By: David Oxenford, Wilkinson Barker Knauer LLP
In May, the FCC voted to change its requirements for public notices of broadcast applications (see our post here) – standardizing the messages that must be conveyed to the public and eliminating the need for newspaper publication in those instances where it was still required. The new rules also require that each commercial station include a link on its website to another webpage where public notice of pending applications is provided, and that link needs to be maintained whether or not a commercial station has any applications requiring public notice pending. That decision will become effective October 30, based on its publication in the Federal Register today. So we thought that we would revisit the summary we provided of the changes in the notice rules.
When a broadcaster files certain types of applications with the FCC, the public must be informed. In May, the FCC issued its Order changing the rules regarding the public notice that must be given – consolidating what was a confusing process with different language and timing for notice about different types of applications into one providing standardized disclosures and scheduling for all public notices. The decision eliminates obligations for the newspaper publication that was required for some public notices. It also requires the inclusion of a permanent “FCC Applications” link on the homepage of each commercial station’s website, whether or not they have any applications pending (noncommercial stations only need to include a link when they have applications pending and their stations are not operational and cannot broadcast the required notice). Let’s look at some of the other changes that are now effective.
First, the FCC did not change the requirements as to which applications require notice to the public. Local public notice is required for applications for new stations and major technical changes, for assignments (sales) or transfers of station licenses (except for pro forma changes where there is no real change in control over the station), for license renewal applications, minor change technical applications that involve a city-of-license change, and certain applications involving international broadcast stations or for the Section 325 authorizations for the export of programming to foreign stations to be rebroadcast back into the US. Notice of designation for hearing of any application is also required. We will concentrate here on the more common applications for changes to US stations, sale and license renewals.
For commercial broadcasters, the FCC abolished all requirements for the publication of public notices in a local newspaper. Instead, broadcasters are required to place a link to “FCC Applications” on the homepage of their website or, if the station does not have a website, on the website of a parent or affiliated company, or if they do not have such a site, on some publicly accessible site (like a community bulletin board, local newspaper site, or that of a state broadcast association). That link must link to another webpage on which the specific text that the FCC now requires for public notice is displayed – stating when an application was filed, the name of the applicant, the type of application, and providing a link to the application itself in the FCC’s database. That link on the homepage for FCC Applications needs to be on the site of all commercial stations whether or not they have applications pending. If at any time the station has no applications pending, they need to note that fact on the page to which the link takes a website viewer, with a date as to when that notice was last updated.
The written public notice needs to be on the site within 5 days of the FCC’s acceptance for filing of an application. An application is “accepted for filing” when the FCC itself issues a public notice which starts the clock running for petitions to deny an application. The notice must be maintained on the website for 30 days. Broadcasters are encouraged to maintain a screenshot or other proof of this publication in case someone ever challenges whether proper notice was given.
Operating noncommercial stations are not required to provide this written public notice. Instead, they can instead rely simply on broadcast public notice.
All operating stations, commercial and noncommercial, must also broadcast notice about the filing of certain applications. Here, too, the FCC standardized the language of the required public notice. It also standardized the timing for these notices – requiring that they be run 6 times, on 6 different days, at least one each week in the 30-day period following the acceptance for filing of the application. The public notice can be run anytime between 7 AM and 11 PM local time. TV stations must give the public notice both by reading the required text and by providing it visually on the screen (not in a crawl). Once completed, specifics as to the dates and times of the required public notice must be placed in the station’s online public file. If a station is multicasting, the notice must be provided only on the primary channel of the station.
The FCC also eliminated the pre-filing announcements that had been required for the two months preceding the filing of a license renewal application. In a separate Order, the FCC made this change effective back in May, even though the rest of the order is only now becoming effective. Post-filing license renewal announcements are still required, though they are to be given on the new schedule adopted for all other applications.
Special rules were adopted for silent stations, for new stations, and for some less common applications and events (like the designation for hearing of an application). Broadcasters should carefully review the details of all the changes that we have merely highlighted here to see how they will affect any notices that you must give – and to make sure that your website for any commercial station (or silent noncommercial station with an application pending) has the new FCC Applications link on your station’s homepage, whether or not you have any applications pending.
David Oxenford is MAB’s Washington Legal Counsel and provides members with answers to their legal questions with the MAB Legal Hotline. Access information here. (Members only access).
There are no additional costs for the call; the advice is free as part of your MAB membership.