David Oxenford

There are normally a host of regulatory obligations at the beginning of February, but because of technical issues with the FCC’s online public file and LMS systems, many February 1 dates, as well as some January regulatory deadlines, have been extended to late February.

Due to technical problems that affected FCC filings throughout the month of January, the FCC last week issued a Public Notice extending the deadlines for all filings in the FCC’s LMS or online public file systems that were due in late January and early February.  The new deadline for these filings is February 28, 2023.  This new deadline applies to TV license renewal applications (including the associated Equal Employment Opportunity Report (Form 2100, Schedule 396)) for television stations, LPTV stations, TV translators and Class A stations in New York and New Jersey (which had been due February 1); Annual Children’s Programming Reports (which had been due on January 30); and EEO Public File Reports for broadcast employment units with 5 or more full-time employees in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma (reports that normally would have had to have been uploaded to a station’s public file by February 1).  Quarterly Issues Programs lists for all broadcast stations had been due to be uploaded to the public file by January 10, but that date was initially extended until January 31, and the deadline has now been further extended to February 28 by last week’s Public Notice. Note that the Public Notice is broad, stating that any public file document due to be uploaded or any FCC application to be filed through LMS must be filed by February 28.  Notwithstanding the extension, licensees should not wait until the last minute to upload documents, as the intermittent problems that have plagued the systems could persist for some time and make meeting even the extended deadline problematic, especially if you wait for the last minute to try to file.  For more details about the extension and about other technical issues with the FCC’s filing systems, see the article we recently published on this subject.

February 28 is the deadline by which EAS participants must file their EAS Test Reporting System (ETRS) Form One.  Filing instructions are provided in the Public Notice issued by the FCC earlier this month (see also our articles here and here).  All EAS Participants – including Low Power FM stations (LPFM), Class D non-commercial educational FM stations, and EAS Participants that are silent pursuant to a grant of Special Temporary Authority – are required to register and file in ETRS, with the following exceptions:  Analog and digital low power television (LPTV) stations that operate as television broadcast translator stations, FM broadcast booster stations and FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations, and analog and digital broadcast stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point) are not required to register and file in ETRS.  Carefully read the Public Notice and the form to make sure that all necessary information is properly uploaded.

Reply comments are due on February 13 on the proposal by the NAB and Xperi, Inc. to adopt a new formula for computing the allowable power of FM digital subchannels and a combined proposal to allow the operation of sidebands with differing power levels (“asymmetric sidebands”).  Adoption of these proposals may allow greater coverage and improved reception for programming broadcast on FM subchannels.  See our article here for more information on these proposals.

February 14 is the deadline by which commercial and noncommercial webcasters and broadcast stations that simulcast programming over the Internet must submit to SoundExchange their monthly report of use and monthly usage statement of account forms for the month ending Dec. 31, 2022.  These will be the last payment under the 2022 rates, as the Copyright Royalty Board (CRB) recently announced cost of living increases in the statutory royalties to be paid in 2023, increases which became effective on January 1.  For more details about these increases, see our article here.

These same webcasting royalties are currently subject to appeal, with several parties seeking review of the CRB decision (see our articles here and here) that led to the rates.  Broadcasters have challenged the failure of the Board to adopt a lower rate for simulcasters, and the NRB Noncommercial Music License Committee has challenged the rates set for nonprofit religious webcasters, arguing that it should be significantly lower.  The US Court of Appeals will be holding an oral argument on these and other issues raised on appeal on February 17.  A decision in the case is expected this summer.

The CRB also recently published the tentative rates that noncommercial broadcasters will pay to ASCAP, BMI, SESAC and GMR for the period 2023-2027.  Comments on the proposed rates are due through February 27.  For more on the proposed rates, see our article here.

Looking ahead to early March, the FCC’s increased application fees will become effective on March 2.  The FCC in December announced the increase of those fees to reflect increases in the cost of living.  See our article here for a list of the new fees for broadcast applications.  As the FCC Order increasing the fees has now been published in the Federal Register, the increase will become effective on March 2, so to save a few dollars, file and pay for any applications that you can before the new fees take effect.

On March 3, comments in the FCC’s new Quadrennial Review are due.  The Quadrennial review, announced just before Christmas, is to review many of the FCC’s ownership rules, including the local radio and television ownership limits.  A review of whether the ownership limits continue to serve the public interest is required by Congress to be commenced every four years, so the 2022 review has started, even though the FCC has not yet completed its 2018 review of the rules.  See our article here discussing some of the specific rules that are subject to review.

As always, this list of dates is not exhaustive, and deadlines can change.  Always review these dates with your legal and technical advisors, and note other dates not listed here that may be relevant to your operations.

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.