On paper, this October appears to be a busy month for regulatory deadlines. But the lack of congressional action to fund the federal government for the coming year (or “continuing resolutions” adopted to allow government agencies to function at their current levels) is making a federal government shutdown appear inevitable. If a government shutdown does occur, the FCC, the FTC, and the Copyright Office may also shutdown – which, as with previous shutdowns, may result in many of the regulatory deadlines discussed below being delayed.
According to the August 2023 FCC Shutdown Plan, if a potential lapse in appropriations is imminent, the FCC will determine whether and for how long prior year funds will be made available to continue all agency operations during a lapse. To date, however, the FCC has not stated whether it plans to remain open – and if so, for how long – if a government shutdown does occur. Details from the FCC and other agencies should be released shortly given the shutdown that may well occur this weekend.
Until we receive such guidance, the tentative October regulatory deadlines for broadcasters are provided below. Even if the government does shut down, these dates will likely be rescheduled for soon after the funding issue is resolved. So, let’s look at the upcoming deadlines.
October 1 is the “snapshot” date for broadcast ownership. All licensees of commercial and noncommercial full-power stations, and of low-power TV stations, must file a Biennial Ownership Report by December 1, 2023, reflecting their ownership as of October 1 (see our article here on the FCC’s recent reminder about these reports). These reports are filed every other year, and they are used by the FCC to track the composition of those who own broadcast stations in the US. These reports not only detail ownership and control of broadcast stations, but also report on the race and gender of station owners, and their other broadcast interests (see our article from 2021 about the importance the FCC attaches to these filings). The LMS system was designed to track attributable owners through all of their broadcast holdings. Thus, each individual and entity who has an interest in your station needs to obtain its own FCC Registration Number (FRN). The FRN is used in the reports of all stations in which that individual or entity has any interest. Additional reports also need to be filed for each entity that has an attributable interest in any licensee. The process of preparing these reports can take time (e.g., you need the social security number for all individuals with interest in commercial licensees and the Employer Identification Number for all entities – see this article for special rules for certain board members of noncommercial licensees), so you should start to gather this information now even if the government shutdown delays the filing deadline for these reports.
October 2 is the deadline for Radio and Television Station Employment Units in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Missouri, Northern Mariana Islands, Oregon, Puerto Rico, and Washington with 5 or more full-time employees to upload to their online public inspection file their Annual EEO Public File Report. A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee. For employment units with 5 or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year. A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.
Also, by October 2, television stations must elect must-carry or retransmission consent for multichannel video programming distributors (MVPD) that carry their signals. Full-power and Class A TV stations must place in their online public inspection file by October 2 notice of whether they elect retransmission consent or must-carry carriage from their area’s MVPDs for the upcoming three-year cycle beginning on January 1, 2024, and ending December 31, 2027. If the station has decided to change its election, it must notify the MVPD by email, to an address set out in the MVPD’s public file. We wrote about the FCC’s adoption of these requirements here.
This year’s Nationwide EAS test is tentatively scheduled for October 4 (with a back-up date of October 11 if there is a real or threatened emergency near the October 4 scheduled date). If the EAS test does occur, broadcasters must file the ETRS Form 2 by October 5 (or the day after the test if it is delay) to report on the test. See our article here regarding this year’s EAS test and broadcasters’ reporting obligations.
Also on October 4, the FTC will hold a virtual roundtable discussion on artificial intelligence (AI) issues that can be viewed online by the public. The session will consider how AI may impact open and fair competition or enable unlawful business practices across markets, including in creative industries. The listening session will focus on different issues posed by generative AI, including concerns raised by musicians, actors, and other content creators about the use of AI to create entertainment and other content. The Copyright Office is also looking at AI issues. October 30 is the filing deadline for comments in response to the Copyright Office’s Notice of Inquiry regarding the copyright issues triggered by the use of AI, including the question of whether machine-generated content is entitled to copyright protection and the copyright implications of AI’s use of copyrighted materials (including books and music) to “learn” how to perform certain tasks. Reply comments will be due by November 29.
Reply comments are due by October 6 on the FCC’s Order and Notice of Proposed Rulemaking (“NPRM”) proposing changes to the digital audio broadcasting rules to facilitate greater digital FM radio coverage. Initial comments in response to the NPRM were due by September 21. The NPRM tentatively concludes that there is merit to two petitions for rulemaking filed by NAB and other parties (available here and here), asking the FCC to permit increased FM digital effective radiated power beyond the existing levels and to allow a digital FM station to operate with asymmetric power on the digital sidebands (for more details about these petitions, see our article here). The FCC seeks comment on a number of specific questions including when a station can seek higher digital power without submitting a contour analysis or otherwise seeking Commission prior approval; whether stations planning asymmetrical side bands need to give notice to adjacent channel stations; whether there is a risk of interference to lower powered FM stations, secondary stations (LPFMs and translators), and even broadband operators who suggest possible interference to equipment that they operate on FM channels; and whether any potential interference calls for limits on the proposed rule changes.
October 10 is the deadline by which all full-power television, full-power radio, and Class A television stations must upload to their online public inspection files their Quarterly Issues/Program Lists for the third quarter of 2023. The lists should identify the issues of importance to the station’s community and the programs that the station aired in October, August, and September that addressed those issues. As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its community. See our article here for more on the importance of the Quarterly Issues/Programs list obligation.
October 10 is also the deadline by which noncommercial educational stations must upload to their public inspection files documentation of any on-air fundraising benefitting third parties that interrupted their normal programming from July 1 through September 30, 2023. This obligation applies to noncommercial educational stations not affiliated with NPR or PBS that conducted such third-party on-air fundraising. For more information about this requirement, see our article here. Also on October 10, Class A television stations should upload to their online public file documentation of their continuing eligibility for Class A status during the period from July 1 through September 30, 2023.
The FCC’s October Open Meeting is scheduled for October 19. At that meeting, the FCC Commissioners are scheduled to consider an item regarding the expansion of audio description requirements for video programming to video programmers outside of the 100 largest TV markets. As proposed in the February 2023 Further Notice of Proposed Rulemaking on the matter, the FCC will vote on whether to phase in audio description requirements for an additional 10 markets each year until all markets are covered. While the FCC is required by statute to hold monthly meetings, it is not required to vote on any items at those meetings. Therefore, it remains to be seen whether the FCC Commissioners will act upon the audio description item.
Looking ahead to November, a window for filing applications for new LPFM stations runs from November 1 to November 8. We wrote more about the rules for this window here.
As always, this list of dates is not exhaustive. Also note that deadlines can change – especially in light of the impending government shutdown. Always review these dates with your legal and technical advisors, and note other dates not listed here that may be relevant to your operations.