Promoting and Advocating for the Broadcasters of Nevada, While Serving the Public

Nevada Broadcasters Association

From Broadcast Law Blog Archive

At its next open meeting to be held on January 30, the FCC will consider two more proposals in its Modernization of Media Regulation Initiative. As with many of the other proposals that have been advanced by the FCC as part of this initiative thus far, these proposals address relatively minor matters concerning paperwork obligations rather than substantive FCC rules. Draft proposals were released yesterday by the FCC dealing with two matters. The first is a Notice of Proposed Rulemaking suggesting the elimination of requirements that broadcast licensees file paper copies of certain contracts with the FCC. The second is an Order deleting certain rule sections that explicitly deal with the operations of full-power analog television stations – stations which no longer exist.

It is certainly difficult to argue with the FCC’s decision to delete rules that apply to a service that no long exists, so it is obvious that the more substantive of the two proposals advanced yesterday is the one dealing with the filing of contracts with the FCC by broadcast licensees. But even this proposal was not particularly substantive, proposing only the elimination of the rules requiring the filing of physical copies of the required contracts, not the obligations that these contracts be available for public inspection and review. The NPRM suggests that instead of filing the required contracts with the FCC, the inclusion in a broadcaster’s online public file of information about these agreements is sufficient to eliminate the need for the filing with the FCC of physical copies of these documents. The agreements that are now required to be filed are also required to either be included in the public file or the licensee may opt to include in the public file a list of the contracts with a commitment to produce them within 7 days upon request. The NPRM also proposes to formalize the practice specifically adopted in connection with some but not all of the required documents – allowing broadcasters to redact financially sensitive business information from any document that it provides upon request. The NPRM as currently drafted does not ask whether the FCC should examine whether the filing of some or all of these contracts, or even their inclusion in a station’s public file, should be required at all.

Just what does the FCC now require that a licensee file? Organizational documents of a licensee and its parent entities (e.g., articles of incorporation and by-laws) must be filed currently, and, as with all of these documents, also listed on Ownership Reports and in the list in the public file (if not actually reproduced there). Documents relating to future ownership or control are required (e.g., options, pledge agreements, voting proxy agreements, warrants, etc.). Security agreements and other documents that place significant restrictions on the operational decisions of a licensee (like stock pledge agreements where a lender significantly restricts the licensee’s actions without lender approval as a condition of the loan) are also required to be submitted. Time brokerage and joint sales agreements are required documents, as are network affiliation agreements – but only for TV stations, and only when the network provides at least 15 hours of programming each week to at least 25 affiliates located in at least 10 different states. Licensees are also required to file “citizen agreements” – agreements that were common 30 or 40 years ago as a means for broadcast stations to settle license renewal challenges by promising to devote programming time to issues identified by certain citizens’ groups – but are almost unheard of today.

Obviously, the question arises whether there is a legitimate need for broadcasters to submit these documents to the FCC and to make them available to the public. A licensee’s organizational documents are rarely reviewed by the FCC (except perhaps if the FCC is seeking to confirm that a noncommercial licensee was really organized for educational purposes). If the FCC has a legitimate need to review these documents, one would think that they would be requested in FCC applications – not just placed into a public file that in many cases no one ever reviews. The same goes for agreements regarding future ownership. Why do they need to be filed or included in the public file when they only become relevant if they trigger a change in control of the licensee – at which point they will usually be filed with an assignment or transfer application? Security agreements and similar documents relating to future control are already addressed in certifications on FCC application forms where licensee’s pledge to maintain control of their licenses – so why require that the documents be filed after the fact, when in most cases no one ever bothers to look at them? If affiliation agreements don’t need to be filed for radio, why are they still needed for TV? And why require the submission of citizen agreements when they essentially don’t exist?

These are questions not currently posed by the draft Notice of Proposed Rulemaking. Perhaps they will be added to the NPRM in the few weeks before this item is finalized. If not, perhaps they will be addressed in a future order. We will obviously know more details on these matters at or after the FCC meeting on January 30 when these items will be discussed and presumably approved by the Commissioners.

The holidays are over, and while the regulation never stops, it is time to once again buckle down and look at what is on the horizon for broadcasters. While, in the next few days, we will have our typical look ahead at the broadcast regulatory agenda in Washington for the New Year, we also need to look at more immediate deadlines in the month of January. As we are at the beginning of a calendar quarter, the tenth of the month is the date for broadcasters to add their Quarterly Issues Programs Lists for the just completed quarter to their public file – whether it be the online public file for TV broadcasters and the many radio groups that have already converted to the online file, or into the paper file for those radio broadcasters waiting until the last minute before making the conversion to the online file as required by March 1. These Quarterly Issues Programs lists are the only FCC-required documents showing how a broadcaster has met its public interest obligations to serve their communities and, as we have written many times (see, for instance, here and here), the FCC considers them to be very important, and thus have led to numerous substantial fines for broadcasters who have not met the FCC’s requirements.

TV broadcasters also need to file their Children’s Television Reports with the FCC by the 10th of the month, and place information into their public file about how they complied with the commercial limits on children’s television programming. As we have written before (see our articles here and here), these, too have been the subject of numerous FCC enforcement actions when the Commission becomes aware that the reports were not filed, or were submitted late. So be sure to timely file these reports with the FCC, and place the information about compliance with the commercial limits in your online public file by the deadline.

TV stations that are being repacked to a new post-auction channel also must file their quarterly FCC Form 2100, Schedule 387 Transition Progress reports by the 10th of January. See our article here about the initial FCC reminder on these reports.

For AM broadcasters, the second window for filing for new FM translators to pair with their AM stations is open from January 25 through January 31. This window is for Class A and B AM stations who were not allowed to file in the window that opened earlier this summer but only if the stations did not buy a translator and use a 250-mile waiver in the window that the FCC had opened for moving translators last year. See our article here on this upcoming window. We would also expect to begin to see applications granted for many of the FM translator applicants that filed long-form applications last month for their translator applications filed in the window earlier this year for Class C and D AM stations. And keep in mind that, in connection with the upcoming window, there will be a freeze on the filing of minor change applications for FM translators, FM booster stations and low power FM stations from January 18-31.

The effective date of the elimination of the FCC’s main studio rules is January 8 (see our article here). So we would expect some broadcasters to begin to take advantage of the flexibility that this rule change provides as to the location and staffing of their station operations. Obviously, station operators still need to serve the public interest in their communities (and demonstrate it in the Quarterly Issues Programs Lists mentioned above), but their local studio and staffing requirements will disappear as of January 8.

For broadcasters who stream their signals on the Internet and other webcasters, as we wrote here, January 1 brings higher royalties to be paid to SoundExchange, as the royalties set by the Copyright Royalty Board at the end of 2015 for the period from 2016 through the end of 2020 have been adjusted for inflation. Also, under many of the royalty regimes in place under the CRB decision, minimum fees for the year must be paid to SoundExchange by the end of the month.

As in any month, these are just some of the highlights on the regulatory calendar. Every station should be on alert to make sure that they address those compliance issues that need to be addressed, when they need to be addressed, to avoid regulatory issues down road.

The FCC’s decision to abolish the main studio rule, about which we wrote here and here, is to be effective 30 days after the publication of the decision in the Federal Register. That publication is tentatively scheduled, according to the Federal Register documents here, for tomorrow. That would make the rule change effective on January 7, 2018, although we understand that the FCC may consider it to be effective on January 8th, as the 7th is a Sunday. Obviously, things can change and the publication can be delayed, but if all goes as scheduled as it routinely does, those stations looking to eliminate their main studio can do so on or after January 8.

Note that there has been some concern that the Federal government could close if no funding extension is in place by tomorrow, and the closing of the Federal government would mean that the Federal Register would not be published. But funding is in place through tomorrow, so tomorrow’s publication should not be interrupted by any shutdown.

Thus, broadcasters who are ready to take advantage of this rule change can prepare to do so early in the new year. Remember, the abolition of the rule does not eliminate your obligation to serve your local community. It also does not change EAS requirements. And, unless your public file is totally online, you may still need to maintain a public file in the city of license accessible during normal business hours until the file is totally online. Also, note that appeals of this decision are possible but such appeals would not stop the effective date unless a court was to issue a stay of that date – a rare occurrence (see our articles on stay standards here and here). But, assuming all goes into effect as planned, the elimination will provide flexibility to many broadcasters, and it looks like that flexibility will come very soon.

Late yesterday, the FCC released the Public Notice setting out the instructions for the final window for AM stations to get exclusive access to FM translator stations. This window, to be open in late January, is primarily for Class A and B AM stations that were not permitted to file in this summer’s window when Class C and D AM stations could file for new FM translators. But any AM licensee who did not file in this summer’s window, and who also did not acquire a translator last year during the period when AM licensees could acquire existing FM translators and move them up to 250 miles to rebroadcast their AM station, can also participate.

The final window will be open from January 25 through January 31. As in this summer’s window, mutually exclusive applications filed during that window will be resolved by an auction if they cannot be resolved by settlements or engineering solutions. Resolving mutually exclusive applications can be done only by filing settlements or technical amendments that comply with the minor change rules – meaning that the amendments can only amend to different sites on the same channel, or on channels three up and three down from that initially specified, or a channel precluded from use by the initially proposed channel because of Intermediate Frequency interference. Applicants cannot amend to any vacant channel that may be available in their area. In this summer’s window, most applicants were able to avoid mutual exclusivity with other applicants – but not all (as witnessed by the mutually exclusive groups that had until last week to settle their differences through dismissals for no more than out-of-pocket expenses or by engineering amendments – see our article here).

Like in this summer’s window, the Public Notice released yesterday is complicated, as the FCC is treating these applications as those filed in preparation for an auction (see our post on the instructions for the summer window here). Applicants need to read this notice very carefully to avoid traps – traps which include having conversations with mutually exclusive applicants outside a future settlement window when engineering solutions to resolve conflicts between applications filed in the window will be allowed. There actually is a rule against “prohibited communications” outside of the settlement window – meaning that once an application is on file, mutually exclusive applicants can’t talk to each other about their applications except during these designated settlement windows.

As part of the Public Notice, the FCC also announced a filing freeze on any technical changes to existing translators so as to freeze the database that applicants will use to prepare their applications. The freeze will be in effect from January 18 through January 31.

In short, read these instructions carefully, and go over them with your attorney and engineer to make sure that you don’t inadvertently overlook some requirement that would result in your missing this last opportunity reserved for AM licensees to get a new FM translator.

While the end of the year is just about upon us, that does not mean that broadcasters can ignore the regulatory world and celebrate the holidays all through December. In fact, this will be a busy regulatory month, as witnessed by the list of issues that we wrote about yesterday to be considered at the FCC meeting on December 14. But, in addition to those issues, there are plenty of other deadlines to keep any broadcaster busy.

December 1 is the due date for all sorts of EEO obligations. By that date, Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont that are part of an Employment Unit with 5 or more full-time employees need to place their Annual EEO Public File Reports into the public file (their online public file for TV stations and large-market radio and for those other radio stations that have already converted to the online public file). In addition, EEO Mid-Term Reports on FCC Form 397 are due to be filed at the FCC on December 1 by Radio Station Employment Units with 11 or more full-time employees in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont; and Television Employment Units with five or more full-time employees in Colorado, Minnesota, Montana, North Dakota, and South Dakota. We wrote more about the Mid-Term EEO Report here.

Biennial Ownership Reports were at one time scheduled to be filed on December 1 but, as we wrote here, that deadline has now been pushed back until March 2. The new FCC Forms for filing those reports will be available for use on December 1, so stations wanting to get this obligation out of the way can go ahead and file this month.

Both radio and TV stations interested in facilities improvements also have filing deadlines this month. The FCC has temporarily lifted the freeze on TV stations that were not repacked in the incentive auction, allowing them to file minor change applications to improve their facilities. See our article here. The opportunity for these stations to file for improvements in their facilities opened yesterday, and will remain open through December 7. TV stations contemplating improvements in their facilities should take this opportunity to file, as the freeze will be reimposed after the window ends, while TV translators and LPTV stations that were displaced by the incentive auction have their opportunity to file for displacement channels (see our article here on that displacement window) .

For radio, those AM stations that filed for new FM translators this summer and have been declared to be “singletons,” can file long-form applications specifying the exact facilities that they plan to construct. Those long-form applications can be filed in a window from December 1 through December 21. See our article here. As the FCC’s Audio Division is usually very quick to process translator applications, it is even possible that those who file early in the window will get construction permits granted by the end of the year.

December 1 is also traditionally the deadline for TV stations to file with the FCC their reports on Ancillary and Supplementary Revenues – those nonbroadcast revenues that they received in the past year, on which they must pay a 5% payment to the FCC. As we wrote here, the FCC is considering making these reports mandatory only for the few TV stations that actually have such revenue. Thus, while the FCC considers the rule change, they have suspended the filing requirement for all stations that have no such revenue (see our article here).

Broadcasters are also expecting to see the Order abolishing the main studio rule published in the Federal Register almost any day now. See our articles here and here on the abolition of the main studio rule. If the FCC decision is published this week, as the rule goes into effect 30 days after publication, there is still a chance that some broadcasters can implement the change this year, and not have to renew leases for studio space in January.

We have also reminded media companies that allow third-parties to post material on their websites that the Copyright Office has adopted a new electronic system for registering the names of designated agents who can be served with take-down notices from copyright owners demanding that content that infringes on intellectual property rights be removed from the website. For that registration to be valid, helping to insulate the website owner from liability under the “safe harbor” of Section 512 of the Copyright Act for copyright infringement contained in third-party content, registration of the agent for take-down notices must be completed by December 31. For more information, see our articles here and here.

These are but some of the important regulatory dates facing broadcasters and other media companies this month. As always, consult with your own attorney about the details of these items, and to make sure that there are not other dates that may apply to your stations that we have not highlighted in this list. So enjoy the holiday season, but stay vigilant about your regulatory obligations and opportunities.

The FCC on Thursday issued a Public Notice announcing that, at the end of the day on November 27, 2017, the current versions of FCC Forms 323 and 323E will be retired. These forms will be replaced in the near future by a new version of the ownership report in the FCC’s LMS database. If you are currently working on an ownership report following the completion of a purchase of a station or other event triggering the need for such a report, you must file it on the old form by 11:59 Eastern Time on November 27, or wait until the new form is available (if that will allow you to comply with the filing deadline for your report).

As we wrote here and as highlighted in the Public Notice released on Thursday, the FCC will be conducting a workshop on November 28, available online, to review the new form. For live attendees, registration is requested by November 22. No pre-registration is required for online viewing. The new form will be available on December 1 to be used for all broadcast licensees, commercial and noncommercial, to prepare an ownership report for the Biennial Ownership Report filing deadline of March 2 (extended from December 1, see our article here).

The FCC yesterday released a Public Notice announcing a filing window from December 1 through December 21 for “long-form” applications for new translators that were filed in this summer’s window for Class C and D AM stations to seek new FM translators to rebroadcast their stations. The Public Notice also sets the procedures for filing in this window. The window is for the filing of complete Form 349 applications by applicants who were deemed to be “singletons,” i.e. their applications would not cause interference to any other translator applicant. The list of singletons is here. The long-form application requires more certifications and technical information than that which was submitted during the initial filing window.

After the long-form application is submitted to the FCC, the application will be published in an FCC public notice of broadcast applications. Interested parties will have 15 days from that publication date to comment or object. If no comments are filed, and no other issues arise, the FCC’s Audio Division is known for its speed in processing translator applications so that grants might be expected for many of the applications late this year or early next.

Not specifically addressed is whether the applications that were not singletons (and were listed on the list of mutually exclusive applications about which we wrote here)but that manage to reach a settlement or file a technical solution before the November 29 deadline, will have the opportunity to file their long-form applications. According to the Public Notice announcing the settlement window, the FCC will request long-form applications after settlement agreements are filed. So, seemingly, they will be requested one by one as settlements are reviewed.

In any event, it appears that a number of AM stations will soon be able to start service with their new FM translator stations. And Class A and B AM stations should watch the FCC releases for their opportunity to file for new translators, likely coming after these translators are processed – sometime in early 2018.

While November is an odd numbered month in which there are no deadlines for EEO Public File or Mid-term Reports, and it is not the beginning of a new calendar quarter when Quarterly Issues Programs Reports are added to a station’s public file and Quarterly Children’s Television Reports are filed with the FCC, that does not mean that there are no dates of interest to broadcasters this month. In fact, there are numerous policy issues that will be decided this month, and filing dates both for television broadcasters and AM broadcasters seeking FM translators for their stations.

The biggest policy dates will be November 16, when the FCC holds its monthly meeting, with two major broadcast items on the agenda. As we wrote here, the FCC will be considering both the adoption of ATSC 3.0, the new television transmission system promising better mobile reception and more data transmission capabilities for TV stations, and the reconsideration of last year’s decision on the ownership rules, where the FCC is expected to repeal the broadcast-newspaper and radio television cross-ownership rules and loosen the restrictions on TV duopolies in markets where such duopolies cannot now be formed.

Last month’s decision by the FCC to abolish the main studio rule is likely to be published in the Federal Register this month. That decision (see our articles here and here) becomes effective 30 days after its publication in the Federal Register so, while it will not take effect this month, we can expect some broadcasters to initiate their plans to immediately take advantage of this significant rule change when the effective date arrives.

There are also filing deadlines this month for stations looking to improve their technical coverage of their markets. TV stations that were repacked following the incentive auction have until tomorrow, November 2, to file minor change applications to increase power on the new channels to which they were assigned by the Commission (see our article here). Soon thereafter, the FCC will open a first-come, first serve window for other television stations not repacked by the FCC to file minor change applications (see our article here).

For AM stations that filed FM translator applications that ended up being in conflict with other applications filed in the window that was opened this summer for such filings, November 29 is the deadline for submitting technical solutions or other settlements that resolve these mutual exclusive situations. See our article here for more information.

Also in November is the date for comments on the FCC’s proposal to abolish the requirement that some licensees maintain paper copies of the FCC rulebook. This is one of the FCC’s first proposals stemming from its Modernization of Media Initiative. Comments are due on November 13, with replies due November 27. See our article here.

Finally, November 3 is the date by which broadcasters are supposed to report to their State Emergency Coordinating Committees on whether they broadcast multilingual EAS messages on their stations and whether they plan to do so in the future. See our article here. This process is being implemented in different ways in different states – so you should check with your state SECC to see how it is being handled where your stations are located.

As in any other month, there are other deadlines, including station specific ones, which you should be aware of and discuss with your own counsel.

The FCC yesterday released a Public Notice announcing that it will be holding an information session on November 28, 2017 at 1 PM Eastern Time to familiarize broadcasters with the new Biennial Ownership Report forms. This information session can be viewed live online and will also be archived for viewing after the session (archive to be available here). As we wrote here, the FCC has extended to March 2, 2018 the due date for filing Biennial Ownership Reports, as it is in the process of developing a new form that will, hopefully, make it easier for broadcasters to complete the Form 323 and 323E Ownership Reports that must be filed by licensees once every two years. This information, which will present an overview of the new form, appears to be its official unveiling.

Note that this will be the first time that noncommercial broadcasters will be filing at the same time as commercial broadcasters (see our article here). Also, while commercial broadcasters will need to obtain an FCC Registration Number (FRN) for each person who has an attributable interest in a station, the FCC recently decided that noncommercial licensees need not get an FRN for each member of its governing board (as it would entail getting each member’s social security number). But noncommercial broadcasters still will need to get a Special Use FRN for all officers and directors reported on their ownership reports (see our article here).

At the FCC meeting yesterday, the FCC repealed, on a 3 to 2 vote, the main studio and studio staffing requirements for TV and radio broadcasters. The final order, here, was substantially unchanged from the draft we described when it was released last month. Broadcasters need no longer have a main studio or even locate employees in their service areas, but must continue to serve the needs of their community, reflect that service in quarterly issues programs lists, and maintain a toll-free number that will allow local residents to contact the station. Stations that have not completely converted to the online public file must also maintain a local paper file until the online conversion is complete. The changes for the most part become effective 30 days after they are published in the Federal Register.

The FCC, as part of its Media Modernization Initiative, also started a proceeding to abolish the requirement that TV stations with no ancillary and supplementary revenue (revenue from the digital transmission of non-broadcast services) file an FCC report on that revenue. As only about 15 stations had such revenue, to make the thousands of other TV stations to file reports to simply say that they have no such revenue made little sense. The Commission instructed its Media Bureau to consider suspending the requirement for stations with no revenue to file those reports on December 1. The Notice of Proposed Rulemaking is available here. We wrote about the draft Notice of Proposed Rulemaking here, which also addresses a second issue which will also be considered by the Commission.

The other issue is whether the FCC should change the public notice requirements for broadcasters filing applications for sales of stations, license renewal and other major changes. Right now, broadcasters, for the most part, have to publish this notice in a local newspaper when one of these applications is filed. The FCC asks whether the requirement for newspaper publication should be repealed or replaced by an online publication requirement, or even whether the need for these notices still exists. Watch for comment dates on these proposals once they are published in the Federal Register.