remarkably, in the 15-year life of this blog, this is the second time that we have written about the shrinking of the TV band – the first following the transition of television from analog to digital over a decade ago (see, for instance the articles here and here from the 2009 digital transition).

That transition to digital is not complete, as we were reminded by another Public Notice released by the FCC on Monday.  This Public Notice emphasized to LPTV and TV translator operators, some of whom still have not transitioned to digital operations, that they have one more year to do so.  By the end of the day on July 13, 2021, all LPTV and TV translator stations need to be operating in digital or they need to cease operations.  The Public Notice reminds these operators who have construction permits for new digital facilities to extend those permits if they expire without construction completion before next year’s transition deadline – and alerts these operators to file by May 1, 2021 any last-minute modifications of the technical facilities specified in construction permits authorizing their digital transition.  Filing by May 1 gives the FCC sufficient time to process these applications so that any changes can be implemented by the July 13 deadline.

While the public notice does not mention it, the July 13, 2021 deadline would also be the date by which so-called Franken FMs (LPTV channel 6 stations that use their audio to broadcast a signal that can be received by FM radios) would have to cease operations, unless some extension is authorized by the FCC.  The radio trade press made much of this yesterday.  The FCC has several times asked for public comment on what to do with these stations – whether to allow post-transition analog audio transmissions (see, for instance, our article here), but has not yet made any decision.  Obviously, radio operators running these hybrid stations are hoping for action before the July 13 deadline to allow their operations to continue beyond the deadline.

At the same time the FCC is ending one transition, the TV industry is beginning another – the transition to NextGen TV – ATSC 3.0.  As we have written before, this is a new TV transmission standard that will operate with an Internet Protocol compatible system that can interact with other IP-based devices, that can transmit more data along with video programming, and is far more robust in a mobile environment than is the current TV transmission standard.  In the past few weeks, several TV markets have announced the initiation of regular ATSC 3.0 transmissions.  As we wrote here, the FCC recently resolved some outstanding issues, including determining that the broadcast ownership limits would not be applied to parties using spectrum on multiple stations in the same market for what the FCC termed Broadcast Internet services.  In that same decision, the FCC also asked for comments on other actions it could take to promote the development of these services.  That request for comment was just published in the Federal Register, setting August 17 as the comment date, with replies due August 31.

In one of our weekly updates on FCC actions, we also noted that the FCC recently resolved several reconsideration petitions that had sought review of the FCC’s initial order allowing ATSC 3.0 operations.  That recent decision provides guidance on how the Commission will evaluate petitions for waiver of the local simulcasting rules for broadcasters deploying ATSC 3.0 who cannot find a partner station to act as a “lighthouse” station, i.e. continuing to broadcast its signal in the current transmission standard for some period of time so that consumers who have not bought new TV sets can continue to receive the signal.  The decision also declines to allow broadcasters to use vacant in-band channels for ATSC 3.0 deployment.  It clarifies that the “significantly viewed” status of an ATSC 3.0 station will not change when that station moves its ATSC 1.0 simulcast channel to a host facility.  It also denied various petitions challenging aspects of the Commission’s 2017 Next Gen TV order, including issues dealing with the local simulcast requirement, the application of retransmission consent rules, patent licensing issues, and sunset of the obligation to use the current transmission standard for ATSC 3.0 (that sunset allowing the new transmission mode to evolve over time without the need for FCC action).  In effect, it cleared the way for the deployment of the new technology that is already taking place.

Broadcast TV is an ever-changing medium, and this is obviously a time of rapid change.  Keep watching the FCC and other agencies as regulatory obligations evolve along with the transmission standards.

FCC Gives Notice of C-Band Earth Stations Eligible for Reimbursement Before Repurposing Part of that Spectrum – Broadcasters Need to Review and File Corrections By July 16

Delivered... David Oxenford | Scene | Thu 9 Jul 2020 5:04 pm

The FCC’s International Bureau released a preliminary list of C-Band earth stations (those that operate in the 3.7-4.2 GHz band) in the contiguous U.S. that the Bureau has reviewed and said appear to qualify as “incumbent earth stations” which will be eligible for reimbursement for reasonable costs of changes to their facilities caused by the upcoming repacking of the C-Band.  The C-Band will be partially reallocated for use by wireless carriers, requiring changes in many existing earth stations.  The FCC’s notice about the preliminary list is available here, the preliminary list of incumbent C-band earth stations with explanatory notes in PDF format is available here, and the preliminary list of incumbent C-band earth stations as an Excel chart is available here.  It is important that all broadcasters who have registered earth stations immediately review this list – as corrections need to be submitted to the FCC in just a week – by July 16, 2020.

The Bureau reviewed the status of all earth stations with active or pending licenses or registrations in the C-band.  The incumbent licensees were those who were operating in 2018 and filed FCC registrations by that year and updated those registrations in 2019 (see our articles here and here).  The list includes earth stations whose timely-filed applications are still pending, though they may ultimately not be eligible for reimbursement if the applications are not granted.  The Bureau did not include earth stations whose applications it has dismissed as not meeting the criteria for incumbent status, even if the dismissal is not yet final under the Commission’s rules.

Corrections to the list need to be submitted to the FCC in writing by July 16, 2020, as well as any comments on the list and the FCC’s notice.  If your earth station was left off the list, or the information is inaccurate, corrections need to be made.  The FCC notice sets out very particular procedural requirements for the filings, which need to include the FCC file numbers of authorizations and reference to the Docket number of the FCC’s proceeding in which this notice was issued. No new earth stations or changes in the location of such stations will be accepted.  The FCC is allowing minor corrections to site addresses and/or GPS coordinates of an existing earth station location or minor changes in operations (e.g., change in an emission designator or, importantly, an antenna no longer in use, or other information that would help inform the satellite operators’ transition plans).

The comments and corrections must be filed electronically in an FCC database and need to follow the specifics set out in the notice.  Stations should consult with their engineers and lawyers to make sure that any required filings are made following the procedures set out in the Notice, by the July 16 deadline.

July Regulatory Dates for Broadcasters: End of the TV Repacking, Quarterly Issues/Programs Lists, Children’s Television Reporting, EEO, Carriage Election Public File Information Deadline, LPTV Settlement Window, Rulemaking Comments and More

Delivered... David Oxenford and Adam Sandler | Scene | Mon 29 Jun 2020 4:58 pm

July is usually a month of family vacations and patriotic celebrations.  While the pandemic has seen to it that those activities, if they happen at all, will look different than they have in years past, there are plenty of regulatory obligations to fill a broadcaster’s long, summer days.  Here are a few of the dates and deadlines to watch for in July, and a quick reminder of some of the significant filings due right at the beginning of August.

On or before July 10, all TV and radio stations must upload to their public file their Quarterly Issues/Programs Lists for the 2nd quarter (April, May and June).  Stations that took advantage of the FCC’s extension of time to file their 1st quarter (January, February and March) list must also by July 10 upload that list to their public file.  As a reminder, the Quarterly Issues/Programs Lists are a station’s evidence of how it operated in the public interest, demonstrating its treatment of its community’s most significant issues.  The FCC has shown (see here and here) that it takes this requirement seriously and will fine stations, hold up license renewals, or both if it finds problems with a station’s compliance.  For a short video on complying with the Quarterly Issues/Programs List requirement, see here.

Also, on or before July 10, television stations must file their first annual Children’s Television Programming (also known as KidVid) Report.  The report was initially due in January, but the due date was pushed back to March 30 to allow licensees to become familiar with the new forms and then the Commission announced a blanket extension to July 10 due to coronavirus.  The report to be filed in July covers September 16, 2019 through December 31, 2019.  The next report, likely due in January 2021, will cover all of 2020.  For a deeper look at how to comply with the new programming and reporting changes, see our posts hereherehere, and here.

By July 3, TV stations assigned to Phase 10 of the incentive auction repack must have completed their transition to their post-auction facilities.  This group includes stations originally assigned to Phase 10 and Phase 9 stations that, due to the COVID-19 pandemic and associated delays with tower and construction crews and station personnel compliance with stay-at-home orders, were granted a waiver to move to Phase 10 (we wrote about the waiver process here).  The FCC recently granted one station an extension until September to complete its channel change due to delays from the pandemic and directed the Media Bureau to review requests from any other stations that may need a little more time.  See the FCC’s Order here for more details.  The July 3 transition deadline marks the end of a ten-year process to reallocate TV band spectrum that began in 2010 with the release of the National Broadband Plan.

There is another important date in July dealing with cable and satellite carriage elections for all television stations.  Broadcast TV stations and multichannel video programming distributors (e.g., cable and satellite providers) have until July 31 to upload to their public file or the Cable Operations and Licensing System a phone number and email address to be used for receiving signal carriage notices and questions.  This information must be kept current and will be used in the must-carry and retransmission consent carriage election statements that must be uploaded by stations to their online public files by October 1 of this year for the 2021-2023 cycle.  Under new FCC rules adopted last year, stations now upload their elections to their public file every three years on the normal election cycle and notify MVPDs of their must carry/retransmission consent election only if that election changed from the prior cycle (see our article here).

By July 24, the 35 stations randomly selected by the FCC’s Enforcement Bureau to be audited for their compliance with the EEO rules must upload their responses to their public file.  Among the items requested as part of the audit are copies of EEO annual reports, copies of advertisements, bulletins, emails, and other documents used to disseminate information about open positions, data supporting interviewee referral sources, and documentation about the station’s recruitment efforts.  See our article here about the audit and EEO compliance.

Applicants for new LPTV and TV translator stations filed back in 2009 who filed earlier this year to move their operations because of the TV spectrum repacking, and ended up mutually exclusive with another applicant filing to move because of the repack in the same window, have until July 31 to reach a settlement with any mutually exclusive applicant or to make technical changes in their facilities to resolve the conflict.  Also, LPTV and TV translator stations on channels 38, 44, 45 or 46 must vacate their channels by July 13 to allow for new wireless uses.  For more about these deadlines, see our article here.

The FCC will hold its next Open Meeting on July 16 though, in contrast to recent months, no broadcast-specific items made it on the agenda.  The FCC will, however, review its rules on cable leased access obligations.  The agenda and draft items can be viewed here.

Parties in opposition to the federal government’s petition to the U.S. Supreme Court for a writ of certiorari in Federal Communications Commission, et al. v. Prometheus Radio Project, et al. have until July 21 to submit an opposition brief.  The original due date of May 20 was pushed back to allow new counsel for Prometheus and its co-parties to get up to speed and in acknowledgement of the difficulty of organizing a response during COVID-19.  This is the appeal by broadcasters of the Third Circuit decision throwing out the FCC’s 2017 order changing many broadcast ownership rules – including the abolition of the newspaper-broadcast cross-ownership rule.  You can catch up on this issues in this appeal here.

Finally, there are lots of comments in rulemaking proceedings.  Reply comments in the FCC’s video description proceeding are due by July 6.  Video description refers to the insertion in TV programming of spoken narration of what is happening on the screen to aid blind or visually impaired persons.  As we wrote here, the Commission’s Notice of Proposed Rulemaking seeks comment on expanding the video description rules to require more stations— beginning with ABC, CBS, NBC and Fox stations in markets 61-100 and later expanding by an additional 10 TV markets each year for the next four years—to provide described programming. In the first round of commenting, the National Association of Broadcasters urged the Commission to delay by 9 months (from January 1, 2021 to October 1, 2021) the imposition of this new obligation.  NAB cites the difficulty for stations that are already deep into budgeting for 2021 to accommodate this new financial outlay, especially as many stations are trying to recover from the economic downturn brought on by the pandemic.

By July 13, reply comments are due in the FCC’s proposal to expand the use of Distributed Transmission Systems (DTS) by television stations operating with the new ATSC 3.0 transmission system.  In short, use of a distributed transmission system by a TV station allows the station to extend—within its noise-limited service contour—the strength of its signal, to serve viewers who were unable to receive a clear signal.  Parties interested in submitting reply comments can read the first round of comments that were submitted here and read our post from May with more detail about DTS and about the questions being asked in the Notice of Proposed Rulemaking.

On or before July 23, interested parties can share with the FCC their comments on a proposal to allow broadcast licensees to originate programming on FM translators.  A group of broadcast licensees has asked the FCC think bigger than the proposals put forth in the recent FM boosters zonecasting proceeding and to allow translators to originate up to 40 hours of original programming per week.  The proposal also suggests allowing translators to locate within the primary station’s 45 dbu contour, rather than within the 60 dbu contour of an FM primary station as now required.  See our post here for more details about the proposal and expected next steps.

As a preview of what is to come in early August, full-power TV, Class A TV, TV Translator and LPTV stations in North Carolina and South Carolina and full-power AM, FM, noncommercial educational FM, FM Translator, and LPFM radio stations in Illinois and Wisconsin must file an application for license renewal by August 3 (the actual filing deadline date is August 1, a Saturday, so the deadline shifts to the next business day).  Stations are no longer required to air pre-filing announcements but should already be working on their renewal applications with an eye toward the August 3 deadline.

Full-power TV, Class A TV, LPTV, full-power AM, FM, and noncommercial educational FM stations with August 1 (and, as noted above, August 3) license renewal dates in any year are also required to post to their public file and on their website an Equal Employment Opportunity (EEO) Report, detailing the station’s compliance with the FCC’s EEO rules over the preceding year.  Those August 3 renewal stations in North Carolina, South Carolina, Illinois, and Wisconsin must also file a Broadcast Equal Employment Opportunity Program Report (FCC Form 396).  The license renewal application requires the Form 396 file number, so that form must be filed before you can finalize your renewal application.

As you can see, we have highlighted many important dates upcoming in July, so be sure you are in touch with your station’s attorney and staying on top of not only these dates, but also any other dates and deadlines that apply to your operation.

This Week at the FCC for Broadcasters: June 20, 2020 to June 26, 2020

Delivered... David Oxenford and Adam Sandler | Scene | Sat 27 Jun 2020 8:43 pm

Here are some of the regulatory actions 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:

  • FEMA announced that it has canceled the 2020 test of the Integrated Public Alert and Warning System (IPAWS), which is the technical infrastructure that delivers EAS messages to radio and TV stations. FEMA noted the “unusual circumstances and working conditions” brought on by the pandemic and acknowledged that post-test reporting would place additional burdens on station personnel already stretched thin to keep their operations on the air.  (Broadcast Law Blog)  (News Release)
  • Through a Public Notice, the FCC announced July 13 as the effective date for certain technical rules for LPFM stations. Though some of the new rules, like changes to the waiver process regarding interference between Channel 6 TV stations and noncommercial FM stations operating on the reserved band and use by LPFM stations of FM boosters become effective next month, other rules, like changes regarding the use of directional antennas and a revision to the definition of a minor change will not be effective until a later date, as yet unannounced.  See the Broadcast Law Blog post here for more detail.  (Public Notice)  (Report and Order)
  • The FCC announced in April that, in light of the shifting economic situation facing many broadcast advertisers, it would allow stations to air certain PSAs, using time donated by commercial entities to organizations involved in the pandemic relief effort, without identifying the commercial entities paying for the time as would otherwise be required by the sponsorship identification rules (see our Broadcast Law Blog article on that decision).  The waiver was to expire on June 30, but this week it was extended through August 31, 2020. (Order)
  • The FCC denied an Application for Review submitted by a West Virginia LPTV operator making clear that the Communications Act and FCC rules do not require mandatory carriage of LPTV stations on satellite television systems. (Memorandum Opinion and Order)
  • In a reminder that stations must file an application whenever there is a change in control of a broadcast station, even one caused by the death of a controlling shareholder, the Commission upheld the Media Bureau’s decision to dismiss an application for license renewal of a Mississippi FM station because it failed to do so, which effectively terminated its right to operate. (Order on Reconsideration)
  • Comments were due this week in the FCC’s video description proceeding. Video description refers to the provision on a subchannel of spoken narration describing what is happening on screen in TV programming to aid blind or visually impaired persons.  The Commission sought comment on expanding the video description rules to require more TV stations to provide this service. In the first round of comments filed this week, the National Association of Broadcasters urged the Commission to delay the effective date of the proposed expansion of the video description requirements by 9 months (from January 1, 2021 to October 1, 2021).  NAB cites the difficulty for stations that are already deep into budgeting for 2021 to accommodate this new financial outlay, especially as many stations are trying to recover from the economic downturn brought on by the pandemic.  (MB Docket 11-43)  (Broadcast Law Blog)
  • The FCC dismissed an application to deliver Chinese programming from a studio in the US to a Mexican station which places a signal back into the United States. Federal law (Section 325(c) of the Communications Act) requires FCC approval for US-produced programming to be exported to a foreign station with significant US coverage.  This procedural decision suggests that all parties producing the programming need to be co-applicants.  (News Release)  (Order)
  • The five FCC Commissioners visited Capitol Hill to participate in a Senate Commerce Committee oversight hearing. The statements, questions and answers focused mostly on non-broadcast matters, but the Commissioners reiterated their support for press freedom, discussed Broadcast Internet services, the C4 radio station class and the minority tax certificate.  (Commissioner Prepared Statements and Archived Video)
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