FCC Eliminates EEO Mid-Term Report for Broadcasters

On February 14, 2019, the Federal Communications Commission (“FCC,” or the “Commission”) released a Report and Order in which it eliminated the requirement that certain broadcast television and radio stations file a Broadcast Mid-Term Equal Employment Opportunity (EEO) Report (Form 397).  As we reported back in January, the FCC found that the Form 397 reporting obligation became unnecessarily redundant following the completion of the transition of all broadcasters to the Online Public Inspection File (“OPIF”) – which makes most of the information in the Form 397 (i.e., the station’s annual EEO public file reports) available to the public online.

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Now in Effect: FCC Eliminates Requirement to Post Licenses

As we reported back in December, the Federal Communications Commission (“FCC”) issued a Report and Order that would eliminate the need to post and maintain broadcast licenses at a physical location. The Commission’s stated goal is to modernize U.S. “media rules and remove unnecessary regulatory burdens that impede competition and innovation in the media marketplace.” That Report and Order is due to be published in the Federal Register, and go into effect, on Friday, February 8, giving broadcasters one less responsibility to worry about.

A Word of Caution to Broadcasters Pertaining to E-Cigarette and Vaping Advertisements

Last month I participated in a webinar with my colleague Dan Kirkpatrick where we addressed the issue of advertising controversial products. While the topic of marijuana advertising (which we discussed in our webinar) gets much attention these days–especially with the recent decision by CBS to turn down a cannabis ad for the Super Bowl–we also examined the advertising of e-cigarettes and nicotine vaping products.
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Jeffrey Mitchell Joins Fletcher, Heald & Hildreth, P.L.C.

Washington-area based telecommunications, media, and technology law firm Fletcher, Heald & Hildreth, P.L.C. is pleased to announce that Jeffrey A. Mitchell has joined the firm as Of Counsel. Jeffrey brings with him more than two decades of Telecommunications experience both in private practice and in multiple roles for the Universal Service Administrative Company (USAC).

The constant for these endeavors is his abiding interest in rural broadband and universal service. With USAC, he directed a $100 million compliance audit program of participants in the Universal Service Fund under close oversight from the FCC’s Inspector General. After leaving USAC, Jeff helped persuade the FCC to enlarge and modernize the Rural Health Care Federal Universal Service program—thus ensuring that health care providers would have the broadband capabilities to properly treat their patients.

Jeff received his law degree from the Georgetown University Law Center. While there, he was a member of the Georgetown Journal of Law and Policy in International Business. He also earned an undergraduate degree from the University of Washington, majoring in English. A well-rounded student, he worked in a pathology laboratory as an undergraduate, once attending an autopsy for a class project. In the spirit of noblesse oblige, Jeff shares his insights as a frequent panelist on the importance of broadband policy to healthcare–most recently at the Center for Telehealth and e-Health Law’s Executive Telehealth Summit in 2018.

“I know our clients will immediately benefit from Jeff’s wealth of knowledge,” said co-managing member Dan Kirkpatrick. “With his exceptional legal skills and great experience, we are thrilled to add him to our growing practice.”

Fletcher, Heald & Hildreth attorneys pride themselves in their ability to get in-the-weeds on broadcast policy. Jeff will fit right in with his firsthand broadcast experience as a disc jockey at WCBN-FM, 88.3, Ann Arbor.

“I am delighted to join the distinguished team at FHH working on a wide array of cutting edge legal and policy issues in Telecommunications and Media. I anticipate continuing the exciting work of working with great clients and committed policymakers to ensure all Americans have affordable access to high-speed broadband.”

For information about the firm, visit www.fhhlaw.com or contact Joseph Potischman at potischman@fhhlaw.com for press inquiries.

FCC Further Extends Certain Deadlines

As we reported, immediately after reopening from the Federal government shutdown, the FCC extended most filing deadlines that would have fallen during the shutdown to January 30, 2019.  Upon review, the FCC has now further extended many of those deadlines. In a Public Notice released on January 30, the Commission’s Bureaus and Offices collectively retained the January 30 due date for most filings that would have been due between January 3 and January 7.  The deadline for filings that would otherwise have been due between January 8 and February 7, however, has now been extended to February 8, with a few exceptions. Specifically, the Public Notice explicitly adopted different deadlines for the following items:

  • Filings otherwise due to be filed in the Universal Licensing System (ULS) from January 3 through February 8 (except those related to auctions) are now due on February 8;
  • Any ULS filings submitted between January 3 and January 29 would be considered received on January 29, 2019;
  • Written responses to consumer complaints that would have been due during the shutdown are due on January 30;
  • All filings required to be made to online public inspection files between January 3 and January 28 (including broadcasters’ quarterly reports for the fourth quarter of 2018) will be due by February 11;
  • Deadlines for comments and reply comments on the Media Bureau’s proposal to modernize carriage election notice requirements will be extended to 30 days and 45 days, respectively, after Federal Register publication of a separate Public Notice released today extending those deadlines.

While the Public Notice noted that deadlines established by statute (such as those related to petitions for reconsideration) cannot be extended by the Commission, the Notice did state that the Commission would not consider itself to have been open for business for purposes of calculating such deadlines until January 30.

As with the previous extensions, this release does not extend any deadlines related to the Network Outage Reporting or  Disaster Information Reporting systems, or those related to the broadcast incentive auction and related repack of television channels.

FCC Extends Filing Deadlines

As we reported early in the government shutdown, the FCC proactively extended most filing deadlines until one business day after the first day the FCC was re-opened post-shutdown. Now that the government (including the FCC) has reopened, the Commission has further extended that deadline by one additional day. As a result, most filings that would have been due between January 3 and January 29 are now due by no later than January 30, 2019. Broadcasters should take note that all Q4 2018 Children’s TV Reports and issues-programs reports that were due to be uploaded to their station’s online public file earlier this month are “filings” included in this deadline.

Upcoming FCC Broadcast and Telecom Deadlines for February-April

You’ll find below the list of deadlines* facing broadcasters and telecommunications providers during the upcoming months of February, March, and April.

If you noted the asterisk, it’s because the government shutdown may affect many of these deadlines, either because the relevant online filing system or the required information is not accessible. If that is the case, the deadline is likely to be moved to the first full day after the FCC reopens. However, you should not assume anything — and in any event should be prepared to make required filings on a moment’s notice.

Further, in addition to those uncertainties, you should understand that the list is NOT exclusive, so there may be others. For help meeting these deadlines or answering questions about any that may not be listed here, please contact FHH at 703-812-0400.

Broadcast Deadlines

The day after the FCC Fully Re-Opens:

Additional Steps to Revitalize the AM Radio Service – Comments are due in response to the Commission’s Second Further Notice of Proposed Rulemaking with regard to revised alternative proposals regarding interference protection to Class A AM radio stations.  As with most filing deadlines occurring while the FCC is partially closed, the FCC extended the deadline until the day after the date on which the FCC staff goes back to work for a full day.

 February 1, 2019:

Equal Employment Opportunity (EEO) Public File Reports – All radio and television stations with five (5) or more full-time employees located in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma must upload EEO Public File Reports to their online public inspection files. 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.

EEO Mid-Term Reports – All television stations with five or more full-time employees in New Jersey or New York must electronically file a mid-term EEO report on FCC Form 397, with the last two EEO public file reports attached.

February 19, 2019:

Additional Steps to Revitalize the AM Radio Service – Reply comments are due in response to the Commission’s Second Further Notice of Proposed Rulemaking with regard to revised alternative proposals regarding interference protection to Class A AM radio stations. This date is likely to be extended until at least 30 days after the adjusted deadline for initial comments.

April 1, 2019:

EEO Public File Reports – All radio and television station employment units with five (5) or more full-time employees located in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas must place EEO Public File Reports in their public inspection files. All stations must also upload the reports to the online public file.  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.

EEO Mid-Term Reports – All television stations with five or more full-time employees and located in Delaware or Pennsylvania must electronically file a mid-term EEO report on FCC Form 397, with the last two EEO public file reports attached.

April 10, 2019:

Repack Transition Progress Report – All full-power and Class A television stations repacked as a result of the incentive auction, other than those in Phase 1 or Phase 2 that have completed the repack process, including filing reports of completion, must file a report in the Licensing and Management System (LMS) to detail their progress toward completion of the transition.

Children’s Television Programming Reports – For all commercial television and Class A television stations, the first quarter 2019 children’s television programming reports must be filed electronically with the Commission.  These reports then should be automatically included in the online public inspection file, but we would recommend checking, as the FCC bases its initial judgments of filing compliance on the contents and dates shown in the online public file.  Please note that the required use of the LMS for the children’s reports means that you should have the licensee FCC registration number and password at hand before you start the process.

Commercial Compliance Certifications – For all commercial television and Class A television stations, a certification of compliance with the limits on commercials during programming for children ages 12 and under, or other evidence to substantiate compliance with those limits, must be uploaded to the online public inspection file.

Website Compliance Information – Television and Class A television station licensees must upload and retain in their online public inspection files record sufficient to substantiate at license renewal time a certification of compliance with the restrictions on display of website addresses during programming directed to children ages 12 and under.

Issues/Programs Lists – For all commercial and noncommercial radio, television, and Class A television stations, a listing of each station’s most significant treatment of community issues during the last quarter must be placed in the station’s online public inspection file. The list should include a brief narrative describing the issues covered and the programs which provided the coverage, with information concerning the time, date, duration, and title of each program.

Class A Television Continuing Eligibility Documentation – The Commission requires that all Class A Television maintains 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.

Telecom Deadlines:

February 1, 2019:

Quarterly Telecommunications Reporting Worksheet (FCC Form 499-Q) – FCC rules require telecommunications carriers and interconnected Voice over Internet Protocol (VoIP) providers to file quarterly revenue statements reporting historical revenue for the prior quarter and projecting revenue for the next quarter. The projected revenue is used to calculate contributions to the Universal Service Fund (USF) for high cost, rural, insular and tribal areas as well as to support telecommunications services for schools, libraries, and rural health care providers. USF assessments are billed monthly.

Rural Call Completion Reporting (FCC Form 480) ELIMINATED – On April 17, 2018, the FCC released an Order removing the rural call completion reporting requirements. Starting with the May 1, 2018 rural call completion report, covered providers (i.e., certain long-distance voice providers) have no longer been required to file FCC Form 480 on a quarterly basis. Therefore, there is no rural call completion reporting requirement for February 1, 2019.

Numbering Resource Utilization Forecast (NRUF) (FCC Form 502) – Twice a year, service providers with numbers from the North American Numbering Plan Administrator (NANPA), a Pooling Administrator, or another telecommunications carrier must file a numbering resource utilization forecast. Subscriber toll-free numbers are not included in the report. Interconnected VoIP providers are subject to the reporting requirement along with other service providers who receive NANPA numbers, such as wireless carriers, paging companies, ILECs, and CLECs.

February 14, 2019:

Quarterly Percentage of Internet Usage (PIU) Certification – USF prepaid calling card providers must file a certification stating that it is making the required USF contributions. The certification must be signed by an officer of the company under penalty of perjury and can be filed electronically using the FCC’s ECFS system. The Quarterly PIU Certification due February 14, 2019 will cover the Fourth Quarter of 2018 (October 1, 2018 through December 31, 2018).

March 1, 2019:

Customer Proprietary Network (CPNI) Certification – All telecommunications carriers and interconnected VoIP providers must file an annual CPNI certification by March 1, 2019 with the FCC’s Enforcement Bureau. Carriers must certify that they have established operating procedures to ensure compliance with the FCC’s CPNI rules. In addition, carriers must include an explanation of any actions taken against data brokers and a summary of all customer complaints received in the past year concerning unauthorized release of CPNI.

FCC Form 477 – Form 477 filings are due on March 1, 2019. The filing database is currently unavailable until the government shutdown ends; however, any entity subject to the filing requirement should be prepared to timely file Form 477 or to file immediately after the end of the government shutdown. The Commission collects a variety of information about broadband deployment and wireless and wired telephone service on Form 477.  Broadly speaking, the following providers must fill Form 477: 1) facilities-based providers of broadband connections to end users, 2) providers of wired or fixed wireless local exchange telephone service, 3) providers of interconnected voice over Internet protocol (VoIP) service; and 4) facilities-based providers of mobile telephony (mobile voice) services. If you have any questions about whether your company must file Form 477 or what information your company is required to submit in the filing, you should contact your telecommunications counsel.

March 31, 2019:

International Traffic and Revenue ReportsELIMINATED International 214 licensees and interconnected VoIP providers offering services between the U.S. and international points were required to report certain information about their international traffic and revenue to the FCC twice a year. However, the Commission eliminated the international traffic and revenue report in October 2017; therefore, there is no upcoming international traffic and revenue report filing deadline.

April 1, 2019:

Form 499-A – The annual Form 499 filing, Form 499-A, must be filed by telecommunications carriers and interconnected VoIP providers  Carriers report their prior year’s annual revenues using the form, and the FCC uses that information to reconcile, or true-up, a carrier’s USF contributions over the past year based on the carriers quarterly Form 499-Q revenue projections. Carriers that overpaid their contributions will receive a credit, and USAC will bill carriers that underpaid their USF contributions.

Rate of Return Reporting FCC Form 492 – Local exchange carriers (LECs) groups of affiliated carriers must file FCC Form 492 within three months of the end of each calendar year. Each LEC or group of affiliated carriers may make corrections to the report within 6 months of the due date for the report. Two copies of the report must be filed with the Secretary of the Commission with an additional copy filed with the Wireline Competition Bureau, Industry Analysis and Technology Division.

Automated Reporting Management Information System (ARMIS) Reporting – Certain incumbent local exchange carriers (ILECs) must file ARMIS reports annually by April 1. The Commission has made significant changes to ARMIS reporting over the years to reduce the reporting burden. That said, carriers subject to the reporting thresholds are still required to report some ARMIS information, including pole attachment reporting. Information subject to ARMIS reporting also may vary depending on whether a carrier is a mid-size or large ILEC or a mandatory price-cap, elective price-cap, or non-price-cap ILEC. If you have any questions about the FCC’s changes to ARMIS reporting, you should contact experienced telecommunications counsel.

Section 43.21(c) Letter – Common carriers with operating revenue in excess of the indexed revenue threshold must file a letter with the Chief of the Wireline Competition Bureau showing the carriers operating revenues for the prior year and the value of its total communications plant at the end of the year. The indexed revenue threshold is defined in Section 32.9000 of the Commission’s rules. The threshold is an inflation-adjusted amount calculated based on the annual revenue of $100 million in 1992.

Webcaster Wake Up Call: The (Not Entirely) Shutdown Update

This is the promised follow up to our December 14, 2018 post regarding the compliance obligations for 2019 under the statutory licenses found in Sections 112 and 114 of the Copyright Act (the “statutory licenses”) allowing webcasters to make public performances sound recordings via digital audio transmission and to make related temporary copies of those recordings.  And let’s get this right out of the way:  no, the government shutdown does not extend the January 31 deadline for filing Annual Minimum Fee Statements of Account, making the initial $500 per channel annual minimum fee payment and, if applicable, electing to pay the $100 “proxy fee” in lieu of filing Reports of Use that is available to eligible Noncommercial Educational Webcasters.

That’s one week away. So it’s time to stop procrastinating and get on it, especially if (1) you are not entirely familiar with the SoundExchange Licensee Direct online filing portal or (2) have changes from 2018 (in which case you may need to contact SoundExchange to notify that entity of the changes prior to making your initial 2019 filings and payments. Continue Reading

Remember to Exercise Super Judgment When Discussing the Big Game

The matchup for the National Football League’s championship game, aka the “Super Bowl”, is set. The Los Angeles Rams will face the New England Patriots on Sunday, February 3 in Atlanta in a game that will be hard pressed to exceed either conference championship game in terms of excitement or controversy. Each of the NFC Championship, where the Rams beat the New Orleans Saints, and in the AFC Championship, where the Patriots beat the Kansas City Chiefs,  saw one of the teams come back from a double-digit deficit to force a thrilling overtime finish. Both games will be remembered for some questionable officiating. Continue Reading

FCC Shutdown Becomes a Little Less Shut Down

One downside of a government shutdown—or the present partial shutdown that includes the FCC—is the inability of technology companies to obtain the FCC certifications they need to market certain kinds of new products.

Good news: the FCC has reopened a website that makes it possible for most (not all) new devices to obtain their certifications. Continue Reading

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