January Regulatory Dates for Broadcasters – The Shutdown Does Not Put Everything on Hold

David Oxenford - Color
David Oxenford

By: David Oxenford, Wilkinson Barker Knauer LLP

We typically publish our article about upcoming regulatory dates before the beginning of each month, but this month, the looming FCC shutdown and determining its effect on filing deadlines pushed back our schedule. As we wrote on Friday, the effect of the shutdown is now becoming clear – and it has the potential to put on hold a number of the FCC deadlines, including the filing of Quarterly Children’s Television Reports due on January 10 and the uploading of Quarterly Issues Programs lists, due to be added to station’s public inspection files on January 10. The FCC-hosted public inspection file database is offline, so those Quarterly Issues Programs lists can’t be uploaded unless the budget impasse is resolved this week. Certifications as to the compliance of TV stations with the commercial limits in children’s television programs would also be added to the public file by January 10 – if it is available for use by then. While these and other dates mentioned below may be put on hold, there are deadlines that broadcasters need to pay attention to that are unaffected by the Washington budget debate.

We note that the FCC’s CDBS and LMS databases are up and operating, though most filings will be considered to be submitted the day that the FCC reopens. As the databases are up and operating, many applications can be electronically filed – so TV stations might as well timely upload their Children’s Television Reports on schedule by January 10, to avoid any slow uploading that may result from overloading of the FCC’s system as the FCC reopens. Other FCC deadlines are unaffected by the shutdown – most notably, as we wrote on Friday, those that related to the repacking of the TV band following the TV incentive auction. The FCC has money to keep its auction activities operating so staff are working to keep the repacking on track. Deadlines coming up for the repacking include a January 10th deadline for stations affected by the repacking to file their Form 387 Transition Progress Report. Auction deadlines proceed whether or not the FCC is otherwise open for business.

FCC filing deadlines in certain rulemaking proceedings may well also be on hold if the shutdown continues. Deadlines for pleadings will be pushed back to the day after the day the FCC resumes its normal operations. Comments are due in the FCC’s proceeding to determine what to do with Class A “clear channel” AM stations on January 22 (see our summary here), but these could be affected if the shutdown persists.

Even the FCC meeting scheduled for January 30 could be in jeopardy if the shutdown runs through the end of the month. That meeting is scheduled to feature the adoption of the FCC’s order abolishing the FCC Form 397 Mid-Term EEO Report (see the draft order here, released last week) and the start of a rulemaking proceeding to make some changes in the FCC’s standards for deciding between mutually exclusive applications for new noncommercial broadcast stations, including LPFM facilities (see the draft order here).

Early February brings the obligation for EEO Public Inspection File Reports to be uploaded to the public file of Commercial and Noncommercial Full-Power and Class A Television Stations and AM and FM Radio Stations in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma that are part of an Employment Unit with 5 or more full-time employees. Stations with those due dates should be prepared to upload their Public File Reports by February 1 if the FCC’s Public Inspection File database is up and operating by then.

Deadlines not affected by the shutdown include ones imposed by other government agencies. For instance, the Copyright Office and Copyright Royalty Board are not affected by the shutdown. We would expect that the CRB will this month be issuing its invitation for interested parties to file Petitions to Participate in the next proceeding to determine the royalty rates to be paid to SoundExchange for the digital performance of music by webcasters (see our article here). As we wrote here, with the increase in digital performances of broadcast stations through Alexa and other smart speakers, it is more important than ever for broadcasters to secure a reasonable royalty rate for the streaming of their signals. This proceeding will determine the royalty rates for Internet radio for 2021-2026.

Upfront minimum fee payments will also be due under various music license agreements by the end of the month. This would include the royalties to be paid to SoundExchange under most of the current royalty deals. For most webcasters, a payment of $500 per each channel streamed is due by the end of the month.

No doubt, other deadlines will arise this month, particularly if the government shutdown is resolved. As always, we have highlighted here just some of the more notable regulatory deadlines. Check with your own station’s counsel for more information about deadlines that may apply to your own stations.

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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