David Oxenford

By: David Oxenford,
Wilkinson Barker Knauer LLP

As summer begins to wind down, just like the rest of the world, the FCC and other government agencies seem to pick up speed on long delayed actions.  Broadcasters can anticipate increased regulatory activity in the coming months.  For September, there are a few dates to which all broadcasters should pay attention, and a few that will be of relevance to a more limited group.  As always, pay attention to these dates, and be prepared to address any other important deadlines that we may have overlooked, or which are unique to your station.

All commercial broadcasters will need to pay attention to actions which will likely come in rapid fire in the next two weeks, setting the deadlines for payment of the Annual Regulatory Fees that must be paid before the October 1 start of the next fiscal year for the FCC.  Look for an Order very soon deciding on the final amounts for those fees.  That Order will be quickly followed by a Public Notice setting the payment dates and procedures.  Then watch for fact sheets from each of the Bureaus at the FCC.  The Media Bureau fact sheet will cover the fees to be paid by broadcasters.  Be ready to pay those fees by the announced September deadline, as the failure to pay on time brings steep penalties.

Also requiring attention this month is the deadline of September 15 for all stations that receive compensation to provide blocks of program time, or which receive free programming to fill blocks of program time.  By that September 15 deadline, stations need to have assured themselves that no such program blocks have been provided by a foreign government or an agent of a foreign government.  Broadcasters should get declarations from each program supplier confirming that the supplier is not a foreign government or its representative, and has not been paid by a foreign government to produce the program that will be airing on the station.  The rules requiring a review of all programming to ensure that it is not provided by a foreign government (with enhanced sponsorship identifications required if a foreign government is providing the programming) went into effect on March 15, 2022 and stations should have been receiving such written certifications for all new program blocks that have been sold since that time.  For block sales that were in effect prior to March 15, the station needs to have the affirmation that there are no foreign governments in the program chain by the upcoming September 15 deadline.  A further requirement to confirm the representations received from the programmers by searching for the programmer’s names in certain FCC and Department of Justice databases was struck down by the Court of Appeals following an appeal by the NAB (see our article here), but the rest of the rule remains in effect.  See our article here on the adoption of this requirement.

Another deadline with wide applicability is September 6, when Low Power TV, TV Translator and FM stations that incurred costs in the Incentive Auction repack and are seeking reimbursement from the TV Broadcaster Relocation Fund must submit all remaining invoices for reimbursement (see the Public Notice reminding stations of the September 6 deadline). The Fund Administrator will initiate the close-out for any entity that fails to initiate the process by the September 6 deadline.  Any unused allocations made to such an entity’s account will be returned to the Fund and made available for allocation to other program participants.  Entities are reminded again that they must retain documents for a period ending 10 years after the date they receive their final payments from the Fund as their reimbursement claims can be audited for that entire period.

September 6 is also the deadline for reply comments in the FCC’s proceeding regarding the Next Gen Broadcast Television Standard (ATSC 3.0).  The FCC’s Third Further Notice of Proposed Rulemaking is seeking comment and data on the progress of broadcasters’ deployment of ATSC 3.0 service and the current state of the ATSC 3.0 marketplace, including whether holders of essential patents for the ATSC 3.0 standards are licensing those patents on reasonable and nondiscriminatory terms.  In addition, the FCC asked for input on (1) the scheduled sunset of the requirement that a station’s ATSC 1.0 simulcast primary video programming stream be “substantially similar” to its 3.0 primary programming stream; and (2) whether to retain the requirement that a Next Gen TV station comply with the ATSC A/322 standard.

September 26 is the reply comment deadline for the FCC’s Notice of Proposed Rulemaking that seeks input on whether the FCC should update its rules to identify a new Nielsen publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes (initial comments were due August 29) as the Nielsen publication currently specified in the FCC rules will no longer be published.

September 26 is also the deadline for comments on the Federal Trade Commission’s proposed revisions to their guides setting out requirements when “Endorsements and Testimonials” are used in advertising.  See the FTC request for comments here.  Any broadcaster who has any on-air personality who endorses commercial products or services should be paying attention to this proceeding.

With the political advertising season now in full swing, broadcasters must be aware of the dates by which Lowest Unit Rate (“LUR”) periods begin for upcoming elections.  On September 9, the LUR period begins for the General Election to be held on November 8 for all States and Territories.  Broadcasters should also note that September 13 is Primary Election Day for Delaware, New Hampshire and Rhode Island, and that September 20 is Primary Election Day for Massachusetts.

Looking ahead to early October, October 1 is the deadline by which radio and television Employment Units in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Missouri, N. Mariana Islands, Oregon, Puerto Rico and Washington that have five or more full-time employees must upload their Annual EEO Public File Reports to their stations’ online public inspection files and websites.  On October 3, license renewal applications are due for full power television, Class A television, LPTV and TV translator stations in Alaska, American Samoa, Guam, Hawaii, N. Marianas Islands, Oregon and Washington.  As we have previously advised,  renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for LPFMs and TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Be sure to read the instructions for the license renewal application and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.  Issues with the public file have already led to fines imposed on TV broadcasters during this renewal cycle.

As always, review these dates with your legal and technical advisors, note other dates not listed here that may be relevant to your operations, and otherwise stay on top of all of your regulatory obligations.

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.