The FCC Announces Major Changes to the Broadcast Local Public Notice Rule

On May 13, 2020, the Federal Communications Commission (FCC" or the Commission") released a Report and Order (Order") announcing major changes to the local public notice obligations for broadcast applications. The Order eliminates the obligation to publish a public notice of certain broadcast applications in newspapers. Instead, applicants must now publish such notices online with links to the FCC's Online Public Inspection File (OPIF") or application databases. The FCC, however, preserved the over-the-air public notice requirements for some broadcast applications - albeit with some significant changes.

As a reminder, a variety of routine and non-routine of broadcast applications trigger requirements for over-the-air and newspaper publication of local public notices. For example, all full-power stations must air announcements regarding their license renewal applications, but translator stations must publish these in a newspaper. Assignments of licenses, transfers of control, and certain applications for new licenses also require over-the-air or newspaper notices.

This article breaks down the major changes to the Broadcast Local Public Notice Rule, and how these changes will impact broadcasters. The FCC claims in the Order that the rule changes were implemented to streamline local public notice obligations for broadcasters in order to mitigate the compliance difficulties created by the complex requirements under the existing rules. In reality, the changes imposes many additional requirements on broadcasters - most notably the obligation to post public notices online for certain applications.

NOTE: with one exception for renewal pre-filing announcements, noted below, these rule changes do not go into effect immediately. The effective date is dependent upon publication of the Order in the Federal Register. We will post the effective date(s) here as they become known (expected in a few months).

Online Public Notice Replacing Newspaper Notices

Broadcast applicants currently required to publish a public notice of application filings in a newspaper will now be required to post such notices online for a period of 30 days, beginning within 5 business days of the FCC's acceptance of the application for filing.

Under the new rules, commercial broadcast applicants will be required to publish the notice on the website of either (in order of availability): (1) the station; (2) the licensee; or (3) the parent entity. If the applicant does not maintain or have access to their own website, however, the public notice may be published on a locally targeted, publicly accessible website serving the area served and/or to be served by the station (e.g., local government, local community bulletin board, local newspaper website, or state broadcasters association's website). The Order also provides specific texts for online notices depending on the application type. The standardized scripts will also require broadcasters to provide information on accessing the application in the station's OPIF or, for stations not required to maintain OPIFs (e.g., LPTVs, LPFMs, and TV/FM Translators), information on accessing the application in the relevant FCC database.

Notices published on applicant-affiliated websites, however, cannot be published merely on the home page of a station or licensee's website. Instead, the Order requires that the notices be published on a separate page of the website - with a link labeled FCC Applications" displayed on the home page connected to a separate page containing the full text of the notice. While the FCC did not mandate that the FCC Applications" link have a specific location on the home page, the Commission did require that the link be conspicuously displayed" on the home page. This means that the link must be displayed in such size, color, contrast, and/or location on the home page that it is readily readable, understandable, and locatable by visitors to that page."

In addition, the Order requires that applicants maintain the separate online public notice page on an ongoing basis. This means that when the applicant does not have any pending applications filed with the Commission requiring online notice, the online public notice page must nevertheless state that there are no pending applications subject to the posting requirement AND indicate when the page was last updated. This requirement, of course, only pertains to broadcasters with applicant-affiliated websites, and not broadcasters having to use the locally targeted, publicly accessible website for public notices.

Non-commercial Educational (NCE") Stations: the FCC Order generally exempts NCE broadcast stations from these new online public notice requirements - unless such NCE stations are silent, not yet operational, or the notice is required during a period when the station is not operating pursuant to its licensed parameters. NCE stations will be permitted to continue airing announcements rather than publish online or in newspapers.

On-Air Announcements Changes

The FCC also made significant changes to the on-air announcement requirements for broadcast station local public notices. First, the FCC finally eliminates the confusing and somewhat arbitrary rules dictating when the announcements should air depending on the type of application and the applicant. Instead, going forward, all applications requiring on-air public notices will follow a standardized set of requirements, directing that:

• Announcements shall air at any time between 7 AM and 11 PM, Monday-Friday;
• Stations must air six (6) announcements - which must be aired once a week for 4 weeks, with no more than 1 announcement per day (i.e., announcements airing the same week must be aired on different days) and
• Airing of announcements must commence no later than 5 business days after the application has been accepted for filing at the FCC.

The Order also announces standardized announcement scripts for on-air announcements. Similar to online announcements, the standardized scripts also require broadcasters to provide information on accessing the application in the station's OPIF or, for stations not required to maintain OPIFs, information on accessing the application in the relevant FCC database.

With respect to on-air announcements for broadcast television applications, the Commission specifically noted that program crawls would not be required - as in the prior rule, the entire text of the announcement must be displayed on-screen while being read simultaneously by an announcer.

Additionally, the Order eliminates the requirement that broadcasters air pre-filing announcements for their license renewal applications - noting that the elimination will reduce the total number of on-air announcements for license renewal applications from 10 to 6. To that effect, the FCC's Media Bureau simultaneously released its own Order waiving the pre-filing license renewal application requirement for all broadcasters in the 2019-2023 license renewal cycle until the Order becomes effective. Thus, beginning with the license renewals due on August 3, 2020 (i.e., AM/FM/LPFM stations in Illinois and Wisconsin, and TV/Class A/LPTV stations in North Carolina and South Carolina), broadcasters filing license renewal applications will not have to run pre-filing announcements on their stations in advance of their renewal applications (post-filing renewal application announcements are still required).

Other Changes

The FCC's Order also contains a litany of other requirements and clarifications regarding public notice of broadcast applications, including:

• Channel Sharing: Clarifying that each television station in a channel sharing arrangements must broadcast on-air announcements on its program stream.
• Multicasting. Clarifying that on-air notices are only required for multicasting stations on the digital television or radio station's primary over-the-air programming stream.
• OPIF. Retains the requirement that broadcasters required to run on-air announcements must add to their station's OPIF a certificate listing the dates and times that the announcement was aired. The FCC, however, removed the requirement that such certifications contain the script of the announcement since all on-air announcements will now follow standardized forms.
• LPFM. Clarifying that LPFM stations will continue to follow the same public notice obligations as other NCE stations - i.e., on-air announcements only (except when the station is unbuilt, operating at variance, or silent).

Conclusion

Contrary to the Commission's conclusions, the new local public notice requirements will actually increase the burden of notice requirements upon broadcasters. First, broadcasters required to run online public notices will have to expend considerable costs and resources in revamping their websites to confirm with the new notice requirements. Second, for both on-air and online public notices, tying the notice schedule to the date on which the application is accepted for filing - rather than the actual date of filing - will require broadcasters and their representatives to constantly monitor multiple FCC databases for the public notice announcing the application's acceptance for filing. Interestingly, the Commission dismissed concerns that this would not be a burdensome task, noting that many broadcasters already use third-party software to track FCC applications. Yet, the FCC's new Licensing and Management System (LMS") database (which will eventually be the only database for all broadcast applications) does not readily support such third-party trackers.

Third, many broadcasters will have to file BOTH online and on-air announcements for the same application (e.g., assignment/transfer of control applications for commercial broadcasters) - effectively doubling the public notice requirements for a single application. Finally, both on-air and online public notices are now required to include links directly to the station's OPIF, or the FCC database in which the application was filed. Considering that there are presently multiple FCC databases (i.e., Consolidated Database System (CDBS) and LMS) in which broadcast applications are filed, this will likely lead to confusion among broadcasters in figuring out exactly which FCC database their application was filed in.

Generally speaking, the Order's provisions will be effective 30 days after publication of the Order in the Federal Register. However, changes to Section 73.3580 of the Commission's rules - which form the bulk of the Order's changes to the public notice requirements for broadcasters - first require Office of Management and Budget (OMB) approval prior to them becoming effective. Our firm will continue to monitor the Federal Register and will provide updates when certain provisions of the Order become effective. In the meantime, should you have any questions regarding your current or future local public notice requirements, please contact Keenan Adamchak at (703) 812-0415 or adamchak@fhhlaw.com.