FROM THE OFFICE OF SCIARRINO & SHUBERT, PLLC
BROADCAST & MEDIA LEGAL SERVICES

Dawn M. Sciarrino
4601 N. Fairfax Dr. Suite 1200
dawn@sciarrinolaw.com
Arlington, VA 22203
Phone: 202-256-9551

 

In 2017, the FCC adopted a number of changes to its rules, with effective dates and deadlines set for early 2018.

Online Public File – March 1st Deadline
Among the most significant changes for radio broadcasters is the transition of the local public inspection file to an online system accessed via the FCC’s website. TV broadcasters moved to online public files in 2014, and radio is now in the midst of a similar transition. Radio stations with more than 5 full time employees in the top 50 markets were required implement their online public files by December 24, 2017. The deadline for all other radio broadcasters to complete the transition is March 1, 2018.

Stations may log onto the online public file at https://publicfiles.fcc.gov/admin/ using their facility ID and an FCC-assigned passcode. To obtain the passcode for a station, the licensee should login to an “Owner Dashboard” from https://publicfiles.fcc.gov/admin/owner-login/, using its FRN and its associated password. The FCC has indicated that documents should be uploaded in their “native format” wherever possible; consequently, if the document in question is prepared in Word or Excel, licensees should upload the document in its existing form unless it is technically unable to do so. If all of your stations are not populating or if you have other problems with the system, please call us.

Please also note that, at the top of the screen in the system, you will see a statement as to whether your station’s profile is “Off” or “On” for public viewing. If that statement indicates that public view is “Off” (which is the default), you will need to click on the word “Off” to change it to enable the public to view your file.

As of March 1st, all existing documents that are required to be kept in the local public inspection file must be uploaded to the online system, with one exception. Political documents that pre-date the effective date of the rule are exempt from the requirement that they be uploaded. Licensees may upload those pre-existing political documents if they like; otherwise, they are be retained for their two year retention period in a paper file. New political documents,
however, must be uploaded “immediately.”

The FCC will automatically upload most documents filed with it electronically or generated by it (e.g. ownership reports, assignment or transfer applications, construction permit applications, licenses, etc.). However, licensees must upload documents that not filed at the FCC and which must be maintained in the public file (e.g., Quarterly Issues Programs Lists, Annual EEO Public Inspection File Reports, copies of Time Brokerage or Joint Sales Agreements, a list
of any “citizens agreements”, compliance certifications for local public notice of applications, and information regarding FCC investigations). Similarly, items that are required to be placed in
the public file but are filed manually (e.g., AM license applications on Form 302-AM) must be uploaded by the licensee. Stations that have a website must include a link to the first page of the station’s online public file on the website home page.

Early last year, the FCC eliminated the requirement that stations maintain copies of correspondence from the public in their public files. Therefore, licensees need not retain a paper public file for that correspondence; if a licensee chooses to move its pre-existing political file to the online system, there will no longer be any need to maintain a physical file at all.

Ownership Reports – March 2nd Deadline
Biennial Ownership Reports are due to be filed on or before March 2, 2018. The FCC postponed the deadline from December 1, 2017, opening the LMS system for the filing of the Reports on that date. The FCC form 323 and 323-E can be accessed at
https://enterpriseefiling.fcc.gov/dataentry/login.html. While the Ownership Reports are available for completion in LMS, the system has not previously been used for radio filings, and it is
possible that some information that should prefill (for example, licenses associated with an FRN) may not do so accurately. Licensees are advised to login in well in advance of the March 2nd
deadline. Both commercial and non-commercial licensees must file their Ownership Reports during the current window. Noncommercial broadcasters previously filed on the anniversary date of their license renewal filing, a system that was put on hold last year in anticipation of this year’s filing deadline.

Despite the extension, filers must still provide data on the ownership of their stations as of October 1, 2017. The FCC has indicated that owners who sell their station between October 1st and the new deadline will need to file their own biennial reports, even if they no
longer own any stations.

EEO – Annual EEO Public File Report
In April 2017, the FCC issued a declaratory ruling that a broadcaster can rely solely on online sources in its recruiting “where doing so meets the ‘widely disseminate’ requirement of
the rules.” Broadcasters are free to select the number and type of recruitment sources that they use, and may even choose rely on a single online job posting, as long as doing so meets the
requirement for “wide dissemination.” FCC does not require all online job postings to be accompanied by on-air information about the vacancy.

FCC encourages broadcasters to consider three factors in deciding whether their online recruiting meets the standard:
(1) whether the online job posting is easy to find;
(2) job openings should be posted online for an adequate period of time with auditable interview records maintained; and
(3) broadcasters should “continue to cultivate job referral relationships with resources that are likely to include diverse candidates.”

Licensees should note that no EEO requirement was changed by the declaratory ruling. For example, even though broadcasters no longer need to reach out to community groups to meet the requirement of wide dissemination of job openings, a separate “prong” of the FCC’s EEO policy requires that broadcasters notify community groups that have specifically asks to be notified of job openings. All of the EEO rule’s non-vacancy specific outreach requirements remain in effect; consequently, all licensees must still engage in two or four (depending on the size of the station’s market and number of employees) of the outreach activities detailed in the rule for every two-year period of the license term.

In particular, stations must still maintain all of the same documentation regarding their recruitment for job openings, as well as non-vacancy specific outreach, and must still place a report of their EEO efforts in the public file annually, on the anniversary of the filing of their renewal applications. The annual EEO Public File Report, due on the filing of your license renewal application, must both be placed in the local public file, uploaded to the online public
file and posted on the station’s website, if it has one. The station may comply with its obligation to post the EEO Public File Report to its website by posting a link to the Report in the online public file, if the link connects directly to the actual report – it is not sufficient that the link connect to the home page of the public file. The EEO Public File Report must include information for the station’s employment unit (i.e., commonly owned stations in the same market
that share at least one employee) for the preceding year, including a list of all full-time vacancies filled, by job title; information regarding the recruitment source(s) used to fill each such vacancy,
including identifying any organizations that requested notice of vacancies; identification of the recruitment source that referred the successful candidate for each of the listed vacancies; the total number of interviewees for full time vacancies in the past year, and the total number referred by each recruitment source; and a description of the employment unit’s non-vacancy specific outreach initiatives. Supporting documentation for each of the vacancies need not be placed in the public file, but must be maintained until the station’s next renewal application is granted, and available if requested by the FCC.

The chance of the FCC requesting that information is not negligible – the agency continues to conduct random audits of EEO compliance. As recently as mid-December 2017, it issued a Notice of Apparent Liability in the amount of $20,000 to a licensee whose audit response revealed a number of EEO violations, including failure to recruit for all full-time vacancies, failing to provide notice of vacancies to an organization who had requested notice, and failing to maintain sufficient records of number or sources of interviewees for various vacancies – a failure which, the FCC observed, prevented the licensee from preparing accurate annual reports, placing all of the required information in the stations’ public files, and effectively analyzing the its recruitment practices, all independent violations of the EEO rule. Licensees must remain mindful that the relaxation of the EEO rules with regard to the use of online job postings has not relaxed any of their other EEO obligations.

Issues/Programs Lists – Quarterly
Licensees must place their issues/programs lists for the fourth quarter of 2017 in their public files on or before January 10, 2018. As these lists are not filed with the FCC, the license must upload the list to its online public file. Issues/program lists for the first quarter of 2018 must be uploaded to the public file by April 10, 2018; second quarter lists must be uploaded by July 10, 2018; and third quarter lists must be uploaded by October 10, 2018. Under the electronic public file regime, the system will identify the date and time that documents are uploaded; therefore, it is critical that these items be timely uploaded to the public file.

Elimination of the Main Studio Rule – Effective January 8th
At its October 2017 meeting, the FCC adopted an order eliminating the requirement that a broadcast station maintain a main studio in close proximity to its city of license that is open to the public and staffed during normal business hours. The abolition of the main studio rule became effective on Monday, January 8, 2018.

The main studio rule, including the requirements of local programming capability and minimum studio staffing requirements, are eliminated. Licensees are be required to maintain a local or toll-free number accessible to residents of the station’s city of license, which must be answered during normal business hours of the station.

Stations that have fully transitioned to the online public file (including by uploading existing political file materials) will no longer be required to keep any physical documents in their communities of license. However, stations that have not yet completed that transition, or that chose to maintain their pre-existing political file records in paper form, must maintain a paper file in their city of license until all of the documents required to be in the file are transitioned to the online public file. The file must be maintained at a location in the community of license that is open during normal business hours (e.g. a public library or an office of a local business).

The foregoing are some of the more important deadlines facing licensees in the new year and beyond. If you have questions regarding these or any other FCC requirements, please do not hesitate to contact us.

Sciarrino & Shubert, PLLC
Dawn M. Sciarrino
4601 N. Fairfax Dr. Suite 1200
Arlington, VA 22203
Phone: 202-256-9551
dawn@sciarrinolaw.com