David Oxenford

By: David Oxenford, Wilkinson Barker Knauer

On the surface, September appears to have few scheduled regulatory filing dates and deadlines, but it is period in which many broadcasters will be busy with deadlines that occur in early October and into the rest of the Fall.  TV stations should be finishing their decision-making on must-carry/retransmission consent elections, which need to be in their public files by October 2 (as the 1^st is a holiday).  In preparation for the early November filing window for new LPFM stations (see our article here), potential applicants should be determining if a station can technically “fit” in their area without prohibited short spacings to other stations; if one can be located in their area, they need to locate a transmitter site; and they need to take all the steps needed to be ready to file their application in the early November window.  One of the first regulatory dates of note in September is the freeze on FM translator modification applications that goes into effect on September 1 in anticipation of the LPFM window.  The freeze will be in effect at least through the end of the LPFM filing window on November 8.

September will also bring the date for the filing of annual regulatory fees by commercial stations.  We recently noted that the FCC earlier this month released its Report and Order setting the amount of the annual regulatory fees that broadcasters must pay, but the Commission has not yet followed up on that Order by issuing a Public Notice setting the dates for payment.  As these payments must be made before the federal government’s October 1 start of the new fiscal year, we expect that Public Notice any day.  We also expect that, as in the past, the FCC’s Media Bureau will release a fee filing guide for the broadcast services.  Licensees should continue to monitor this item closely so that they are ready to pay those fees in a window that will open in September, as the failure to timely pay regulatory fees will result in substantial penalties.

Early October will also bring the first Nationwide EAS test in two years, scheduled for October 4 (with a back-up date of October 11 if there is a real or threatened emergency near the October 4 scheduled date).  In anticipation of that test, by September 15, 2023, broadcasters are to review and update, if necessary, their Form One information in ETRS (see our post here about the FCC’s Public Notice setting this deadline to update Form One and providing other information about the test).  ETRS is the FCC filing system where stations report on the results of the EAS test.  Form One is filed before the Test to provide the FCC with basic identifying information about the broadcaster and their EAS equipment.  Form One was required to have been filed by all broadcasters by February 28, 2023 (with some limited exemptions for translators and satellite stations).  The FCC has previously issued a reminder about that filing deadline, urging any broadcaster who did not timely file Form One to do so immediately.  This September 15 deadline is for updates that result from station sales, moves, or other changes since Form One was filed.

Comments are due by September 21, 2023 (with reply comments due by October 6) on the FCC’s Order and Notice of Proposed Rulemaking (“NPRM”) proposing changes to the digital audio broadcasting rules to facilitate greater digital FM radio coverage.  The NPRM tentatively concludes that there is merit to two petitions for rulemaking filed by NAB and other parties (available here and here), asking the FCC to permit increased FM digital effective radiated power beyond the existing levels and to allow a digital FM station to operate with asymmetric power on the digital sidebands (for more details about these petitions, see our article here).  The FCC seeks comment on a number of specific questions including when a station can seek higher digital power without submitting a contour analysis or otherwise seeking Commission prior approval; whether stations planning asymmetrical side bands need to give notice to adjacent channel stations; whether there is a risk of interference to lower powered FM stations, secondary stations (LPFMs and translators), and even broadband operators who suggest possible interference to equipment that they operate on FM channels; and whether any potential interference calls for limits on the proposed rule changes.

Another action we could quite well see in September is the confirmation of Anna Gomez to fill the long-vacant fifth seat on the FCC.  Her nomination was approved by the Senate Commerce, Science, and Technology Committee in early July (see our note here) but has not yet been confirmed by the full Senate. The nomination is not effective until the full Senate approves it. Press reports indicate that this may well happen in September soon after Congress returns after Labor Day from their August recess.  We wrote here about some of the broadcast issues that a full Commission could consider.

Looking at other coming attractions in October, October 1 is the “snapshot” date for broadcast ownership.  All licensees of commercial and noncommercial full-power stations, and of low-power TV stations, must file an ownership report by December 1, 2023, reflecting their ownership as of October 1 (see our article here on the FCC’s recent reminder about these reports). These Biennial Ownership Reports are filed every other year, and they are used by the FCC to track the composition of those who own broadcast stations in the US.  These reports not only detail ownership and control of broadcast stations, but also report on the race and gender of station owners, and their other broadcast interests (see our article from 2021 about the importance the FCC attaches to these filings).  The LMS system was designed to track attributable owners through all of their broadcast holdings. Thus, each individual and entity who has an interest in your station needs to obtain its own FCC Registration Number (FRN).  The FRN is used in the reports of all stations in which that individual or entity has any interest.  Additional reports also need to be filed for each entity that has an attributable interest in any licensee.  The process of preparing these reports for entities with interests in an licensee and of obtaining FRNs for all attributable entities and individuals can take time (e.g., you need the social security number for all individuals with interest in commercial licensees and the EIN for all entities – see this article for special rules for certain board members of noncommercial licensees), so you should start  to gather this information early.

October 2 is the deadline by which radio and television Station Employment Units in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Missouri, N. Mariana Islands, Oregon, Puerto Rico, and Washington with 5 or more full-time employees in their station employment unit must upload their Annual EEO Reports to their online public inspection files (OPIFs) and station websites.  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with 5 or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.

October 10 is the deadline to upload to the online public inspection files of all full-power broadcasters and Class A TV stations Quarterly Issues Program lists for the third quarter of 2023.  The lists should identify the issues of importance to the station’s community and the programs that the station aired in July, August, and September that addressed those issues.  As you finalize your lists, do so carefully and accurately, as they are these lists are only official records of how your station is serving the public and addressing the needs and interests of its community of license.  See our article here for more on the importance of the Quarterly Issues Programs list obligation.

Note that there is one other regulatory deadline that could affect many of these October deadlines.  As we noted in the discussion of regulatory fees, October 1 is the start of the federal government’s fiscal year.  This is also the date by which budgets must be adopted to fund the federal government for the coming year (or “continuing resolutions” adopted to allow government agencies to function at their current levels).  There are many in Washington who are concerned that this may not happen by October 1 and could lead to a government shutdown which could affect many of these October dates.  Watch for more news on this as we approach the October 1 deadline.

As always, this list of dates is not exhaustive.  Also note that deadlines can change.  Always review these dates with your legal and technical advisors, and note other dates not listed here that may be relevant to your operations.