By John Wells King and Erwin G. Krasnow
The year 2011 was a tumultuous one. Osama bin Laden was killed. The space shuttle lifted off for its final mission of the 30-year program. Broadcasters began filing applications for renewal of their licenses for an eight-year term. Well, time’s up: the cycle began all over again on June 1.
But, license renewal this time around is considerably more rigorous than before.
This isn’t 2011 all over again.
The Commission will employ a powerful new oversight tool to investigate broadcaster conduct, assess compliance, confirm the integrity of representations, and sanction infractions of its rules: the Online Public Inspection File (OPIF). Count on the Commission staff to review your license renewal application side by side with the contents and filing history of your OPIF.
The renewal cycle is the most vulnerable period of a license term, when the broadcaster’s record of performance will be reviewed and may be challenged – by members of the public, in the form of a petition to deny, and by the Commission, which holds the power to issue a substantial fine and/or short-term license, or worse, to revoke the license.
Now is the time to gird yourself for the license renewal juggernaut. It’s your eight-year lease on life, to carry operations into the next decade. This list of what’s and what-not’s will assist you in smoothing the way into, through, and out of, the license renewal process.
- File on time.
Broadcast station licenses expire in a state-by-state geographical swing around the United States over a three-year period, with Maryland, Virginia, West Virginia, and District of Columbia radio stations filing the first round on June 1, 2019. Stations in other states come due in two-month intervals thereafter. (The same three-year filing cycle for television stations begins on June 1, 2020.) Save yourself $3,000 by filing your renewal application on time. That’s the minimum fine for a late filing. And if you stay on the air past the expiration date of your license, you could be fined an additional $10,000 for unauthorized operation. Check here to see when your renewal is due: https://www.fcc.gov/media/radio/broadcast-radio-license-renewal-dates-by-state
Be aware that the FCC will not accept for filing renewal applications that are submitted on the Commission’s old Consolidated Data Base System (CDBS). Renewal applications now must be filed using the relatively new Licensing and Management System (LMS) database. Also, be aware that in LMS, the FCC has adopted a new form of the renewal application. It is now Schedule 303-S to Form 2100.
- Begin renewal filing after airing pre-filing announcements.
The broadcast station license renewal process actually begins two months prior to filing the renewal application, when the first of four announcements must be broadcast notifying your audience that your license is expiring, and inviting them to file comments with the FCC. So, for example, radio stations in Florida, Puerto Rico, and the Virgin Islands, which must file for renewal by October 1, 2019, in fact begin the renewal process on August 1, by broadcasting the first pre-filing announcement.
FCC Oversight Event: After the last of the pre-filing announcements is broadcast, you must upload the text of the announcement and a certification of its broadcast to the station OPIF. Assume the Commission staff will review the OPIF, to confirm that (1) you completed the required upload, (2) it was uploaded on time, (3) the text of the announcement conformed to rule requirements, and (4) the announcement was broadcast in conformity with the rule.
- Begin renewal filing after submitting Broadcast EEO Program Report.
Every station must prepare and file the Broadcast EEO Program Report before the license renewal application is filed. If you do not, the license renewal application will be incomplete: it requires you to insert the File Number generated by the filing of the station’s Broadcast EEO Program Report. Like the renewal application, the Broadcast EEO Program Report (FCC Form 2100, Schedule 396) must be filed using the FCC’s LMS e-filing system
Speaking of EEO, you must also certify at renewal time that you have timely filed the Annual EEO Equal Employment Opportunity (EEO) Report and, for certain stations, the EEO Mid-Term Report (but for the last time; in February 2019 the Commission eliminated the Mid-Term Report).
FCC Oversight Event: Annual EEO Equal Employment Opportunity Reports and the Broadcast EEO Program Report must be placed in the OPIF. The Commission advises that it ports all filings to station OPIFs, but it also disclaims any responsibility for any failure of a required document to be in the OPIF. So, the day after filing the Broadcast EEO Program Report, confirm that the Commission ported the Report to your OPIF. If it’s not there, upload it. Take note: the Media Bureau’s relocation of its EEO unit to the Enforcement Bureau this year underscores the Commission’s commitment to robust enforcement of its EEO rules, a heightened enforcement move that Chairman Pai has endorsed.
- Begin renewal filing after all FCC fees have been paid.
The FCC’s rules prohibit the filing of a renewal application when an applicant is delinquent in its debts to the Commission. Delinquent means a claim or debt which has not been paid by the date specified by the Commission unless other satisfactory payment arrangements have been made by that date.
Examples of such debts include:
- Regulatory fees that were not paid, were underpaid, or were submitted after the close of the regulatory fee payment window (such fees are subject to a 25% late fee)
- Application fees that were not paid or underpaid
- Installment agreements that are delinquent
- Auction payments that are overdue
The FCC has initiated license revocation proceedings against stations that have been woefully delinquent on paying regulatory fees.
- Take an OPIF inventory.
The license renewal application requires you to certify that all documents required to be placed in the public file have been placed in the public file at the appropriate times. You cannot knowingly provide the certification without a review of the OPIF as to (1) what was uploaded, and (2) when it was uploaded.
Review what must be placed in the OPIF here: https://publicfiles.fcc.gov/about-station-profiles/. Perform your inventory. Upload any missing documents. Be especially mindful of issues/programs lists. A full eight-year term would require up to 32 of them to be maintained in the OPIF. Be prepared in the license renewal application to identify and explain all instances of failures to file on time. The base forfeiture for OPIF violations is $10,000, although the Commission has authority to adjust that amount up or down.
FCC Oversight Event: The Commission staff can and will review the station’s OPIF as part of the license renewal process. The staff will be checking for three things: (1) whether the OPIF is complete; (2) whether its contents were uploaded on time; and (3) whether the license renewal applicant was truthful, either in providing the affirmative certification, or in explaining any departures from OPIF requirements. The first two points are serious. The third is deadly serious. Above all else, don’t be caught in a misrepresentation about the OPIF. Be knowledgeable (hence the inventory), and be truthful. The Commission dislikes rule violations, but it loathes a liar.
- Confess (some of) your sins.
The renewal application requires you to certify that with respect to each party to the renewal application (all officers, directors, shareholders greater than 5% voting interest, LLC members and general partners), there were no violations of the Communications Act or the Commission’s rules during the last license term (or since you acquired the station, whichever period is shorter). “Violations” in this context means Notices of Violation, Notices of Apparent Liability, Forfeiture Orders, and other specific written findings of violations of law or FCC rules. The Commission has warned renewal applicants that they should not certify a statement in the application unless they are absolutely certain the substance is accurate. For those who have trouble remembering what they had for breakfast, this request for information going back to 2011 could be problematic. Be thorough in your records search so that the certification is accurate, either in an affirmative response, or in an explanatory exhibit.
And don’t go overboard in your confession: you do not have to, and should not, include self-discovered “violations” or reports made in conjunction with participation in an Alternative Broadcast Inspection Program.
FCC Oversight Event: The Commission staff will coordinate with the Enforcement Bureau to determine the accuracy of your representation. If you have a clean record, no worries. A record of one or more violations is unlikely to threaten renewal. But failing to disclose past violations could be taken as a serious misrepresentation.
- Don’t Be Silent.
Silence is not golden. The Communications Act provides that the license of any station that is off the air for a 12-month period automatically expires at the end of that period. A question on the renewal application applicable to radio stations asks whether the station adhered to the required minimum operating schedule and whether the station has been silent for a period of more than 30 days. The FCC has designated for a revocation hearing the renewal application of a station that had been silent for prolonged periods of time during the last renewal term.
- Comply with Kidvid Requirements.
The FCC continues to fine TV stations that fail to comply with its children’s television programming and limits on commercial time during programming as directed to children 12 years and younger. Fines range from $3,000 to $20,000.
After all is said and done.
The license renewal juggernaut from start to finish is ordinarily about a six-month undertaking, but it requires an eight-year rearward look at the station’s history in specific regulated areas. It’s an investment of time of incalculable value, since its goal is to obtain the right to continue broadcasting for the next eight years. Don’t risk the prospect of a fine, or worse, a cloud on the station’s license. Be prepared to enter the license renewal juggernaut fully informed and protected.
John Wells King is a principal in the Law Office of John Wells King LLC, in Jacksonville, Florida. A veteran FCC lawyer, King has practiced before the Commission for more than 45 years. He can be reached at [email protected] and at 904-647-9610.
Erwin G. Krasnow, counsel to Garvey Schubert Barer, is a former General Counsel of the National association of Broadcasters and Washington counsel to the Media financial Management Association. He has been described by Legal Times as “the guru of Communications Law.” Erwin can be reached at [email protected] and at 202-298-2161.