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.

August 1, 2013: AM & FM Stations in California file your renewal application electronically via Form 303-S. Also file EEO Form 396 with, if applicable, two most recent EEO public file reports. Place current EEO public file report in public file and post copy on station website, if applicable. NCE Stations Only: also file biennial ownership report via Form 323-E.

TV, Class A & LPTV Stations in Illinois & Wisconsin: file your renewal application electronically via Form 303-S. Also file EEO Form 396 with, if applicable, two most recent EEO public file reports. Post current EEO public file report to online public file and post copy on station website, if applicable. NCE Stations Only: also file biennial ownership report via Form 323-E.

AM & FM Stations in North Carolina & South Carolina: if full time employee threshold is met, complete EEO public file report and place same in public file as well as post on website. NCE STATIONS ONLY: also file biennial ownership report via Form 323-E.

TV & Class A Stations in North Carolina & South Carolina: if full time employee threshold is met, complete EEO public file report. Post same to online public file and station website.
August 1 & 16, September 1 & 16, October 1 & 16: All AM & FM Radio Stations in California: air your POST-filing announcements.
August 1 & 16 and September 1 & 16: TV, Class A & LPTV Stations in Iowa & Missouri: air your PRE-filing announcements
AM & FM Stations in Alaska, American Samoa, Guam, Hawaii, Oregon & Washington: air your PRE-filing announcements.
August 2, 2013: reply comments due on FCC’s new proposed indecency standard

August 23, 2013: AM & FM Stations in Arizona, Idaho, Nevada, New Mexico, Utah & Wyoming: complete and post to your public file documents relating to pre- and post-filing broadcast renewal announcements.
TV, Class A & LPTV Stations in Michigan & Ohio: complete and post to your online public file documents relating to pre- and post-filing broadcast renewal announcements.

On the radio side, two AM stations have gone dark, three more commercial FM stations are on the air, and 40 more non-commercial FM stations are on the air.  In addition, there are nine fewer FM translators operating.  Low Power FM stations dropped by five.

On the television side of things, there are 15 fewer Class A UHF stations, and six fewer Class A VHF stations.  Full power television stations, commercial and non-commercial, remain static, with an increase of one UHF commercial TV station during the quarter.  UHF TV translators increased by six, but VHF TV translators dropped by seven.  UHF LPTV stations increased by five, but VHF LPTV stations dropped by three.

A quick look back to the end of 2011 shows that all of the above trend lines hold true for at least the last 18 months.

We suspect that the station being fined here did something that we’ve seen multiple times.  They bought the STL equipment from a company that promised to install the equipment, and either (i) never mentioned the requirement for FCC licensing, or (ii) mentioned it as included in the price, but then never filed for it.  Of course, there is option three, where the company tells the station owner about the licensing requirement, but it is unclear as to who must take care of that, and it slips through the cracks.

Now is a good time to make sure your STL operation is licensed, and to confirm that the licensed parameters are consistent with your STL operation.  If either is not the case, actions toward compliance should be taken immediately.

Based on the dizzying number of stations being fined, we were curious enough to go back and run the numbers on children’s television fines for the month of July, and the grand total is $202,000.  That’s in one month, on children’s television related fines only.  About 25 stations were fined amounts ranging from as low as $3,000 to as high as $20,000.  In many instances, the FCC is increasing the fine because stations have not voluntarily disclosed their late or non-filings in their renewal application.  That should be a lesson to any station owner filing for renewal – if filings have not been made on time, or documents not placed in the public file on time, those circumstances mean that a station cannot check “yes” to the required certification statement on the renewal form.  If you do, you open the door to being fined, or worse, to being accused of lacking candor with the Commission.

We cannot see the future, but we feel comfortable making a prediction that the FCC’s children’s television fines are not over.

The main purpose of the FCC’s announcement was to ask for input on its repacking data and software. TV stations should take note of the following statement – “this information and analysis will permit broadcasters to validate the accuracy of the information regarding their stations or facilities contained in the FCC’s databases, to ensure that the staff has correctly identified all relevant constraints on repacking.”  In other words, stations should double check the FCC now to be sure they aren’t left by the roadside later.  For that, we recommend calling your consulting engineer, who will probably have the data set and a download of the software.

The FCC’s blog announcement goes on to indicate that the data/software release “provides an opportunity for broadcasters to evaluate the range of channels to which they could be repacked consistent with the requirements of the Spectrum Act and the Commission’s rules if they are not a “winning bidder” in the incentive auction.  Stations that don’t plan to bid in the auction fall into this category.   Again, a call to your consulting engineer might be helpful there.  Here’s a third eye opener.  The FCC openly states that “it is important to note that in these analyses, we make certain assumptions based on information in the record so that the released data has meaningful value to the public.  Those assumptions do not imply any final Commission determination regarding the information provided today.”  Sounds like a little “cover” for what has been a pretty tenuous appoach to figuring out how to do all of this.

And finally, to put all television broadcasters at ease, the FCC’s blog entry closes with a statement that it recognizes “that repacking is complicated, and that it will take time for people to review and understand the materials we are releasing today.”  But that ease is short-lived, since the FCC then asks for “concrete ideas about how to best develop the repacking methodology.”  We read into this last statement that they are still very much trying to figure out if, and how, this whole thing will work.

On a related note, we were able to finally access the June 27th Incentive Auction Update presentation made to the FCC Commissioners, and found a few very interesting tidbits in the presentation.  First, the FCC has hired a company named “Widelity” to review equipment cost and availability, tower crew availablity, study internal data on existing equipment, evaluate the reimbursement payment mechanism, and explore the tax treatment of various approaches to reimbursement.  No word on when that report will be available, or whether it will be released, but the subject matter sure is interesting.

We did a little digging online about Widelity.  All of their 8 principals or 19 team members have experience in or come from the wireless and fiber industries.  None of their brief biographies mentioned broadcasting expertise or experience.  That probably explains why their website announces that they have hired outside consultants to assist them with the FCC study, namely Joe Davis, a 30-year broadcast consulting engineer with Chesapeake RF Consultants, and David Cole, a senior appraiser with experience in broadcast appraisals.

Second, it is clear that the staff and Chairwoman Clyburn continue to meet with and/or contact high level Canadian and Mexican officials to resolve interference issues for stations along the borders.  Third, it appears that the FCC will soon embark on a program to develop waivers and special temporary authority procedures to facilitate “pilot projects” including channel sharing pilot projects.  That should be interesting.  Finally, the plan (for now) remains for the FCC to adopt a Report & Order in 2013 and hold the broadcast incentive auctions in 2014.

A new update is to be presented at the FCC’s open meeting in August.

To review, the sponsorship identification rules require broadcasters to identify sponsors on-air whenever any money, service or other valuable consideration is paid or promised to the station for the broadcast of program material.  The idea behind the rule is that the listeners and viewers are entitled to know who seeks to persuade them.  The rules contain some exemptions, the most familiar of which is that when it is clear from the broadcast material that the mention of the name of the product constitutes a sponsorship identification, then the mere inclusion of the product name is sufficient to identify the sponsor, and no further announcement is needed.  Otherwise, the sponsor’s corporate or trade name must be included.

Seems simple enough, right?  Wrong.  In the consent decree case, the FCC received a complaint that the station had aired advertisements sponsored by The Cigarette Outlet, but intentionally omitted the sponsor of the announcements in order to avoid violating the FCC’s rule prohibiting the broadcast of cigarette advertisements.  During the investigation, the station argued that it was unnecessary to include the advertiser’s full name in the announcements because “the identity of each advertisement’s sponsor and the fact of sponsorship of its business were obvious” given that the advertisements included the address and phone number of The Cigarette Outlet, as well as directions to its only store.  From that twisted explanation, you can glean that the station was mentioning the advertiser’s products, but craftily avoiding a mention of the advertiser’s name, hoping that in doing so, it was meeting the sponsorship id rule because it was “clear”, from the products being mentioned, who the advertiser was.  The FCC disagreed without explaining why, and a consent decree followed.  We suspect that the other tobacco products being mentioned didn’t make the sponsor’s identification clear enough for the FCC, even though the advertiser only had one store.

The scope of the consent decree is extensive.  First, the station has to make a $15,000 “contribution” to the government.  Second, the station licensee must take certain actions, including (a) creating operating procedures for broadcasts subject to the sponsorship id rules, (b) developing a compliance checklist for employees to follow, (c) establishing a two-employee cross check process for review of every announcement prior to broadcast, (d) creating a “compliance manual” and a compliance training program for initial and annual employee training, (e) notifying advertisers of the sponsorship identification requirements, (f) establishing a hotline for employees to call to report violations of the compliance plan (g) including a clause in employee contracts related to compliance with sponsorship identification laws, and (h) filing a compliance report with the FCC at least annually.  These obligations continue for 36 months.

That’s not all.  The station licensee also agreed in the consent decree that if it receives a future notice of apparent liability from the FCC alleging violation of the sponsorship identification rules, it will suspend each employee accused of violating the rule, investigate the matter, re-train employees, and take disciplinary action, up to and including termination, if the new incident results in a final ruling from the FCC that a rule violation occurred.

In case you were brushing the sponsorship identification rule aside at the start of this article, we apologize if that last paragraph made you spill your coffee (or choke a little).  It certainly got our attention.  In summary, it would now seem to be the case that an advertiser with the word “cigarette” in its name presents a sponsorship identification problem for any broadcaster.

“As with paper public files, the Commission staff would not review the material placed in each station’s online public file for purposes of determining compliance with Commission rules on a routine basis.  Thus, the purpose of the online hosting would simply be to provide the public with read access to the material.”

Not so fast.  In connection with a TV station’s renewal application, the FCC fined a station $9,000 for 18 late-filed quarterly children’s television reports, 17 of which the licensee admitted to filing late, but one that the Commission noticed on its own.  For that one, the decision plainly reads that, “a Commission review of the Station’s online public file showed that the report for the first quarter of 2013 was also filed late.”

Just between us, we can tell you that the FCC staff has earlier taken the “missing from the online public file” approach with us verbally as we have addressed various license renewal issues with them by telephone.  They are now openly acknowledging that they are reviewing the online public file, and will issue fines for violations.  That’s a lot different from the days when something placed in the public file late was undetectable absent an investigation.  Everyone can at least breathe a sigh of relief that this wasn’t simply a random check of the file and issuance of a fine.  It only came up in the context of an admitted violation, which had the FCC on the prowl.  Nevertheless, all full power and Class- A television stations should take note at the power (and truth serum) that the online public file provides to the FCC.