Emergency Alert System Required Changes

The Federal Communications Commission (“FCC”) recently adopted modifications to the requirements for the Emergency Alert System (“EAS”), and the new rules will go into effect on December 12, 2022.  Fortunately, however, EAS participants, which include most radio and television stations, have one year, until December 12, 2023, in which to make the necessary changes to their EAS equipment in order to comply with the new rules.  The FCC believes that the rule modifications will result in both greater use of IP-based Common Alerting Protocol (“CAP”) format alerts and more understandable and informative messages.

The first change is to require all EAS participants, upon receiving a legacy state or local EAS alert message, to check before broadcasting the alert to determine whether a CAP-formatted EAS message is available.  If so, the EAS participant must transmit the CAP version of the alert rather than the legacy EAS version.  EAS participants will be familiar with the existing system whereby alerts are relayed from primary stations to secondary stations throughout the EAS network.  Additionally, messages also are relayed in the CAP format over FEMA’s internet-based platform known as the Integrated Public Alert and Warning System (“IPAWS”) and are received by periodically checking an internet-connected server in a process known as “polling.”

These messages have the ability to convey a bit more information than the relatively brief voice announcements relayed by the current system, including multilanguage information, picture or video files, and URL’s where the public can obtain additional information.  A further advantage for the deaf or hard of hearing is that a CAP-formatted alert can display all of the text provided by the alert originator without the limitations of the current alerts.  Further, should the alert originator send a CAP-format alert without an audio message, the EAS participant usually is able to generate an audio message by using text-to-speech software installed in its EAS equipment so that the blind and vision-impaired can receive the message.

In order to force more use of CAP-format alerts, the new EAS rule requires that participants must delay re-transmitting an alert for at least 10 seconds after receiving the header codes to either allow time for the CAP version to appear and, if not, to poll the IPAWS feed to either find the CAP version or confirm that no matching CAP version of the message is available.  As noted above, if the CAP alert does appear or is found, it is that version which must be re-transmitted.  The FCC understands that the brief wait for CAP will create slight delay in getting the alert information out to the public but believes that the superior quality of the information, as well as improved availability to the disabled, makes the delay worthwhile.  The FCC also that any receipt and retransmission of alerts will take a bit of time, which it theorizes is at least ten seconds, though results from prior national EAS tests do not necessarily support this idea in full.

These requirements are not applicable, however, to required weekly tests, to national tests of the EAS, or in the event of an actual national emergency message, something which has never happened.  The process also will not apply at this time to weather-related alerts issued by the National Weather Service (“NWS”) because the NWS does not distribute alerts in the CAP format over IPAWS due to concerns about issuing duplicative messages for the same event.  The FCC is hopeful that the NWS will overcome its concerns and will begin issuing CAP alerts, at which time the new rules will apply to them.  Additionally, the new process does apply to required monthly tests.

The second major change is with regard to the event codes and originator code primarily used for national alert messages and nationwide EAS tests.  Specifically, the FCC is changing the text for the EAN event code from “Emergency Action Notification” to “National Emergency Message,” is changing the text for the NPT event code from “National Periodic Test” to “Nationwide Test of the Emergency Alert System,” and is changing the text for the PEP originator code from “Primary Entry Code System” to “United States Government.”  The thought is that this language will be clearer and will reduce the potential for consumer confusion and alerting fatigue.  Of course, one wonders just how much public interest there is in improving test notices for a system used once a year and an alerting system that has not been used – ever.  Still, in order to be consistent, the texts of the messages issued for national alerts and nationwide tests as well.

Thus, the old message, “The Primary Entry Point system has issued an Emergency Action Notification….” has been changed to “The United States Government has issued a National Emergency Message…,” and the test message, “The Primary Entry Point system has issued a Nationwide Periodic Test,” has been changed to “The United States Government has issued a Nationwide Test of the Emergency Alert System….”  Likewise, the visual crawl for EAS-based nationwide test alerts transmitted in legacy format has been slightly modified.  Obviously, the visual crawl requirement applies primarily to television stations, but radio stations also are required to use the new text in making announcements.  While the text is prescribed, it may be translated to languages other than English.

The good news is that, as noted above, stations have one year in which to come into compliance with the new requirements.  Further, it is anticipated that the changes related to event and originator codes can be accomplished through an EAS equipment software change.  Likewise, EAS equipment manufacturers have indicated that they either have made or can make automated IPAWS polling features available on EAS devices in the coming year.  In something of a leap of logic, the FCC concluded that because a one-year implementation period has worked in the past, it will work again for the new changes.  It also has determined that that costs, which it estimates to be no more than $5 million for all participants, is outweighed by the benefits of improved clarity and availability of alerts.  Part of that conclusion is based on the ability simply to download software changes, which should be able to be done in conjunction with general software upgrades.

Should you have any questions concerning this matter, please do not hesitate to contact us.

FCC Publishes Draft of National Broadband Map: Challenge Process Officially Begins

On November 18th, the FCC published a draft of the long-awaited updated National Broadband Map.  This version of the map shows the availability of fixed and mobile broadband as reported by internet service providers (“ISPs”) as of June 30, 2022.  This map endeavors to improve upon the FCC’s broadband data collection via Form 477, which Chairwoman Rosenworcel has argued is inaccurate and outdated.  The Commission published a General Fact Sheet with the map as well.

  • The online map allows users to search for broadband availability based on an address, the provider of the service, or a specific area (e., state, county, census area, Tribal area, or congressional district).
  • It also provides an option for users to download data directly in CSV, shape file, or GeoPackage form.

The next step for improving this data is for state, local, and Tribal governments, consumers, service providers, and other entities to file challenges or corrections to the data on the map.  The FCC released a Public Notice and a Challenge Fact Sheet in conjunction with the online map specifying procedures for challenges.

  • Parties can report missing or incorrect information about the locations of available fixed broadband reported in the map.
  • Similarly, parties can challenge the availability of mobile broadband reported in the map by using on-the-ground speed test data based on the FCC’s Speed Test app.
  • Lastly, parties can report inaccuracies in the map about, for example, the type of service or availability of a provider in an area.

If you have any questions about the National Broadband Map, filing a challenge, or responding to a challenge, please contact your friendly Fletcher Heald attorney.

FCC Fines Gray Television for Violation of Ownership Rules

This week, the FCC issued a Forfeiture Order imposing a penalty of over $500,000 against Gray Television, Inc. for violating the FCC’s rule prohibiting ownership of two top-four television stations in the same Nielsen Designated Market Area (DMA).  Gray acquired the CBS network affiliation for KTVA(TV), Anchorage, Alaska, and the FCC found that this action placed it in violation of the Commission’s Local Television Ownership Rule since KTVA(TV) is one of the top four stations in the Anchorage market and Gray already owned KTUU-TV, the top-ranked station in that market.  The FCC issued a Notice of Apparent Liability for Forfeiture (NAL) in 2021 and affirmed its decision in its Forfeiture Order this week.  Gray had argued against the NAL, claiming that the plain language of the Local Television Ownership Rule did not prohibit its action because it already owned two top-four stations before its acquisition.

The language of the Local Television Ownership Rule prohibits transactions that result in an owner’s having two top-four stations, but Gray claimed that its acquisition of the affiliation for KTVA(TV) did not violate the rule.  After acquiring KYES-TV in 2016, it raised the ranking of that station to the fourth position, meaning that, in combination with its ownership of KTUU-TV, it owned two top-four stations as a result of organic growth, which is permitted by the Local Television Ownership Rule.  Thus, Gray claimed, its acquisition of the affiliation for KTVA(TV) did not “result” in its owning two top-four stations.  However, the FCC rejected this argument as inconsistent with the language and purpose of the Local Television Ownership Rule, which was designed to prevent transactions that diminish competition between licensees in the same DMA.  While the rule does not penalize organic growth that results in ownership of two top-four stations, the FCC emphasized that this principle does not permit entities to continue acquiring top-four stations after already obtaining a second top-four station through organic growth.  The Commission found that Gray would have violated the rule regardless of whether it previously owned two of the top four stations.  FCC Commissioner Simington took issue with this conclusion in his dissent, arguing that the language prohibiting transactions that “result” in ownership of two top-four station should be read literally and that since this transaction was not the cause of Gray’s ownership of two top-four stations, it should not be penalized.

Gray also argued that since it only acquired KTVA (TV)’s affiliation and, in Gray’s opinion, other minor assets, not including KTVA(TV)’s license, branding, or facilities, that the transaction was functionally very different and distinguishable from a license transfer and thus should not have been prohibited under the rule. The FCC found that Gray’s interpretation was flawed and that the acquisition of the KTVA(TV) affiliation was indistinguishable from a license transfer and thus a violation of the rule.  The FCC clarified that not only are transactions indistinguishable from license acquisitions prohibited by the rule, but so are those that result in an entity’s owning two top-four stations in a single market.  Furthermore, since Gray not only purchased the affiliation, but, as the FCC saw it, essentially all of the assets affiliated with KTVA(TV) other than the license and transmission facilities, the FCC concluded that this transaction was functionally equivalent to a license transfer.

In light of these findings and its consideration of other factors such as (i) the willful nature of Gray’s conduct, (ii) its ability to pay, (iii) the continuing nature of the violation, and (iv) the economic gain Gray stood to achieve, the FCC imposed the statutory maximum penalty of $518,283.  Gray stated that it will appeal the order and is planning to sue the FCC in order to prevent enforcement of the order it called “wrongly decided.”

If you have any questions about FCC television ownership rules, please do not hesitate to contact us.

Upcoming FCC Deadlines

December 1, 2022

Television License Renewal Applications Due – Applications for renewal of license for television stations located in Connecticut, Maine, Massachusetts, New Hampshire, Vermont, and Rhode Island 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 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 with broadcasts of six announcements over a period of four weeks. Once complete, a certification of broadcast, with a copy of the announcement’s text, must be posted to the online public inspection file (“OPIF”) within seven days.

EEO Public File Reports – All television station and radio employment units with five or more full-time employees and located in Alabama, Georgia, Colorado, Minnesota, Montana, North Dakota, South Dakota, Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont 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.


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.


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.


Election Season Refresher: Political Ad Compliance

With midterm elections fast approaching, candidates for public office and advocates for a variety of political issues are looking to radio and television broadcasters to get their message out. However, broadcasters need to keep in mind that airing these ads comes with upload requirements to a station’s political file, which is located within its online public inspection file (“OPIF”). While this is not an exhaustive list of all political ad compliance requirements, here are two key rules to keep in mind this election season:

        What types of ads must be reported?

  • Requests for advertisement time for political candidates and for advertisements that communicate a message relating to any matter of national importance.

       When must they be uploaded to the OPIF?

  • Requests for advertisements must be uploaded within one business day from when the ad request was received regardless of whether it airs – not when the ad was accepted or aired. In addition, stations should be uploading documents at each stage of the buying process, including when the order is finalized, or if any changes are made to the original order.

For LPTV Stations that may accept political advertisements but do not maintain a public inspection file, licensees should maintain an internal record of political ad requests. Stations found in violation of these rules may be subject to consent decree obligations, and the Commission has been handing out some hefty fines for political file violations this year.

For more information, you can view our 2022 Political File Webinar on the CommLaw Blog’s YouTube page. If you have questions about political advertisements and reporting them on your station’s OPIF, contact your FHH attorney.

FCC Comes Back for Blood in the War Over Foreign Sponsorship Identification

In the latest salvo of the back and forth fight over requiring broadcasters to verify foreign governmental sponsorship of programming, on October 6, 2022, the Federal Communications Commission (“FCC” or “Commission”) released a Second Notice of Proposed Rulemaking (“Second NPRM”).  The Second NPRM comes as a response to this summer’s unanimous D.C. Circuit opinion vacating the requirement that broadcasters independently verify whether parties leasing time on their stations are “foreign governmental entities,” or agents thereof, by searching two federal databases.  The National Association of Broadcasters had challenged the rule as beyond the statutory authority of the FCC, and the Court heartily agreed.

Down but not out, the FCC now proposes a new certification process with standardized language for broadcasters and programmers subject to its foreign sponsorship disclosure requirements.  The new FCC proposal seeks to, in its own words, “fill in the gaps” left by the D.C. Circuit’s vacatur of the independent investigation requirement.  If adopted, the new rules would require broadcasters to certify that they have (1) informed their programmers of the FCC’s foreign sponsorship identification rules and (2) sought certification from each programmer regarding its status as a foreign governmental entity or agent.  Additionally, programmers would be required to certify that (1) they are or are not a foreign governmental entity and (2) whether they know of any entity or individual further back in the programming production/distribution chain that qualifies as a foreign governmental entity and has provided some form of compensation, or the programming itself, in exchange for the broadcast of that programming.

The Second NPRM also proposes standardized certification language be used in order to “minimize the compliance burden on [broadcasters] and programmers and bring greater uniformity to the certification process.”  Both certifications must also be uploaded by broadcasters to the relevant station’s online public inspection file (“OPIF”) within 30 days of entering into or renewing a programming agreement.  The newly proposed certification requirement would replace broadcasters’ existing requirement of memorializing their inquiries regarding the foreign sponsorship identification status of their programmers.  Similar to when the FCC adopted the original foreign sponsorship identification rules, broadcasters would enjoy a six-month grace period to come into compliance with the proposed certification requirement and other provisions of the Second NPRM, if enacted.

As an alternative, the FCC proposes a process akin the independent investigation requirement vacated by the D.C. Circuit as unlawful.  This alternative approach would require broadcasters to request that its programmers provide documentation of the programmers’ foreign status in the Foreign Agent Registration Act (“FARA”) database or in the FCC’s U.S.-based foreign media outlet report, partially shifting investigative and disclosure responsibilities from broadcasters to programmers.  For example, programmers could provide broadcasters with screenshots showing that the programmer’s name does not appear on either of the two databases.  The Second NPRM also provides interested parties an additional opportunity to comment on a pending Petition for Clarification “regarding the applicability of the foreign sponsorship identification rules to advertisements sold by local broadcast stations.”

The FCC is seeking comment on the feasibility and legality of both the standardized language certification requirement and the alternative approach.  Once the Second NPRM is published in the Federal Register, the public will have 30 days and 60 days, respectively, to file comments and reply comments with the Commission.  If you have any questions or are interested in bringing any concerns you may have before the FCC by filing a comment, please contact a Fletcher, Heald and Hildreth attorney and we would be glad to help.

FCC Fines Stations for Failing to Timely File License to Cover Applications

This week, the Commission imposed a $13,000 fine on Radiant Light Broadcasting (RLB), the licensee of two low-power television (LPTV) stations for failing to timely file license to cover applications, and thus operating without licenses for four years.

The stations, KRLB-LD and KWWO-LD, were granted construction permits for digital displacement channels and special temporary authority to begin operations at the new stations, after being displaced by the FCC’s Incentive Auction and repacking process.  RLB completed construction and began operating at the new facilities in 2018.  However, RLB failed to file timely applications for licenses to cover after commencing operations and before the expiration of the construction permits in June of 2021, filing late applications for licenses to cover in August of 2022 and arguing that the Commission should process and approve these applications.  The FCC stated that the failure to file a license to cover after completion of construction resulted in unauthorized operation of the stations for over four years and elected to impose forfeitures, characterizing the violation as willful and repeated, since an action may be “repeated” for the purposes of FCC rules if it occurs more than once or continuously for more than one day.  RLB claimed that its failure to timely submit applications for licenses to cover was due to the fact that it was not represented by counsel at the time, but the FCC rejected this excuse as insufficient to relieve RLB from liability for forfeiture, stating that licensees are responsible for compliance with Commission rules and that ignorance of a rule or law is no excuse for failure to comply with it —  a violation may be willful irrespective of any intent to violate the law if the action is merely conscious and deliberate.  Finding that RLB’s violation represented an extreme disregard of the Commission’s licensing processes and rules, the FCC imposed a $6,500 penalty for each station, a higher amount than is usually assessed against LPTV stations, but stated that it would process the license applications.

If you have questions about compliance with FCC licensing regulations or any FCC broadcast regulations, please contact a Fletcher, Heald & Hildreth attorney.

FCC Fines Stations $3.4 Million for Violations of Children’s Television Programming Rules

Last week, the FCC issued a ruling finding that 21 broadcast licensees, including Nexstar Media Group and Sinclair Broadcast Group, had violated the Commission’s rules regarding commercial programming on children’s television.  The Commission assessed penalties against these licensees totaling nearly $3.4 million.  Particularly notable was the Commission’s ruling that licensees are responsible even for commercials that are embedded in programming they receive from networks or syndicators.

The number of minutes of commercial matter that may be aired during children’s programming is strictly limited by the Children’s Television Act of 1990 to 10.5 minutes per hour on weekends and 12 minutes per hour on weekdays.  Additionally, the Commission has long held that when commercials for a product are aired during programming associated with that product, the program itself will be treated as a program-length commercial.  The licensees in violation of these rules aired commercials for Hot Wheels toys during episodes of the program Team Hot Wheels, making each episode of the Hot Wheels-themed show, for the purposes of the Act, a 30-minute commercial.

In its Notice of Apparent Liability for Forfeiture, the Commission highlighted the significance of these violations.  The Commission has routinely assessed higher forfeitures for violations involving program-length commercials than it has for conventional overages of permissible commercial matter airtime, and a range of additional factors increased the forfeitures assessed in this case.  Despite the fact that the broadcasters indicated that airing these commercials during the Hot Wheels program was inadvertent, the Commission considered the eight instances to be willful and repeated violations, justifying an upward adjustment in the base forfeiture amount for these licensees.

When determining whether to adjust the base forfeiture amount for a violation, the FCC considers: (1) the number of instances of commercial overages; (2) the length of each overage; (3) the period of time over which the overages occurred; (4) whether or not the licensees established an effective program to ensure compliance; and (5) the specific reasons that the licensees gave for the overages.  In this case, all factors weighed in favor of upward adjustments for all of the broadcast licensees in question.  None of the licensees claimed to have an effective program to ensure compliance, and the only explanation given was a mere statement that the commercials aired due to inadvertence.  Additionally, for the Nexstar and Sinclair licensees, further upward adjustments were justified by the Commission based on the licensees’ ability to pay, and for Sinclair, a history of prior offenses led to the imposition of even higher forfeitures.  Ultimately, the base forfeiture amount was raised from $8,000 to $26,000 for each of the Nexstar stations, $32,000 for each of the Sinclair stations (with the exception of one assessed at $28,000), and $20,000 for each of the other stations included in the proceeding.  In calculating the forfeitures, the Commission took the base forfeiture amount and adjusted it upwards according to the aforementioned factors, including the number of violations, rather than multiplying the number of violations by the base forfeiture amount and making adjustments then.  The Commission stressed, however, that broadcast television licensees, satellite providers, and cable operators should be aware that this methodology could change in the future.

In handing down these penalties, the Commission stressed the seriousness of this particular type of violation.  When commercial material for a particular product is aired during programming featuring that product, the entire program is treated as a commercial because of the high risk that children would be confused by such material and unable to distinguish program content and commercial matter, a fundamental regulatory concern of the FCC.  The Commission stressed that violations of this type, by their very nature, are extremely serious and rejected proposed justifications offered by the licensees.  Despite the fact that the commercial material was embedded in programming received by the other licensees from Sinclair, the Commission noted that every licensee bears nondelegable responsibility for compliance and therefore found no lessened responsibility.

If you have questions about compliance with Children’s Programming regulations, or any FCC broadcast regulations, please contact a Fletcher, Heald & Hildreth attorney.

Deadline to Pay 2022 Regulatory Fees Extended for All until September 30

Today, the FCC released a Public Notice extending the deadline for all regulatory fee payors to submit payment for their annual regulatory fees from September 28 to September 30 at 11:59 PM Eastern Daylight Time.  Accordingly, payors have an additional two days to pay their fees without incurring a 25% penalty.  Such a penalty will be assessed if payors do not submit payment by the new September 30 deadline, however.

The Commission acknowledged the national disasters occurring in recent days across the country, including Hurricane Ian.  Similarly, last week, the FCC extended the deadline to September 30 for Puerto Rico licensees affected by Hurricane Fiona to submit payment for their annual regulatory fees.  The Commission released an English version of the Public Notice and una versión en Español.

Should you have any questions about paying your regulatory fees, requesting a waiver, or these extensions, please contact a Fletcher Heald attorney.


Recently, the Federal Communication Commission (“FCC”) issued a Consent Decree detailing the $38,000 settlement reached with a telecommunications company relating to its  failure to complete required environmental and historic preservation reviews before beginning construction on new wireless telecommunications towers and prior to following the prescribed procedures under the FCC’s antenna structure registration (“ASR”) Rules.

Under the FCC’s environmental rules, both applicants and licensees must assess, prior to construction, whether most proposed facilities such as antenna towers may significantly affect the environment including those facilities:  (i) to be located in an officially designated wilderness areas or wildlife preserves; (ii) that may affect listed threatened or endangered species or critical habitats; (iii) are likely to jeopardize the continued existence of any proposed endangered or threatened species; or (iv) are likely to result in the destruction or adverse modification of proposed critical habitats.  Additionally, applicant and licensees are required to consider, prior to construction, whether their proposed facilities may affect districts, sites, buildings, structures, or objects that are listed, or eligible for listing, in the National Register of Historic Places, all the while following the prescribed procedures set forth in the rules of the Advisory Council on Historic Preservation, or, if applicable, the Nationwide Programmatic Agreement Regarding the Section 106 National Historic Preservation Act Review Process.  Finally, under the FCC’s ASR Rules, applicants and licensees are required to follow the prescribed registration procedures set forth in section 17.4 of the Rules prior to construction or alteration of an antenna tower if the proposed structure either (i) exceeds 200 feet above ground level; or (ii) may interfere with the flight path of a nearby airport.

Here, the telecommunications company James Valley Cooperative Telephone Company began construction on six new antenna towers in Brown County, South Dakota one month prior to submitting antenna structure registrations under the ASR Rules and four months prior to submitting the required environmental and historic preservation review forms.  The company ultimately admitted that it began construction on five of the six towers before completing the required environmental and historic preservation reviews and that it began construction on the last tower before applying for an antenna structure registration, in violation of the Rules.  As a result of these admissions in the Consent Decree, the firm was required to (1) pay a civil penalty of $38,000 and (2) implement an FCC approved compliance plan.

While the civil penalties for violations such as those discussed above can certainly be quite costly, the implementation of a compliance plan can add to those costs, as FCC ordered compliance plans present significant upfront and ongoing regulatory costs, including: developing an approved compliance plan and manual, training management and employees, monitoring and reporting both compliance and noncompliance, attorney fees, filing fees, and more.

It is therefore critical that applicants and licensees ensure compliance with all necessary statutes and regulations and receive all necessary approvals before they begin construction on any most antenna structures.  The best way to ensure one does so is through retaining experienced and effective counsel, from the initial planning stages of a project on through completion.  If you have questions about the FCC’s antenna structure construction and registration review process, do not hesitate to contact a Fletcher, Heald & Hildreth attorney.