Public Notice Requirements When Certain Applications Are Filed
Revised May 13, 2020
In the early 1960s, in the aftermath of the payola scandals in radio and the fixed quiz show scandals in television’s golden era, Congress passed legislation that required broadcasters to be more transparent to the public. At first, many of the laws were very restrictive and burdensome and would get eventually legislated away over time. One portion of the law that has survived is enshrined in Section 311(a) of the Communications Act, which reads:
“When there is filed with the Commission any application to which section 309(b)(1) of this title applies, for an instrument of authorization in the broadcasting service, the applicant shall give notice of such a filing in the principal area which is served or is to be served by the station. The Commission shall by rule prescribe the form and content of the notices to be given in compliance with this subsection, and the manner and frequency with which such notices shall be given.” (47 USC §311(a), a portion of this paragraph addresses hearings which is outside the scope of this article.)
Since the 1960s, the Commission had determined that the local newspaper was the best place for applicants to post these public notices. At one time, the newspaper was the authoritative voice for the community and was the true public forum. At the time, the newspaper industry was flourishing, and many small communities had their own daily or weekly newspapers. Because of the localized reach of such papers, it was reasonable for applicants to place ads in the legal notices section.
The current state of public notice requirements
Over time, especially in the age of the internet, the newspaper would become less significant and through consolidation, many small-town newspapers were folded into more regional papers that had a regional circulation instead of just the small town. As a result of “more eyes” seeing the advertising and the general decline of the industry, legal notice advertising became a predatory market resulting in very-high advertising rates.
Today, the FCC implements Section 311(a) through rules contained in §73.3580. §73.3580 contains specific rules for the various situations where a public notice is required. In many cases, this involves placing as many as 4 ads in the newspaper over a three-week period. The rules do permit, in some cases, noncommercial stations to broadcast public notice information over the air instead of in the newspaper. The rules also require that public notices around license renewals are broadcast over the air.
LPFM’s history with the public notice process was shaky at best. When LPFM was first created in 2000, the FCC decided to keep the service “simple” with the least amount of burdens on new entrants. As a result, they did not require LPFM stations to maintain public files or file ownership reports. They also never implemented rules that required LPFM stations to report silent status (if off the air for more than 10 days) or to be subject to the public notice rule. Because of this lack of a rule, the FCC never required new entrants to LPFM in 2000/2001 and 2013 to take out newspaper advertising. As a result, many new and diverse organizations have joined the ranks of LPFM broadcasters without the barrier of “big city” advertising rates. In 2019 as broadcast licenses were coming up for renewal, the Media Bureau at the FCC had determined that Section 311 did apply to LPFM stations and despite the lack of an underlying rule, LPFM stations were expected to provide public notice. In this case, the on-air public notice messages to indicate that the station was going to file and that they had filed their renewal.
After the FCC determined that LPFM stations would be subject to the rules, REC became involved in a proceeding, MB Docket 17-264 to assure that the LPFM service was at the table as the issue was being worked out. At the May, 2020 FCC meeting, the Commission will vote on a Second Report and Order that will completely revamp the public notice process including completely removing newspapers and replacing with either online or over the air announcements based on the situation. REC is supportive of the order so far in draft form although we do have some technical issues with how listeners would access applications filed by LPFM stations that are announced over the air.
When public notices must be made
The FCC requires that public notices be made for the following application types:
- Application for an original construction permit for new stations, translators or boosters.
- Application for a major change such as a move or channel change that can only be made during a filing window.
- Application for renewal of license.
- Application for a voluntary assignment or transfer control of a construction permit or a license except for simple board member changes where the nonprofit organization remains the same and can be filed on Form 316.
- Application to change to a different community of license (full-service stations only).
Current public notice requirements
These are the rules currently in effect and will apply until the new rules have been enacted.
After discussion with Media Bureau staff, it has been determined that LPFM stations would be treated like other noncommercial educational broadcast stations. These rules are in effect between now and when the new service rules are enacted in the Federal Register (subject to delay for approval by the Office of Management and Budget (OMB)).
- Renewals are done through over the air announcements. For more information, please see our renewals page.
- For other application types requiring public notice and if the station is on the air, the announcements can be over the air.
- For new construction permit applicants and for stations that are silent (not broadcasting), the public notice must be made using paid advertising in the newspaper of the largest circulation in the area served/proposed by the applicant.
Other than renewals, the public notice (either on the air or in the newspaper) must be made at least twice a week for a two weeks within a 3 week period. The three week period starts following the application being accepted for filing at the FCC.
The over the air or newspaper message must include the following information:
- The name of the applicant as well as the names of the board members,
- The purpose of the application (assignment of license, original construction permit, etc.),
- The date the application was filed with the FCC,
- The call letters (if any) as well as the frequency and/or channel the station will operate on,
- For new stations, the type of station, the antenna height, operating power and the location of the transmitter,
- In the case of a modification, the exact nature of the modification being sought; and
- For the purposes of LPFM, indicating that the application can be reviewed at the FCC website (fcc.gov/searchlms). (Full-service stations already constructed can refer listeners/readers to their public file.)
Broadcast license renewals (current/old rules)
Currently, the regulations regarding renewals are very convoluted and involve “pre-file” announcements that air multiple times, 4 days in the 2 months prior to the filing deadline and then “post-file” announcements that air multiple times, 6 days in the 3 months after the filing deadline. “Pre-file” announcements were never required by statute and with the new rules, they are going away. Post file announcements will not be required to be carried on specific dates and during narrow time periods. See the information below about the improved process. NOTE: With the changes in the public notice rules, the pre-file announcements will be discontinued and the post-file announcements for renewals will be under the same requirements (6 announcements in a 4 week period) as other required on-air public notices.
Online public notices
Online public notices would be made by NCE and LPFM applicants that currently do not have a station on the air including new entrants as well as current licenses with silent stations not currently broadcasting.
Online public notices (including license renewals) would also be made by FM translator and FM booster applicants, including those commonly-owned by an NCE or LPFM station. LPFM stations with commonly-owned translators or boosters should make a link in a conspicious location (such as the footer of the website) for public notices. The link should point to a new page on the website that displays public notices when they are available. It would be acceptable that when there are no public notices, the public notice page reads "there are no active public notices".
When an online public notice must be made, the notice must be made on the following websites in priority order:
- the applicant station’s website;
- the applicant’s website;
- the applicant’s parent entity’s website;
REC's interpretation of the rules is that new entrants can use their existing organization's website and not have to use a "publicly accessible website". This is an improvement from previous proposals of the rule. Therefore, churches, community organizations, applicants that already have an internet radio presence, etc. would be able to use their own website. Organizations that are establishing for the purpose of filing in a window should establish a website for the applicant's organization as soon as possible (i.e. at the time the state corporation papers are filed) and assure that the organization can be searched in Google under the applicant's name.
Here is a sample of an online notice for an application for a new LPFM station made during a designated filing window:
On April 24, 2020, Podunk Radio Project, applicant for a new Low Power FM broadcast station on 94.7 in Podunk USA, filed an application with the Federal Communications Commission for an original construction permit for a new station. Members of the public wishing to view this application or obtain information about how to file comments and petitions on the application can visit [hyperlink to application in the FCC LMS filing system].
For websites within the control of the applicant, the public notice must remain posted online for 30 days from the date that the FCC public notice is released stating that the application has been accepted for filing. Public notices should be placed on a dedicated page on the website and that a link or tab titled “FCC Applications” be placed near the top of the applicant’s home page.
For third party websites where the applicant is paying the website for posting, the notice must be carried online for four 24-hour periods, one day a week (Monday through Friday) for 4 weeks following the application being accepted for filing.
Over the air public notice announcements
LPFM and NCE applicants that have a station currently on the air will make their announcements over the air (silent stations will use the online method above). The announcements will start running after the application has been accepted for filing based on FCC public notice. Over a 4-week period, the station must carry the announcement 6 times with at least one message per week and no more than one message per day. Messages must run Monday through Friday between 7AM and 11PM local time.
A sample announcement over the air for an LPFM station would sound like this:
“On April 24, 2020, Podunk Radio Project, licensee of WUNK-LP, 94.7, Podunk USA has filed an application with the Federal Communications Commission for renewal of license. Members of the public wishing to view this application or obtain information on how to file comments and petitions on the application can visit www.fcc.gov/stationsearch (W-W-W dot F-C-C dot GOV slash STATION SEARCH) and search on the list of WUNK-LP’s filed applications.” (Remember to include -LP as part of the call sign!)
A sample announcement over the air for a full-service NCE station would sound like this:
“On April 24, 2020, Podunk Radio Project, licensee of WUNK, 89.5, Podunk USA has filed an application with the Federal Communications Commission for renewal of license. Members of the public wishing to view this application or obtain information on how to file comments and petitions on the application can visit publicfiles.fcc.gov, and search in WUNK’s public file.”
Letter of certification
Within 7 days following the completion of the 30-day run for online announcements or after the 6th on-air message is played, full-service stations must place a certification letter in their public file that includes either the dates the online message was carried as well as the URL the message was on or the dates and times that all 6 public notice messages were announced over the air. LPFM, FM translator and booster licensees are not required to have a public file however REC recommends that these stations draft the letter and put it in their station records. Licensed LPFM stations are encouraged to participate in the LPFM Voluntary Public Inspection File system where a copy of this letter can also be placed there (even with that, keep a copy in your station records).
What happens next?
The new public notice rules will take effect once an effective date is published in the Federal Register or the FCC subsequently announces approval of the process by the Office of Management and Budget (OMB). Until that takes place (and unless waived by the FCC), the current public notice policies in §73.3580 are still in effect.
We note, the FCC has already granted radio stations in Ohio and Michigan a waiver from carrying the “pre-file” renewal announcements. Stations in Illinois and Wisconsin that will carry pre-file announcements in June and July should stay tuned to REC’s website and Facebook page for updates on any waivers the FCC may give if the new rules are not in effect by that time.