David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

The lazy days of summer continue to provide little respite from the regulatory actions of importance to broadcasters.  This month brings quarterly requirements, including most importantly, the obligation to upload Quarterly Issues Programs Lists to a station’s online public file, and a number of comment deadlines in important FCC proceedings, as well as the opening of political windows in this major election year.  So, even if the beach chair is calling, remember to keep an eye on dates that can affect your stations.

The regulatory date that all full-power broadcasters should have circled on their calendars is July 10, 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 April 1 and June 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.

There are a number of other routine filing deadlines on July 10.  By that date, noncommercial educational stations not affiliated with NPR or PBS must upload to their public inspection files documentation of their on-air fundraising benefitting third parties that aired between April 1 and June 30, 2024.  This obligation to provide details about on-air fundraising efforts for parties other than the station applies only to programming that interrupted a station’s normal programming, e.g., a charity radiothon.  For more information about this requirement, see our article here.

July 10 is also the date by which Class A television stations should upload to their public inspection file documentation of their continuing eligibility for Class A status based on their operations from April 1 through June 30, 2024.

Finally, July 10 is the deadline by which all full power television, Class A television, and full power radio stations must upload to their public inspection files documentation of any programming aired between April 1 and June 30, 2024 that was leased by a foreign government or their agents, or provided by a foreign entity for free in exchange for its airing.  The FCC’s foreign sponsorship identification rules require that stations disclose when programming has been paid for or provided by a foreign governmental entity and take steps whenever they sell any blocks of program time to determine if any buyer of program time is a representative of a foreign government.  See our article here for more information on this requirement, and our article here on recently adopted changes to this requirement that may be effective soon.

In July, there are numerous comment dates in FCC proceedings that could affect broadcasters. Reply comments are due July 8 in two FCC proceedings, where initial comments were filed in June:

• The FCC’s April Notice of Proposed Rulemaking, which explores the state of the market for independent video programming.  The FCC proposes new rules to prohibit “most favored nation” clauses and considers restrictions on clauses in agreements between independent programmers and multichannel video programming distributors (and broadcast companies) that limit the ability of programmers to make their programming available through alternative distribution methods.
• The FCC’s biannual call for comments on the State of Competition in the Communications Marketplace.  The FCC seeks comments on competition in the video and audio marketplaces, including the impact of digital competitors on radio and TV stations and the role that regulation plays in the competitive landscape.  The FCC uses these comments to prepare a report to Congress on competition issues and sometimes references the reports in proceedings dealing with competition, including FCC proceedings dealing with its ownership rules.

July 15 is the deadline for comments in response to the FCC’s Second NPRM concerning the 2024 FCC annual regulatory fees to be paid in September by broadcasters and other FCC-regulated entities.  For broadcasters, the FCC proposes reducing TV station fees by approximately 15.4% from last year and also proposes reductions in radio fees.  The FCC seeks comments on the fees and a number of other issues, including whether to end its presumption that silent stations are entitled to fee waivers without providing evidence of financial hardship, proposing that, beginning in 2025, such stations will be required to document their inability to pay.  Reply comments are due July 29.

July 22 is the deadline for comments in response to a petition for rulemaking proposing that the FCC create a new FM station class A10, which would operate with a maximum power of 10,000 watts at 100 meters height above average terrain.  This proposal is meant to supplant the long-pending proposal to create a Class C4 FM station, which would be available only in certain parts of the country – the FM A10 class would be available throughout the US, potentially allowing some Class A stations to increase their power.  Reply comments are due August 21.  This is only a preliminary proceeding to determine if the FCC should pursue this proposal.  A formal Notice of Proposed Rulemaking, asking for additional comments, would need to be released by the FCC prior to any action on this proposal.

The deadline to comment on the FCC’s Notice of Proposed Rulemaking, looking to make changes to the rules that govern the operations of LPTV stations, TV translators, and Class A TV stations is now set for July 29.  Proposals include extending Online Public Inspection File requirements to certain top-rated or network affiliated LPTV stations and expanding Class A station OPIF requirements to include uploading LMAs, Joint Sales Agreements, and Class A certifications (LPTVs would also upload LMAs and JSAs).  The NPRM proposes to make clear that LPTV stations have political advertising obligations, including the requirement to keep a public file.  It also makes other proposals, including limiting station site moves to 48.3 kilometers and requiring stations to specify a community of license within their service contour. Reply comments are due August 26.

Beyond the FCC, comments are due on July 22 on the Department of Justice’s Notice of Proposed Rulemaking that proposes to move marijuana from a Schedule I controlled substance to a Schedule III controlled substance as defined under the Controlled Substance Act.  If marijuana is reclassified as a Schedule III controlled substance, the manufacture, distribution, dispensing, and possession of marijuana would remain subject to the applicable criminal prohibitions of the CSA.  Any drugs containing a substance within the CSA’s definition of “marijuana” would also remain subject FDA regulation, including advertising regulation, which is why we warned broadcasters in our article here that this proceeding may not resolve all issues about selling spots to dispensaries and other marijuana businesses that have been “legalized” under the laws of certain states.  The DOJ’s NPRM does seek comment on the practical consequences of rescheduling marijuana to Schedule III, so comments on advertising issues may be submitted.

Also be watching for action on a request to stay the effect of the FTC’s recent action banning noncompete agreements in most US businesses.  A Texas Court hearing an appeal of that decision has stated that it would decide on whether a stay is appropriate by July 3, potentially negating the September 1 effective date of that ban.

Department of Labor rules significantly increasing the minimum salary that must be paid to executive, administrative, and professional employees to be exempt from overtime rules are supposed to be effective on July 1.  There are also Court challenges to those rules, and one Court considering those challenges held a hearing earlier this week on whether to put those rules on hold while the appeal is considered.  Be alert for any action from that Court, but otherwise consult your labor and employment counsel and advisors to be ready to meet the July 1 deadline.

Looking ahead to August, August 1 brings the date for radio and television stations 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 station employment units in with eleven or more full-time employees and TV stations with five or more full-time employees triggers a Mid-Term EEO Review that analyzes the last two Annual Reports for compliance with FCC requirements.  August 1 is the beginning of the Mid-Term EEO Review for radio station employment units in Illinois and Wisconsin and for television station employment units in North Carolina and South Carolina.  Additionally, radio stations located in those states 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.

August will also likely be when the FCC finalizes the regulatory fees for this fiscal year, which must be paid before the October 1 start of the next fiscal year.  As we noted above, comments on the proposed fees are due in July, so the FCC will need to over quickly to finalize these fees so that they can be paid in September.

The political season continues in July, and broadcasters serving Alaska, Delaware, Florida, Massachusetts, New Hampshire, Oklahoma, Rhode Island, and Wyoming should be aware of the opening of the following political windows for primaries and elections scheduled to occur in August and September – meaning that Lowest Unit Rates apply to sales to candidates 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 states and territories that have primaries or elections in August and September.  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.  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.