Archive for David Oxenford

What to Do With the On-Air Employee Who Becomes a Candidate for Elective Office?

It seems like about this time as we begin to near the end of the year that broadcasters contemplate their future. And it seems like that brings many to contemplate moving from behind the microphone to being in front of it – by running for public office. Perhaps because next year will likely be a very active one with Congressional elections and elections in many states, I have had a number of calls from broadcasters in the last few weeks asking what they should do with the on-air employee who is contemplating making that move by jumping into politics. We have written about this issue many times before, including coverage of when well-known local or national personalities have contemplated runs for office – see our stories here, here and here. In 2010, we wrote an article that provided a discussion of this issue, which remains valid today, and which I edited and reposted in 2016 here. An updated version of that article is below.

Having an on-air employee who runs for political office – whether it is a federal, state or local office – does give rise for equal opportunities for competing candidates whenever that employee’s recognizable voice or picture appears on the air, even if the personality never mentions his or her candidacy on the air, and even if they appear in what is otherwise an exempt program (e.g. a newscaster who runs for office triggers equal time when he delivers the news even though a candidate’s appearance as a subject of that news program would be exempt). Stations need to take precautions to avoid the potential for owing significant amounts of free time to competing candidates, where those candidates can present any political message – if they request it within 7 days of the personality’s appearance on the air.

Once a candidate becomes “legally qualified” (i.e. he or she has established their right to a place on the ballot by filing the necessary papers), equal opportunities rights are available to the opposing candidates.  What this means is that, if the on-air broadcaster who is running for political office stays on the air, any opposing candidate can come to the station and demand equal opportunities within seven days of the date on which the on-air announcer/candidate was on the air, and the opponent would be entitled to the same amount of time in which they can broadcast a political message, to be run in the same general time period as the station employee/candidate was on the air.  So if your meteorologist decides to run for the city council, and he appears on the 6 o’clock news for 3 minutes each night doing the weather, an opposing city council candidate can get up to 21 minutes of time (3 minutes for each of the last 7 days), and that opposing candidate does not need to read the weather, but can do a full political message.  So what is a station to do when an on-air employee decides to run for office?

In some cases, stations do nothing, and no one seems to mind.  I’ve known broadcasters who appeared on-air every day, particularly in small towns, while they were serving as mayor or on the city council, and no opposing candidate ever bothered to ask for equal opportunities – either because they did not know the rules, or because they would have received bad publicity forcing the on-air employee/candidate out of his job during the election season.

But sometimes competing candidates do insist on their rights, especially less well-known candidates who may not have any other way to get their message out and want the free time that they can get because of the on-air employee’s appearances.  Thus, many stations play it safe and don’t allow a candidate to continue to stay on the air once they become legally qualified (and sometimes even before they are legally qualified to even avoid the appearance of unfairness).  But there are other alternatives that can be pursued that lie between taking the risk of having to meet equal opportunities claims and taking the employee off the air.  These include:

  • Obtaining waivers from the opponents of the station employee, allowing the employee to continue to do his job, perhaps with conditions such as forbidding any discussions of the political race
  • Allowing the candidate to continue to broadcast in exchange for a negotiated amount of air time for the opponents.

Obviously, consult counsel to get the wording right on any waiver, but waivers are an option.

Another alternative is to give the on-air employee/candidate other duties that don’t trigger equal opportunities.  If the candidate’s voice or likeness does not appear on-air, then there is no equal opportunities right.  Right now, the political rules do not apply to Internet appearances, so website work is a possibility. Also, a move to a sister station with a service area that does not reach the district in which the candidate is running is another alternative.

Finally, remember that equal opportunities are only available to the opponents of the employee-candidate.  In a primary, the opponents are only those candidates who are running for the nomination of the same party.  Thus, if your on-air employee is running in the Republican primary, you only need to worry about his or her Republican opponents for equal time purposes.  The Democrats don’t get equal time until the nominees of each party have been selected.

For more on the political broadcasting rules, check out our Guide to Political Broadcasting, available here.

Reminder: Repacking Transition Progress Report Must Be Filed by Repacked TV Stations by October 10

The FCC yesterday issued a Public Notice (available here) reminding all TV stations (including Class A TV stations) that are changing channels as a result of the TV incentive auction, including those receiving compensation from auction payments for moving from UHF to VHF channels, that they must file their first quarterly Transition Progress Report no later than October 10, 2017.  The reports should be filed on FCC Form 2100 – Schedule 387, which is now available by logging in to the FCC’s Licensing and Management System (  The Transition Progress Report form just became available in LMS this week.

Additional reports will be due on the 10th of the month following the end of each calendar quarter, with additional reports due closer to the station’s Phase Assignment and after completing the transition.

FCC Releases Draft AM Revitalization Order to Simplify Proofs of Performance

Last week, the FCC released a draft of an order to simplify the proofing of AM stations. This order will be considered at the FCC’s September 26 meeting. While the proposals to be adopted are part of the AM Revitalization proceeding, even the Commission recognizes that these are not fundamental changes in the way that stations operate, but instead technical changes that can, hopefully, save some AM stations some money. The FCC also noted that it was removing proposals for changes in the AM main studio rules from the AM Revitalization proceeding as these changes are already being considered in the proceeding proposing to entirely eliminate the main studio rules (see our post here).

The rule changes in the proposed order address AM antenna proofs of performance – principally proofs that are conducted after a station has been initially constructed and licensed. The need to re-proof an AM station’s directional pattern typically occurs when additional antennas or other equipment is added to an existing AM tower, or when there are other changes that suggest to the licensee that the AM directional pattern’s values may have changed (e.g. when there is significant construction in the immediate vicinity of the tower). Most of the FCC’s planned changes deal with Method of Moments (“MoM”) modeling used to proof AM stations (see our posts here and here on the FCC’s adoption of the computerized technology used to make proofing of AM antennas easier), though one change dealt with more traditional AM proof of performance techniques.

The rule change affecting traditional proofs deals with how many radials need to be proofed when there are changes in the equipment located on the AM tower or when other changes necessitate an AM partial proof of performance. The FCC’s draft order provides that measurements only need be taken on the radials in an AM pattern that contain a monitoring point. In the current rules, additional radials adjacent to the radials containing monitoring points must be measured when the station has a pattern with fewer than four monitored radials.

For stations using MoM modeling to proof their facilities, the FCC’s draft order would make a number of changes to make the modeling process somewhat simpler. These changes would:

  • Eliminate periodic recertifications of the performance of a directional pattern for stations licensed pursuant to a MoM proof as the technology has proven its reliability and needs less verification. The new rule would require recertification only when equipment has been repaired or replaced;
  • Eliminate the requirement to conduct reference field strength measurements when relicensing a station that was licensed pursuant to a MoM proof;
  • To encourage the co-location of AM stations, eliminate the requirement for a registered surveyor’s certification of the location of towers in an AM array when existing towers in an existing AM antenna array are being used by a new station using MoM modeling;
  • Clarify that the provisions of a certain rule section will only apply when total capacitance used for MoM modeling of base region effects exceeds a particular value and only when a particular type of sampling is used; and
  • Codify the standards under which a new MoM proof of performance is needed when adding or modifying antennas or other system components above the base insulator of a tower in an AM array.

The FCC declined to allow MoM proofing for AM stations with a skirt-fed antenna, finding that the technology has not yet been reliably demonstrated for modeling the patterns of such antennas. Obviously, each of these changes is very technical, so consult your engineer to determine how they may affect your operations.

Finally, the FCC stated that it would no longer be considering any changes to the rules for AM station’s main studios as part of the AM revitalization proceeding. Instead, those changes will be part of the proceeding to abolish the main studio rules entirely. As we wrote here, FCC Chairman Pai stated in his speech at last week’s NAB Radio Show that he had reviewed the record of that proceeding, and was convinced that the main studio rule needed to be abolished. Obviously, the other Commissioners need to weigh in before any change in the rule can be adopted. Some have suggested that the main studio rule may be abolished before the end of the year, so stay tuned to watch for that action.

And watch for the FCC to adopt these proposals on AM improvements at its meeting in two weeks.

Recordkeeping Rules for Third-Party Fundraising by Noncommercial Broadcasters to be Effective November 13, 2017

In July, we wrote about the effective date of the FCC’s new rules allowing non-CPB noncommercial stations to interrupt their normal programming to raise funds for third-party charitable and non-profit organizations (we wrote here about the decision itself), for up to 1% of their total airtime. In July, we noted that the new rules on the recordkeeping requirements about these fundraising efforts had not yet gone into effect, as they needed to be approved by the Office of Management and Budget under the Paperwork Reduction Act. Yesterday’s Federal Register announced that this approval has been received, and the paperwork rules will go into effect on November 13.

The new rules require on-air disclosures at the beginning and end of any fundraising appeal where the station tells its audience that the money is going to a third-party, not to the station. That announcement must be made at least hourly for longer fund-raising appeals. In addition, the station must maintain in its public file the following information:

  • the date, time, and duration of the fundraiser;
  • the type of fundraising activity;
  • the name of the non-profit organization benefitted by the fundraiser;
  • a brief description of the specific cause or project, if any, supported by the fundraiser; and
  • to the extent that the station participated in tallying or receiving any funds for the non-profit group, an approximation of the total funds raised

Washington Issues for TV Broadcasters – Where Things Stand at the FCC

There is never a shortage of Washington issues for broadcasters to consider, and the rapid pace of change since the new administration took over in January has made it even more difficult to track where all the issues stand. While we try on this Blog to write about many of the DC issues for broadcasters, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and the latest version, published last week, is available on their website, here. It provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of other issues including the Incentive Auction, EEO compliance, Political Advertising and Sponsorship Identification, along with dozens of other topics, many with links to our more detailed discussions here on the Blog. Of course, these issues change almost daily, so watch this blog and other trade publications for the latest Washington news of interest to broadcasters.

FCC Issues Guidance for Broadcasters and Other Regulated Services in the Path of Hurricane Irma

The FCC has issued a series of public notices to broadcasters and other FCC regulated entities in the path of Hurricane Irma. General guidance was issued by the FCC, here, discussing how stations can get special temporary authority to operate with facilities different than those specified in their licenses by email or even by telephone during the emergency. This may be particularly important if stations towers or antennas are damaged by the storm and, to continue service, stations need to use alternate facilities. During the recent Texas Hurricane harvey, the FCC even issued some daytime only AM stations authority to temporarily operate with nighttime operations where they were providing emergency information. If STAs are needed, the public notice provides information about where to call or email

The FCC has also activated its Disaster Information Reporting System for the Virgin Islands and Puerto Rico, and is likely to extend it to portions of Florida in the near future. This system is used by stations and other licensees to report cessation or changes to their operations. In some cases, reporting these details may provide a station with access to information about how to speed the delivery of equipment, fuel or other emergency supplies to stations in the affected areas. The reporting system is voluntary, but encouraged by the FCC.

We obviously hope for the safety and security of all in the affected areas, and thank all the broadcasters who will, in the coming days, be spending countless hours reporting important information to the residents of their service areas. As always, they provide an invaluable service at times like there, and we all pray that everyone stays safe.


FCC Issues Draft Proposal To Revoke Rule Requiring Physical Copy of FCC Rules at All Broadcast Stations

We yesterday wrote about Chairman Pai’s promise to start the process of modernizing media regulation by abolishing a simple but outdated rule – one requiring that each broadcast station have a physical copy of the FCC rules on the station premises. Yesterday, the FCC released a draft of their Notice of Proposed Rulemaking to implement that change in the rules. That draft will be considered at the FCC meeting later this month (on September 26), after which a final copy of the NPRM will be released, and later published in the Federal Register setting formal comment dates. It is a very small step toward the modernization of media regulation sought by the Chairman, but a step nevertheless.


More on Media Deregulation – Chairman Pai Speaks to NAB Radio Show and Promises to Propose the Repeal of a Rule Each Month

FCC Chairman Ajit Pai spoke on Wednesday at the opening lunch at the NAB Radio Show in Austin, promising more moves to bring media regulation in line with the realities of the modern media marketplace. In his speech, the text of which is available here, the Chairman promised several actions including the following:

  • A monthly Notice of Proposed Rulemaking suggesting a media rule change prompted by suggestions made in the Modernization of Media Regulation proceeding we wrote about here and here.
  • The first proposal for deregulation coming for the September FCC meeting is a modest one, probably chosen as symbolic of the rules that are outdated and unnecessary – the proposal being to eliminate the rule that requires that a broadcaster have a hard copy of the FCC rules at their station. While not a rule that is ever enforced, it is still notable in that the proposal is being advanced only about a month after the end of the comment period on Media Modernization and illustrates a rule that clearly is unnecessary in a day when any broadcaster can access any FCC rule at any time via the Internet.
  • The Chairman stated that he had reviewed the comments in the proceeding to abolish the rules requiring main studios for all broadcast stations, and he concluded that these rules were no longer necessary and would be presenting an Order to implement their abolition before the end of the year.

The Chairman also announced that there would be a further order dealing with AM technical rules released this week as part of is initiative to improve the AM service. He also summarized the FCC’s recent get tough policy on pirate radio (about which we wrote here), promising to use all tools at the FCC’s disposal to demonstrate that there is no place for pirate radio.

The speech demonstrated, once again, how this FCC has a far different perspective on broadcasting than prior Commissions. In fact, the Chairman started his speech with a recitation of the important role that broadcasting had played in addressing the many issues posed by the recent Texas hurricane and lauding their assistance in relief efforts. It was a well-received presentation that will, no doubt, stir many broadcasters to eagerly anticipate the upcoming proposals for more changes in the FCC’s media rules.

FCC Extends Filing Deadline for Biennial Ownership Reports Until March 2, 2018, But Will Require Reporting of Station Ownership as of October 1, 2017 Even By Those Who Sold Stations

The FCC on Friday announced that they were extending the deadline for filing Biennial Ownership Reports by broadcasters from December 1 to March 2, 2018 to be sure that the new version of the form in the FCC’s LMS database will be up and ready to be used. The FCC will open the window for filing these ownership reports on December 1 (which was to be the deadline). However, the reports will still report on the ownership of each broadcast station as of October 1, 2017, meaning that station owners who sell their station between October 1 and the new deadline are being told by the FCC that they will need to file their own biennial reports – even if they no longer own any broadcast stations.

We have written about these reports in the past, and about the particular controversy about whether noncommercial broadcasters needed to obtain an FCC Registration Number (FRN) for each of its owners (see our article here about the FCC decision to not require that information). This is the first time that noncommercial entities will be filing their Biennial Reports at the same time as commercial broadcasters. Noncommercial broadcasters previously filed on the anniversary date of their license renewal filing, a system put on hold last year in anticipation of this year’s filing deadline.

Remember FCC Rules on Underwriting Limitations – And that They Don’t Apply to Spots Bought By Nonprofit Entities

Last week, the FCC reached a consent decree with a noncommercial broadcaster, where the broadcaster paid an $8000 penalty for, among other things, running underwriting spots that were too promotional. While the consent decree and its implementing order provide no details on the underwriting violations by the broadcaster, we can assume that the broadcaster ran spots that somehow crossed the line – giving price information about a sponsor’s products, or including a call to action suggesting that listeners somehow patronize the sponsor, or making qualitative claims about the sponsor or its products or services. We have written about similar violations many times (see, for instance, our articles here, here, here, here and here) and I have conducted seminars for numerous noncommercial broadcasting organizations talking about specifics as to what is permitted in underwriting acknowledgements and what will get a noncommercial station into trouble (see for instance, the presentations mentioned here and here). Obviously, it is important that noncommercial stations pay attention to these restrictions. But, last week, I received a question that indicated that not all noncommercial stations realize that, while their ability to promote a commercial enterprise is limited, these same restrictions do not apply to on-air spots for other nonprofit organizations.

About 35 years ago, Congress changed the provisions of the Communications Act to redefine what a noncommercial station can and cannot do. Noncommercial stations obviously cannot run commercials. But the language of the statute makes clear that commercials are promotional announcements for profit businesses. In looking at that statutory change, after much discussion, the FCC concluded that the restrictions on underwriting announcements that apply to these noncommercial businesses do not apply to promotional announcements for nonprofit entities.

So, noncommercial stations do not violate the FCC’s underwriting rules if they run a promotional announcement for a local school’s drama department’s production of some Broadway show, and the stations can even provide the ticket prices and urge listeners to attend. The underwriting broadcast on a noncommercial station can say that the local church sells the best cherry pie (making a qualitative claim that they cannot make for a for-profit underwriter) when suggesting that listeners visit the church’s bake sale. Or they can tell people to contribute to the American Cancer Institute or the Red Cross, even if these nonprofit entities have paid for the announcements being run on the station.

As recently made clear, this treatment applies only to spot announcements for these organizations. Paying for programming time where the payment exceeds the noncommercial station’s costs of operating are probably against the FCC’s rules (see our article here). And on-air fundraisers that interrupt the station’s normal programming to raise funds for nonprofit groups other than the station itself are restricted in amount and require disclosures, even under the FCC’s new liberalized policy on such activities (see our articles here and here).

But these spot promotional announcements for nonprofit organizations as part of a noncommercial station’s regular programming are permitted. Obviously, as with any legal issue, talk to your legal counsel for details of these rules, as specific spots may give rise to specific concerns. Particularly problematic, for instance, are spots for events that have both commercial and noncommercial aspects or sponsors – where this relaxed regulatory treatment probably does not apply.

But with students coming back to school, and noncommercial stations across the country gearing up for the busy Fall season, this opportunity to raise underwriting funds to support station operations, while also affirmatively promoting other nonprofits in your community, should not be overlooked.