Opinions and Legal Insights

September Regulatory Dates for Broadcasters: Annual Regulatory Fees, Lowest Unit Rate Window Opening, C-Band Reimbursement, Rulemaking Comments and More

As broadcasters continue to respond to the coronavirus while sometimes juggling work duties with family responsibilities like at-home virtual schooling, it would be easy to overlook regulatory dates and responsibilities.  This post should help alert you to some important dates in September that all stations should keep in mind – and we will also provide a reminder of some of the dates to remember in early October.  As in any year, as summer ends, regulatory activity picks up – and this year appears to be no different.

Each year, in September, regulatory fees are due, as the FCC is required to collect them before the October 1 start of the new fiscal year.  We expect that the final amount of those fees, and the deadlines and procedures for payment, should be announced any day.  For broadcasters, one of the big issues is whether those fees will be adjusted downward from what was initially proposed by the FCC in their Notice of Proposed Rulemaking in this proceeding.  The National Association of Broadcasters has been leading an effort (we wrote about this here and NAB detailed recent meetings between CEO Gordon Smith and members of its legal department with FCC staff here and here) urging the FCC to reduce the amount of fees owed by broadcasters, in part because of the financial toll the pandemic has taken on the industry and in part because the proposed fee structure, which is determined by estimates as to how many FCC staffers are detailed to regulating an industry and the related benefit that industry receives, inaccurately reflects the number of FCC employees who work on radio issues.  Look for that decision very soon.

All commercial broadcasters need to remember that, on September 4, the lowest unit rate period for political candidate advertising— the “political window”—opens for the November 3 general election.  During this 60-day period prior to the general election, legally qualified candidates buying advertising on a broadcast station get the lowest rate for a spot that is then running on the station within the same class of advertising time and in the same daypart.  Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as the station’s most favored advertiser gets for buying hundreds of spots of the same class.  Station personnel who deal with political advertisers must understand how to compute lowest unit rate and the many other rules that apply to political broadcasting.  See our post on computing lowest unit rate here and our Political Broadcasting Guide, which covers a range of political broadcasting issues, here.

Broadcast stations that receive satellite-delivered programming are likely affected by the repacking of the C-Band – the swath of spectrum in which much programming is delivered to satellite earth stations.  As part of that band is being repurposed for wireless 5G operations, companies that have dishes using that spectrum will need to be prepared for changes to their facilities – for which they are entitled to reimbursement.  By September 14, parties with eligible earth stations involved in the C-Band transition can elect to receive a lump sum reimbursement payment instead of reimbursement for their relocation costs.  That election will put the burden on the party taking that payment to plan and fund all changes necessary to comply with the new C-Band operating requirements.  We wrote about the considerations in that choice to take a lump sum payment here.

Also in September, parties can comment, on or before September 2, on the Petition for Rulemaking submitted to the FCC by the National Telecommunications and Information Administration (NTIA) Section 230 of the Communications Decency Act.  Section 230 gives online platforms legal protections from liability for content that third-party users post on those platforms.  These protections have drawn scrutiny from President Trump, culminating in a late-May Executive Order on Preventing Online Censorship.  As this executive order cannot on its own change current law, the NTIA is asking the FCC to take a new look at Section 230 and ensure the Commission’s interpretation of a law passed in 1996 makes sense in 2020.  After this comment and reply comment period, the FCC would still need to issue a Notice of Proposed Rulemaking and accept comments and reply comments before it can take any substantive action.  Reply comments are due on or before September 17.  Read more about this issue and its applicability to broadcast operations here and here.

At their September 29 conference, Justices of the U.S. Supreme Court may well decide whether to review Federal Communications Commission, et al. v. Prometheus Radio Project, et al.  This is the FCC’s appeal of the Third Circuit decision throwing out the FCC’s 2017 order changing many of the broadcast ownership rulesincluding the abolition of the newspaper-broadcast cross-ownership rule.  Should the Justices decide to take the case, further briefings and oral arguments will be conducted, and a decision could come sometime in 2021.  If not, the Third Circuit decision stands and the FCC will have to evaluate its media ownership rules in line with what the appeals court ordered.  Get caught up with the details of the case, here.

On September 30, the FCC will hold its monthly Open Meeting.  Should there be any broadcast items on the agenda, which should be released during the second week of September, watch the blog for our comments.

As a preview of what is to come in early October, radio stations in Iowa and Missouri and TV stations in Florida, Puerto Rico, and the U.S. Virgin Islands should be preparing their license renewal applications that are due by October 1, along with the accompanying EEO program report.  Because a license from the FCC is required to operate a broadcast station, filing for renewal of your license is necessary and should be taken seriously.  As part of the preparation of the license renewal application, stations should review their public file to be sure all relevant documents have been uploaded and in a timely manner.  The FCC, as we have written about here and here, will use the tools at its disposal (fines, delayed renewal grants, consent decrees, etc.) to punish stations that have not taken the proper care with their public file.  And recently, the FCC has shown heightened interest in the completeness and timeliness of stationspolitical files and has proposed consent decrees with many stations that could not certify on their license renewal application that the political documentation required by FCC rules was placed in the public file at the appropriate times.  We wrote about the first round of these consent decrees, hereStations should also be readying to air their post-filing announcements, which for these October 1 renewal stations, begin to air on October 1 and continue through December 16Stations are no longer required to air pre-filing announcements.  Click here for more on the license renewal process and to watch a webinar we did on preparing for license renewal.

Also due by October 1 are EEO public inspection file reports for stations that are part of a station employment unit with 5 of more full-time employees in Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, American Samoa, Guam, the Mariana Islands, Puerto Rico, and the U.S. Virgin Islands.  An employment unit is one or more commonly controlled stations in the same geographic area that share at least one employee.  By October 1, these reports are to be uploaded to the station’s FCC-hosted online public file and a link to that report need to be placed on the homepage of the station’s website (if the station has a website).

By October 1, television stations must make their elections as to must-carry or retransmission consent for MVPDs that carry their signals.  Full-power and Class A TV stations must place in their online public inspection file by October 1 notice of whether they elect retransmission consent or must-carry carriage from their area’s MVPDs for the three-year cycle beginning on January 1, 2021.  We summarized this new rule, here.

By October 10, all TV and radio stations must upload to their public file their Quarterly Issues/Programs Lists for the 3rd quarter (July, August, and September).  As a reminder, the Quarterly Issues/Programs Lists are a station’s evidence of how it operated in the public interest, demonstrating its treatment of its community’s most significant issues.  As we have written previously, the FCC takes this requirement seriously and will fine stations, hold up granting license renewals, or both if it finds problems with a station’s compliance.  For a short video on complying with the Quarterly Issues/Programs List requirement, see here.

These are just the highlights of some of the regulatory activity to which broadcasters can look forward in the coming weeks.  Regulatory compliance requires close attention and stations should consult their own attorneys and advisors for more information about these dates and for any other deadlines applicable to their operation.