Posted February 14, 2019
By Lee G. Petro
At its February 14th meeting, the FCC gave a rather significant Valentine's Day gift to broadcasters, eliminating the requirement that larger radio and television stations submit the EEO Mid-Term Report (FCC Form 397) at the midpoint of their license terms. While the FCC will continue to conduct EEO mid-term reviews, it determined that filing the EEO Mid-Term Report was no longer necessary, as most of the information required for an EEO mid-term review is already available in a broadcaster's Online Public Inspection File.
Specifically, the EEO Mid-Term Report required broadcasters to provide three pieces of information: (i) the number of full-time employees; (ii) the point of contact for the station(s) that is responsible for compliance with the EEO rules; and (iii) the two most recent Annual EEO Public File reports. In eliminating the obligation to file the EEO Mid-Term Report, the FCC reasoned that the point of contact information and the Annual EEO Public File reports are already kept in a broadcaster's Online Public Inspection File. As such, the additional requirement of filing an EEO Mid-Term Report with the FCC was unnecessary.
To gather the third piece of information requested in the EEO Mid-Term Report—the current number of full-time employees—the FCC will require that radio station employment groups indicate when uploading their Annual EEO Public File Reports whether or not they have 11 or more full-time employees (the number which triggers the need for an EEO mid-term review in radio). Because TV licensees are subjected to EEO mid-term reviews when the station employment group only has five or more full time employees—the same number that triggers the requirement to file Annual EEO Public File Reports—the FCC deemed such a requirement for TV licensees unnecessary (i.e., if a TV station is filing Annual EEO Public File Reports, the FCC already knows the station employment group is large enough to qualify for an EEO mid-term review).
The change in rules will be effective on May 1, 2019. The FCC noted that television stations in Delaware and Pennsylvania will therefore still be required to file their EEO Mid-Term Reports on April 1, 2019.
By Frank Montero on Feb 06, 2019 01:40 pm
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...… Continue Reading
Posted January 28, 2019
By Warren Kessler
With the partial government shutdown mercifully at an end (for now), broadcasters must hurry to update their Online Public Inspection File and make up for a month's worth of missed filings.
As we wrote earlier this month, filing deadlines that landed during the shutdown were extended (with a few exceptions) via a January 2 FCC Public Notice. The new deadline was to have been the second day of normal FCC operations (which would have made those filings due tomorrow, Tuesday, January 29). However, in a Public Notice released a few minutes ago, the FCC extended that deadline an additional day, meaning that FCC filings whose due dates fell from January 3 to January 29 are now due by Wednesday, January 30, 2019. All public file documents that could not be uploaded to the Online Public Inspection File while it was unavailable during the shutdown should be uploaded as soon as possible, and certainly no later than the January 30 extended deadline for FCC filings.
Backlogged uploads and filings include: fourth quarter children's television programming reports on Form 398 (if not already filed in LMS), fourth quarter commercial limits certifications, fourth quarter issues/programs lists, Class A TV continuing eligibility certifications, and NCE fundraising reports.
Because the government is funded for at least the next three weeks, broadcasters in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma will be able (and expected!) to timely upload their annual EEO public file reports in the Online Public Inspection File by Friday, February 1. See our recent advisory for more information on this obligation.
Broadcasters should also take stock of any other filings that, but for the shutdown, would have been due earlier this month (e.g., Special Temporary Authority requests and extensions). As noted in an earlier post, the shutdown did not affect the post-incentive auction broadcast repack, and any filings related to the repack should have been filed as scheduled.
Open Meeting "Lite"
On a related note, now that the FCC is open for business again, the January 30 Open Meeting will take place in person instead of via teleconference. Of course, most of the staff that normally prepare the agenda items and assist the commissioners are just now getting back to work after having been furloughed for several weeks. The show must go on, given the FCC's statutory obligation to hold a meeting at least once a calendar month, but instead of reviewing the items announced on the Tentative Agenda, the FCC will use this meeting to go over what it calls "Commission announcements."
The decision to delay votes on matters originally on the FCC's meeting agenda for January affects two items of interest to broadcasters. First, broadcasters are going to have to wait even longer before they can cease thinking about the now-redundant EEO Mid-Term Report on Form 397. The FCC was prepared to vote on a Report and Order that would have eliminated this reporting requirement. The impact of the delay will be fairly limited, however. According to an advance draft of the Report and Order, the substantive changes would not have gone into effect until May 1, 2019. Given that the last round of EEO Mid-Term Reports for this license renewal cycle are due on April 1, 2019, and the cycle does not resume until 2023, the delay in voting on the item will have no practical impact on stations unless the delay drags on for years.
Also originally up for a vote at the January meeting was a Notice of Proposed Rulemaking seeking several changes in the way the FCC currently processes competing (also known as "mutually exclusive") license applications for noncommercial educational ("NCE") FM and television stations and low power FM ("LPFM") stations. In this proceeding, the FCC is seeking to improve its review process by eliminating certain requirements for NCE applicants, amending its rules governing the "holding period" during which licensees must maintain certain station characteristics, and generally updating rules that are deemed confusing or unnecessarily time-consuming. With this item now off the January meeting agenda, action on it will also have to wait, likely until the February Open Meeting (assuming the federal government remains open through then).
Until then, broadcasters should work on meeting their accrued regulatory obligations that couldn't be fulfilled during the shutdown, and might do well to expedite any planned future filings. You never know when the next FCC shutdown will occur.
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