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Nevada Broadcasters Association

From Broadcast Law Blog Archive

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At the FCC meeting yesterday, the FCC repealed, on a 3 to 2 vote, the main studio and studio staffing requirements for TV and radio broadcasters.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.

The United States Court of Appeals yesterday issued an order denying the appeal of an FCC order that rejected a requirement that multilingual EAS alerts be provided in every market. We wrote about the FCC’s proceeding here and here. The Court upheld the FCC’s decision as reasonable, finding that the Commission did not have enough evidence to determine how such alerts should be implemented on a nationwide basis, and noting that the FCC was still reviewing whether to adopt requirements that broadcasters provide alerts in languages other than English in the future. That decision should serve as a reminder that in the FCC order rejecting the call to mandate multilingual EAS alerts in all markets, the Commission did call for broadcasters to supply more information – information that is due in early November.

In 2016, when the FCC rejected the imposition of multilingual EAS alerts, they imposed an obligation on broadcast stations to report to their State Emergency Coordinating Committees (“SECC”) information about what the stations are doing to implement multilingual EAS – including a description of any plans they have to implement such alerts in the future, and whether or not there are significant populations of non-English speaking groups in their communities that would need such alerts. We wrote about that obligation here. The one year deadline would seem to be November 3, one year after the FCC’s order was published in the Federal Register (though an FCC small-business compliance guide summarizing the obligations, released in August, available here, states on the top of page 3 that the deadline is November 6). In any event, given the Court’s decision relying on the FCC gathering information about the provision of emergency alerts to non-English speaking communities, it is important that stations provide their SECCs by early November. The FCC’s Small Business Compliance Guide is a good summary of what is required.

Yesterday’s Court decision was a 2-1 decision, with a dissenting judge finding that the FCC already had asked for information about multilingual EAS alerts several times, and did not get it. The dissenting judge thought that the Court should have found that the FCC was unreasonable in once again saying that they were looking for more information with no guarantee that they would receive that information. This dissent highlights the importance that seems to be placed on the upcoming submission of this information to state EAS committees.

Broadcasters need to find out who heads their SECC, and get them the information about multilingual EAS alerts in the next few weeks, so that the SECCs can review their state EAS plans and, where necessary, make changes by next May based on the information in the November reporting, so that broadcasters can better serve non-English speaking populations with emergency alerts.

In addition to the elimination of the main studio rule (about which we wrote here), another media item is proposed for consideration at the FCC’s October 24 meeting. A draft Notice of Proposed Rulemaking (NPRM) was released earlier this week proposing two changes in FCC requirements – neither change, in and of itself, offering any fundamental modifications of significant regulation, but both showing that this Commission is looking to eliminate bothersome burdens on broadcasters where those burdens are unnecessary in today’s media world or where they do not serve any real regulatory purpose. One change proposes to limit the requirement for TV stations to file Ancillary and Supplementary Revenue Reports to those stations that actually have such revenue, and the other proposing to eliminate the obligation of broadcasters to publish local public notice of significant application filings in a local newspaper.

The first deals with the filing by TV stations of FCC Form 2100, Schedule G (formerly Form 317), which reports on the ancillary and supplementary services revenue received by the TV station. This revenue is received by data transmission and other non-broadcast uses of the station’s spectrum. The report is necessary as, by law, each station offering such services must pay a fee of 5% of that revenue to the Federal government. So, by December 1 of each year, under current rules, each TV station must file the form stating how much revenue they received from these non-broadcast services. As most TV stations have not monetized their excess digital capacity by making it available for non-broadcast “ancillary and supplementary” services, most stations dutifully submit a report each December saying that they have not received any such revenue. To minimize paperwork burdens, the FCC draft NPRM proposes to amend the rule so that the majority of stations need not file this report simply to say that they have no revenue – the obligation to file the report would apply only to those stations that actually have some revenue to report.

The second proposed change deals with FCC-mandated public notice requirements. When filing significant applications (e.g. applications for approval of a proposed sale of a station through an assignment or transfer, license renewal applications, and applications for new stations or major changes in the facilities of an existing station), most broadcasters have to give public notice of the filing of the application both by broadcasting it on the station and by publishing the notice in a local newspaper in the community that the station serves. The FCC draft NPRM seeks comments on whether to repeal the obligation to give public notice entirely as most of these applications are available through the FCC’s databases (including in the online public file) and public notices, or whether to allow some or all of the notice obligations to be met exclusively through broadcasts on the station, or through a combination of broadcasts and online positing of those notices. The Commission tentatively concludes that some modernization of the requirement is required, but asks a number of questions including whether the type of application and type of station make a difference in what notice obligations should be required (e.g. should newspaper notice be kept only for applications for new stations as the applicant has no station on which to broadcast notice and likely no website on which to post such notice). The FCC also asks, to the extent that public notice obligations are retained, if the rule (which is incredibly confusing to read as it demands different elements in the notices of different types of applications and imposes different broadcast and publication schedules) should be simplified.

The draft NPRM will be considered at the FCC’s October 24 meeting. If adopted at that meeting, comment dates will later be set when the final version of the NPRM is published in the Federal Register.

The FCC yesterday released the agenda for its October 24th Open Meeting, as well as draft orders of the matters to be considered at that meeting. For broadcasters, the single most significant proposal was a draft order (available here) to abolish the requirement that a broadcast station maintain a main studio in close proximity to its city of license that is open to the public and staffed during normal business hours. The FCC’s draft order determines that, in today’s modern world, where much communication with broadcasters is done by phone or electronically, and as stations either have or soon will have their public files available online, there was no longer any need to maintain the rule mandating the main studio. So, if the Commission adopts the draft order at its October 24th meeting, the requirement which has been on the books since 1939 will be eliminated.

Together with the main studio rule, the FCC order would also eliminate the requirement that the station have staff members available at that studio. Instead, the licensee, to maintain contact with their community, must maintain a toll-free number accessible to residents of the station’s city of license. That number must be answered during normal business hours of the station – but the person answering the phone line need not be in the city of license. The FCC urged, but did not require, that the phone line be monitored during other hours as well. The phone line can be shared with multiple stations – so an “800” number available nationwide would seem to meet the requirement.

The FCC also would eliminate local program origination obligations. So station owners need no longer have some physical presence in their community where they can originate programming. The FCC said that technology allows stations to put callers on the air from anywhere, and even to do video through Skype and other similar technology providers. Stations do, however, still need to serve their communities. They still need to maintain Quarterly Issues Programs lists (which, as we wrote here, are due to be placed in a station’s file this quarter by next week). These lists require that the station list the most significant issues facing its community in the past quarter and the programs broadcast by the station addressing each of those issues. Thus, a station will need to continue to monitor, in some way, the issues in their community and broadcast programming addressing those issues – but how they accomplish those requirements, and the location from which they do so, is up to them.

Stations that have fully transitioned to the online public file need no longer keep any physical documents in their communities of license. But stations that have not yet made that transition (with the transition deadline for radio stations in smaller markets, and smaller groups in large markets, being March 1, 2018) must maintain a paper public file in their city of license until all of the documents required to be in the file are transitioned to the online public file. The file must be maintained at a location in their community of license that is open during normal business hours (e.g. a public library or an office for some local business). Small market stations can transition to the online public file now (they need not wait until March 1), so they can eliminate the need to maintain a paper public file in their community if they decide to eliminate their main studio once this rule is adopted and becomes effective.

Note, however, that even for stations that transition to the online public file, there may be some residual paper file obligations. While the FCC eliminated the need to maintain letters from the public, which had to be kept in a paper file, earlier this year (see our article here), for most stations, after March 1 of next year, the only documents not in the online public file will be documents from the political file – as stations need only include in the online public file political documents created after the transition date (see our article here about the new online public file obligations for radio). Older political documents need not be placed in the public file. Those documents need to be kept for 2 years from the date of their creation. For all stations, by March 1, 2020, there should be no need for a physical file at all. For stations that do have “old” political documents, to avoid having to maintain a paper public file in their community, they can upload all old political documents to their online file, even though they are not required to do so.

The rule changes will become effective, if adopted, when they are published in the Federal Register, except for the rules dealing with the public file. Those rules will be effective upon their approval by the Office of Management and Budget under the Paperwork Reduction Act.

If the FCC acts as expected to approve this rule on October 24, many changes in broadcast operations will become permissible. While the changes may allow broadcasters to recognize significant cost savings, we reiterate the FCC’s warning that stations, no matter the physical source from which their programming originates, need to remember that they still have an obligation to serve the interests of their communities. Public interest groups will, no doubt, be watching – so broadcasters beware.

The beginning of a calendar quarter always brings numerous regulatory obligations, and October is one of those months with a particularly full set of obligations. All full-power broadcasters, commercial and noncommercial, must complete their Quarterly Issues Programs Lists and place these reports into their public inspection files by October 10. These reports are the FCC’s only official record of how a station served its community. They document the broadcaster’s assessment of the most important issues facing their communities, and the programming that they have broadcast to address those issues. Failing to complete these reports was the biggest source of fines during the last license renewal cycle – with fines of $10,000 or more common for stations missing numerous reports during the license renewal term (see, for example, our articles here, here and here). With the public inspection file for all TV stations now being online and the public file of large radio groups in major markets also already converted to being online, the timeliness of the completion of these reports and their inclusion in the public file can now be assessed by the FCC and anyone else who wants to complain about a station’s regulatory compliance (as documents added to the public file are date stamped as to their inclusion, and the FCC has used this stamp to assess station’s compliance in other areas, see our post here). All other radio stations will be converting to the online file by March 1, 2018 and will need to upload this quarter’s reports into the file by that date (along with all others back to your last license renewal, see our post here), meaning the reports they complete this quarter too can be scrutinized from afar. Thus, be sure that you complete this important requirement.

TV stations have the additional quarterly obligation of filing with the FCC by October 10 their Quarterly Children’s Television Reports, Form 398. These reports detail the educational and informational programming directed to children that the station broadcast in the prior quarter. These reports are used to assess the station’s compliance with the current obligation to broadcast at least 3 hours per channel of programming addressing the educational and informational needs of children aged 16 or younger. Late-filed Children’s Television Reports, too, were the source of many fines for TV broadcasters in the last renewal cycle (see, for instance, our articles here and here), so don’t forget this obligation and don’t be late in making the required filings. At the same time, TV stations should also include in their public file documentation showing that they have complied with the limitations on commercialization during children’s programming directed to children 12 and under.

EEO obligations also arise for stations in a number of states. On October 1, radio and TV station employment groups which have stations located in certain states and have 5 or more full-time employees (at least 30 hours per week) need to place in their public inspection file their Annual EEO Public Inspection File Report. This report documents the employment group’s hiring in the prior year, the recruitment sources they used to attract applicants, and the supplemental efforts they took (whether or not they had any employment vacancies) to educate the community about broadcast employment opportunities and qualifications and the other efforts they undertook to train existing employees about EEO requirements and to qualify them for better positions within the broadcast industry. Even though the FCC outreach efforts for job openings have recently been lessened to allow for recruiting to be done solely through online sources (see our post here), the other EEO obligations remain in place (see our post here). Thus, stations in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, Saipan, and the Virgin Islands that are part of an Employment Unit with 5 or more full-time employees should have placed in their public file their Annual EEO Public Inspection File Report by October 1. For those stations with an online public file, that means that the report has been uploaded to the online public file where it can be reviewed by anyone, anywhere (and all other stations will eventually need to include this EEO Public file reports in their online public file by March 1, as all EEO Public File Reports back to the last license renewal must be uploaded to the file). Stations with websites must also include a link to the latest EEO Public File Report on the homepage of their website.

For certain TV stations with 5 or more full-time employees, and certain radio stations with 11 or more full-time employees, October 2 brings the deadline to file their EEO Mid-Term Report, FCC Form 397 (about which we wrote here). That reports provides the FCC with the last two EEO Public File Reports, and certain information about who administers the EEO plan for the station and EEO complaints filed against the station. Radio Station Employment Units with 11 or more full-time employees in Alaska, American Samoa, Guam, the Mariana Islands, Oregon, and Washington and Television Employment Units with five or more full-time employees in Iowa and Missouri must file these reports by October 2.

Full-power and Class A TV Stations repacked by the incentive auction have a new obligation that is coming up –the obligation to file by October 10 a Repacking Transition Progress Report, informing the FCC of steps that they have taken to implement the requirement to change in channels ordered by the FCC. We wrote about that obligation here. That filing obligation comes while the window is open for many of these same TV stations to file construction permits for improved facilities on the channels to which they have been assigned, or to seek alternative channels. The filing window ends on November 2. We wrote about that window here.

As in any other month, there are numerous other regulatory obligations that are ongoing, or particular to an individual station. As we wrote here, AM radio operators who filed for new FM translators in the recent window and found that their applications were in conflict with another applicant have an opportunity to resolve their mutual exclusivity through technical changes or settlements. Broadcasters will also be watching the FCC for the release of other decisions dealing with pending matters including reconsideration petitions on the FCC’s ownership rules (see our posts here, here and here), the elimination of the main studio rule (see our posts here and here), the adoption of ATSC 3.0 (see our post here), and potentially other areas for “modernization” under the FCC’s Modernization of Media Regulation initiative. So make sure that you are keeping your eyes open for regulatory developments that affect your operations.

The FCC yesterday released a Public Notice providing the details for its settlement window for mutually exclusive applications for new FM translators to rebroadcast AM stations. The settlement window will run through November 29. The mutually-exclusive applications (applications which conflict with each other as they cannot both operate without creating prohibited interference) are listed on an appendix available here. These applications were the ones filed earlier this summer in the FCC’s first window reserved for AM station licensees to file for new FM translators to rebroadcast their AM stations as part of the FCC’s AM revitalization proceeding. The first window was for Class C and D AM stations to submit applications. Class A and B AMs, which generally have greater coverage areas, will be able to file applications in a window to open either later this year or, at this point, more likely in early 2018. The majority of applications filed in this year’s window, which are not listed on the appendix of mutually exclusive applications and which did not receive a letter from the FCC in the last few weeks identifying deficiencies in their short-form applications, are likely “singletons,” meaning that these applications are not in conflict with any other and will likely be asked to file a “long-form” application completing the FCC Form 349 before being proposed for grant at some point later this year or early next year.

As we have written, as these applications were filed in the context of a potential auction, applicants cannot talk to each other except during announced settlement windows. Now that the settlement window has been announced, mutually exclusive applicants can discuss trying to resolve the mutual exclusivity either through technical means or by the dismissal of one of the applications. Technical means could include any “minor change” in the facilities initially proposed by one or both of the mutually-exclusive applicants, e.g. frequency moves to adjacent channels, transmitter site changes, or directional antenna proposals. Dismissal of applications can only be for the reimbursement of a dismissing applicant’s legitimate expenses – the dismissing applicant cannot be paid big bucks to dismiss its application. More details of the settlement process are set out in the Public Notice, but note that the deadline for the submission of any resolution to the FCC is November 29.

Mutually exclusive applications that remain in conflict with other applications at the conclusion of the settlement window will end up in an auction – and no one knows when that will occur. As there are still mutually exclusive applications from the 2003 FM translator window that have not yet been set for auction, it may well not be imminent. So resolving all conflicts before the November 29 deadline is certainly the most expedient way to get an application granted.

When the applicants that are not mutually exclusive, the singletons, will be notified of their status and asked for long-form applications to complete the application process, so that these applications can be further processed and granted, remains unknown at the moment – but should be expected later this year (or, at this point, possibly early next year). Stay alert for more developments.


The week before last, we summarized an FCC draft order to relax rules on proofs of performance for AM stations – lessening the number of monitoring points needed in traditional partial proofs of performance, and relaxing a number of previous-imposed limitations on the use of Method of Moments proofs (see our post here for more details). While this decision, part of the FCC’s AM revitalization efforts, was slated for consideration at the full FCC meeting this week, instead it was adopted on circulation, the final version of the order available here. Most of the new rules will become effective at a later date after approval by the Office of Management and Budget under the Paperwork Reduction Act.

Last week, the FCC released a draft of an order to simplify the proofing of AM stations. This order will be considered at the FCC’s September 26 meeting. While the proposals to be adopted are part of the AM Revitalizationproceeding, even the Commission recognizes that these are not fundamental changes in the way that stations operate, but instead technical changes that can, hopefully, save some AM stations some money. The FCC also noted that it was removing proposals for changes in the AM main studio rules from the AM Revitalization proceeding as these changes are already being considered in the proceeding proposing to entirely eliminate the main studio rules (see our post here).

The rule changes in the proposed order address AM antenna proofs of performance – principally proofs that are conducted after a station has been initially constructed and licensed. The need to re-proof an AM station’s directional pattern typically occurs when additional antennas or other equipment is added to an existing AM tower, or when there are other changes that suggest to the licensee that the AM directional pattern’s values may have changed (e.g. when there is significant construction in the immediate vicinity of the tower). Most of the FCC’s planned changes deal with Method of Moments (“MoM”) modeling used to proof AM stations (see our posts here and here on the FCC’s adoption of the computerized technology used to make proofing of AM antennas easier), though one change dealt with more traditional AM proof of performance techniques.

The rule change affecting traditional proofs deals with how many radials need to be proofed when there are changes in the equipment located on the AM tower or when other changes necessitate an AM partial proof of performance. The FCC’s draft order provides that measurements only need be taken on the radials in an AM pattern that contain a monitoring point. In the current rules, additional radials adjacent to the radials containing monitoring points must be measured when the station has a pattern with fewer than four monitored radials.

For stations using MoM modeling to proof their facilities, the FCC’s draft order would make a number of changes to make the modeling process somewhat simpler. These changes would:

  • Eliminate periodic recertifications of the performance of a directional pattern for stations licensed pursuant to a MoM proof as the technology has proven its reliability and needs less verification. The new rule would require recertification only when equipment has been repaired or replaced;
  • Eliminate the requirement to conduct reference field strength measurements when relicensing a station that was licensed pursuant to a MoM proof;
  • To encourage the co-location of AM stations, eliminate the requirement for a registered surveyor’s certification of the location of towers in an AM array when existing towers in an existing AM antenna array are being used by a new station using MoM modeling;
  • Clarify that the provisions of a certain rule section will only apply when total capacitance used for MoM modeling of base region effects exceeds a particular value and only when a particular type of sampling is used; and
  • Codify the standards under which a new MoM proof of performance is needed when adding or modifying antennas or other system components above the base insulator of a tower in an AM array.

The FCC declined to allow MoM proofing for AM stations with a skirt-fed antenna, finding that the technology has not yet been reliably demonstrated for modeling the patterns of such antennas. Obviously, each of these changes is very technical, so consult your engineer to determine how they may affect your operations.

Finally, the FCC stated that it would no longer be considering any changes to the rules for AM station’s main studios as part of the AM revitalization proceeding. Instead, those changes will be part of the proceeding to abolish the main studio rules entirely. As we wrote here, FCC Chairman Pai stated in his speech at last week’s NAB Radio Show that he had reviewed the record of that proceeding, and was convinced that the main studio rule needed to be abolished. Obviously, the other Commissioners need to weigh in before any change in the rule can be adopted. Some have suggested that the main studio rule may be abolished before the end of the year, so stay tuned to watch for that action.

And watch for the FCC to adopt these proposals on AM improvements at its meeting in two weeks.

The FCC has issued a series of public notices to broadcasters and other FCC regulated entities in the path of Hurricane Irma. General guidance was issued by the FCC, here, discussing how stations can get special temporary authority to operate with facilities different than those specified in their licenses by email or even by telephone during the emergency. This may be particularly important if stations towers or antennas are damaged by the storm and, to continue service, stations need to use alternate facilities. During the recent Texas Hurricane harvey, the FCC even issued some daytime only AM stations authority to temporarily operate with nighttime operations where they were providing emergency information. If STAs are needed, the public notice provides information about where to call or email

The FCC has also activated its Disaster Information Reporting System for the Virgin Islands and Puerto Rico, and is likely to extend it to portions of Florida in the near future. This system is used by stations and other licensees to report cessation or changes to their operations. In some cases, reporting these details may provide a station with access to information about how to speed the delivery of equipment, fuel or other emergency supplies to stations in the affected areas. The reporting system is voluntary, but encouraged by the FCC.

We obviously hope for the safety and security of all in the affected areas, and thank all the broadcasters who will, in the coming days, be spending countless hours reporting important information to the residents of their service areas. As always, they provide an invaluable service at times like there, and we all pray that everyone stays safe.