All posts by David Oxenford

Recordkeeping Rules for Third-Party Fundraising by Noncommercial Broadcasters to be Effective November 13, 2017

David Oxenford - ColorBy: David Oxenford, Wilkinson Barker Knauer LLP,
BroadcastLawBlog.com

In July, we wrote about the effective date of the FCC’s new rules allowing non-CPB noncommercial stations to interrupt their normal programming to raise funds for third-party charitable and non-profit organizations (we wrote here about the decision itself), for up to 1% of their total airtime. In July, we noted that the new rules on the recordkeeping requirements about these fundraising efforts had not yet gone into effect, as they needed to be approved by the Office of Management and Budget under the Paperwork Reduction Act. The Federal Register has announced that this approval has been received and the paperwork rules will go into effect on November 13.

The new rules require on-air disclosures at the beginning and end of any fundraising appeal where the station tells its audience that the money is going to a third-party, not to the station. That announcement must be made at least hourly for longer fund-raising appeals. In addition, the station must maintain in its public file the following information:

  • the date, time, and duration of the fundraiser;
  • the type of fundraising activity;
  • the name of the non-profit organization benefitted by the fundraiser;
  • a brief description of the specific cause or project, if any, supported by the fundraiser; and
  • to the extent that the station participated in tallying or receiving any funds for the non-profit group, an approximation of the total funds raised

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 membership.

Complaints Filed Against TV Stations for Public File Violations on Political Issue Ads

David Oxenford - ColorBy: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

Last week, the Campaign Legal Center and Issue One, two political “watchdog” organizations, filed FCC complaints against two Georgia TV stations, alleging violations of the rules that govern the documents that need to be placed into a station’s public inspection file regarding political “issue advertising” (see their press release here, with links to the complaints at the bottom of the release). FCC rules require that stations place into their public files information concerning any advertising dealing with controversial issues of public importance including the list of the sponsoring organization’s chief executive officers or directors. Section 315 of the Communications Act requires that, when those issues are “matters of national importance,” the station must put into their public file additional information similar to the information that they include in their file for candidate ads, including the specifics of the schedule for the ads including price information and an identification of the issue to which the ad is directed. The complaints allege that, while the stations included this additional information in their public file, the form that was in the public file stated that the sponsors of the ads did not consider the issues to be ads that addressed a matter of national importance, despite the fact that they addressed candidates involved in the recent highly contested election for an open Congressional seat in the Atlanta suburbs.

Section 315(e)(1)(b) states that an issue of national importance includes any advertising communicating any message directed to “any election to Federal office.” The stations against which the complaints were filed used the NAB form that asks political and issue advertisers to provide the information necessary for the public file, as do many broadcast stations. The FCC does not require that the NAB form be used but, as it is designed to gather the required information, many stations use it. Some simply take the form and place it into their public file with a copy of their advertising order form specifying the rates and advertising schedule and assume that their FCC obligation is complete. But, here, the complaints allege that the advertisers, in response to a question on the form that asks whether the advertising was directed to an issue of national importance, checked the box that said that the ad was not a Federal issue ad despite the fact that the ad addressed candidates or issues involved in the election for the open Congressional seat. The form was apparently then simply put into the public file in that way without additional notation or correction by the station.

So, basically, the complaints do not appear to allege that the stations failed to put information into their file sufficient for the public to evaluate who was sponsoring the ads, what the sponsors were paying, or how many ads were being run – information only required for Federal issue ads (ads of national importance) and not ads that addressed local issues. Instead, the complaints allege that the stations were in violation of the rules because a box on a form that is not even required by the FCC was checked incorrectly.

These complaints seem to harken back to a set of similar complaints resolved by the FCC last year, admonishing a number of TV stations for not inquiring more when incomplete information was provided by issue advertisers on a political disclosure form (see our article here on that decision). The new Commission, as one of its first acts, rescinded that decision seemingly because it was made by the Media Bureau and not the full Commission (see our article here). Since the rescission, the FCC has not issued further guidance on the issues raised in the complaints. Perhaps these complaints will trigger action on those pending matters from the FCC. But, regardless of the outcome, the complaints teach broadcasters two things – first, they need to be questioning the information provided by issue advertisers on their advertising disclosure forms to make sure that information is accurate and complete, and second, that stations political files are being watched. With the political file being online for all TV stations and for big market radio stations (and, by March 1 of next year, for all radio stations – see our article here), any of these watchdog organizations can scan the public file for inconsistencies and inaccuracies from the privacy of their own home or office, without the station ever knowing. This places a premium on stations being complete and accurate with all of their disclosures.

For more information about political advertising issues, see our Guide to Political Advertising Issues, here.

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 membership.

FCC Sets August 28 Deadline for Updates to ERTS Reporting System

David Oxenford - ColorBy: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

We wrote earlier about the upcoming EAS Nationwide Test and the need for broadcasters to make sure that their EAS equipment is operating in compliance with all FCC rules. The FCC itself has now released its own Public Notice detailing the many things that broadcasters need to check at their facilities before the upcoming test, including the need to update their information in the ERTS EAS reporting system by August 28. The FCC also issued a new EAS Handbook detailing broadcaster’s EAS obligations.

The Public Notice notes that the EAS test will focus on the IPAWS internet-based system through which the common alerting protocol (“CAPS”) alert is sent – a system that was mandated a few years ago as an additional way for alerts to be conveyed to stations to supplement the traditional “daisy-chain” of alerts being passed from one broadcast station to another (see our articles here, here and here). The internet-based system will allow both English and Spanish versions of the Nationwide alert to be transmitted and will also provide text of the message that can be converted to a video crawl on TV screens.

The Public Notice provides a list of potential EAS issues that each station should review to make sure that their EAS systems are operating in compliance with the rules. The Notice also sets August 28, 2017 as the deadline for all stations to complete their “2017 ERTS Form One” setting out information about each station’s EAS decoders, encoders or combined units. ERTS is the system that reports on the results of the EAS tests. Test results will need to be filed on Form Two in ERTS on September 27 before midnight, with more detailed information about the results of the test to be submitted in a Form Three by November 13, 2017. The FCC warns stations to start looking at these forms now – particularly the one due on August 28 – to make sure that your information is updated and accurate and you are ready for the September test. As we suggested in our earlier post, this public notice makes clear that now is the time for all stations to review their EAS equipment, and the ERTS Forms, to get ready for the Nationwide Test.

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 membership.

FCC Releases Tutorial on FM Translator Auction Window for AM Stations

David Oxenford - ColorBy: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

On July 13, The FCC released an online tutorial for the upcoming windows for filing for FM translators for AM stations. The first window will run from July 26 until 6 pm E.T. on August 2, where Class C and D AM stations that did not receive a translator in last year’s 250-mile waiver windows can file for a new FM translator to rebroadcast their AM station. We wrote about that window here.

The online tutorial may be accessed here.

The tutorial references various FCC filing guides to assist applicants in filing their applications. The Public Notice announcing the Tutorial also makes clear that, if an applicant has a pending application to acquire an AM station during the window, the proposed assignee can file the application for the new translator, presumably to be granted upon the acquisition of the station (as these translators are tied to the AM on a permanent basis). The current owner of the station and the proposed buyer cannot both file – only one application per station will be permitted. AM stations planning to take advantage of this window should be well into the process of preparing their applications for the window that opens in less than 2 weeks.

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 membership.

FCC Officially Starts Proceedings to Abolish Main Studio Rule and Review All Other Broadcast Rules

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

As expected, at its monthly open meeting May 18, the FCC started two proceedings of particular importance to broadcasters. The first looks at the abolition of the main studio rules. The second asks for comments on all of the other rules affecting broadcasters and other media companies to see which are ripe for appeal. For the most part, the proposals as adopted mirrored the draft orders released for public review back at the end of April, which we summarized here.

The proposal to review all media rules – referred to as the Modernization of Media Regulation – will look at all media-related FCC rules with the idea of eliminating or modifying those that no longer make sense in the modern media environment. Only the multiple ownership rules, already under review in separate proceedings (see our posts here, here and here) are excluded from this review. Comment dates for proposals to change specific rules are due by July 5, with replies due August 4. The two Republican commissioners supported this proposal. Commissioner Clyburn, the FCC’s lone Democrat, dissented from the adoption of the Public Notice launching the inquiry, not necessarily because she is opposed to review of existing rules, but because she felt that the notice presupposes that the public interest can only be achieved by abolishing rules that limit industry operations. She suggests that many FCC rules remain important – including EEO rules, Biennial Ownership Reports, and certain rules governing access to cable programming. The Republican commissioners, on the other hand, point to the efficiencies that can be gained by abolishing rules that no longer make sense, or which require filings that serve no particular purpose (see Commissioner O’Rielly’s statement here). No doubt, these differing perceptions of the rules will be reflected in comments filed by various parties in this proceeding.

The proposal to abolish the main studio rule very closely tracked the draft order that we summarized back in April, here, asking a number of questions about the impact that the abolition would have on station’s ability to serve their communities. A few additional questions were added to the final order, the most substantive of which dealt with the requirement that would be retained that stations maintain local telephone numbers that local residents can call to address issues about station operations or to respond to community needs and emergencies that may arise. Included among the new questions was the question of whether the phone line needed to be manned during all business hours, or perhaps even during all hours of operation of the station. Even if a live person is not required to answer the phone, the FCC asked whether there should be some requirement that all calls be answered within a given time frame, principally so that no emergency go unreported. In effect, if adopted, these would be new requirements that a broadcaster giving up its main studio would have to live with.

The apocryphal story of the station in Minot, North Dakota where no one was home when a train carrying dangerous chemicals spilled was brought up in one Commissioner’s comments, suggesting that a specific rule on response time was needed – even though the owners of that station have repeatedly said that the story was not true and the station was covering the emergency even though local authorities, working with some outdated contact list, didn’t know where to call. Regardless of the truth of that story, the issue remains the one that appears to be the most controversial on this issue – how will a station with no physical local presence maintain ties with its community. Broadcasters and other interested parties can file comments thorough a date to be announced 30 days after the Notice of Proposed Rulemaking is published in the Federal Register, with reply comments due 15 days later.

These two proceedings again demonstrate that Chairman Pai is serious about his deregulatory agenda for the FCC. Interested parties should comment on these proceedings and stay involved so that their viewpoints can be reflected in the FCC’s ultimate decisions – and in connection with the next deregulatory proposals that may arise from the Modernization of Media Regulation proceeding.

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 membership.

5 Questions on the Meaning of the FCC’s Recent Ruling on Online Recruiting – How Does it Change a Broadcaster’s EEO Obligations?

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

The FCC recently issued a declaratory ruling (which we summarized here) addressing the requirement that broadcasters widely disseminate information about all of their job openings in such a way as to reach all of the groups within their communities. The recent FCC decision stated that a broadcaster can now rely solely on online sources to meet the wide dissemination obligation. In the past, the sole reliance on online sources would have brought a fine from the FCC, so this is a big change for broadcasters – one which recognizes the realities in the world today as to where people actually go to find information about job openings.

This decision does not end all other EEO obligations imposed by the FCC rules. The Indiana Broadcasters Association recently asked me 5 questions about that new decision to highlight some of the other obligations that still arise under the FCC’s EEO rules. Here is that discussion of the continuing obligations under the EEO rules:

1. The FCC recently issued a Declaratory Ruling about how Job Openings should be posted. What’s changing?

The FCC is now permitting broadcasters (and cable companies) to meet their obligation to widely disseminate information about their job openings solely through the use of online recruitment sources. In the past, broadcasters were fined if they did not, in addition to online sources, use recruitment sources such as community groups, employment agencies, educational institutions and newspapers to solicit candidates for virtually all open positions at any station. Under the FCC’s new ruling, a broadcaster can use online recruitment sources as their sole means of meeting their obligation to widely disseminate information about job openings, as long as the broadcaster reasonably believes that the online source or sources that it uses are sufficient to reach members of the diverse groups represented in its community.

2. Are there still Equal Employment Opportunity requirements in place from the FCC?

This ruling does not abolish all EEO requirements. In addition to a general obligation to not discriminate in hiring and other employment practices, the FCC rules set out a three-prong EEO outreach program for broadcasters. The ruling addresses only the first prong – the obligation to widely disseminate information about virtually all job openings at a station. The other two prongs of the EEO program are undisturbed by the FCC’s recent ruling.

The second prong of the FCC’s EEO rules requires that broadcasters notify a community group about job openings at the station if the community group specifically asks to be notified of such openings. Stations need to continue to provide such notifications and to publicize the fact that community groups can ask to be included on the list of groups getting notifications.

The third prong of the EEO program for broadcasters is the obligation to do “non-vacancy specific outreach” – the menu options of efforts stations need to undertake to educate their community about the jobs available at broadcast stations and the training necessary to fill those jobs, as well as the training of employees and others to assume new responsibilities at broadcast stations. These menu options include activities such as internship and mentorship programs, speaking before community groups about job openings, providing scholarships to those interested in broadcasting, working with educational institutions to educate their students about broadcast jobs, training programs to prepare existing employees to assume new responsibilities and similar programs.

Broadcasters also need to continue to self-assess their program. If the sources that they are using for recruiting do not bring employment candidates from diverse sources, they need to consider changing the mix of recruitment tools that they are using. This obligation to review the success of their EEO outreach is not changed by the recent ruling.

3. Should a station still participate in State Association-sponsored Career Fairs, as a way to bolster EEO outreach?

Yes. As set forth in response to the last question, stations still need to do non-vacancy specific outreach efforts to inform members of their communities about broadcast jobs. One of the menu options available to meet that obligation is the attendance at job fairs by management-level employees who are involved in the hiring process. If station employees attend 4 job fairs in a two year period, they get one credit toward meeting their obligations (smaller stations need 2 credits in each two-year period measured from their license renewal filing date to meet their non-vacancy specific outreach requirements, larger stations in larger markets need 4 credits in a two-year period).

4. Any practices that can be curtailed because of the new ruling?

The new ruling allows a broadcaster to meet its wide dissemination obligation for all of its job openings if they use a single online recruiting source to publicize each opening, if the broadcaster reasonably believes that the online source that it is using will reach members of all groups within its community with information about its openings. That means that the broadcaster need no longer publish ads about job openings in the local newspaper and need no longer reach out to community groups to publicize job openings (except for those community groups that specifically asked to be notified about openings under “Prong 2” of the FCC’s EEO outreach obligations). However, the FCC suggested that it would be a good thing if broadcasters continued to reach out to community groups with information about job openings and to broadcast information about those openings on their own stations – but those outreach efforts are no longer mandatory.

5. Do you see any additional EEO-related changes on the horizon?

The FCC is about to commence a wide-ranging review of all of its rules applicable to broadcast stations looking to determine which ones are no longer necessary. Some have suggested that the remaining FCC EEO outreach obligations are no longer necessary. The FCC, under its statutory obligation to assess the character of all broadcast applicants and licensees, can always act against a station owner if the EEOC or state employment agencies find that the station has actually discriminated in its hiring or other employment practices.

Whether the FCC in fact goes further to deregulate EEO remains to be seen, but several commentators have suggested that the FCC divest itself of responsibilities where there is another government agency with more expertise. Thus, some think that, as there is an EEOC to deal with employment matters and other government agencies who deal with labor and other occupational issues, the FCC ought to reduce its duplicative efforts in this area.

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 membership.

May Regulatory Dates for Broadcasters – Incentive Auction, ATSC 3.0 and Broadcast Deregulation

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

May is one of the few months without the normal list of quarterly filings and EEO public file reports. But, just because there are none of these regular filings due, that does not mean that the month will be a quiet one for broadcasters on the regulatory front. In fact, far from it. There are obligations for television broadcasters in connection with the incentive auction and the subsequent repacking of the TV spectrum, an FCC meeting that will start two proceedings that could dramatically reduce the regulatory burdens of broadcasters, and comments due on the FCC’s proposal for the next generation of television broadcasting.

In connection with the incentive auction, on May 11, stations that are relinquishing their channels in exchange for compensation from the FCC must file an FCC Form 1875 detailing where payments for that relinquishment will go. After that information is received and processed, the FCC will send an email to the payee asking for bank account information that must be entered into the “CORES Incentive Auction Financial Module.” Stations looking for their auction payouts need to observe these details so the FCC knows where to send their money.

In addition to these steps to ensure that relinquishing stations are properly compensated, those stations that are remaining in operation, but which will have a change in channel as part of the FCC’s compression of the TV band, may elect to forego the reimbursement of their expenses in exchange for a waiver of the TV service rules to allow these stations to offer a non-broadcast service. What exactly this means is open to some question, as all TV stations can already offer some non-broadcast services through the excess capacity provided by their digital channel. Whatever it may mean, stations choosing to take advantage of this provision of the legislation that authorized the auction must file, by May 15, a statement of intent to rely on this provision. The FCC has been urging stations thinking about such filings to contact the FCC to discuss their plans before submitting the request. For more information about upcoming deadlines for stations that are surrendering their licenses or ones that are being repacked, see the FCC’s Incentive Auction Closing and Channel Reassignment Public Notice, here.

The capacity to expand their offerings of non-broadcast services is one of the benefits for TV broadcasters advanced by advocates of the new ATSC 3.0 transmission standard. The transition to the new standard was much discussed at last week’s NAB Convention, and we are sure to write more about it on these pages. But the first step is adopting rules for the service. The FCC’s Notice of Proposed Rulemaking, available here, sets out those proposed standards and asks a number of questions about the regulations that should apply both to the conversion to the new transmission system and to the actual operations of stations once they convert to the new standard that is adopted. Comments on the FCC’s Notice of Proposed Rulemaking are due on May 9, with replies to be submitted by June 8.

Also up for consideration in May, at the Commission’s May 18 meeting, are the two steps toward the further deregulation of broadcasting that we wrote about here. One is a Notice of Proposed Rulemaking seeking to eliminate the main studio rule. The second is a Public Notice, starting the FCC’s Modernization of Media Regulation Initiative, looking at what broadcast rules should be revised or eliminated. Many broadcasters will be interested in commenting on these matters, assuming that they are adopted as proposed in the draft documents released last week.

As always, there are many other regulatory deadlines that we haven’t covered here, including some that apply to specific stations. So pay attention to those deadlines that apply to your operations to make sure that you remain in compliance with the rules that exist – and take the opportunity to comment on proposals to change rules that may impact your operations.

For more information about other upcoming regulatory dates, see our Broadcasters’ Regulatory Calendar, here.

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 membership.

FCC Finds Online Sources Satisfy EEO Requirements for Wide Dissemination of Job Openings by Broadcasters and MVPDs

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

The FCC on Friday (4/21) released a declaratory ruling making it significantly easier for broadcasters and MVPDs to meet their EEO obligations imposed by FCC rules. These rules for broadcasters and MVPDs (cable and satellite TV providers) require that these businesses, when filling job openings, widely disseminate information about the openings in a manner that is expected to reach members of all community groups in the area from which employees are likely to be found. In the past, under the rules adopted in 2002, the Commission has not allowed recruitment to be conducted solely through online sources. Instead, the 2002 order suggested that the daily newspaper would, in many communities, be an outlet that would reach the diverse groups within a community – though most broadcasters supplemented newspaper publication with notifications to numerous schools, community organizations, educational institutions and others who might possibly refer employee candidates. Stations that relied solely on online sources faced substantial fines from the FCC (see the cases we summarized here and here).

The decision on Friday recognized that we are in a different world than when these rules were adopted almost 15 years ago. Now, most recruiting is done online. Thus, in response to a petition I filed on behalf of clients (summarized here), the FCC determined that a broadcaster or MVPD can rely solely on online sources in its recruiting. It no longer needs to use the newspaper, reach out to community groups or even use its own airwaves to give notice of job openings to satisfy the wide dissemination obligation. The FCC encouraged stations to continue to use some of these outreach methods, but it is no longer required. The broadcaster or MVPD needs to be reasonable in picking online sources that are likely to reach the members of various groups within its community – though the decision as to exactly which online employment sources to use will be left to the good-faith discretion of the broadcaster or MVPD. The Commission went so far as to say that, depending on the circumstances, a single online source could reasonably be found to be sufficient.

Note that this ruling does not change any other EEO requirement. Even though broadcasters no longer need to reach out to community groups to meet the requirement of wide dissemination of job openings, a separate “prong” of the FCC’s EEO policy still requires that broadcasters notify community groups of job openings when a group specifically asks to be notified of such openings. So all outreach to community groups is not over. Also, this ruling does not disturb the requirement that broadcasters engage in efforts to educate the public about broadcast employment opportunities and how to find those opportunities and to train for them. This requirement for non-vacancy specific outreach requires that a broadcaster conduct a certain number of menu options every two years – things like attending job fairs, participating in internship or scholarship programs and having employees speak at educational institutions or before community groups about broadcast employment.

Nor does the ruling lessen the paperwork requirements of completing an annual EEO public file report and otherwise retaining information about a station’s hiring practices. Random EEO audits will also continue (see our post here about the last EEO audit notice). For more about the FCC’s EEO rules, see our posts here and here. Even though some EEO obligations must continue to be observed by broadcasters, this is one step supported both by broadcasters and members of the minority community to bring FCC-required recruiting practices into the modern day.

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 membership.

FCC to Change Noncommercial Ownership Form

Commission to eliminate need for social security numbers from board members of noncommercial licensees for Biennial Ownership Report.

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

Last week, we wrote about two of the three broadcast items to be considered at the FCC meeting on April 20. We wrote here about the draft order to restore the UHF discount and here about the relaxation of the restrictions on fund-raising for third parties by noncommercial stations. The third item, also related to noncommercial licensees, is the resolution of the long-simmering dispute about whether or not to require that those individuals with attributable interests in noncommercial broadcast stations – officers and board members – to provide their Social Security Numbers or other personal information to the FCC to obtain an FCC Registration Number – an FRN. The draft order released last week indicates that the FCC will eliminate that requirement at its April 20 meeting.

The obligation to obtain an FRN was adopted so that the FCC could comprehensively track the ownership of broadcast stations and determine the interests of individual parties across the broadcast media nationwide. This was principally done for purposes of assessing the diversity of ownership of the media – including by minorities and women. By making each attributable owner get their own FRN, interests across the broadcast media landscape could be tracked with greater precision. However, objections were raised when the FCC proposed to apply this obligation to noncommercial broadcasters, requiring that officers and board members provide their Social Security Number or other personal information to obtain an FRN. Despite these objections, the previous Commission ordered noncommercial broadcasters to provide this information, going so far as to suggest that attributable interest holders who did not provide the information necessary to obtain an FRN could be sanctioned. See our articles here and here. The current FCC under Chairman Pai rescinded the decision of the Media Bureau upholding the obligation (see our post here) – leading to the draft order to be considered at the April 20 meeting.

Noncommercial broadcasters have argued that this information is not as necessary as for commercial broadcasters in assessing diversity, as noncommercial stations don’t have owners in the traditional sense of the word. Their officers and board members don’t have an economic interest in the business success of the station. In fact, those with attributable interests in noncommercial stations often don’t become officers or directors because they are interested in radio or television at all, but instead because they are interested in a noncommercial entity’s broader purpose. For instance, a member of the board of a state university may become a board member because of his or her interest in some academic department, or because of the athletic teams at the university and not even know when appointed to the board that among the university’s holdings is a broadcast station. Some board members may become members by being an elected official – e.g. state governors are often ex-officio members of state university boards. The fear is that, by requiring that these individuals provide personally sensitive information, they may be discouraged from participating in these nonprofit endeavors. A majority of the current Commission appears to have accepted that reasoning and has now teed up the concept of allowing noncommercial stations to obtain Special Use FRNs (“SUFRN”) for these individuals – which will not require personally identifiable information or Social Security Numbers.

The FCC did note, however, that these individuals need to use the same SUFRN for any broadcast interests that they may have. So if an individual sits on the board of multiple broadcast licensees (e.g. the governor of a state who may be on the board of several state universities that are the licensee of broadcast stations), that individual must provide the same SUFRN to each licensee. Also, if an attributable party has an interest in a commercial broadcast station and obtains an FRN in connection with the ownership report of that station, they need to use that FRN on the ownership report of the noncommercial licensee. Noncommercial licensees thus will still need to survey their officers and board members to make sure that they don’t have other broadcast interests and to coordinate with other licensees in state systems to make sure that the same SUFRN is used.

Biennial ownership reports for all stations, commercial and noncommercial, are due on December 1 of this year, reporting on the ownership of the licensee as of October 1. While this order, if adopted on April 20, will make information collection easier for noncommercial licensees, they should still start planning their information collection process for getting information about the broadcast interests of board members in time for the December 1 deadline.

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 membership.

Oxenford: Radio Ownership Subcaps on the Table for FCC Review

David Oxenford - ColorBy: David Oxenford, Wilkinson Barker Knauer, LLP
www.broadcastlawblog.com

We’ve written (see, e.g. our articles here, here and here) about the pending petitions asking the FCC to reconsider decisions reached last year to end the UHF discount, to leave the TV local ownership rules in place and to make attributable new TV Joint Sales Agreements, and to not adopt any change in the FCC radio ownership rules in “embedded markets.” Recently, that list of items on the table before the FCC has expanded, with a number of radio groups making a concerted push to change the FCC rules on ownership “subcaps” – limiting the number of AM or FM stations that can be owned in a single market. Thus, while a broadcaster can own up to 8 radio stations in the largest markets, no more than 5 can be either AM or FM. In the smallest markets, broadcasters can own up to 3 as long as they do not exceed half the stations in a market, but only 2 can be of the same service. The new petitions seek to eliminate those subcaps, allowing owners to own up to the maximum number of stations in a market without regard to whether those stations are AMs or FMs.

A group of radio broadcasters have filed a letter with the FCC asking that these subcaps be abolished, citing the change in the media landscape in the 20 years since the rules were adopted. A more detailed economic study was submitted by a Syracuse radio broadcaster, here, showing that the growth in digital and mobile advertising to local companies already exceeds the share of advertising enjoyed by radio generally, and is likely to grow in the coming years. Google alone, according to this analysis, has as much local advertising in Syracuse as the entire radio industry. To compete against these growing new media entities that are eating into local advertising dollars, the radio broadcasters have asked that they be allowed to own more radio stations in a single service – AM or FM – than currently allowed.

As the FCC has told the Court of Appeals (where some parties filed an appeal of last September’s ownership decision) that they plan to review the entire ownership decision, not just those areas singled out by petitions for reconsideration, the radio ownership issue is now before the FCC. There has been some limited grumbling against these new proposals, some observers suggesting that AM radio would be further imperiled if big broadcasters gave up their AM holdings to pursue the ownership of more FM stations. Of course, if that were to happen, there would be nothing stopping ethnic programmers and others who are making more and more uses of the AM spectrum to acquire more AM stations, perhaps at lower prices, to pursue their innovative programming. This is an issue that will be debated in the coming months, as broadcasters adjust to the reality that all of the old rules are now subject to reexamination by this new FCC.

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).

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