By July 10, 2024, all radio and television broadcast stations, both commercial and noncommercial, must: (1) prepare a list of important issues facing their communities of license and the programs aired during April, May, and June dealing with those issues; and (2) post these documents to the FCC's online public inspection file database ("OPIF").

Additionally, radio and television broadcast stations are reminded to keep complete and orderly records in their Political File of all requests for broadcast time made by or on behalf of a candidate for public office or by a political issue advertiser.

Issues/Programs Lists; Online Public File Reminder

All radio and TV broadcast stations must prepare Issues/Programs Lists and upload them to their online public inspection files within ten days after the end of each quarter. The quarterly Issues/Programs List is station-specific and, therefore, each station should have its own list, describing programming broadcast on that station addressing issues of importance to its viewers or listeners. The next list must be prepared and filed by July 10, 2024.

The quarterly Issues/Programs List should reflect the "station's most significant programming treatment of community issues." Thus, a station needs to identify issues of importance to its community of license that it has determined to be of significance during that quarter and list the programming that was responsive to those issues. In the past, the FCC had mandated identification of five to 10 issues per quarter. While the FCC no longer requires identification of a specific number of issues, that range remains a good target.

Although broadcasters have discretion in deciding the specific programs that address the identified issues, all stations must broadcast some programming that does so. Each program must be identified, including the title and length of the program, as well as the time and date on which it was aired. The description should include a brief summary of the contents of the program sufficient to demonstrate how the program addressed the identified issue. Failure to have a complete and timely set of quarterly Issues/Programs Lists can lead to significant fines at license renewal time or following an FCC inspection. Even stations that are off-air pursuant to Special Temporary Authority from the FCC must prepare an Issues/Programs list stating that the station was off-air for the entire quarter or provide an Issues/Programs list for the portion of the quarter during which the station was broadcasting.

Third-Party Fundraising by Noncommercial Broadcasters

Also, by July 10, 2024, certain noncommercial educational radio and TV stations must upload to their public inspection files documentation of any on-air fundraising benefiting third-party nonprofit organizations from April 1, 2024, through June 30, 2024. This obligation applies only to noncommercial educational stations not affiliated with PBS or NPR that conducted such third-party on-air fundraising that interrupted normal programming. PBS and NPR stations that receive funding from the Corporation for Public Broadcasting are prohibited from engaging in any third-party fundraising.

Political Requests for Broadcast Time

In addition to the Issues/Programs Lists quarterly public file obligation discussed above, the Communications Act and FCC rules require all TV and radio broadcast stations to maintain and make available for public inspection information about all requests for broadcast time made: (1) by or on behalf of candidates for public office; and (2) by an issue advertiser whose advertisement communicates a message relating to a political matter of national importance. Stations are required to upload such information to their online political files "as soon as possible." The FCC has interpreted "as soon as possible" to mean "immediately absent unusual circumstances." Stations should note that the FCC's Media Bureau has entered into Consent Decrees with stations for failure to comply with their FCC Political File obligations and that failure to comply can pose challenges at the time of license renewal.

See our advisory from April 29, 2024, for further guidance regarding political broadcasting obligations.

Special Rules for Class A TV Stations

The FCC requires that Class A TV stations maintain information in their (online) public files sufficient to demonstrate their continuing eligibility for Class A status, i.e., that: (1) they are on-air at least 18 hours per day; (2) they have broadcast at least three hours per week of locally produced programming; and (3) they have otherwise observed the rules that apply to full-power TV stations.

Foreign Government Program Certifications

All agreements for the sale of program time on radio and TV broadcast stations should contain a certification from the program buyer that it is not a foreign government, foreign political party, or agent of a foreign government, including a U.S.-based foreign media company, and that no such foreign entity has paid the programmer to produce the program or to air it on the broadcast station(s). Broadcast station licensees must exercise "reasonable diligence," both at the time of the lease agreement and any renewal thereof to ascertain whether the foreign sponsorship disclosure requirements apply, i.e., whether programming is being provided by a foreign government or political party or agent thereof. This includes programming provided to the station for free with the expectation that it will be broadcast. Licensees must maintain records reflecting their diligence for either the remainder of the then-current license term or one year, whichever is longer.

For any programs that are provided by a foreign government or its agent, the broadcast licensee is required to place enhanced sponsorship identification in the program. See FCC Rule Section 73.1212(j) for details.

Additionally, the airing of any such program requires the licensee to place copies of the disclosures required by that FCC rule in its online public inspection file on a quarterly basis, including the name of the program and the date and time when the program aired. These disclosures must be placed in a standalone folder titled "Foreign Government-Provided Programming Disclosures." In the case of repeat airings of the program, the broadcaster must place the date and time of all such airings in the public file.

Note that these requirements do not apply to programming purchased by broadcasters but only to programming bought from broadcasters or provided for free to a foreign governmental entity.

The FCC just released a Second Report and Order and new rules that will both create standardized language for the required certification and require that these certifications be placed in the station's public inspection file. The new rules are scheduled to become effective 30 days after publication in the Federal Register and OMB issues its approval. We will be posting a separate advisory on the FCC's new order and rules in the near future. Also, in January, a bill was introduced in Congress entitled "Block Foreign-Funded Political Ads Act" that would impose additional obligations on broadcasters, cable and satellite television providers, and online platforms, to make reasonable efforts to ensure that political ads are not purchased by a foreign national, directly or indirectly. Although this bill (HR 6996) has not yet made it out of committee, we will keep you advised if this legislation is enacted.

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If you have any questions, please contact Burt Braverman or Sharon Mathis, broadcast paralegal.

Disclaimer

This advisory is a publication of Davis Wright Tremaine LLP. Our purpose in publishing this advisory is to inform our clients and friends of recent legal developments. It is not intended, nor should it be used, as a substitute for specific legal advice as legal counsel may only be given in response to inquiries regarding particular situations.

*David Silverman is a contract attorney and former partner of DWT. Broadcast paralegal Sharon Mathis also contributed to this advisory.