David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

Though school is out for many, the FCC does not take a summer recess.  Instead, regulation continues.  In addition to the regular EEO Annual Public Inspection File Report deadline for broadcasters in a number of states, there are several comment deadlines in June on issues that directly impact broadcasters – as well as the FCC’s regular monthly Open Meeting when it will consider a draft Notice of Proposed Rulemaking that, if adopted, would make significant revisions to its rules for Class A, LPTV, and TV translator stations.  And, as this is an election year, there are several political deadlines this June that broadcasters must be aware of.

June 3 (as the 1^st is on a weekend) is the deadline for radio and television station employment units in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ online public inspection files (OPIFs).  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 five 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.  Be timely getting these reports into your public file, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).

The filing of the Annual EEO Public File Reports for radio and television station employment units with eleven or more full-time employees triggers a Mid-Term EEO Review that analyzes the last two Annual Reports for compliance with FCC requirements.  June 1 is the beginning of the Mid-Term EEO Review for radio station employment units in Michigan and Ohio and for television station employment units in the District of Columbia, Maryland, Virginia, and West Virginia.  Additionally, radio stations located in those states that are part of station employment units with five or more full-time employees must indicate in their OPIFs, when they post their Annual Report, whether their employment unit has eleven or more full-time employees, using a checkbox now included in the OPIF’s EEO folder.  This allows the FCC to determine which station groups need a Mid-Term Review.  See our articles here and here on Mid-Term EEO Review reporting requirements for radio stations.

At its next Open Meeting on June 6, the FCC will consider its Notice of Proposed Rulemaking proposing extensive revisions to its Class A TV, LPTV, and TV Translator rules.  Most significantly, the FCC proposes extending OPIF recordkeeping requirements to LPTV stations – either those affiliated with a top-four broadcast TV network (ABC, CBS, Fox, or NBC) or, alternatively, to LPTV stations rated among the top-four TV stations in their Designated Market Areas.  OPIF requirements would include copies of LMAs and Joint Sales Agreements for such LPTV stations.  The NPRM also proposes to clarify that FCC political broadcasting rules – including political file requirements – apply to LPTV stations.  The NPRM includes several other proposed amendments to technical and operational requirements, including limiting minor changes to moves of no more than 48.3 kilometers from a station’s currently licensed site, requiring stations to specify a community of license within their service contour, requiring LPTVs to operate at least 14 hours per week, and requiring LPTV stations to file a minor modification application to change their designation to a TV translator (and vice versa – this currently requires only notice to the FCC).  The FCC also proposes to clarify when a station can request authorization to move to another channel by defining the circumstances when an LPTV or translator station receives or causes interference justifying such displacement.

Comments are due June 6 in response to the FCC’s biannual call for comments on the State of Competition in the Communications Marketplace.  The FCC seeks comments on a list of questions about competition in the video and audio marketplaces, including the impact of digital competitors on radio and TV stations and the role that regulation plays in the competitive landscape.  The FCC uses these comments to prepare a report to Congress on competition issues and sometimes references the reports in proceedings dealing with competition, including FCC proceedings dealing with its ownership rules.  Reply comments are due July 8.

Comments are also due June 6 in response to the FCC’s April Notice of Proposed Rulemaking, in which the FCC sought comment on the state of the market for independent video programming.  The NPRM proposed new rules on carriage agreements between independent programmers and multichannel video programming distributors including prohibiting “most favored nation” and alternative distribution methods clauses (clauses that limit the ability of independent programmers to negotiate with other platforms for the carriage of their programming).  As we discussed here, while the FCC stated that it is not aware of concerns about the effect of these contractual terms on independent programmers’ negotiations with a broadcast network or station licensee, it nevertheless seeks comment on whether its proposed ban should cover these entities as well.  Reply comments in response are due July 8.

Reply comments are due June 12 in response to the FCC’s January Notice of Proposed Rulemaking in which it proposes to require TV and radio stations to file reports with the FCC regarding station operational outages in the FCC’s Network Outage Reporting System (NORS) database and on their operating status during disasters in the FCC’s Disaster Information Reporting System (DIRS) database.  While DIRS reporting is currently voluntary for broadcasters, NORS reporting is not currently required or available to broadcasters.  See our summary of some of the initial comments in this proceeding in our weekly summary of regulatory activity for broadcasters, here.

Reply comments are due June 17 in another proceeding dealing with emergency broadcast matters.  That is the deadline for comments on the FCC’s March Notice of Proposed Rulemaking in which it proposes the creation of a new Emergency Alert Service (EAS) event code for missing and endangered persons.  In the Notice, the FCC is seeking comment on whether to apply the new EAS alert code to individuals over the age of 17, missing adults with special needs or circumstances, and missing adults who are endangered or who have been abducted or kidnapped.  We summarized some of the initial comments, here.

June 17 is also the deadline for reply comments responding to the FCC’s proposed rules governing experimental program origination on FM booster stations, which the FCC authorized on an initial basis in its April Report and Order.  The FCC is seeking comment on its proposals for processing, licensing, and service rules to permit the use of FM booster program origination on a permanent basis.  For more on this proceeding, see our article here.

Looking ahead to July, all full-power broadcasters need to note that July 10 is the deadline for the Quarterly Issues Programs lists to be uploaded to stations’ online public inspection files.  The lists should identify the issues of importance to the station’s community and the programs that the station aired in April, May and June that addressed those issues.  It is important that these be timely uploaded to your public file, as the untimely uploads of these documents have likely resulted in more fines in the last decade than for any other violation of the FCC’s rules.  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 community.  See our article here for more on the importance of the Quarterly Issues Programs list obligation.

The political season continues in June, and broadcasters serving Alabama, Arizona, Connecticut, Delaware, Florida, Guam, Hawaii, Kansas, Michigan, Minnesota, Mississippi, Missouri, Oklahoma, South Carolina, South Dakota, Tennessee, Vermont, Virgin Islands, Washington, and Wisconsin should be aware of the opening of the following political windows for certain primaries and elections scheduled to occur in June, July, and August – meaning that Lowest Unit Rates apply to sales to candidates and their authorized committees (see our article here on the basics of computing LUR).  Races in which LUC will soon apply include the following (though confirm locally to make sure that none of these dates have changed since we prepared our list of political dates):

* Runoff election with an abbreviated LUR period due to date of preceding election.

As a refresher, in the 45 days before a primary election, and 60 days before a general or special election, broadcasters must extend to legally qualified candidates their lowest unit rate and continue to follow all other applicable political broadcasting rules.  So, the lowest unit rate period will be in effect at some point next month for stations serving states and territories that have primaries or elections in June, July, and August.  For a deeper dive on how to prepare for the 2024 elections, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide.  Also take a look at our 2024 Broadcasters’ Calendar to see if your state has an upcoming primary, general, or special election (though confirm these dates locally as some dates have changed since the calendar was prepared).

As always, check with your attorneys and advisors to see if there are other dates not mentioned here that are of importance to your station.  Always stay on top of all regulatory requirements.

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.