David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

It is time for our update on the coming month’s regulatory dates and deadlines to which broadcasters should be paying attention – and the deadline that probably is most important to all commercial broadcasters is not yet known.  That, of course, is the deadline for the payment of annual regulatory fees – which must be made before the federal government’s October 1 start of the new fiscal year.  We expect an announcement of the final decision on the amount of those fees for various broadcasters, and the deadlines for payment, in the next few days.  Keep on the alert for that announcement.

A second big date for all commercial broadcasters is September 6, when the lowest unit rate period for political candidate advertising – the “political window” – opens for the November 5 general election.  During this 60-day period prior to the general election, legally qualified candidates buying advertising on a broadcast station get the lowest rate for a spot that is then running on the station within the same class of advertising time and in the same daypart (see our article here on the basics of computing LUR).  Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as the station’s most favored advertiser gets for buying hundreds of spots of the same class.  For a deeper dive on how to prepare for the November general election, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide.

Another possible September regulatory date is on hold.  September 30 was to be the annual deadline for the filing of the newly reinstated Form 395-B, required from both commercial and noncommercial stations to report on the race, ethnicity, and gender of all of their employees in various employment categories.  The FCC, when it adopted the order reinstating that form (see our article here), had said that the form would be filed in September, using information about station employees from a pay period selected by the station from July, August, or September – with that pay period to be used on all subsequent reports.  To date, however, the FCC has not announced that the form is in effect, nor has it said whether the Form 395-B has received all necessary approvals in time for a September 30^th filing deadline and, given that several of the pay periods that could be used have passed, it appears that this form will not be due this year.

As usual, there are also a number of comment deadlines in FCC proceedings this month.  September 3 is the deadline for comments responding to the FCC’s July Further Notice of Proposed Rulemaking proposing to exempt video programmers from the closed captioning registration and certification requirements if such programmers provide programming to public, educational, and governmental access channels (PEG channels, which are exempt from captioning requirements) or to non-broadcast networks which certify that they are exempt from captioning obligations. Reply comments are due October 1.

September 4 is the deadline for comment on or opposition to the National Association of Broadcasters’ petition for reconsideration of the FCC’s June decision to reinstate the rule prohibiting programming duplication by commonly owned or operated commercial FM stations serving the same area.  As we discussed here, NAB argues that the FCC had no basis for reinstating the rule and failed to seek public comment to determine if any real public interest issues developed during the four years when the rule was not in effect.  Replies to oppositions are due September 16.

September 19 is the deadline for comments responding to the FCC’s July NPRM proposing that broadcasters and cable operators be required to disclose, both on the air and in their online public inspection files, the use in political advertisements of content created by Artificial Intelligence.  Reply comments are due October 11.  For more about this FCC proceeding, see our article here.

Looking ahead to October, October 1 is the deadline for radio and TV station employment units in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Missouri, Northern Mariana Islands, Oregon, Puerto Rico, U.S. Virgin Islands, and Washington 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.  Start the preparations now to get these reports into your public file on time, 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 deadline for all EAS Participants, including broadcasters, to file their annual Emergency Alert System Test Reporting System (ETRS) Form One is October 4.  The ETRS Form One requires EAS Participants to provide information regarding their EAS equipment and monitoring assignments along with other relevant data.  While there is no nationwide EAS test scheduled for this year, the FCC requires that all EAS Participants annually update their EAS information in the ETRS database.  See our article here for more information.

And, finally, October 10 is the deadline by which all full-power radio and TV stations (as well as Class A television stations), both commercial and noncommercial, must upload to their online public inspection files their Quarterly Issues/Program lists for the second quarter of 2024.  The lists should identify the issues of importance to the station’s community and the programs that the station aired between July 1 and September 30, 2024 that addressed those issues.  It is important that these be timely uploaded to your public file, as the untimely uploads of these documents probably have 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.

We’ll have more October regulatory dates at the end of September.  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.  Stay on top of all of your 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.