David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

October is, on paper, another busy month of regulatory deadlines for broadcasters.  But there is again the looming possibility of a federal government shutdown beginning October 1 if Congress fails to fund the government for the coming year (or pass a “continuing resolution” to allow government agencies to function at their current levels).  While as of today there are reports of a plan to extend funding through December, until a continuing resolution is passed, the threat remains.  If a shutdown does occur, the FCC, the FTC, and the Copyright Office may have to pause their operations which may result in some of the regulatory deadlines discussed below being delayed.  However, in some cases agencies have leftover funding to keep them functioning for a few extra days.  Stay tuned to see if any of the dates below have to be rescheduled. [Update – 9/26/2024, 9:00 AM – a continuing resolution extending government funding through December 20 was passed late yesterday by both the House and the Senate averting, for now, the shutdown about which we were concerned. Thus, the deadlines listed below are in effect as scheduled]

Assuming this recurring issue is resolved, let’s look at some of the October dates and deadlines, starting with the routine dates of importance to broadcasters. October 1 is the deadline for radio and television station employment units in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Missouri, Northern Mariana Islands, Oregon, Puerto Rico, the 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.  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 station’s OPIF, 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 by radio station employment units with eleven or more full-time employees or TV stations with five or more employees triggers a Mid-Term EEO Review that analyzes the last two Annual Reports for compliance with the FCC’s EEO requirements.  The Mid-Term EEO Review begins October 1 for these larger radio station employment units in Iowa and Missouri.  Television station employment units in Florida, Puerto Rico, and the U.S. Virgin Islands are subject to this review.  Additionally, radio stations located in those states that are part of station employment units with five or more full-time employees must also indicate in their OPIFs 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 EEO Review.  See our articles here and here on radio stations’ Mid-Term EEO Review reporting requirements.

October 4 is the deadline for all EAS Participants, including broadcasters, to file their EAS Test Reporting System (ETRS) Form One.  The form requires EAS Participants, including broadcasters, to provide information regarding their EAS equipment and monitoring assignments along with other relevant data.  While a nationwide EAS test will not occur this year, all EAS Participants must annually update their EAS information in the FCC’s ETRS database by filing the ETRS Form One.  See our article here for more on this reporting requirement.

October 10 is the deadline for all full power and Class A television stations and commercial and noncommercial full power AM and FM radio stations to upload their Quarterly Issues/Program lists for the third quarter of 2024 to their OPIFs.  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.  These lists must be timely uploaded to your station’s OPIF, as the untimely uploads of these documents probably have resulted in more fines in the last decade than for any other FCC rule violation.  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.

October 10 is also the deadline for certain stations to upload to their public file any of the following information from the period from July 1 to September 30, if a station has any such information:

• documentation from noncommercial educational stations not affiliated with NPR or CPB of any on-air fundraising benefitting third parties that interrupted their normal programming (see our article here),
• documentation by Class A television of their continuing eligibility for Class A status, and
• documentation from full power television, Class A television, and full power radio stations of any programming time that was leased by a foreign government or an agent of a foreign government or provided by a foreign entity for free in exchange for its airing (see our articles here and here for more information).  Note the reference below to new requirements for such documentation currently under OMB review.

In addition to those routine filing deadlines, there are comments due in a number of FCC proceedings.  These start with October 1, which is the deadline for reply 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.  Comments were due September 3.

October 4 is the deadline for comments responding to the notice of review from the Office of Management and Budget.  OMB is reviewing the FCC’s new foreign-government sponsorship identification rules.  As we discussed here, in a June Second Report and Order, the FCC provided a standard methodology for broadcasters to use to verify whether those who “lease” program time on their stations are foreign governments or their agents.  The FCC methodology provides for either: (1) the lessee and the station executing standardized certifications with the lessee certifying that they are not a foreign government agent and the licensee certifying that it explained this FCC requirement to the lessee; or (2) the station asking the lessee to provide screenshots of the search results for the lessee’s name in the Department of Justice’s Foreign Agent Registration Act database or the FCC’s most recent U.S.-based foreign media outlet report.  The FCC’s order had also extended its requirement for verifying whether a sponsor is a foreign government or an agent of such government to include non-candidate spot advertising that is not promoting a commercial product or service, thus likely including issue ads and paid PSAs.  The OMB must review and approve these new requirements for compliance with the Paperwork Reduction Act before they can become effective.

October 7 is the deadline for petitions to deny against Paramount’s transfer of control applications proposing the company’s merger with Skydance Media, LLC, and will result in billionaire Larry Ellison holding a controlling stake in the company.  Paramount holds licenses, through various direct and indirect subsidiaries, for 28 TV stations, in addition to a Class A TV and two LPTV stations.  Oppositions to any petitions to deny filed are due October 22, and replies to any oppositions filed are due November 1.

October 11 is the deadline for reply comments responding to the FCC’s July NPRM proposing that broadcasters and cable operators disclose, both on the air and in their OPIFs, the use of AI-generated content in political advertisements.  Comments were due September 19.  We wrote about this proceeding here, and briefly noted some of the initial comments that were filed in our most recent weekly update of regulatory actions here.

October 11 is also the deadline for all “U.S.-based foreign media outlets” to register with the FCC.  These outlets are ones that provide video programming to MVPDs and are backed by a foreign government or political party.  In the registration, these entities must notify the FCC of their ownership structure and their relationship with a foreign government or political party, including whether the outlet receives funding from that foreign government or political party.  The FCC uses this information to file a required report it must submit to Congress every six months on the operations of U.S.-based foreign media outlets.  The FCC will submit its next report by November 9.

October 21 is the effective date of the FTC’s final rule prohibiting the purchase and sale of fake reviews and testimonials concerning products and services.  The rule prohibits activities including the buying and selling of fake consumer reviews, testimonials, and positive or negative consumer reviews; certain insiders creating consumer reviews or testimonials without clearly disclosing their relationships; creating a company-controlled review website that falsely purports to provide independent reviews; certain review suppression practices; and selling or purchasing fake indicators of social media influence.  The rule allow allows the FTC to seek civil penalties against knowing violators.

The political season continues in October, with lowest unit rates in effect for the November election (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.  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.

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.