First, the good news is that the FCC has addressed what happens if you have a filing due while the Commission is shut down.  Filings are not due until the business day after the day normal operations resume.  So, if the shutdown is resolved on Thursday, normal operations resume on Friday, filings would not be due until the next Monday, which is the next business day.  Should the Commission have difficulty getting the online portals back up in time, they may issue further waivers of deadlines.

Second, the question of how to respond to members of the public who request documents from the public file is not answered by the Commission.  It is unlikely that the staffers had time to think about this issue during the mere four hours they had on Monday to wrap up work before closing everything down.  The best practice, however, is to try to be as accommodating as possible given the situation.  To the extent that you still have hard copies of your public file from before the online switch last year, you can access those and provide them to the public.  For documents that exist solely online (for example, Children’s TV reports or renewal applications filed since the online switch), see if you have paper back ups just in case to provide. If not, you will be unable to fulfill the request but explain exactly why it is that you are unable to.

And, what about the filings that are due on October 10th? Commercial TV and Class A stations have Children’s TV reports (Form 398) to file as well as the responsibility to post information about their commercial limits in children’s programming for the last quarter.  NCE and commercial stations also have the responsibility to prepare and post issues/program reports for the last quarter. Class A stations also have to prepare and post their quarterly Class A eligibility certification.  To the extent that the Children’s TV filing system is incapacitated and may be so through October 10, it is very likely that the waiver of the deadline outlined above will apply.  With respect to the other quarterly items (children’s tv commercial limits records, Class eligibility and issues/program reports), you should still prepare those on time and place paper copies in your physical public file until such time as the system comes back up.

Hopefully the shutdown will be shortlived and the Commission will be able to get back to business – and filings – as usual.  If not, be prepared for paper cuts from all of the manual filing you will be back to doing.

In most instances, regulatory fees increased slightly over last year.  Stations should remember to include auxilliary licenses in their payments (an extra $10 for each).  Late filings are subject to a 25% penalty, so paying on time is important.

 On August 22, 2013, the FCC held a webinar to discuss the latest version of its TV Study software to be used in performing interference analyses during the repacking process.  We are now on Version 1.2.7 of the TV Study software.  One of the latest changes allows cross-border interference studies for Canadian and Mexican stations.

 An early August 2013 presentation to the Commission by the Incentive Auction Task Force included a few interesting notes.  The Task Force is apparently working “directly” with broadcast and cable industries on transition planning and reimbursement issues, reviewing preliminary findings on cost models, timing, and logistics of the transition, and has begun long-term planning for a Fund Administrator.  Next up on the reimbursement front is a planned release of “preliminary reimbursement cost guidelines” for public comment, and a workshop in September on “broadcaster transition and reimbursement processes.”  As of this writing, no dates have been announced for the release or workshop.  We suspect that a path forward on reimbursement mechanisms has been decided upon, and the release and workshop will present opportunities to understand and shoot holes in the FCC’s gameplan.  That seems a little backward, but that’s no different than most of this process to date.  All broadcaster eyes should be focused on this process, as the reimbursement mechanisms could well present a “make or break” situation for the future of a station affected by repacking.

The FCC’s lastest consent decree for noncommercial violations is a good example.  The decision states that “the underwriting announcements at issue here may have violated the underwriting laws by using the word “free,” which appears to exceed the bounds of what is permissible and within licensee discretion under the Act and pertinent Commission precedent.”  The decision does not provide excerpts from actual underwriting announcements showing how the word “free” was used.  The “may have violated” language stops short of a finding that the broadcaster violated the FCC’s noncommercial policies by using the word “free,” but that is very likely only because of the consent decree context.  And without an example, it is impossible to gauge whether the use was a close call, or egregious.

For years, the FCC has taken the position that the word “free” when used in connection with the cost of a product or service is an impermissible reference to price information.  Price information includes any indication of savings or value associated with the product.  While this decision does include a footnote referring to price information, there is no information provided on the context of how the word was used by the broadcaster.  So that leaves us to scratch our heads and conclude that any time a NCE broadcaster considering underwriting copy sees or is inclined to use the word “free,” an internal alarm bell should sound.  To the extent the word is in any way related to price (i.e., “interest-free”), it should be stricken.  Similarly, if “free” is in any way an inducement to buy, sell, rent or lease (i.e., “six months free service”), it should be stricken.  But if “free” is not related to price or an inducement (i.e., describing a living facility as “pet-free”), the word might pass muster, but should still be closely scrutinized to be sure that in the context used, it does not exceed a description of the product or service and become a comparative or qualitative statement. 

Whew!  Those mental gymnastics make us tired too.  We salute those underwriting copy editors that walk the fine line of FCC noncommercial regulation.

 A Class A television station in California recently found that out the hard way, when the FCC used its CDBS address to mail it a letter requesting information from the licensee about its failure to comply with certain public file requirements.  When no response from the licensee arrived, the FCC sent a second letter, this time to an address included in one of the station’s recent applications, as well as the CDBS address.  The licensee finally responded, explaining that the CDBS address was to the station’s former treasurer.  The FCC’s response?  A $6,000 fine because of the licensee’s failure to ensure that FCC correspondence delivered to its address on record would promptly reach the licensee.  And that amount was on top of a $10,000 fine for admitted public file violations.  Ouch.  It’s never good to get the FCC’s ire up by not responding.  Check your CDBS address to be sure it is accurate.

Ultimately, the FCC has proposed to make the December deadline a permanent one, but they continue to extend/delay the broadcast ownership rulemaking proceeding where they have proposed that permanent change.

In the FCC’s decision, the licensee of a Class A television station disclosed in its renewal application that it had not come into compliance with the rule requiring advertising agreements to contain non-discrimination clauses until “several months” after the rule went into effect.  The FCC’s reaction to this disclosure was in a footnote, where it declared that “we will excuse this delay in compliance as a de minimis violation on this one occasion but caution the licensee of the importance of continued full implementation of this requirement.”

 The FCC always has discretion in deciding whether to fine a broadcaster for a rule or policy violation.  There might have been a few factors at work in its decision not to do so here.  First, the station did not air commercial “spots” but only sponsored text crawls.  Second, the FCC simultaneously issued a $9,000 fine to the station for Children’s TV reporting, public file, and incorrect material factual information violations.  We surmise that a third reason might be that the FCC’s nondiscrimination policy, adopted in 2008, was modified in 2010 to change the originally adopted “race and gender” language to “race and ethnicity,” leaving at least some question as to the effective date for compliance.

Now is a good time to check your station’s advertising agreements to ensure that they contain appropriate non-discrimination clauses.  We doubt the FCC will be so generous in the future.

AM stations are also now entitled to a notice from a new tower owner at least 30 days before construction is to begin so that the AM station can study the potential impact.  Unbuilt AM station permit holders are not entitled to notice.

The new rules only apply to tower owners owned by other FCC licensees, unless an FCC licensee seeks to operate from a non-FCC licensee owned tower.  In that situation, the tower owner would have to comply even though it was not an FCC licensee.