Legal Memorandums: 2021
-
"Eye On Enforcement" Edition
Description
Commission Imposes $233,000 Fine for Station Group Owner's 26 Violations of Sponsorship ID Rules and Terms of Prior Consent Decree Governing Compliance with that Rule A large radio licensee faces a six-figure penalty for multiple violations of the FCC's sponsorship identification rule coupled with its failure to comply with the terms of a prior consent decree that also addressed sponsorship ID problems. An FCC Forfeiture Order formally imposes a $233,000 fine against the licensee for those violations; the fine was initially proposed back in an August 2019 Notice of Apparent Liability. Please open the attached memo to learn more. * * * Consent Decree Including $10,000 Fine Resolves LPFM Station's Violations of Underwriting Rules The FCC's underwriting rules were at issue in a recent Consent Decree resolving the broadcast by a noncommercial educational LPFM licensee of nine announcements that contained prohibited promotional references. The Decree is the latest of several enforcement actions across the last year that have resolved underwriting violations by LPFM stations. For more information, please open the attached file. * * * Failures to Timely File License Renewal Applications Generally Costing Stations $1,500 to $3,000 We're continuing to see multiple Notices of Apparent Liability for Forfeiture roll in for radio licensees' apparent failures to timely file license renewal applications. Some of the latest such Notices address renewal applications for AM stations, FM stations, LPFM stations, and FM translator stations; the Notices target stations in multiple states. To see how much these late filings are costing stations, please open the attached document. * * * Numerous Radio Broadcasters Still Entering Into Political File Consent Decrees Political file consent decrees continue to be inked between the Commission and various radio broadcasters at a fairly steady clip. By our count, approximately a dozen additional political file consent decrees have been released since the beginning of 2021. Please open the attached memo for more details. * * * FCC Issues Enforcement Advisory Reminding Broadcasters of EAS Compliance Obligations The FCC's Enforcement Bureau recently issued a Public Notice reminding broadcasters (and all emergency alert system ("EAS”) participants) of their EAS compliance obligations and warning of the potential for enforcement action for failures to comply with the FCC's EAS rules. In particular, the Notice explained that the report issued by the FCC's Public Safety and Homeland Security Bureau covering the most recent national test of the EAS system identified several issues that had apparently impaired dissemination of EAS messages, including failures to make those messages accessible to individuals with hearing and vision disabilities. For more on what you can do to ensure EAS compliance, please review the attached file.
Download -
2021 National EAS Test Date and Filing Deadlines -- CRB Adopts Increased Streaming Rates -- FCC's EAS Changes
Description
EAS Nationwide Test DATE and Corresponding Form Filing Deadlines Set By recent Public Notice (the "Notice”), the FCC has confirmed FEMA's (the Federal Emergency Management Agency's) earlier announcement that the next nationwide EAS test is scheduled for August 11, 2021, at 2:20 PM ET (the backup date, if needed, is August 25). All broadcasters are required to participate in the August 11 nationwide test. And all broadcasters are required to timely file the required Form One (by July 6), Form Two (by August 12), and Form Three (by September 27) associated with the nationwide test. Please open the attached memorandum for more information. * * * CRB Adopts Increased Streaming Rates for Radio Broadcasters, Takes Middle Position Between NAB and SoundExchange Proposals After several delays caused by the COVID-19 pandemic, the Copyright Royalty Board ("CRB”) has announced its decision adopting the streaming royalty rates radio stations must pay for the period from January 1, 2021, to December 31, 2025. Most broadcasters will likely see an increase, with commercial broadcasters in particular likely to see an increase of approximately 17%—up from the current $0.18 royalty rate to $0.21—for every 100 songs streamed on non-subscription advertising-supported webcasts. Please review the attached memorandum for more information. * * * FCC Adopts Minor Changes to EAS Rules, Considering More at FEMA's Request At the Commission's June open meeting today (June 17), the FCC adopted a Report and Order and Further Notice of Proposed Rulemaking (the "Order” and "Notice,” respectively), aimed at enhancing the efficacy of the Emergency Alert System ("EAS”) and Wireless Emergency Alerts ("WEA”). Please open the attached memorandum for more information.
Download -
Big Tech Reg Fee Comments -- C-Band Payments Begin -- FM NCE New Station Filing Window
Description
Tech Industry Mobilizes Against NAB Request for FCC to Include "Big Tech” Companies in Annual FCC Regulatory Fee Calculus Recent comments by those in or related to the technology industry have strongly opposed an NAB request for the FCC to begin requiring regulatory fee payments from certain unlicensed spectrum users—namely, "big tech” companies. The FCC teed up NAB's request in a recent Notice of Proposed Rulemaking (the "NPRM”) looking toward potential modifications to the FY 2022 FCC regulatory fee regime and beyond. Opening comments on the NPRM were due on October 21, 2021, with reply comments due Friday, November 5, 2021. Please open the attached memorandum for more information. ___________________________ C-Band Relocation Payment Clearinghouse Announces that It Has Begun to Pay Reimbursement Claims In welcome news for broadcasters, the C-band Relocation Payment Clearinghouse (the "RPC”) recently announced (the "Announcement”) that "it has begun to pay claims filed by incumbent earth station operators related to the C-band relocation program.” Although the Announcement does not specify the types of claims that have thus far been paid, the RPC has previously indicated that lump sum payments are likely to be processed before actual cost reimbursements. Please open the attached memorandum for more information. ___________________________ November 2nd to 9th, 2021: Filing Window for Applications for New NCE FM Station Construction Permits on FM Reserved Band; 10-Application Limit Applicable to Filing Window During the brief seven day period between November 2 and November 9, NCE broadcasters are presented with a relatively infrequent opportunity—as we have previously written, an FCC filing window to apply for one or more new FM stations in the reserved band (i.e., channels 201 to 220 / 87.9 MHz to 91.9 MHz) will be open from 12:01 AM ET on November 2nd to 6:00 PM ET on November 9th, 2021. Please open the attached memorandum for more information.
Download -
Breaking News -- SCOTUS Releases Unanimous Opinion Siding with FCC in Multiple Ownership Case
Description
U.S. Supreme Court Unanimously Sides with FCC in Prometheus Media Ownership Deregulation Case The U.S. Supreme Court today released an Opinion in which it unanimously held that the FCC acted properly and within its discretion when it relaxed several of its local media ownership rules in 2017. The Supreme Court Opinion breaks the nearly 20-year stranglehold of a divided panel of the United States Court of Appeals for the Third Circuit, which panel has retained jurisdiction over the FCC's quadrennial review proceedings (and attendant attempts to deregulate the media ownership rules) since 2003. For more information regarding the Supreme Court's reasoning, and what may happen next with respect to the FCC's multiple ownership rules, please open the attached memorandum.
Download -
Broadcasters Get Big Win Over Locast; Streaming Platform Suspends Operations
Description
BROADCAST NETWORKS SCORE SIGNIFICANT VICTORY IN LITIGATION AGAINST LOCAST; STREAMING SERVICE SUSPENDS OPERATIONS The broadcast industry—the Big Four Television Networks, specifically—scored a significant victory over Locast earlier this week in the Networks' copyright infringement lawsuit against the streaming service. In response to the ruling, handed down Tuesday by a federal judge in the Southern District of New York, Locast announced today that it is suspending operations, effective immediately. The eight-page Order resolves the primary, critical legal issue in the case in broadcasters' favor—and, therefore, it would appear that broadcasters have, for practical purposes, "won” the case at this point. Indeed, Locast's decision to suspend operations indicates as much, at least for now. That said, the litigation is not over: the Order, leaves for trial the issue of damages the broadcaster plaintiffs have incurred as a result of Locast's operations. And, of course, Locast may appeal the Order. Please open the attached memorandum for more.
Download -
C-band Updates and Action Items
Description
C-BAND Lump Sum and Actual Cost Reimbursement Status Update, and How to Get Set Up for Reimbursement With the C-band earth station transition process now well underway, we write with a status update regarding reimbursement opportunities for broadcasters with qualifying, incumbent earth stations (i.e., C-band downlink and/or uplink dishes) and guidance regarding the initial steps necessary to get set up (via Coupa) for such reimbursement. Please open the attached memorandum for more information, and, in addition, please be sure to touch base with your regular communications counsel since there are economic consequences implicated here.
Download -
Deadline Reminders -- August 11, EAS National Test -- October 1, Biennial Ownership Reports -- October 8, Repack Reimbursement Submissions for Phases 1-5
Description
AUGUST 11, 2021: NATIONAL EAS TEST; ALL BROADCAST STATIONS MUST PARTICIPATE The next nationwide EAS test is scheduled for August 11, 2021, at 2:20 PM ET—i.e., less than one week away! (The backup date, if needed, is August 25.) All broadcasters are required to participate in the August 11 nationwide test, and all broadcasters are required to timely file the forthcoming Form Two and Form Three reports associated with the nationwide test (all broadcasters should have already filed their Form One report back in July). The Form Two report will be due August 12, 2021, the day after the nationwide EAS test. Please open the attached memorandum for more information. * * * OCTOBER 1, 2021: BIENNIAL OWNERSHIP REPORT FILING WINDOW OPENS Broadcasters face another important filing in the next few months: All licensees of commercial and non-commercial full power television, Class A television, low power television, AM radio, and FM radio stations must file biennial ownership reports between October 1 and December 1, 2021. Please review the attached memorandum for more information. * * * OCTOBER 8, 2021: DEADLINE TO SUBMIT REIMBURSEMENT INVOICES FOR STATIONS REPACKED IN PHASES 1-5 As of this writing, broadcasters who are eligible for reimbursement as part of the now-concluded spectrum repack and who transitioned in Phases 1-5 have only approximately 2 months left in which to submit reimbursement invoices to the FCC. As you likely recall, last fall the Commission established firm deadlines by which eligible broadcasters affected by the spectrum repack must submit all remaining reimbursement invoices and other documentation. The deadlines vary based on stations' assigned transition Phases, as well as by type of broadcast service, as follows: • October 8, 2021: Deadline for final reimbursement submissions from the more than 500 repacked stations assigned completion dates in Phases 1-5. • March 22, 2022: Deadline for final reimbursement submissions from the approximately 440 repacked stations assigned completion dates in Phases 6-10. • September 5, 2022: Deadline for final reimbursement submissions from FM, LPTV, and translator stations, as well as others. Please open the attached memorandum for more information.
Download -
DEADLINES -- FY 2021 Reg. Fees, ETRS Form 3, Biennial Ownership Reports, and Repack Invoices Phases 1-5
Description
FRIDAY, September 24, 2021: FY 2021 FCC Regulatory Fee Payments Due We wish to remind you that the deadline by which you must pay your FCC regulatory fees for fiscal year 2021 is fast approaching—all payments are due by 11:59 PM, ET, this Friday, September 24, 2021 (waiver requests are also due by the same deadline). Broadcasters must pay the FY 2021 regulatory fees using the Commission's automated filing and payment system, called Fee Filer, which is available at the following link: https://www.fcc.gov/licensing-databases/fees/fee-filer. Please open the attached memorandum for additional information. * * * MONDAY, September 27, 2021: ETRS Form Three for National EAS Test Due Broadcasters have slightly less than one more week, until September 27, 2021, to file the third and final report—called Form Three—associated with last month's nationwide test of the Emergency Alert System ("EAS”). Form Three (like Forms One and Two) must be filed using the FCC's ETRS (EAS Test Reporting System). Form Three is the report on which stations provide detailed post-test data and describe any issues with receipt or retransmission of the nationwide test. We heard of several issues associated with the test back on August 11, and it's quite possible some broadcasters may have a good bit of information to share on Form Three regarding their difficulties with the nationwide test. Please open the attached memorandum for additional information. * * * October 1, 2021: Biennial Ownership Report Filing Window Opens Broadcasters face another important filing in the next few months: All licensees of commercial and non-commercial full power television, Class A television, low power television, AM radio, and FM radio stations must file biennial ownership reports between October 1 and December 1, 2021. The reporting form solicits information that is current "as of” October 1st of this year regarding the ownership of each broadcast licensee and its "attributable parties.” Please open the attached memorandum for more information. * * * October 8, 2021: Deadline to Submit Reimbursement Invoices for Stations Repacked in Phases 1-5 As of this writing, broadcasters who are eligible for reimbursement as part of the now-concluded spectrum repack and who were assigned to repack Phases 1-5 have slightly less than three weeks left in which to submit reimbursement invoices to the FCC. As you likely recall, last fall the Commission established firm deadlines by which eligible broadcasters affected by the spectrum repack must submit all remaining reimbursement invoices and other documentation. The deadlines vary based on stations' assigned transition Phases, as well as by type of broadcast service. Please open the attached memorandum for more information.
Download -
Deadlines Affecting: Inactive/Unresponsive C-Band Earth Stations; LPTV and TV Translator Stations Transitioning to Digital Operations
Description
April 19, 2021: FCC Deadline for "Inactive” and "Unresponsive” Incumbent Earth Station Operators to File in C-band Docket or Lose Authorization and Incumbent Status The FCC's International Bureau issued a Public Notice in which it announced that it received from the "C-band Relocation Coordinator,” RSM US LLP, two important lists: (1) one list comprised of earth station operators (i.e., broadcasters with C-band downlink dishes) whose earth station(s) qualify for incumbent status but whom RSM and/or incumbent C-band satellite operators have been unable to contact regarding the forthcoming C-band transition; and (2) one list comprised of earth station operators who have one or more earth station antennas (i.e., C-band downlink dishes) that qualified for incumbent status but have subsequently been reported as no longer operational. The Notice requests that all earth station operators with qualifying incumbent earth stations review these lists and, if any operator discovers that it appears on either list when it believes that it should not, file by April 19, 2021, a notice with certain required information in the C‑band incumbency docket (IB Docket No. 20-205). Please open the attached file for more information. * * * One-Month Warning: March 13, 2021, Deadline for LPTV and TV Translator Stations to Request Final Extension of Digital Construction Permits for Forthcoming Digital Transition Deadline You may recall that the date by which LPTV and TV translator stations must transition to digital operations—and terminate all analog television operations—is July 13, 2021. But there's another, earlier deadline of which such stations should be aware: LPTV and TV translator stations experiencing delays in completing their digital facilities in anticipation of that upcoming July 13 deadline have until March 13, 2021, to seek one final extension of time of their digital construction permits. (And, although the technical deadline is extended by FCC rule to March 15, 2021, because March 13th falls on a Saturday, we strongly recommend filling any such extension requests as soon as possible, prior to March 13, 2021.) For more information, please open the attached memo.
Download -
Deadlines for (1) LPTV and TV Translator Digital Transitions and (2) Eligible Full Power DTDRT Filings
Description
DEADLINES: ONE MONTH WARNING—JULY 13, 2021, DEADLINE FOR (1) LPTV AND TV TRANSLATOR STATIONS TO TRANSITION TO DIGITAL OPERATIONS AND (2) ELIGIBLE FULL POWER STATIONS TO FILE FOR DIGITAL-TO-DIGITAL REPLACEMENT TRANSLATORS We're currently only about a month away from an important date that licensees of LPTV and TV translator stations should have circled on their calendars—July 13, 2021—which is the date by which LPTV and TV translator stations must transition to digital operations and terminate all analog television operations. Certain full power TV licensees likely have the same date highlighted: July 13th also serves as the deadline for eligible full power TV licensees to file for new digital-to-digital replacement translators ("DTDRT”) to recover lost digital service area that resulted from the spectrum repack. Please open the attached memo for more information regarding these important forthcoming deadlines.
Download -
Due Today, Monday, September 27th: FY 2021 FCC Regulatory Fee Payments and EAS Form 3 Filings
Description
DUE TODAY, MONDAY, September 27, by 11:59 PM ET: FY 2021 FCC Regulatory Fee Payments You read the above correctly—FY 2021 FCC regulatory fee payments are due TODAY, Monday, September 27, by 11:59 PM ET! In a Public Notice released Friday, September 24, 2021, the FCC announced an extension of the due date for FY 2021 regulatory fee payments to 11:59 PM, ET, Monday September 27, 2021. As you'll recall, prior to release of the Public Notice, they payment deadline had been Friday, September 24, 2021 (the date on which the extension was announced). Today, Monday, September 27, 2021, by 11:59 PM, ET, is also the deadline for submitting requests for fee waivers, reductions, deferrals, or extended payment terms (i.e., installment payment requests) for financial hardship reasons related to the pandemic. Please open the attached memorandum for additional information. ___________________________ ALSO DUE TODAY, MONDAY, September 27: ETRS Form Three for National EAS Test Today, September 27, 2021, is the deadline by which all broadcasters must file the third and final report—called Form Three—associated with last month's nationwide test of the Emergency Alert System ("EAS”). Form Three is the report on which stations provide detailed post-test data and describe any issues with receipt or retransmission of the nationwide test. Form Three (like Forms One and Two) must be filed using the FCC's ETRS (EAS Test Reporting System). Please open the attached memorandum for more information.
Download -
EAS National Test
Description
TOMORROW, AUGUST 11, 2021: NATIONAL EAS TEST; ALL BROADCAST STATIONS MUST PARTICIPATE This is a reminder to all broadcasters that the live nationwide test of the Emergency Alert System ("EAS”) is scheduled to take place TOMORROW: August 11, 2021, at 2:20 PM E.T.! (The backup date, if needed, is August 25.) All broadcasters are required to participate in the August 11 nationwide test, and all broadcasters are required to timely file the forthcoming Form Two and Form Three reports associated with the nationwide test (all broadcasters should have already filed their Form One report back in July). The Form Two report will be due August 12, 2021, the day after the nationwide EAS test.
Download -
Enforcement Bureau Advisory re Sponsorship ID -- Reminder re TBA/SSA/JSA OPIF Requirements
Description
FCC Issues Enforcement Advisory Targeting Sponsorship Identification Requirements The FCC recently released an "Enforcement Advisory” reminding broadcasters of their obligations to comply with the Commission's sponsorship identification requirements. The Advisory comes several months after the FCC imposed a $233,000 penalty for a broadcast ownership group's multiple violations of the sponsorship ID rules (as well as a preexisting consent decree), and close to a year after the FCC imposed a $48 million penalty—the largest ever imposed on a broadcaster at the time of its issuance—for a broadcast ownership group's violations of, among other things, the sponsorship identification requirements. Please open the attached memo to learn more about what the Enforcement Bureau wants broadcasters to keep in mind. * * * Media Bureau "Reminds” Commercial Broadcasters of OPIF Rules Pertaining to TBAs/LMAs, JSAs, and SSAs The Media Bureau recently issued a Public Notice kindly "reminding” commercial broadcast station licensees that "every 'sharing' agreement pertaining to the operation of the station, whether involving the lease of airtime, the joint sale of advertising, or the sharing of operational services,” must be "retained in their Online Public Inspection Files (OPIF).” Such types of agreements include time brokerage agreements; joint sales agreements; and shared service agreements. Whether a station complies with this upload/retention requirement is certainly something the FCC looks at when it's license renewal time; indeed, the Notice begins by suggesting that the Media Bureau is issuing the reminder given that the broadcast license renewal cycle continues to "move forward.” For more information, please review the attached file.
Download -
Eye on FCC Enforcement Edition
Description
FCC LARGELY ADOPTS PRIOR PROPOSED FINE OF $512,228 PER STATION FOR VIOLATIONS OF GOOD FAITH RETRANSMISSION CONSENT NEGOTIATING STANDARDS In a recent significant Forfeiture Order (the "Order”), issued by the three current FCC Commissioners and Acting FCC Chairwoman Rosenworcel, the FCC formally imposed a per-station fine of $512,228 against all but one of 18 television broadcast stations for violating the FCC's good faith retransmission consent negotiation standards. The Order follows up on a late-2020 Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture, which affirmed the underlying "good faith” violations. When combined, the fines set forth in the Order total just shy of $9 million. Please open the attached memorandum for more information. * * * FAILURE TO TIMELY UPLOAD ISSUES/PROGRAMS LISTS COSTING SOME TV LICENSEES $9,000 AND UP (PLUS A FEW NON-MONETARY ADMONISHMENTS) A collection of recent FCC Media Bureau releases have run the gamut from simply admonishing several stations to proposing fines ranging from $9,000, to $15,000, to $20,000, for various television licensees' failures to timely upload quarterly Issues/Programs Lists throughout the license term. Across the releases, the relevant factors seemingly affecting whether and the extent to which stations are fined for the belated uploads appears to be the interplay between (1) the number of untimely lists at issue, and (2) the length of delay in uploading each of the untimely lists. Please review the attached memorandum for more information. * * * UNAUTHORIZED EAS TONE TRANSMISSION COULD COST PROGRAMMER $20,000 A national programmer (the "Programmer”) is facing a proposed $20,000 fine (the "NAL”) for its unauthorized 1.83-second transmission of the EAS tones as part of a sports documentary program. The substantial fine for such a fleeting transmission reinforces just how seriously the FCC takes all such violations—to quote the NAL, "[u]nauthorized use of the EAS Tones . . . undermines the EAS and presents a substantial threat to public safety.” Please open the attached memorandum for more information. * * * FCC ADMONISHMENT ORDER ADDRESSES LEVEL OF LICENSEE DILIGENCE EXPECTED WHEN FACING TECHNICAL ISSUES WITH FCC FILING SYSTEMS Broadcasters should take note of a recent FCC Order addressing the amount of diligence the FCC expects a licensee to demonstrate when faced with a persistent technical issue with one of the FCC's filings systems. In particular, the Order admonishes an Indiana FM translator licensee for failing to timely file a license renewal application for the Station, even though the delay was due to technical issues with the FCC's Licensing and Management System ("LMS”) that made it impossible for the Station to timely file. Please open the attached memorandum for more information. * * * FCC ISSUES TWO NOTICES OF VIOLATION REGARDING FM TRANSLATORS' APPARENT VIOLATIONS OF FCC TECHNICAL RULES An FM translator licensee (the "Licensee”) was the recent recipient of two Notices of Violation (the "NOVs”) (1, 2) relating to two of its California translators. According to the NOVs, an FCC agent stationed in the Enforcement Bureau's Los Angeles field office observed apparent violations by the Licensee of several of the FCC's technical rules, including those relating to "unattended operation,” "station identification,” and "rebroadcasts” of primary station content. Please open the attached memorandum for more information. * * * SECOND ROUND OF 2021 EEO AUDITS ANNOUNCED; RESPONSES DUE BY SEPTEMBER 20, 2021 Approximately 151 radio stations, 20 TV stations, and their corresponding employment units will be part of the FCC's second equal employment opportunity ("EEO”) audit of 2021, according to a recently issued Public Notice. The Commission has already mailed audit letters to the selected stations, who must upload their audit responses to their online public inspection files ("OPIF”) by September 20, 2021. Please open the attached memorandum for more information.
Download -
FCC Seeks 2018 Quad Review Refresh; Formally Reinstates Multiple Ownership Rules
Description
FCC Adopts Order Reinstating 2017 Media Ownership Rule Changes and Issues Public Notice Seeking to Refresh Record in 2018 Quadrennial Review Earlier this afternoon—and approximately two months after the U.S. Supreme Court's unanimous opinion in the Prometheus multiple ownership case—the FCC (1) released an Order formally reinstating, among other things, various 2017 multiple ownership rules changes; and (2) issued a Public Notice seeking to update the record in the FCC's open 2018 Quadrennial Regulatory Review proceeding. While the Commission's adoption of the Reinstatement Order largely "checks some administrative and procedural boxes,” the issuance of the Public Notice provides broadcasters further opportunity to refresh the record in the 2018 Quadrennial Review in the hopes of persuading the FCC to make further changes (or not, depending on one's viewpoint!) to its broadcast multiple ownership rules. Please open the attached memo for more information regarding today's FCC releases.
Download -
FDA Permits Marketing E-Cigarette Product for First Time -- FCC Asks Whether Broadcasters Must Participate in DIRS
Description
For First Time, FDA Authorizes Marketing of an E-Cigarette Product In a first-of-its-kind decision (the "Authorization”), the FDA has officially authorized the marketing of an electronic nicotine delivery system ("ENDS”) product (in this case, what's often colloquially known as an "e-cigarette”) and two accompanying tobacco-flavored e-liquid pods. Note that the FDA's action is very narrow; the Authorization applies only to the specific ENDS system and two e-liquid pods that were the subject of the FDA's decision, and the Authorization is, to-date, the lone outlier among the flood of FDA decisions over the last several months that have collectively ordered nearly one million flavored "ENDS” products off the marketplace. Indeed, the FDA has announced that one of its "highest enforcement priorities” going forward will be taking action against any ENDS products that remain on the market unlawfully. For more about the FDA's action and what it might mean for broadcasters going forward, please open the attached memo. * * * FCC Seeks Comment on Whether to Mandate Broadcaster Participation in Disaster Information Reporting System In a recent Notice of Proposed Rulemaking the FCC announced that it is seeking comment on numerous issues related to the reliability and resiliency of communications networks during emergencies, including whether the Commission should expand and/or mandate participation in several of its disaster response programs. The NPRM is especially timely in light of the emergencies recently caused by Hurricane Ida. Broadcasters will want to take note of one particular proposal advanced in the NPRM: whether broadcasters (among others) should be required to participate in Disaster Information Reporting System ("DIRS”) going forward. Please open the attached file for more information.
Download -
Federal Developments Regarding Employer Vaccine Mandates
Description
THE SHIFTING LEGAL LANDSCAPE OF EMPLOYER-MANDATED VACCINATION, FROM THE FEDERAL PERSPECTIVE Private employers across the country, including broadcasters large and small, are working to develop the best policies for their respective workplaces. For many employers, a critical question is whether and how to require that employees be vaccinated against COVID-19. The attached memo discusses three significant, recent developments from the federal perspective of which broadcasters ought to be aware as they think through this issue. Please note that the information contained in the attached memo does not discuss state and/or local laws regarding vaccine mandates. Note, also, that broadcasters should consult with their employment law counsel and research state and local laws that might affect the discussion in the memo as they decide how—if at all—to move forward in this sensitive area.
Download -
FM Booster Geo-Targeting; DTS/SFN Rules Modified; Ancillary/Supplementary Services Fees Clarified; Repack Reimbursement Status Update
Description
Comments Mixed on Commission Proposal to Permit FM Booster Stations to Air Specified Amounts of Geo-Targeted Content Broadcasters thus far appear divided on the merits to and potential risks arising from a Notice of Proposed Rulemaking in which the Commission has proposed allowing radio broadcasters to use FM booster stations to air geo-targeted content—independent of their primary stations—in certain limited circumstances. The first round of comments submitted in response to the Notice ranged from full-on support for the proposal, to suggested modifications to the proposal, to full-on disagreement with the proposal; taken together, the comments signal varying levels of concern with the potential effects that the FCC's proposal could have on radio advertising rates, interference, and the FM noise floor. Please open the attached memo to learn more. * * * DTS/SFN Rules to be Modified to Accommodate Defined Amount of Spillover and Increase Transmitter Placement Flexibility The Commission has adopted a Report and Order "modestly easing limitations” on transmitter deployment for distributed transmission systems ("DTSs,” also known as single frequency networks, or "SFNs”) and providing additional clarity regarding certain aspects of the FCC's DTS rules. Of particular note, the Order (1) redefines—and, in so doing, slightly liberalizes—the permissible amount of spillover beyond a station's authorized service area that a DTS transmitter may cause; and (2) removes the requirement that Class A, LPTV, and TV translator stations apply for experimental authorization when seeking to deploy DTS. The Order hopes these actions will help to "unlock the potential of DTS at this crucial time when many stations are considering migrating to the next generation broadcast television standard (ATSC 3.0)” (i.e., "NextGen TV”). For more information, please open the attached file. * * * Commission Clarifies Treatment of Ancillary and Supplementary Services Fees in Context of ATSC 3.0 Deployment, Grants NCE Stations Leeway With ATSC 3.0 deployment continuing across the nation, the Commission adopted a Report and Order in December (which was published in the Federal Register this week) addressing multiple issues related to the deployment of ATSC 3.0 and the accompanying opportunity for the delivery of IP-based ancillary and supplementary services using those new, "NextGen TV” signals. Most notably, the Order (1) clarifies how ancillary and supplementary services fees will be calculated in the context of ATSC 3.0 station arrangements and (2) grants non-commercial educational television licensees leeway in providing such ancillary and supplementary services. The clarifications and rules set out in the Order are currently set to take effect on March 25, 2021. For more information, please open the attached memo. * * * Repack Status Update; LPTV and TV Translator Repack Reimbursement Allocation Increased to 92.5% of Verified Estimates A Public Notice recently released by the FCC's Incentive Auction Task Force and Media Bureau provides an update on the status of the spectrum repack, as well as an announcement that LPTV and TV translator stations seeking reimbursement for repack-related expenses may soon receive up to 92.5% of their currently verified estimated costs. The 92.5% allocation amount reflects an increase from the prior, 85% allocation amount for LPTV and TV translator stations, and it places such stations on parity with the reimbursement allocation percentages for all other entities affected by the repack. Please open the attached memo for more details.
Download -
FNPRM re EEO Form 395 -- FCC Likely to Consider Minor Political File Rule Changes -- C-band Inactives -- More
Description
FCC Releases Further Notice of Proposed Rulemaking Regarding EEO Form 395-B Data Collection As forecast by prior statements from interim FCC Chairwoman Rosenworcel and Commissioner Starks, the FCC has issued a Further Notice of Proposed Rulemaking (the "Further Notice”) intended to "refresh the record” on the FCC's currently unutilized EEO Form 395-B. The 395-B is intended to gather workforce diversity composition data from broadcasters on an annual basis; however, the FCC's collection of the Form has been suspended for approximately 20 years in light of several federal court decisions and lingering issues regarding the confidentiality of the employment data submitted on the Form. Please open the attached memorandum for more information. * * * FCC Likely to Consider Minor Political File Rule Changes at August Open Meeting According to a tentative draft of a Notice of Proposed Rulemaking (the "Notice”), the FCC is likely to consider minor political file rule changes at its forthcoming August 5, 2021, open meeting. Based on the current draft of the Notice, it appears that the primary items the FCC is likely to address are minor updates to: (1) the list of indicia bearing on whether someone is or is not a "legally qualified candidate” for public office, and thus is or is not entitled to the various benefits and protections of the political programming rules; and (2) the FCC's political file recordkeeping rules, to conform them to the pre-existing statutory political file recordkeeping rules for so-called third-party issue advertisements. Please review the attached memorandum for more information. * * * FCC Identifies Additional C-Band Earth Station Antennas Believed to Be Inactive; Requires Response from Registrants by October 21, 2021 According to a recent Public Notice (the "Notice”) by the FCC's International Bureau, additional incumbent earth station antennas (e.g., qualifying broadcaster C-band downlink dishes) have recently been identified by the C-band Relocation Coordinator (RSM US LLP) as potentially "inactive.” The International Bureau has generated a list of such earth stations, and is requiring any earth station operator who appears on the list to take one of several actions by October 21, 2021. Please open the attached memorandum for more information. * * * Comment Deadlines Extended for Record Refresh in 2018 Quadrennial Review The Media Bureau has extended by approximately one month the comment and reply comment deadlines in the FCC's efforts to see a "refresh” of the record in its 2018 Quadrennial Review proceeding. According to a recent Public Notice, broadcasters (and all other interested parties) now have until September 2, 2021 (rather than the prior deadline of August 2, 2021), to file comments, and until October 1, 2021 (rather than the prior deadline of August 30, 2021), to file reply comments in the proceeding. Please open the attached memorandum for more information. * * * As August 11, 2021, National EAS Test Date Approaches, FCC Issues Enforcement Advisory Targeting EAS Alert Accessibility A recent FCC Enforcement Advisory reminds all Emergency Alert System ("EAS”) Participants—including broadcasters—that the FCC's rules require that all EAS alerts be made visually and aurally accessible. Please open the attached memorandum for more information.
Download -
FY 2021 Reg Fees - Foreign Sponsorship ID - Nationwide EAS Test -- and More!
Description
FCC Issues Notice of Proposed Rulemaking on FY 2021 Regulatory Fees Last week, the Commission released a Report and Order and Notice of Proposed Rulemaking that contemplates proposed regulatory fees for Fiscal Year 2021. The most significant items to broadcasters in the Notice (beyond the proposed fees themselves, of course!) on which broadcasters may wish to comment are: (1) the Commission's proposal to "refine” the new (as-of last year) methodology to calculate full-power television stations' regulatory fees based solely on population, and (2) whether the FCC should extend the streamlined waiver provisions it adopted last year in light of the COVID-19 pandemic. Please note: All the fee amounts discussed below are currently just proposals set forth in the Notice. It is possible that the proposed fees may change prior to the FCC's formal FY 2021 Regulatory Fees Order. For more information, please open the attached file. * * * FCC Adopts Report and Order Requiring Foreign Sponsorship ID, Despite Broadcaster Opposition Over opposition from the broadcast industry, the FCC last month unanimously adopted a Report and Order to require specific, standardized disclosures relating to broadcast material paid for or provided by foreign governments and their representatives - what many are calling new "foreign sponsorship ID” rules. Broadcasters' objections to aspects of the FCC's initial proposal for the Order (released in October 2020) did, in fact, result in several modifications from the initial proposal; however, the 2020 proposal's core disclosure and diligence obligations remain unchanged in the final Order. The Order's new rules will supplement the existing sponsorship identification requirements that are applicable to broadcasters. Please note: The new foreign sponsorship identification rules and obligations discussed in the memo have not yet taken effect and still must undergo various regulatory approval processes. For more on the new rules, please refer to the attached memorandum. * * * National EAS Test Scheduled for August 11, 2021 The Federal Emergency Management Agency (FEMA) has announced that the next nationwide EAS test is scheduled for August 11, 2021, at 2:20 PM ET, with a backup test date of August 25, 2021. As of this writing the FCC has not yet issued any specifics regarding this year's test; if prior years are any indication, however, we assume that all broadcasters will be required to participate, and all broadcasters will be required to timely file various reports (e.g., the Form One, Form Two, and Form Three reports) associated with the nationwide test. Please open the attached memo for more information. * * * Media Bureau Dismisses Broadcaster's Carriage Complaint In a recent Memorandum Opinion and Order, the FCC dismissed a December 2020 carriage complaint in which a broadcaster alleged that a cable provider had violated both (1) the FCC's good faith negotiating standards and (2) the requirements governing when and how notice must be given to MVPD subscribers when a television broadcast station will no longer be available on the MVPD's service. Please review our attached memo to learn about the FCC's rationale for siding with the MVPD in this instance. * * * Remaining All-Digital AM Broadcasting Rules Take Effect; AM Broadcasters May Begin to Voluntarily Transition As of April 29, 2021, all remaining rules permitting AM broadcasters to voluntarily transition to all-digital operations have taken effect. Accordingly, AM broadcasters—in their discretion—may begin transitioning to all-digital operations, and therefore may wish to consider the costs and benefits of voluntarily transitioning. We've documented some of the pros and cons AM broadcasters may want to think about as they consider whether to transition in the attached memo.
Download -
GMR Offers Interim License Extension -- Action Required by Commercial Radio Stations
Description
*Special Music Licensing Update* GMR Offering Interim License Extensions for Shorter Period and at Increased Price; Commercial Radio Stations Must Take Action As the March 31, 2021, expiration deadline approaches for the current crop of interim licenses granted by Global Music Rights ("GMR”) to commercial radio stations, we have learned that GMR is again offering extensions to those interim licenses. However, the new GMR extensions are (1) shorter and (2) more expensive than before—the interim license that GMR is now offering will only run through January 1, 2022, and will increase in price by 20% as compared to the prior license. The last extension was granted in March 2020, for a period of one year. Please note: As with prior GMR extensions, this interim license extension offer only applies to commercial radio stations. The attached memorandum contains additional information regarding commercial television stations, as well as noncommercial television and radio stations. Please open the attached file for more details.
Download -
Important, Time-Sensitive "Heads-Up" for Incumbent C-Band Earth Station Operators
Description
BE ON THE LOOKOUT! Incumbent Earth Station Operators Should Check for Correspondence - Via Snail Mail and Email — from C-band Relocation Coordinator -- ** Potential Response Deadline of January 13 ** We have received reports from some C-band earth station operators (i.e., broadcasters with C-band downlink dishes) who recently received a certified hard-copy letter bearing the heading "C-band Relocation Coordinator” and requesting a response by Wednesday January 13, 2021. We have also received reports from broadcasters that they have received similar correspondence via email—sometimes with and sometimes without a specific response deadline. The correspondence—which comes from a third-party contractor hired by the C-Band Relocation Coordinator to assist with the relocation of incumbent C-band dishes—appears to be legitimate. The correspondence that we've seen states that it is being sent because the earth station operator has one or more "antennas for which none of the C-band satellite operators . . . has taken responsibility for implementing the transition.” Because some of these letters are apparently being sent via physical, certified mail only, you may wish to ensure that you have recently checked the physical mail at your station's address, the address listed for your station's licensee, and any address listed on or associated with any of your earth station registrations or licenses. Please open the attached memorandum for further information and guidance regarding what you may wish to do if you are in receipt of such correspondence.
Download -
July 13, 2021, Digital Transition Deadline for LPTV and TV Translator Stations and Deadline for DTDRT Filings -- New Media Bureau Application Fee Schedule Effective July 15, 2021
Description
TUESDAY, JULY 13, 2021—DEADLINE FOR: (1) LPTV AND TV TRANSLATOR STATIONS TO TRANSITION TO DIGITAL OPERATIONS AND (2) ELIGIBLE FULL-POWER STATIONS TO FILE FOR DTDRTS We're now only a few days away from a date that licensees of LPTV and TV translator stations have (hopefully!) circled on their calendars: July 13, 2021 marks the deadline for LPTV and TV translator stations to transition to digital operations and terminate all analog television operations. Certain full-power TV licensees likely have the same date highlighted: July 13 also serves as the deadline for eligible full-power TV licensees to file for new digital-to-digital replacement translators ("DTDRTs”) to recover lost digital service area that resulted from the spectrum repack. Please open the attached memorandum for more information. * * * NEW MEDIA BUREAU application FEE SCHEDULE SET TO TAKE EFFECT JULY 15, 2021 As you may recall, in late December 2020 the FCC issued a Report and Order instituting the first major overhaul to FCC application fees in more than 30 years. Despite opposition from NAB and others, the Order increases fees for many broadcast applications (while simultaneously lowering fees for many other applications). And now, according to a recent Public Notice, some of those new fees—including those applicable to applications falling under the purview of the FCC's Media Bureau and the Office of Engineering and Technology ("OET”)—will take effect on July 15, 2021. Please open the attached memorandum for more information.
Download -
June 1 Deadline -- Broadcast Station EEO Public File Annual Reports
Description
June 1, 2021: EEO Public File Reports Due for VIRGINIA Radio and Television Stations We write to remind all Virginia radio AND television stations with five or more full-time employees that the deadline to upload their annual EEO Public File Report (covering the period of June 1, 2020, to May 31, 2021) to their online public inspection file and post it to their website (if they have one) is fast approaching—the deadline is June 1, 2021. For a refresher on the EEO Annual Reporting obligations, please open the attached memo.
Download -
Public Notice Rule-Change Reminder Regarding FCC Applications Tab and Corresponding Landing Page on Station Websites
Description
Broadcasters Must "Expeditiously” Update Websites to Include "FCC Applications” Tab/Link and Corresponding "FCC Applications” Webpage It's hard to believe that nearly six months have passed since the FCC's "new” local public notice rules and procedures—which are triggered upon the filing of various FCC applications—took effect back in October 2020. Over recent weeks and months we've received (and are continuing to receive) occasional questions from broadcasters regarding what we'll call the "website content” component of the new rules. In light of that, we write today just to provide a brief follow-up reminder regarding what the local public notice rules now require in terms of online notification. Please open the attached memorandum for a refresher on what is now required of broadcasters.
Download -
Repack Reimbursement Deadline - Biennial Ownership Reports Filing Window Opens -- New List of Inactive/Non-Operational C-Band Earth Stations
Description
TODAY, October 8, 2021: Deadline to Submit Reimbursement Invoices for Stations Assigned to Repack Phases 1-5 We write with a reminder that today, October 8, 2021, is the deadline for all broadcasters who are eligible for reimbursement as part of the now-concluded spectrum repack and who were assigned to repack Phases 1-5 to submit reimbursement invoices to the FCC. As you likely recall, last fall the Commission established firm deadlines by which eligible broadcasters affected by the spectrum repack must submit all remaining reimbursement invoices and other documentation. The deadlines vary based on stations' assigned transition Phases, as well as by type of broadcast service. For more information, please open the attached memo. ___________________________ Biennial Ownership Reporting Window NOW OPEN—All Broadcasters Must File By December 1, 2021 The reporting window has officially opened for broadcasters to file their required biennial ownership reports. All licensees of commercial and non-commercial full power television, Class A television, low power television, AM radio, and FM radio stations must file their biennial ownership reports between now and December 1, 2021. And, the FCC has already issued a warning that it "intends to pursue enforcement actions against licensees that fail to file their biennial ownership reports in a timely or complete manner.” Please open the attached memorandum for more information. ___________________________ International Bureau Releases New List of "Inactive/Non-Operational” C-Band Earth Stations As the C-band transition continues to move forward, the FCC's International Bureau has released another, new list of incumbent C-band Earth Stations that "may be inactive or otherwise not operational.” Inclusion on the list may have financial and other ramifications for broadcasters with earth stations (e.g., C-band downlink dishes) who are taking part in the current transition as "incumbents.” To learn more about the lists and what steps you might need to take, please open the attached file.
Download -
Repack Reimbursement Deadline -- Unresponsive C-Band Stations -- Changes Coming to EAS?
Description
SIX-Month Warning: Repack Reimbursement Invoices Due October 8, 2021, for Eligible Stations that Were Assigned Completion Dates in Phases 1-5 In a Public Notice released yesterday, the FCC issued a reminder that broadcasters who are eligible for reimbursement as part of the now-concluded spectrum repack and who transitioned in Phases 1-5 have only 6 months left in which to submit reimbursement invoices to the FCC. As you likely recall, last fall the Commission established firm deadlines by which eligible broadcasters affected by the spectrum repack must submit all remaining reimbursement invoices and other documentation. Please open the attached memorandum for more information. * * * April 19, 2021: Filing Deadline for C-band Earth Station Operators Listed on FCC's Inactive / Nonresponsive List Another, earlier deadline is fast-approaching: April 19, 2021 marks the date by which "inactive” and "unresponsive” incumbent earth station operators must file notices in the C-band incumbency docket or risk losing their authorization and incumbent status. For more information, please open the attached file. * * * FCC Considering Changes to EAS System Per Congressional Command The FCC recently issued a Notice of Proposed Rulemaking and Notice of Inquiry "to explore opportunities to improve the way the public receives emergency alerts on their mobile phones, televisions, and radios.” Among the various issues the Notices raise, several address Congressional commands issued in legislation earlier this year, including for the FCC to adopt rules to ensure that mobile devices cannot opt out of receiving Wireless Emergency Alert System ("WEA”) alerts from the Administrator of FEMA and to seek comment on whether it is technically feasible to deliver Emergency Alert System ("EAS”) alerts through the internet, including through streaming services. Please review the attached memorandum for more information.
Download -
VAB December 17 Legal Memorandum -- GMR Extension -- FCC Issues $20,000 Fine for EAS Tones from Paid Programming
Description
GMR Offering Three-Month Interim License Extension; RMLC / GMR Litigation Potentially Moving Toward Resolution As the December 31, 2021, expiration deadline approaches for the current crop of interim licenses granted by Global Music Rights ("GMR”) to commercial radio stations, we have learned that GMR is again offering a further extension to those interim licenses. GMR's new proposed extensions are only for a three-month period. Please note: As with prior GMR extensions, this interim license extension offer only applies to commercial radio stations. Please open the attached memorandum for information regarding what steps you may need to take. * * * FCC Issues $20,000 Fine for EAS Tones from Paid Programming The FCC recently issued a Notice of Apparent Liability for Forfeiture—inclusive of a proposed $20,000 fine—against a large radio broadcaster after one of its stations transmitted false or deceptive emergency alert system codes or Attention Signals ("EAS Tones”). The Notice serves as yet another reminder to broadcasters regarding the importance of ensuring EAS Tones are only used in a proper, lawful manner, not to mention how seriously the Commission takes the transmission of false Tones. Please open the attached file for more information.
Download -
VAB November 24 Legal Memorandum -- Deadline Reminders -- Biennial Ownership Report and DTV Ancillary Supplementary Services
Download -
VLoud Commercials PN -- NCE FM Station Filing Window -- DTS Rule Revision Effective Date
Description
Media Bureau Solicits Comments on FCC's CALM Act Rules at Behest of Congresswoman Eshoo A recent Public Notice issued by the Media Bureau seeks comment from television consumers and the broadcast industry regarding "whether any updates are needed to the Commission's rules implementing the Commercial Advertisement Loudness Mitigation (CALM) Act.” The Notice appears to be responsive to an early-April letter sent to acting FCC Chairwoman Rosenworcel by Representative Anna Eshoo—one of the authors of the 2010 CALM Act. Please open the attached memorandum for more information. * * * November 2 - 9, 2021: Filing Window for Applications for New NCE FM Station Construction Permits on FM Reserved Band; 10-Application Limit Applicable to Filing Window NCE broadcasters seeking to apply for one or more new FM stations in the reserved band may do so later this year—a filing window will be open from November 2 to November 9, 2021. For more information, please open the attached file. * * * New Full Power DTS/SFN Rules Set to Take Effect on May 24; Low Power Stations Still Waiting According to a recent Federal Register publication, May 24, 2021, will mark the effective date for many of the Commission's new rules "modestly easing limitations” on transmitter deployment for distributed transmission systems ("DTSs,” also known as single frequency networks, or "SFNs”) and providing additional clarity regarding certain aspects of the FCC's DTS rules for full power stations. Please review the attached memorandum for more information.
Download