David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

Even with the holidays upon us, regulation never stops.  There are numerous regulatory dates in December to which broadcasters need to keep in mind.  Furthermore, as the 2024 presidential campaign is already underway, there are political advertising deadlines to watch out for.  Here are some of the upcoming deadlines:

December 1 is the filing deadline for Biennial Ownership Reports by all licensees of commercial and noncommercial full-power TV/AM/FM stations, Class A TV stations, and LPTV stations.  The reports must reflect station ownership as of October 1, 2023 (see our article here on the FCC’s recent reminder about these reports).  The FCC has been pushing for stations to fill these out completely and accurately by the deadline (see this reminder issued by the FCC last week), as the Commission uses these reports to get a snapshot of who owns and controls what broadcast stations, including information about the race and gender of station owners and their other broadcast interests (see our article from 2021 about the importance the FCC attaches to these filings).

December 1 is also the deadline for radio and television station employment units in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont with 5 or more full-time employees to upload their Annual EEO Public File Report to their stations’ online public inspection files.  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with 5 or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.

The final deadline for December 1 is for the filing of the Annual DTV Ancillary/Supplementary Services Report for the 12-Month Period Ending on September 30, 2023, and the submission of any payments that are due.  This applies to commercial and noncommercial full-power TV stations, Class A TV stations, and LPTV stations that have fee-based, non-broadcast revenues from their digital transmission capabilities.  In other words, if TV stations earned fees for data transmission or other non-broadcast services, they must file the report and pay the fees.  If they do not, the report is not required.

For non-profit organizations interested in a new LPFM station in the community in which they operate, the FCC’s Filing Window for applications for new LPFM stations commences on December 6 at 12:01 AM Eastern Time and ends on December 13 at 6:00 PM Eastern Time.  The applications require a showing as to the technical facilities being proposed as well as the applicant’s legal qualifications to be a station owner.  December 13 is also the last day of the filing freeze on LPFM and FM translator minor modification applications that was implemented to stabilize the FCC’s technical database while applicants worked on their applications for new stations.  We wrote more about the LPFM window’s rules and the filing freeze here.

Broadcasters who late in 2022 or in 2023 entered into consent decrees with the Media Bureau to secure grant of their license renewals by resolving concerns about documents relating to the purchase of political advertising time that were uploaded late to a station’s online public file have until December 8 to file their compliance reports.  These reports certify that the station complied with the training and oversight requirements of the consent decrees, and they must include a spreadsheet showing when all political advertising material sold in the 90 days before the November 2023 election was uploaded to the public file.  For more information about these consent decrees imposed on stations earlier in the recent license renewal window, see our article here.

December 12 is the deadline for broadcasters that do not use Sage EAS equipment to comply with the FCC’s new EAS rules set forth in its September 2022 Report and Order which requires a broadcaster, when receiving an EAS alert, to default for at least 10 seconds to the IPAWS internet-based alert system to see if a CAP-formatted message is conveyed, and to rebroadcast that CAP message unless it is not available, when the over-the-air “daisy-chain” delivered message can be broadcast.  Because Sage Alerting Systems, the manufacturer of many broadcaster’s EAS equipment has not yet updated their EAS equipment to be able to comply with the new rules, the FCC’s Public Safety and Homeland Security Bureau partially granted the waiver request (discussed here) by NAB and REC Networks seeking an extension of the December 12 EAS compliance deadline.  Only stations using Sage EAS equipment were granted an extension.  They now have until March 11, 2024 to comply with the new EAS rules, while broadcasters using EAS equipment made by other manufacturers must still comply with the December 12 deadline.  For more details on these new rules, see our article, here.

At the FCC’s Open Meeting on December 13, the FCC will consider two items of interest to broadcasters:

• A Notice of Proposed Rulemaking, which proposes to eliminate video service junk fee practices by cable operators and direct broadcast satellite (DBS) service providers.  As we wrote here, the FCC previously proposed “all-in-pricing” for cable and satellite services.  The FCC proposes customer service protections prohibiting cable operators and DBS service providers from imposing a fee for the early termination of a cable or DBS video service contract; and requiring cable and DBS service providers to provide subscribers with a prorated credit or rebate for the remaining days in a billing cycle after service cancellation.
• A Report and Order which, if adopted, will create rules implementing the January 2023 Low Power Protection Act (LPPA) – which provides LPTV stations in small markets with a limited window of opportunity to apply for status as Class A television stations.  Class A status gives a station protection from being bumped off its frequency by new full-power TV facilities and would protect a station in the event of a future shrinking of the TV band as recently occurred by the repacking that allowed the TV spectrum auction conducted 5 years ago.  As we previously discussed here, in March 2023, the FCC released a Notice of Proposed Rulemaking (NPRM) to implement the LPPA.  The FCC’s Order is largely unchanged from the NPRM – except that stations converting to Class A status will not lose their status if the Designated Market Area where they operate subsequently grows beyond the limit of 95,000 households that applies to stations eligible to apply for this upgraded status.

December 14 is the deadline for stations listed in the FCC’s October 2023 EEO Audit Letter to upload their responses and supporting documentation to their online public inspection files.  As we noted in greater detail here, those stations, and the station employment units with which they are associated, upload their last two years of EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules.

The US Court of Appeals has ordered the FCC to either resolve its 2018 Quadrennial Review of the local broadcast ownership rules, or to report to the Court as to why it has not been able to release an order in that proceeding.  A draft order is now circulating among the Commissioners for their consideration.  The Quadrennial Review is to consider whether the current local ownership rules remain in the public interest after changes to competition in the relevant marketplace.  Issues specifically being considered are possible relaxation of the local radio ownership rules and the dual network rule (which prohibits one entity from having an interest in two of the top 4 TV networks).  See our article here for more about the December 27 deadline and the issues being considered by the FCC.

As the 2024 Presidential Campaign is heating up, so do broadcasters’ political advertising obligations.  Throughout December, broadcasters serving Iowa, New Hampshire, South Carolina, Nevada, and the U.S. Virgin Islands should be aware of the opening of the following political windows tied to January and early February Presidential primary elections:

As a refresher, in the 45 days before a primary election, broadcasters must provide candidates running in that primary who buy advertising time in the window no more than their lowest unit charge for advertising of the same class sold to commercial advertisers.  For a deeper dive on how to prepare for the political primary election season, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide.

Looking ahead to January, licensees of full-power TV/AM/FM stations and Class A TV stations need to remember that Quarterly Issues Programs lists are to be uploaded to their stations’ online public inspections file by January 10.  The lists should identify the issues of importance to the station’s community and the programs that the station aired in October, November, and December that addressed those issues.  As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its service area.  See our post here for more on the importance of the Quarterly Issues Programs list obligation.

As always, consult your own legal and technical advisors for other dates of importance that might apply to your stations in the upcoming month.

David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access). There are no additional costs for the call; the advice is free as part of your MAB membership.