For the upcoming meeting on September 26, 2019, the FCC has released a draft of a Further Notice of Proposed Rulemaking in MB Docket 17-264. This rulemaking, initiated as a result of the Media Modernization proceeding (MB Docket 17-105) addresses the current issues faced by broadcasters with the issue around public notices in §73.3580 of the rules.
Section 311(a) of the Communications Act requires that all broadcast stations must give public notice of applications. This law was enacted by Congress in the early 1960s as a part of a transparency initiative which is, in a way, in the wake of the quiz show and payola scandals of the late 1950s. The FCC implemented rules to support this law in what is now known as §73.3580.
Under the current rules, broadcasters must make some form of a public notice, mainly in the newspaper of the largest circulation of applications filed with the FCC. Exceptions to this public notice requirement include minor changes, requests to extend time on construction permits, involuntary transfers of control, license to cover applications, special temporary authority applications, remote pickup, studio to transmitter links and short term (special event) requests to deliver programming to foreign broadcast stations under Section 325(c) of the Communications Act.
Stations subject to the newspaper rule are required to publish two advertisements per week for two consecutive weeks within a three week period.
Exceptions were made for full-service noncommercial educational stations that are on the air to announce public notice information over the air in lieu of the newspaper and translators for FM and TV that do not originate their own programming will have a reduced public notice requirement. In addition, notifications made both before and after the filing of renewal applications may be made over the air in lieu of the newspaper for operating commercial and noncommercial full-service stations.
When the Commission created LPFM in 2000, they decided to not subject LPFM stations to certain administrative rules in order to ease the burden on these new entrants and therefore never included any reference in §73.801 to §73.3580 nor was any LPFM specific language ever amended into §73.3580. In mid-2019, in response to inquiries made by other parties to the FCC, the Audio Division sent informal letters to various LPFM stakeholders including REC Networks to advise that LPFM stations are required under Section 311(a) to make public notices. While the original intention of this notification was to give clarity to LPFM stations for the renewal cycle, it was also interpreted at that time that LPFM stations would have a Section 311(a) obligation for public notices of all other activity that is otherwise not exempted.
In response, REC had filed late comments in MB Docket 17-264 to state that running 4 newspaper ads would be a significant burden on new entrant LPFM applicants seeking their original construction permit and had recommended alternate methods including a reduced newspaper schedule (such as translators), posting a public notice at a post office or other public place (including in front of the proposed station location) or through the use of a website that is specific for the posting of broadcast public notices.
In the draft Further Notice of Proposed Rulemaking (FNPRM), the FCC proposes to completely eliminate the newspaper requirement for all classes of broadcast stations. Existing stations would be required to make very short announcements on the air referring to their website, FCC's online public file system and in some cases, the FCC's License Management System (LMS), which, the FCC states should be in place for radio broadcast applications by the time the final rules in this proceeding are adopted (replacing CDBS). For new applicants, the FCC is exploring the use of other publicly available websites with a local focus such as community bulletin board sites and possibly local newspaper websites.
The FNPRM further proposes to clarify the standard of the messages carried online and announced over the air. The FNPRM proposes to set rules requiring the announcements to be carried at least once per week for four weeks from the time the application has been accepted for filing. For renewal applications, this would eliminate the requirement to carry "pre-filing" announcements and the current schedule of "post-filing" announcements will be changed to once per week for four weeks.
REC supports this FNPRM except that we feel that the scope of publicly accessible website should be extended to include websites developed for the sole purpose of disseminating broadcast public notices, especially since LPFM stations and less likely to join state broadcasters associations (SBA), especially in the light of some SBAs statements on LPFM policy and their past treatment of LPFM stations seeking membership. The FNPRM will take a massive barrier to entry for new noncommercial broadcasters for the potentially upcoming filing windows for new full-service non-commercial broadcast stations and new LPFM broadcast stations, both expected within the next four years.
LPFM impacts if rules are adopted exactly as they appear in the FNPRM
| Current Rules/Policy | Proposed Rules/Policy | |
| Existing stations currently on the air seeking renewal | No specific codified rule, only informal advice that LPFM stations run "pre-file" announcements on four specific days in the two months preceding the filing deadline for renewal applications and a "post-file" announcement on six specific days, multiple times per day in the month of the filing deadline and for the next two months following. | Codified rule to require announcements over the air one day per week for four weeks following when the renewal application has been accepted for filing in LMS. |
| Existing stations seeking to assign to another organization or to transfer of control (change more than 50% of the board members) in cases that do not involve involuntary situations such as death or court orders. | Public notice required under Section 311(a) however no rules have ever been implemented to what the requirements would be and no specific informal policy other than to follow full-service policy which consists of on-air public notices in lieu of newspaper notices. | Codified rule to require announcements over the air one day per week for four weeks following when the renewal application has been accepted for filing in LMS. |
| Existing stations seeking to make a major change within a designated filing window (and amendments to those applications) | Public notice required under Section 311(a) however no rules have ever been implemented to what the requirements would be and no specific informal policy other than to follow full-service policy which consists of on-air public notices in lieu of newspaper notices. | Codified rule to require announcements over the air one day per week for four weeks following when the renewal application has been accepted for filing in LMS. |
| New entrants seeking a new LPFM station during a filing window. | Public notice required under Section 311(a) however no rules have ever been implemented to what the requirements would be and no specific informal policy other than to follow full-service policy which requires the placement of advertisements in a newspaper of general circulation at least twice a week for two weeks in a three week period following application being accepted for filing. | Publication on one of the following: a local government website, local community bulletin board or state broadcast association website. For sites that permit free posting, the message must remain online for 30 consecutive days or for pay sites, a period of no less than 24 consecutive hours, once per week for four consecutive weeks. |
| Silent stations filing any application type that is subject to public notice. | Public notice required under Section 311(a) however no rules have ever been implemented to what the requirements would be and no specific informal policy other than to follow full-service policy which requires the placement of advertisements in a newspaper of general circulation at least twice a week for two weeks in a three week period following application being accepted for filing. | Publication on one of the following: the station's website, a local government website, local community bulletin board or state broadcast association website. For sites that permit free posting, the message must remain online for 30 consecutive days or for pay sites, a period of no less than 24 consecutive hours, once per week for four consecutive weeks. |
Over the air public notices must be carried between the hours of 7AM and 11PM local time, Monday through Friday.
