NAB is working on a daily basis with the Federal Communications Commission (FCC) to address concerns broadcasters have raised during this time of national crisis. In response, the FCC recently announced extensions of deadlines, clarifications and exceptions to existing policies.
On Tuesday, March 17, the FCC announced that it would allow stations assigned to phase 9 that are impacted by COVID-19 to move to phase 10. Testing for phase 10 begins on May 2, 2020 and ends on July 3, 2020. In adopting this change, the FCC acknowledged that many stations are facing construction supply chain delays as a result of COVID-19. To request authority to move to phase 10, a station should submit a waiver request using the legal special temporary authority (STA) form in a licensing management system (LMS), and state that the delay is due to circumstances related to COVID-19.
It remains important to coordinate transition schedules with linked stations. A station assigned to Phase 9 that is not experiencing COVID-19-related delays may transition on its planned Phase 9 schedule, provided that it does not have any direct downstream linkages to stations moving from Phase 9 to Phase 10.
On Thursday, March 19, in response to an NAB request, the FCC’s Media Bureau released a Public Notice clarifying that stations are not required to reduce to writing or place in their online public files temporary agreements for shared news gathering efforts related to coverage of the COVID-19 pandemic. When the FCC adopted the requirement to file shared services agreements, it specifically exempted ad-hoc or “on-the-fly” arrangements repeating to breaking news. The public notice clarified that COVID-19 coverage falls within this exemption. In taking this action, the FCC acknowledged that broadcasters “play an essential role in helping Americans stay safe and informed during the COVID-19 outbreak” and stated that it will continue to work with broadcasters to address operational challenges during this difficult time.
On Friday, March 27, in response to an NAB request, the FCC’s Media Bureau released a Public Notice granting broadcasters additional time to file their Children’s Programming Reports and Quarterly Issues/Programs Lists. The Bureau extended the deadline for filing the first Children’s Television Programming Reports on the FCC’s revised form (Form 2100, Schedule H) from March 30 to July 10, 2020. In addition, the deadline for radio and TV broadcasters to place their first quarter issues/programs lists into their online public files was extended from April 10 to July 10, 2020. As a result, the filing deadline for both the first and second quarter issues/programs lists will be the same.
Notwithstanding the extensions, the Bureau urged licensees to file their Children’s Programming Reports and Quarterly Issues/Programs Lists as soon as practicable. In addition, the Public Notice emphasizes that it does not modify any other requirements or filing deadlines related to station political files specifically or public files in general.
As noted above, in response to our advocacy, the FCC clarified that news sharing arrangements developed in the current environment do not have to be placed in a station’s public file. On March 25, the Commission addressed the effect of certain local marketing and shared services agreements on station attribution under the FCC’s ownership rules.
Typically, under the Commission’s rules such news programming under the terms of these agreements may not exceed 15 percent of the brokered station’s weekly programming hours. Thus, providing programming in excess of 15 percent of the brokered television station’s weekly programming hours may result in violation of the Local Television Ownership Rule. In this Public Notice, the Commission clarified that during the period that the COVID-19 outbreak remains a national emergency, individual licensees may request temporary waivers of the Local Television Ownership Rule to provide more news coverage to brokered stations than is currently provided by existing local marketing, shared services or related agreements if such additional coverage would exceed 15 percent of their current weekly programming. This should remove another barrier to sharing resources and news production for stations across the country.
On March 25, the FCC’s Media Bureau announced extremely helpful and responsive guidance regarding the calculation of the lowest unit rate (LUR) for political advertising given the dire economic circumstances created by the COVID-19 pandemic. Federal law requires broadcasters to charge political candidates no more than the LUR for the same class and time of advertising offered to commercial advertisers. NAB and individual broadcasters have informed the FCC that financial difficulties arising from COVID-19 have caused many commercial advertisers to cancel their advertising commitments, and to build goodwill, broadcasters would like to offer free time to commercial clients. However, under normal circumstances, doing so could potentially dramatically lower a station’s LUR.
The Public Notice states that, given the current circumstances, the public interest would be served by allowing broadcasters to exclude such free time when calculating the LUR, provided the free time is “not associated with an existing commercial contract for paid time or otherwise considered bonus spots.” Although the Bureau does not further explain this condition, NAB understands that advertisers offered free time may include advertisers that are already running paid schedules, however, there may not be any contractual connection or quid pro quo between the free and paid schedules. The offer of free time must stand alone. NAB recommends that broadcasters keep careful documentation of the terms of their offers of free time and the schedules of free time aired, just in case they receive any inquiries or complaints from political candidates. We also suggest that broadcasters consult their own attorney before implementing this guidance.
This new guidance is only applicable “to the current period and not necessarily...when more ordinary conditions are restored.”
On May 4, 2020, the FCC announced a policy that will allow broadcasters to forego the current obligation to widely disseminate job vacancies in rehiring employees laid-off due to the economic downturn precipitated by the COVID pandemic. Under current rules, broadcasters must engage in broad recruitment outreach for all full-time job vacancies. The FCC found good cause to waive this requirement to help enable impacted broadcasters to return operations to full strength once circumstances allow the re-hiring of released employees. Specifically, broadcasters will be permitted to re-hire full-time employees who were laid off due to circumstances related to the ongoing COVID-19 pandemic without first conducting broad recruitment outreach, if they re-hire such employees within nine months after the date they were laid off.
NAB has secured from the Department of Homeland Security (DHS) Cybersecurity and Infrastructure Security Agency (CISA) access letters that should ensure broadcasters have continued access to critical facilities during the COVID-19 national emergency, as well as priority access to fuel to execute these activities and for the operation of generators and response fleet vehicles to prevent communications outages. The access letter is available here and the fuel letter here. They are similar to those that have been issued in connection with weather and other geographically-related emergencies.
On April 3, the FCC’s Media Bureau temporarily waived sponsorship identification requirements to reduce regulatory burdens on broadcasters airing PSAs during airtime originally purchased by commercial advertisers. Because of the COVID-19 outbreak and related disruptions in business operations and event cancellations, many advertisers can no longer use the advertising time they had previously purchased from radio and TV stations. To make use of the time, some advertisers wish to donate the time to allow broadcasters to air additional COVID-19 PSAs prepared by, or on behalf of, the Centers for Disease Control and Prevention (CDC), other governmental entities or public health authorities. The Bureau observed that allowing PSAs to be aired in lieu of ads served the public interest, and that requiring stations to disclose the original purchaser of the time could cause confusion or undercut the value of the PSAs. Accordingly, it temporarily waived the sponsorship ID requirements. Please note that this is a temporary waiver that applies only in the limited circumstances described in the order and that the sponsorship ID requirements otherwise continue to apply.
On April 6, the Media Bureau and the FCC general counsel’s office denied an emergency petition filed by Free Press requesting an investigation into broadcasters that have aired the president’s statements during White House Coronavirus Task Force briefings and related commentary about the pandemic by other on-air personalities. The petition claimed that the president and various commentators made false statements regarding COVID-19, which licensees broadcast to the public, and that allegedly have caused or will cause substantial public harm. Free Press asked the Commission, under its public interest authority and its rules prohibiting broadcast hoaxes, to investigate these broadcasts and adopt emergency enforcement guidance “recommending that broadcasters prominently disclose when information they air is false or scientifically suspect.” The Media Bureau and Office of General Counsel strongly rejected the petition, concluding that Free Press had misconstrued the FCC’s rules and sought remedies that would dangerously curtail the freedom of the press embodied in the First Amendment. The decision also made clear that the FCC will neither act as a roving arbiter of broadcasters’ editorial judgments nor discourage them from airing breaking news events involving government officials in the midst of the current pandemic.
To give TV stations more flexibility to provide live or tape delayed coverage of community events, such as religious services, during the coronavirus outbreak, the Media Bureau on April 9 announced a limited, temporary waiver of the requirement for stations to reschedule any preempted weekly, regularly scheduled children’s educational programming. This rule waiver currently runs through April 30, 2020.
Specifically, the Media Bureau will not require stations to reschedule preempted children’s programming that is not otherwise exempt from the rescheduling requirement if the preemption is intended to encourage compliance with government efforts to limit gatherings and promote social distancing by broadcasting live or same-day tape delayed locally-produced community events. While the Bureau encouraged stations to attempt to reschedule the preempted children’s programming if possible, the preempted programming is not required to be rescheduled in order to have the preempted weekly, regularly scheduled program count towards compliance with the FCC’s annual children’s TV programming processing guidelines. Stations are still required to provide on-air notices to viewers of the preemption as required by FCC rules. Because stations are not required to reschedule the program, the Bureau also waived the requirement that stations must include in their on-air preemption announcements the alternate date and time when the preempted program will air. If stations do choose to reschedule the preempted program, the Bureau encouraged them to inform viewers through reasonable means (e.g., website, social media, on-air announcements) when the preempted program will be aired.
On April 9, the FCC’s Media Bureau issued an order waiving the requirement that broadcast stations scheduled to file their license renewal applications on June 1, 2020 air pre-filing announcements of their renewal applications. The Bureau determined that due to the disruptions caused by COVID-19, good cause exists to alleviate this administrative and compliance burden so that stations may focus on coverage relating to the COVID-19 pandemic. The order applies only to broadcast licensees whose licenses expire on October 1, 2020 with renewal applications to be filed by June 1, 2020. Broadcasters should also be aware that the order does not waive the required post-filing announcements under sections 73.3580(d)(4) and (d)(5)(i)(B) of the FCC’s rules.
The FCC does not plan to issue a blanket extension of upcoming deadlines for the filing of renewal applications or the related pre- and post- filing announcement requirements. If you are facing challenges in timely completing these applications, the FCC is willing to work with broadcasters to address such challenges on a case-by-case basis.
For questions or additional information on these issues, please contact your station counsel. NAB members may also contact our Legal hotline at firstname.lastname@example.org or (866) 682-0276.