By: David Oxenford, Wilkinson Barker Knauer LLP
Annual Regulatory Fees; Nationwide EAS Test; Comment Dates on FM Translator Interference, Audio Competition, Children’s Television Requirements, and Reimbursement for LPTV and FM Repacking Costs; and More
While September is one of those months with neither EEO reports nor Quarterly Issues Programs or Children’s Television Reports, that does not mean that there are no regulatory matters of importance to broadcasters. Quite the contrary – as there are many deadlines to which broadcasters should be paying attention. The one regulatory obligation that in recent years has come to regularly fall in September is the requirement for commercial broadcasters to pay their regulatory fees – the fees that they pay to the U.S. Treasury to reimburse the government for the costs of the FCC’s operations. We don’t know the specific window for filing those fees yet, nor do we know the exact amount of the fees. But we do know that the FCC will require that the fees be paid before the October 1 start of the next fiscal year, so be on the alert for the announcement of the filing deadline which should be released any day now.
September 20 brings the next Nationwide Test of the EAS system, and the obligations to submit information about that test to the FCC. As we have written before (here and here), the first of those forms, ETRS Form One, providing basic information about each station’s EAS status was due August 27. Form Two is due the day of the test – reporting as to whether or not the alert was received and transmitted. More detailed information about a station’s participation in the test is due by November 5 with the filing of ETRS Form Three. Also on the EAS front, comments are due by September 10 on the FCC’s proposal to require stations to report on any false or inaccurate EAS reports originated from their stations. See our articles here and here.
September also brings comment deadlines in numerous other important FCC proceedings. September 5 is the date for reply comments on the FCC’s Notice of Proposed Rulemaking on how to simplify the resolution of complaints about interference from new FM translators (see our summaries here and here). One of the most debated issues in the initial comments is whether to ignore complaints from full-power FM licensees and other existing FM broadcasters if those complaints originate outside of the complaining station’s 54 dBu contour. Many FM licensees, as well as the licensees of LPFM stations who are also protected from interference from new translators, contend that a substantial portion of their listening audience resides outside that contour and should not be left unprotected from new translators who interfere with such listening.
Reply comments are due September 10 on the FCC’s Notice of Inquiry as to whether to create a new class of C4 FM stations, and to make changes to allow for more short-spaced FM stations using Section 73.215. See our articles here and here on that proceeding.
Congress has also requested that the FCC provide it with a report on the state of competition in the Audio Marketplace. As we wrote here and here, we expect that, while this report is directed to Congress so that it can use this information in assessing statutory changes, as the report will be prepared at the same time as the FCC is working on the Notice of Proposed Rulemaking in its next Quadrennial Review which will likely review the radio ownership rules, the facts gathered in preparing the report to Congress are likely to be important in the Quadrennial review. Comments on this report to Congress are due September 24.
The potential for changes in the Children’s Television rules, particularly the rules mandating three hours of weekly educational and informational programming directed to children on each programming stream broadcast by a TV station, are being reviewed by the FCC. Comments on the FCC’s Notice of Proposed Rulemaking looking at potential changes in these rules (about which we wrote here) are also due September 24.
As the Incentive Auction repacking marches on (with the testing period for repacked stations in Phase 1 of the repacking starting in September), the FCC is also considering the reimbursement of expenses incurred by LPTV stations, TV translators and FM broadcasters whose operations are affected by the repacking. Comments are due September 26 on the FCC’s proposals on eligibility and administration of the finds to reimburse these stations. See our article here for more details on these proposals.
Commercial radio stations that have been paying the newest Performing Rights Organization, GMR, under an interim license while litigation continues between GMR and the Radio Music License Committee (RMLC) to determine if GMR should be subject to any sort of antitrust regulation, have an interim license that expires at the end of September (see our article here). As the litigation is unlikely to be resolved in the next few months, GMR is reportedly offering yet another extension of its interim license through March 31, 2019. Look out for notice of that extension directly from GMR but, if you have not received it, you may want to reach out to them before the end of the month.
And watch for the agenda of the FCC meeting on September 26. That agenda should be released next week, and we will see what broadcast items may be on it just in time for the Radio Show at the end of the month. Plenty of issues to keep broadcasters busy. As always, check with your legal advisor to make sure that there are no other legal issues that may affect your station’s operations.
More September Regulatory Dates – Effective Date of New Application Fees, Filing Deadline for TV Shared Services Agreements, Lowest Unit Rate For September Election and Reminder on Repacking Requirements
And, here are a few more issues to consider in September. Plus, the FCC on August 27, reminded repacked TV stations of all of the requirements for TV stations involved in the repacking of the TV band following the Incentive Auction which, as we noted in our post yesterday, formally begins this month.
Another date is the effective date for a general increase in FCC application fees – those fees that commercial broadcasters pay every time they file an application for a construction permit, approval of a purchase or sale of a station, a license renewal, an STA or many other requests for FCC action. As we wrote here, the FCC recently announced that the fees were going up to reflect inflation. Last week, the FCC issued a Public Notice announcing that those new fees are effective on September 4. So commercial stations filing applications on September 4 or afterward need to remember to pay the new fees, or risk having their applications returned.
Another obvious date is the first day of the Lowest Unit Rate window for the November election. 45 days before a primary or 60 days before a general election, political candidates (whether Federal, state or local – see our post here) can only be charged the lowest unit rate that any commercial advertiser is paying for advertising spots of the same class that are running during the same time period. See our articles here and here for more information about the lowest unit charge window which, for the November election, starts on September 7. For more information about political broadcasting rules generally, see our Political Broadcasting Guide.
A somewhat less obvious date is the deadline for filing TV shared services agreements. In its 2017 order reconsidering the FCC’s decision in its last Quadrennial Review of the ownership rules, the FCC decided to retain the previously announced requirement that TV stations file shared services agreements with the FCC. We wrote about that obligation here, addressing the broad definition that the FCC gave to a shared services agreement. The FCC gave stations 180 days to comply for any agreements that were already in effect at the time the new rule became effective (new agreements being required to be filed “in a timely fashion” once entered into). Time flies, and that 180-day deadline is now upon us, on September 19.
Finally, the FCC on Monday released a Public Notice setting out all the deadlines that must be met by TV stations that are being repacked following the Incentive Auction. With September 14 starting the testing period for TV stations assigned to move to their new channels in Phase 1 of the repacking, this notice is very timely. The notice talks about the deadlines in the transition and the various notices and public education requirements that stations early in the repacking schedule should be contemplating right now. The Public Notice also notes that any Phase 1 station that is unlikely to meet the required November 30 deadline for completion of their transition to their new channel must file an extension by September 4.
So add these to the list of September dates that we gave you yesterday, as well as any other specific deadline that may apply to your own station, and you can see that the academic year will begin with a bang. Get ready for a busy month ahead!
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.