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

Congressional Letter to FCC on CALM Act Violations Puts Focus on FCC Enforcement Issues

Delivered... David Oxenford | Scene | Mon 19 Apr 2021 3:51 pm

As we highlighted yesterday in our weekly summary of regulatory issues for broadcasters, last week saw a letter from Congresswoman Anna Eshoo to the FCC asking for the FCC to review the enforcement of the rules established by the CALM Act, which prohibits loud commercials on TV stations.  The letter cites news reports of thousands of complaints annually to the FCC since the rule’s adoption in 2012 without there ever having been an enforcement action against a station for any violation.  When the CALM Act was passed by Congress, there were many industry questions about how that law could be enforced, as there are many subjective judgments in assessing whether a commercial is louder than the program into which it is inserted (see our article here).  But, ultimately, the FCC adopted rules that were based on industry standards and most parties seemed to believe that they were workable (see our article here about the adoption of those rules).  Like many FCC rules, the CALM Act rules are complaint-driven, and even the article cited by Congresswoman Eshoo recognized the difficulty in assessing the merits of any complaint.

Nevertheless, with this letter and the publicity that it has received in the broadcast trade press, TV stations should carefully review their compliance with the CALM Act rules, as this publicity could signal that the FCC will turn its attention to this issue in the coming months.  In fact, with a Commission that is currently evenly divided between Democrats and Republicans until the vacant seat on the Commission is filled, enforcement of existing FCC rules may well be one place where the current Commission will turn its attention while more controversial (and potentially partisan) rule changes await FCC action.

We have obviously seen some more attention being paid to enforcement issues in recent months.  In addition to the consent decrees signed by hundreds of radio broadcasters for political file violations (see our articles here and here), there have been a recent spate of consent decrees entered into by broadcasters both noncommercial (see our article here) and commercial (see our mention here in one of our weekly updates) based on more general failures to maintain a complete and current online public inspection file.  We have also noted an uptick in questions about EEO performance raised in connection with license renewal application filings.  There have been enforcement inquiry letters sent by the FCC on other issues too, including EAS compliance.  We also noted the recent enforcement updates issued by the FCC reminding broadcasters of their obligations under FCC rules, including the one on sponsorship identification about which we wrote here.  Maybe it is just a perception, but enforcement issues seem to be a priority for the FCC.

Obviously, compliance with FCC rules should always be the highest of priorities among any participants in a heavily regulated industry like broadcasting.  But every now and then, the FCC seems to take steps to remind broadcasters of their obligations.  This seems to be one of those times – so broadcasters, take note.

This Week in Regulation for Broadcasters: April 10, 2021 to April 16, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 18 Apr 2021 1:22 pm

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

  • According to press reports, broadcasters should pencil in August 11, 2021 on their calendars for the next national test of the Emergency Alert System (EAS). Following the test, broadcasters will need to report to the FCC how their EAS equipment functioned and what, if any, problems were encountered relaying the test message.  This information will be used by the FCC in a report on the readiness of EAS in the event of an activation.
  • The FCC posted an online tutorial for parties interested in participating in Auction 109, the upcoming auction of 136 FM construction permits and 4 AM construction permits which will allow winning bidders to construct new radio stations. The tutorial is available for on-demand viewing on the “Education” tab of the Auction 109 website at http://www.fcc.gov/auction/109.  The window to apply for a construction permit is from 12:00 p.m. Eastern on April 28 to 6:00 p.m. Eastern on May 11.  We wrote about the auction, here.
  • Congresswoman Anna Eshoo (D-CA) wrote to Acting FCC Chairwoman Jessica Rosenworcel requesting that the agency look at the reported increase in complaints tied to the loudness of TV commercials and, if necessary, take enforcement action under the CALM Act. The letter cites press reports of thousands of consumer complaints to the FCC which never resulted in any enforcement action.  Eshoo sits on the House Energy and Commerce Committee, which has jurisdiction over the FCC, so stations should review CALM Act compliance as this may be an area of FCC review in coming months.  (Eshoo Letter)
  • We reminded broadcasters that, even outside of political windows, they must upload appropriate information to the political files folder in their FCC-hosted online public inspection file reporting on ads that run on their stations addressing controversial issues of public importance. (Broadcast Law Blog article).

Looking ahead to next week, earth stations operating in the C-Band that have been reported as no longer operational or that have not responded to communications from the C-Band Relocation Coordinator must act by April 19 and file with the FCC confirming their continuing operational status or their authorizations will be deleted from the FCC’s database and no longer protected.  While this deadline has been the subject of many trade press reports and some widely distributed memos from law firms, it actually affects only a handful of broadcasters.  Earth station operators that have filed for lump sum reimbursement or have otherwise been in contact with the Relocation Coordinator should not appear on the lists and have no April 19 filing obligation.  We posted the lists and wrote more, here, about the deadline.

Also next week, the FCC will hold its required monthly Open Meeting.  Broadcasters will be watching two agenda items in particular: the vote to adopt new rules for identification of programming that is sponsored by a foreign governmental entity and the vote to adopt a ten-application limit in the upcoming noncommercial, reserved band FM construction permit filing window.  We wrote briefly about these items, here.

This Week in Regulation for Broadcasters: April 3, 2021 to April 9, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 11 Apr 2021 2:26 pm

Here are some of the regulatory developments from 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 National Association of Broadcasters this week announced that its CEO, Gordon Smith, will be stepping down at the end of the year to be replaced by COO, and former head of Government Relations at the NAB, Curtis LeGeyt. We wrote here about some of the many legal and policy issues likely to be facing the NAB in the coming years.
  • The FCC continues to scrutinize public file compliance in connection with the filing of a license renewal application. After several noncommercial stations entered into consent decrees over non-compliance, commercial stations have started to receive consent decrees, as well.  In the latest example, a Tennessee station had not filed an ownership report since 2012 and had not uploaded any quarterly issues/programs lists to its public file.  The consent decree comes with the requirements to name a compliance officer, adopt a written plan that includes a compliance manual and mandatory training for employees, quickly report future public file violations to the FCC when they are discovered, and file periodic compliance reports with the Commission. (Consent Decree)  As all full-power stations, commercial and noncommercial, should have uploaded Quarterly Issues Programs Lists to their online public file by April 10, this reminder that the FCC is watching stations’ public files is very timely.
  • The FCC reminded full-power TV stations, Class A TV stations, LPTV and TV translator stations, FM radio stations, and multichannel video programming distributors (MVPDs) that filing deadlines begin in six months for the submission of all remaining invoices for reimbursement for the costs they incurred from the repacking of the TV band following the Incentive Auction. Full-power TV and Class A TV stations that were assigned to repack phases 1-5 have a final invoice submission deadline of October 8, 2021.  Full-power TV and Class A stations assigned to repack phases 6-10 have a deadline of March 22, 2022.  Low power TV stations, TV translators, FM radio stations, and MVPDs have a filing deadline of September 5, 2022.  See the Public Notice for more details on the close-out procedures.  We wrote more about this, here.
  • The FCC issued a Public Notice asking interested parties for comment on whether updates are necessary for the rules that are required to implement the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). The CVAA is responsible for such agency rules as audio description, accessible emergency information, and closed captioning of video delivered over Internet Protocol.  Comments are due by May 24 and reply comments are due by June 21.  (Public Notice)

Looking ahead to next week, the FCC by Wednesday, April 14 will post an online tutorial to help parties interested in participating in Auction 109, the upcoming auction of 136 FM construction permits and 4 AM construction permits that we wrote about here.  The tutorial will provide information about all aspects of the upcoming auction for the opportunity to construct new radio stations. There will also be a way to ask FCC staff questions about the auction.  Once posted, the tutorial will be accessible on the “Education” tab of the Auction 109 website at http://www.fcc.gov/auction/109 for on-demand viewing.

Closing Out the Incentive Auction and TV Repack – FCC Reminds Broadcasters of End Dates for Submitting Invoices for Repacking Expenses

Delivered... David Oxenford | Scene | Fri 9 Apr 2021 3:49 pm

The Commission’s staff this week issued a Public Notice reminding broadcasters that  the reimbursement program for those broadcasters displaced by the repacking of the television band after the incentive auction is coming to an end.  The FCC reminded broadcasters eligible for reimbursement (including certain FM stations and LPTV licensees – see our article here ) that deadlines to submit invoices for reimbursement will start in six months.  By those deadlines, all remaining invoices for reimbursement from the TV Broadcaster Relocation Fund must be submitted to qualify for reimbursement.

While different deadlines apply to different categories of broadcasters eligible for reimbursement, the Commission “strongly encouraged” all broadcasters to submit all remaining invoices and initiate close-out procedures as early as possible.  The FCC notes in the Public Notice that payments up to the total amount of each entity’s allocation are available upon processing of documents reflecting reasonably incurred costs.  However, the FCC will not be able to make a final allocation up to the full amount of costs incurred until all or virtually all invoices for incurred costs are submitted, or at such time as the FCC can reasonably extrapolate that the total amounts available in the Relocation Fund will be sufficient to meet all of the costs that have to be covered under that program.

The final invoice filing deadlines are:

  • October 8, 2021 for Full power and Class A TV stations assigned transition completion dates in phases 1-5 of the Repack;
  • March 22, 2022 for Full power and Class A TV stations assigned transition completion dates in phases 6-10 of the Repack; and,
  • September 5, 2022 for Low Power TV and TV translator (LPTV/translator) stations, FM stations, and multichannel video programming distributors (MVPDs) who were eligible for reimbursement.

Look for more details about the process in the FCC’s Public Notice as well as in a prior Public Notice about these deadlines that was released on October 7, 2020.  These notices also remind broadcasters that submitting the invoices and receiving the reimbursement is not the end of the line – they must retain documents supporting the claimed expenses for a period ending 10 years after the date they receive their final payments from the Reimbursement Fund – just in case questions come up about the reimbursement claimed.  So if you have not made claims for reimbursement for repacking expenses, now is the time to do so.


With a Change at the Top at the NAB as CEO Gordon Smith Plans His Departure – What are the Regulatory Issues That are Facing Broadcasters?

Delivered... David Oxenford | Scene | Thu 8 Apr 2021 4:21 am

The broadcast trade press is full today with the news that NAB CEO Gordon Smith will be stepping back from that position at the end of the year, to be replaced by current COO (and former head of Government Relations) Curtis LeGeyt.  As many will remember, Smith took over the organization over a decade ago during a turbulent time for the industry.  At the time, TV stations faced increasing calls for other uses of the broadcast spectrum, and radio stations faced a possible performance royalty on their over-the-air broadcasts of sound recordings.  Since then, through all sorts of issues, there has been a general consensus in the industry that its leadership was in capable hands and meeting the issues as they arose.

But many issues remain for broadcasters – some of them ones that have never gone away completely.  The sound recording performance royalty for over-the-air broadcasting remains an issue, as do other music licensing issues calling for changes to the way that songwriters and composers are compensated, generally calling for higher payments or different compensation systems (see our articles here on the GMR controversy and here on the review of music industry antitrust consent decrees).  TV stations, while having gone through the incentive auction giving up significant parts of the TV broadcast spectrum, still face demands by wireless operators and others hungry for more spectrum to provide the many in-demand services necessary to meet the need for faster mobile services (see our articles here on C-Band redeployment and here on requests for a set aside of TV spectrum for unlicensed wireless users).  But competition from digital services may well be the biggest current issue facing broadcasters.

Digital services compete directly with broadcasters for both audience and advertising dollars.  The FCC’s 2017 changes in the ownership rules upheld by the Supreme Court last week (see our article here) were premised on changes brought about by digital competition.  Certainly, the abolition of the newspaper-broadcast cross-ownership restrictions was directly tied to the newspaper industry being fundamentally weakened by digital competition.  Forty-five years ago, when the prohibition was initially approved, newspapers had the largest share of the local advertising market.  As much of their readership and advertising is gone, many papers are struggling to stay alive. Thus, the newspaper has gone from a competitor whose combination with a broadcaster threatened the competitive balance in a market to one where that combination can be a lifeline to the paper.

The TV rules were also relaxed by the Court’s decision.  In light of competition from streaming services and online content, the FCC decided to allow TV owners in small and medium markets to own up to two TV stations, so that those owners can continue to provide the local services and free entertainment for which they have been known.  While there have been some calls to revisit those decisions, one can only imagine that the pandemic has accelerated trends toward more reliance on streaming services.  Moving away from the modest 2017 relaxation in local TV ownership rules in today’s environment would only set the stage for a weakened TV industry in the future.

Radio too faces these threats (see our articles here and here).  As radio audiences are eroded by streaming and podcasting, and over-the-air radios are becoming harder and harder to find in stores and even in homes, one cannot help but see the impact of digital competition on the health of the industry.  In 2019 when the FCC took comments on the radio ownership rules, economic studies showed that the big tech companies are now taking more than 50% of local advertising dollars in virtually every market in the country.  This has reduced the revenue that formerly supported local media like radio (which has always received the bulk of its advertising sales from local advertising, not national ads).  Allowing local radio stations to combine to battle the digital media giants will be another battle that will have to be faced by the NAB in the near term.

Regulation of the online platforms themselves is certainly going to be another issue on which the NAB will have to weigh in.  We recently wrote about the proposals for changes to the antitrust laws to allow broadcasters and other traditional media companies to jointly negotiate for fair compensation and other rules of the road with online service providers who distribute their content.  The NAB already has endorsed that call.  That issue will no doubt be just one of the many issues about digital regulation that will arise.  There have been some calls for creating a must-carry/retransmission consent regime for the virtual MVPDs that are now competing with traditional cable and satellite TV providers.  And there are a whole host of other proposed regulations on these digital platforms that the NAB will no doubt need to consider (see our article here for a summary of some of these issues).

These big picture items are just some of the many regulatory issues facing broadcasters.  There are always tax issues (like advertising sales taxes and ad tax deductibility) that could cause problems for broadcasters.  Other advertising issues regularly arise.  In the past few months, we have seen more and more calls for limitations on press freedoms and First Amendment protections that should trouble broadcasters.  And the FCC is always doing something that could affect broadcasters in some way, requiring industry vigilance.

The broadcaster’s regulatory plate is full.  We look forward to seeing Senator Smith at industry events during the remainder of his term to wish him well and thank him for his service.  And we extend our congratulations to Curtis LeGeyt and look forward to working with him, as he will now be charged with tackling all of the issues that face the industry in the coming years.

This Week in Broadcast Regulation – March 27, 2021 to April 2, 2021

Delivered... David Oxenford | Scene | Sun 4 Apr 2021 4:57 am

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

  • The Supreme Court this week announced its decision in Federal Communications Commission v. Prometheus Radio Project, the broadcast ownership case that was argued before the Court in January. In a unanimous opinion, the Court sided with the FCC and with broadcasters and upheld the FCC’s 2017 ownership rule changes which eliminated the newspaper-broadcast cross ownership rule, the radio-television cross ownership rule, and the television “8-voices test” allowing combinations of two TV stations in any market where at least one of the stations is not one of the top-4 ranked stations.  Also gone is the blanket prohibition on combinations involving two top-4 TV stations in a market, which is replaced with a case-by-case analysis by the FCC.  Our discussion of the opinion is here and the full opinion is available here.
  • Comment and reply comment deadlines were set for the FCC’s proposal to update its Emergency Alert System (EAS) and Wireless Emergency Alerts system (WEA) rules, including enhancing the reporting requirements for false EAS alerts, and its inquiry into whether emergency alerts can be delivered through the internet, including through streaming services. Comments on the EAS/WEA proposal are due by April 20, 2021, and reply comments are due by May 4, 2021.  Comments on the delivery of alerts by internet are due by May 14, 2021, and reply comments are due by June 14, 2021.  We wrote about the proposal and inquiry, here.  (Federal Register)
  • The FCC released more details for its upcoming Auction 109, which will auction the rights to 136 FM construction permits and 4 AM construction permits, allowing winning bidders to start new radio stations in the listed communities. The auction itself is scheduled to begin on July 27, 2021 (a list of the permits to be auction is here, with opening bid amounts).  Interested applicants must submit “short-form” applications to participate in the auction during a window that runs between 12:00 p.m. Eastern on April 28 through 6:00 p.m. Eastern on May 11.  For more details, review the Public Notice and our article here.  A freeze on FM minor change applications will be in place during the filing window.
  • The Copyright Royalty Board was given another two months to complete its work setting the royalty rates to be paid in 2021-2025 to SoundExchangefor the public performance of sound recordings by webcasters, including broadcasters who simulcast their programming on the internet.  Instead of a decision in the next two weeks (which we anticipated in our summary of April regulatory dates for broadcasters), the CRB decision can now be expected by June 14.  We wrote about the extension and the ongoing proceeding, here.  (News Release)
  • There are two items of interest to broadcasters on the agenda announced this week for the FCC’s April 22 required monthly Open Meeting. Scheduled to be voted on are:
    • New rules for standardizing and formalizing sponsorship identification requirements for broadcast stations that accept foreign government-provided programming. (Draft Report and Order)
    • Adoption of a ten-application limit per applicant in the upcoming 2021 noncommercial educational radio filing window where nonprofit educational broadcasters will be able to file for construction permits to build new noncommercial stations in the reserved band (below 92 FM). (Public Notice)
  • Two items we covered on the blog this week are also worth noting, one of which is regulatory and one of which is legislative. We wrote about the recent spate of noncommercial educational stations entering into consent decrees with the FCC over public file noncompliance tied to their license renewal applications.  On the legislative side, we wrote about a congressional effort to provide an antitrust exemption for creators of news content to get together to negotiate collectively with tech companies for payments for the use of that content on social media and other digital platforms.


Supreme Court Reinstates 2017 FCC Changes to Broadcast Ownership Rules Including the End to Newspaper-Broadcast Cross-Ownership Ban – But Radio Changes Yet to Come

Delivered... David Oxenford | Scene | Fri 2 Apr 2021 12:10 pm

The United States Supreme Court yesterday released its decision upholding the FCC’s 2017 changes to its ownership rules in the FCC v Prometheus Radio Project case (see our summary here).  Those rules had been put on hold in 2019 by a decision by the Third Circuit Court of Appeals which held that the FCC had to develop a more detailed record on the impact of rule changes on minority ownership before making any such changes (see our summary of that decision here).  The Supreme Court did not issue a sweeping decision evaluating the competitive landscape for the broadcast industry, nor was it expected to.  Instead, the Court decision was a narrow legal one, looking at whether the decision of the FCC was entitled to traditional judicial deference to expert administrative agencies.

The Supreme Court was reviewing the legal question of whether the FCC’s 2017 review of diversity was adequately justified.  In 2017, the FCC determined that that no substantial impact on diversity was proven by any party who filed comments in the media ownership proceeding and, to the extent that there was an impact, the benefits of making broadcast companies stronger competitors in today’s media marketplace outweighed that impact.  The Third Circuit would have had the FCC conduct a sweeping historical analysis of the impact of past instances where the ownership rules were relaxed to see the impact on minority ownership so that the FCC could judge the likely impact of new changes to the rules.  The Supreme Court found that the FCC had no obligation to conduct its own studies into that issue and, based on the evidence before the FCC, its decision to relax the rules was not an arbitrary one.  Thus, it was entitled to the deference given to decisions of expert regulatory agencies (see our article here on the deference given to administrative agency decisions).  In essence, this was a narrow decision based on principles of administrative law to which all nine Justices, liberal and conservative, could agree.

The practical result of this decision is that the newspaper-broadcast cross-ownership prohibition will end.  We have speculated before that the ban might well outlive the daily newspaper, but it appears that this will not be the case.  We certainly do not think that any future FCC would try to reinstate the cross-ownership ban given the current state of the newspaper industry.  Also abolished in 2017 and now formally ended are the radio-television cross-ownership restrictions.  The 2017 decision also did away with the requirement that, to combine two TV stations in the same market, there had to be 8 independently owned and operated stations in that market.  It also ended the strict prohibition on combining two of the top 4 TV stations in any market (substituting a case-by-case review by the FCC of proposed top 4 combinations).  These 2017 decisions were also upheld by the Court’s decision.

The decision does not directly affect the local radio ownership rules, which were left unchanged in the 2017 decision (except for a very narrow change concerning embedded markets – see our article here).  Changes to the radio rules were under consideration in a new ownership review started in late 2018, with comments filed in 2019 (see our summary here of the questions asked in that proceeding).  Consideration of any changes to the radio rules, such as the significant changes proposed by the NAB, were delayed after the Third Circuit’s decision because, under that court’s reasoning, before any such changes to the rules were made, there would need to be that detailed review of the potential impact on minority ownership.

Now that the Third Circuit’s reasoning has been rejected, that still does not mean that the FCC, particularly a Democratic-controlled FCC, will automatically look to relax the radio rule.  Instead, we think it likely that the Commission will ask for more comments on the issues raised in the 2018 proceeding.  This will likely include a request to discuss the impact of the Supreme Court decision on the Commission’s evaluation of proposed changes to its rules.  It would not be surprising for the FCC to also ask for an update of the comments filed in 2019 to reflect the state of current marketplace.  In other words, any change in the radio ownership rules will not come quickly.

The FCC may also ask for other comments on other ownership rules in light of the Court’s decision – including potentially revisiting some of the issues decided in 2017 (particularly the combinations of top 4 TV stations as, in the 2019 ownership proceeding, the FCC had asked for comments on when such combinations should be allowed).  With a new Commission that will in the not-too-distant future have a third Democratic Commissioner, the attitudes toward relaxation of the ownership rules may well be far different than they were in 2017.  In fact, Acting Chairwoman Rosenworcel issued a statement expressing her disappointment in the Court’s decision.  In contrast, Commissioner Carr, one of the Republican holdovers, stated his wholehearted approval of the Court’s decision.

So this decision, while reinstating the changes made in 2017, sets the stage for more ownership debates to come.  Watch for developments on these issues in the coming months.



Plan April Fools’ Day On-Air Stunts With Care – Remember the FCC Hoax Rule

Delivered... David Oxenford | Scene | Tue 30 Mar 2021 3:42 pm

After so much turmoil in the last year, radio stations may be inclined to blow off some steam this year with some big April Fools” Day stunt.  But because of the continuing issues with the pandemic and social tensions throughout the country, a prank that may seem funny to some could trigger concerns with others.  As we do every year about this time, we need to play our role as attorneys and ruin any fun that you may be planning by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other on-air bits prepared especially for the day.  While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes.  Issues under this rule can arise at any time, but a broadcaster’s temptation to go over the line is probably highest on April 1.

The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”  If you air a program that fits within this definition and causes a public harm, you should expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station falsely claimed that they had been taken hostage, and another case where a station broadcast bulletins reporting that a local trash dump had exploded like a volcano and was spewing burning trash.  In both cases, first responders were notified about the non-existent emergencies and emergency teams responded to the fake events after listeners called.  Thus, these crucial emergency personnel were temporarily not available to respond to real emergencies.  After the publicity from these incidents, the FCC adopted its prohibition against broadcast hoaxes.

And, as we’ve reminded broadcasters before, the FCC hoax rule is not the only reason to be wary about on-air pranks on April 1.  Beyond the potential for FCC fines, any station activity that could present the risk of bodily harm to a participant also raises the potential for civil liability.  In cases where people are injured because first responders had been responding to the hoaxes instead of to real emergencies, stations could have faced potential liability.   If some April Fools’ stunt by a station goes wrong, and someone is injured either because police, fire or paramedics are tied up responding to a false alarm, or if someone is hurt rushing to or from the scene of the non-existent calamity that was reported on a radio station, the victim will be looking for a deep pocket to sue – and broadcasters may become the target.  Even a case that doesn’t result in liability can be expensive to defend and subject the station to unwanted negative publicity.  So, have fun, but be careful how you do it.

Making the Tech Giants Pay to Use Traditional Media News Content – Looking at the Legislative Issues

Delivered... David Oxenford | Scene | Tue 30 Mar 2021 4:30 am

A few weeks ago, the news was abuzz with the controversy over an Australian law that would make social media companies and even search engines pay for their making available content originating with traditional media outlets.  While the controversy was hot, there were articles in many general interest publications asking whether that model could work outside Australia – and perhaps whether such a bill could even be adopted in the US.  What has received far less notice in the popular press was a US version of that bill that was recently introduced in Congress to address some of the same issues.  The Journalism Competition and Preservation Act of 2021 was not introduced in response to the Australian law, but instead it is an idea that pre-dated the overseas action.  Versions of the US bill have been introduced in prior sessions of Congress, though it never before gained much attention.  But this year’s version has been introduced in both the House and the Senate, has already been the subject of a Congressional committee hearing, and has gained support (including from the National Association of Broadcasters and even the tech company Microsoft).

The intent of these bills, and other similar legislation considered across the world, is to open a new revenue stream for traditional media outlets which cover local news – outlets that have been hit hard by the online media revolution over the last 25 years.  As we have noted in other contexts (see for instance our articles here and here), as huge digital media platforms have developed in this century, these platforms have taken away over half the local advertising revenue in virtually all media markets – revenues that had supported local journalism.  The perception is that this has been done without significantly adding to the coverage of local issues and events in these markets.  We certainly have seen the economics of the newspaper industry severely impacted, with many if not most newspapers cutting staff and local coverage, and even how often the papers are published.  Broadcasting, too, has felt the impact.  Many legislators across the globe have come to the conclusion that these digital platforms attract audiences by featuring content created by the traditional media sources that have been so impacted by online operations.  To preserve and support original news sources, various ways in which the content creators can be compensated for the use of their works, such as the legislation in the US and Australia, are being explored.  We thought it worth looking at proposed legislation in the US and comparing it to the more extensive legislation introduced in Australia, and to highlight some of the issues that may arise in connection with such regulatory proposals.

The US proposal simply provides an antitrust exemption for creators of news content to get together to negotiate collectively with tech companies for the use of that content.  The bill, as introduced, does not require that the tech companies reach any collective agreement with media companies, nor does it even require that they negotiate with these companies.  Presumably, the legislation envisions that tech companies would have an incentive to do so as the media companies, with an antitrust exemption, could join together and forbid use of their works unless the tech companies negotiated an acceptable agreement.    Without an antitrust exemption, media companies would be limited in their ability to jointly negotiate (and potentially boycott) these tech platforms -the very issue raised in the countersuit filed by GMR against the RMLC in connection with the attempts of the radio industry to negotiate reasonable rates with GMR for the use of the musical works that it controls (see our article here).

The bill would extend this protection to collectively negotiate to any print, broadcast or digital news organization that has a professional editorial staff that creates and distributes original news content on at least a weekly basis.  The bill applies to any FCC-licensed broadcaster who airs original news and related content.  Any other media company would have to meet the requirement that it “provides original news and related content, with the editorial content consisting of not less than 25 percent current news and related content.”  There is no definition of “editorial content,” so the effect of this 25% requirement is unclear, but presumably the bill is saying that at least of 25% of the news content must be current news as opposed to some sort of archived, documentary or features that are not covering current events.  But that provision does not apply to FCC-licensed broadcasters.

The tech companies that are the target of the negotiations are limited to those very large companies that have over a billion aggregate worldwide active monthly users to all of a company’s services (so, for instance, users of Facebook, Instagram and WhatsApp would be included in the monthly user count).  The companies subject to the negotiations also must have a “website or other online service that displays, distributes, or directs users to news articles, works of journalism, or other content on the internet that is generated by third party news content creators.”  This would seem to encompass companies like Facebook that display journalistic works on their sites and apps, and to search engines like Google that direct users to such content.

Under the bill, in any such negotiation, news creators would be be entitled to rely on the antitrust exemption only if they are negotiating on more than just the price that they will be paid.  They also must be negotiating the terms of the use of their content, including terms that relate to “the quality, accuracy, attribution or branding, and interoperability of news.”  The terms reached in any negotiation must be available to all similarly situated news content creators, presumably including those not in the group conducting the negotiations.  This would be much like the music licenses offered under antitrust consent decrees by ASCAP and BMI that must be offered to all similarly situated licensees in the same manner.

The Australian legislation, the News Media and Digital Platforms Mandatory Bargaining code, was much more far reaching and contained elements that some US media companies might balk at.  The legislation requires that big tech platforms negotiate with media registered media businesses and, if they do not reach an agreement for carriage of the news content, a government panel would determine a reasonable rate for the news used by the online platform.  But only media companies registered with the government would be eligible to participate in the negotiations – and that registration requires that the government make certain decisions about the media outlets before they can be registered (or to maintain their registration).  The media entity must have revenues of over $150,000, it must have as it primary purpose the creation of news content, it must operate predominantly for the purpose of addressing an Australian audience, and it must meet a “professional standards test” by adhering to certain industry professional guidelines  These provisions seem to provide the government with significant discretion to determine the media outlets that could profit from any mandatory bargaining requirement.  While such registration is not uncommon in other parts of the world, in the US having the government approve media outlets based on the content that they provide would be a tricky First Amendment issue.

In Australia, attempts to implement the law ran into major problems when Facebook decided to pull all local content from its platform in that country, resulting in some retreat from the mandatory nature of the duty to negotiate.  The US bill also is likely a starting point, rather than finished legislation that could be immediately enacted and implemented as written.  The premise of the bill – that jointly negotiating media companies would have the ability by joining together to force negotiations from the big tech platforms – is untested.  It also presupposes that the media companies could in fact pull their content from the platforms.  Existing US Copyright law, such as the Fair Use doctrine, gives companies the right to use content created by others without permission or compensation in certain instances.  Indexing sites like Google have often been found to have the right to provide links to content without permission under Fair Use, if the content used in connection with the link is limited to that necessary to identify the content.  Perhaps more concerning would be the ability of users to post content on a site like Facebook or Twitter commenting or criticizing the content prepared by a media company without linking to or excepting that content.  This also has First Amendment implications – you would not want to have the government enforcing any prohibition on people using an excerpt of a story run by the New York Times, the Wall Street Journal, MSNBC or Fox News in connection with commentary or criticism on that content.

We recently wrote about the desire of government to regulate online media as there is criticism of the impact of big tech from across the political spectrum.  The Journalism Competition and Preservation Act of 2021 is but one of the many proposals now pending in Congress – with more proposals sure to follow.  These proposals all must be handled carefully, as while regulation may be needed (seemingly even Facebook has been acknowledging that need in a set of its own commercials now running across all media platforms), the regulation can affect core values in our society given the reach that these platforms now have and the role that they have assumed for many of being our modern town square where diverse opinions are expressed.  We will be following this bill and writing about other aspects of this debate in future articles.

This Week in Regulation for Broadcasters: March 20, 2021 to March 26, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 28 Mar 2021 4:35 am

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

  • We noted last week that updated fees for broadcast applications would take effect April 19. After clarification from the FCC, while the rules adopting those fees will be effective on that date, the updated fees themselves will not be assessed until later.  That will probably be sometime May, after the FCC has time to update its databases, internal procedures, and fee filing documents.  Watch for an announcement from the FCC as to the exact date that the new fees will go into effect when those updates are complete.
  • It was announced this week that new penalties for pirate radio go into effect on April 26. The FCC will have the ability to assess fines of $100,000 per day (up to a total of $2 million) against pirate radio operators.  Landlords who are found to have “willfully and knowingly” allowed pirates to broadcast from their properties can also face penalties.  (Federal Register)
  • The FCC’s new Broadcast Internet rules became effective March 25. The principal effect of the new rules was to clarify issues about the FCC fees to be paid by TV stations for ancillary and supplementary non-broadcast services using their datacasting capabilities.  We wrote about the new rules, here.  (Public Notice)
  • In connection with the FCC’s decision to not set aside a vacant TV channel in each market for use by wireless microphones and unlicensed devices, two wireless microphone companies have petitioned the FCC to reconsider that decision. Oppositions to the petition are due by April 9 and replies to the oppositions are due by April 19.  Broadcasters argued successfully that reserving a channel in every market would further shrink a TV band already made smaller by the incentive auction and could harm future broadcast innovation.  (Federal Register)
  • Visit our blog to read our monthly feature on some of the important regulatory dates and deadlines coming up in April. These include the April 1 deadline for radio stations in Texas and television stations in Indiana, Kentucky, and Tennessee to file their license renewal applications and Broadcast EEO Program Reports. In addition, TV and radio stations in Texas, Indiana, Kentucky, Tennessee, Delaware, and Pennsylvania that are part of a station employment unit with five or more full-time employees must post to their online FCC public inspection file their Annual EEO Public Inspection File Report covering their hiring and employment outreach activities for the twelve months from April 1, 2020 to March 31, 2021.  They must also add a link to that report on the homepage of their station’s website. (Broadcast Law Blog)

April Regulatory Dates for Broadcasters: License Renewal, Issues/Programs Lists, EEO, Webcasting Royalties and More

Delivered... David Oxenford | Scene | Fri 26 Mar 2021 3:37 pm

After a long winter, spring has finally arrived and has brought with it more daylight and warmer temperatures—two occurrences that do not necessarily pair well with keeping up with broadcast regulatory dates and deadlines.  Here are some of the important dates coming in April.  Be sure to consult with your FCC counsel on all other important dates applicable to your own operations.

On or before April 1, radio stations in Texas (including LPFM stations) 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).

Both radio and TV stations in the states listed above with April 1 renewal filing deadlines, as well as radio and TV stations in Delaware and Pennsylvania, if they are part of a station employment unit with 5 or more full-time employees (an employment unit is a station or a group of commonly controlled stations in the same market that share at least one employee), by April 1 must upload to their public file and post a link on their station website to their Annual EEO Public Inspection Report covering their hiring and employment outreach activities for the twelve months from April 1, 2020 to March 31, 2021.

By April 10, all full-power radio and TV stations, commercial and noncommercial, must post to their online public inspection file their Quarterly Issues/Programs Lists reporting on the issues that faced their communities and the on-air programming that they presented addressing those issues in the first quarter of 2021 (January, February, and March).  These documents are the only FCC-required record of how a broadcast station has served the public interest in its service area.  We wrote about the importance of these lists, here.

The 200 or so stations that received an EEO audit notice at the end of February must post their response to that audit to their public file by April 26.  Among other things, stations must upload their last two annual EEO public file reports and supporting documentation detailing the station employment unit’s compliance with the EEO rules.  Station employment units with fewer than five full-time employees are still required to respond but, as they are exempt from most of the EEO outreach rules, they have lesser documentation requirements.  We wrote about what is required under these audits and more generally about the broadcast EEO rules and compliance, here.

The FCC has identified a limited number of earth stations operating in the C-Band that have been reported as no longer operational or that have not responded to communications from the C-Band Relocation Coordinator.  Owners of the earth stations on these lists that are in fact still operating must by April 19 file a notice with the FCC confirming their continuing operational status or their authorizations  will be deleted from the FCC’s database and no longer protected.  The Public Notice, with more information on this deadline is available here.  The stations that have been identified as being no longer operational are listed here.  The stations that have been identified as being unresponsive to outreach efforts are listed here.  Operators of earth stations who have filed for lump sum reimbursement or who are otherwise in contact with the Relocation Coordinator should not be on these lists and, if they are in fact not on the lists, do not have any obligation on April 19.

New penalties for pirate radio go into effect on April 26.  These penalties were permitted by the PIRATE Act, signed into law in early 2020, which gave the FCC the ability to assess higher penalties against pirate radio operators and allows those penalties to be levied more quickly as the FCC does not need to first issue notice to the suspected pirate of its violation before imposing a fine.  Illegal operators of stations could face fines of $100,000 per day, up to a total of $2 million.  The law also allows penalties against landlords who are found to have “willfully and knowingly” allowed pirates to broadcast from their properties.  The Federal Register notice of the effective date of these new rules is here and we wrote more about the PIRATE Act, here.

We will also be watching for some upcoming decisions.  By April 15, we should see a decision from the Copyright Royalty Board on the new royalty rates for royalties paid to SoundExchange by broadcasters and other webcasters for the public performance of sound recordings in non-interactive audio programming streamed on the Internet.  These rates will be retroactive to January 1, 2021, so there will be a true-up process as stations and other streamers have been paying the old rates for the last few months and will continue to do so until the new rates are finalized.  The new rates will be effective through the end of 2025.  We wrote more about the upcoming decision and the pandemic-related delays which prevented a decision before the effective date for the new rates, here.  Some Supreme Court watchers think a decision could come as early as April in FCC v. Prometheus Radio Project, the case argued in January of this year reviewing the FCC’s media ownership rules, including the abolition of the newspaper-broadcast cross-ownership prohibition and the relaxation of local TV ownership rules.  The Court generally issues opinions through the end of its term in early July, so release of the opinion will likely fall between now and then.  We wrote about the case and the January oral argument, here.

Thank you for reading and, as always, stay tuned to the blog throughout the month for updates and commentary on broadcast and media issues.

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

Delivered... David Oxenford and Adam Sandler | Scene | Sat 20 Mar 2021 11:23 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.

  • At this week’s FCC March Open Meeting, the Commissioners unanimously adopted a Notice of Proposed Rulemaking and Notice of Inquiry that seek comments on whether the FCC should modify aspects of the Emergency Alert System – which could affect broadcasters in the requirements for reporting false EAS alerts and the updating of state EAS plans. The FCC also asks for comments on whether it can order the delivery of emergency alerts over streaming services.  We wrote, here, about the proposal when it was initially released.
  • If you are planning to file an application with the FCC soon, note that new fees for broadcast applications take effect April 19, 2021. The FCC based its changes in the fees on its analysis of the FCC staff resources used to process and review each filing.  (Federal Register)
  • Two members of the US House of Representatives have introduced the Modern Television Act of 2021. The bill from Minority Whip Steve Scalise (R-LA) and House Communications Subcommittee member Anna Eshoo (D-CA) seeks to modify the provisions of the Communications and Copyright Acts governing the carriage of television stations by cable and satellite systems.  Similar bills have been introduced by Congressman Scalise in previous sessions of Congress.  Among its changes, the bill would eliminate the compulsory copyright license allowing cable systems to carry programs on local television stations without negotiations with the copyright holders of the station’s programs (leaving those rights to be determined by the marketplace), and it would replace the current open-ended retransmission consent negotiations to set the fees paid by MVPDs to TV stations for the carriage of their programming with a binding arbitration process.  (Press Release)(2019 Version of the Bill)
  • A bill introduced by a bipartisan group of House members and senators seeks to allow news outlets like local broadcasters to collectively negotiate with tech powerhouses like Facebook and Google for compensation for the distribution of their content. This proposal is more limited than a similar law which recently received so much publicity when enacted in Australia.  The National Association of Broadcasters supports passage of the bill.  (Press Release)(2019 Version of the Bill)
  • The FCC’s Audio Division entered into consent decrees with two noncommercial stations over unspecified public file violations. Both stations in their license renewal applications certified that all required documents had been uploaded to their public files, but the FCC apparently thought differently.  The consent decrees are not for political file violations, but carry some of the same requirements, including naming of a compliance officer, putting in place a compliance plan and written compliance manual, implementing a training program, and reporting to the FCC in a year whether the station complied with the terms of the decree and timely uploaded all required documents to the public file.  These consent decrees serve as a good reminder that the FCC reviews a station’s online public file during the license renewal process and can easily determine if documents are missing.  (Consent Decree Example)
  • With the NCAA’s March Madness basketball tournament now underway, we turned the keys of the blog over to our partner, Mitch Stabbe, to write a two-part series about how broadcasters can navigate the use of the terms and logos associated with the tournament to steer clear of legal liability. (Part 1)  (Part 2)
  • We also covered on the blog this week the FCC’s sponsorship identification requirements, how extended periods when a station is silent and not broadcasting can lead to license renewal problems, and a recent case involving a lawsuit by Dr. Seuss’ estate that shows that fair use does not cover as many “parodies” of copyrighted works as broadcasters may think.

This Week in Regulation for Broadcasters – February 27, 2021 to March 5, 2021

Delivered... David Oxenford and Adam Sandler | Scene | Sun 7 Mar 2021 5:50 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.

  • Global Music Rights (GMR) has offered commercial radio stations an extension of their interim license for the public performance of musical compositions by the songwriters that it represents. The extension through January comes at a price – a 20% increase in the royalty fees.  GMR offers these interim licenses while its antitrust litigation with the Radio Music License Committee is pending, where RMLC seeks to put checks on GMR’s right to unilaterally set prices.  We covered the issues broadcasters should consider in weighing this extension on our blog, here.
  • With the July 13 deadline for analog low-power TV and TV translator stations to transition to digital or cease operations and for the expiration of many construction permits for new digital LPTV stations granted prior to the TV Incentive Auction, the FCC reminded broadcasters subject to the deadline that their opportunity to file for a one-time extension of not more than 180 days ends on March 15. We covered the FCC’s Public Notice on this issue in more detail, including a discussion of the as yet unresolved issue of “Franken FMs” (radio services on 87.7 FM provided by analog LPTVs on Channel 6), here.  (Public Notice)
  • By March 15, comments are due on the minimum bid amounts and procedures proposed for Auction 109, which will auction construction permits for 136 new FM stations and 4 AMs. Reply comments are due by March 22 and bidding is scheduled to begin July 27.  (Federal Register)
  • Two Florida LPFM stations received Notices of Violation for transmissions on frequencies other than as permitted by their license. Stations must exercise care to ensure that their transmission facilities do not produce spurious emissions outside their licensed frequencies.  These emissions can cause interference to other broadcasters and to non-broadcast radio communications (one of the stations investigated here was reviewed because of a complaint from the FAA).  Read more about this on our blog, here.  (Orlando Notice of Violation)  (Miami Notice of Violation)
  • A handful of Republican congressmen have introduced a bill to prevent the FCC from reinstating the Fairness Doctrine, which the FCC found unconstitutional in 1987. We wrote, here, about what the Fairness Doctrine was and why, even absent congressional action barring its reintroduction, it is unlikely to make a comeback.  (R.1409)
  • Following last fall’s order designed to bring more structure and transparency to the Executive Branch (Team Telecom) review of proposals for foreign ownership of communications facilities including broadcast stations, the FCC has set the dates by which interested parties can comment on the standardized questions applicants will be asked, including national security and law enforcement questions. Comments are due by April 2 and reply comments are due by April 19.  (Federal Register)

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.


FCC Issues First Broadcast EEO Audit of 2021– Reviewing the Basics of the FCC’s EEO Rules

Delivered... David Oxenford | Scene | Fri 26 Feb 2021 3:26 pm

Yesterday the FCC  released another of its regular EEO audit notices (available here), asking over 200 radio and TV stations, and the station employment units with which they are associated (i.e., commonly owned stations serving the same area) , provide to the FCC (by posting the information in their online public inspection file) their  EEO Annual Public File reports for the last two years, as well as backup data showing  that the station in fact did everything that was required under the FCC rules.

To lighten the burden on stations due to the pandemic, certain requirements usually associated with these audits have been adopted.  Audited stations must provide representative copies of notices sent to employment outreach sources about each full-time vacancy as well as some documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide information about how they self-assessed the performance of their EEO program. Answers to certain other questions are also required.  Stations that are listed in the audit notice have until April 26, 2021 to upload this information into their online public file.

The FCC has promised to randomly audit 5% of all broadcast stations each year. Since each station’s response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but by anyone else with an Internet connection anywhere, at any time.  The license renewal cycle which began last year adds to the importance of this audit, as a broadcaster does not want a recent compliance issue to headline the record the FCC will be reviewing with its license renewal (see our article here about the license renewal cycle). So, whether you are on the list or not, this is a good time for broadcasters to review what is required by the FCC’s EEO rules.

The summer before last, at the Wisconsin Association of Broadcasters annual convention, I did a presentation on the FCC requirements for EEO compliance. The slides from that presentation are available here. The FCC rules were designed to bring new people into broadcast employment positions and encourage broadcasters to recruit from outside the traditional broadcast networks when hiring new employees. Not only should broadcasters be reaching out to their consultants and employees for referrals, and using their own airwaves to promote openings, but they need to be using outreach sources that are designed to reach all groups within a community to notify potential candidates about the availability of open employment positions. While the FCC used to require that outreach be made to a plethora of community groups, it has now recognized that online recruitment sources alone can reach the entire community (see our summary of that decision here) – but these sources need to be evaluated regularly to assure that they are in fact bringing in applicants for job openings from a station’s entire employment area.

Stations need to keep the required documentation to demonstrate their hiring efforts, as the failure to have those documents can still lead to fines (see our article here). The documents should show not only the stations’ hiring efforts in connection with job openings, but also the supplemental efforts that they have taken (even where they have not had job vacancies) to educate their community about broadcast employment and to train their employees to assume more responsibilities.  The FCC has provided a menu of options to achieve these required supplemental efforts.  See our article here for some ideas from the menu for ways that stations can receive credit for these supplemental efforts even during this time of social distancing.  Stations should review their policies to make sure that they have the documentation to meet an FCC audit and ensure that their EEO programs are regularly bringing in recruits from diverse sources and that they have done the required non-vacancy specific educational efforts on broadcast employment.

When the FCC abolished the FCC Form 397 EEO Mid-Term Report, it promised to review the effectiveness of its EEO rules. A Notice of Proposed Rulemaking examining  how to make the program more effective was released last year, leading to  some interesting proposals (see our article here). Those proposals are likely going to require further public comment before they can be adopted.  Thus, for now, the current rules remain in effect. As EEO enforcement was recently  transferred to the FCC’s Enforcement Bureau (see our article here), we  expect that enforcement will be vigorous.

Consult with your attorneys to obtain a thorough understanding of the EEO rules and talk with the employees involved in employment matters at your station to make sure that they understand what they should be doing and are maintaining the paperwork necessary to demonstrate your compliance with the rules. The FCC continues to enforce its rules and impose fines on stations that cannot demonstrate compliance, so make sure that you comply with the FCC’s obligations on EEO matters.

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