Last week, the FCC’s Enforcement Bureau issued a Notice of Apparent Liability proposing an $8000 fine on a Los Angeles radio broadcaster that did not award a contest prize until over a year after the contest rules called for the prize to be delivered.  The contest rules called for the prize to be awarded within 30 days of a winner sending all required paperwork to the station.  As payments were made over a year after the end of the 30-day period provided by the contest rules, the Bureau concluded that the station had violated Section 73.1216 of the FCC rules which requires, among other contest rules, that a contest be conducted “fairly and substantially as represented to the public.”  The Bureau’s Notice cites to FCC precedent indicating that “timely fulfillment of the prize” is a material term in the contest rules which, when violated, represents a violation of the FCC rule.

The prize money that was awarded late was only $396, so some might think that a proposed fine of $8000 is excessive, though the Bureau indicates in a footnote that there were 98 prize winners in the same contest that did not timely receive their prizes.  The Bureau itself noted that the “base forfeiture” for a violation of the contest rules set out in the FCC’s schedule of fines is $4000.  But the proposed fine was adjusted upward in this case because the FCC perceived that, for a large company such as the licensee of this station, a $4000 fine might simply be seen as a cost of doing business, and not act as a sufficient deterrent against future bad conduct.  The FCC even noted that it had the power to fine the station for each day that the contest award was not made, which could have resulted in a fine of hundreds of thousands of dollars.

Continue Reading FCC Proposes $8000 Fine for Failure to Award $396 Prize Within Time Period Set Out in the Contest Rules

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can find more information as to how these actions may affect your operations.

  • The debate over the AM for Every Vehicle Act intensified this week, with the Wall Street Journal’s Editorial Board publishing an article opposing Congressional action to require automobile manufacturers to include free over-the-air AM radio in every car.  The CEO of the National Religious Broadcasters responded in an article in Radio World magazine.  We summarized the arguments and offered more context on our Broadcast Law Blog, here. 
  • The FCC’s Enforcement Bureau proposed an $8,000 fine against a California radio station for failing to comply with the FCC’s contest rules.  The Bureau found that the radio station violated the rules of its contest by not delivering to a contest winner their $396 prize for over a year after the winner submitted all required paperwork.  The contest rules stated that a winner would receive their prize within 30 days of completing the paperwork.  The Bureau rejected the station’s argument that COVID-19 pandemic and a ransomware attack caused the problem as, under the rules, the prize should have been delivered no later than March 3, 2020 – before the pandemic lockdowns and before the attack occurred. 
  • The FCC’s Media Bureau granted Pinal County, Arizona’s request to modify the local markets of four Tucson, Arizona TV stations by adding the county.  Market modification allow broadcasters, satellite TV providers, and local governments to request changes to a TV station’s local market to reflect market realities for purposes of satellite carriage – enabling a station to expand its carriage rights.  The Tucson stations are assigned to the Tucson (Sierra Vista) DMA.  Pinal County – which is assigned to the Phoenix (Prescott) DMA – requested that it be assigned to the Tucson stations’ market.  The Bureau found that DISH and DIRECTV’s carriage of the Tucson stations in the county was technically feasible and weighed the five market modification factors used by the Bureau in deciding this kind of case.  The Bureau found that: (1) the stations had no historic satellite carriage in the county, which weighed against the proposed modification; (2) the stations provided local service to the county because their technical service contours reach much of the county and the stations provided extensive local programming for the county; (3) adding the county to the stations’ market would promote access to in-state broadcast signals since all of the stations’ signals originate in Arizona; (4) the stations were not uniquely qualified to serve the county due to the large number of Phoenix stations already carried there by satellite providers, but the Bureau assigned no weight to this factor as, while this factor can bolster a market modification request, the lack of unique service is not usually counted against a petitioner; and (5) there was no evidence of significant viewership of the stations in the county, but the Bureau only gave this factor limited weight – noting that it was rare to find any evidence of viewership in a satellite market modification petition, and in this case there was at least some local viewership, and likely more in parts of the county closer to Tucson.  The Bureau concluded that, on balance, there was a sufficient local relationship between the Tucson stations and Pinal County to grant the proposed modification.
  • Reply comments were filed this week in response to the FCC’s January Notice of Proposed Rulemaking proposing to prioritize the review of certain applications by a broadcast station providing at least three hours per week of local programming.  As we discussed here, the proposed prioritization policy is intended to incentivize stations to provide local programming – which a majority of the Commissioners suggested was necessary after the FCC’s 2017 elimination of the main studio rule (see our articles here and here).  NPR and NAB (here and here) state that the FCC’s proposal would do little to incentivize broadcasters to produce more local programming, and these commenters in addition to others (see here and here) encourage the FCC to do more to support broadcast localism such as refocusing its efforts on policies that enable broadcasters to compete in today’s hyper-competitive marketplace.  Other commenters (see here and here) disagreed on whether the three-hour local programming threshold is sufficient to encourage broadcasters to produce local programming.  Finally, one commenter stated that reinstating the main studio rule would be detrimental to rural communities and would tip the scale toward unprofitability – thereby leading to smaller, rural radio stations ceasing operations. 
  • The FCC’s Enforcement Bureau issued two Notices of Illegal Pirate Radio Broadcasting to landowners in Beacon, New York and San Francisco, California for allegedly allowing pirates to broadcast from their properties.  The Bureau warned the landowners that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowners continued to permit any individual or entity to engage in pirate radio broadcasting from their properties.
  • The FCC’s Media Bureau took two other actions against broadcasters for violations of the FCC’s rules:
    • The Bureau fined the licensee of an Alabama FM translator station $16,500 for failing to request FCC authorization for its continued use of temporary facilities for two years after an STA expired, and for operating the translator without proper FCC authorization during this period.  The licensee requested that the Bureau cancel or reduce the fine because the translator operated at a loss for two of the last three years and paying the proposed fine would threaten licensee’s ability to continue operating.  The Bureau rejected the financial hardship claim as a sale of the translator was pending and the fine constituted only a fraction of the sales price. 
    • The Bureau entered into a Consent Decree with the licensee of several North Dakota and Minnesota noncommercial TV stations which required payment of a $8,150 penalty.  The Consent Decree resolved an investigation into the licensee’s apparent failure to timely upload several of the stations’ Quarterly Issues/Programs Lists to their Online Public Inspection Files and to completely disclose the late-filed lists in the stations’ license renewal applications.  Under the Consent Decree, the licensee must also implement a compliance plan to ensure future compliance with the FCC’s rules. 
  • The FTC announced the winners of its Voice Cloning Challenge.  As we discussed here, the contest was intended to promote the development of ideas to protect from the misuse of AI-enabled voice cloning by having members of the public submit proposals for tools that can be used to prevent, monitor, and evaluate the malicious use of the technology.  There were three contest winners that will split a total of $35,000 in prize money: two small organizations focused on the development of devices and apps used for the detection of AI-enabled voice cloning, and a member of academia who developed a watermarking tool to identify voice cloning.  A fourth organization was recognized for its creation of technology that detects voice clones and audio deepfakes in real time.  The FTC noted the four winning submissions demonstrate the potential for developing multiple technologies that can mitigate the risks of AI-enabled voice cloning as there is no single solution to the problem.  The FTC also highlighted its other efforts to mitigate the harms of AI-enabled voice cloning, including proposing a comprehensive ban on impersonation fraud and affirming that the Telemarketing Sales Rule applies to AI-enabled scam calls.
  • The House Subcommittee on Communications and Technology held a hearing titled “Where Are We Now: Section 230 of the Communications Decency Act of 1996.”  The hearing examined the purpose of Section 230 and discussed what Congress can do to modernize the law.  As we discussed here and here, Section 230 of the Communications Act was designed to insulate online platforms from liability for content created by others that is hosted on their sites.  Section 230 immunity had long been considered essential to the success of the Internet, but more recently there have been concerns that the law has had unintended consequences, such as enabling terrorist activity, promoting the exploitation of minors, and allowing discrimination and harassment.  A recording of the hearing can be found here, and the hearing memo can be found here.

On our Broadcast Law Blog, we discussed the FCC’s decision to allow FM boosters to originate limited amounts of programming that is different from what is broadcast on the booster’s primary station. 

With broadcasters and those in associated industries ready to make their annual pilgrimage to Las Vegas for the NAB Convention, the Wall Street Journal decided to weigh in on an issue important to many radio broadcasters – the future of AM in the car.  One of the priorities for many AM broadcasters in the last year has been to push for legislation to require that automobile manufacturers retain AM radio in the car dashboard to stem what many see as a trend toward removing AM (and potentially other free over-the-air radio options) from the car and replacing it with other entertainment options.  The concerns of broadcasters have led to the introduction in Congress of the AM in Every Vehicle Act, which proposes to mandate that AM be required as a safety feature in all cars until it is determined that there is another, free, ubiquitous option to deliver emergency alerts to drivers.  See our articles here and here for more on the Act.

While this Act has garnered much support on Capitol Hill, there has been a concern among some legislators about requiring mandates on a car industry, particularly for a technology that many see as outdated and in decline (see the declining numbers of AM stations we noted in our last weekly update on regulatory news for broadcasters, citing the FCC’s latest report on the number of broadcast stations in the country).  The Journal Editorial Board article takes that same position, almost treating the attempts to keep AM radio in cars as a joke, arguing that it imposes additional unnecessary costs on car makers – costs that will be borne by all car buyers, even those who don’t need or use AM radio.  The article suggests that the emergency communications function is unnecessary as there are other alternatives to receive emergency alerts even in rural areas of the country.  The article asks if mandating AM in the home is next, and suggests that, without a mandate, car makers could use AM as a competitive feature to attract consumers to brands that maintain these radios in the car.

Continue Reading On the Eve of the NAB Convention, Wall Street Journal Editorial Board Article Opposes AM in Every Vehicle Act

Last week, the FCC approved a long-pending request by GeoBroadcast Solutions to allow FM boosters to originate limited amounts of programming that is different from what is broadcast on the booster’s primary station.  Boosters operate on the same channel as an FM broadcast station and have traditionally been used to fill in holes in an FM station’s coverage area where service that would otherwise be predicted to occur is blocked by terrain obstacles or some other impediment that prevents the main station from reaching a part of the station’s primary service area (in most cases a 60 dBu or 1 mv/m signal) predicted using the FCC’s standard coverage prediction methodology.  As boosters operate on the same channel as the main station, their use has always been limited because of fears of creating interference to the main station’s signal if not properly shielded by terrain or other obstacles.  The service approved last week – called “geocasting” or “zonecasting” – is supposed to allow boosters to originate limited amounts of programming different from the primary station and minimize interference not by terrain, but by other signal timing and coordination methodologies.  The proponent of the system claimed that this would minimize interference and allow stations to originate different commercials, news reports, or other geographically targeted programming in the different parts of a station’s service area to better compete with the geotargeting used by the digital media companies that are now competitors to radio.

Numerous broadcasters, and the NAB, had opposed this effort, as we noted in a recent article on the controversy.  Their fear was that no matter how good the synchronization of these boosters may be, there will still be the potential for some interference.  Just by putting more signals on the FM band in close proximity to each other, some interference naturally will result.  Objections were also raised about the economic impact of the proposals.  With more radio inventory addressing fewer people, there are fears that the implementation of this proposal could drive down radio advertising prices far below the rate now in place.  In addition, there are worries about the impact that geocasting could have in outlying smaller markets – as big market stations could use boosters in outlying parts of their service areas to target advertisers in these areas, taking advertising away from the full power stations serving those outlying communities.  The FCC’s order last week noted that the New Jersey broadcasters expressed particular concern, as New York and Philadelphia stations could use boosters to target advertisers who now buy advertising on New Jersey stations to reach local consumers because rates on the big city stations are cost prohibitive for reaching a targeted audience.  The fear is that these advertisers will now use the boosters of big city stations and abandon their local broadcasters, and that big stations will get bigger and more dominant, at the expense of the local stations doing local service to these outlying areas.

Continue Reading FCC Approves Origination of Programming on FM Boosters to Facilitate Geocasting – Targeting Different Ads or Programming to Different Parts of FM Station’s Service Area

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC adopted a decision resolving the FCC’s long-pending proceeding on whether to authorize FM “zonecasting” or “geo-targeting,” permitting FM booster stations to originate programming on a limited basis.  Zonecasting enables broadcasters to air advertisements, news, or other content focused on small geographic areas by originating programming on an FM booster different than that which is aired on its primary station.  As we discussed here, many broadcasters were opposed to zonecasting because of the potential for interference and a negative impact on broadcast localism.  The FCC nevertheless approved its use for up to three minutes per hour on up to 25 boosters for any station.  While the FCC decided that it would adopt processing and service rules for zonecasting in a later order, FM broadcasters will be allowed to originate programming on boosters under experimental authority until the final rules are adopted. 
  • The FCC affirmed the Enforcement Bureau’s decision to revoke a Pennsylvania FM station’s license because of its owner’s felony conviction for secretly taking nude photos of a woman, impersonating her on online dating sites, deleting evidence when the police investigated, and failing to present any evidence on his own behalf or to respond to discovery and other pleadings before an FCC Administrative Law Judge (ALJ) who had been tasked by the FCC to hold a hearing to determine if his conviction meant that he did not have the character qualifications to hold an FCC license.  After the hearing was terminated because he presented no exculpatory evidence and did not otherwise defend himself, the FCC’s Enforcement Bureau issued an order revoking his license.  This week’s decision resolved the appeal of the revocation order.  The Commission concluded that it was too late to introduce evidence first raised during that appeal about his station’s meritorious programming, his illness, and his reputation in the community, as that evidence should have been presented to the ALJ.  The decision also found that the felonious misconduct was recent, premeditated, and the destruction of the evidence was akin to fraudulent misrepresentation to a government entity, all of which showed that the licensee’s misconduct was sufficiently egregious to prevent him from holding an FCC license. 
  • The FCC released its quarterly public notice, Broadcast Station Totals, itemizing the number of stations currently operating in each broadcast service.  The release shows that, compared to the same release from a year ago, there are 45 fewer AM stations and 18 fewer commercial FM stations, but 101 more noncommercial FM stations.  There were 5 more commercial UHF TV stations and 2 more commercial VHF TV stations; and 3 more noncommercial UHF TV stations, with 3 fewer noncommercial VHF TV stations. 
  • The FCC’s Media Bureau issued two decisions concerning TV must-carry rights:
    • The Bureau concluded that an Alabama commercial TV station was entitled to mandatory carriage by DISH in the Columbus-Opelika DMA.  Under the Satellite Home Viewer Improvement Act of 1999 (SHVIA), satellite TV providers must carry, upon demand, a TV station in its local market.  In implementing SHVIA, the FCC found that while a station’s local market for satellite carriage purposes is generally its Nielsen-defined designated market area (DMA), it may also include its community of license’s DMA if it differs from its Nielsen-assigned DMA.  In this case, the station was licensed to Opelika in Lee County, Alabama – which is in the Columbus-Opelika DMA.  The station has a distributed transmission system providing service to the Atlanta DMA, and Nielsen assigns the station to that DMA.  DISH recognized the station’s mandatory carriage rights only in the Atlanta DMA and in Lee County, while the station asserted rights to carriage throughout the Columbus DMA.  The Bureau concluded that the station was entitled to carriage throughout both DMAs because Nielsen assigned the station to the Atlanta DMA and its city of license is within the Columbus-Opelika DMA. 
    • The Bureau affirmed its previous denial of a Fort Bragg, California TV station’s market modification petition to add Santa Rosa, California to its market.  Market modification allows a commercial TV station to add communities to its DMA for FCC purposes – expanding the scope of its must-carry rights – if the station can show that the addition of other communities would promote the local service goals of the must-carry rules.  Fort Bragg is in the San Francisco-Oakland-San Jose, CA DMA, and the station petitioned to add Santa Rosa to that DMA.  There are five factors weighed by the Bureau in deciding such a case, and the Bureau’s initial decision balanced the following determinations to decide that carriage was not warranted: (1) the station’s historic carriage by other cable operators in Santa Rosa only slightly weighed in favor of market modification as it was carried on only one system in the community for an extended period and that its DISH and DirectTV coverage is not as important a factor as cable carriage; (2) the station’s local service did not favor carriage as its service contour did not reach Santa Rosa (and translator coverage cannot be used to support such a request), its city of license is far from Santa Rosa, and the local programming it offered was insufficient to overcome the distance and lack of coverage; (3) while carriage of the station would facilitate Santa Rosa consumers’ access to in-state programming, the Bureau did not see sufficient evidence to consider this a substantial plus in this case; (4) the station was not uniquely qualified to serve Santa Rosa due to the large number of other stations already carried there by cable operators; and (5) the station failed to show that there was sufficient evidence showing that the station had significant viewing in Santa Rosa.  This week’s decision denied reconsideration of the prior decision, finding that the station merely reiterated arguments already made, failing to show any legal error in the earlier analysis. 
  • The FCC’s Media Bureau issued an order upholding a proposed $9,500 fine to a Texas LPTV station that failed to file its license application as required by FCC rules for about 5 months after it completed construction of new facilities, and also operated at reduced power for three months without seeking an STA authorization.  The station requested reduction of the fine to $3,000 because its violations were unintentional and claimed that the fine was excessive because the Bureau was “targeting” the station due to a previous FCC violation.  The Bureau affirmed its proposed fine because the Bureau’s consideration of the station’s past violations is consistent with longstanding FCC policy, and that the station’s inadvertence does not excuse a violation of the rules – a fine already reduced when proposed in December due to the LPTV station’s secondary status. 
  • The FCC’s Media Bureau granted two new LPFM station construction permits over objections filed by other LPFM licensees:
    • The Bureau granted an Indiana LPFM construction permit application over an objection claiming that the application should be denied because the applicant failed to disclose that one of its principals, an Indiana pastor, had interests in a pirate radio station that operated from his church.  Those who operated pirate radio stations in the past cannot hold an LPFM license.  The objection was based on a Notice of Unauthorized Operations issued to the pastor by the Enforcement Bureau’s Chicago Field Office following its investigation of the pirate station.  The applicant responded to the objection by stating that the pastor turned off the pirate station at the FCC agents’ request, that he was not operating the station (it was instead operated by a church visitor) and, that, while he may have been gullible by allowing the operation at his church prior to receiving the Notice, he had not been found to have actually operated to the station.  This week’s decision concluded that there was no evidence that the pastor was involved in the pirate station’s operations and thus there was no reason to deny the application.
    • The Bureau granted a Pennsylvania LPFM construction permit application over a claim that the application should be denied because the applicant’s technical consultant – who the applicant originally listed as an attributable interest holder – was associated with two other Pennsylvania LPFM stations.  After the objection, the applicant amended its application to remove its technical consultant.  The Bureau found that the technical consultant’s provision of technical services to multiple LPFM stations did not show that the consultant held attributable interests in those stations, and thus there was no reason to deny the application.    

Here are some of the regulatory developments of significance to broadcasters from this past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • In this week’s list of tentative decisions circulating among the Commissioners for review and a vote, an item concerning the amendment of the FCC’s rules concerning FM booster stations was removed.  This presumably means that the FCC is about to release an order resolving the FCC’s long-pending proceeding on whether to authorize “zonecasting” or “geo-targeting” for FM stations.  This proceeding considers allowing on-channel FM boosters to originate limited amounts of programming, allowing different commercials in different parts of an FM station’s service area.  While FCC Commissioners Carr and Starks released a joint statement in January supporting FCC Chairwoman Rosenworcel’s action circulating an order to conclude that proceeding, many broadcasters oppose the idea (for more information, see the article on our Broadcast Law Blog, here).
  • A group of radio broadcasters, the organizations for the affiliates of the major TV networks, and the NCTA – The Internet & Television Association, each filed motions to intervene in the appeals of the FCC’s December 2023 Report and Order which concluded its 2018 Quadrennial Regulatory Review of the local broadcast ownership rules.  If their motions are granted by the 8th Circuit Court of Appeals which is considering the case, the radio broadcasters and affiliates associations will be permitted to file briefs supporting the NAB and the other broadcasters who appealed the December decision, arguing that the FCC should have relaxed the broadcast ownership rules in light of the intense new competition broadcasters face from digital media.  NCTA is filing in support of the FCC’s decision that television broadcasters should not be allowed to own more stations in individual markets, which NCTA argues is necessary to prevent TV broadcasters from gaining undue leverage in retransmission consent negotiations with NCTA’s cable members.  As we discussed here, the FCC declined in the December decision to make any substantial changes to its broadcast ownership rules, and actually tightened the top-4 network prohibition (the prohibition on common ownership in the same market of more than one top-4 TV station) to prohibit a station from purchasing the top-4 network programming of another station in its market and moving that programming to a commonly-owned LPTV station or multicast stream. 
  • The FCC announced several deadlines of interest to broadcasters:
    • The FCC announced that comments are due April 29 in response to its January Notice of Proposed Rulemaking in which it proposes to require TV and radio stations to file reports regarding station operational outages in the FCC’s Network Outage Reporting System (NORS) database and on their operating status during disasters in the FCC’s Disaster Information Reporting System (DIRS) database.  While DIRS reporting is currently voluntary for broadcasters, NORS reporting is not currently required or available to broadcasters.  Reply comments are due May 28. 
    • The FCC’s Office of Economics and Analytics announced that certain cable operators must respond by May 24 to the FCC’s annual survey regarding cable industry prices.  Cable operators identified in the announcement must report data including the number of TV stations and multicast subchannels carried pursuant to a retransmission consent agreement or must carry rights in the period from January 1, 2023 to January 1, 2024, the total retransmission consent payments they made to broadcasters in 2022 and 2023, and the number of subscribers subject to retransmission consent fees in those years.  The data will be used by the FCC to prepare its annual report to Congress on cable industry prices.  The FCC will also make the aggregated data publicly available. 
    • The FCC announced that comments are due April 29 in response to its February Notice of Proposed Rulemaking in which it proposes to require multichannel video programming distributors (MVPDs) to report on the gender and ethnicity of their employees on FCC Form 395-A.  Reply comments are due May 13.  As we discussed here, in that same decision, the FCC reinstated a similar reporting obligation for broadcasters by requiring the filing of FCC Form 395-B annually by September 30, to be effective once the data collection requirements are approved by the Office of Management and Budget pursuant to the Paperwork Reduction Act.  To date, the FCC has not announced when the broadcast portion of that decision will be published in the Federal Register, which would start the window for filing petitions for reconsideration or court appeals of that decision. 
    • The FCC’s Media Bureau announced that comments are due April 15 in response to its Public Notice released last week in which the Bureau seeks comment on a joint proposal regarding the accessibility of MVPD closed captioning display settings.  The joint proposal – which was submitted by the NCTA and advocates for individuals who are deaf or hard of hearing – relates to a long-pending proceeding regarding closed captioning display settings on video devices (such as TVs, smartphones, PCs, and set-top boxes).  The group proposes a set of uniform standards for accessibility controls, which would make them more easily found and used by users of the services provided by video providers.  Reply comments are due April 15. 
  • The FCC’s Enforcement Bureau issued two Notices of Illegal Pirate Radio Broadcasting to landowners in Mount Vernon, New York and Poughkeepsie, New York for allegedly allowing pirates to broadcast from their properties.  The Bureau warned the landowners that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowners continued to permit any individual or entity to engage in pirate radio broadcasting from their properties.
  • The FCC’s Media Bureau took several actions with respect to LPFM stations:
    • The Bureau affirmed its January dismissal of a Mississippi LPFM construction permit application because the applicant failed to show that it met the co-channel and second-adjacent channel spacing requirements to protect nearby full-power FM stations.  The Bureau rejected the applicant’s request to amend its application to correct what it claimed were errors of its engineer, because the rules state that the failure to meet spacing requirements (or to request a waiver) in an initial application is fatal to an application and cannot be cured by an amendment.
    • The Bureau cancelled a proposed $1,500 fine against a California LPFM station for apparently failing to timely file its license renewal application.  Based upon the station’s response to the proposed fine, the Bureau determined that the station was unable to pay the fine due to financial hardship. 

This past week on our Broadcast Law Blog, we looked at the upcoming April regulatory deadlines for broadcasters.  We also discussed the FCC’s latest round of EEO Audits for TV and radio stations, highlighting some of the EEO recordkeeping rules with which broadcasters must comply.  In another article, we looked at the FCC’s current proposal to expand broadcasters’ foreign sponsorship identification requirements – a draft order addressing the proposal is currently being considered by the FCC Commissioners.  Finally, in honor of April Fools’ Day, we provide our annual reminder that broadcasters need to be careful with any on-air pranks, jokes or other on-air bits both because of the FCC’s rule against on-air hoaxes and the possibility of liability issues with false alerts that are run on a station.

Every year at about this time, with April Fools’ Day right around the corner, we need to play our role as attorneys and ruin any fun that you may be planning by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other on-air bits prepared especially for the day.  While a little fun is OK, remember that the FCC has a rule against on-air hoaxes, and there can be liability issues with false alerts that are run on a station.  Issues like these can arise at any time, but a broadcaster’s temptation to go over the line is probably highest on April 1.

The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”  If you air a program that fits within this definition and causes a public harm, you should expect to be fined by the FCC.

Continue Reading How an April Fools’ Day On-Air Prank Gone Wrong Could Result in FCC Issues

For the first time since October, we can say that the federal government is funded for the rest of the fiscal year (through the end of September) so we do not expect to have to report on any threats of a government shutdown for many months. With that worry off our plate, we can look at the dates that broadcasters do need to pay attention to in the month of April.

First, we’ll look at the most significant routine filing deadlines coming up in April.  April 1 is the deadline for radio and television station employment units in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas 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 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 Indiana, Kentucky, and Tennessee with eleven or more full-time employees triggers a Mid-Term EEO Review, where the FCC will analyze the last two Annual Reports for compliance with FCC requirements.  There is no form to file to initiate this review but, when radio stations located in those states with five or more full-time employees are required to upload to their public file their annual EEO Public File Report, they must also indicate in the online public file whether their employment unit has eleven or more full-time employees, using a checkbox now included in the public file’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.

Continue Reading April Regulatory Dates for Broadcasters – EEO Reports, Quarterly Issues/Programs Lists, LUC Windows, Rulemaking Comments, and More

In October 2022, I noted in an article that many broadcasters were totally confused by the FCC’s rules requiring that they seek certifications as to whether or not a foreign government is behind anyone buying programming time on a broadcast station.  In our 2022 article, we noted that, even though broadcasters did not fully understand the existing rule, the FCC was considering expanding that requirement to require use of a specific form to obtain these certifications from program buyers.  From notices filed with the FCC recently, it appears that there have been several meetings with the Commission and representatives of the broadcasting community about these proposed enhanced certifications, making it appear that the FCC is nearing a decision.  It appears that the new certifications, if adopted, will be very cumbersome, particularly for the unsophisticated program buyers who are likely to be many of the buyers of program time on small market stations.  These buyers are likely to find the certification process somewhat intimidating, and may even be scared off from buying any broadcast programming time as a result.  We thought we should take another look at what is already required and what is now being proposed.

Currently, the certifications that broadcasters must obtain from a program buyer must indicate that the programmer is not a “foreign government entity,” a term that includes any foreign government or foreign-government owned entity, an agent of a foreign government, or someone who has been paid by a foreign government to produce the program.  As we noted (see our articles here and here), the rules requiring these certifications went into effect on March 15, 2022 for any new agreements effective after that date, and September 15, 2022 for obtaining certifications from programmers who were already on the air as of March 15.  They cover not only those who buy program time on a broadcast station, but also those that provide program time free to broadcasters with the understanding that the programming will be aired.  The certifications do not cover programming that the broadcaster buys (either for money or through barter – including by giving the programming supplier advertising time that the programmer can resell in exchange for the programming).  And they are not required for spot advertising buys. 

Continue Reading FCC Still Reviewing Plan to Expand Broadcasters’ Obligations to Obtain Certifications from All Program Buyers on their Connection to Foreign Governments – What is Being Proposed? 

The FCC last week released its first EEO audit notice for 2024.  The FCC’s Public Notice, audit letter, and the list of stations selected for audit is available here.  Those stations, and the station employment units (commonly owned or controlled stations serving the same area sharing at least one employee) with which they are associated, must provide to the FCC (by uploading the information to their online public inspection file) their last two years of EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules.  The response to this audit is due to be uploaded to the public file of affected stations by May 6, 2024. The audit notice says that stations audited in 2022 or 2023, or whose license renewals were filed after February 1, 2022, can ask the FCC for further instructions, possibly exempting them from the audit because of the recent FCC review of their performance. 

With the release of this audit, and last year’s $25,000 fine proposed for some Kansas radio stations that had not fully met their EEO obligations (see our article here), it is important to review your EEO compliance even if your stations are not subject to this audit.  The FCC has promised to randomly audit approximately 5% of all broadcast stations each year. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else with an internet connection anywhere, at any time.  The Kansas fine, plus a recent $26,000 fine imposed on Cumulus Media for a late upload of a single EEO Annual Public File Report (see our article here), and the FCC’s recent decision to bring back EEO Form 395 reporting on the race and gender of all station employees (see our article here), shows how seriously the FCC takes EEO obligations.

Continue Reading FCC Issues First EEO Audit Notice for 2024 – 250 Radio and TV Stations To Have Employment Activities for the Last Two Years Reviewed