FCC Extends Deadline for January Online Public File Uploads and Other Filings

On Friday, January 27, the FCC further extended the deadline for entities to complete certain required Online Public Inspection File (“OPIF”) uploads and certain Licensing and Management System (“LMS”) filings. The new due date for these uploads will be February 28, 2023.

On January 6, 2023, following wide reports of technical challenges impacting licensee’s ability to upload documents to LMS and Public Files, the FCC announced that it would extend the deadline for certain filings to January 31st, 2023. The extension applied to all broadcast, cable, and satellite entities’ uploads due to be placed in the OPIF since January 1, 2023. It also extended the deadlines for Form 2100, Schedule H Annual Children’s Programming Reports, Form 2100, Schedule 303S, and Renewals of Broadcast Station Licenses.

With today’s Public Notice, the deadline for these uploads has been delayed to February 28th, 2023.

If you have questions or need assistance with OPIF access, or have questions about these deadlines, please contact your FHH attorney.

FCC Broadcast Filing Deadlines for January and February

January 30, 2023

Children’s Television Programming Reports – Each commercial TV and Class A television station must electronically file its annual Children’s Television Programming Report, on FCC Form 2100 Schedule H, to report on programming aired by the station and other efforts in 2022 that were specifically designed to serve the educational and informational needs of children.

January 31, 2023

Online Public Inspection File Uploads – The FCC issued a public notice extending the time for uploading all documents due to be uploaded on January 1, 2023 or after to the online public files to January 31st.  The FCC nonetheless encourages filers to upload documents as soon as possible and not to wait until the end of the month. The items to upload by this date include:

  • Commercial Compliance Certifications– Each commercial TV and Class A television station must also post to its Online Public Inspection File (OPIF) a certification (or certifications) of compliance during 2022 with the statutory limits on commercial time during children’s programming. The certification(s) should cover both the primary programming stream and all subchannels aired by the station.
  • Q4 2022 Issues/Programs Lists – For all commercial and noncommercial radio, television, and Class A television stations, listings of each station’s most significant treatment of community issues during the fourth quarter of 2022 (October, November, December) must be placed in the station’s OPIF. The lists should include brief narratives describing the issues covered and the programs which provided the coverage, with information concerning the time, date, duration, and title of each program with a brief description of the program. The issues may be either local or national, so long as they are of concern to the local community.

February 1, 2023

Television License Renewal Applications Due – Applications for renewal of license for television stations licensed to New Jersey or New York must be filed in LMS.  Schedule 396 must accompany these applications, the Broadcast EEO Program Report, also filed in LMS, regardless of the number of full-time employees.  Under the current public notice rules, television stations (including LPTV stations that originate programming) filing renewal applications must begin broadcasts of their post-filing announcements concerning their license renewal applications between the date the application is accepted for filing and five business days thereafter and must continue for a period of four weeks.  Once complete, full power and Class A TV stations must post a certification of broadcast, with a copy of the announcement’s text, to the OPIF within seven days, and included LPTV stations should keep their certifications with station records.  LPTV stations that do not originate programming and TV translators must post renewal notice texts on an acceptable website (station, licensee, parent or as otherwise described by the FCC), linked under the title FCC Applications, within five business days after the date on which the FCC issues PN of the acceptance of the renewal application and must remain posted for 30 days.

EEO Public File Reports – All licensed full-service radio and television broadcast stations, Class A television stations, cable television systems, direct broadcast satellite providers, and satellite radio employment units with five or more full-time employees that are licensed in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, or Oklahoma must place EEO Public File Reports in their OPIFs. For all stations with websites, the report must be posted there as well.  Per FCC policy, the reporting period may end ten days before the report is due, and the reporting period for the next year will begin on the following day.

February 28, 2023

EAS Test Reporting System – The EAS Test Reporting System for filings opened January 3, 2023. Parties subject to the Emergency Alert System (EAS) rules (radio and television stations, wired and wireless cable television systems, digital broadcast systems, digital television broadcast stations, Satellite Digital Audio Radio Service, digital cable and digital audio broadcasting systems, and wireline video systems) must submit their annual Form One filings for calendar year 2022 in the online EAS Test Reporting System (ETRS) by no later than February 28, 2023.  Filers can access ETRS by visiting the ETRS page of the Commission’s website at https://www.fcc.gov/general/eas-test-reporting-system . All EAS Participants are required to register and file in ETRS, with the following exceptions:

  • Analog and digital low power television (LPTV) stations that operate as television broadcast translator stations;
  • FM broadcast booster stations and FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations; and
  • Analog and digital broadcast stations that operate as satellites or repeaters of a hub station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (or common studio or control point). However, the hub station (or common studio or control point) is required to register and file in ETRS.

 

For more information regarding any of these FCC filing requirements, contact Fletcher, Heald & Hildreth.

President Biden Renominates Sohn to FCC

After a drawn-out Senate battle last year which resulted in no confirmation, President Joe Biden has once again nominated Gigi Sohn for the fifth FCC Commissioner seat. Sohn, a former top FCC adviser, is also the co-founder of Public Knowledge, a non-profit advocating for copyright, telecommunications, and internet policies. If confirmed, Sohn would fill out the FCC with three Democrats and two Republicans. Furthermore, if confirmed, Sohn will become the first openly LGBTQIA+ Commissioner for the FCC. However, Sohn’s nomination has faced opposition from Republicans, as well as from some moderate Democrats.

The current 2-2 deadlock has hindered the FCC from advancing on certain ambitious policy goals, such as reinstating net neutrality protections or imposing new rules to limit media consolidation. However, the midterm elections in November, where Democrats gained control of the Senate, have given rise to the possibility that Sohn will receive enough Senate support to become the Commission’s fifth and tie-breaking Commissioner.

Republicans opposing Sohn claim that her prior social media posts show a liberal leaning and consider Sohn unsuitable for confirmation. Sohn has also received criticism for having to recuse herself from “any other matter where retransmission consent or television broadcast copyright is a material issue in the Commission’s disposition of a proceeding…”.  This recusal stems from Sohn having served on the board of Locast, a broadcast streaming service that lost a copyright infringement lawsuit brought by broadcasters. However, the Communications Workers of America, a union representing workers at telecom companies, is urging a Senate vote in favor of Sohn.

A hearing on Sohn’s re-nomination has not yet been scheduled.

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FCC Online Public File Woes

As many of you are aware – especially those subject to the looming January 10th issues/programs list upload deadline – the FCC’s online public file system has been painfully slow or nonfunctional since the beginning of this year.  As a result, the FCC issued a public notice on Friday extending the time for uploading all documents due to be uploaded on January 1, 2023 or after to the online public files to January 31st.  The FCC nonetheless encourages filers to upload documents as soon as possible and not to wait until the end of the month.

If you have questions or need assistance with online public file access and uploads, please get in touch with your FHH contact soon.

Upcoming Deadlines

With the new year around the corner, it is that time of year when we start to fill out upcoming deadlines in our new calendars! Below find a list of the approaching broadcast deadlines to keep an eye on.

January 10, 2023

Issues/Programs Lists – For all commercial and noncommercial radio, television, and Class A television stations, listings of each station’s most significant treatment of community issues during the fourth quarter of 2022 (October, November, December) must be placed in the station’s OPIF. The lists should include brief narratives describing the issues covered and the programs which provided the coverage, with information concerning the time, date, duration, and title of each program with a brief description of the program. The issues may be either local or national, so long as they are of concern to the local community.

Foreign Government-Provided Programming Disclosures – In the event that a station, pursuant to the sale of a block of time, aired any programming provided by a foreign governmental entity during the prior quarter, copies of the required disclosures and records relating to the programming must be posted in the OPIF.

Records of Third-Party Fundraising Efforts – Any noncommercial educational broadcast station that interrupts regular programming to conduct fundraising activities on behalf of a third-party non-profit organization must post records of such activities during the prior quarter in the station’s OPIF.

Class A Television Stations Continuing Eligibility Documentation – The Commission requires that all Class A Television Stations maintain in their online public inspection files documentation sufficient to demonstrate that the station is continuing to meet the eligibility requirements of broadcasting at least 18 hours per day and broadcasting an average of at least three hours per week of locally produced programming.  While the Commission has given no guidance as to what this documentation must include or when it must be added to the public file, we believe that a quarterly certification which states that the station continues to broadcast at least 18 hours per day, that it broadcasts on average at least three hours per week of locally produced programming, and lists the titles of such locally produced programs should be sufficient.

January 30, 2023

Children’s Television Programming Reports – Each commercial TV and Class A television station must electronically file its annual Children’s Television Programming Report, on FCC Form 2100 Schedule H, to report on programming aired by the station and other efforts in 2022 that were specifically designed to serve the educational and informational needs of children.

Commercial Compliance Certifications – Each commercial TV and Class A television station must also post to its OPIF a certification (or certifications) of compliance during 2022 with the statutory limits on commercial time during children’s programming. The certification(s) should cover both the primary programming stream and all subchannels aired by the station.

February 1, 2023

Television License Renewal Applications Due – Applications for renewal of license for television stations located in New Jersey and New York must be filed in LMS.  These applications must be accompanied by Schedule 396, the Broadcast EEO Program Report, also filed in LMS, regardless of the number of full-time employees.  Under the current public notice rules, television stations (including LPTV stations that originate programming) filing renewal applications must begin broadcasts of their post-filing announcements concerning their license renewal applications between the date the application is accepted for filing and five business days thereafter and must continue for a period of four weeks.  Once complete, TV stations must post a certification of broadcast, with a copy of the announcement’s text, to the Online Public Inspection File (OPIF) within seven days.  LPTV stations that do not originate programming and TV translators must post renewal notice texts on an acceptable website (station, licensee, parent or as otherwise described by the FCC), linked under the title FCC Applications, within five business days after the date on which the FCC issues PN of the acceptance of the renewal application and must remain posted for 30 days.

EEO Public File Reports – All radio and television station employment units with five or more full-time employees and located in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma must place EEO Public File Reports in their OPIFs. For all stations with websites, the report must be posted there as well.  Per announced FCC policy, the reporting period may end ten days before the report is due, and the reporting period for the next year will begin on the following day.

 

EAS Test Reporting System Filing Deadline

The FCC advised December 15 that parties subject to the Emergency Alert System (EAS) rules (radio and television stations, wired and wireless cable television systems, digital broadcast systems, digital television broadcast stations, Satellite Digital Audio Radio Service, digital cable and digital audio broadcasting systems, and wireline video systems) must submit their annual Form One filings for calendar year 2022 in the online EAS Test Reporting System (ETRS) by no later than February 28, 2023.

The Federal Emergency Management Agency (“FEMA”) previously announced that it would not conduct a nationwide EAS test in 2022 and it has not scheduled a nationwide EAS test for 2023.  Nonetheless, in a provision buried in the rules related to the nationwide test, the FCC’s rules require EAS participants to annually review and update their identifying information for each station (e.g., transmitter location, EAS monitoring assignments, and make and model of EAS gear). Because FEMA has not conducted and does not plan to conduct a nationwide EAS test in the remainder of 2022, the FCC had not set a deadline for broadcasters to file Form One in calendar year 2022, as the FCC has stated was required.  The ETRS system is expected to open on January 3, 2023.  This timing should be welcome news for EAS Participants, as it provides some breathing room over Christmas.

The filings also will fall shortly after the close of the comment cycle in the pending rule making proceeding which is examining the operational readiness of the EAS system (PS Docket No. 15-94) and will provide further information to be considered in that proceeding.

For those out of the loop, ETRS is an online filing system by which EAS Participants submit information regarding their performance on nationwide tests of the EAS that the Federal Emergency Management Agency (FEMA) and the Commission conduct regularly to assess the reliability and effectiveness of the nation’s alert and warning infrastructure.

Please make sure to confirm that all information submitted to ETRS is accurate as well as to correct any past filing errors.  The FCC plans to open ETRS for Form One filings on January 3, 2023.  Further details will be released in future Public Notice, so please remain on the lookout into the New Year.

If you have any questions or would like assistance preparing your Form One filing, please contact a Fletcher, Heald & Hildreth attorney and we would be glad to help.

Federal Election Commission Adopts New Online Political Ad Disclaimer Proposal

On December 1, 2022, the Federal Election Commission (“FEC”) adopted a proposal to extend its disclaimer rules to certain types of digital advertising appearing on digital platforms in addition to websites.

Before these new FEC rules become effective, they must be transmitted to the heads of both the House of Representatives and the Senate for a 30-day review period.  Comments on a Supplemental Further Notice will be due 30 days after it is published in the Federal Register.

FEC Disclaimer Basics

With limited exceptions for small items and impracticability, political ad sponsorship disclaimers currently must accompany “public communications” that: (1) are made by a political committee; (2) expressly advocate the election or defeat of a clearly identified federal candidate; or (3) solicit a campaign contribution.

In addition to public communications by political committees, disclaimers must be included on all political committee websites that are available to the general public and in e-mails when a political committee sends “500 [or more] substantially similar” e-mails.

According to the current FEC rules, a “disclaimer” is a statement that identifies the group or individual that paid for a political ad and, where applicable, whether the communication was authorized by a candidate.

Internet-Related Updates

“Public Communication” Definition Update

The FEC’s rules have long defined “public communication” to include a broadcast, cable, or satellite communication, as well as newspaper, magazine, billboard, mass mailing, phone bank, and internet communications placed for a fee on another person’s website.

The updated rules now propose to define “public communication” to include “communications placed for a fee on another person’s website, digital device, application, or advertising platform.” These rules were updated to apply to new forms of online public political advertising.

While the previous iteration of the definition encompassed banners, videos (whether streaming or broadcast), pop-up ads, directed search results, and social networking software, the new definition now encompasses ads that do not appear on websites.  For example, a political ad paid for by a candidate’s committee may be posted on a social media application by an influencer.  However, the FEC noted that this revised definition did not extend “to all future technology,” as some commenters recommended.

Updated Disclosure Requirements

Further, communications placed for a fee on another person’s website, digital device, application, or advertising platform (i.e., “internet public communications”) must also include a disclaimer that complies with specific regulations regarding size, text, graphics, color contrast, and video/audio components, which are similar to those imposed upon print and broadcast media.

The disclaimer requirement applies to any person that pays to place an internet public communication (i.e., the payor)—regardless of whether that person originally created, produced, or distributed the communication—and to any communication that meets the definition of an “internet public communication.”

The FEC clarified that “individuals who share someone else’s speech without paying to distribute it will not be affected by this revision,” and that internet disclaimer provisions do not impose the “stand-by-your-ad” requirements applicable to radio and TV ads.

Generally, disclaimers must be viewable without the recipient of the communication needing to take any additional action, such as clicking on additional links or opening pop-up windows.  However, if a full disclaimer cannot be included or would occupy more than 25% of the communication due to character or space constraints that are “intrinsic to the online advertising product or medium,” an adapted disclaimer may be provided.

An “adapted disclaimer” is a clear statement that:

  • States that the internet public communication is paid for;
  • Identifies the payor using their full name or a commonly understood identifying abbreviation or acronym; and
  • Includes a visible or audible element indicating that a person may read, observe, or listen to a full disclaimer after doing a certain action, such as going to a website.

The content of the required disclaimer will depend on who authorized and paid for the advertisement:

  • If a candidate, an authorized committee of a candidate, or an agent of either, pays for and authorizes the communication, then the disclaimer must state that the communication “has been paid for by the authorized political committee.”
  • If a public communication is paid for by someone else, but is authorized by a candidate, an authorized committee of a candidate, or an agent of either, then the disclaimer must state who paid for the communication and that it is authorized by the candidate, authorized committee of the candidate, or an agent of either.
  • If the communication is not authorized by a candidate, an authorized committee of a candidate, or an agent of either, then the disclaimer must “clearly state the full name and permanent street address, telephone number, or [web] address of the person who paid for the communication,” and that the communication is not authorized by any candidate or candidate’s committee.

If you have any questions about these new political ad disclosure rules, please contact your friendly Fletcher, Heald & Hildreth attorney.

Next Phase-in of Audio Description Rules Begins January 1, 2023

The Federal Communications Commission released a reminder that as of January 1, 2023, the audio description rules adopted in the Commission’s 2020 Audio Description Order will go into effect in the following designated market areas (“DMAs”):

  • Madison
  • Waco-Temple-Bryan
  • Harlingen-Welasco-Brownsville-McAllen
  • Paducah-Cape Girardeau-Harrisburg
  • Colorado Springs-Pueblo
  • Shreveport
  • Syracuse
  • Champaign and Springfield-Decatur
  • Savannah
  • Cedar Rapids-Waterloo-Iowa City and Dubuque

The Audio Description Order expanded the number of DMAs required to install equipment for audio description. Audio description provides better accessibility of programming to blind and visually impaired people by inserting narrated descriptions of a program’s visual elements in breaks in a show’s dialogue.

As part of its reminder, the FCC reiterated that programmers can request accessible formats such as Braille, large print, electronic files, and audio format from the FCC by emailing fcc504@fcc.gov or calling the Consumer and Governmental Affairs Bureau at (202) 418-0530.

For more information, programmers can review the FCC’s page on audio descriptions. If you have questions about these rules and what they mean for your station, contact your FHH attorney.

FHH Files Mandamus in Depp v. Heard Case

On August 8, 2022, Fletcher, Heald & Hildreth filed a petition with the Court of Appeals of Virginia for a writ of mandamus directed to the Circuit Court of Fairfax County, Virginia to compel Judge Penney S. Azcarate to release copies of transcripts relating to the Depp v. Heard case or to compel the Fairfax County Circuit Court Clerk, John Frey, to furnish copies of the transcripts.  The Court of Appeals concluded that mandamus does lie for the Clerk of Fairfax County Circuit Court but does not as to the circuit court judge.

The two main contentions that the Court of Appeals had to consider were 1) whether the Court of Appeals had jurisdiction to issue a writ of mandamus in this matter; and 2) whether furnishing copies of the transcript was a ministerial or discretionary duty.  In its Decision, the Virginia Court of Appeals held that it has original jurisdiction to issue writs of mandamus, prohibition, and habeas corpus in cases in which it would have appellate jurisdiction.  In civil matters, the Court of Appeals has appellate jurisdiction over “any final judgment, order, or decree of a circuit court in a civil matter” except as provided in subsection B of § 17.1-406.  Accordingly, in what appears to be a case of first impression, the Court of Appeals found that it does have jurisdiction to issue a writ of mandamus in this civil case.

As for the second issue, the Court of Appeals noted that “Mandamus is an extraordinary remedy that may be used to compel performance of a purely ministerial duty, but it does not lie to compel the performance of a discretionary duty.” A ministerial act, the Virginia Supreme Court has explained, is “one which a person performs in a given state of facts and prescribed manner in obedience to the mandate of legal authority without regard to, or the exercise of, his own judgment upon the propriety of the act being done.” By contrast, “when the act to be performed involves the exercise of judgment or discretion on the part of the court judge, it becomes a judicial act and mandamus will not lie.”

Clerk Frey argued that the statutory language “[n]o person shall be permitted to use the clerk’s office for the purpose of making copies of records in such manner, or to such extent, as will, in the determination of the clerk, interfere with the business of the office or with its reasonable use by the general public” makes his duty discretionary.   The Court of Appeals rejected this assertion, pointing out that the Virginia Supreme Court held in 2001 that this section of the statute applied to the means by which the clerk allowed the petitioner to access the record but does not extend to a complete denial of the right to access the record.

Further, the Court of Appeals determined that mandamus does lie with the clerk because of the duties for circuit court clerks set out in Code § 17.1-208.  In particular, the Code states that “[r]equests for copies of nonconfidential court records maintained in individual case files shall be made to the clerk of the circuit court.” (emphasis added).  The court reasoned that this section of the Code delegates a duty to the clerk and “[i]n the context where a duty is delegated, the use of the term ‘shall’ means that the availability of discretion is absent.” Overall, the court found that mandamus is the appropriate remedy for the clerk since the non-discretionary responsibility lies solely with him under Code § 17.1-208.

The court resolved that mandamus did not apply to Judge Azcarate because the role of a judge is discretionary.  Rule 1:3 states in relevant part, “When a reporter takes down any proceeding in a court, any person interested is entitled to obtain a transcript of the proceedings or any part thereof upon terms and conditions to be fixed in each case by the judge.” From this language, the court found that the role of a judge is discretionary and therefore a writ of mandamus cannot compel a judge to provide consent to release copies of a trial transcript.

Therefore, Fletcher, Heald & Hildreth was able to open to the public the courthouse files to allow access to records and transcripts of court hearings and trials in Virginia.

For more information about Fletcher Heald’s litigation practice, please contact the firm.

If You Offer Internet Service, Your Speech is Now Highly Regulated by the FCC

In an order released on November 17, 2022, the FCC dictates in detail the specific words that an Internet service provider must use when communicating with its customers.  The FCC has adopted new rules requiring specific information (referred to as the broadband consumer label) to be displayed at the point of sale when offering mass-market retail Internet access service by wire or radio.  Internet service providers must display unique identifiers for each of their Internet service plans that must consist of their FCC Registration Number followed by 15 alphanumeric characters.  A provider’s broadband consumer label must include the information on the FCC’s label template (see page 6 of the FCC order).  Any customization of the label is prohibited.

Smaller providers will have one year to come into compliance with the new rules after Federal Register publication of OMB’s approval.  A small Internet service provider is one with 100,000 or fewer subscriber lines.  Larger providers have six months to display the broadband consumer labels.

The actual label must appear on the providers primary advertising web page that identifies the available Internet service plans.  The FCC’s order prohibits just an icon or link to the label from a provider’s main website.  The label must also be easily accessible on the consumer’s online account page.

The FCC order requires labels to be accessible to people with disabilities using current accessibility technologies.  Labels must also be displayed in English and any other language used by the provider to advertise or market its Internet service.

Internet service providers must retain and archive for 2 years the labels for all Internet service plans that are no longer available for purchase.  Data to support the accuracy of the old label, such as speed and latency, must also be retained for 2 years.  The archived labels must be provided to existing customers upon request within 30 days.

The information included in the label must also be provided separately in a machine- readable format. The information must be made available in a spreadsheet file format such as .cvs on a provider’s website via a dedicate URL that contains all of a provider’s labels.

The FCC contends that these label requirements do not burden free speech in violation of the First Amendment.  The FCC describes its new rules as disclosure requirements rather than a speech ban that restricts the conveyance of accurate commercial speech.  According to the FCC’s order, the label requirements are not more extensive than necessary to assist customers in purchasing a broadband Internet access service.

Enterprise service offerings and special access services are not subject to the new label requirements.  However, participants in the Connect America Fund, E-rate or Rural Health Care programs must display the broadband consumer labels even though they may define their services as “enterprise” services provided to schools, libraries, and health care providers.

The new label requirements do not apply to airlines, private end user networks such as universities and libraries, coffee shops, bookstores, and other premises where patrons access the Internet, so long as the premises operator does not offer a mass-market retail Internet access service.

In addition to the order adopting the new label rules, the FCC also issued a Further Notice of Proposed Rulemaking seeking comments on whether the FCC should impose additional requirements for broadband consumer labels.  In that rulemaking proceeding, the FCC will consider whether it should require additional pricing information on labels, more speed and latency metrics, service reliability measurements, cybersecurity practices, mandatory foreign languages, and making the labels interactive.  The deadline for filing comments regarding additional label requirements will be 30 days after Federal Register publication.

Need help with your broadband consumer labels or want to file comments to the Further Notice of Proposed Rulemaking?  Contact your friendly Fletcher, Heald & Hildreth attorney to get started today!

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