On a day when the rest of the country is thinking about chocolate and Champagne, many radio stations need to be considering the FCC requirement that their public inspection file be made available online in a system hosted by the FCC. From the calls I have received in the last few days, it appears that, even though the FCC adopted the requirements two years ago (see our post here), and station groups with 5 or more employees in the Top 50 markets had to covert to the online file soon thereafter, many smaller stations are only now realizing that the March 1 mandatory conversion date for all stations – commercial and noncommercial – is fast approaching.
We recently conducted a series of seminars for state broadcast associations on the online public file obligation. The slides from last of these, conducted for the Iowa and Indiana Broadcasters, are available here. In addition to those slides which provide an outline of the online public file obligations, there are many resources on the FCC’s own website about the public file. To summarize some of the last minute issues being faced by broadcasters, the Indiana Broadcasters posed 5 questions about the requirements – and our answers are shared below.
With the March 1 deadline fast approaching for having your online file up and activated , stations should now be actively uploading the required material to the FCC file, and making sure that the information automatically uploaded by the FCC is accurate. We have already heard reports that the FCC system for hosting the online public file is running slowly, especially during business hours, making uploads difficult. That is likely to get even worse as we get closer to the March 1 deadline. So if a station has not started to get its online public file ready, it needs to do so immediately.
For a station that has done nothing, it needs to start by registering to get a password for the FCC’s site that hosts the file. A station first needs to go to the “Owner Sign In” page here. Using the station’s FCC Registration Number (FRN) and password will allow it to log in and set up a passcode for the public file. If a station doesn’t know its FRN or has forgotten its password, it can call the FCC’s FRN Help Line: 877-480-3201 (Mon.-Fri. 8 a.m.-6 p.m. ET). Once the station has its passcode, a station uses that passcode to log into the FCC-hosted platform, here, and start uploading its documents.
The FCC has a good set of Frequently Asked Questions about the online public file process here.
2. Are all radio stations now going to be required to use an online Public File?
The online public inspection file is required for all stations, commercial and noncommercial, unless the station has obtained a waiver. Few if any waivers have been granted. Unless you are a very small station with real provable issues with Internet access, I would not expect waivers at this point, so late in the game.
3. What are the most important uploading obligations?
The FCC has already uploaded many of the required documents, and those documents should be found already in the folders when you first log into the FCC’s hosting platform. The information already uploaded by the FCC includes pending applications, ownership reports, a contour map showing the stations coverage, The Public and Broadcasting procedure manual, and copies of the station’s license and renewal authorization. Look these over carefully and determine which of the FCC-uploaded documents need to be made available to the public. The FCC will upload all applications filed for your station going back many years – when only pending applications need to be made visible to the public. So you need to select which ones will be made available to the public by keeping them in the “On” position and toggling the rest to the “Off” position so that the public can’t see them. We have also heard reports that there have been instances where the FCC has not uploaded the most recent license into the authorization folder, so you should check to make sure that what has been uploaded reflects accurately your current operations.
A station will have two sets of documents that will take a significant amount of time to manually upload. Any station that is part of a Station Employment Unit with 5 or more full-time employees needs to upload all of its Annual EEO Public Inspection File Reports, back to the start of the current renewal term for the state in which the station is located. There will likely be 4-6 of these reports, depending on the license term for the state in which the station is located.
In addition, stations need to upload all of their Quarterly Issues Programs lists going back to the start of the license term. All stations, commercial and noncommercial, should have these reports. These are the only documents that the FCC requires to show how your station met the needs and interests of its community of license (for more information on these reports, see our article here). As all of the Quarterly Issues Programs lists going back to the start of the license term need to be uploaded, you are looking at uploading more than 20 of these quarterly reports. Because there are so many, these will likely take more time than anything else to upload.
Unlike the EEO Reports and Quarterly Issues Programs lists referenced above, the FCC has said that you only need to upload “new” political file documents (i.e. those created after the file goes live to the public). If you decide not to upload the old political documents, you must maintain all “old” political file documents in a paper public inspection file for two years from the date that the document was created. If you are thinking of no longer maintaining a main studio open during normal business hours, you may want to consider uploading all political documents now so you no longer need to maintain a paper file available to local residents.
There are other documents commonly to be included in the file that station employees will need to manually upload. These include licensee organizational documents, contracts relating to ownership rights (e.g. options, pledges or voting proxies), and other contracts that restrict a licensee’s control over station operations (all of which are supposed to be listed on your ownership report) either need to be uploaded or included on a list of documents available for inspection upon request (with information as to how to contact someone at the station that can provide the documents within 7 days). Time brokerage or joint sales agreements need to be uploaded. And, for noncommercial stations, a list of donors contributing to support the broadcast of a specific program (as opposed to general station donors) is to be included in the public file.
The FCC has published a complete list of all of the documents that you need to have in your file here.
4. After uploading the documents, how long do I need to keep copies of these files?
Retention periods vary for the various documents that need to be in the file. As noted above, EEO Public Inspection File Reports and Quarterly Issues Programs lists for the entire license term need to remain in the file until your next license renewal is granted. Applications need to be in the public file only until the application is granted and the grant is final (no longer subject to any appeal or review). Only the most recent ownership report needs to be in the file (as a reminder, the next biennial ownership report is due by March 2, 2018). Documents in the political file need to be maintained for two years from the date of their creation. Certain contracts and agreements (like time brokerage agreements) need to be maintained for the life of the agreement. So review the FCC’s rules on the retention of documents. In the slide deck we prepared here, many of the retention periods are provided.
5. What advantages and disadvantages of the online file?
The obvious advantage is that you no longer have to maintain a paper file and give physical access to your studio to anyone who wants to see the file. Of course, by putting the file online, you make the contents of the file available for review by anyone, anywhere, any time. So public interest groups and the FCC itself can use it to assess your compliance – including looking at electronic date stamps on documents to determine whether documents were timely included in the file. Late filings could become a real issue for documents like Quarterly Issues Programs lists which were rarely if ever reviewed by the FCC when they were kept in the paper public file. Remember, on the next renewal application, you will likely be asked to confirm that you placed all required materials in the public file on time. The FCC and the public will now know whether your response is accurate or not.
The March 1 deadline is fast approaching. If you have not already completed the process and made your file available to the public, start working on that file soon. It will take longer than you think, so don’t run out of time to comply.
The FCC’s Audio Division yesterday issued “Notices of Apparent Liability for Forfeiture” to five radio stations; all owned by Cumulus Licensing. Each of these notices proposed a fine (called a “forfeiture” in FCC-speak) of either $10,000 (here) or $12,000 (here, here, here and here), all for violations of the FCC public file rules. All of these stations, located in close proximity in eastern South Carolina, were missing numerous sets of Quarterly Issues Programs lists that should have been included in their public files in the last license renewal term. The stations voluntarily reported that the lists were missing in their license renewal applications filed in 2011. In clearing up these long-pending renewals, the FCC proposed to issue these fines – again emphasizing that even this deregulatory FCC does not hesitate to enforce the rules that remain on the books (see our previous warnings here and here).
The release of these proposed fines also sends a warning to broadcasters about to convert to the online public inspection file (as all radio stations will need to have their public file online by March 1 – see our discussion of the online public file here), that these reports will be able to be viewed by anyone, anywhere, to see if they have been prepared and timely placed into the stations online public file. Each document deposited in the public file is date-stamped as to when it was uploaded. So anyone trying to assess a station’s compliance with the public file rule can see whether the Quarterly Issues Programs list was uploaded to the file and whether the upload was timely – within 10 days of the end of each calendar quarter.
This warning takes on added significance as, believe it or not, we are approaching the beginning of another license renewal cycle. The first radio license renewal applications in the next license renewal cycle will begin with the filing of license renewal applications by stations in Maryland, Virginia, West Virginia and the District of Columbia in June, 2019 – just over a year away. TV license renewal will start a year later. During the 3-year radio renewal cycle, every other month a group of stations in certain states will have to file their renewal (see the calendar for filing radio renewals here – TV is in the same order, just one year later).. In the last cycle, the largest single cause of fines was missing Quarterly Issues Programs lists. And these violations were all self-reported by stations or, on occasion, discovered by interested local residents who actually visited the paper public file maintained at the station’s main studio. This time around, the FCC, or interested public-interest groups, will be able to raise questions about a station’s compliance with the rules from afar – just by looking at the online public file.
These Quarterly Issues Programs lists are taken seriously by the FCC, as they are the only official station records of how broadcasters served the public in their local service area. 30 years ago, stations were required to keep more detailed records of all their public service programming – in the form of program logs and other documents that itemized news and public affairs programs, PSAs, commercials and all other aspects of station performance. At license renewal time, the FCC would pick 7 days from the previous license renewal term, and a station would have to report on the amount of news and public affairs programming it carried on those days, and the number of PSAs that were run on the station. When, during a prior deregulatory period in the 1980s, the FCC did away with specific requirements for the amount of non-entertainment programming required to be broadcast by every station (and the requirement that stations maintain program logs as official FCC records), it left stations with more discretion as to how they addressed local issues. But the FCC substituted for the detailed paperwork that it used to require the Quarterly Issues Programs lists as the document in which broadcasters would show how they served the public interest. These lists are now the only officially-mandated document to show how you served the interests of your community (and, as we noted here, they take on added importance to demonstrate local service by stations that decide to no longer maintain a manned main studio).
So, by the 10th day of April, July, October and January, each station (commercial or noncommercial) is supposed to list the most important issues that faced its community in the prior quarter, as determined by station management, and the programs that the station aired to address those issues. We always suggest that stations have multiple programs that address each issue, and that some of the programs that address each issue contain in-depth discussion of the issue. While the FCC has said that even a PSA campaign may be listed as programming that addresses an important issue, such spots should never be the only program that addresses an issue of importance in any quarter (see our summary here of a case where the FCC made this clear).
Any program that addresses an issue of importance in a serious manner can be listed as being issue-responsive, even if the program where the discussion takes place might normally be considered an entertainment program. So, if one of your issues is an increased aging population, it is possible that a serious discussion of the issues facing the aging that takes place in an entertainment TV program could be considered issue-responsive. Similarly, if your morning DJ who normally spins records gets incensed by traffic issues on his way to work one morning and decides to turn his program into a call-in show to discuss local problems with the roads, that discussion can be considered issue responsive. News segments and public affairs programs are of course issue-responsive.
Make sure that multiple programs address each issue in a serious manner. For each issue that you have found in your community, list all of the programs that you aired that addressed the issue. For each program, include the name of the program on which the issue-responsive segment aired, the duration of the discussion, the time and date that it aired and a brief description of what the segment was and how it addressed the issue. As you are giving the time and date, it probably does not look good if all of your issue-responsive programming airs at 5 AM on Sunday morning.
While there have been some calls to change the way that issue-responsive programming is addressed, at this point, the Quarterly Issues Programs lists are all that we have. So treat them seriously to avoid the kinds of issues (and the accompanying fines) that are being faced by the stations who received the notices of apparent liability yesterday.
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.