David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

Although many, including Congress, may be taking the last of their summer vacations, there are still many dates to which broadcasters should be paying attention this August.  One that most commercial broadcasters should be anticipating is the FCC’s order that will set the amount of their Annual Regulatory Fees, which will be paid sometime in September before the October 1 start of the federal government’s new fiscal year.  As we wrote here, the FCC has proposed to decrease fees for broadcasters from the amounts paid in prior years.  The FCC has also proposed to end its temporary regulatory fee relief measures implemented during the COVID-19 pandemic as well as ending its presumption that silent stations are entitled to fee waivers without providing evidence of financial hardship – which, as we wrote here, broadcasters largely oppose ending because the policies enable struggling broadcasters to avoid costly paperwork and regulatory consequences, helping to avoid loss of service to local communities.  Sometime in August (or possibly in the first days of September), the FCC will make a final determination on the amount of the fees, and then announce the deadlines for payment of the fees.

August 1 is the deadline for radio and TV station employment units in California, Illinois, North Carolina, South Carolina, and Wisconsin 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 TV 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.  The August 1 EEO Public File Report starts the Mid-Term EEO Review for radio station employment units in Illinois and Wisconsin and for TV station employment units in North Carolina and South Carolina.  Radio stations located in Illinois and Wisconsin 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.

Beginning August 1, broadcasters must use the 2020 U.S. Census Data in TV station coverage and interference analysis conducted in support of allotment petitions and modification applications.  The 2020 U.S. Census Data will be incorporated into the FCC’s TVStudy software as of that date.

August 2 is the effective date for the reinstated radio duplication rule for commercial FM stations. AM stations will not be subject to the reinstated rule.  In June, the FCC released a Reconsideration Order reinstating its radio non-duplication rule for commercial FM stations, which prohibits commonly owned or operated stations with overlapping service contours from duplicating more than 25% of their programming.  FM stations currently duplicating programming have until February 3, 2025 to comply or to request a waiver to continue duplicating programming (which will be granted only in rare cases).  To prevent stations from taking advantage of the grace period, the FCC encourages stations to file waiver requests by October 31.

The FCC’s next Open Meeting is scheduled for August 7, at which it will vote on a draft Report and Order which, if adopted, would establish a new Emergency Alert Service event code for messages to the public about persons who are missing or abducted from states, territories, or tribal communities (known as Ashanti Alerts).  The draft order states that the Ashanti Alerts apply to missing and endangered persons over the age of 17 who are outside of the scope of AMBER alerts (missing and endangered persons 17 years of age and younger) and Silver Alerts (missing and endangered senior citizens with Alzheimer’s disease, dementia, or other mental disabilities).  If adopted, EAS alert originators and participants, including broadcasters, will have 12 months from the effective date of the adopted rules to implement the new EAS alert code.

August 15 is the effective date of the FCC’s June Second Report and Order which expanded rules requiring the verification of whether the sponsors of certain programming are foreign governments or their agents.  In June, made changes to broadcasters’ existing obligations to verify whether lessees of program time on their stations are foreign governments or their agents (who have enhanced sponsorship identification requirements).  The expansion included extending these obligations to stations in foreign countries (mostly Mexico) that import programming from the US to be rebroadcast back across the border to target US audiences, an expansion that will be effective on August 15.  In the same order, the FCC adopted a model certification to be used by broadcasters and expanded the verification requirement to include sponsors of issue ads and paid PSA (but not sponsors of ads promoting a commercial product or service or ads from a political candidate or their authorized campaign committee).  As we discussed here, the August 15 effective date does not appear to apply to these decisions from the June Order, as they require additional paperwork and thus must be approved by the Office of Management and Budget before becoming effective.  See our article here for more information on the expanded foreign sponsorship verification requirements.

Beginning August 20, Class A TV, LPTV, and TV translator stations may file “major modification” applications to change the channel on which they operate.  No other major modification applications (such as transmitter site location changes of more than 30 miles) and no applications for new stations will be accepted.  Channel change applications will be accepted on a first-come, first-serve basis, and any applications filed on the same day will be deemed “mutual exclusive” if they cannot all be granted consistent with the FCC’s interference rules.  Mutually exclusive applicants will have a later opportunity to settle or file a technical amendment to their applications to resolve their conflicts.  See the FCC Public Notice announcing this window for more information.

August 21 is the deadline for reply comments in response to an FCC Public Notice asking for public comment on whether the Commission should consider a petition for rulemaking proposing to create a new FM station class A10, which would allow certain FM stations to operate with a maximum power of 10,000 watts at 100 meters height above average terrain.  In initial comments, proponents argued that this will allow some Class A stations to increase power to better serve their communities, while others expressed concern about more interference on the FM band.  This is just a preliminary request for comments asking if the FCC should further explore this issue.  A Notice of Proposed Rulemaking soliciting further public comment on specific FCC proposals to implement this request would be needed before this new class of FM station could be adopted.

August 26 is the deadline for reply comments response to the FCC’s NPRM proposing to extend Online Public Inspection File requirements to top-rated or network affiliated LPTV stations and to expand these OPIF requirements to include uploading Local Marketing Agreements, Time Brokerage Agreements, Joint Sales Agreements and, for Class A stations, certifications of continuing Class A eligibility.  The NPRM also proposes other changes to the FCC’s rules governing Class A, LPTV, and TV translator stations (see our discussions here and here).

The political season continues in August, and broadcasters serving Delaware and Florida should be aware of the opening of the following political windows for municipal elections scheduled to occur in October – meaning that Lowest Unit Rates apply to sales to candidates running in these elections and their authorized committees (see our article here on the basics of computing LUR):

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 the states that have elections in October, as well as for primaries and elections to be held in August and September (many of which were highlighted in last month’s summary of July regulatory dates, as those LUC windows opened in July).  All broadcasters should also be preparing for the LUC window for the November election, which will being on September 6.  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.