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Nevada Broadcasters Association

From Broadcast Law Blog Archive

The FCC late yesterday released an Order setting the amount of FY2017 Annual Regulatory fees, along with a public notice setting September 26 as the deadline for those fees. Reg fees may be paid now through September 26. If not paid by 11:59 PM Eastern Time on that date, penalties of 25% will be assessed. In addition, applications by any licensee that has not paid its fees may be held by the Commission without action until the fees are paid, and can even end up resulting in a license cancellation in cases where the failure is a long-term unresolved issue.

The public notice also makes clear that fees can only be paid by electronic transfer of funds. Checks and money orders will not be accepted. Only payments by credit cards or electronic transfer of funds will be allowed. Credit cards can only be used for payments up to $24,999.99 by any entity. Only commercial stations need to pay these fees. A fact sheet for Media Services is available here and contains more details on the fees and procedures for payments by broadcasters. But the amounts of the fees for various classes of broadcasters were set by the FCC’s Order also released yesterday.

The Order adopted a revised version of the proposed table in the Notice of Proposed Rulemaking about which we wrote here. It reduces the regulatory fees in the two lowest population tiers for AM and FM broadcasters from the amounts proposed. The fee structure for radio for this year’s fees as adopted by the Commission is as follows:

FY 2017 RADIO STATION REGULATORY FEES
Population

Served

AM Class A AM Class B AM Class C AM Class D FM Classes

A, B1 & C3

FM Classes

B, C, C0, C1 & C2

<=25,000 $895 $640 $555 $610 $980 $1,100
25,001 – 75,000 $1,350 $955 $830 $915 $1,475 $1,650
75,001 – 150,000 $2,375 $1,700 $1,475 $1,600 $2,600 $2,925
150,001 – 500,000 $3,550 $2,525 $2,200 $2,425 $3,875 $4,400
500,001 – 1,200,000 $5,325 $3,800 $3,300 $3,625 $5,825 $6,575
1,200,001 – 3,000,00 $7,975 $5,700 $4,950 $5,425 $8,750 $9,875
3,000,001 – 6,000,00 $11,950 $8,550 $7,400 $8,150 $13,100 $14,800
>6,000,000 $17,950 $12,825 $11,100 $12,225 $19,650 $22,225

It also adopted the following fees for other broadcast licensees and permitteess:

AM Radio Construction Permits 555
FM Radio Construction Permits 980
Digital TV (47 CFR part 73) VHF and UHF Commercial
Markets 1-10 59,750
Markets 11-25 45,025
Markets 26-50 30,050
Markets 51-100 14,975
Remaining Markets 4,925
Construction Permits 4,925
Satellite Television Stations (All Markets) 1,725
Low Power TV, Class A TV, TV/FM Translators & Boosters (47 CFR part 74) 430
Earth Stations (47 CFR part 25) 360

In the Notice of Proposed Rulemaking earlier this year, the Commission had proposed coming up with a definitive list of satellite TV stations, which pay less than full-service non-satellite stations. However, the FCC was not able to come up with a definitive source for such information, leaving that issue to be examined in the future.

The Commission also raised the de minimis threshold, below which broadcasters need not pay any fees, to $1,000. A broadcaster whose total fees for all of its stations is less than $1000 need not pay any fee. Thus, certain entities that own a single AM or small-market FM may avoid the need to pay any fees. But the Order reminded regulatees that they will need to reevaluate annually to determine whether their total liability for annual regulatory fees falls at or below the threshold given any changes that the Commission may make in its regulatory fees from year to year.

The fee filing process is now underway. To avoid penalties for late filings, and to avoid the potential of having application processing blocked and other sanctions for nonpayment of the fees, be sure to meet the September 26 deadline.

Updated: 9/6/2017, 8:00 PM EDT to add link to Media Services Fee Filing Guide

The FCC on Friday announced that they were extending the deadline for filing Biennial Ownership Reports by broadcasters from December 1 to March 2, 2018 to be sure that the new version of the form in the FCC’s LMS database will be up and ready to be used. The FCC will open the window for filing these ownership reports on December 1 (which was to be the deadline). However, the reports will still report on the ownership of each broadcast station as of October 1, 2017, meaning that station owners who sell their station between October 1 and the new deadline are being told by the FCC that they will need to file their own biennial reports – even if they no longer own any broadcast stations.

We have written about these reports in the past, and about the particular controversy about whether noncommercial broadcasters needed to obtain an FCC Registration Number (FRN) for each of its owners (see our article here about the FCC decision to not require that information). This is the first time that noncommercial entities will be filing their Biennial Reports at the same time as commercial broadcasters. Noncommercial broadcasters previously filed on the anniversary date of their license renewal filing, a system put on hold last year in anticipation of this year’s filing deadline.

Summer is coming to an end, but the legal obligations never take a vacation, and September brings another list of regulatory deadlines for broadcasters. While the month is one of those without the usual list of EEO Public File obligations or quarterly FCC filing obligations, there still are a number of other regulatory deadlines for which broadcasters need to be prepared.

For commercial broadcasters, the September date that should be on everyone’s mind is the deadline for the payment of annual regulatory fees. As we wrote here, there is an FCC order circulating among the Commissioners that should be released any day, setting the amounts of the regulatory fees and the deadline for their payment. These fees will almost certainly be due in September, prior to the start of the government’s fiscal year on October 1. So stay alert for the announcement of the window for paying these “reg fees.”

Broadcasters will also be dealing with the Nationwide EAS Test scheduled for September 27, though as we wrote here, it could be pushed back to October if there is a real emergency that is pending near the September 27 deadline. By Monday, stations need to have completed the ETRS Form One to be prepared to report on the results of the test (see our article here).

TV stations’ must-carry and retransmission consent letters must be received by cable or satellite carriers by October 1 of this year – so these letters should be going out by certified mail to MVPDs soon if they have not already been sent. By October 1, copies of the election letters sent to all the MVPDs need to be uploaded to the station’s online public file.

For those stations serving states with off-year elections on November 7 (including governor’s races in New Jersey and Virginia and a host of state and local elections in other states), lowest unit rates go into effect on September 8. As we have written before, candidates for state and local offices do not have reasonable access rights – meaning that they cannot demand access to all classes and dayparts of advertising available on a station. But if a station makes time available to one candidate in a race, it must treat all candidates for the same race equally by making time available to them, and starting on September 8, that time must be sold at lowest unit rates. See our articles here and here on this issue.

We would expect that the next steps in the processing of the FM translator applications filed last month by AM stations will take place in September, with the FCC giving notice of which applications are mutually exclusive (and setting dates for a settlement window when resolutions of any conflicts between such applicants can be negotiated). Notice will also be given as to which applications are “singletons” – or not in conflict with any other applications. Those singleton applications will have to file the remainder of FCC Form 349 and will be subject to petitions to deny before they can be granted. Look for more on the processing of these applications next month. For more information, see our article here.

Other deadlines this month include the end of the first window to file construction permit applications for new facilities by certain TV stations affected by the incentive auction that are not able to build or to replicate their current signals on their new channels assigned by the FCC. Shortly after the September 8 end of this first window, the FCC will announce another window for all other repacked stations to seek improvements in their facilities (see our post here). Watch for those deadlines.

Commercial radio stations will also need to elect whether they want to accept GMR’s offer of an extended interim license to play GMR music through March of next year (see our article here). That election is due by the end of September.

And, as always, watch for other deadlines that may affect your operations. Even in a deregulatory time such as what we seem to be in, there still are many legal and regulatory deadlines and obligations that broadcasters must observe. Make sure you pay attention to the ones that affect your stations.

All EAS Participants – including all full-power broadcasters – must complete the 2017 ETRS Form One on or before August 28, 2017. We wrote about this obligation here. The filing deadline was set for next week as the ETRS system is used so that stations can report on the results of nationwide EAS tests. With the next Nationwide EAS Test set for September 27, the accounts and basic information for all EAS participants need to be in the system to allow for that reporting. Each EAS Participant should file a separate copy of Form One for each of its EAS decoders, EAS encoders, and units combining such decoder and encoder functions. .

The FCC put out a reminder on the upcoming EAS deadlines and the Nationwide EAS test here. Be sure that you are on file so that you will be ready to report on the results of the EAS test to be run next month. This system is supposed to be able to monitor who filed – so you don’t want to stick out as missing the required filing when the FCC reviews the results of the test that are submitted through the ETRS system. And, while you are at it, make sure that your EAS equipment is in working order so that you can post positive results after the test (see our warning here about the fines for non-functional EAS equipment).

About this time each year, broadcasters and other entities regulated by the FCC prepare to find out the amount of their annual FCC regulatory fees. These fees are likely to be paid in September, before the October 1 start of the new government fiscal year. Last week, the FCC added to its list of “items on circulation” (FCC orders that have been written and are circulating among the Commissioners for a vote) an order to establish the specifics of this year’s regulatory fees, and to propose some additional changes to be considered next year. We wrote in late May about the proposal for this year’s fees that were advanced in a Notice of Proposed Rulemaking. Among the proposals were ones to reduce the relative contribution of smaller stations to the total amount to be paid by the broadcast industry by increasing the contribution of larger stations in larger markets. Also proposed was a reduction in the amount to be paid by TV satellite stations, and increasing the exemption for “de minimis” obligations – allowing those companies with a total fee obligation of less than $1000 to avoid paying fees altogether (an increase from the $500 in previous years). We will see when the order on circulation is released whether any of these proposals will be implemented for the fees to be paid this year.

Once the FCC releases the order on circulation deciding the policy issues about the fees, there usually follows a public notice setting the actual dates for payment, and fee guides from each of the FCC’s Bureaus providing details of the payment process for each FCC-regulated service. At that point, broadcast companies will be able to determine the specific amount of the fees that they will owe for this year. Failing to pay the fees on time can lead to substantial late fees, and can put the processing of applications by a licensee on hold. So be ready – the order should be out soon and the deadline for the payment of fees is fast approaching.

The window for filing applications for new FM translators for Class C and D AM stations has now closed. According to a statement from FCC Chairman Pai, over 1000 AM stations took advantage of the filing window. What’s next? The FCC will take these applications and determine which of them are mutually exclusive with some other application filed during the window that ended yesterday. Those that are not in conflict with any other application filed during the window will be asked to complete the Form 349 application (so far, applicants have filed only the “tech box” setting out the basics of their technical proposal). The completed Form 349s will be processed and, barring any issues, construction permits will be granted.

The FCC will also determine which applications are mutually exclusive. At some point, it will release a list of all mutually exclusive applications, and these applicants will be able to discuss resolving their conflicts by minor technical amendments to their applications (e.g. site changes, directional antennas, changes to a new channel within 3 channels of the channel they originally proposed in the tech box application). It is important that applicants not discuss possible resolution with other broadcasters in their market at this time, as this is theoretically an auction proceeding where there are rules against “prohibited communications” that are now in effect. It might seem silly that you can’t discuss a resolution of a conflict with a competitor now when, in a few weeks, the FCC will allow it (and in fact probably encourage it). But, by applying the auction rules to this filing window, these prohibitions are in effect and are taken seriously by the FCC until the settlement window opens.

Applications that are mutually exclusive and that cannot be resolved during the settlement window will likely end up in auction at some point in the future. One would think that this will happen principally in spectrum-congested markets where there are multiple AM stations eligible for the auction, but few available channels for translators. But we will all just have to wait and see what the list of mutually exclusive applications looks like when the FCC releases it sometime in the coming weeks.

The FCC yesterday released an online tutorial for the upcoming windows for filing for FM translators for AM stations. The first window will run from July 26 until 6 pm ET on August 2, where Class C and D AM stations that did not receive a translator in last year’s 250-mile waiver windows can file for a new FM translator to rebroadcast their AM station. We wrote about that window here. The tutorial references various FCC filing guides to assist applicants in filing their applications. The Public Notice announcing the Tutorial also makes clear that, if an applicant has a pending application to acquire an AM station during the window, the proposed assignee can file the application for the new translator, presumably to be granted upon the acquisition of the station (as these translators are tied to the AM on a permanent basis). The current owner of the station and the proposed buyer cannot both file – only one application per station will be permitted. AM stations planning to take advantage of this window should be well into the process of preparing their applications for the window that opens in less than 2 weeks.

Today, the order eliminating the requirement that broadcasters maintain in a paper public inspection file copies of letters and emails to their stations about station operations becomes effective. While the FCC abolished the requirement back in January, one of the first deregulatory actions of the new Chairman (see our article on that decision here), the decision did not become effective until the publication of that decision in the Federal Register, which occurred today (here). The delay was caused by the review of the decision by the Office of Management and Budget to ensure that it was consistent with the Paperwork Reduction Act – seemingly a self-evident proposition, but one that takes time nevertheless.

For all TV stations and many radio stations that have already converted to the online public file, this effective date will remove the last paper remnant of the public inspection file. For radio stations that have not yet converted to the online public file (smaller clusters in big markets and stations in small markets do not need to convert until March 1 of 2018, see our article here), the paper file will linger on – for some stations who do not upload past political documents (only new political documents need to be uploaded to the online public file), the last remnants of the paper file could linger for two years from the date of the creation of the last political file document that is created before a station’s conversion to the online public file. As the FCC has asked if conversion to the online public file needs to be a pre-condition to taking advantage of any elimination or relaxation of the main studio rule (a proposal on which comments are due on July 3, see our articles here and here), this impending rule change might provide a further incentive to a quick conversion to the online file. In any event, the FCC’s January decision abolishing the obligation to maintain letters from the public in a station’s public file is now, at long last, effective.

July is a big month on the Washington regulatory scene for broadcasters. There are, of course, the routine quarterly regulatory obligations. For all stations, commercial and noncommercial, Quarterly Issues Programs Lists, summarizing the most important issues facing a broadcaster’s community, and the programs that were broadcast in the prior quarter to address those issues, must be in a station’s public file (the online public file for all TV stations and for radio stations that have already converted to the online file) by July 10. These are the only required records documenting a station’s service to its community, so do not forget to complete these reports and to timely place them in your public file.

Children’s Television Reports documenting the educational and informational programing broadcast by TV stations to meet their obligation to program at least three hours a week of such programming for each program stream are due to be filed at the FCC by July 10. Also, TV stations must place into their public file documentation showing that they have met the advertising limits imposed on commercials during children’s programming.

Beyond these routine FCC obligations, TV broadcasters must also start, as of July 1, captioning clips of live or near-live TV programming used on their websites or mobile apps. This is a continuation of the obligation of TV stations to caption over-the-air programming repurposed to a station’s website or mobile application. See our article here for more on this obligation.

Comment dates in two important broadcast proceedings are also due in early July. Broadcasters can file comments on the FCC proposal to eliminate the main studio rule by July 3 (see our articles here and here). Also, the FCC is looking for comments in its Modernization of Media Regulation Proceeding, which are due on July 5. In this proceeding, the FCC has invited broadcasters to submit their comments proposing the elimination or modification of any broadcast rule (other than ownership limits) that the broadcaster no longer thinks is necessary or in the public interest. See our ideas on some of the rules that could be changed here. This is a once-in-a-lifetime chance to effect real change in broadcast regulations – so file comments now.

For TV stations involved in the repacking of the TV band, construction permit applications and summaries of the expenses that they expect to incur in the transition to their new channels are due on July 12. If TV stations want to get promptly reimbursed for their expenses in changing channels, or if they have problems with the channels assigned by the FCC for the repacking, July 12 is the date by which they need to file their paperwork with the FCC. See our article here.

Finally, in this very busy month, AM radio stations that want a new FM translator, and did not file for one last year using the 250-mile waiver provision of the AM Revitalization Proceeding, have the opportunity to file for a new translator in the upcoming window that runs from July 26 to August 2. See our summary of the rules for that window here and here.

These are but some of the regulatory highlights of the upcoming month. Every station should insure that they meet these and other obligations that may apply to them in this month, and in every other month during the year, to stay out of trouble with the FCC and other regulatory agencies that govern their conduct.

Late yesterday, the FCC released the Public Notice setting out the instructions for the upcoming window for Class C and D AM stations to file for new FM translators. The window will be open for the submission of applications from July 26 to August 2 – and mutually exclusive applications filed during that window will be resolved by an auction if they cannot be resolved by settlements or engineering solutions. This is a very complicated Public Notice, as the FCC is treating these applications as those filed in preparation for an auction. Applicants need to read this notice very carefully to avoid traps – traps which include having conversations with mutually exclusive applicants outside a yet-to-be-announced 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 mutually exclusive applicants can’t talk to each other except during these designated settlement windows.

Resolving mutually exclusive applications is also not as easy as some may have thought. Applicants can resolve conflicts only by filing settlements or technical amendments that comply with the minor change rules – meaning that they 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, under the rules announced yesterday, cannot amend to any vacant channel that may be available in their area (a restriction different than that allowed in some past secondary service windows in the past – such as that opened for LPFM applicants).

This may be to preserve some channels for applicants in the next window – one to be announced in the future for all AM stations (including Class A and B AM stations) to file for new translators. But that second window will only be open to AM stations that did not rely on the 250 mile waivers in last year’s AM Revitalization windows (see our article here) or in this first upcoming window. AM stations that previously obtained translators for their stations without relying on the 250 mile waiver last year, however, are not precluded from filing for another translator in the upcoming window. Once an application is filed in this window (or if one was filed last year in reliance on the 250 mile waiver), even if it is ultimately dismissed, the applicant who submitted the application cannot take advantage of a subsequent window. So it would seem that mutually exclusive applications filed in this upcoming window, that cannot file a minor change application to resolve their conflict, will not have another chance to file for a translator in the second window later in the year.

And, as noted above, these applications are not the simple application for an FM translator construction permit that many applicants might be used to filing. Instead, they are auction applications which require certain auction-related disclosures to be acceptable. Hopefully, the FCC will be holding some sort of training session for these applications, as I expect that some small AM stations that may be interested in filing in this window will come away baffled by the auction instructions. As noted above, these rules include the restrictions on prohibited communications – forbidding applicants with applications that are mutually exclusive from talking about auction strategy or tactics, which would seemingly include trying to settle the conflicts – except during designated settlement windows. So, while you can consider engineering solutions to resolve conflicts with your engineer, don’t convey the potential solution to other applicants except when the FCC tells you that you can do so.

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 July 19 until August 2.

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 opportunity to get a new FM translator for your AM station.

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