February 9, 2023

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December Regulatory Dates for Broadcasters – License Renewals, EEO Reports, Rulemaking Comments on Foreign Government Programming and EAS, and More

Even with the holidays upon us, regulation never stops.  There are numerous regulatory dates in December to which broadcasters need to pay heed to avoid having the FCC play Grinch for missing some important deadline.

December 1 is the deadline for license renewal applications for television stations (full power, Class A, LPTV and TV translators) licensed to communities in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont.  Renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Note that your Broadcast EEO Program Report must include two years of Annual EEO Public File Reports for FCC review, unless your employment unit employs fewer than five full-time employees.  Be sure to read the instructions for the license renewal application and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.  Issues with the public file have already led to fines imposed on TV broadcasters during this renewal cycle.

December 1 is also the deadline by which radio and television station employment units with five or more full-time employees licensed to communities in Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota, and Vermont must upload Annual EEO Public File Reports to station online public inspection files (also, the FCC has issued an extension that permits stations in Florida that suffered the effects of Hurricane Ian to upload their Annual EEO Public File Reports by December 12).  This annual EEO report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of a station’s website, if it has a website.

In addition, by December 1, digital television stations that provided ancillary or supplementary services between October 1, 2021 and September 30, 2022 must submit FCC Form 2100, Schedule G, and pay a fee equal to 5% of the gross revenue derived from any ancillary or supplementary services they provided.  Noncommercial digital TV stations that provided such services on a nonprofit, noncommercial, and educational basis must file the form but are required to pay only 2.5% of the gross revenue derived from those services.  Ancillary and supplemental services do not include non-subscription video channels delivered directly to the public (i.e., multicast channels), but they do include any other services provided over the station’s spectrum from which the station receives compensation, including “computer software distribution, data transmissions, teletext, interactive materials, aural messages, paging services, or audio signals, [and] subscription video.”  Stations that provided no such services do not need to file a report.

Radio broadcasters who, in all but the last months of 2022, entered into consent decrees with the Media Bureau to resolve concerns about documents concerning the purchase of political advertising time that were uploaded late to a stations online public file have until December 9 to file their compliance reports.  These reports certify that the station complied with the training and oversight requirements of the consent decrees, and they must include a spreadsheet showing when all political advertising material sold in the 90 days before the November 2022 election was uploaded to the public file.  For more information about these consent decrees, see our article here.

December also includes deadlines for comments in certain FCC rulemaking proceedings. One of the most controversial is the Second Notice of Proposed Rulemaking seeking comment on proposals to enhance the FCC’s requirements that each broadcaster verify that any program time sold to third parties (or any pre-produced programming received for free) does not come from a “foreign government entity,” i.e., a foreign government or one of its agents.  Various disclosure obligations apply if the programming does in fact come from a foreign government entity.  Initial comments on the Second NPRM are due by December 19, 2022 and reply comments should be submitted by January 3, 2023.  In the Second NPRM, the FCC proposes, among other things, that a licensee certify that it has informed any buyer of program time of the foreign sponsorship identification rules and obtained, or sought to obtain, a certification from the program buyer stating, with standardized language proposed by the FCC, whether the buyer is or is not a “foreign governmental entity.” The FCC also proposes to require that all of those certifications, even when the program buyer is not a foreign government entity, be included in a station’s online public inspection file.  For further background on this proceeding and its implications for broadcasters, see our articles here and here.

By virtue of an extension Order jointly issued by the FCC’s Wireless Telecommunications Bureau and Office of Engineering and Technology, December 12 and January 13 are now the comment and reply comment deadlines, respectively, for the FCC’s Notice of Inquiry that explores opportunities to open the 12.7-13.25 GHz (12.7 GHz) band for next-generation wireless services.  Licensed services currently in the 12.7 GHz band whose operations could be affected by any change in the uses permitted in the band include satellite communications and mobile TV pickup operations (for more background, see our articles here and here).

The Emergency Alert System (“EAS”) is the subject of other possible changes in the FCC rules.  On December 23 and January 23, respectively, comments and reply comments are due on the FCC’s Notice of Proposed Rulemaking  on potential rule changes intended to enhance EAS and Wireless Emergency Alerts (“WEA”). The FCC seeks comment on, among other things, whether to require EAS Participants (including broadcasters) to report to the FCC incidents of unauthorized access to EAS equipment within 72 hours of when the participant knew or should have known that the incident occurred.  The NPRM also asks whether EAS Participants (including broadcasters) should be required to submit an annual cybersecurity certification that demonstrates how the participant identifies the cyber risks that it faces, the controls it uses to mitigate those risks, and how it ensures that these controls are applied effectively.  We wrote more extensively about this proceeding, here.

On the subject of EAS, December 12 is the effective date of a recently adopted FCC Report and Order aimed at making emergency alerts delivered over television and radio stations more informative and easier to understand by the public. The effective date gives broadcasters one year (i.e., by December 12, 2023) to update their systems to comply with the new rules. Among other changes, the updated rules will require broadcasters, cable systems, and other EAS Participants to transmit the Internet-based version of emergency alerts (i.e., those transmitted through the internet based Integrated Public Alert and Warning System, “IPAWS,” using the Common Alerting Protocol or “CAP”) when the station receives alerts from both IPAWS and from the traditional over-the-air “daisy chain” system.  For more details on these new rules and on other proposed changes in EAS requirements for broadcasters, see our article, here.

Looking ahead to January, licensees of full-power stations need to remember that Quarterly Issues Programs lists are to be uploaded to the public file by January 10.  The lists should identify the issues of importance to the station’s community and the programs that the station aired in October, November and December that addressed those issues.  As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its service area.  See our post here for more on the importance of the Quarterly Issues Programs list obligation.

As always, this list of dates is not exhaustive and comment deadlines can change.  Review these dates with your legal and technical advisors, and note other dates not listed here that may be relevant to your operations.