All posts by David Oxenford

With April Fools’ Day Coming Up, Plan Your On-Air Pranks with Care – Remember the FCC Hoax Rule

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

With April Fools’ Day falling on a Sunday this year, perhaps the potential for on-air pranks is lessened. But, then again, who knows what weekend talent may be planning? So, as we do every year about this time, we need to play our role as attorneys and ruin the fun by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other bits prepared especially for the day. While a little fun is OK, remember that the FCC does have a rule against on-air hoaxes. While issues under this rule can arise at any time, 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.” Air a program that fits within this definition and causes a public harm, and expect to be fined by the FCC.

This rule was adopted in the early 1990s after several incidents that were well-publicized in the broadcast industry, including one case where the on-air personalities at a station falsely claimed that they had been taken hostage, and another case where a station broadcast bulletins reporting that a local trash dump had exploded like a volcano and was spewing burning trash. In both cases, first responders were notified about the non-existent emergencies, actually responded to the notices that listeners called in, and were prevented from responding to real emergencies. In light of this sort of incident, the FCC adopted its prohibition against broadcast hoaxes. But, as we’ve reminded broadcasters before, the FCC hoax rule is not the only reason to be wary on April 1.

Beyond potential FCC liability, any station activity that could present the risk of bodily harm to a participant also raises the potential for civil liability. In cases where people are injured because first responders had been responding to the hoaxes instead of to real emergencies, stations could have faced potential liability. If some April Fools’ stunt by a station goes wrong, and someone is injured either because police, fire or paramedics are tied up responding to a false alarm, or if someone is hurt rushing to or from the scene of the non-existent calamity that was reported on a radio station, the victim will be looking for a deep pocket to sue – and broadcasters may become the target. Even a case that doesn’t result in liability can be expensive to defend and subject the station to unwanted negative publicity. So, have fun, but be careful how you do it.

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.

FCC Proposes Ending Form 397 EEO Mid-Term Report

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

At its meeting February 22, the FCC adopted a Notice of Proposed Rulemaking suggesting the abolition of the EEO Mid-Term Report, FCC Form 397. That form is filed at the mid-point of the renewal term of TV stations with 5 or more full-time employees and radio clusters with 11 or more full-time employees (see our post here about the form). As the content of the report is principally made up of the broadcaster’s last two EEO Public Inspection File Reports, and those reports are available in a broadcasters online public inspection file (which should be in place for virtually all broadcast stations when the final radio stations covert to the online public file next week, see our post here), the FCC concluded that there is no real reason that these reports need to be separately submitted, and thus proposed its elimination.

The Notice of Proposed Rulemaking did suggest that there were issues on which comments would be appropriate. The one bit of information that would not be readily available without the filing of the Form 397 would be which TV stations have 5 full-time employees and which radio clusters have more than 11 full-timers. That is important as Congress required the mid-term review of the EEO performance of stations meeting these employment thresholds. So the FCC asks how that information should be tracked. It is also noteworthy that the FCC will continue to conduct the EEO mid-term review of stations meeting these employment thresholds even without the filing of the Form 397 reports.

As the FCC says that they will continue to conduct that mid-term review, it is interesting that the FCC also asks in the NPRM what other EEO review should be conducted to assess the EEO performance of stations, seemingly at the insistence of Commissioner Clyburn who feared that the abolition of the Form 397 might send the wrong message about the FCC’s commitment to EEO even if its retention served no useful purpose. Commissioner Clyburn’s comments are available here. Seemingly, as the Commission will continue to do the EEO mid-term review, and continue audits and complaint-based reviews, many methods of assessment are already in place.

Comment dates on this proposal will be set when it is published in the Federal Register. This is one more proposal for procedural reform advanced as part of Chairman Pai’s Modernization of Media Regulation Initiative. As we wrote earlier, we are looking forward to more substantive proposals in the months to come.

The First EEO Audit of 2018 With a New Wrinkle – Notifications by Email and Responses Submitted Through the Online Public File

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

Eight Michigan Stations on the FCC Audit List, including 2 commercial FM stations, 3 non-commercial FMs, 2 commercial TV stations and 1 non-commercial TV.

On Friday, the FCC issued a Public Notice announcing its first EEO audit of 2018. The Notice lists the almost 300 radio and television stations that will be subject to the review as well as the rules that apply to that audit. And those rules are somewhat new. First, the notice itself was not sent by mail, but instead by email – the first time that email has been used to deliver the notice of an EEO audit. Some broadcasters who received the email seemed surprised and wondered if the email really was an official FCC communication, so the FCC included verification methods in the letter including a link to the Public Notice. So, if you are listed on the Public Notice, you are subject to the audit.

Second, the procedure for responding to the audit is different. No longer does the broadcaster subject to the audit have to submit paper copies of all of its documents to the FCC through the FCC Secretary’s office. Instead, the response will be filed in the station’s online public file. The response must be uploaded to the online public file by April 12. There, the FCC can review that response (as can anyone else anywhere, at any time, as long as they have an internet connection). The audit requires that the broadcaster submit their last two EEO Public File Reports (which should already be in the online public file) and backing data to support the outreach efforts. Broadcasters subject to the audit should carefully review the audit letter to see the details of the filing.

If any station in your cluster is on the list of audited stations, all stations in that “station employment unit” (a group of commonly owned stations serving the same area with at least one common employee) must respond. If that cluster has 5 or more full-time employees, it must observe the FCC’s EEO requirements and respond to this audit. If a station that is being audited is involved in an LMA with another broadcaster, the audit may require that the broker provide employment information as well as the licensee. There are some exceptions where stations can be excused from the audit for stations renewed or audited in the recent past.

Be sure to take care in responding to the EEO audit as the FCC will be reviewing it carefully, and issues with the audit can lead to fines. Even though the FCC has allowed online recruiting to be the sole method in which a station recruits new employees (see our article here), if a station does not keep the required paperwork and submit it in response to the audit, the station can still be fined by the FCC (see the article here about recent EEO fines). So check the audit list twice to see if your station is on it, and if it is, take your time and answer carefully.

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.

Starting Small on Media Regulation Modernization – Rule Requiring Hard Copy of FCC Rules Repealed

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

One of the first proposals in Chairman Pai’s initiative for the modernization of media regulation (see our post here from when the Chairman announced the initiative) was to repeal an FCC rule that many did not even know was a rule – one requiring that broadcasters who have secondary licenses maintain a paper copy of the FCC rules (surprisingly, the rule did not apply to licensees without secondary licenses for things such as boosters and translators). We wrote about the proposal to abolish this rule here. Not even waiting for the Commission meeting tomorrow at which this proposal was to be considered, the FCC issued its Report and Order February 20, repealing the rule. The Commission notes that station operators have a general obligation to be familiar with the rules that apply to their service, but there is no need to mandate a hard copy of the rules when rules can be accessed from other sources, in more current versions, electronically.

This is but one small step in removing unnecessary FCC regulation – but it is one in the right direction. We look forward to more such actions on more substantive topics in the coming months.

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.

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Comment Dates set on FCC Contract Filings
In an effort to modernize the rules applied to broadcasters, the FCC initiated another proceeding seeking comment on whether and how to update the requirement that licensees file paper copies of certain contracts and other documents with the agency within 30 days of their execution.  As a result of the publication of the notice of proposed rulemaking in the Federal Register, comments are due on March 19 and reply comments are due on April 2.

 

With the March 1 Deadline Looming, What Should Radio Stations Be Doing to Prepare Their Online Public File?

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

Many radio stations need to be considering the FCC requirement that their public inspection file be made available online in a system hosted by the FCC. From the calls I have received in the last few days, it appears that, even though the FCC adopted the requirements two years ago (see our post here), and station groups with 5 or more employees in the Top 50 markets had to covert to the online file soon thereafter, many smaller stations are only now realizing that the March 1 mandatory conversion date for all stations – commercial and noncommercial – is fast approaching.

We recently conducted a series of seminars for state broadcast associations on the online public file obligation. See the Michigan webinar here. The slides from the last of these, conducted for the Iowa and Indiana Broadcasters, are available here. In addition to those slides which provide an outline of the online public file obligations, there are many resources on the FCC’s own website about the public file. To summarize some of the last minute issues being faced by broadcasters, the Indiana Broadcasters posed 5 questions about the requirements – and our answers are shared below.

  1. If a station is starting from ‘square one’ in preparing for the Online Public File requirement that kicks in for all radio stations on March 1, what are the first couple of steps one should do immediately?
    With the March 1 deadline fast approaching for having your online file up and activated , stations should now be actively uploading the required material to the FCC file, and making sure that the information automatically uploaded by the FCC is accurate. We have already heard reports that the FCC system for hosting the online public file is running slowly, especially during business hours, making uploads difficult. That is likely to get even worse as we get closer to the March 1 deadline. So if a station has not started to get its online public file ready, it needs to do so immediately.For a station that has done nothing, it needs to start by registering to get a password for the FCC’s site that hosts the file. A station first needs to go to the “Owner Sign In” page here. Using the station’s FCC Registration Number (FRN) and password will allow it to log in and set up a passcode for the public file. If a station doesn’t know its FRN or has forgotten its password, it can call the FCC’s FRN Help Line: 877-480-3201 (Mon.-Fri. 8 a.m.-6 p.m. ET). Once the station has its passcode, a station uses that passcode to log into the FCC-hosted platform, here, and start uploading its documents.

    The FCC has a good set of Frequently Asked Questions about the online public file process here.

  2. Are all radio stations now going to be required to use an online Public File?The online public inspection file is required for all stations, commercial and noncommercial, unless the station has obtained a waiver. Few if any waivers have been granted. Unless you are a very small station with real provable issues with Internet access, I would not expect waivers at this point, so late in the game.
  3. What are the most important uploading obligations?The FCC has already uploaded many of the required documents, and those documents should be found already in the folders when you first log into the FCC’s hosting platform. The information already uploaded by the FCC includes pending applications, ownership reports, a contour map showing the stations coverage, The Public and Broadcasting procedure manual, and copies of the station’s license and renewal authorization. Look these over carefully and determine which of the FCC-uploaded documents need to be made available to the public. The FCC will upload all applications filed for your station going back many years – when only pending applications need to be made visible to the public. So you need to select which ones will be made available to the public by keeping them in the “On” position and toggling the rest to the “Off” position so that the public can’t see them. We have also heard reports that there have been instances where the FCC has not uploaded the most recent license into the authorization folder, so you should check to make sure that what has been uploaded reflects accurately your current operations.

    A station will have two sets of documents that will take a significant amount of time to manually upload. Any station that is part of a Station Employment Unit with 5 or more full-time employees needs to upload all of its Annual EEO Public Inspection File Reports, back to the start of the current renewal term for the state in which the station is located. There will likely be 4-6 of these reports, depending on the license term for the state in which the station is located.

    In addition, stations need to upload all of their Quarterly Issues Programs lists going back to the start of the license term. All stations, commercial and noncommercial, should have these reports. These are the only documents that the FCC requires to show how your station met the needs and interests of its community of license. As all of the Quarterly Issues Programs lists going back to the start of the license term need to be uploaded, you are looking at uploading more than 20 of these quarterly reports. Because there are so many, these will likely take more time than anything else to upload.

    Unlike the EEO Reports and Quarterly Issues Programs lists referenced above, the FCC has said that you only need to upload “new” political file documents (i.e. those created after the file goes live to the public). If you decide not to upload the old political documents, you must maintain all “old” political file documents in a paper public inspection file for two years from the date that the document was created. If you are thinking of no longer maintaining a main studio open during normal business hours, you may want to consider uploading all political documents now so you no longer need to maintain a paper file available to local residents.

    There are other documents commonly to be included in the file that station employees will need to manually upload. These include licensee organizational documents, contracts relating to ownership rights (e.g. options, pledges or voting proxies), and other contracts that restrict a licensee’s control over station operations (all of which are supposed to be listed on your ownership report) either need to be uploaded or included on a list of documents available for inspection upon request (with information as to how to contact someone at the station that can provide the documents within 7 days). Time brokerage or joint sales agreements need to be uploaded. And, for noncommercial stations, a list of donors contributing to support the broadcast of a specific program (as opposed to general station donors) is to be included in the public file.

    The FCC has published a complete list of all of the documents that you need to have in your file here.

  4. After uploading the documents, how long do I need to keep copies of these files? Retention periods vary for the various documents that need to be in the file. As noted above, EEO Public Inspection File Reports and Quarterly Issues Programs lists for the entire license term need to remain in the file until your next license renewal is granted. Applications need to be in the public file only until the application is granted and the grant is final (no longer subject to any appeal or review). Only the most recent ownership report needs to be in the file (as a reminder, the next biennial ownership report is due by March 2, 2018). Documents in the political file need to be maintained for two years from the date of their creation. Certain contracts and agreements (like time brokerage agreements) need to be maintained for the life of the agreement. So review the FCC’s rules on the retention of documents. In the slide deck we prepared here, many of the retention periods are provided.
  5. What advantages and disadvantages of the online file?
    The obvious advantage is that you no longer have to maintain a paper file and give physical access to your studio to anyone who wants to see the file. Of course, by putting the file online, you make the contents of the file available for review by anyone, anywhere, any time. So public interest groups and the FCC itself can use it to assess your compliance – including looking at electronic date stamps on documents to determine whether documents were timely included in the file. Late filings could become a real issue for documents like Quarterly Issues Programs lists which were rarely, if ever, reviewed by the FCC when they were kept in the paper public file. Remember, on the next renewal application, you will likely be asked to confirm that you placed all required materials in the public file on time. The FCC and the public will now know whether your response is accurate or not.

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The March 1 deadline is fast approaching. If you have not already completed the process and made your file available to the public, start working on that file soon. It will take longer than you think, so don’t run out of time to comply.

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.

FCC to Randomly Inspect TV Stations Repacked by the Incentive Auction

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

On February 5, the FCC released a Public Notice indicating that they will be inspecting approximately 60 of the over 900 TV stations changing channels as a result of the incentive auction and the repacking of the TV spectrum that took place after that auction. The FCC notice says that it is hiring contract employees who will conduct these inspections on a randomly selected set of stations to assess the equipment that they have on hand and will be replacing when moving to their new channel. The stations are seeking reimbursement from the FCC’s $1.75 billion pool of money set aside to reimburse stations for equipment that needs to be replaced to allow the stations to operate on their new channels.

The notice says that the FCC will be assessing the “existence and functionality” of the equipment for which reimbursement is sought. The FCC seems to be saying that it will be making sure that stations really have the equipment that they are seeking to replace through reimbursement funds. The “functionality” aspect may be an assessment as to whether that equipment really needs to be replaced, though the notice does not specifically make that statement. The approximately 60 stations selected at random will be used as a statistical sample to assess the reliability of repacking estimates provided by stations to the FCC. Nothing forecloses the FCC from conducting further audits in the future. So if you have a TV station that has been repacked, and the FCC comes knocking, you will know what the inspection is all about.

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.

What Issues Should Broadcasters be Considering When Taking Advantage of New Rules Abolishing Main Studio and Staffing Requirements?

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

The FCC last week published a Small Business Compliance Guide for companies looking to take advantage of the FCC’s elimination of the main studio rules and the studio staffing requirements associated with those rules (see our articles here and here summarizing the rule changes). The Compliance Guide points out that stations looking to eliminate their main studios still must maintain a local toll-free telephone number where residents of the community served by the station can call to ask questions or provide information to the licensee. The Guide also references the requirement that access to the public file must be maintained. While, by March 1, all broadcast stations (unless they have obtained a waiver) will have their public files online (see our article here), it is possible that some stations may have a remnant of their file still in paper even after the conversion date. “Old political documents” (documents dealing with advertising sales to candidates, other candidate “uses,” and issue advertising) that were created before the date that a station activates its online file for public viewing need not be uploaded but can be kept in a paper file for the relevant holding period (generally two years). If the station decides not to upload those old political documents, or closes its main studio before they have gone live with their online public file, they will need to maintain a paper file in their community of license. The Guide also mentions how Class A TV stations, which are required to show that they originate programming from their local service area, will be treated since they will no longer have a legally mandated main studio. But are there questions that the Guide does not address?

We think that there are, and that broadcasters who are considering doing away with their main studio need to consider numerous other matters. First, and most importantly, the obligation for a station to serve its local community with public interest programming remains on the books. So stations need to be sure that they are staying in touch with the local issues facing their communities, and they need to address those issues in their local programming. Addressing these issues needs to be documented in Quarterly Issues Programs lists which are the only legally-mandated documents that demonstrate how a station has served its community. There are other issues to consider as well.

Stations need to notify the FCC if they are being controlled from a location other than their transmitter or main studio locations. So, if there is no main studio, and no one is physically at the transmitter site, the FCC needs to be notified of the remote control location for the station.

EAS still needs to be monitored for the local area served by the station so the station can originate and rebroadcast required EAS tests, and respond in the event of a real emergency. The station still is required to have a chief operator designated in writing, and that operator must routinely review station logs and certify certain operational requirements for the station, including the monitoring of tower lights. A station log needs to be maintained and produced when requested by the FCC – containing information about EAS tests, tower light monitoring, and any deviations in operation of the station from the authorized parameters specified by the station license.

Obviously, stations also need to monitor and respond, if appropriate, to complaints about their operations, particularly technical complaints about the station not operating in compliance with its licensed facilities. And they need to be ready to respond to requests for political advertising time from local candidates, especially Federal candidates, because all commercial stations have an obligation to give Federal candidates reasonable access to all classes and dayparts of time on a station – even if that station has no local studio or local employees.

There certainly may be other issues that are not on this list. But this list makes it clear that a licensee can’t just close its main studio and get rid of all of its local employees and ignore its community. There are still has many FCC obligations that require licensees to keep in touch with what is going on at their stations and in their local service areas. So discuss these issues with counsel and engineering consultants to make sure that you won’t miss anything when taking advantage of these rule changes.

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.

January Regulatory Dates for Broadcasters

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

The holidays are over, and while the regulation never stops, it is time to once again buckle down and look at what is on the horizon for broadcasters. While, in the next few days, we will have our typical look ahead at the broadcast regulatory agenda in Washington for the New Year, we also need to look at more immediate deadlines in the month of January. As we are at the beginning of a calendar quarter, the tenth of the month is the date for broadcasters to add their Quarterly Issues Programs Lists for the just completed quarter to their public file – whether it be the online public file for TV broadcasters and the many radio groups that have already converted to the online file, or into the paper file for those radio broadcasters waiting until the last minute before making the conversion to the online file as required by March 1. These Quarterly Issues Programs lists are the only FCC-required documents showing how a broadcaster has met its public interest obligations to serve their communities and, as we have written many times (see, for instance, here and here), the FCC considers them to be very important, and thus have led to numerous substantial fines for broadcasters who have not met the FCC’s requirements.

TV broadcasters also need to file their Children’s Television Reports with the FCC by the 10th of the month, and place information into their public file about how they complied with the commercial limits on children’s television programming. As we have written before (see our articles here and here), these, too have been the subject of numerous FCC enforcement actions when the Commission becomes aware that the reports were not filed, or were submitted late. So be sure to timely file these reports with the FCC, and place the information about compliance with the commercial limits in your online public file by the deadline.

TV stations that are being repacked to a new post-auction channel also must file their quarterly FCC Form 2100, Schedule 387 Transition Progress reports by the 10th of January. See our article here about the initial FCC reminder on these reports.

For AM broadcasters, the second window for filing for new FM translators to pair with their AM stations is open from January 25 through January 31. This window is for Class A and B AM stations who were not allowed to file in the window that opened earlier this summer but only if the stations did not buy a translator and use a 250-mile waiver in the window that the FCC had opened for moving translators last year. See our article here on this upcoming window. We would also expect to begin to see applications granted for many of the FM translator applicants that filed long-form applications last month for their translator applications filed in the window earlier this year for Class C and D AM stations. And keep in mind that, in connection with the upcoming window, there will be a freeze on the filing of minor change applications for FM translators, FM booster stations and low power FM stations from January 18-31.

The effective date of the elimination of the FCC’s main studio rules is January 8 (see our article here). So we would expect some broadcasters to begin to take advantage of the flexibility that this rule change provides as to the location and staffing of their station operations. Obviously, station operators still need to serve the public interest in their communities (and demonstrate it in the Quarterly Issues Programs Lists mentioned above), but their local studio and staffing requirements will disappear as of January 8.

For broadcasters who stream their signals on the Internet and other webcasters, as we wrote here, January 1 brings higher royalties to be paid to SoundExchange, as the royalties set by the Copyright Royalty Board at the end of 2015 for the period from 2016 through the end of 2020 have been adjusted for inflation. Also, under many of the royalty regimes in place under the CRB decision, minimum fees for the year must be paid to SoundExchange by the end of the month.

As in any month, these are just some of the highlights on the regulatory calendar. Every station should be on alert to make sure that they address those compliance issues that need to be addressed, when they need to be addressed, to avoid regulatory issues down road.

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.

Request Filed for Rehearing of Court Decision on Multilingual EAS Alerts

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

As we wrote here, a three-judge panel of the US Court of Appeals for the District of Columbia recently reached a 2-1 decision upholding the FCC’s decision to not impose obligations on broadcasters to broadcast multilingual EAS alerts. However, MMTC, the public interest group seeking the imposition of the requirements, has asked for what is called a “rehearing en banc,” asking that all the Judge of the Court review the decision of the original panel. The request for the review relies heavily on the opinion of the dissenting judge from the initial panel, who argued that the FCC has twice promised to look at ways to implement multilingual EAS alerts in some form or another, and twice been unable to gather enough information to be able to come to any decision. As the FCC’s most recent decision was based on a premise that it would again seek to gather such information, the dissenting judge asked why the FCC should be trusted to come to a decision now, when it had not been able to do so before.

The full court has called for responsive briefs, where presumably the difficulties in implementing such alerts will be discussed (see our article here). But broadcasters should be watching this request for review, as it raises serious issues that may be considered by the court.

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.

Second Window for AM Stations to Seek New FM Translators to Open January 25-31

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David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

On December 4, the FCC released the Public Notice setting out the instructions for the final window for AM stations to get exclusive access to FM translator stations. This window, to be open in late January, is primarily for Class A and B AM stations that were not permitted to file in this summer’s window when Class C and D AM stations could file for new FM translators. But any AM licensee who did not file in this summer’s window, and who also did not acquire a translator last year during the period when AM licensees could acquire existing FM translators and move them up to 250 miles to rebroadcast their AM station, can also participate.

The final window will be open from January 25 through January 31. As in this summer’s window, mutually exclusive applications filed during that window will be resolved by an auction if they cannot be resolved by settlements or engineering solutions. Resolving mutually exclusive applications can be done only by filing settlements or technical amendments that comply with the minor change rules – meaning that the amendments can only amend to different sites on the same channel, or on channels three up and three down from that initially specified, or a channel precluded from use by the initially proposed channel because of Intermediate Frequency interference. Applicants cannot amend to any vacant channel that may be available in their area. In this summer’s window, most applicants were able to avoid mutual exclusivity with other applicants – but not all (as witnessed by the mutually exclusive groups that had until last week to settle their differences through dismissals for no more than out-of-pocket expenses or by engineering amendments – see our article here).

Like in this summer’s window, this Public Notice is complicated, as the FCC is treating these applications as those filed in preparation for an auction (see our post on the instructions for the summer window here). Applicants need to read this notice very carefully to avoid traps – traps which include having conversations with mutually exclusive applicants outside a future settlement window when engineering solutions to resolve conflicts between applications filed in the window will be allowed. There actually is a rule against “prohibited communications” outside of the settlement window – meaning that once an application is on file, mutually exclusive applicants can’t talk to each other about their applications except during these designated settlement windows.

As part of the Public Notice, the FCC also announced a filing freeze on any technical changes to existing translators so as to freeze the database that applicants will use to prepare their applications. The freeze will be in effect from January 18 through January 31.

In short, read these instructions carefully, and go over them with your attorney and engineer to make sure that you don’t inadvertently overlook some requirement that would result in your missing this last opportunity reserved for AM licensees to get a new FM translator.

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.