Biden Announces Nomination of Anna Gomez to Fifth FCC Seat

By Jackie Fisher on May 23, 2023 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Gomez’s confirmation will come on the heels of the withdrawn nomination of Gigi Sohn. After a sixteen-month lobbying fight, Sohn’s nomination was withdrawn on March 7, 2023.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 May 17, 2023 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 May 16, 2023 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 May 11, 2023 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 April 24, 2023 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 April 19, 2023 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 April 3, 2023 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.

FCC’s Spectrum Auction Authority Expires

By Mark Malonzo on March 24, 2023 Posted in FCC, Spectrum Auctions

On March 9, 2023, the FCC’s spectrum auction authority expired for the first time since it was initially granted in 1993. The authority enabled the FCC to auction spectrum when it received conflicting applications for a frequency in the wireless or broadcast services.

Under the Balanced Budget Act of 1997, the FCC’s spectrum auction authority is the only permissible means by which the FCC may choose among two or more mutually exclusive applications for initial commercial licenses or permits. Expiration of that authority leaves the FCC without any procedure to resolve mutually exclusive applications. As a result, the FCC cannot open any filing windows for new commercial services until the auction authority is reinstated.

In a March 10, 2023 news release, FCC Chairwoman Jessica Rosenworcel reflected on the gravity of Congress’s failure to extend the Commission’s authority. “To date, the FCC has held 100 auctions and raised more than $233 billion in revenues and unlocked extraordinary benefits for the American people. It is my hope that the FCC’s auction authority is restored quickly so that this program is once again able to produce results for consumers and the economy.”

Although we anticipate that the Commission will eventually regain its spectrum auction authority, until Congress acts, the path remains murky for hopeful individuals and companies seeking to obtain new commercial licenses or permits. It is unlikely that the FCC will start a new rule making to propose alternative procedures for resolving competing applications. Moreover, it could take years for an FCC rule making to be adopted.

For more information, please contact your FHH attorney. Subscribe to CommLawBlog for the latest updates on telecom news.

FCC Implements New STIR/SHAKEN and Robocall Mitigation Rules

By Daniel Brown on March 21, 2023 Posted in Deadlines, Enforcement, FCC, Telecommunications

At the FCC Commissioners’ meeting on March 16, the FCC imposed new STIR/SHAKEN and robocall mitigation requirements on all providers, including intermediate providers and regardless of their STIR/SHAKEN implementation status. All providers are now required to take “reasonable steps” to mitigate illegal robocall traffic and must submit a certification and mitigation plan to the Commission’s Robocall Mitigation Database. The deadline to comply with the new “reasonable steps” mitigation standard is 60 days following Federal Register publication of these new rules. The certification and mitigation plan must be filed by the later of: (1) 30 days following publication in the Federal Register of notice of approval by the Office of Management and Budget (“OMB”); or (2) any deadline set by the Wireline Competition Bureau through Public Notice. Any updates to this filing must be filed with the Robocall Mitigation Database within 10 business days of any change to the information previously submitted.

Within 90 days after the deadline to file certifications and mitigation plans with the Robocall Mitigation Database, downstream providers will be required to block traffic from any intermediate provider or originating provider that has not yet filed a certification with the Robocall Mitigation Database. Importantly, the FCC set a maximum fine of $23,727 per call for violations of this mandatory blocking requirement.

By December 31, 2023, the new rules also require the first intermediate provider in the path of an unauthenticated Session Initiation Protocol (“SIP”) call to authenticate the call using STIR/SHAKEN when the intermediate provider receives the unauthenticated SIP call directly from the originating provider. However, this new requirement does not apply to the non-IP portion of an intermediate provider’s network so long as the intermediate provider is working to implement a non-IP call authentication solution. It also does not apply to intermediate providers that are unable to obtain a Service Provider Code (“SPC”) token due to established Secure Telephone Identity Governance Authority policies.

With respect to traffic on the IP portion of an intermediate provider’s network, it is no longer sufficient for an intermediate provider to only respond to traceback requests. Instead, if an intermediate provider does not know whether it receives SIP calls directly from an originating provider, the FCC’s rules now require the intermediate provider to vet the providers immediately upstream from it and perform sufficient due diligence to know the source of the traffic it receives.

The FCC also initiated a new rulemaking proceeding seeking comments from the industry as to whether the FCC should revise its rules to explicitly authorize third-party caller ID authentication. In that proceeding, the FCC will also consider whether it should eliminate the STIR/SHAKEN extension for providers unable to obtain an SPC token.

For more information about these new requirements, please contact the attorneys at Fletcher, Heald & Hildreth.

Upcoming FCC Telecom Deadlines

By Daniel Brown on March 21, 2023 Posted in Deadlines, Enforcement, FCC, Telecommunications

March 31

Supply Chain Annual Report – Providers of advanced communications services that purchased, rented, leased, or otherwise obtained covered communications equipment and services on the Covered List in 2022 must submit an annual report on or before March 31, 2023 covering information as of December 31, 2022. The current version of the Covered List is available at https://www.fcc.gov/supplychain/coveredlist.

International Circuit Capacity Report – Any licensee of a submarine cable between the United States and a foreign point, as well as any common carrier with capacity on a submarine cable between the United States and a foreign point, must file Circuit Capacity Report(s) if it had any activated or non-activated circuits as of December 31, 2022.

April 3

Annual Disability Access Recordkeeping Compliance Certification – All equipment manufacturers for and providers of telecommunications services, interconnected VoIP services and advanced communications services must file their annual certification of recordkeeping compliance with the FCC’s disability access rules for calendar year 2022.

Annual Revenues Report – Telecommunications and interconnected VoIP providers must report annual revenues for calendar year 2022 by this date. The revenue must be reported through FCC Form 499-A. Importantly, the revenue reported on the FCC Form 499-A will be used as a true-up for USF contributions previously billed based on the filer’s projected revenue reported on the prior year’s Form 499-Q.

April 30

First Quarter Payment of Excise Taxes and Filing of IRS Form 720 – Carriers that provide local service are required to collect federal excise tax from end users and pay the tax on a quarterly basis. Carriers must file an IRS Form 720 and make their first quarter payments by this date.

May 1

Certification of Rate Integration and Geographic Rate Averaging – FCC rules require telecommunications carriers providing domestic, interstate, interexchange services to file an annual certification that they comply with the FCC’s policies regarding rate integration and geographic rate averaging.

Second Quarter FCC Form 499-Q – All telecommunications providers, including resellers and interconnected VoIP providers (but excluding those below the de minimis threshold) must file quarterly to report prior-quarter historical revenue and next-quarter projected revenue. However, de minimis filers must maintain documentation to substantiate the de minimis determination on a quarterly basis. Projected revenue is used to calculate the amount of USF contributions invoiced to the provider in the coming quarter. Revisions to the Form 499-Q are due 45 days after the initial filing deadline. Total annual USF contributions are subject to a true-up process based upon the annual FCC Form 499-A.

May 31

Common Carrier Annual Employment Report – All licensees or permittees of common carrier stations with sixteen (16) or more full-time employees are required to report certain employment data, including employee counts by ethnic groups and job categories, to the FCC on an annual basis. All licensees and permittees, regardless of the number of employees, must file any applicable discrimination reports.

For more information about these upcoming telecom deadlines, please contact the attorneys at Fletcher, Heald & Hildreth.