Communications

Headlines:

• FCC Establishes New Enforcement Policy for Student-Run Noncommercial Radio Stations
• CB Radio Owner Receives Fine for Harmful Interference and Lack of Responsiveness

Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in California must begin airing pre-filing license renewal announcements on June 1, 2013. License renewal applications for these stations, and for in-state FM translator stations, are due by August 1, 2013.

TV, Class A TV, and certain LPTV stations licensed to communities in Illinois and Wisconsin must begin airing pre-filing license renewal announcements on June 1, 2013. License renewal applications for these stations and in-state TV translator stations are due by August 1, 2013.

The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.

This Broadcast Station Advisory is directed to radio and television stations licensed to communities in Arizona, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, Washington, D.C., West Virginia, or Wyoming, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

• Assignment of Paired AM Stations Denied by the FCC



• Use of Illegal Cell Phone Jammers Leads to Fines in Excess of $125,000

In this article, Pillsbury communications counsel John Hane argues that “unless it can find a way to make all of the other players in the television industry smaller, the FCC should throw off archaic broadcast ownership regulations that skew the market against the only television service that is free to Americans who don’t want to pay.”

• Delay in Providing Access to Public Inspection File Leads to Fine



• FCC Fines Broadcaster for Antenna Tower Fencing, EAS and Public Inspection File Violations

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by April 10, 2013, reflecting programming aired during the months of January, February, and March 2013.

The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by April 10, 2013, reflecting information for the months of January, February, and March 2013.

TV, Class A TV, and certain LPTV stations licensed to communities in Michigan or Ohio must begin airing pre-filing license renewal announcements on April 1, 2013. License renewal applications for these stations and in-state TV translator stations are due by June 3, 2013.

Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in Arizona, Idaho, New Mexico, Nevada, Utah, or Wyoming must begin airing pre-filing license renewal announcements on April 1, 2013. License renewal applications for these stations, and for in-state FM translator stations, are due by June 3, 2013.

This Broadcast Station Advisory is directed to radio and television stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, or Texas and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.

• FCC Takes Action against Intentional Interference and Unlicensed Operations



• FCC Assesses $25,000 Fines for Unresponsiveness

Introduction

June 1, 2011 marked the beginning of a four-year cycle during which all commercial and noncommercial radio and television stations in the United States will come under special scrutiny by the Federal Communications Commission (“FCC” or “Commission”) as the FCC considers whether to renew each station’s license to broadcast.

What if you could buy a 50-inch television, mount it anywhere in your house, and receive dozens of channels on it for free and without any futzing around? What if most or all broadcast signals, in their native form, were easily receivable on tablets and smartphones?

• FCC Assesses $8,000 Fine for EAS Equipment Installation Problems
• Notice of Violation Issued against FM Station for a Variety of Reasons

This Broadcast Station Advisory is directed to radio and television stations licensed to communities in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.

TV, Class A TV, and certain LPTV stations licensed to communities in Indiana, Kentucky, and Tennessee must begin airing pre-filing license renewal announcements on February 1, 2013. License renewal applications for these stations and in-state TV translator stations are due by April 1, 2013.

Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in Texas must begin airing pre-filing license renewal announcements on February 1, 2013. License renewal applications for these stations, and for in-state FM translator stations, are due by April 1, 2013.

1. Applications for Renewal of License: The three-year long license renewal cycles for broadcast stations in radio services (AM, FM, FM Translator), which began on June 1, 2011, and for television services (television, Class A, LPTV, TV Translator), which began on June 1, 2012, continue in 2013. The date on which a station's license renewal application is due depends on the state or territory in which its community of license is located. All licensees should familiarize themselves now with the dates associated with this important filing, including the dates on which public notice announcements must air in advance of the license renewal filing; the filing date itself, which is approximately four months before the date of license expiration; and the dates on which post-filing announcements must air.

• FCC Issues Multiple Forfeitures for Unauthorized Marketing of Transmitters
• FCC Proposes $35,000 in Fines for Unauthorized Radio Operations

• FCC Punishes the Operators of an Unlicensed FM Station
• FCC Investigates Antenna Structure Violations

TV, Class A TV, and certain LPTV stations licensed to communities in Arkansas, Louisiana, and Mississippi must begin airing pre-filing license renewal announcements on December 1, 2012. License renewal applications for these stations and in-state TV translator stations are due by February 1, 2013.

• FCC Takes Action against Illegal Jamming Devices

• Unlicensed Transmitter Gets Renter into Trouble

The FCC released its long-awaited Notice of Proposed Rulemaking (NPRM) to begin the process of auctioning and repurposing broadcast television spectrum for mobile broadband use. Comments are due on December 21, 2012, and reply comments are due on February 19, 2013.

The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ public inspection files by October 10, 2012, reflecting information for the months of July, August, and September 2012.

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ public inspection files by October 10, 2012, reflecting programming aired during the months of July, August, and September 2012.

Headlines:

• FCC Follows Up a $25,000 Fine With a $236,500 Fine
• Two Tower Owners Fined for Fading Paint

This Broadcast Station Advisory is directed to radio and television stations licensed to communities in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, the Mariana Islands, Missouri, Oregon, Puerto Rico, Saipan, the Virgin Islands, and Washington, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in Colorado, Minnesota, Montana, North Dakota, and South Dakota must begin airing pre-filing license renewal announcements on October 1, 2012. License renewal applications for these stations, and for in-state FM translator stations, are due by December 1, 2012.

TV, Class A TV, and certain LPTV stations licensed to communities in Alabama and Georgia must begin airing pre-filing license renewal announcements on October 1, 2012. License renewal applications for these stations and in-state TV translator stations are due by December 1, 2012.

Headlines:

• FCC Assesses $68,000 in Fines for Unauthorized STL Operations
• EAS Failures Lead to $8,000 Fine

While most broadcasters have only seen a demonstration of the FCC’s new online Public Inspection File database, they must begin to use it in just one week’s time. Advance preparations and a good understanding of the filing requirements are needed to minimize the impact of this dramatic shift in the FCC’s rules on television broadcasters’ operations.

The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.

This Broadcast Station Advisory is directed to radio and television stations licensed to communities in California, Illinois, North Carolina, South Carolina, and Wisconsin, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider that provided service to at least one viewer outside the station’s local service area during 2011. These stations may be eligible to file royalty claims for compensation with the United States Copyright Royalty Board. These filings are due by Tuesday, July 31, 2012 at 5:00pm (EDT).

TV, Class A TV, and certain LPTV stations licensed to communities in Florida, Puerto Rico, and the Virgin Islands must begin airing pre-filing license renewal announcements on August 1, 2012. License renewal applications for these stations and in-state TV translator stations are due by October 1, 2012.

Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in Iowa and Missouri must begin airing pre-filing license renewal announcements on August 1, 2012. License renewal applications for these stations, and for in-state FM translator stations, are due by October 1, 2012.

• Long-Term Violation of an FCC Order Leads to $25,000 Forfeiture
• FCC Issues $10,000 Fines for Obstruction Lighting Violations

With the unprecedented popularity of social media, individuals have increasingly been willing accomplices in undermining their own privacy. Few would have predicted that millions of people would voluntarily log onto the Internet and share detailed private information about themselves, their friends, family and employers. Users of social media have implemented varying privacy safeguards from unrestricted blogs to Facebook posts limited to a customized list of friends. Even those who seek privacy, however, must contend with a growing practice by employers and others of requesting access to password-protected social media accounts. Social media users have lost jobs and educational opportunities as a result of the increased scrutiny of these private postings. Maryland recently became the first state to enact a law prohibiting this practice; several other states and the U.S. Senate and House have similar legislation under review.

• FCC Fines Noncommercial Educational Station $12,500 for Ads
• Public Inspection File Violations Lead to Three Short Term License Renewals
• Main Studio Violations and Unauthorized Operations Garner $21,500 Fine

This Client Alert was republished in Law360 on May 11, 2012.

The Northern District of California continues the series begun by the Seventh Circuit in Sterk v. Redbox Automated Retail LLC, against class actions brought under the federal Video Privacy Protection Act and seeking lucrative liquidated damages simply because a "video tape service provider" retains records of customers' video purchases and rentals past the one-year cut-off.

• The FCC's $10,000 fines for items missing from the public inspection file continue
• License cancellation no obstacle to FCC proposing $18,000 fine against former broadcaster

Introduction

Ten years after adoption of the Bipartisan Campaign Reform Act (“BCRA”) of 2002, popularly known as “McCain-Feingold,” Congress’ and the FCC’s interest in political broadcasting and political advertising practices remains undiminished. Broadcast stations must ensure that a broad range of federal mandates are met, providing “equal opportunities” to all candidates using the stations facilities, affording federal candidates for public office “reasonable access” and treating all candidates for public office no less favorably than the station treats its most favored advertisers. Accordingly, it is imperative that broadcasters be very familiar with what is expected of them in this regulatory area, that they have adequate policies and practices in place to ensure full compliance, and that they remain vigilant to legislative, FCC, and FEC changes in the law.

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, Tennessee and Texas, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Full power commercial and noncommercial radio stations and LPFM stations licensed to communities in Michigan and Ohio must begin airing pre-filing license renewal announcements on April 1, 2012. License renewal applications for these stations, and for in-state FM translator stations, are due by June 1, 2012.

The staggered deadlines for filing Biennial Ownership Reports by noncommercial radio and television stations remain in effect and are tied to each station’s respective license renewal filing deadline.

TV, Class A TV, LPTV, and TV translator stations licensed to communities in Maryland, Virginia, West Virginia, and Washington DC must begin airing pre-filing license renewal announcements on April 1, 2012. License renewal applications for these stations are due by June 1, 2012.

• Inadequate Sponsorship ID Ends with $44,000 Fine
• Unattended Main Studio Fine Warrants Upward Adjustment
• $16,000 Consent Decree Seems Like a Deal
  
  

• Failure to Refresh Tower Paint Garners $8,000 Fine
• FCC Levies $25,000 Fine for Failure to Respond
• $85,000 Consent Decree Terminates Investigation Into Unauthorized Transfers of Control

• Failure to Monitor and Repair EAS Equipment Nets $8,000 Fine
• Fines for Late-filled License Renewals Continue
• $25,000 Fine for Failure to Answer FCC Correspondence

• Malfunctioning Monitor Costs Broadcaster $10,000
• FCC Fines Tower Owner $13,000 For Lighting and Ownership Issues

• Cable Operator Subject to $25,000 Fine for EAS and Signal Leakage Violations
• Late-filed Renewals Garner $26,000 Fine
  
  

In recent months, the owners of radio stations throughout the country have received letters from representatives of Mission Abstract Data, L.L.C., d/b/a DigiMedia (“MAD”), encouraging them to enter into patent license fee agreements with the company. MAD’s letter points out that it has sued some of the nation’s largest radio group owners. Undoubtedly, MAD will use the monies derived from the license fee agreements to help fund the current litigation as well as to demonstrate the “legitimacy” of its patent holdings. This Advisory is intended to provide radio stations with important background information on the case and to identify factors that may come into play as station owners consider the risks, as well as the options, available to them.

Headlines:

• Low Power Broadcaster’s Defiance Results in $7,000 Upward Adjustment
• Unauthorized Post-Sunset Operations Lead to $4,000 Fine for AM Station

Headlines:

• Late-Filed License Application Garners $7,000 Fine
• FCC Fines Noncommercial Broadcaster $5,000 for Alien Ownership Violation

The FCC has announced that full payment of all applicable Regulatory Fees for Fiscal Year 2011 must be received no later than September 14, 2011.

Headlines:

• FCC Increases Fine to $25,000 for Main Studio and Public File Violations
• FCC Reaffirms $10,000 Public File Violation Against Student-Run Noncommercial FM Station

California's Second District Court of Appeal, affirming the trial court's dismissal of Jessica Bower's class action complaint, concluded that Bower alleged "at the most a conjectural or hypothetical injury, not an injury in fact" by claiming she was deceived when she was told she had to pay the advertised sale price for a cell phone plus tax on the phone's retail value. The Bower decision helps define when a consumer has alleged an injury under California's consumer protection statutes and confirms that Regulation 1585(b)(3)"reflects California's general policy imposing sales tax on the retailer and permitting the retailer to collect sales tax reimbursement from the consumer.”

• FCC Fines FM Broadcaster an Extra $5,000 For Inaction
• Inaccurate Tower Ownership Information Ends in $3,000 Fine

• FCC Fines FM Broadcaster for Excessive Power and RF Radiation Levels
• Forfeiture More Than Triples After Consent Decree Default

Introduction June 1, 2011 marks the beginning of a four-year cycle during which all commercial and noncommercial radio and television stations throughout the United States will come under special scrutiny by the Federal Communications Commission (“FCC”), as it considers whether to renew each station’s license to broadcast.

Headlines:

• FCC Begins to Move on Pending Video News Release Complaints
• Failure to Monitor Tower Lighting Results in $12,000 Penalty

• Florida FM Translator Fined $13,000 for Unauthorized Operations
• Latest Public Inspection File Violation Nets Upwardly Adjusted Fine
• Failure to Monitor Inactive Tower Results in $6,000 Penalty

• FCC Levies $10,000 Fine for Noncommercial Station’s Public Inspection File Security Protocols
• Louisiana AM Daytimer Fined for Operations After Sunset
• $7,000 Fine for Late-Filed License Renewal Cancelled

• Antenna Structure Owner's Failure to Act Results in $25,000 Fine
• FCC Fines Microwave Licensee $15,000 for Late-Filed Renewal
• AM Broadcaster Receives Reduced Fine for EAS Violation
  
  

• Failure to Heed Warning by FCC Field Agent Costs Broadcaster $10,000
• FCC Fines AM Broadcaster $6,000 for Excessive Nighttime Power Levels
• AM Broadcaster’s Limited Disclosure of Contest Rules Nets $4,000 Fine

• FCC Increases Fine to $25,000 for Broadcaster's Violations Related to Time Brokerage Agreement
• Upward Adjustment in EAS Portion of Multiple Violation Fine Results in Total Forfeiture of $25,000
• Noncommercial Broadcaster Fined $7000 for Late-Filed License Renewal Application
  
  

Law requires reinstatement and eventual expansion of FCC’s television Video Description rules, and mandates implementation of closed captioning of television programming distributed via Internet.

FCC issues no advance Public Notice of new requirement.

The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ local public inspection files by October 10, 2010, reflecting information for the months of July, August and September, 2010.

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by October 10, 2010, reflecting programming aired during the months of July, August and September, 2010.

The staggered deadlines for filing Biennial Ownership Reports by noncommercial educational radio and television stations remain in effect and are tied to their respective anniversary renewal filing deadlines.

As we reported in a previous Client Alert, full payment of all applicable Regulatory Fees for Fiscal Year 2010 must be received no later than today, August 31, 2010, at the Commission’s St. Louis, Missouri address by 11:59 PM, Eastern Daylight Time.

Revisions implicate stations’ retransmission consent strategy. Comments are due August 17, 2010 and Reply Comments are due August 27, 2010.

The staggered deadlines for filing Biennial Ownership Reports by noncommercial educational radio and television stations remain in effect and are tied to the anniversary date of their respective license renewal filing deadlines

This advisory is directed to television stations with locally-produced programming whose signals were carried by at least one cable system located outside the station’s local service area or by a satellite provider which provided service to at least one viewer outside the station’s local service area during 2009. Such stations are eligible to file royalty claims for compensation with the United States Copyright Royalty Board in Washington, DC. These filings are due by Monday, August 2, 2010 at 5pm (EDT) because the customary deadline of July 31 falls on a weekend.¹

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: California, Illinois, North Carolina, South Carolina and Wisconsin, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

FCC Eliminates Earlier Proposed Fee Reductions for Radio and Sets Hefty Increases for UHF Television Stations

Communications counsel John K. Hane recently authored an article on changes in retransmission-consent markets which appeared in the July/August 2010 edition of The Financial Manager. You can read the article here: http://viewer.zmags.com/publication/72b4db28#/72b4db28/8.

A store in San Francisco recently received a makeover: a new coat of ecru-colored paint, a large green-colored logo and the addition of the term GREEN to its previous store name. Granted, in San Francisco “green” may have another connotation (especially when the store is run by a suspiciously relaxed hippie), but in this case it is clear that this store has made a commitment to providing environment-friendly goods and services. Or has it really?

In May, the FCC released a Notice of Inquiry (“NOI”) as part of its 2010 Quadrennial Review of its media ownership rules. According to the FCC, the purpose of the NOI is to take a “fresh look at the current rules to determine whether they promote the Commission’s goals of competition, localism and diversity.” The NOI is generally asking for comment regarding its policy goals and how to apply its specific media ownership rules in order to best achieve those goals. The Commission is planning on using the comments filed in this proceeding to help the agency formulate a subsequent formal Notice of Proposed Rulemaking. Pursuant to recent publication of the NOI in the Federal Register, comments are due July 12, 2010, with reply comments due July 26, 2010.

For the first time in years, the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board (“TTAB”) on June 11 issued a precedential decision sustaining an opposition based on a likelihood of trademark dilution. The decision (see http://ttabvue.uspto.gov/ttabvue/ttabvue-91166701-OPP-99.pdf) gives owners of well-known marks renewed hope of halting the unauthorized registration of similar marks without having to establish a likelihood of confusion. This rare outcome also illustrates the critical role that evidence—such as a well-designed consumer survey— plays in trademark dilution claims.

As we wrote in an April 8, 2010 Client Alert, the FCC revised its Ownership Report form for commercial stations, Form 323, and announced that the deadline for all commercial broadcasters to file the new Form 323 is July 8, 2010. The FCC also expanded the types of entities and licensees required to file Form 323, and announced that owners of all commercial AM, FM, TV, LPTV and Class A TV stations would need to file the new form.

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by July 10, 2010, reflecting programming aired during the months of April, May and June, 2010.

On June 17, the U.S. Supreme Court unanimously upheld the legality of the Ontario, California Police Department's audit of police Sgt. Jeff Quon’s text messages in his department-issued pager, in City of Ontario v. Quon. Declining to issue a broad holding on employee privacy rights in electronic communications, the Court decided the case on the narrow point that, even assuming that Quon had a reasonable expectation of privacy in his text messages, the search was reasonable because it was motivated by a legitimate work-related purpose and was not excessive in scope. Nonetheless, the opinion emphasized the importance of well-crafted employer privacy policies, noting that “employer policies concerning communications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated.”

In an economic environment where students are often willing, and, in fact eager, to intern for for-profit companies for the experience alone, many companies are, for good reason, interested in considering this option. It is important, however, to proceed with extreme caution.

In September 2009, the Internal Revenue Service announced its intention to conduct an employment tax National Research Program beginning in 2010 (see our previous client alerts “Employment Issues & the IRS” and “IRS Employment Tax Audit Letters Are Coming”). This program will result in employment tax audits of approximately 6,000 U.S. companies over the next three years, and among other things, will focus on worker classifications. To be ready for such audits, employers should review worker classifications immediately.

“[W]e are persuaded by Pacific Bell’s argument that the cause of action as framed is defective because the unfair competition law does not make available any remedy [the plaintiff] sought in the third amended complaint.”

—California Court of Appeal in Advanced Scientific Applications v. Pacific Bell Telephone Co.

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia and Wyoming, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

The staggered deadlines for filing Biennial Ownership Reports by noncommercial educational radio and television stations remain in effect and are tied to their respective anniversary renewal filing deadlines.

The FCC recently released a Notice of Proposed Rulemaking (“NPRM”) proposing to revise and streamline its Part 17 rules regarding construction, marking, and lighting of antenna structures. Pursuant to the Federal Register publication that occurred today, Comments are due on July 20, 2010, with Reply Comments due on August 19, 2010.

Prepaid “cards, codes and other devices” redeemable solely for telephone services are exempt from a new federal law that goes into effect August 22, 2010. However, if they can also be redeemed for related technology services, these products will (at least in most instances) be subject to provisions restricting fees, prohibiting expiration in less than five years, and imposing strict disclosure requirements if fees are charged or the products expire.

The long strange trip of the Satellite Television Extension and Localism Act ("STELA" for short) seems finally to be ending. After satellite carriers' ability to import distant broadcast signals into stations' local markets expired on December 31, 2009, Congress passed a number of short-term extensions of the predecessor law, SHVERA. The Senate passed three different versions of the bill since late 2009. The House, with a lightning fast voice vote, accepted the Senate's last version unchanged and sent the legislation to the White House for a signature from the President. The President is expected to sign the bill shortly.

Several members of Congress led by Senator Schumer and Congressman Van Hollen introduced today the “Democracy Is Strengthened by Casting Light On Spending in Elections” Act—the DISCLOSE Act. The House and Senate versions differ, with the Senate version vastly expanding eligibility for Lowest Unit Charge, reducing the Lowest Unit Charge, prohibiting preemption of political ads, and requiring the FCC to perform political audits of broadcasters, cable, and satellite operators.

Topics include:

• FCC Issues $30,000 and $12,000 Fines to Three Co-owned Commercial Television Stations and Three Co-owned Class A Television Stations for Failure to Publicize the Existence and Location of Their Quarterly Children’s Television Programming Reports
• FCC Fines Nonresponsive Texas Cable Operator $38,000 for Emergency Alert System and Antenna Structure Violations
• FCC Fines Broadcasters $7,000 for Failure to Timely File License Renewal Applications and for Unauthorized Operation
• Idaho Station Fined $4,000 for Failure to Fully Disclose All Material Terms of a Contest

The FCC has announced its proposed schedule of annual regulatory fees for Fiscal Year 2010. The final fee amounts and filing deadline will be announced in a Public Notice following consideration of Comments to be filed by May 4, 2010 and Reply Comments to be filed by May 11, 2010.

The FCC’s Media Bureau has announced that a new version of the Biennial Ownership Report Form for commercial broadcast stations, FCC Form 323, will be available on its website as of April 9, 2010. All commercial broadcast station owners must file their biennial ownership reports using the new form by July 8, 2010. However, the data used to complete the form must be accurate as of November 1, 2009.

Amendments must be filed by May 24, 2010. A $705 filing fee is required.

Topics include:

• FCC Reduces Fine from $9000 to $1000 Based on Alternative Broadcast Inspection Program Participation
• FCC Fines Three Commercial Television Stations for Failure to Publicize the Existence and Location of Their Quarterly Children’s Television Programming Reports
• New York FM Station Fined $16,000 for Violating FCC’s Telephone Broadcast Rule
• FCC Imposes a Reduced $15,200 Fine on New York Low Power Television Station for Multiple Violations
• FCC Fines Missouri Noncommercial FM Station $7,200 for Failure to Properly Maintain a Public Inspection File

Businesses dependent on spectrum should be alert to FCC trend toward greater frequency sharing and incumbent dislocation.

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee and Texas, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ local public inspection files by April 10, 2010, reflecting information for the months of January, February and March, 2010.

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by April 10, 2010, reflecting programming aired during the months of January, February and March 2010.

The FCC has suspended indefinitely the deadline for commercial radio and television stations to file their Biennial Ownership Reports. However, the deadlines for filing Biennial Ownership Reports by noncommercial educational radio and television stations remain in effect, tied to their respective anniversary renewal filing deadlines.

This Advisory provides a review of the FCC’s political broadcasting regulations.

The U.S. District Court for the District of Columbia has ruled that the Copyright Royalty Board is constitutional. The decision ends for now a long-running controversy over the legitimacy of the CRB, which sets royalty rates that webcasters pay to copyright owners— rates that webcasters see as excessively high and a threat to the industry.

The Federal Communications Commission recently proposed revisions to its rules as part of its stated goal to “reform and transform the agency into a model of excellence in government.” As part of its goal, the FCC has released a Second Notice of Proposed Rulemaking (“NPRM”) proposing to modify its ex parte communications rules, which govern the disclosure of communications with the commissioners and FCC staff when all parties to a proceeding are not present.

Video Programming Distributors Must Notify FCC by March 22, 2010 of Certain Contact Information and Begin Compliance with Telephone Directory Listing Requirements.

In response to a petition for clarification filed by DISH Network, L.L.C. (“DISH”), the FCC has issued a “limited waiver” of its requirement that video programming distributors, including television stations, publish two types of information in local telephone directories—contact information for the receipt and handling of immediate closed captioning concerns, and contact information for the receipt and handling of written closed captioning complaints.

Comments are due by March 1, 2010 and Reply Comments are due March 30, 2010 to the FCC’s proceeding to implement national emergency alert testing at least once a year and to collect station data from such tests.

The FCC has released an Order amending its digital audio broadcasting (“DAB”) rules for FM stations operating digital facilities. According to the Order, the underlying purpose for the change is to “improve FM digital coverage and to eliminate regulatory impediments to FM radio’s ability to meet its full potential and deliver its promised benefits.”

Topics include:

• FCC Imposes a Reduced $17,500 Fine on Wyoming Commercial AM/FM Station Combo for Multiple Violations
• Pennsylvania TV Station Fined $32,000 for Violating FCC’s Sponsorship ID Rule
• Licensee Fined $13,000 for Antenna Structure Violations
• FCC Fines California Noncommercial FM Station $9,000 for Failure to Properly Maintain a Public Inspection File

FCC establishes June 12, 2010 as a “hard date” for wireless microphones and certain broadcast low power auxiliary operations to vacate 700 MHz spectrum. Some stations will have to move much sooner.

Disclosure and Disclaimer Requirements Retained. Decision Likely Invalidates Identical Political Ad Restrictions on Labor Unions.

Cases That Made a Difference: This 32-page color brochure highlights some of the significant matters handled by Pillsbury litigators in 2009, including cases on behalf of the City of New York, Guantanamo detainees, and across a wide range of industries and clients.

Proceeding Is Important to Electronic Media Content Producers, Television Stations, Advertisers, Educators, Electronics Manufacturers, and Privacy Experts.

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York and Oklahoma, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

The FCC has established a national filing deadline for commercial radio and television stations to file their Biennial Ownership Reports. However, the schedule for the filing of Biennial Ownership Reports by noncommercial stations remains staggered, tied to their anniversary renewal filing deadlines.

Items of Note in 2010

1. Biennial Ownership Report Filing Requirements for Commercial Stations: The biennial ownership filing requirement for commercial stations has been stayed indefinitely as of the date of this publication. This stay arose out of difficulties implementing a new version of FCC Form 323 for use by commercial stations, including Class A television stations. The stay does not affect the biennial ownership reporting requirements of noncommercial stations, the due dates for which are still tied to the anniversary date of the station’s license renewal application deadline (and which are noted in this calendar). When the FCC resolves its difficulties surrounding use of the new Form 323, commercial broadcast stations will be required to file a biennial ownership report on the new form with information that is current as of November 1, 2009. Broadcasters should be alert to the announcement by the FCC of the new due date.

This afternoon, the Commission released an Order announcing that, due to technical difficulties, it was temporarily suspending the use of the new FCC Form 323 and, as a consequence, was postponing the January 11, 2010 deadline for the filing of Biennial Ownership Reports for commercial broadcast licensees. The Commission stated that it would announce the reactivation of the new form and the new filing deadline in a subsequent Public Notice. The Order states that the Commission “will temporarily suspend the ability to start a new biennial Form 323 during this interim suspension period but will allow filers to complete and file forms that they have already started should they wish to do so.” The Order also states that the new filing deadline will be at least 90 days from the date that the new form is made available for new biennial filings.

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by January 10, 2010, reflecting programming aired during the months of October, November and December 2009.

The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ local public inspection files by January 10, 2010, reflecting information for the months of October, November and December 2009.

As previously reported, stations that have not yet completed construction or commenced operation of their final post-transition DTV facilities must continue the required general DTV Consumer Education Initiatives until they commence operation on their post-transition DTV facilities. Such stations will be required to file another FCC Form 388 by January 10, 2010, providing the Commission with the details of the DTV Consumer initiatives that they performed between October 1 and December 31, 2009.

Effective December 28, 2009, hand or messenger-delivered paper filings for the Commission’s Secretary must be submitted at its main building: 445 12th Street, SW, Room TW-A325, Washington, DC 20554.

“Defendants were ably represented by very skilled and capable counsel … with well-deserved and nationwide reputations for vigorous advocacy in the defense of complex federal securities litigation.”

—Plaintiffs attorneys’ declaration, In re Exodus Communications, Inc., September 9, 2008

“The appeals court said the U.S. International Trade Commission had overstepped its bounds when it issued the ban against handset makers … ”

—PC World, October 14, 2008

Earlier this week, the FCC released a Public Notice seeking “specific data on the use of spectrum currently licensed to broadcast television stations.” According to the Public Notice, in other proceedings related to the FCC’s development of a National Broadband Plan some commenters “have expressed concern that the United States will not have spectrum sufficient to meet the demand for wireless broadband services in the near future and have urged the Commission to make available more spectrum for commercial uses.” In response, the Public Notice states that “the FCC is reviewing various spectrum bands to understand if all or a portion of the spectrum within these bands could be repurposed for wireless broadband services.”

Today, the FCC released a Public Notice announcing that as of December 9, 2009, the new FCC Form 323 will become available online in the FCC’s CDBS filing system.

On December 1, 2009, the FTC’s newly-revised Guides on Endorsements and Testimonials will become effective. Broadcasters, including their on-air talent, need to know when a claim is an endorsement/testimonial, what on-air disclosures may be required, and what their obligations are to ensure that claims are truthful and not misleading. These endorsement/testimonial-related issues can arise in a variety of contexts, including when station personnel voice commercials, prepare copy for advertisers, engage in banter regarding a product or service, serve as a spokesperson for an advertiser, or provide content to their station websites.

In a Public Notice released by the FCC today, the Media Bureau has announced that it has extended to January 11, 2010, the prior December 15, 2009 deadline for commercial radio and television broadcast station licensees to file their Biennial Ownership Reports on revised FCC Form 323.

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Alabama, Colorado, Connecticut, Georgia, Maine, Massachusetts, Minnesota, Montana, New Hampshire, North Dakota, Rhode Island, South Dakota and Vermont, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

All commercial and noncommercial educational digital television broadcast station licensees and permittees must file FCC Form 317 to report whether their stations provided ancillary or supplemental services at any time during the twelve-month period ending on the preceding September 30. The FCC Form 317 is due by December 1, 2009. Electronic filing of FCC Form 317 is mandatory. Paper versions will not be accepted for filing unless accompanied by an appropriate request for waiver.

In Satterfield v. Simon & Schuster, Inc., 569 F.3d 946 (9th Cir. 2009), the Ninth Circuit held that unsolicited text messages to mobile phones sent by a retailer may constitute a “call” in violation of the Telephone Consumer Protection Act (the “TCPA”). This decision has sparked an increase in consumer class actions filed against retailers who send advertisements to consumers by text message.

Last week the FCC launched a Notice of Proposed Rulemaking (NPRM) proposing to adopt six “open Internet” rules that would bind all broadband access providers, including those providing mobile and satellite broadband services. If adopted, the rules could have pervasive and lasting effects in many industry sectors, including broadband, voice and video service providers, infrastructure, device, chipset and other component vendors, content publishers and distributors, software publishers, and application service providers.

The FCC issued two Public Notices today which, together: (1) impose a freeze on the filing of all FM commercial and noncommercial educational (“NCE”) minor change applications from 11:59 pm, November 25, 2009, through December 18, 2009; (2) impose a freeze, beginning today, October 16, 2009, through December 18, 2009, on any applications proposing to modify the reference coordinates of 67 vacant non-reserved FM Band allotments listed on Attachment A of the Public Notice (attached hereto), as well as on any petitions or counterproposals that propose a change in the channel, class, community, or reference coordinates of those allotments; and (3) create a filing window for applications for those 67 vacant FM allotments reserved for NCE use.

On October 5, 2009, the Federal Trade Commission announced that it finalized the update to its Guides Concerning the Use of Endorsements and Testimonials in Advertising (the “Guides”), which have been in effect in their current form since 1980.¹ The evolving practice of companies marketing their goods and services through bloggers and other “new media” received special attention.

Cydney Tune, leader of Pillsbury's Copyrights and Media & Entertainment teams, and Pillsbury Corporate & Securities associate Christopher Lockard authored this article which originally appeared in Entertainment and Sports Lawyer, Fall 2009.

As we wrote in an earlier Advisory, the FCC adopted an order in April 2009 revising FCC Form 323, its Ownership Report form for commercial stations. It also expanded the types of entities and licensees required to file Form 323, announcing that owners of all commercial AM, FM, TV, LPTV and Class A TV stations would need to file the new form by November 1, 2009. The FCC later suspended its existing biennial Ownership Report filing requirement for stations that were to have filed in June, August, or October of 2009, since those stations would have to file the new Form 323 by November 1, 2009 in any event.

As previously reported, stations that have not yet completed construction or commenced operation of their final post-transition DTV facilities must continue the required general DTV Consumer Education Initiatives until they commence operation on their post-transition DTV facilities. Such stations will be required to file another FCC Form 388 by October 10, 2009, providing the Commission with the details of the DTV Consumer initiatives that they performed between July 1 and September 30, 2009.

As we recently reported, the FCC has altered the schedule for the filing of Biennial Ownership Reports by commercial broadcast stations. Those Reports must now be filed by November 1, 2009 and by the same date every two years thereafter. However, the schedule for the filing of Biennial Ownership Reports for noncommercial broadcast stations remains unchanged.

The next Quarterly Issues/Programs List ("Quarterly List") must be placed in stations' local public inspection files by October 10, 2009, reflecting information for the months of July, August and September 2009.

The next Children's Television Programming Report must be filed with the FCC and placed in stations' local Public Inspection Files by October 10, 2009, reflecting programming aired during the months of July, August and September 2009.

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Iowa, Missouri, Alaska, Hawaii, Oregon, Washington, Guam, American Samoa, Marianas Islands, Florida, Puerto Rico and the Virgin Islands, and highlights the upcoming deadlines for compliance with the FCC's EEO Rule.

Federal Communications Commission has announced that full payment of all applicable Regulatory Fees for Fiscal Year 2009 must be received no later than September 22, 2009. The price of missing the deadline is a 25% up-charge.

As previously reported, the FCC released an Order on May 29, 2009, suspending the biennial ownership reporting requirement for commercial radio and television broadcast stations that would otherwise have been required to file their reports by June 1, August 1 or October 1, 2009.

On September 8, 2009, the Office of Foreign Assets Control ("OFAC") of the Department Treasury and the Bureau of Industry and Security ("BIS") of the Department of Commerce issued final rules in the Federal Register amending the Cuba Sanctions program and the Export Administration Regulations ("EAR") to increase the range of telecommunications services that can be provided between the United States and Cuba and exports and re-exports of items to implement those services, as well as authorizing related payments and travel. These are included in a larger set of rule changes implementing the President's April 13, 2009, directive to promote contact between family members and the flow of information between the two countries.

The volatile combination of broadcast employees concerned about their income and job security, and cash-strapped businesses looking for cheap and effective ways to promote themselves in difficult economic times, creates an unusually fertile ground for payola and plugola violations. Complicating matters are state efforts to prohibit "payola" activities that are legal under federal payola law. Even being accused of payola can be devastating to a broadcaster, and stations must be extremely diligent in uncovering and preventing payola and plugola violations.

In its assessment letters to regulatees, the Commission has announced that full payment of all applicable Regulatory Fees for Fiscal Year 2009 must be received no later than September 22, 2009.

The long-running battle over royalties owed by webcasters—companies that broadcast music over the Internet—took several significant leaps towards conclusion last month with important developments both inside and outside of the courtroom. Spurred by the Webcaster Settlement Act of 2009, signed by President Obama on June 30, SoundExchange and webcasters entered into a total of five Congressionally blessed settlement agreements that are open to other webcasters and are binding on all copyright owners and performers. Additionally, decisions were announced in two appellate cases. Set forth below are sum­maries of the key terms and important deadlines.

The FCC has released its final schedule of Annual Regulatory Fees for FY 2009. It is expected that those fees will become due and payable sometime in September. We will issue a further Client Advisory as soon as the Commission issues a Public Notice announcing the applicable deadline.

As we recently reported, the FCC has altered the schedule for the filing of Biennial Ownership Reports by commercial broadcast stations. Those Reports must now be filed by November 1, 2009 and by the same date every two years thereafter. However, the staggered schedule for the filing of Biennial Ownership Reports for noncommercial educational broadcast stations remains unchanged for the time being, subject to a pending Further NPRM. For noncommercial radio stations in California, North Carolina and South Carolina and noncommercial television stations in Illinois and Wisconsin, the reports are due August 1, 2009.

The FCC has altered the schedule for the filing of Biennial Ownership Reports by commercial broadcast stations. August 1, 2009 is no longer the deadline for commercial radio stations in California, North Carolina, and South Carolina, or for commercial television stations in Illinois and Wisconsin to file their biennial ownership reports. Those Reports must now be filed by November 1, 2009 and by the same date every two years thereafter, by all radio and television sta­tions nationwide.

As the sources of content available to the public proliferate, attracting and retaining an audience grows more challenging. A common strategy is to use provocative or “attention-getting” on-air elements to increase station awareness among media-saturated listeners and viewers. However, stations must be mindful of the numerous legal restrictions on content, particularly given that illegal on-air content can garner fines as high as $325,000 per violation. In addition, certain types of illegal on-air content can subject a broadcaster to civil and criminal liability, as well as loss of its license.

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: California, Illinois, North Carolina, South Carolina and Wisconsin, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

This week, the FCC issued a Public Notice announcing that it is finally lifting the freeze on the filing of new low power television (“LPTV”) and television translator stations. First, on August 25, 2009, the FCC will begin accepting applications for stations in “rural areas” for: (1) new digital-only LPTV and TV translator stations; (2) major changes to existing analog and digital LPTV and TV translator facilities; (3) and, in the case of current analog stations, for digital companion channels. “Rural areas” are defined as areas with antenna site coordinates that are located more than 75 miles from the reference coordinates of the largest 100 cities as defined by Nielsen Media Research and are listed in Appendix A of the Public Notice. Second, the Public Notice also announces that on January 25, 2010, the FCC will begin accepting the above-referenced three types of LPTV and television translator applications nationwide, without any geographic restrictions.

In respond to the National Association of Broadcasters’ July 14, 2006 Petition for Rule Making, and after a Notice of Proposed Rule Making Proceeding released on August 15, 2007, the FCC today released a Report and Order adopting the NAB’s proposal that AM stations be allowed to use FM translators to retransmit their AM service within their AM stations’ current coverage areas. The action was taken to “permit AM broadcasters to better serve their local communities and thus promote the Commission’s bedrock goals of localism, competition and diversity in the broadcast media.”

Through the vehicle of a Notice of Proposed Rule Making (“NPRM”), Acting Chairman Michael J. Copps, and Commissioners Jonathan Adelstein and Robert McDowell are looking to change the way the FCC decides what communities and areas deserve new or modified commercial and noncommercial, full-power AM and FM radio stations.

The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ local public inspection files by July 10, 2009, reflecting information for the months of April, May and June 2009. The FCC’s action adopting the new program report Form 355, which is intended to replace the Quarterly Issues/Programs Lists for full-power and Class A television stations, is not yet in effect and thus will not have any effect on this second quarter public file requirement.

On March 13, 2009, and in response to the Congressional extension of the digital transition deadline from February 17 to June 12, 2009, the FCC released an R&O which, among other things, revised the rules associated with its requirements for DTV Consumer Education Initiatives. Those significant revisions, which became effective on April 1, 2009, included additional viewer notifications regarding antennas, help/walk-in centers, rescanning activities, and service loss.

The FCC issued a Public Notice recommending that viewers having difficulty receiving any of the over-the-air digital television signals of stations in their area should “double rescan” their digital converter boxes or digital television sets.

In its Public Notice released earlier today, the FCC reminded stations of the requirement that television stations that have not yet made the transition to all-digital broadcasting must be prepared to answer calls about the transition immediately after they make the switch from analog to digital. The FCC noted its specific concern that stations have the appropriate staff available to answer calls after business hours and reminded stations that they should be prepared to handle the expected increase in calls, including calls forwarded directly to stations from the FCC’s National Call Center, which will be staffed 24 hours a day. The Public Notice specifically requests that stations not transitioning to digital-only until June 12 should not only staff their customer referral locations the evening of June 12, but should also ensure that the phones are staffed over the following weekend, June 13 and 14.

The FCC’s Notice of Inquiry seeks answers to the controversial question raised by “broadcasters, media organizations and others” whether Arbitron is undercounting the audience for stations that air programming targeted to minority audiences, potentially harming the financial viability of those stations. At issue is Arbitron’s commercial use of equipment called the Portable People Meter (“PPM”), a mobile-phone-sized device that consumers wear throughout the day to track their radio listening. Arbitron has replaced the audience-based rating systems with PPM in certain markets and intends to replace audience-based diaries with PPM in the top 50 radio markets next year.

On December 23, 2008, the FCC issued a Notice of Proposed Rulemaking proposing to create a new “replacement” digital television translator service.

To read this publication in its entirety, click the link in the adjacent “Downloads” section.

The FCC has released a new Federal Register notice indicating that the increase in certain FCC application fees will become effective April 28, 2009.

This Advisory is intended specifically to help guide individuals and companies, that wish to distribute recorded music over the Internet for pleasure or profit, through the maze of licenses and royalties required for such “webcasting” activities. It discusses the recent settlement agreements entered into between SoundExchange and the Corporation for Public Broadcasting (“CPB”) and the National Association of Broadcasters (“NAB”). For certain commercial radio stations considering whether to take advantage of the NAB/SoundExchange settlement, April 2, 2009 is a critical “opt-in” deadline.

The next Quarterly Issues/Programs List ("Quarterly List") must be placed in stations' local public inspection files by April 10, 2009, reflecting information for the months of January, February, and March 2009. The FCC's action adopting the new program report Form 355, which is intended to replace the Quarterly Issues/Programs Lists for full-power and Class A television stations, is not yet effective and thus will not have any effect on this first quarter public file requirement.

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee and Texas, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

To say that current economic conditions are challenging for broadcasters is akin to noting that the Ice Age was chilly.

Pursuant to the FCC’s February 5th Public Notice, “Procedures Regarding Termination of Analog Television Service On or After February 17, 2009,” any station wishing to early terminate analog operation was required to notify the FCC no later than February 9th. On February 10, the FCC released a list of the 491 stations that had filed this notification indicating their intent to terminate analog operations on February 17th.  Yesterday evening, February 11th, the FCC announced that 123 of these stations will be required to undertake supplemental public interest initiatives in order to proceed with analog termination on February 17th.  A copy of this list is attached.

Stations seeking to end analog operations on or before February 17, 2009 must file a NEW notice with the FCC not later than Monday, February 9, and air certain required viewer notifications.

Members of our Communications Group sought and received clarification from the FCC staff regarding ambiguities in the FCC’s February 5th Public Notice on Procedures Regarding Termination of Analog Television Service On or After February 17, 2009.

Pursuant to the FCC’s February 5th Public Notice, “Procedures Regarding Termination of Analog Television Service On or After February 17, 2009,” any station wishing to “early” terminate analog operation was required to notify the FCC no later than February 9th of their intent to do so.

On January 28, 2009, after the close of a bench trial, a U.S. District Court in Arizona found for Blizzard Entertainment and against its long time opponent MDY Industries. As we previously reported, the same court granted summary judgment in favor of Blizzard, finding that MDY was liable for copyright infringement, not simply for breach of contract, for distributing its flagship “Glider” product. This week, the court ruled for Blizzard on all three remaining issues: (1) Blizzard’s claims under the Digital Millennium Copyright Act (“DMCA”), (2) whether MDY’s CEO is personally liable to Blizzard, and (3) whether Blizzard is entitled to injunctive relief.

Legislation has been introduced in the United States Senate which, if enacted, would delay the current February 17, 2009 DTV transition deadline for a period of four months, or until June 12, 2009. A delay in the transition date will inevitably cause uncertainty and raise many questions, such as whether a station’s decision to cease analog operations before the proposed deadline may still go forward as planned.

In late December 2008, the Federal Communications Commission (“FCC”) released a series of six Notices of Apparent Liability for Forfeiture against broadcasters asserting violations of the FCC’s Equal Employment Opportunity rule (“EEO rule”). In a joint statement appended to each of the six cases, FCC Commissioners Michael J. Copps (now Acting FCC Chairman) and Jonathan S. Adelstein (the “Commissioners”) signaled their strong desire that enforcement of EEO matters be stepped up by the Commission. The Commissioners noted that “Commission enforcement of EEO rules has been inconsistent and, as one consequence, employment in broadcasting does not reflect America.” Specifically, the Commissioners noted that while 251 cases resulted in 86 forfeitures between 1994 and 1997, only 10 cases resulting in 8 forfeitures were released between 2004 and 2007.

The following deadlines are based on information known by us as of the date hereof, may or may not apply to a particular broadcaster, are for general informational purposes only, and should be double-checked for currency close to each pertinent date/deadline. Actions by the FCC, Congress, or the courts could affect any of these deadlines by, for example, eliminating a particular reporting/filing obligation altogether or modifying the form used, content, deadline, fee, or manner of reporting/filing, such as requiring the posting of a report on the Internet or filing a report with the FCC electronically. It should also be noted that any FCC filing date which falls on a weekend or federal holiday, as a general rule, causes the filing deadline to be shifted to the immediately following business day. Furthermore, the listing of deadlines is not intended to be complete or exhaustive of all regulatory and non-regulatory deadlines that may apply to a given broadcaster year-to-year. Accordingly, broadcasters should seek the advice of communications counsel in each instance to assure timely and proper filing. This edition of our annual "Broadcasters' Calendar" supercedes all prior editions and accordingly any prior editions should no longer be used.

Commercial and noncommercial Radio stations licensed to communities in Kansas, Nebraska and Oklahoma must file their Biennial Ownership Reports with the FCC by February 1, 2009. Commercial and noncommercial Television stations licensed to communities in the States of Arkansas, Louisiana, Mississippi, New Jersey and New York must also file their Biennial Ownership Reports by the same deadline.

Upcoming Deadlines:

• FCC Form 499-Q is Due by February 1, 2009
• Customer Proprietary Network Information Certification is Due by March 1, 2009

Stations seeking to end analog operations on or before February 17, 2009 must file a NEW notice with the FCC not later than Monday, February 9, and air certain required viewer notifications.

The next Children's Television Programming Report must be filed with the FCC and placed in stations' local Public Inspection Files by January 10, 2009, reflecting programming aired during the months of October, November and December 2008.

The next FCC Form 388 DTV Quarterly Activity Station Report must be filed via CDBS and placed in stations’ local public inspection files by January 10, 2009, reflecting information for the months of October, November and December 2008.

The next Quarterly Issues/Programs List ("Quarterly List") must be placed in stations' local public inspection files by January 10, 2009, reflecting information for the months of October, November and December 2008. The FCC's action adopting the new program report Form 355, which is intended to replace the Quarterly Issues/Programs Lists for full-power and Class A television stations, will not have any effect on this fourth quarter public file requirement.

On December 23, 2008, the Federal Communications Commission (“FCC”) issued a Notice of Proposed Rulemaking (“NPRM”) proposing creation of a new replacement digital television translator service. This service will permit full-power television stations to continue to provide service to viewers who have lost or will lose service as a result of a station’s digital transition. In the NPRM, the FCC announced that it will begin accepting applications in the coming days, although processing of these applications will be withheld pending the outcome of the proceeding. In the interim, the FCC proposed that stations could request Special Temporary Authority (“STA”) to operate replacement television translator facilities during the pendency of the rulemaking proceeding.

On December 24, 2008, the Federal Communications Commission (“FCC”) issued a Notice of Proposed Rulemaking (NPRM) to implement the recently enacted Short-Term Analog Flash and Emergency Readiness (SAFER) Act. The SAFER Act directs the Commission to develop a “nightlight” program to permit stations to continue to broadcast analog signals for 30 days after the February 17, 2009 DTV transition deadline for the limited purpose of providing public safety and digital television (“DTV”) transition information. The Notice describes the FCC’s framework for implementing the nightlight program and establishes an expedited public comment period. The notice was published in the Federal Register on December 31, 2008, thereby establishing Monday, January 5, 2009 as the deadline for comments, and Thursday, January 8 as the deadline for reply comments.

Topics include:

• FCC Fines Mississippi Radio Station $13,000 for Failure to Inform Federal Aviation Administration of Antenna Structure Lighting Malfunction and Failure to Maintain a Public Inspection File
• Commission Fines Nevada Radio Licensee $5,600 for Failing to Enclose Tower With an Effective Locked Fence
• FCC Fines New Mexico Radio Station $10,000 for Operating from an Unauthorized Location

On December 23, 2008, the President signed into law the Short-Term Analog Flash and Emergency Readiness (SAFER) Act. This legislation, previously passed by the House of Representatives on Dec. 10, 2008 and by the Senate on Nov. 20, 2008, directs the Federal Communications Commission (“FCC”) to develop a program to permit analog broadcasts of public safety and digital television (“DTV”) transition information for 30 days after the February 17, 2009 DTV transition deadline. Accordingly, stations must await action by the FCC before this post-February 17, 2009 authority will be effective.

On December 2, 2008, the FCC extended the reply comment date in its sweeping Universal Service Fund (“USF”) Further Notice of Proposed Rulemaking (the “FNPRM”) until December 22, 2008. USF is an almost $7 billion program overseen by the FCC that promotes the availability of affordable telecommunications services throughout the United States. Funds are made available to schools and libraries, low-income residential consumers and telephone companies operating in high cost areas.

This Advisory is designed to aid commercial, as well as noncommercial educational, radio and television station broadcasters in complying with the FCC’s public inspection file rules. See 47 C.F.R. §§ 73.3526 and 73.3527. This Advisory tracks the public access, content, retention and organizational requirements of those regulations, as well as summarizes the public information requirements mandated by passage of the Bipartisan Campaign Reform Act of 2002. Previous editions of this Advisory are obsolete, and should not be relied upon.

Reminder: The National Telecommunications and Information Administration has set aside $1,000 per eligible low-power television station, for the purchase of digital-to-analog conversion devices. Individual grants come from a Federal fund limited to $1 million and are awarded on a first-come-first-serve basis until February 17, 2009.

Topics include:

• FCC Upholds $9,000 Fine for Noncommercial FM Radio Station Airing Advertisements
• FCC Fines New York AM Radio Station $12,800 for Failing to Sign Off at Sunset, Failing to Maintain Daytime Operating Power, Failing to Maintain an Operational Emergency Alert System, and Failing to Maintain a Complete Public Inspection File

On September 30, the U.S. Senate approved the Webcaster Settlement Act of 2008, a bill giving SoundExchange and webcasters authority to finalize an agreement on performance royalty rates. The bill amends section 114 of the Copyright Act to give SoundExchange until February 15, 2009, to reach a deal over the statutory royalties owed by Internet radio stations, and other non-interactive online music services, to performers and sound recording copyright owners (generally record labels) when their music is performed publicly by means of a digital transmission. The legislation, which was passed by the House of Representatives on September 27, is expected to be signed into law by President Bush.

On November 20, 2002, the FCC released a Second Report and Order and Third Notice of Proposed Rulemaking (the “Second R&O”) in which it adopted new equal employment opportunity rules and policies for broadcasters and for multi-channel video programming distributors (the “EEO Rule”). A complete copy of this EEO Rule as it relates to broadcasters is attached hereto as Attachment A.

The next FCC Form 388 DTV Quarterly Activity Station Report must be filed via CDBS and placed in full-power television stations’ local public inspection files by October 10, 2008, reflecting information for the months of July, August, and September.

The next Quarterly Issues/Programs List (“Quarterly List”) must be placed in stations’ local public inspection files by October 10, 2008, reflecting information for the months of July, August and September. The FCC’s action adopting the new program report Form 355, which is intended to replace the Quarterly Issues/Programs Lists for full-power and Class A television stations, will not have any effect on this third quarter public file requirement.

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by October 10, 2008, reflecting programming aired during the months of July, August and September.

Commercial and noncommercial Radio stations licensed to communities in Iowa and Missouri must file their Biennial Ownership Reports with the FCC by October 1, 2008. Commercial and noncommercial Television stations licensed to communities in the States of Alaska, Florida, Hawaii, Oregon and Washington and in the Territories of American Samoa, Guam, Northern Mariana Islands, Puerto Rico and the U.S. Virgin Islands must also file their Biennial Ownership Reports by the same deadline.

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Alaska, Florida, Hawaii, Iowa, Missouri, Oregon, Washington, as well as American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

On September 2, 2008, the FCC released a Public Notice Warning Regulatory Fee Filing Payers About Potential “Phishing.”

In July 2008, the FCC released the latest edition of “The Public and Broadcasting” manual, its second update in three months.

In a significant victory for publishers in their long-running battle with freelancers, a federal appeals court in Atlanta recently ruled that magazine publishers do not have to compensate the individual copyright holders of freelanced articles and photographs when the magazines are reproduced on CD-ROM for commercial sale, unless contracts between the publisher and the freelancer provide to the contrary.

July 31, 2008 is the deadline by which television stations are required to file claims for copyright royalties with the Copyright Office. FCC rules require television stations to make signal carriage elections by October 1, 2008 for the period 2009-2012. The upcoming termination of analog broadcasts makes this year’s carriage elections especially important. In addition, television stations that will terminate analog broadcasting have a special October 1 notice obligation with respect to satellite operators.

Commercial and noncommercial Radio stations licensed to communities in Illinois and Wisconsin must file their Biennial Ownership Reports with the FCC by August 1, 2008. Commercial and noncommercial Television stations licensed to communities in California, North Carolina, and South Carolina must also file their Biennial Ownership Reports by the same deadline.

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: California, Illinois, North Carolina, South Carolina, and Wisconsin, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Yesterday, the FCC announced that, effective as of August 4, 2008, it was lifting the freeze on the filing of two types of Class A television station applications: (i) ones to expand authorized coverage through facilities modifications, and (ii) ones to substitute channels where current channels are expected to be displaced.

Topics include:

• Texas AM Radio Station Assessed $8,800 Fine for Failure to Maintain a Main Studio and Operation Above Authorized Power Level
• FCC Fines Arizona Radio Station $6,400 for Emergency Alert System Violation
• FCC Proposes Fine of $10,000 to Hawaii Radio Station for Violating Radio Frequency Radiation Limits

The FCC Form 388 is now available in the Commission’s Consolidated DataBase System (CDBS) for electronic filing by July 10, 2008. The Report will cover the period April through June. Once filed, a copy of the Report should be promptly placed in the station’s local public inspection file and posted on the station’s website, if it has one.

The FCC has long permitted devices employing relatively low level radio frequency signals (“Part 15 devices”), such as garage door openers, cordless telephones, personal computers, and computer peripherals, to be operated without the need for a spectrum license. While such operations are unlicensed, the devices themselves are not unregulated. The FCC’s rules require that the manufacturer or importer of such devices (the “responsible party”) obtain equipment authorization before marketing any such device in order to minimize the potential for harmful radiofrequency interference. Failure to obtain proper equipment authorization can result in monetary forfeitures and/or other sanctions. The FCC r

The next FCC Form 388 DTV Quarterly Activity Station Report must be filed via CDBS and placed in stations’ local public inspection files by July 10, 2008, reflecting information for the months of April, May, and June.

The Commission has announced its proposed annual regulatory fees for Fiscal Year 2008. The final fee amounts and filing deadline will be announced in a Public Notice following consideration of Comments to be filed by May 30, 2008 and Reply Comments to be filed by June 6, 2008.

Topics include:

• Virginia Radio Licensee Assessed $8,000 Fine for Enforcing Format Restriction Provision in Non-Compete Agreement
• FCC Proposes to Fine Texas TV Licensee $20,000 for Children’s Television Violations
• FCC Fines Ohio Non-Commercial Radio Station $9,000 for Airing Prohibited Advertising
• FCC Fines Mississippi AM Radio Station $1,500 for Operating from Unauthorized Location at Excessive Power Level

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming, and highlights the upcoming deadlines for compliance with the FCC’s EEO Rule.

Commercial and noncommercial Radio stations licensed to communities in Michigan and Ohio must file their Biennial Ownership Reports with the FCC by June 1, 2008. Commercial and noncommercial Television stations licensed to communities in Arizona, the District of Columbia, Idaho, Maryland, New Mexico, Nevada, Utah, Virginia, West Virginia, and Wyoming must also file their Biennial Ownership Reports by the same deadline.

On April 24, 2008, the FCC released the latest edition of its “The Public and Broadcasting” manual. Please remove the 1999 version of the manual from your public inspection file and replace it with the new 2008 edition.

Topics include:

• FCC Fines Florida Low Power FM Radio Licensee $24,000 for Unlicensed Operations
• Commission Fines Florida Tower Owner $12,000 for Failing to Post Antenna Structure Registration Numbers and Paint Its Towers
• FCC Fines California Radio Licensee for Failing to Operate an Aural Studio-Transmitter Link from the Licensed Location
• Commission Fines Florida AM Radio Licensee $4,000 for Remaining on Air After Sunset in Violation of Its Station Authorization

For Immediate Attention

As we have previously advised, on March 3, the FCC released a Report and Order outlining new requirements imposed on full-power television stations for educating consumers about the February 17, 2009 transition to digital television service. On March 28, the FCC released a Public Notice announcing that it had received the necessary approvals from the OMB and that the new rules, including reporting requirements, would become effective on Monday, March 31, 2008. As a result of that announcement, full-power television stations must file with the FCC their first FCC Form 388 quarterly report by April 10, 2008. The form must also be placed in the station’s Public Inspec

Immediate Attention Required

As we have previously advised, on March 3, the FCC released a Report and Order outlining new requirements for the education of consumers regarding the February 17, 2009 transition to digital television service. At the time the FCC released the Report and Order, the new requirements, and the form that the FCC adopted for full-power television stations to report on their compliance with those requirements, remained subject to review and approval by the Office of Management and Budget (“OMB”). This afternoon, the FCC released a Public Notice announcing that it had received the necessary approvals from the OMB and that the new rules and reporting requirements will become eff

As the result of a random EEO audit, the FCC admonished a publicly traded broadcast station group owner for failing to recruit “widely” for every full-time vacancy.

Topics include:

• FCC Fines Mississippi Radio Station for Broadcasting a Conversation Without First Informing the Other Party
• Commission Fines Wyoming Radio Licensee $4,200 for Failing to Enclose Tower With an Effective Locked Fence
• FCC Fines Louisiana Radio Licensee $10,000 for Tower Lighting and Operating Power Violations
• FCC Fines Licensee of Florida Low Power FM Radio Station $6,400 for Emergency Alert System Violation
  

The next Children’s Television Programming Report must be filed with the FCC and placed in stations’ local Public Inspection Files by April 10, 2008, reflecting programming aired during the months of January, February, and March.

Commercial and noncommercial Radio stations licensed to communities in Delaware, Indiana, Kentucky, Pennsylvania, and Tennessee must file their Biennial Ownership Reports with the FCC by April 1, 2008. Reports for commercial and noncommercial Television stations licensed to communities in Texas must also file their Biennial Ownership Reports by the same deadline.

Why should you, as a broadcaster, file comments in the FCC’s “Report on Broadcast Localism and Notice of Proposed Rulemaking” in MB Docket No. 04-233 (“NPRM”)?

This Broadcast Station EEO Advisory is directed to radio and television stations licensed to communities in: Delaware, Indiana, Kentucky, Pennsylvania, Tennessee, and Texas, and highlights the upcoming deadlines for compliance with the FCC’s EEO rule.

On February 29, the FCC released a Public Notice alerting AM radio stations to the upcoming commencement of Daylight Saving Time, and providing directions for Presunrise and Postsunset Operations during the month of March.

Topics include:

• FCC Fines Texas AM Station $8,800 for Failure to Maintain a Main Studio and Exceeding Licensed Power Levels
• New York Private Land Mobile Licensee Fined for Operating From an Unauthorized Location With an Antenna Placement Exceeding Authorized Height
• FCC Fines Owner of Antenna Structure $13,000 for Failure to Paint Antenna Structure and Notify the FCC of a Change in Ownership
• FCC Issues Several Notices for Failure to Notify of Change in Ownership of Antenna Structure and Failure to Transmit Assigned Call Sign

Television stations will now be required to file FCC Form 355, a new quarterly programming report, as well as post their public inspection files online. These new requirements apply only to full-power and Class A television stations.

On January 22, the FCC released the new FCC Form 387. At this time, the form is only available for public viewing; the version of the form to be used for electronic filing purposes will be made available at a later date.

Topics include:

• FCC Fines Owner of Florida Antenna Structure $3,000 for Failure to Register
• Commission Fines Florida Licensee $10,000 for Failure to Comply with Radiofrequency Radiation Requirements
• Utah Licensee Fined $4,000 for Violating Rule on Broadcasting Telephone Conversations

At a late-night meeting on September 11, 2007, the Federal Communications Commission (“FCC”) adopted a “viewability” rule that will govern cable carriage of must-carry stations after analog broadcasting terminates in 2009. The rule requires cable operators to deliver the primary digital stream of a must-carry television station in a manner that will permit it to be viewed by all cable subscribers after the transition to digital television occurs on February 17, 2009. Specifically, cable operators will be required to carry the primary digital stream of a must-carry station, and will be required to either provide the digital signal in analog format as well, or carry the signal only in digital format, but ensure that

.

Topics include:

• FCC Fines Radio Station $4,200 for Lack of Effective Tower Fences
• FCC Fines Television Station After Discovering Deserted Main Studio
• FCC Fines Radio Station for Airing Prank Phone Call
• FCC Officially Increases Maximum Fine for Indecency and Profanity

On May 31 the Federal Communications Commission (FCC) released an order detailing its new rules for in-band on-channel (IBOC) digital broadcasting by AM and FM radio station licensees. Stations currently providing digital IBOC signals have been operating under interim rules. The new rules impose a relatively light regulatory touch, reflecting the FCC’s belief that broadcasters should have broad flexibility to experiment with new service models and to tailor their service offerings to market demands.

The newly revised FCC Form 398 is now available on the FCC’s website. The completed form should be filed with the FCC no later than between June 1 – 10, 2007, covering the period January 1 – March 31, 2007. The FCC had previously postponed the filing deadline for the first 2007 calendar quarter Children’s Television Programming Reports due to the delay in revising and obtaining clearance for this newly revised form.

Topics include:

• FCC Fines Texas Radio Station $8,000 for Violating Commission’s EAS Rules
• FCC Fines California Tower Owner $13,000 for Violating the Commission’s Antenna Structure Rules
• FCC Fines Michigan Tower Owner $8,000 for Violating Antenna Structure Lighting Rules

Music can add great value to many forms of programming including commercial advertising and other types of promotions. In this context, music sets the mood, helps convey information about products and services, and makes the commercial message more memorable. In producing a commercial, there are different alternatives for obtaining the music to be used. A composer can be hired to write a new song, or an existing song can be used. The growing trend is to use existing songs for commercials, rather than commissioning new music. What kind of licensing is required in order to use and broadcast an existing song in a commercial?

When it comes to use of trademarks on the Internet, it’s all about fairness – fairness to the trademark owner, to the consumer, to competitors, and to purveyors of Internet searching and other services.