FCC Extends Deadline for Television Stations to Implement Aural Description of Emergency Information

By Anne Goodwin Crump on Posted in Deadlines, EAS, FCC

The Federal Communications Commission (“FCC”) has largely granted the NAB’s request and will again extend for 18 months to November 26, 2024, the effective date of the FCC’s rule governing accessibility of emergency communications. This rule requires broadcasters to provide, during non-newscast programming, an aural representation of any visual, non-textual emergency information, such as radar maps or other graphics, on a secondary audio stream. Specifically, the rule in question requires TV stations and other video programming providers to ensure that emergency information provided visually during non-newscast programming is made accessible to individuals who are blind or visually impaired through the use of a secondary audio stream to provide such information aurally. The aural description of this information must accurately and effectively convey the critical details regarding the emergency and how to respond to the emergency. This rule was originally slated to go into effect on May 26, 2015, but the deadline has previously been extended several times. It now is being extended for another 18 months, through November 26, 2024, though with conditions.

The problem with the rule has been that there still is no workable solution based on existing technology that can perform the functions required by the rule. For example, an automated text-to-speech solution cannot be used to aurally describe maps and other graphics because they do not contain text files that can be converted to speech. NAB has stated that it is hopeful that new Artificial Intelligence capabilities and/or the increased adoption of ATSC 3.0 in more markets may help. Plus, the NAB pointed out, the critical details of an emergency provided in a visual, non-textual graphics, such as radar maps, are usually duplicative of the information provided in accompanying textual crawls, which are already aurally described and therefore accessible. Accordingly, the NAB asked for a two-year extension so that the anticipated further developments can take place.

Instead, the FCC granted an 18-month extension, on the condition that the NAB file quarterly reports to provide ongoing updates. These reports must cover the following: (1) the extent to which broadcasters still need the waiver; (2) a description of the NAB’s outreach to the disability community and its efforts to develop standards and best practices and train broadcasters in their use so that critical details are conveyed to the blind or visually impaired; (3) a description of the NAB’s and broadcasters’ efforts to develop an automated solution to enable compliance with the aural description requirement; and (4) a description of training and best practices for broadcasters to offer effective communication of critical emergency information. Additionally, if an effective and preferred alternative to an automated technical solution is developed during the waiver period, subsequent reports should provide information as to the implementation of this alternative solution. The first quarterly report will be due September 1, 2023. Thus, the extension was granted the Friday before Memorial Day, and the first report will be due the Friday before Labor Day. Have a good summer, and if you have any questions, please contact your attorney here at FHH!

Fletcher Heald Attorney Matt McCormick Recognized for Outstanding Service to Broadcast Industry

By FHH Law on Posted in Broadcast, FHH

The Oregon Association of Broadcasters honored retired Fletcher, Heald & Hildreth attorney Matt McCormick with the Tom McCall Leadership Award, which honors an individual for their outstanding service to the state and/or nation on behalf of the broadcast industry. The entire FHH family joins the Oregon Association of Broadcasters in offering their warmest congratulations to Matt! 

OAB also recognized Trila Bumstead as Broadcaster of the Year. In addition, KEZI-TV was awarded Television Station of the Year, and Combined Communications’ radio station KTWS, 98.3 The Twins, Bend was awarded Radio Station of the Year. The James Boyd Heritage Award was awarded to the late anchor Ron Brown from KDRV-TV, Medford. 

Congratulations to all those recognized by the Oregon Association of Broadcasters!

House Panel Advances Bipartisan Bill To Restore FCC Auction Authority

By Daniel Brown on Posted in Broadcast, FCC, Spectrum Auctions, Telecommunications

The House Subcommittee on Communications & Technology on Wednesday, May 24th unanimously advanced a bill to renew the Federal Communications Commission’s (“FCC”) authority to auction commercial airwaves and use the proceeds to pay for both next generation 911 and the Secure and Trusted Communications Networks Reimbursement Program.  The bipartisan 50-0 vote comes after the FCC’s auction powers lapsed in March when Senate lawmakers failed to resolve disputes between the wireless industry and the Department of Defense (“DOD”). 

The Spectrum Auction Reauthorization Act, sponsored by Reps. Cathy McMorris Rodgers, R-Wash., and Frank Pallone Jr., D-N.J., would extend spectrum auction authority, make changes to existing spectrum auction processes, and channel auction proceeds toward programs to remove perceived national security risks. 

The bill also mandates a government report identifying 350 megahertz of spectrum between 3.1 and 3.45 GHz for auction, to be used for either exclusive commercial or some combined public-private application with the DOD.  The report is due June 2025 and is aimed at easing tensions between the wireless industry and the DOD. 

In addition, the bill requires a National Telecommunications and Information Administration 

(“NTIA”) study of spectrum between 4.4 and 4.94 GHz, and between 7.125 and 8.5 GHz, for commercial or a combination of uses.  Importantly, the bill also would establish a notification process between federal agencies and the FCC regarding executive branch and DOD views on any potential spectrum auctions.  Whether industry input would be available in such a process remains unclear. 

If you have any questions about what this means for your business, please contact your friendly FHH attorney.  

Biden Announces Nomination of Anna Gomez to Fifth FCC Seat

By Jackie Fisher on Posted in FCC, Telecommunications

President Joe Biden has announced that he plans to nominate Anna Gomez to serve as an FCC Commissioner.  

Currently, Gomez is a Senior Advisor to the State Department’s Bureau of Cyberspace and Digital Policy. She previously served as the Deputy Administrator for the National Telecommunications and Information Administration (NTIA) and held a variety of roles at the FCC over the course of a twelve-year tenure.  

Gomez’s confirmation will come on the heels of the withdrawn nomination of Gigi Sohn. After a sixteen-month lobbying fight, Sohn’s nomination was withdrawn on March 7, 2023. The Commission has been operating with a 2-2 party balance, creating uncertainty in a variety of telecommunications policy issues such as net-neutrality and the Next Gen TV Rollout.  

In addition to the nomination of new Commissioner Anna Gomez, President Biden also announced the re-nomination of current commissioners Geoffrey Starks (D) and Brendan Carr (R). If Gomez is confirmed, and Starks and Carr’s re-nominations are successful, then the Commissioner seats will be fully staffed. Democrats will hold three of its five seats. Commentators have noted that the shift to a 3-2 majority and the full staffing of the Commissioners is likely to bring a new wave of Commission activity and policy-making.  

As always, FHH attorneys are here to help keep you up to date on any Commission policy changes. For the latest on the FCC Commission nominations, remember to check CommLawBlog.

Upcoming FCC Broadcast Filing Deadlines for June and July

By Daniel Brown on Posted in Broadcast, Deadlines, Enforcement, FCC

June 1 

Annual EEO Public Inspection File Report – Broadcasters with Station Employment Units comprised of radio and/or television stations with five or more full-time employees licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, or Wyoming must upload to the stations’ respective Online Public Inspection Files and websites a report regarding station compliance with the FCC’s EEO rules during the period of June 1, 2022 through May 31, 2023. 

EEO Mid-Term Review – Radio broadcasters, particularly those in the District of Columbia, Maryland, Virginia, and West Virginia, should, at the time of posting of the EEO public file report, also indicate under the “Settings” tab of their Online Public Inspection Files whether or not the station employment unit has 11 or more full-time employees.  All radio broadcasters must provide this information on or before the fourth anniversary of their last license renewal application due date. 

June 14 

Comments to the FY 2023 Regulatory Fees NPRM Due – Initial comments responding to the FY 2023 Regulatory Fees NPRM must be filed using the FCC’s Electronic Filing System (ECFS) by this date.  Any proposals or comments requesting a change or modification to the Commission’s proposed methodology and regulatory fees for FY 2023 must include a thorough analysis showing a sufficient basis for making the change and provide alternative options for the FCC to meet its statutory obligation to collect the full amount of the appropriation by the end of the fiscal year.  Commenters must also indicate how such proposed alternative options are fair, administrable, and sustainable. 

June 29 

Reply Comments to the FY 2023 Regulatory Fees NPRM Due – Reply comments must be filed using ECFS by this date.  Reply commenters should analyze and respond to initial comments, whether in support or opposition. 

July 10 

Q2 2023 Certification of Class A Television Continuing Eligibility – Broadcasters with Class A television stations must demonstrate continuing compliance with the FCC’s Class A eligibility requirements by maintaining sufficient documentation in their stations’ Online Public Inspection Files.  To ensure compliance, Class A licensees should upload such documentation for the period of  April 1, 2023 through June 30, 2023 to each station’s Online Public Inspection File by this date. 

Q2 2023 Noncommercial Educational Fundraising Reports – All noncommercial educational radio and television stations that conducted on-air fundraising activities that interrupted regular programming for the benefit of third-party non-profit organizations must upload documentation detailing each third-party fundraising program or activity to the station’s Online Public Inspection File for the period of  April 1, 2023 through June 30, 2023. 

Q2 2023 Issues/Programs Lists – Broadcasters with full-power radio, television, and Class A television stations must upload to their stations’ respective Online Public Inspection Files the Quarterly Issues and Programs Lists covering the second quarter period of April 1, 2023 through June 30, 2023.   

If you have any questions or would like assistance with this filing, please contact an FHH attorney and we would be happy to help. 

FCC Ends COVID-19 Pandemic Relief Measures for Political Advertising Lowest Unit Charge Calculations

By Jackie Fisher on Posted in Broadcast, FCC, Political Ads

On the heels of the expiration of the federal COVID-19 Public Health Emergency, the FCC has announced that they too will be rescinding some pandemic-related relief measures. As of Monday, May 15th, the FCC issued a Public Notice announcing that, effective immediately, broadcasters will no longer be permitted to exclude free time that they provide to commercial advertisers when calculating a station’s lowest unit charge (“LUC”). 

Broadcast licensees are typically required by the FCC to charge legally qualified candidates no more than the LUC for the same class and time for advertising in connection with their campaigns. However, at the onset of the COVID-19 pandemic, broadcasters faced broad cancellations of commercial contracts. With excess advertising time inventory, broadcasters sought to give advertising time away for free, but such donations would have lowered a station’s LUC to zero. As such, in March of 2020 the FCC issued guidance allowing broadcasters to air free advertisements without impacting the LUC calculations of stations.  

With today’s Public Notice, the FCC announced the end to this policy noting that the unprecedented circumstances that prompted the 2020 pandemic guidance were no longer present. Accordingly, broadcasters and other regulatees that are subject to section 315(b) of the Communications Act should immediately begin to include free time that they provide to commercial advertisers when calculating their LUC. 

If you have any questions about what this means for your station, please contact your friendly FHH attorney. 

FCC Announces EEO Mid-term Reviews Begin June 1 and New Online Public Inspection File EEO Mid-term Requirement for Radio Stations

By Sara Hinkle on Posted in Broadcast, Deadlines, EEO, FCC

The FCC announced today via Public Notice that mid-term EEO reviews for radio stations in DC, Maryland, Virginia, and West Virginia will begin on June 1.  We discussed EEO mid-term reviews earlier this year in anticipation of this announcement. 

  • The Public Notice stated that “each television station that is part of an employment unit of five or more full-time employees and each radio station that is part of an employment unit of 11 or more full-time employees is subject to” this mid-term EEO review. 

This mid-term review will entail the FCC staff checking the relevant stations’ Online Public Inspection Files (“OPIFs”) to evaluate both:  (1) the annual EEO Public File Report due on June 1 and (2) the next most recent EEO Public File Report uploaded.   

  • The Commission also announced that when radio stations upload their EEO Public File Reports to the OPIF for mid-term reviews, they will be required to indicate whether their employment unit has 11 or more full-time employees.  Stations will do so from the Settings section of the OPIF under a new “Mid-term Review” tab.  This will identify to the FCC which radio stations uploading EEO Public File Reports are subject to mid-term reviews. 
  • When television stations upload their EEO Public File Reports to their OPIFs, they will not be required to answer this question regarding the number of employees in their employment unit because their threshold for triggering mid-term reviews is the same as the threshold that requires an EEO Public File Report to be uploaded in the first instance.  Accordingly, the television station OPIFs will not have a “Mid-term Review” tab. 

If you have any questions regarding EEO mid-term reviews, answering the new question in the OPIF, or if you need assistance with your EEO Public File Report, please contact your friendly FHH attorney. 

FCC Announces EEO Audits

By Jackie Fisher on Posted in Deadlines, Enforcement, FCC

On April 24, 2023 the FCC released its most recent list of broadcast stations that will be audited regarding their compliance with the FCC’s Equal Employment Opportunity (“EEO”) rules. Licensees of the audited stations will have to upload their audit responses to their online public inspection files by June 8, 2023. 

Approximately twice per year, the FCC randomly selects stations for audit to ensure that they are fulfilling their EEO obligations. Broadcast “Employment Units” (as that term is defined by the FCC)  with five or more full-time employees are required to recruit broadly for minority and female applicants for job openings. Recruiting broadly entails wide distribution of job postings, recruiting from community sources, and hosting events to educate the public on careers in broadcasting. For broadcast employment units with fewer than five full time employees, an audit response is still required, but response requirements are less rigorous.  

Stations must also keep detailed and careful records of these recruitment activities, which they will be expected to produce when audited. 

If your station is on the FCC’s EEO audit list, be sure to carefully review the instructions provided in your audit letter and if you have any questions, contact your FHH attorney for guidance.  

FCC Chair Announces “Future of Television” Initiative and Shares Update on Next Gen TV Transition 

By Mark Malonzo on Posted in ATSC 3.0, FCC, Media

During her address today at the 2023 NAB Show, FCC Chairwoman Jessica Rosenworcel shared two developments in the Next Generation Television (“Next Gen TV” or “ATSC 3.0”) rulemaking.  

The Future of Television Initiative  

The Chairwoman introduced the Future of Television initiative (the “Initiative”), a private-public leadership group hosted by the NAB, dedicated to “develop[ing] a roadmap for a transition to ATSC 3.0 in a way that serves the public interest.”    

To that end, the Initiative will harness the expertise of stakeholders from the broadcast industry, government, and public interest groups to serve on its three working groups:   

First, a working group on consumer protection will focus on challenges such as the deployment of a technology that is not backward-compatible with pre-existing TV sets.  Chairwoman Rosenworcel emphasized that “[w]e can’t saddle consumers with unworkable [TV] sets or big expenses just to continue watching the local television that they know and trust.”    

Second, a group dedicated to identifying the “conditions needed to get to the other side [of the transition]” will discuss technical details on a wide breadth of issues ranging from the state of simulcasting and capacity for multicasting to labelling standards for tuners.    

Third, a group of stakeholders will work towards establishing post-transition broadcast rules.  “We are going to need clear rules and a clear understanding of how they fit in communications law,” said Chairwoman Rosenworcel.  

The Initiative will soon be contacting stakeholders to begin the “big-picture dialogue” that requires widespread participation to be successful.  

Update on the Next Gen TV Rulemaking  

Chairwoman Rosenworcel also announced that a draft Third Report and Order and Fourth Further Notice of Proposed Rulemaking is presently circulating within the FCC that would to “update” rules that “balance the benefits of stations moving to ATSC 3.0 with measures that minimize cost and disruption for the viewers that still rely on ATSC 1.0 programming.”  The Chairwoman contextualized the proposed updates within recent progress in the deployment of Next Gen TV, including the expansion in reach of ATSC 3.0 signals to 60% of television markets, and inclusion by manufacturers of ATSC 3.0 tuners in newer television sets.    

Reflecting on the significance of Next Gen TV to the future of broadcast, the Chairwoman stated, “we will see innovation in broadcasting that will be on par with the new services that have emerged on so many of the other screens around us.”    

For more information or to discuss ASTC 3.0 rules as they relate to your station, please contact your FHH attorney.  

FCC Opens Rulemaking Proceeding to Implement the Low Power Protection Act’s Window for Eligible LPTVs to Apply for Conversion to Class A Designation

By Mark Malonzo on Posted in Deadlines, FCC, LPTV, Media

On March 30, 2023, the FCC released a Notice of Proposed Rulemaking (“NPRM”) seeking comment on the following proposed rules for a one-year filing window for eligible LPTV stations to apply for conversion to Class A designation: 

Eligibility Requirements 

The Commission proposes three eligibility requirements that LPTV stations must meet to apply for conversion to Class A status, which include compliance with:  (a) operating criteria during an eligibility period, (b) a Designated Market Area requirement, and (c) interference requirements for Class A stations.  Details regarding these eligibility requirements are below. 

Compliance with Operating Criteria During the 90-day Eligibility Period   

The FCC proposes to limit eligibility to LPTV stations that met three operating criteria during the period between October 7, 2022, and January 5, 2023 (the 90-day “Eligibility Period”).  The station must have:  (1) broadcast at least 18 hours per day, (2) broadcast an average of three hours per week of locally produced programming, and (3) complied with the operating rules for LPTV stations.   

Under the proposed rule, the FCC would require that applicants certify compliance with these three criteria and submit supporting documentation.  It specifically seeks comment on what types of supporting documents the FCC should require. 

As proposed, TV translators and stations that were silent at any point during the Eligibility Period would be ineligible.     

Compliance with a Designated Market Area Requirement on January 5, 2023 

The FCC proposes to require that the station, as of January 5, 2023, operate in a Designated Market Area (“DMA”) with no greater than 95,000 television households.   

Under that rule, the FCC proposes to base its definition of “operation” on the location of the station’s transmission facilities.  It invites comments on that definition, as well as possible alternatives, including a definition based on the DMA in which the station’s protected contour falls. 

In addition, the FCC seeks comment on its proposed use of Nielsen DMAs to define a station’s local market.  The Commission noted that the LPTV Broadcasters’ Association (“LPTVBA”) advocates for a standard based on Metropolitan Statistical Areas (“MSAs”) and Rural Service Areas (“RSAs”) as defined by the Office of Management and Budget.  MSAs include “core areas containing a substantial population nucleus,” as well as adjacent communities highly integrated both socially and economically with the core area.  RSAs include all areas not classified as urban. 

Compliance with Interference Requirements for Class A Licensees  

The FCC proposes that applicants demonstrate compliance with interference requirements for Class A stations. 

Application Process 

The FCC proposes styling these Class A conversion applications as modifications of existing licenses.  It also proposes reviewing facilities as they existed on the application date. The FCC would then refuse to consider applications for other modifications submitted in conjunction with the Class A modification applications.  

As proposed, applicants holding construction permits to modify a license would need to either license the facility as modified prior to applying for Class A status or apply with the station’s unmodified facilities and later seek modification after obtaining Class A status. 

Requirements Upon Filing Application 

The FCC proposes that, after filing an application, stations comply with operating rules for full power stations, including children’s programming and Online Public Inspection File requirements.  As with the operating criteria during the Eligibility Period, the FCC likewise proposes compliance with the minimum daily broadcast and locally produced programming rules, commencing on the day the station files for Class A conversion. 

License Standards 

In addition to requiring converted stations to comply with the full power operating rules and the eligibility requirements discussed above, the FCC seeks comment on a proposal to end a station’s Class A eligibility if its DMA grows in excess of 95,000 television households after licensing pursuant to the Class A conversion window. 

For more information on the filing window or to discuss commenting on any of these proposed rules, please contact your attorney at Fletcher, Heald & Hildreth.

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