Update: Form 303-S

Posted on February 16, 2011 by FHH Law

Broadcast renewal form still in flux following OMB approval

In reporting on the OMB’s approval of the New and Improved Form 303-S, we mentioned that, according to the FCC, the certification concerning non-discrimination in advertising would not appear when the form was being filled out by a noncommercial licensee. The form would be smart enough to know not to bother to present the certification option to a noncom applicant, since that option would theoretically be irrelevant to noncoms. Schweet!!!

Oops. It turns out that, even though that’s what the Commission told OMB, that’s not the way it’s going to work. The Commission has instead chosen to do it the old-fashioned way, i.e., by providing an “N/A” (for “not applicable”) option for NCE respondents. It seems that the fancy now-you-see-now-you-don’t approach to the certification would have required more tinkering with CDBS than the Commission was willing to undertake . . . particularly in view of the fact that the Commission is looking to phase CDBS out as part of a wholesale overhaul of its electronic systems over the next couple of years.  No need to trick out the old Datsun if you're going to be trading it in on a Volt pretty soon.

So despite what the Commission told OMB in the initial go-around, the new form (when it’s unleashed in the near future) will include the classic “N/A” option relative to noncommercial applicants. 

Look for a public notice from the Commission addressing the overall renewal process (including the New and Improved Form 303-S) in the near future.

Tags: , , , , , , , , ,

Form 303-S: Improved And Approved

Posted on February 11, 2011 by FHH Law

Revised broadcast renewal clears OMB hurdle, now ready for first round of radio renewals

The recently revised broadcast license renewal form (FCC Form 303-S) has received the formal blessing of the Office of Management and Budget (OMB) – which means that it’s now just about ready for use by radio licensees whose renewals are due by June 1. (That would be licensees in Maryland, the District of Columbia, Virginia and West Virginia.) OMB signed off on the updated form on February 2 (a scant week after the close of the comment period); that approval has now been published in the Federal Register. Following a 30-day post-publication waiting period, the revised form will officially be “effective”.

The limited materials generated in connection with the OMB review process do contain a couple of items worthy of mention.

First, the FCC’s “supporting statement” confirms our post from last September relative to the basis for the new certification about non-operation. In its statement the Commission specifically quotes from a 2001 decision holding that a “licensee will face a very heavy burden in demonstrating that it has served the public interest where it has remained silent for most or all of the prior license term.” Since serving the public interest is a crucial component of the renewal process, prolonged failure to operate could be a serious impediment to renewal.

Second, our friend John Crigler (on behalf of a number of noncommercial broadcast organizations) filed comments suggesting that the new certification concerning non-discrimination in advertising contracts should include a “not applicable” option for noncoms. That would make sense because, by definition, noncommercial licensees can’t sell “advertising” and thus don’t have any “advertising” contracts to certify about. The Commission rejected that suggestion, however. It turns out (according to the Commission, at least) that when an NCE licensee indicates (in the first section of the form) that it’s noncommercial, the form will not display the advertising certification at all.

As noted, the revised form will be “effective” as of March 14, 2011, i.e., 30 days following Federal Register publication. Media Bureau officials have indicated that they’re planning to issue a public notice on or about that effective date to provide additional guidance for renewal applicants. Check back here for updates.

Tags: , , , , , , , , ,

Update: Revised Forms Head To OMB

Posted on December 27, 2010 by FHH Law

The mills of bureaucracy grind slowly, but they do eventually grind. 

Last October we reported on changes to the broadcast license renewal application form (Form 303-S) that were in the works. Those changes appear to have passed the first bureaucratic hurdle: having invited public comments (which were due by December 13) and then having waited a decent interval (that would be about two days), the Commission has passed its proposed changes along to the Office of Management and Budget for OMB’s review. Notice of that development has now been published in the Federal Register. This gives everybody yet another opportunity to toss in any comments they might have about the revised form – but this time those comments should be directed to OMB. If you’ve got anything to say to OMB, you’ve got until January 26, 2011 to say it. Once that deadline has come and gone, look for the revised form to be officially released by the Commission, just in time for the next round of renewal applications which are due by June 1.

And along the same lines, the Commission’s efforts to plug a loophole have advanced to OMB. You may recall our post from last November, addressing the question of whether or not digital LPTV, Class A TV and TV translator stations were expected to file Form 317 in December. (Form 317 is the annual “Digital Ancillary/Supplementary Services” report in which digital TV stations tell the Commission whether they’ve aired any subscription-like services on any of their digital streams.) While there were ample indications that the Commission might have intended LPTV, Class A and translator licensees to file – and while some such licensees may already have been filing the reports out of excess of caution – the Commission hadn’t bothered to amend Form 317 to include such stations within its reach. And without a properly revised form, LPTV’s, Class A’s and translators were off the hook.

The Commission figured that out last Fall and started to amend its form, but it was too late to do any good before the December 1 deadline for this year. But next year is a different story. The revised form has now been shipped over to OMB for its once-over. Interested parties have until January 26, 2011 to submit comments to OMB. Given the 11-month headstart, we fully expect that the revised Form 317 will be awaiting all LPTV, Class A and translator licensees come the next deadline in December, 2011.

Tags: , , , , , , , , , , , , , , , ,

FCC Takes Wraps Off Revised Broadcast Renewal Form

Posted on October 13, 2010 by Harry Cole

With the first batch of the next round of broadcast renewals due by June 1, 2011 – less than eight months from now – the FCC has announced plans to tweak the renewal application form (FCC Form 303-S) in five discrete ways. (It was just a month ago that we told you all to be on the lookout for such an announcement.) A copy of the form with the proposed revisions is attached here. 

The five proposed changes include the following:

  • The revised form’s instructions will include a new definition of “eligible entity” designed to reflect the Commission’s “Equity Debt Plus” standard for determining the attributability of certain interests. The version of that standard currently in effect was announced in the Commission’s Diversity Order adopted back in 2007. Presumably the language in the new renewal form will track corresponding language in Forms 301, 314, 315 and 345, all of which were revised about 18 months ago to address the same issue from the 2007 Diversity Order. (Why Form 303-S wasn’t taken care of at the same time as those other forms is not clear – perhaps the Commission felt no need to revise the renewal form at that point because no renewal applications would be due before 2011.)
  • Section II of Form 303-S will contain a required certification that the licensee’s “advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain nondiscrimination clauses.” (The form’s instructions will also be revised to address that certification.) This, too, is a response to the 2007 Diversity Order, which for the first time imposed the explicit obligation that advertising contracts contain nondiscrimination clauses. As we observed back in 2008, the Diversity Order technically became effective in 2008, but the certification requirement reaches back to the beginning of the license term, i.e., considerably before then. That could create some practical difficulties (although Steve Lovelady’s post from October, 2008, might provide some guidance around those difficulties).
  • Section III of the form will include a new question (Item 4, with accompanying instructions) requiring the licensee to certify that, during the preceding license term, its station was neither silent, nor operating on less than the required minimum schedule, for any period of more than 30 days. If the licensee can’t so certify, it will have to provide an exhibit specifying “the exact dates ... on which the station was silent or operating for less than its prescribed minimum hours.” If you don’t know what this is about, check out our post on the topic from last month. Note also that the proposed revisions to Form 303-S make clear that, for purposes of this certification, the “transmission of ‘test signals’ does not count toward a station’s minimum operating hours.”
  • The proposed revision of the form would eliminate the longstanding requirement that full power AM and FM licensees submit an exhibit to demonstrate compliance with RF limits. Historically, such an exhibit has been required if the renewal applicant wasn’t eligible to use the RF worksheets in the old Form 303-S. Under the revised form, all applicants would still have to certify that their facilities comply with the Commission’s maximum permissible RF limits – but no additional exhibit would be expected from full power AM and FM folks.
  • Finally, Section V (Item 4) of the form would be changed to clarify that LPTV stations still need to file Form 396 with their renewal application, even though they might not have to file an EEO-related public file report and post that report to their website. Previously, the form required a certification that the licensee had created the public file report and posted it to the station’s website “as” required by the rules. The new form would substitute the word “if” for the word “as” because not all LPTV licensees are subject to public file report requirement.

The good news in all this is clearly the lifting of the RF exhibit requirement from the shoulders of full power AM and FM stations. This should relieve one and all – both private sector applicants and FCC application processors – of an irksome chore, which is all to the good.

Interestingly, while the Commission did publish a notice about its proposed changes in the Federal Register, the Commission stopped short of also publishing a copy of the revised form. You’d think that the FCC would have made the new form available in the Federal Register in order to give everybody the maximum opportunity to look it over as soon as possible. Apparently the Commission doesn’t think like that. While this approach harkens back to the unfortunate situation we all encountered with the FCC’s effort to revise the Broadcast Ownership Report form (FCC Form 323), we need not worry about a re-play of that here. After reading the Federal Register notice, we wrote to the FCC asking for a copy of the form (which we have linked above and here), and the Commission kindly sent one over within a couple of hours.

At this point we can’t say for 100% certain that there aren’t any additional changes lurking in the 39-page form. The ones described above are the ones the FCC has identified in its Federal Register notice. The publication of that notice kicks off a 60-day comment period. Anyone wishing to chip in his/her two cents’ worth relative to the proposed changes has until December 13, 2010 to let the FCC know. After that, the Commission will forward the proposed form over to the Office of Management and Budget, which should give one and all another 30 days in which to comment. Given that timeframe, we can probably expect to see the new and improved Form 303-S online and ready for filing early in 2011, in plenty of time for the first round of renewals.
Tags: , , , , , , , , , ,

Broadcasters Beware: Non-Operation Could Lead To Non-Renewal

Posted on September 13, 2010 by Harry Cole

Silence may be golden, but apparently not to the Media Bureau.

With the start of the next broadcast renewal cycle less than a year away, now would be a good time for broadcasters to start preparations for that octennial exercise. And the first thing each licensee ought to do is make sure that its station is actually operating. It appears that the Media Bureau, troubled by the number of non-operating stations – which is at an historic high, according to one in-the-know observer – is looking into how a station’s failure to operate during the preceding license term might be factored into the renewal process.

This is not good news if you happen to be off the air. It’s really not good news if your non-operation has dragged on over a significant portion of your most recent license term.

The available stats establish that just under 200 AM and FM stations had reported to the Commission that they were off-the-air as of September 1.  And beyond that is the separate universe of stations that have (a) ceased operation but (b) not bothered to tell the Commission (even though the FCC rules – Sections 73.561(d) for NCE FMs, 73.1740(a)(4) for commercial stations – require them to do so). 

As some folks at the Commission see it, it’s quiet out there . . . too quiet.

The rules, of course, permit stations to shut down from time to time, and there’s plenty of good reasons why they might: for examples, equipment problems, emergency conditions (think wildfires or earthquakes or hurricanes or floods, etc.), and – particularly in this period of economic hardship – plain ol’ money problems. The Commission itself routinely approves suspension of operation (usually in six-month hits) on a showing of good cause.

Such officially-sanctioned suspensions do not last longer than a year, though, because the Communications Act includes a fail-safe incentive to goose stations back on the air. Section 312(g) provides that any station that “fails to transmit broadcast signals for any consecutive 12-month period” loses its license automatically at the end of that period. (That section does afford the Commission some discretion to breathe the breath of life back into an automatically-expired license, but to date the FCC’s staff has demonstrated a decided reluctance to avail themselves of that discretion.)

Some at the Commission believe that, despite the threat of automatic expiration, a number of licensees are turning their stations off and keeping them off for extended periods. Those licensees dodge expiration, apparently, by returning to the air for brief periods so as to avoid a “consecutive 12-month period” of silence and, thus, the Section 312(g) kiss of death. But, having operated for a while, they then go back off the air. (Note that the FCC has never officially addressed the question of how long a station has to be on the air to toll the 12-consecutive-month period for Section 312(g) purposes. In a footnote (Number 21, if you’re looking) to a 2003 decision not directly involving Section 312(g), the Commission hinted – but stopped short of formally holding – that 24 hours of operation would do the trick.) 

The Commission’s staff has signaled that it will consider instances of non-operation during the preceding license term as part of the renewal process. This could entail revision of the renewal application form (FCC Form 303-S) to require each renewal applicant to provide a detailed listing of instances of non-operation during the preceding license term. 

The general idea goes back to a 2001 Commission decision involving a Pocomoke City, Maryland AM station that was off the air for nearly four consecutive years in the early 1990s (i.e., before Section 312(g)’s automatic expiration provision was inserted into the Act). The Commission, responding to an objection about the licensee’s failure to operate for most of the license term, concluded that renewal was appropriate. BUT – and it’s an ominous “but” – the decision was based on the facts that: (a) historically, the FCC had been “particularly lenient” in granting “stay silent” STAs; and (b) the licensee in question had not been warned that continued silence might “put [its license] at risk”.

The Pocomoke City decision took care of that latter factor, in spades. The Commission wrapped up its decision by pointedly stating that:

we take this opportunity to caution all licensees that as a result of the clarification provided herein, a licensee will face a very heavy burden in demonstrating that it has served the public interest where it has remained silent for most or all of the prior license term.

FCC to broadcast industry: you have now been warned.

A focus on the renewal applicant’s performance during the preceding term is squarely within the chores assigned the Commission by Congress. Section 309(k)(1)(A) of the Act specifies that, before it can grant an unconditional broadcast renewal, the FCC must first determine that, during the immediately preceding license term, the licensee “has served the public interest”. It’s difficult to imagine how a station could logically be said to have served the public interest when it wasn’t operating at all.

Whether the renewal form will in fact be revised remains to be seen. After all, the 200 or so radio stations off-the-air as of September 1 represent only about 1% of all AM and FM stations – not a huge chunk of the industry. Does it really make sense to impose an across-the-board reporting requirement when such a small percentage is being targeted? And bear in mind that at least some, if not many or even most, of those 200 stations may be off-the-air for valid technical reasons, with no intent to stay off longer than necessary to fix the problem and crank back up. In other words, if a chronic off-the-air problem does exist, it may be isolated to considerably less than 1% of the industry. Does the Commission really need to get its Big Guns out?

If the staff does plan to revise the renewal form to include a question about instances of non-operation, it will have to start the ball rolling soon. Form revisions generally require that the public be given the opportunity to comment, both at the FCC and before the Office of Management and Budget. With the next round of renewals due by June 1, 2011, the Commission has significantly less than nine months to have the form ready to go. Check back here for updates.
Tags: , , , , , , , ,