Here are some of the regulatory and legal actions in the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations. This information provided by the attorneys at Wilkinson Barker Knauer, LLP in Washington DC.
January 16, 2021 to January 22, 2021
- President Joe Biden named Jessica Rosenworcel as Acting Chair of the FCC, where she will set the agenda for the Commission until a permanent Chair is appointed (and she may be a candidate for that permanent position). The Biden administration has not said when it will name a permanent chair. ()
- The U.S. Supreme Court heard oral argument in FCC v. Prometheus Radio Project, the Court’s review of the FCC’s 2017 media ownership rule changes. The changes at issue include the abolition of the newspaper-broadcast cross-ownership rule and several local TV ownership restrictions. A decision in the case is expected by early summer. Audio of the argument and a written transcript are available, . In an article, , we looked at the argument and how the Court’s decision could impact the future review of ownership issues by the Commission.
- The FCC issued new technical rules regarding the use by TV stations of Distributed Transmission Systems (DTS) (also known as single frequency networks). The new rules expand and clarify the permissible range of “spillover” beyond a station’s protected contour. DTS gives stations a more uniform signal strength throughout their service area which would be beneficial to new services that can be offered with the ATSC 3.0 (Next Gen TV) transmission standard. ()
- A Georgia low power FM station settled an FCC investigation by acknowledging it violated the underwriting rules for noncommercial stations and agreeing to pay a $10,000 fine. The station was paid by a for-profit entity to air nine announcements that included prohibited promotional references. ()
- As we noted in last week’s , the Department of Justice declined to act on the ASCAP and BMI consent decrees. We took a deeper look, , at what this means for the future of the consent decrees and the state of play in the music licensing world.
January 9, 2021 to January 15, 2021
- After a multi-year review of the ASCAP and BMI consent decrees, Makan Delrahim, the outgoing head of the Department of Justice’s Antitrust Division, announced that the DOJ will not seek changes to the decrees. Instead, the Division laid out principles that the incoming Biden Administration should consider in future reviews of the decrees. The review found that, while there was a desire by ASCAP and BMI and some in the music industry for reforms to the decrees, music users believe that they are generally working well. The consent decrees are important as they allow ASCAP and BMI to license a broad array of musical works to users, including broadcasters, on terms that cannot discriminate between similar users, at rates subject to judicial review to ensure that they are reasonable. () See our on the initiation of the review, describing the issues which the DOJ explored.
- The FCC published in the Federal Register its Notice of Proposed Rulemaking that looks at allowing zonecasting by FM boosters, setting the comment dates in this proceeding. The FCC proposes allowing FM boosters to originate up to three minutes of hyperlocal programming (news, weather, advertising, etc.) per hour and seeks comment on the concept and on the proposed rules to implement the idea. Comments and reply comments are due by February 10 and March 12, respectively. We wrote about the proposal, . ()
- Rules designed to increase unlicensed wireless device use in TV “white spaces” will go into effect on February 11. The rules expand the ability of unlicensed white space devices to operate in unused portions of the TV band (channels 2-35) to provide rural broadband services and Internet of Things applications. We wrote about the new rules, . ()
- Cumulus Radio was fined $233,000 for airing paid programming without the required sponsorship identification and for failing to abide by the terms of a 2016 consent decree that required the company to timely notify the FCC of such violations. Broadcasters are required to disclose information about the sponsors of programming for which they receive payment or other valuable consideration. ()
- The FCC released a report on the relationship between the number of independent local television news operations in a market and market size. The report concludes, among other things, that there is a strong relationship between the market size, number of television households, and the number of independent local TV news operations. This information may be considered in future reviews of the FCC’s ownership rules. ()
Next week, the Supreme Court will hear oral argument in Federal Communications Commission, et al. v. Prometheus Radio Project, et al., the Court’s review of the FCC’s 2017 media ownership rule changes. Live audio of the January 19 proceeding will be at 10 am. EST and a downloadable recording should be available by January 22 on the Supreme Court’s . A decision is expected in early summer. To get caught up on this case and other media ownership issues, see our blog post, . ()
January 2, 2021 to January 8, 2021
- The Enforcement Bureau advised broadcasters (and other participants) of their Emergency Alert System obligations, including the requirement to make EAS messages accessible. The advisory provides a good reminder of a broadcaster’s EAS obligations. ()
- The FCC issued a status report on the incentive auction repack and announced that it has sufficient funds available for the reimbursement of costs incurred by LPTV and TV translator stations because of the repacking to increase their payments from 85% of verified estimates to 92.5%. According to the status report, all of the stations repacked as part of the incentive auction have vacated their pre-auction channels and, as of this week, over 95% of the stations are operating with their final technical facilities. ()
- The FCC released its count of broadcast stations as of year-end 2020, finding more than 33,500 stations, including more than 15,000 full-power radio stations and nearly 1,200 full-power TV stations. ()
- The FCC submitted its annual report to Congress on the implementation of the PIRATE Act and the enforcement actions it has taken over the last year. The report notes that COVID-19 and the lack of congressionally-appropriated funds in FY 2020 for the Act have limited implementation and enforcement activities. ()
- Four low power FM stations in Iowa and Missouri failed to file license renewal applications by their October 1, 2020 filing deadline and are in danger of seeing their licenses expire. This serves as a reminder to television stations in Arkansas, Louisiana, and Mississippi and radio stations in Kansas, Nebraska, and Oklahoma to file their renewal applications, due by February 1, 2021. ()
- In the copyright world, the Copyright Office released a to review changes to the copyright license granted to satellite TV providers under 2019’s Satellite Television Community Protection and Promotion Act to provide local-into-local retransmission of television stations. The review seeks comments by March 8 as to how the new law impacts affected parties including consumers and stations. Read more about the inquiry, .
- A handful of large radio groups and webcasters will be audited by SoundExchange over their compliance with their copyright licenses for the public performance of sound recordings required when they transmit their programming on the Internet. Read more about this and other music licensing audits, .
December 19, 2020 to January 1, 2021
- The FCC released an order revising its fees for broadcast applications and other filings. The fees were adjusted to reflect the Commission’s accounting of the amount of legal, engineering, and supervisory resources spent on reviewing the filing. For the first time, the fees will include payments for FM translator minor changes. The new fee schedule will go into effect after the FCC has updated its internal systems and notice is published in the Federal Register. ()
- The FCC announced that, beginning January 15, it will marginally increase its fines for rule violations to adjust for inflation. ()
- For broadcasters who use drones (“unmanned aircraft systems” or “UAS”), the Federal Aviation Administration released two lengthy decisions amending its regulations governing their operations. The new rules mandate a “digital license plate” to identify most drones to enhance security in the industry and pave the way for expanded operations that are currently allowed only through special waivers or exemptions. At the same time, the FAA modified its rules for small UAS, i.e., those weighing less than 55 pounds, to permit qualified operators to fly them over people and moving vehicles and at night without waivers, provided certain conditions are met. An FAA press release with links to the decisions is available .
- The Federal Trade Commission announced consent decrees with six companies over their marketing of CBD products, finding the advertising of specific health benefits of CBD to be deceptive (). For more information on these decrees and other cannabis advertising issues for broadcasters, see our blog article .
- The FCC‘s Media Bureau granted a waiver allowing the common ownership of two TV stations in the Lubbock, Texas market even though there would not be eight independent operators in the market after the combination, as required under current FCC ownership rules. The Commission justified the waiver on its “failing station” standard, finding that the acquired station had “been struggling for an extended period of time both in terms of its audience share and in its financial performance.” See the FCC’s for the criteria a station must meet to be considered failing and the Video Division’s analysis of this particular transaction.
- In two decisions, the FCC approved foreign ownership of broadcast companies in excess of 25%. Specific FCC approval is required when foreign ownership in a company holding broadcast licenses is proposed to exceed 25%, with the FCC and other government agencies reviewing the national security and public interest implications of the foreign ownership (decisions on . and )
- In a reminder to pay attention to filing deadlines, eleven low power TV stations in Florida and Puerto Rico failed to submit renewal applications by their October 1, 2020 filing date and are now in danger of their licenses expiring. () Television stations in Arkansas, Louisiana, and Mississippi and radio stations in Kansas, Nebraska, and Oklahoma are next due to file their license renewals, with a deadline of February 1, 2021.
- The FCC released its biennial Communications Marketplace Report that analyzes, among other things, the state of the radio and TV marketplaces. The report is provided to Congress to advise it on economic and competitive trends in regulated industries to provide information for any legislation that it may consider. ()
December 12, 2020 to December 18, 2020
- The FCC issued an order that locks in its authority to assess higher penalties against pirate radio operators and allows those penalties to be levied more quickly as the FCC does not need to first issue notice to the suspected pirate of its violation before imposing a fine. Under this authority granted by the PIRATE Act, operators of stations that do not have an FCC license could face fines of $100,000 per day, up to a total of $2 million. Landlords who are found to have “willfully and knowingly” allowed pirates to broadcast from their properties can also be subject to penalties. Two New York landlords this week received notices of illegal pirate radio broadcasting. Read the letters, . We wrote about the PIRATE Act, . ()
- The FCC’s new rules for voluntary all-digital AM radio, except new procedures for notifying the Commission of a station’s intent to transition from analog to all-digital operations which still need Paperwork Reduction Act approval, will go into effect on January 4, 2021. We looked at the new rules, . ()
- Nathan Simington was sworn in virtually by Chairman Ajit Pai as the newest FCC Commissioner. His term runs through June 30, 2024. Commissioner Simington joins Ajit Pai and Brendan Carr to form the Republican majority that will hold until Pai leaves the agency on January 20, 2021. Not much is known about the new Commissioner’s views on broadcast matters, but it is thought that he will favor deregulation. The broadcast industry will be watching closely to see who he names to his staff and how familiar those people are with broadcast issues. Simington can be found on Twitter at . ()
- Commissioner Pai, in a virtual speech to the Media Institute, reviewed the changes made during his watch in FCC broadcast regulations. He also called for further relaxation of the broadcast ownership rules. He said these rules no longer make sense, as they restrict the growth of broadcasters, making it harder to compete for audience and advertisers with broadcasters’ new adversaries – the essentially unregulated tech giants. These digital competitors are some of the biggest companies in the US economy and dwarf the size of the biggest broadcast company. (). Look for our thoughts on those issues, particularly for the radio industry, on on Monday.
- In the latest step in the Supreme Court’s review of the FCC’s 2017 media ownership rules, Prometheus Radio Project and its partners submitted their reply brief arguing for the Court to uphold the Third Circuit Court of Appeals’ rejection of the 2017 rule changes. The Court will hear oral argument on January 19. ().
- In connection with the Supreme Court’s review, which could reinstate the FCC’s 2017 abolition of the newspaper-broadcast cross-ownership rules (a decision overturned by the Third Circuit’s opinion), the FCC extended Fox’s authority to operate two TV stations in New York City where a commonly controlled company operates a daily newspaper. The continuing authority would stay in effect at least until the Supreme Court releases its decision and, if the Court does not resolve the issue, until the FCC completes its next Quadrennial Review of the ownership rules assessing whether there is a continuing need for the newspaper cross-ownership rule. ()
- New procedural rules for filing carriage complaints against multichannel video programming distributors (MVPD) go into effect on January 19, 2021. The new rules require a carriage complaint to be filed within one year of the event that triggers the complaint, not within one year of a party notifying the MVPD of its intention to file a complaint. ()
December 5, 2020 to December 11, 2020
Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.
- The FCC, at the last of its monthly open meetings of 2020, voted to adopt new rules for Broadcast Internet (datacasting) services. The FCC clarified its rules for the annual ancillary and supplementary fees of 5% of a TV broadcaster’s revenue for leasing their spectrum to third parties. The lessee’s revenue will not be included as part of the revenue subject to the fee unless the broadcaster and lessee are affiliated. The Commission also decided to reduce the fees to 2.5% of the revenue from any noncommercial educational Broadcast Internet services that are provided by a noncommercial licensee. Finally, the Commission retained its requirement that TV broadcasters who offer Broadcast Internet services offer at least one, free, over-the-air standard definition video signal. ()
- At the same meeting, the FCC also voted to require electronic payment of fees for activities administered by the Media Bureau. Noting infrequency of payments by check and the cost savings of eliminating processing those payments, the Commission will phase out its lockbox used to accept manual payments and will instead require payment of Media Bureau fees by credit card or electronic wire transfer. This rule change takes effect 30 days after it is published in the Federal Register, though the lockbox will remain open for 90 days past that effective date. ()
- The FCC terminated its proceeding that asked if a TV channel in each market should be set aside for use by unlicensed wireless devices and wireless microphones. Microsoft and others argued for a vacant channel in each market, saying that the certainty of available spectrum would spur innovation and development of wireless devices. Television broadcasters argued against the proposal, saying that losing another channel in the UHF band would harm broadcasters’ ability to deliver new services and roll out NextGen TV (ATSC 3.0). The Commission acknowledged that due to the reduction of channels after the incentive auction and because of other actions it has taken over the last few years making spectrum available for unlicensed wireless uses, setting aside a vacant channel in every market was not necessary. See our post, . ()
- The Senate voted this week to confirm Nathan Simington as the newest FCC Commissioner. Simington takes Commissioner Michael O’Rielly’s spot. When Chairman Ajit Pai leaves the agency on Inauguration Day, the FCC will stand at two Democrats and two Republicans, depriving President Biden of a majority at the agency until a new Democratic Commissioner is confirmed, potentially delaying action on controversial matters that the a Chairman may want to pursue. See our post on Commissioner Simington, .
- Two actions this week by the FCC give examples of the circumstances under which construction permit extensions will be granted or denied.
- The Audio Division dismissed a petition filed by a California AM permittee that sought to have its construction permit deadline extended. After extensions in the construction deadline due to COVID-19 issues, the permittee asked the FCC to further pause the deadline due to continuing COVID issues and the poor air quality from wildfires that the permittee claimed interfered with construction. The FCC found that the station had not submitted any proof of any construction progress, and it could not tie that lack of progress to any of the causes that it cited. The Commission noted that COVID did not justify additional extensions as the State of California considers broadcast services and construction essential critical infrastructure not subject to COVID restrictions. As the permittee could not show that there were extraordinary circumstances that prevented all construction progress, the FCC found that the construction permit has expired. ()
- The FCC dismissed a petition by a Florida noncommercial permittee that asked for its construction permit to be reinstated after several extensions had been granted and passed without the station being constructed. Since 2015, the permittee received construction extensions based on hurricanes and the elimination of the main studio rule. The permittee asked for a further extension to review new construction plans. The FCC denied that further extension as the permittee, despite requests from the FCC to tie the potential change in construction plans to hurricane-caused delays, never did so. As the permittee could not show that it had been making real efforts to construct the station or that its efforts were delayed by extraordinary circumstances, the FCC refused to reinstate the permit. ()
- The House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement Act (MORE Act), which would decriminalize marijuana at the federal level. To become law, the bill would also have to pass the Senate and be signed by the President before the end of the current Congressional session in early January—which appears unlikely. Thus, broadcast stations should continue to think twice about running any marijuana advertising on the air. We wrote about the MORE Act, .
November 28, 2020 to December 4, 2020
- FCC Chairman Ajit Pai announced his intention to leave the FCC by January 20, the day that President-Elect Joe Biden is inaugurated. Pai has been at the Commission since 2012 and has led the Commission as Chairman since President Trump elevated him in 2017. The news release announcing his departure highlights some of the issues he hopes will be part of his legacy. (News Release)
- In other FCC personnel news, Nathan Simington’s nomination to fill the Commission seat now held by Michael O’Rielly moved ahead after the Senate Commerce Committee, along party lines, voted to advance his nomination. The next—and final—step is a vote by the full Senate which would have to be done before the current Senate session adjourns at the beginning of January. If not completed by the end of the session, the nomination and confirmation process would have to begin again. Senate Majority Leader Mitch McConnell (R-KY) plans to take up the nomination soon, but certain Democratic senators have indicated they may try to delay or derail a vote on Simington’s nomination. Should Simington be confirmed, the agency, with the departures of Chairman Pai and Commissioner O’Rielly, would be deadlocked at two Democratic and two Republican Commissioners in the early months of the Biden Administration until a new Democratic Commissioner is nominated and confirmed. We wrote about Simington’s nomination, here.
- Commissioner Michael O’Rielly sent a farewell email and video to FCC staff on Friday afternoon that recognized that his departure from the agency is imminent. O’Rielly can serve only until the adjournment of the current congressional session in early January or until his successor is confirmed and sworn in, whichever comes first.
- The Commission released a Notice of Proposed Rulemaking that seeks comment on allowing FM boosters to originate a limited amount of programming that is different from the programming being aired on their primary station. Proponents of this idea believe that boosters could deliver hyper localized news, weather, emergency alerting, and advertising. Interested parties should review the NPRM, consult with their technical experts, and begin drafting their comments as the FCC wants detailed input on the technical and operational aspects of the proposal. Comments will be due 30 days after the NPRM is published in the Federal Register. See our blog post, here, for a detailed look at the proposal. (Notice of Proposed Rulemaking)
- The FCC’s International Bureau issued an updated list of C-band incumbent earth station lump sum reimbursement elections, showing that nearly 98% of lump sum elections were accepted. The Bureau also released an updated list of incumbent earth stations eligible for reimbursement. Operators of earth stations should carefully review these documents to make sure that their operations are properly reported so that any reimbursement to which they are entitled will not be jeopardized.
- The FCC announced that television stations in DMAs 61 through 70 that are covered by the expanded audio description rules should be preparing to comply with the new rules beginning January 1, 2020. (Public Notice). We noted the FCC decision to expand the obligations to provide audio descriptions of certain broadcast TV video programming here and here.
- A Florida FM licensee will pay a $125,000 fine after admitting to failing: (i) to conduct the required daily inspection of an antenna structure’s lighting system, (ii) to notify the FAA about a lighting failure, (iii) to register an antenna structure with the FCC, (iv) to conduct two contests in a manner substantially as announced by pre-selecting the winners in those contests, and (v) to disclose that programming broadcast over the station during a supposedly live call-in contest was prerecorded. (Order)
- A West Virginia TV station was admonished for its failure to comply with the FCC’s rules for commercial limits in children’s programming. The station disclosed in its license renewal application that a website URL was displayed for about a half of a second during the closing credits of a program directed at children 12 years or younger. Stations cannot include in children’s programming the URL of a website whose primary purpose is to sell merchandise related to the program. In this case, the Video Division found that that the website was not primarily noncommercial in nature. The Division also noted stations are ultimately responsible for the programming on their air, even if the program was, as it was here, supplied by a network or other programmer. See the FCC’s letter for more details on these issues.
- The FCC rejected a petition by a party asking the Commission to reconsider its policy against awarding “secondary” grants in groups of mutually exclusive noncommercial educational FM applications. (Order on Reconsideration). We wrote here about the FCC’s reasoning for maintaining its processing policies that exclude such secondary grants.
- The FCC finalized rulemaking proceedings amending the TV Table of Allotments to change the channels of three TV stations from VHF to UHF channels. The FCC had agreed to start processing these requests several months ago despite a freeze on channel changes and other coverage modifications for TV stations (see our article here). These orders noted that the recent FCC decision to lift the filing freeze on TV technical applications that expand a station’s service area, making any waiver of that freeze unnecessary. (FCC Orders granting requests for channel changes in Mesa AZ, Minneapolis MN and Portland OR). As the lifting of the freeze has now become effective, expect more changes in the technical facilities of TV stations soon.
November 21, 2020 to November 27, 2020
- The FCC is seeking comment on proposed sponsorship identification requirements for broadcast programming that is paid for, or provided by, foreign governments or their representatives. The proposed rules set out specific disclosure obligations to inform audiences of a foreign government’s influence over the programming to which they are listening or viewing. Comments are due by December 24, 2020 and reply comments are due by January 25, 2021. (Federal Register)
- Parties have until December 24, 2020 to weigh in on a proposal by the NAB to clarify who is legally responsible for the programming on a subchannel of one TV station when that programming is a simulcast of another station’s programming. This would include when that subchannel is acting as the required ATSC 1.0 “lighthouse” signal for the primary video stream of a station that has converted to ATSC 3.0 (Next Gen TV) operations. The NAB suggests that the originating station, rather than the host station, should be liable for public service, political broadcasting, public file and other legal obligations that arise from that programming. Reply comments are due by January 25, 2021. We wrote about this proposal in more detail, here. (FCC Public Notice)
- A Baltimore television station is looking at a $20,000 proposed fine from the FCC for violations of the limits on commercials in children’s programming. The station, in its license renewal application, disclosed it aired a commercial for the “Hot Wheels Super Ultimate Garage” eleven times during the “Team Hot Wheels” children’s program. FCC policies treat the entire program as a commercial when ads featuring characters from the program are aired during the program. Thus, the station will be deemed to have far exceeded the limits on commercial time in children’s programs. The Video Division noted “that, in the context of the cognitive abilities of young children, airing a commercial for a ‘Hot Wheels Super Ultimate Garage’ play set during the ‘Team Hot Wheels’ program presents the clear risk for confusion between ‘program content’ and ‘commercial matter’ that the commercial limits rule was designed to avoid.” See our blog post for more details. (WUTB(TV) Notice of Apparent Liability)
- The oral argument date in the FCC v. Prometheus Radio Project was set for January 19, 2021. This case is the Supreme Court’s review of the 2019 decision by the Third Circuit Court of Appeals which overturned the FCC’s 2017 change in the broadcast ownership rules (including the abolition of the broadcast-newspaper cross-ownership rules and the rule requiring eight independent operators before common ownership or joint programming of two TV stations in a market is permitted). See our post, here, about the case.
- The FCC denied an Application for Review refusing to overturn a decision by its Media Bureau dismissing an application for a new FM translator filed by a Los Angeles area AM station. The dismissal occurred before the FCC’s new translator interference rules were adopted, and this week’s decision rejected arguments that the dismissal request should have been put on hold until those rules were adopted and took effect. This case discusses the difference in the old and new standards (and the differences in processing objections to applications that are predicted to cause interference versus objections to actual interference that arise after a translator begins operations) and shows that the FCC will not revisit cases decided under the old translator interference rules, even if the new rules would have led to a different decision. (KGBN Translator Opinion and Order)
November 14, 2020 to November 20, 2020
- After reviewing comments submitted this summer (we wrote about the rulemaking, here), the FCC will vote at its next Open Meeting, on December 10, on new rules for Broadcast Internet (ATSC 3.0) services. The principal changes addressed in the FCC’s draft order are clarifications of the rules on the annual “ancillary and supplementary services” fee that broadcasters offering non-broadcast services on their television channels must pay. The changes in the draft order include reducing the fees to be paid by noncommercial television stations that offer new noncommercial, non-broadcast services through their ATSC 3.0 operations. These services are not allowed to “derogate” the broadcast service and, in the draft order, the Commission would retain its current interpretation that this means that a station must continue to offer at least one standard definition television programming channel. (Draft Report and Order)
- The FCC voted this week to update its rules dealing with cable programming disputes, including a clarification as to when a complaint can be made against a cable or satellite operator for alleged program carriage or retransmission consent violations. Under the old rules, such a complaint could be made up to one year after the cable and satellite operator was notified of the complaint. Now, complaints can be made up to one year after the alleged violation, closing a loophole that potentially allowed complaints to be made for conduct that occurred years in the past. The new rules will be effective 30 days after publication in the Federal Register. (Report and Order)
- The FCC and NAB submitted their briefs this week to the Supreme Court in the FCC v. Prometheus Radio Project case, in advance of oral arguments and a decision in 2021. Reply briefs on behalf of Prometheus Radio Project are due by December 16. This case is a review of a lower court’s decision to reject the FCC’s 2017 broadcast ownership changes. See our post, here, about the Supreme Court review. (Court Docket)
- In the last 10 days, two lawsuits by the Trump campaign alleging defamation against media entities, including the lawsuit against a Wisconsin television station for airing an attack ad by Priorities USA about the President’s response to the coronavirus, were dismissed. We wrote about those dismissals here, addressing the issues that these actions highlight for broadcasters who run attack ads that are not sponsored by a candidate’s campaign committee.
Expected to be released soon, possibly this week, will be an FCC Notice of Proposed Rulemaking starting a proceeding looking to authorize FM boosters to transmit limited amounts of programming different than that being broadcast on their primary station. This “zonecasting” proposal would allow for different commercials or news reports to be broadcast in different parts of a station’s service area. See our articles here and here on the initial FCC request for comments on this proposal.
November 7, 2020 to November 13, 2020
- On November 12, the notice was published in the Federal Register of the lifting of the filing freeze for certain television applications including those that seek modifications to increase a full-power TV or Class A station’s service area, requests for DTV channel changes and new DTV allotments, and requests for changes to communities of license. While the Federal Register notice said the lifting of the freeze was effective as of the date of publication, we understand that to be an error as the notice itself says that it is effective 15 days after publication. Thus, the freeze should be lifted as of November 27. We wrote about the lifting of these freezes, here. (Federal Register)
- With the coming change in the administration, the president-elect’s allies in Congress sent a letter to the Chairman of the FCC demanding that the Chairman pause all work on controversial agency matters. The letter from House Energy and Commerce Chairman Frank Pallone, Jr. (D-NJ) and Communications and Technology subcommittee Chairman Mike Doyle (D-PA) was sent to Chairman Pai on November 10 and was echoed by public statements from Democratic Commissioners Jessica Rosenworcel and Geoffrey Starks. (Pallone-Doyle Letter) (Rosenworcel Statement) (Starks Statement)
- FCC Commissioner nominee Nathan Simington visited the Senate Commerce Committee this week to answer questions from senators in his bid to become the next Republican Commissioner. Several questions focused on Simington’s role in drafting NTIA’s Section 230 petition for rulemaking (read about Simington and Section 230 here and here). Senator Richard Blumenthal (D-CT) announced that he would hold up Simington’s nomination until the nominee pledges to recuse himself from the FCC’s work on Section 230.
- Two Louisiana FM stations filed their applications for license renewal about six months after their December 2, 2019 due date and now face $3,000 fines. These actions are another reminder that you need to pay attention to the license renewal application filing deadlines and be sure your application is filed with the FCC on or before the date your application is due. Radio stations in Colorado, Minnesota, Montana, North Dakota, and South Dakota and TV stations in Alabama and Georgia should be reviewing their public files and getting their license renewal applications ready to submit by December 1, 2020. We previewed this December 1 obligation, here. (KLSP(FM) proposed file) (KVDP(FM) proposed fine)
October 31, 2020 to November 6, 2020
- The FCC this week announced some changes to the rules and procedures for filing certain applications.
- Beginning November 18, Forms 314, 315, 316, and 345 will transition to the FCC’s Licensing and Management System (LMS) and will no longer be available in the Consolidated DataBase System (CDBS). These four forms relate to the assignment and transfer of control of broadcast station licenses and construction permits. See our short blog post, here. (Public Notice)
- Noncommercial educational and LPFM parties filing Schedule 318 applications, Form 314 and 315 Assignment and Transfer of Control applications, and Schedule 340 NCE Construction Permit applications, as of October 30, have new rules and interim processing procedures to follow. The new rules that are now effective require information about reasonable assurance of transmitter site availability in construction permit applications, information on applications specifying LPFM directional antennas, and certifications regarding holding periods for stations received through point systems awards. The FCC staff still has some backend IT work to conform its forms to the new rules, so the Public Notice details how to provide the required information in the meantime. We wrote about this on our blog, here. (Public Notice)
- Comments are due on or before November 20 on the FCC’s proposal to establish a ten-application limit in the 2021 filing window for new noncommercial FM stations. (Federal Register)
- A Virgin Islands radio station and a Louisville, Kentucky radio station each face $3,000 fines for failing to file their license renewal application on time. Stay on top of your renewal application filing date, so you avoid a fine, avoid putting your license at risk, or both. License renewal application filing deadlines for TV stations are here and the filing deadlines for radio are here. (VI Notice of Apparently Liability for Forfeiture) (KY Notice of Apparently Liability for Forfeiture)
- After a review of more than a year, the FCC granted iHeartMedia’s petition allowing it to exceed the 25% foreign ownership cap that applies to broadcast licensees. The FCC ruling is a good example of the process that the FCC goes through to assess whether to permit a company to obtain foreign investments above 25% to improve its financial position to better to compete in the media marketplace. (Declaratory Ruling)
October 24, 2020 to October 30, 2020
- The FCC held a virtual Open Meeting on Tuesday, voting to approve an order authorizing voluntary all-digital AM transmission, an order expanding requirements for audio description of video programming to 40 more television markets over the next four years, and an order allowing the expanded use of higher-powered TV white spaces devices. The Commissioners also approved a Further Notice of Proposed Rulemaking to examine whether to modify its rules to permit the use of terrain-based models to determine available TV channels for the operation of white space devices. We took a closer look at these three items when the drafts were released. (All-Digital AM order) (Audio Description order) (White Spaces order and Further Notice)
- Rule changes designed to standardize the text and scheduling of local public notices about the filing of certain broadcast applications (including license renewals and applications to sell a station) became effective October 30. In our article here, we highlighted many of the rule changes, including the new requirement that commercial stations include a permanent “FCC Applications” link on their station’s homepage whether or not they have any applications pending at the FCC. Stations will want to review the Report and Order for all of the rule changes and the FCC’s Public Notice released on Friday outlining the new obligations and the transition to the new public notice process.
- The FCC announced the lifting of the freeze that has been in place since 2004 on most applications that would expand a TV station’s protected contour and on channel change petitions. The freeze had been imposed first to provide a stable TV database so that the FCC could plan for the DTV transition, and then extended to facilitate the broadcast incentive auction and subsequent repacking of the TV band. When the freeze is lifted, parties will be able to file petitions for rulemaking for DTV channel changes and new DTV allotments, requests for changes to communities of license, and modifications to increase a full-power TV or Class A station’s service area. The freeze will be lifted 15 days after this week’s Public Notice is published in the Federal Register. (Broadcast Law Blog) (Public Notice)
- The FCC released a Notice of Proposed Rulemaking advancing rules requiring the on-air identification of the sponsor of broadcast programming that is funded by a foreign government or an entity controlled by a foreign government, whether a broadcaster is paid to air that programming or where the programming produced by the foreign entity is provided to the station for free. (Notice of Proposed Rulemaking)
- A Notice of Proposed Rulemaking proposing to allow FM stations to use their boosters to originate limited amounts of programming different from their primary stations could be coming soon. A statement by Commissioner Geoffrey Starks says that Chairman Pai has circulated a draft among Commissioners. For his part, Starks approves of the plan and points to benefits gained by minority-owned stations and small businesses having the ability to geotarget news, weather, advertising, and emergency alerts to diverse communities. (Starks Statement) Earlier this year, when the FCC asked for initial comments, we wrote here and here about this “zonecasting service” proposed by GeoBroadcast Solutions.
- A Florida low power FM station is facing a $25,000 fine for failing to operate within its licensed power limits, for transmitting from an antenna type other than the type specified on the station’s license, for transmitting from a site different than its licensed site, and for failing to produce evidence that the station had installed EAS equipment. This is another good reminder to be sure your station is operating in accordance with its license and all FCC rules and regulations. (Notice of Apparent Liability for Forfeiture)
- The FCC released the agenda and drafts of the items the Commissioners will consider at their November 18 Open Meeting. There are no pure broadcast items, though some broadcasters may be interested in a proposal to change the procedures for filing program carriage complaints by cable programmers against a multichannel video programming distributor (MVPD). The proposals would clarify the time limits for the filing of such actions and adopt processes to speed their resolution (Draft Report and Order)
- On Thursday, Makan Delrahim, the head of the Department of Justice’s Antitrust Division, at a virtual event sponsored by Competition Policy International, said that he hoped that the Division would issue a report on its review of the ASCAP and BMI consent decrees before the end of his term, which could be this year. From some of his prior statements, it had been feared that the Division was looking to end the decrees. From his statements this week, it appears that any changes suggested will be much more modest given the continued reliance of broadcasters and other music users on the existence of these decrees for the operation of their businesses. (Video of Delrahim’s comments – discussion of the consent decrees beginning at about 10:50 into the video).
October 19, 2020 to October 23, 2020
- The FCC’s International Bureau released a Public Notice on its review of the requests for “lump sum reimbursement requests” for stations that have C Band earth stations that will be affected by the repacking of the band for wireless uses. The Public Notice contains a list of all applications for lump sum reimbursement and the status of each applicant’s request. While most applications are listed as “approved,” for applicants with identified issues with their requests, the Public Notice says that failure to resolve the issues by October 28 may result in dismissal of the lumps sum reimbursement requests, though applicants would still be eligible for the normal reimbursement process. (Public Notice)(List of requests for lump sum reimbursement)
- A window to submit applications for new noncommercial educational FM stations will open in 2021. This week, the Commission asked for comments on its tentative conclusion to limit parties to submitting ten applications during the window, which was the same limit imposed in 2007 during the last noncommercial reserved-band window. The Commission reasons for the proposed limit include that it will prevent mass filings by speculators, avoid some instances where applications are mutually exclusive, and allow for quicker processing of applications by FCC staff. Interested parties should start preparing their comments, as those comments will be due 15 days after the Public Notice is published in the Federal Register. Reply comments will be due 10 days after the comment deadline date. (Broadcast Law Blog) (Public Notice)
- After voting in August to eliminate the radio program duplication rule for AM and FM stations, the rule change became effective October 22. The rule had prohibited radio stations in the same service (AM or FM) that have over 50% overlap of their principal community contours (the 70 dBu contour for FM stations and the 5 mV/m contour for AM stations) from duplicating more than 25 per cent of the total hours in their average programming week. We covered the rule repeal on the blog in August, and posted a short note on this week’s abolition of the rule. (Federal Register)
- FCC General Counsel Thomas M. Johnson, Jr. published a blog post laying out the legal reasoning behind why the FCC has the authority to interpret and clarify Section 230, the section of the Communications Act that gives online platforms immunity from liability for what third-party users post on those platforms. Johnson points to language of the statute and to Supreme Court cases that held that the Commission has authority to interpret the Communications Act unless the Act specifically says that authority rests elsewhere. As Section 230 is part of the Communications Act and makes no mention of removing the FCC’s authority to interpret it, Johnson argues that the FCC is free to interpret the section’s language, just as it does for other parts of the Communications Act. We noted in our blog post from June that there are plenty of debates over whether the FCC has the power to interpret Section 230 and Johnson’s 2,600+-word blog post appears to be an attempt to anticipate those arguments. Watch for a Notice of Proposed Rulemaking on Section 230 soon.
- On the blog this week, we posted our thoughts on how broadcasters can re-think their EEO programs and compliance efforts to tailor them to the pandemic reality we live in. Depending on where your station is in your two-year EEO reporting period, your station might need to get creative to satisfy the non-vacancy specific outreach efforts (the “menu options”) required by the rules. We note in the post that, unlike other areas where the FCC has issued waivers or otherwise shown leniency about compliance, EEO is still a priority for the Commission and, in fact, random audits have continued throughout the pandemic. (Broadcast Law Blog)
- We looked at the Broadcast Diversity in Leadership Act, introduced last month in the House of Representatives by former radio broadcaster and current Member of Congress, Greg Walden (R-Ore). The bill seeks to put into law much of what the FCC has tried to do with its incubator program, fostering ownership by minorities and other new entrants. The FCC’s program was blocked by the Third Circuit Court of Appeals decision on the broadcast ownership rules that is now before the Supreme Court for review. With so few days left this year on the legislative calendar and Congressman Walden’s retirement at the end of the year, it will fall to another Member of Congress to run with this effort in the next congressional session. (Broadcast Law Blog)
October 10, 2020 to October 16, 2020
- The FCC set the comment dates for its proposal for changing the cost to file various broadcast applications. The new schedule of fees the FCC has proposed are meant to better reflect the actual legal and engineering labor resources spent processing the applications. Because of this, some applications that take up more resources to process see a proposed fee increase, while other applications that are easier to process see a proposed fee decrease. Interested parties should review the fee schedules and submit their comments and reply comments by November 16 and November 30, respectively. (Notice of Proposed Rulemaking)
- Chairman Pai announced his intention to open a rulemaking to clarify the meaning of Section 230 of the Communications Decency Act of 1996. This provision grants broad immunity to online platforms for civil liability (including defamation claims) that arises from content that users post on those platforms. In the last few months, Section 230 has become a hot-button issue following President Trump’s Executive Order calling for the examination of Section 230’s liability shield. Nathan Simington, the President’s nominee for FCC commissioner, is said to have played a role in the advancing that order. We wrote here and here about Section 230. (News Release)
- The FCC this week proposed that three VHF stations be allowed to move to channels in the UHF band. Each waiver contains a waiver of the current filing freeze on changes to the television Table of Allotments. More than nine years ago, the Commission put in place a channel change freeze while it worked through the mechanics of the incentive auction and repack. These waivers indicate at least some thawing of the freeze as the auction and repack are substantially complete. The waivers note that VHF transmissions can sometimes be difficult for viewers to receive due to VHF’s signal propagation characteristics and thus allowed these channel change proposals to move forward. (Channel change proposals for Portland, Oregon; Mesa, Arizona; and Minneapolis, Minnesota)
- With only a couple of days left until the November Election, we wrote on the Broadcast Law Blog about the importance of compliance with the online political file rules and the steady stream of consent decrees that have been issued by the FCC’s Media Bureau over the last few months. (Broadcast Law Blog)
- It’s official: The FCC, though its workforce is still largely working remotely, has moved to its new headquarters. The new headquarters, at 45 L Street NE, is close to Union Station and steps from NPR headquarters. (Public Notice)
- It was announced this week that Nathan Simington, the President’s nominee to fill Commissioner Michael O’Rielly’s seat at the FCC, will have a confirmation hearing before the Senate Commerce Committee on November 10 in the next step in the Senate’s consideration of his nomination. (Nominations Hearing)
- On the Broadcast Law Blog, we also wrote about the apparent heightened interest of the recording industry in music used in podcasts, where demand letters from an industry association have recently resulted in the shutdown of two podcasts. Anyone making available music on-demand (including in a podcast or in any video production) needs to clear the rights directly from copyright holders – ASCAP, BMI, SESAC, GMR and SoundExchange licenses are not enough. (More details available in this article on the Broadcast Law Blog).
October 3, 2020 to October 9, 2020
- The FCC released the agenda and items to be considered at its October 27 Open Meeting.
- After issuing a Notice of Proposed Rulemaking in the spring, the FCC will vote on finalizing changes to its rules for video description (the insertion in TV programming of spoken narration of what is happening on the screen to aid blind or visually impaired persons). If the item is adopted, it will, among other things, rename video description as “audio description” and extend the audio description requirements to television markets 61-100 at a rate of ten markets per year. Stations affiliated with ABC, CBS, Fox, or NBC in markets 61-70 will have to start complying on January 1, 2021 or on the effective date of the Order, whichever comes later. We covered this proceeding on the Broadcast Law Blog, here. (Report and Order)
- As part of the Commission’s AM revitalization efforts, it will consider allowing AM stations to convert to all-digital broadcasting on a voluntary basis. Currently, AM stations are authorized for either analog or hybrid (combined analog and digital) transmission. This rule change would allow AM stations to transition fully to digital, which would help those stations overcome some of the problems that affect analog AM signals, like interference and lower-quality audio. We took a deeper look at the Report and Order, here. (Report and Order)
- In the latest step in the multi-year effort to increase unlicensed wireless operations in TV “white space,” the Commission will consider an item that allows fixed unlicensed devices operating on channels 2-35 to operate at higher power in “less congested” rural and unserved areas and allow greater antenna heights for these devices. Unlicensed device operators must still cease operations if their operations interfere with an authorized service like, for example, television stations. See our blog post, here, from March where we looked at the Notice of Proposed Rulemaking. (Report and Order)
- The window is closing for TV stations repacked after the incentive auction to submit their invoices for reimbursements. Stations in Phases 1 to 5 have until October 8, 2021 to submit invoices for reimbursement. Stations in Phases 6 to 10 have until March 22, 2022. All other entities eligible for reimbursement, including FM and LPTV/translator stations, have until September 5, 2022 to submit their documentation. (Public Notice)
- If you want to start filling in your 2021 calendar, the FCC has released the dates for its 2021 Open Meetings. While the Open Meetings since March have been held remotely, the 2021 meetings are scheduled to be held at the Commission’s new Washington headquarters. (Open Meetings Calendar)
- A low power FM station was hit with a consent decree and $15,000 fine for airing announcements for for-profit entities that violate the non-commercial underwriting rules, violating the cross-ownership rules that prohibit a party from holding an interest in a radio station while also holding an attributable interest in an LPFM, violating the rule that requires LPFMs to file with the FCC when more than 50% of the station’s governing board changes suddenly, and violating the rule against transferring or assigning an LPFM license within three years of issuance. (Order)
- The FCC has named a new point person to oversee its field offices. Axel Rodriguez, the Commission’s new Field Director, will supervise the 13 field offices and its agents and lead efforts to combat pirate radio and other unauthorized spectrum uses and support efforts to restore communications services after disasters. Rodriguez has a background in electrical engineering and served as a cyber warfare officer in the military. (News Release)
September 26, 2020 to October 2, 2020
- The U.S. Supreme Court decided to consider the appeals by the FCC and industry groups of the Third Circuit’s decision overturning the FCC’s 2017 ownership order. The FCC’s 2017 decision, among other things, abolished the newspaper-broadcast and radio-TV cross-ownership bans and allowed common ownership of two TV stations in the same market even when there were not 8 independent operators and, in some cases, even allowed combinations of two of the top 4 rated TV stations in a market. For years, the Third Circuit has blocked the FCC’s attempts to reform its ownership rules. In the cases which the Supreme Court will now review, the Prometheus Radio Project cases, the Third Circuit said that the Commission’s analysis of the media marketplace lacked evidence of the impact that changes in the rules have had and will have on the diversity of new entrants into media ownership. Briefs are likely to be submitted to the Supreme Court this fall with oral arguments to follow early in the new year. A decision is expected before the end of this term of the Supreme Court at the end of June or beginning of July of 2021. Get caught up with the issue in these cases, here. (Supreme Court Order List)
- The FCC relaxed its rules regarding the notifications cable companies must provide to their subscribers about retransmission consent blackouts. The change from 30-day advance notice of a blackout to “as soon as possible” notification is an acknowledgement that retransmission negotiations sometimes continue until the hours before the deadline and that 30-day notice is, in many cases, not a reliable indicator that a blackout will occur. (Report and Order)
- The FCC released an order that will bring more structure to the Team Telecom process which reviews proposals for foreign ownership in the telecommunications industry. Any broadcast deal that would lead to more than 25% foreign ownership is subject to Team Telecom review. Team Telecom brings together telecommunications and national security officials from throughout the government to examine these transactions. The changes are designed to give applicants more transparency into the process and make reviews more predictable. The FCC also hopes to reduce the amount of time it takes for an application to make it through the review process. (News Release) (Report and Order)
- FCC Commissioner Michael O’Rielly published a blog post detailing what he thinks should be included in the next slate of media modernization items the Commission considers. O’Rielly suggests lifting the freeze on technical upgrades and modifications that was put in place to conserve staff resources devoted to the incentive auction and repack, updating the criteria by which stations are considered to be failing for ownership waiver purposes, allowing waivers for LPFM stations to make in-market moves, updating the rules for VHF channels to move to the UHF band, and updating the rules to make easier certain changes to communities of license of TV stations. As Commissioner O’Rielly is expected to leave the Commission at year’s end (or sooner if his replacement is confirmed), his time to work on these issues from within the Commission is limited, so his blog post can be seen as a roadmap of media modernization items for the next group of Commissioners to consider. (Blog Post)
- We published in our Blog our monthly look at the regulatory dates and deadlines for October. Next up is October 10, which is important for all licensees of full-power stations as it is the deadline for stations to post to their online public files their Quarterly Issues/Programs Lists detailing the issues facing their communities and the programming that they broadcast to address those issues during July, August, and September. (Broadcast Law Blog)
September 19, 2020 to September 25, 2020
- The day before 2020 annual regulatory fees were due, the FCC extended the deadline from 11:59 p.m. on Friday, September 25 to 11:59 p.m. on Monday, September, 28. (Public Notice)
- Broadcast trade publication TVNewsCheck published “A Broadcaster’s Guide to Washington Issues,” our periodic survey of the legal and regulatory issues facing television broadcasters. It is a good resource for both new and veteran broadcasters looking to understand the status of pending legal and regulatory issues for the television industry.
- For stations looking to stay on top of their KidVid reporting, the updated form to be used for the 2020 Children’s Television Programming Report is now available and can be accessed through the FCC’s Licensing and Management System (LMS). Stations can begin to prepare the form, update it during the remainder of the year, saving the information to be ready to file in January. The FCC reminds television broadcasters that the form cannot be finalized and submitted until January 1, 2021. As a reminder, KidVid reports are now filed annually, not quarterly as they were until the rules were changed in 2019. (Public Notice)
- The FCC’s Media Bureau has waived the requirement for noncommercial educational (NCE) translator stations to send their carriage election notifications by email to multichannel video programming distributors (MVPD), as required under the FCC’s new carriage election requirements. The waiver came out of a petition from PBS and the trade association America’s Public Television Stations who said that, in many cases, NCE translators do not even know which MVPDs are carrying them and have no easy way to determine this information, making notification time-consuming and costly with no practical benefit as NCE translators can only “elect” must-carry. (Memorandum Opinion and Order)
September 12, 2020 to September 18, 2020
- Political advertising will continue to blanket the airwaves for the next month and a half and broadcasters need to remain vigilant in complying with all political advertising rules and obligations. We wrote on the blog this week about some of the sponsorship identification issues broadcasters should look out for, especially as busy station staffers are dealing with more orders and more ad copy. (Broadcast Law Blog)
- President Trump nominated Nathan Simington to fill FCC Commissioner Michael O’Rielly’s soon-to-be vacated seat. Simington currently serves as senior advisor at the National Telecommunications and Information Administration (NTIA) and is said to have worked on NTIA’s petition asking the FCC to review Section 230 of the Communications Decency Act of 1996, which gives online platforms broad immunity from what users post on those platforms. O’Rielly’s re-nomination is believed to have been withdrawn over his public comments expressing legal concerns over the President Trump’s desire that the FCC take steps to limit this immunity. O’Rielly can serve through the end of this year or until Simington is confirmed by the Senate, whichever comes first. We wrote about O’Rielly’s nomination troubles and Section 230, here. O’Rielly testified before the House Communications Subcommittee and used his opening remarks to reflect on his time at the Commission. (O’Rielly Remarks).
- Chairman Ajit Pai circulated among his fellow Commissioners a Notice of Proposed Rulemaking that would, if adopted, require more specific disclosure when a broadcast station is airing programming that is directly or indirectly provided or sponsored by a foreign governmental entity. The new rules would include standardized disclosure language that specifically identifies the sponsoring foreign entity. (News Release)
- A recent consent decree serves as a reminder that changes to ownership and control of broadcast licenses require prior FCC approval. The licensee of two Nevada stations failed to request approval of a buy/sell and stock purchase agreement that gave another party control of the stations. Under the terms of the consent decree, the transaction will be approved, but the licensee must pay an $8,000 penalty and follow a compliance plan for three years. (Order)
- The FCC denied an Application for Review that sought to reverse the Media Bureau’s ruling that eighteen stations had failed to negotiate in good faith with DirecTV for retransmission consent. Each station faces a $512,228 penalty. We wrote about the earlier stages of this case and generally about the good faith negotiation requirement, here. (Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture)
September 5, 2020 to September 11, 2020
- Information on the FY 2020 regulatory fee process continues to roll out, in advance of the 11:59 p.m. EDT September 25 deadline to pay fees or to request a waiver. The Media Bureau released a fact sheet to answer questions and to help stations figure out how much they owe. When you log-in to the fee filer, the amount owed is already pre-entered, so you only need to enter payment information. Should you wish to double-check the amount shown in the filer, the Bureau provides a chart for radio stations that shows payment amounts based on station class type and population served. Television licensees can consult Appendix G of the FY 2020 Fees Report and Order. See our blog post for more information. (What You Owe – Media Services Licensees Fact Sheet)
- The FCC released the agenda for its September 30 Open Meeting and drafts of the items to be considered at that meeting. There are no items on the agenda that would change broadcasters’ obligations, though as part of its multi-year Media Modernization efforts, the FCC will consider changes to how cable systems must handle certain notifications to its customers of changes to rates, service, or channel position of stations that they carry. Acknowledging that retransmission consent and program carriage negotiations can continue up until the moment a channel or program has to be pulled from the system, the FCC wants to change its rules to eliminate the 30-day notice required under current rules. The new rule, if adopted, will allow cable systems to notify viewers “as soon as possible” about changes to channel lineups that occur due to retransmission consent or program carriage negotiations that fail within 30 days of the retransmission or program carriage contract ending. (Report and Order)
- Holders of FM translator construction permits awarded to AM stations in Auctions 99 and 100 that expire on or before June 30, 2021 have an opportunity to extend the permit’s expiration date by up to six months. The Media Bureau announced it will accept COVID-19-related requests for waiver of the expiration date. The request must specify how the pandemic has prevented the permit holder’s ability to complete construction and should be submitted no later than 15 days before the permit expires. More details and waiver request instructions are available in the Public Notice. (Public Notice)
August 29, 2020 to September 4, 2020
- The FCC released its Report and Order on annual regulatory fees for fiscal year 2020 and, over objections from the NAB, declined to substantially reduce radio regulatory fees, keeping in place its calculation methodology that results in a net increase from 2019 in fees assessed to radio broadcasters (a computational error led to a minor downward adjustment in radio fees from what the FCC set out earlier in the 2020 fee process). The FCC also declined to change its methodology for calculating television fees, transitioning fully to a population-based methodology. The Commission did acknowledge the hardships stations are facing during the pandemic and has taken steps to provide relief. That relief for stations that can demonstrate financial hardship includes allowing stations to submit one request seeking a fee waiver and deferral of payment for hardship reasons instead of two separate requests as generally required by the Commission rules; allowing stations to submit by email a request to pay their fees in installments over time at a low interest rate; and directing Commission staff to work closely with and help stations finding it difficult to produce supporting documents that prove financial hardship caused by the virus. See our post at the Broadcast Law Blog for a deeper look at the Report and Order and see below for links to Public Notices with details about how to pay your fees and how to seek relief, all due by 11:59 p.m. on September 25. More information and specific fact sheets for the Media Bureau payees will be posted at FCC.gov/RegFees.
- In what could be one of the last steps before opening a noncommercial FM filing window, the FCC denied a Petition for Reconsideration asking it to reexamine the criteria it uses to determine which noncommercial FM application should be granted. Under the current system, when more than one application is submitted, points are awarded to applicants based on certain favored criteria and the applicant with the most points wins. In the Order, the FCC refused to consider “secondary” grants after the first one is awarded. For more on how the points system and the “secondary” grants idea would play out and why the FCC declined to change its application evaluation and selection process, read our blog post here. (Order on Reconsideration)
- Over the last few weeks, the FCC’s Media Bureau has proposed consent decrees with a large number of radio licensees over their inability to certify on their license renewal applications that they timely uploaded to their online public file all of their political advertising documents (we wrote about the first six of these consent decrees, that were with large companies, here). This coming week watch for an article on our blog about these new consent decrees, and what it means for stations that have not yet filed their license renewal applications.
- On September 4, the lowest unit charge window opened for the November 3 general election. For more on complying with and calculating lowest unit charges, see our blog post.
- Comments were due this week on the National Telecommunications and Information Administration’s (NTIA) Petition for Rulemaking asking the FCC to review its interpretation of Section 230 of the Communications Decency Act. Section 230, which gives online platforms legal protections from liability for content that third-party users post on those platforms, has drawn intense scrutiny from President Trump. Reply comments are due by September 17. You can read more about this in our monthly feature of regulatory dates. (Comments)
August 22, 2020 to August 28, 2020
- The FCC this week released a Notice of Proposed Rulemaking proposing changes to the fees it charges broadcasters for filing applications like assignments, transfers of control, construction permits, and minor modifications. The new fees are based on the FCC’s attempt to estimate its costs in processing applications, resulting in a proposed increase in some fees and a decrease in others (e.g. an application for a new AM or FM station will be almost $500 cheaper if the FCC’s proposal is adopted, while the filing of a Form 316 short-form assignment or transfer of control application will cost $260 more). Comments and reply comments on these proposed fees will be due 30 days after the Notice is published in the Federal Register, with Reply comments due 45 days from that publication. (NPRM)
- The Radio Music License Committee announced a settlement with SESAC on commercial radio music royalties covering the period from January 1, 2019 through the end of 2022. The settlement essentially carries forward the royalties that broadcasters have been paying SESAC for the last three years. See our Broadcast Law Blog article on the settlement here. The new blanket agreement is available on the RMLC website here and instructions from SESAC can be found here.
- The NAB this week hosted a webinar with FCC speakers on the considerations that broadcasters should keep in mind in deciding whether to accept a lump-sum payment for costs that they will incur in making changes to authorized satellite dishes in the C-Band. An election to take a lump-sum payment must be made by September 14 and obligates the broadcaster to assume all future costs of the transition itself. The decision is not as straightforward as it might seem. The free webinar can be assessed on the NAB website here. We wrote about these considerations on our Blog here.
- Hurricane Laura and Tropical Storm Marco have caused the FCC to activate its Disaster Information Reporting System (DIRS) for dozens of designated counties in nearly 20 states and Washington, DC. The FCC asks communications providers, like TV and radio broadcasters, to voluntary report on the status of their signals and infrastructure to give the FCC a sense of the on-the-ground situation and to help inform its deployment of recovery resources. As of Friday afternoon, four TV stations, 23 FM stations, and one AM station reported being out of service. (DIRS Public Notice) (August 28 DIRS Status Report)
- We published on the Broadcast Law Blog our look at some of the regulatory dates broadcasters should be aware of in September and early October. The upcoming dates include those for annual regulatory fees, the opening of the lowest unit rate window for advertising by political candidates, the C-Band lump-sum reimbursement election deadline, rulemaking comments, and a plethora of routine regulatory obligations in early October. (Broadcast Law Blog)
August 15, 2020 to August 21, 2020
- We noted in last week’s update that the FCC’s Annual Regulatory Fees Order, setting the fees to be paid by broadcasters by October 1, has been drafted and is likely to be released by the FCC very soon. In advance of the Order being released, NAB CEO Gordon Smith talked with Chairman Ajit Pai and expressed his concern that the proposed fee structure, which is determined by estimates as to how many FCC staffers are detailed to regulating an industry and the related benefit that industry receives, inaccurately reflects the number of employees that work on radio issues. The NAB has been urging the Commission to freeze radio regulatory fees at last year’s amounts rather than increasing the amount of those fees as the Commission proposed in its Notice of Proposed Rulemaking. Watch for a final decision from the FCC on regulatory fees possibly this week. (NAB Phone Call Summary)
- Earth station licensees, including broadcasters who receive satellite-delivered programming, who want to receive a lump sum payment for their costs associated with technical changes made necessary by the upcoming repacking of the C-Band, must make the election to receive that lump-sum payment (instead of having to prove their actual expenses) by September 14. The deadline had been August 31 but was extended this week. (Order). The NAB will be conducting a webinar to explain what this election means (NAB Notice of Webinar).
- Comments were due by Monday, August 17 in the FCC’s Broadcast Internet proceeding (looking at the use of TV ATSC 3.0 spectrum for datacasting). The FCC sought comment on potential real-world uses for broadcast internet and how the FCC might change its rules to foster deployment and adoption of these new services. Reply comments are due by August 31. We took a closer look at this proceeding here and here. (Docket 20-145 Comments)
- Broadcasters and other media groups submitted their reply brief in National Association of Broadcasters, et al. v. Prometheus Radio Project, et al. This is the FCC’s appeal to the Supreme Court of the Third Circuit decision throwing out the FCC’s 2017 order changing many of the broadcast ownership rules – including the abolition of the newspaper-broadcast cross-ownership rule. The justices will review the briefs filed in this case and decide this Fall whether to consider the appeal. If they decide to do so, the Court’s decision would likely come in 2021. If the Supreme Court declines to hear the case, the Third Circuit decision stands, and the FCC will have to come up with a new evaluation of its ownership rules consistent with that decision. You can catch up on the twists and turns of this case here. (Industry Reply Brief)
- With an eye on the November 3 general election and the September 4 opening of the lowest unit charge “political window,” we published to the Broadcast Law Blog a review of the FCC rules and policies that affect the rates a broadcaster can charge for political advertising. (Broadcast Law Blog)
- School administrators across the country are grappling with whether and when students should physically return to schools. Receiving less attention has been how operators of noncommercial stations licensed to educational institutions should navigate the FCC rules on their minimum required operations when students are absent from campus, on a modified attendance schedule, or adhering to other policies that make running a broadcast station difficult or impossible. The FCC in March released guidance for these stations to follow when schools send their students home, namely that college stations could treat campus shutdowns as a “recess period” under the minimum operating schedule rules. Under those rules, during a recess, stations licensed to schools do not need special FCC permission to be silent. On our Blog this past week, we looked at how those FCC minimum operating rules apply to today’s conditions at educational institutions. The facts of each situation will be different, so be sure to get in touch with your station’s FCC lawyer to evaluate your own case.
August 8, 2020 to August 14, 2020
- The FCC released two Public Notices tied to extreme weather events:
- In one Notice, the FCC reminded video programming distributors—including broadcasters—of their obligations to make televised emergency information accessible to persons with disabilities. Commission rules define “emergency information” as “[i]nformation, about a current emergency, that is intended to further the protection of life, health, safety, and property, i.e., critical details regarding the emergency and how to respond to the emergency.” The Public Notice cites deadly tornadoes in Tennessee, earthquakes in Puerto Rico, and the COVID-19 pandemic as events that would be covered by this rule. The Notice details the accommodations that must be made to reach individuals who are deaf, hard of hearing, blind, or visually impaired. This includes the need to provide actionable emergency information available visually when it is provided aurally in a TV broadcast (e.g. through open captions or other visual means) and, when a television station provides emergency information in a visual crawl during entertainment programming, it must also provide that information aurally on a subchannel. We took an in-depth look at some of those accommodations, here. (Public Notice)
- In another Notice, the Public Safety and Homeland Security Bureau announced activation of the Disaster Information Reporting System (DIRS) in response to Iowa’s recent derecho and encouraged communications providers like broadcast stations, cable, and wireless companies that serve at least one of the 24 designated Iowa counties to update the Commission on their operational status. As of Friday morning, nine broadcast stations (8 FM, 1 AM) reported being out of service. The Bureau often activates DIRS in advance of or in the aftermath of extreme weather events and, as we are in hurricane season and DIRS is likely to be activated again this year, broadcasters should become familiar with the system and be prepared to report their operational status if extreme weather hits their area. (Public Notice)
- The Media Bureau sided with a Colorado TV broadcaster in a dispute with a satellite TV carrier over delivery of the station’s signal. The Bureau concluded that the change in the method for the delivery of the station’s signal to the satellite provider’s uplink facility from a closed circuit fiber line to over-the-air delivery via a subchannel on the licensee’s low power TV is permitted. The FCC concluded that a must-carry broadcaster can deliver its signal to the uplink facility in any way it chooses so long as the cost of the delivery is borne by the broadcaster. (Memorandum Opinion and Order).
- Tied to the announcement that the Local Radio Freedom Act in now being cosponsored by a majority of the members of the U.S. House of Representatives, we published to the Broadcast Law Blog a look at what is ahead in the music licensing debate over the possibility of imposing a sound recording performance royalty on over-the-air broadcasting. (Broadcast Law Blog)
August 1, 2020 to August 7, 2020
- The FCC acted this week on two media modernization items that had been teed up for consideration at its August 6 Open Meeting.
- The day before the meeting, the Commission adopted a Report and Order repealing rules regarding access to TV and FM antenna sites. The rules, as they were written 75 years ago, prohibited the FCC from renewing a TV or FM license if the licensee restricted access by a potential competitor to its antenna site when no other site was available to the competitor. The FCC pointed to the growth of the broadcast industry and number of available independently owned antenna sites as reasons for the repeal. We wrote about the repeal of this rule, here. (Report and Order)
- During the meeting, the FCC repealed the rule prohibiting programming duplication on commonly owned or controlled stations operating in the same area in the same service (AM or FM). Three weeks ago, when the FCC released its draft of the order to be considered at the meeting, and it was written to eliminate the rule only for AM radio. At the meeting, a majority of the Commissioners voted to also eliminate the rule as it applies to FM. It is expected that few FM stations will duplicate programming, as it likely makes less financial sense than for financially challenged AM stations, but the FCC determined that FM stations should have the flexibility to do so. We took a deeper look at the AM radio duplication rule, here. (Report and Order) (News Release)
- In response to a letter from Rep. Xochitl Torres Small (D-NM) requesting that the Commission open an LPFM application filing window, FCC Chairman Ajit Pai indicated that the FCC would open such a window after Media Bureau staff has processed the applications filed in a window for new noncommercial educational FM stations that may open later this year or early next year. This may be the first confirmation of this upcoming noncommercial FM filing window. (Rep. Small Letter) (Chairman Pai Letter)
- The FCC’s Enforcement Bureau upheld its decision to fine a Palmdale, California FM translator station $12,000 for operating at transmitter output power levels that exceeded the levels specified in its license. The decision reiterated that it is the licensee’s responsibility to operate within legal limits and that the FCC need not warn a station about illegal operations before issuing a fine. Translator operators should review the Order and ensure their operations comply with all applicable FCC rules. Read more about this decision in our article here.
- In FCC leadership news, President Trump withdrew FCC Commissioner Mike O’Rielly’s nomination for another five-year term at the Commission. Before the withdrawal, O’Rielly’s nomination had cleared the Senate Commerce Committee and was headed for full Senate consideration when Senate Armed Services Committee Chairman Sen. Jim Inhofe (R-OK) placed a hold on the nomination. Inhofe said he issued the hold over O’Rielly’s vote to approve an FCC Order that some argued could cause interference to GPS operations. However, there has been much press speculation that President Trump withdrew the nomination over O’Rielly’s concerns about the President’s proposals on Section 230 of the Communications Decency Act of 1996, the provision of federal law that gives online platforms broad immunity from what users post on these platforms (see the bullet below). O’Rielly has suggested that any changes in Section 230 need to take care to not infringe on First Amendment free speech rights. Unless his nomination is reinstated, and he receives Senate confirmation, O’Rielly can continue serving only through the end of 2020.
- The FCC is inviting initial public comment on a Petition for Rulemaking submitted to the FCC by the National Telecommunications and Information Administration seeking an FCC interpretation of the protections given by Section 230 of the Communications Decency Act of 1996 to online platforms for the contents of material posted to their platforms by third parties. One of the specific questions asked is the extent to which those platforms can edit the third-party posts and retain their immunity from liability (we wrote about Section 230, its protections, and applicability to broadcasters here and here). This petition is a response to President Trump’s Executive Order on Preventing Online Censorship. The public has until September 2 to submit comments on the rulemaking petition, and 15 days to respond to any comments that are filed. As these are just preliminary comments on the petition for rulemaking, the FCC will likely issue a formal Notice of Proposed Rulemaking before taking further action on the petition. Thus, any substantive action on this issue will almost certainly not come before the November general election. (FCC Public Notice)
- In letters to Reps. Ann McLane Kuster (D-NH) and Chris Stewart (R-UT), FCC Chairman Ajit Pai addressed the representatives’ concerns about increases in the regulatory fees the Commission collects from broadcasters. Pai wrote that he is sympathetic to their concerns, but federal law gives the Commission little leeway to excuse broadcasters from paying these fees. The FCC by law must assess regulatory fees in an amount reasonably expected to equal the amount of money Congress has allocated to the agency, which for 2020 is $339 million. The FCC must collect those fees by September 30. The Chairman noted that the FCC has some flexibility to offer payment plans with a nominal interest rate if a station can demonstrate a financial hardship and inability to pay. The Chairman also reminded the members of Congress that Congress can change the fee requirements and could, among other things, give stations more time to pay. (Letters)
- The Solicitor General, on behalf of the FCC, submitted to the Supreme Court a reply brief encouraging the Court to take up Federal Communications Commission v. Prometheus Radio Project, et al., an appeal of a 2019 decision where the Third Circuit Court of Appeals rejected the FCC’s reforms to its media ownership rules. Over the last few months, the FCC has taken steps to get the Supreme Court to review that decision. The Justices are expected to decide later this year whether to consider the government’s appeal and take the case. Catch up on the history of this proceeding, here. (Reply Brief)
July 25, 2020 to July 31, 2020
- This week, many large and small radio operators that submitted license renewal applications without certifying full compliance with the FCC’s political file obligations received an email from the FCC. That email proposes that these stations enter into consent decrees to get their renewals granted. A party entering into one of these consent decrees needs to appoint a company compliance officer to monitor political advertising compliance, adopt a compliance plan, hold training sessions, and file yearly reports with the FCC on all political sales. These consent decrees appear to have gone to virtually every station that could not certify complete compliance with the public file rules, without consideration of the nature of their public file issues. The decrees are similar to the consent decrees recently entered into by six of the largest radio groups (about which we wrote here). This week’s action is a vivid reminder of how seriously the FCC takes compliance with the political file rules (for a refresher on the political broadcasting rules, see here for our political broadcasting blog articles and here for WBK’s Political Broadcasting Guide). If you received one of these emails, talk to an attorney experienced in FCC matters before you sign it to see what options may be available to you and to discuss the details of the obligations imposed by the decrees. (Consent Decree Example)
- New carriage election notice rules that apply to LPTV and Class A stations became effective July 31. The new rules require certain LPTV stations and non-commercial educational translator stations that are retransmitted by a multichannel video programming distributor (MVPD) to respond as soon as is reasonably possible to communications about carriage election issues that are received via the contact information the station should have provided in the FCC’s LMS database. Qualified LPTVs (i.e. LPTV stations in rural areas entitled to elect must-carry status) must also follow detailed procedures to notify an MVPD of changes to the station’s carriage election. For details as to the information that must be provided, see the FCC’s Public Notice released this week.
- The FCC released the final cost catalog for reimbursement of expenses associated with C-Band earth station transitions that result from portions of the C-Band being repurposed for 5-G wireless uses. Many radio and TV stations receiving satellite-delivered programming are affected. The FCC also announced an August 31 deadline for electing a lump sum reimbursement payment (and the format for that election). (Public Notice)
- The Department of Justice’s Antitrust Division held a two-day music licensing workshop, bringing together interested parties, including representatives from the broadcast industry and from the performing rights organizations, as well as songwriters, music publishers, and economists. These parties discussed the ASCAP and BMI consent decrees, public performance licensing, and general music licensing issues. (Assistant Attorney General Makan Delrahim’s Opening Remarks)(Video and transcripts of the sessions will be made available on the DOJ’s website for this workshop when they are available).
- We posted to the Broadcast Law Blog our monthly feature looking at important regulatory dates in the month ahead. Visit the blog to read about the August dates to watch, including license renewals, EEO reporting, the FCC Open Meeting, and Broadcast Internet rulemaking comments – and an alert to watch for the details that should be coming soon on the annual regulatory fees due in September. (Broadcast Law Blog)
- FCC Commissioner Michael O’Rielly appeared virtually at The Media Institute’s Communications Forum luncheon series where he discussed his views on media regulation and modernization, Next Generation TV, diversity in media, and free speech issues. (Prepared Remarks) (Video)
July 18, 2020 to July 24, 2020
- The Media Bureau settled investigations into six major radio groups (collectively 1,184 stations) over political file violations. Though negotiated individually, the consent decrees with each company are principally the same: admitting lapses in uploading to their political files records of requests for the purchase of political broadcast time, appointing a compliance offer, and agreeing to develop and follow a compliance plan that includes submitting periodic proof-of-compliance reports to the Commission. Be sure the people in your operation who handle political advertising are aware of and follow all FCC rules (good places to start are the WBK Political Advertising Guide and Broadcast Law Blog political advertising articles, including this article from Friday summarizing the political file rules). (News Release) (Consent Decrees)
- The FCC is upgrading its online payment interface and infrastructure, to comply with the Department of Treasury’s pay.gov requirements. The upgrades will give users more control over payments and financial standing with the Commission and better visibility into their payment history. Expect to see these changes rolling out throughout the summer and fall. (Public Notice)
- Commissioner Michael O’Rielly’s nomination for another five-year term advanced out of the Senate Commerce Committee and moves to the full Senate for consideration. (O’Rielly Statement)
- Communications Daily newsletter reported that the FCC staff who are currently teleworking will be permitted to do so into 2021 to provide more flexibility given the uncertain nature of the pandemic, and the move to the new FCC headquarters will be delayed at least through September. Early in the pandemic, we wrote about how the move to remote work was not expected to cause much disruption to the routine regulatory activities of the Commission and, now a few months later, that still seems to be the case. Where disruptions may continue to occur are to activities that require a physical presence at headquarters—like auctions. We wrote in March about the indefinite delay of an FM auction.
July 11, 2020 to July 17, 2020
- The Media Bureau reminded broadcasters that July 13, 2021—the hard deadline for LPTV stations and TV translators to transition to digital—is one year away. Stations that have not yet constructed a digital facility must cease analog television operations no later than July 13, 2021 and remain silent until construction is completed. The Public Notice details the steps stations must take if they may not meet the deadline due to delays with obtaining zoning or other approvals, inability to obtain equipment, financial hardship, the need to modify their current permits for digital operations, and similar constraints. (Public Notice) (Broadcast Law Blog)
- The FCC issued a reminder that cable and satellite TV operators must, after July 31, 2020, deliver certain notices to TV stations by email. This rule change syncs with the FCC’s requirement that TV broadcasters post to their public files, by July 31, 2020, an email address to receive notices from cable and satellite operators relating to carriage matters including must-carry and retransmission consent elections. (Public Notice) (Report and Order) (Broadcast Law Blog)
- Clarifications and rule changes regarding Next Generation TV (ATSC 3.0), that were released in June, become effective on August 17. The FCC provided additional guidance on waivers (“No Viable Local Simulcasting Partner” and “’Reasonable Efforts’ to Preserve Service”) of the local simulcasting rules to broadcasters deploying Next Gen TV, declined to allow the use of vacant broadcast channels for Next Gen TV deployment, and clarified that the “significantly viewed” status of a Next Gen TV station will not change if it moves its ATSC 1.0 simulcast channel to a host facility. (Federal Register) (Broadcast Law Blog)
- The Media Bureau set aside a grant of consent to assign an FM license and remanded the assignment application to the Bureau for further proceedings after learning more about the proposed assignor’s criminal conviction. This is a good reminder that the FCC can—and will—consider even non-FCC-related wrongdoing when evaluating applications, and generally it will not allow a person with character issues to profit from the sale of a broadcast station. (Order)
- Eighteen radio stations in Indiana, Kentucky, and Tennessee were warned that their licenses will expire if they do not file license renewal applications by midnight on August 1, 2020. Stations in these three states were required to file applications for license renewal by April 1, 2020 for terms expiring on August 1, 2020, and these stations did not meet the required deadline. This is a good reminder to check the date that your license renewal application is due and remember to timely file that application. (Public Notice)
- Two “Broadcast Internet” items were published in the Federal Register:
- Item #1, a Declaratory Ruling) makes clear that television spectrum leased for datacasting does not trigger FCC multiple ownership issues.
- Item #2, a Notice of Proposed RuleMaking, seeks comment on the industry’s ideas for uses of the datacasting potential of ATSC 3.0, what the FCC has termed the Broadcast Internet, and what regulatory barriers exist to deployment of new services. Comments and reply comments are due by August 17 and August 31 respectively.
(Broadcast Law Blog on Broadcast Internet)
- Chairman Ajit Pai announced the items the Commission will consider at its August 6 Open Meeting. Two items relevant to broadcasters made it to the agenda. (Blog) (Tentative Agenda and Draft Items)
- The Commission will vote on an order to eliminate the radio duplication rule for AM stations, while retaining the rule for FM stations. The Chairman notes that the realities of the marketplace and technical challenges faced by AM broadcasters point to elimination of the rule. The current rule prohibits a radio station in one service (either AM or FM) from duplicating more than 25% of the weekly programming of another station in the same service, if there is more than 50% overlap of the principal community contour of either of the stations. We wrote about this proposal here. (draft Report and Order)
- The second item to be voted is an attempt to clear what many might consider “regulatory underbrush” by eliminating a rule that requires a broadcaster who owns a unique tower site to share that site with competing local stations. The Commission believes there has never been a case where there was never a case where this rule was used as there was never a showing that a site was unique and, as no broadcast licensees submitted comments during the rulemaking, it plans to abolish the rule. (draft Report and Order)
- We wrote on the blog about some issues that businesses of many stripes should consider as more of normal life shifts online, namely music licensing and unlicensed use of spectrum. Music license holders need to review carefully the licenses they hold to be sure that the new activities they are involved in due to the pandemic, including conducting business and other public gatherings on ZOOM and similar platforms, are covered by the rights they hold. Similarly, businesses that have shifted to serving customers outdoors need to be mindful of their spectrum use (particularly regarding unlicensed low power FM broadcasts) and not run afoul of the FCC’s permitted uses. You may wish to share our blog post with your advertisers and clients that are dealing with the concerns we discuss in the article. (Broadcast Law Blog)
- The FCC took a victory lap now that the 39-month post-incentive auction repacking of the television band has come to a close. In Chairman Ajit Pai’s remarks before the American Consumer Institute Center for Citizen Research and in a news release, the FCC touted the success of the repack and thanked the broadcast and wireless industries, the tower crews, the equipment manufacturers, the radio frequency engineers, and the Commission staff that made the repack possible. Chairman Pai acknowledged the difficulties encountered—and overcome—along the way and how all parties pulled together to accomplish what was once seen as a task tied to an impossible-to-meet deadline. (News Release) (Remarks) (Broadcast Law Blog)
July 4, 2020 – July 10, 2020
- FCC fines against two radio stations serve as a reminder that station managers need to pay close attention to how their staff handles on-air contests. The FCC issued Notices of Apparent Liability for Forfeitures to two Texas licensees for allegedly violating the Commission’s on-air contest rules through a failure to conduct the contest substantially as announced, specifically for unreasonable delays in awarding prizes. Both licensees were hit with several thousand dollars of fines even after settling the matter with the contest winners. Both licensees pointed to human error as the reason for the mistakes, but as the decisions show, that is not an excuse. (El Paso NALF) (Mont Belvieu NALF) (Broadcast Law Blog)
- The FCC’s International Bureau released a preliminary list of C-Band earth stations (those that operate in the 3.7-4.2 GHz band) in the contiguous U.S. that the Bureau has reviewed and said appear to qualify as “incumbent earth stations,” which will be eligible for reimbursement for reasonable costs of changes to their facilities caused by the upcoming repacking of the C-Band. The C-Band will be partially reallocated for use by wireless carriers, requiring changes in many existing earth stations. All broadcasters who have registered earth stations should immediately review this list and act, if necessary – corrections must be submitted to the FCC by July 16, 2020. Instructions for submitting corrections are found in the Public Notice. (Public Notice) (PDF of Preliminary List w/ Explanatory Notes) (Xlsx of Preliminary List) (Broadcast Law Blog)
- The U.S. Copyright Office has extended, until April 15, 2021, the deadline for the decision of the Copyright Royalty Board on rates to be paid to SoundExchange for royalties for the use of sound recordings in non-interactive audio streaming. This extension was because of the delays in the CRB’s trial due to the pandemic. The January 1, 2021 effective date for the new rates, however, remains in place, so any decision released later in 2021 will be retroactive. In January, webcasters and other internet radio operators (including broadcasters who stream their signals) will continue to pay the royalties currently in place, and there will be a mechanism for a true up of the amounts due once the decision on the royalties for 2021-2025 becomes effective. (Copyright Office Extension) (Broadcast Law Blog)
- The Audio Division updated the FM Table of Allotments to reinstate fourteen vacant FM allotments. The allotments were removed from the FM Table because a construction permit and/or license was granted, but are now vacant because of the cancellation of the associated authorizations or the dismissal of long-form auction applications. The reinstated allotments are in California, Colorado, Iowa, Texas, and the U.S. Virgin Islands. These channels will be available for application in an FM auction at some point in the future. (Order)
- Citing the ongoing public health emergency and the decision to not conduct a national EAS test in 2020 (see our article here), the FCC has waived for this year the requirement that broadcasters update their information in the EAS Test Reporting System. (Order)
- Those looking to file hand-carried documents with the FCC will have to permanently update their address book. After temporarily closing the filing window at FCC Headquarters in response to COVID-19, the Commission has now permanently closed that window and will only accept paper filings at 9050 Junction Drive, Annapolis Junction, MD 20701. This change was made to enhance security and in conjunction with the Commission’s future move to its new headquarters. (Public Notice) (See our article here about the FCC’s planned move).
June 27, 2020 – July 3, 2020
- The FCC’s Enforcement Bureau entered into negotiated settlements with two Boston-area pirate radio operators who admitted to illegal operations and agreed to pay civil fines, to dispose of their broadcast equipment and to not commit—or help anyone else commit—acts of radio piracy for twenty years. In one case, the FCC last year initially proposed a fine of $151,005 fine for the illegal operation. After examining the operator’s finances, the Bureau agreed to a $4,000 fine now, with a penalty of $75,000 should the operator violate the law again (Radio Concorde). In the second case, the FCC had proposed a $453,015 fine last year, but agreed to take $5,000 now, with penalty of $225,000 if the operator violates the terms of the consent decree (Radio TeleBoston Consent Decree). Last year, we wrote on the Broadcast Law Blog about the fines initially proposed for these two operators.
- The Enforcement Bureau also issued a Notice of Apparent Liability for $15,000 to an LPFM licensee for violating FCC rules prohibiting non-commercial educational broadcast stations from airing commercial advertisements. The Bureau alleges that more than 1,600 advertisements improperly promoted the products, services, or businesses of at least 14 financial contributors. The Bureau said the announcements were “clearly promotional” by referring to qualitative claims about the underwriters and their products, by providing price information or an overly extensive list of the products or services provided by the companies, or by providing underwriting acknowledgments that were more than 30 seconds long. Noncommercial licensees looking to make sure their announcements comply with FCC rules should read the full FCC decision, which includes the text of the prohibited announcements. (Notice of Apparent Liability). Look for more on this decision next week in the Broadcast Law Blog.
- The FCC this week told its staff that it will not be returning to the building that has been its headquarters for the last 20 years and that they will continue to telework until at least August 27, when the move to the new headquarters building should be complete. See the Broadcast Law Blog for more details on the FCC’s move.
June 20, 2020 – June 26, 2020
- FEMA announced that it has canceled the 2020 test of the Integrated Public Alert and Warning System (IPAWS), which is the technical infrastructure that delivers EAS messages to radio and TV stations. FEMA noted the “unusual circumstances and working conditions” brought on by the pandemic and acknowledged that post-test reporting would place additional burdens on station personnel already stretched thin to keep their operations on the air. (Broadcast Law Blog) (News Release)
- Through a Public Notice, the FCC announced July 13 as the effective date for certain technical rules for LPFM stations. Though some of the new rules, like changes to the waiver process regarding interference between Channel 6 TV stations and noncommercial FM stations operating on the reserved band and use by LPFM stations of FM boosters become effective next month, other rules, like changes regarding the use of directional antennas and a revision to the definition of a minor change will not be effective until a later date, as yet unannounced. See the Broadcast Law Blog post here for more detail. (Public Notice) (Report and Order)
- The FCC announced in April that, in light of the shifting economic situation facing many broadcast advertisers, it would allow stations to air certain PSAs, using time donated by commercial entities to organizations involved in the pandemic relief effort, without identifying the commercial entities paying for the time as would otherwise be required by the sponsorship identification rules (see our Broadcast Law Blog article on that decision). The waiver was to expire on June 30, but this week it was extended through August 31, 2020. (Order)
- The FCC denied an Application for Review submitted by a West Virginia LPTV operator making clear that the Communications Act and FCC rules do not require mandatory carriage of LPTV stations on satellite television systems. (Memorandum Opinion and Order)
- In a reminder that stations must file an application whenever there is a change in control of a broadcast station, even one caused by the death of a controlling shareholder, the Commission upheld the Media Bureau’s decision to dismiss an application for license renewal of a Mississippi FM station because it had failed to request such approval, which effectively terminated its right to operate. (Order on Reconsideration)
- Comments were due this week in the FCC’s video description proceeding. Video description refers to the provision on a subchannel of spoken narration describing what is happening on screen in TV programming to aid blind or visually impaired persons. The Commission sought comment on expanding the video description rules to require more TV stations to provide this service. In the first round of comments filed this week, the National Association of Broadcasters urged the Commission to delay the effective date of the proposed expansion of the video description requirements by 9 months (from January 1, 2021 to October 1, 2021). NAB cites the difficulty for stations that are already deep into budgeting for 2021 to accommodate this new financial outlay, especially as many stations are trying to recover from the economic downturn brought on by the pandemic. (MB Docket 11-43) (Broadcast Law Blog)
- The FCC dismissed an application to deliver Chinese programming from a studio in the US to a Mexican station which places a signal back into the United States. Federal law (Section 325(c) of the Communications Act) requires FCC approval for US-produced programming to be exported to a foreign station with significant US coverage. This procedural decision suggests that all parties producing the programming need to be co-applicants. (News Release) (Order)
- The five FCC Commissioners visited Capitol Hill to participate in a Senate Commerce Committee oversight hearing. The statements, questions and answers focused mostly on non-broadcast matters, but the Commissioners reiterated their support for press freedom, discussed Broadcast Internet services, the C4 radio station class and the minority tax certificate. (Commissioner Prepared Statements and Archived Video)
June 13, 2020 – June 19, 2020
- The FCC released a Second Report and Order and Order on Reconsideration regarding Next Gen TV (ATSC 3.0). The Report and Order provides guidance on how the Commission will evaluate petitions for waiver of the local simulcasting rules for broadcasters deploying ATSC 3.0 who cannot find a partner station to broadcast its signal in the current transmission standard, declines to allow broadcasters to use vacant in-band channels for voluntary ATSC 3.0 deployment, and clarifies that the “significantly viewed” status of an ATSC 3.0 station will not change when that station moves its ATSC 1.0 simulcast channel to a host facility. The Order on Reconsideration denied petitions challenging aspects of the Commission’s 2017 Next Gen TV order, including issues dealing with the local simulcast requirement, the application of retransmission consent rules, patent licensing issues, and sunset of the obligation to use the current transmission standard for ATSC 3.0 (that sunset allowing the new transmission mode to evolve over time without the need for FCC action). (Second Report and Order and Order on Reconsideration)
- The Commission granted a waiver to a Jacksonville, Florida TV station, allowing it to complete its post-incentive auction move to a new channel by September 8, beyond the current July 3 end of Phase 10 when all TV stations were to have moved to their post-transition facilities. Because of issues related to COVID-19 and other technical matters, the Commission granted this extension and authorized its Media Bureau to grant similar relief to other stations suffering from similar delays (Order)
- Two members of Congress wrote a letter to FCC Chairman Ajit Pai urging the Commission to “halt any increases to annual regulatory fees due in 2020 for broadcast licensees.” Reps. Ann McLane Kuster (D-NH) and Chris Stewart (R-UT) wrote in their letter that this action requires no congressional action and would help alleviate some of the economic hardship suffered by stations due to the COVID-19 pandemic. The Members noted that broadcasters are a critical component of the pandemic response by, among other things, informing and educating Americans about public health guidance. (Letter). The NAB, as well as a group of state broadcast associations, also filed comments at the FCC opposing the FCC’s proposal to increase broadcast regulatory fees, arguing that broadcasters’ fees should not increase in relation to the fees paid by other industries regulated by the FCC, particularly as broadcasters have been so hard hit by the economic fallout of the pandemic. (NAB Comments and State Association Comments)
- Last Monday, the reply comment period closed in the FCC’s Significant Viewing proceeding. Designation as a significantly viewed station has implications for determining whether a cable or satellite TV system will carry a TV station in an area that is not part of its home market. For an in-depth look at what the FCC seeks to resolve through this proceeding, see this post at the Broadcast Law Blog. (Reply Comments)
- On Tuesday, the Senate Commerce Committee held a hearing considering the re-nomination of FCC Commissioner Michael O’Rielly to a new five-year term. The Commissioner, in response to a question, noted that he believes the FCC’s and DOJ’s current media competition rules are “problematic,” and that he hopes to work with DOJ to shift its narrow view of the competitive marketplace where it does not recognize that broadcasters don’t just compete with other broadcasters, but instead directly compete with a wide range of other media companies, including digital media outlets. (Opening Statement and Archived Video)(see Broadcast Law Blog articles here and here on the competition between broadcasters and other media and how the assessment of the definition of the marketplace is important to the evaluation of broadcast ownership limits)
- The Enforcement Bureau acted last week against two pirate radio operations, one in Pennsylvania and one in Arkansas. These actions are reminders that broadcast operators must hold a valid license to operate and that the FCC will pursue illegal operations.
- In the first case, the Enforcement Bureau shut down a station that was broadcasting on 90.7 MHz and 91.5 MHz from Stroudsburg, Pennsylvania. The operator, as part of a consent decree, admitted to the unauthorized operation of the station, agreed to pay a $1,500 civil penalty, and agreed to not operate an unauthorized station in the future. The PIRATE Act, signed into law in early 2020, gives the FCC authority to fine pirate radio operators up to $100,000 per violation (with a $2 million cap), but, in this case, the operator claimed an economic hardship, which persuaded the FCC to lower the fine to $1,500. (Order and Consent Decree)
- In the second case, the Enforcement Bureau issued a $10,000 fine to an operator for the unauthorized operation of a radio station on 103.1 MHz in Alma, Arkansas. (Forfeiture Order)
- The US Court of Appeals upheld a lower court order throwing out a rule adopted by the Department of Health and Human Services that would have required all TV advertising for prescription drugs to state the wholesale price of the drug. Based on these court decisions, this additional information will not need to be added to the disclaimers that these ads already contain. (Court Decision)(Broadcast Law Blog article on the decision)
June 6, 2020 – June 12, 2020
- The FCC on June 9 held an Open Meeting where it unanimously adopted a Declaratory Ruling and Notice of Proposed Rulemaking regarding Broadcast Internet services. The Commission defines Broadcast Internet broadly as IP-based services delivered over broadcast TV spectrum. The Declaratory Ruling clarifies that the lease by a party of ATSC 3.0 spectrum on multiple local TV stations for Broadcast Internet services does not count as an attributable interest under the current TV ownership rules as would an LMA or similar programming agreement on multiple stations. The Notice of Proposed Rulemaking seeks comment on how industry foresees using Broadcast Internet services and what FCC rule change could encourage innovation and use of these services. Comments and reply comments on the Commission’s proposals will be due 30 days and 45 days, respectively, after publication in the Federal Register. (News Release) (Declaratory Ruling and Notice of Proposed Rulemaking) (Broadcast Law Blog)
- Thirty-five radio stations received the news last week that they were randomly selected by the Enforcement Bureau for an audit of their compliance with the Equal Employment Opportunity rules. These periodic audits are good reminders to broadcasters that the Enforcement Bureau sees EEO compliance as a priority and that the Bureau can sanction stations for non-compliance. Even if your station was not selected to be audited, you can still use the publicly-released audit letter as a checklist to make sure your station is complying with all applicable EEO rules. The FCC audits about 5% of stations each year, so your time may come soon. (Public Notice) (Broadcast Law Blog)
- New technical rules for low power FM stations and the relation between reserved-band noncommercial FM stations and TV channel 6 were published last week in the Federal Register, setting the effective date for many of the new rules. New rules, including permission for LPFM stations to use boosters and the waiver process for NCE stations seeking a change in facilities near a Channel 6 TV station, become effective July 13. Other new rules, including the broadening of the definition “minor change” and the expansion of the permissible use of directional antennas by LPFMs, require additional government action and likely will not be effective for several months. (Federal Register) (Broadcast Law Blog)
May 23, 2020 – May 29, 2020
- The comment cycle was set in the FCC’s annual regulatory fee proceeding. On or before June 12, the Commission wants to hear from interested parties about the fees that it proposes to impose on the companies that it regulates – including broadcasters. The FCC proposes to complete the implementation of its change to computing fees for television stations based on population served rather than on the market in which they operate, a move it began last year (see our Broadcast Law Blog article here on the FCC decision last year to initiate the change in the way TV fees are allocated). The FCC also asks for ideas about how the Commission can extend fee relief to stations suffering COVID-19-related financial hardship. Reply comments are due on or before June 29. (Notice of Proposed Rulemaking)
- FCC Chairman Ajit Pai and Chris Krebs, director of the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, wrote to the nation’s governors asking them to, among other things, declare radio and TV broadcasters as essential to COVID-19 response efforts and to afford broadcasters all appropriate resources and access. (News Release)
- In a good reminder to broadcasters that transactions involving the sale or transfer of control of a broadcast station must be authorized in advance by the FCC, the Media Bureau entered into a consent decree with two companies that sold an FM station and FM translator without getting approval from the Commission. The parties mistakenly believed filing license renewal applications that reflected the assignment was sufficient approval. The consent decree includes an $8,000 penalty. (Consent Decree). See this article on past cases where the FCC has warned that even transactions among related companies that change the legal form of ownership of a broadcast station without changing the ultimate control need prior FCC approval.
- The Commission granted approval to Cumulus Media, Inc. to exceed the Commission’s twenty-five percent foreign ownership threshold. The Commission will allow Cumulus to have up to 100 percent aggregate foreign investment in the company, although additional approvals will be needed if any previously unnamed foreign entity acquires 5% or more of the company or if any foreign entity desires to acquire control. (Declaratory Ruling). This decision shows the process that the FCC must go through to approve foreign ownership above the 25% threshold and the analysis needed to issue such approvals. See our articles here and here about the evolving FCC policy in this area.
- Anyone looking to hand deliver documents to the FCC needs to learn a new address, and it is not, as you might expect, the address of the FCC’s future headquarters. Deliveries by hand must now be brought to 9050 Junction Drive, Annapolis Junction, MD 20701. The address change is to enhance security screening and is part of winding down operations at the current 12th Street headquarters. (Order)
May 30, 2020 – June 5, 2020
- As protests and civil unrest over George Floyd’s killing roiled cities across the country, FCC Chairman Ajit Pai commended local broadcasters for their coverage of the events and their willingness to put themselves at personal risk to share these stories with America (News Release). Commissioner Starks called for more diversity in media ownership (News Release). We explained the minority tax certificate on our blog here. The tax certificate has historically been one of the most effective means of promoting diversity in broadcast ownership.
- The FCC issued a Public Notice setting out proposed lump sum payments for reimbursement of the costs for the relocation of authorized C-Band satellite earth stations following the repurposing of some of that band for 5-G wireless uses. The notice is scheduled to be published in the Federal Register on Monday, setting a June 15 comment deadline on the proposed payments.
- The Media Bureau reminded LPTV and TV translator stations operating on channels 38, 44, 45 and 46 that they must cease operations no later than 11:59 pm local time on July 13, 2020. The July 13, 2020 date for cessation of operations is a hard deadline, tied to the end of the post-Incentive Auction transition period. (Public Notice)
- The Media Bureau opened a settlement window running through July 31 for applicants for new or modified LPTV stations or TV translators, originally filed in 2009, that had filed for new channels or new technical facilities because use of their old channels was preempted by the incentive auction repack. Where more than one applicant applied for the same new channel in the same area, those applicants can file to make engineering changes to their applications (including, if no other solutions are possible, changing channels yet again) or to reach other settlements (including channel sharing) to resolve their conflicts by the July 31 deadline. (Public Notice)(see our summary of both LPTV items on the Broadcast Law Blog).
- The FCC released a list of 515 open proceedings from across its bureaus that it plans to close due to dormancy. A proceeding makes the proposed closure list when it requires no more action, no more action is planned, or no filings in the docket have been made for several years. Interested parties can review the list and submit comments urging the Commission to either keep open or close permanently items that appear on the list. (Public Notice)
- The Media Bureau issued a decision reviewing Section 312(g) of the Communications Act which automatically cancels a station’s license if it has been silent for 12 months, absent special circumstances. The decision is particularly useful in explaining the special circumstances that can justify the preservation of a license, and the way that the FCC assesses the period that a station was silent. (Letter)
- Two Notices of Apparent Liability that came out of the Commission this week serve as good reminders during this license renewal cycle that you do, in fact, have to file an application to renew your license.
- In one case, a Virginia AM station was hit with a $7,000 fine for failing to file for license renewal and then operating the station after its FCC authorization had expired. In the end, the Commission levied the fine, but also found that the station’s license should be renewed for an abbreviated two-year license term instead of the typical eight-year term. (Notice of Apparent Liability)
- In a second case, a Florida low power FM failed file an application for license renewal on January 27, 2020 that was due on or before October 1, 2019, without providing an explanation for the late filing. The Commission levied a $1,500 fine against the station and will consider the license renewal application at a later time. (Notice of Apparently Liability)
May 16, 2020 – May 22, 2020
- FCC released the agenda for its June 9 Open Meeting announcing that it will consider an item of interest to TV broadcasters planning to transition to ATSC 3.0, the next generation television transmission standard. The item deals with what the FCC is calling “Broadcast Internet services,” new IP based services compatible with other Internet devices that will allow TV broadcasters to monetize their ATSC 3.0 spectrum in new ways. If adopted at the June meeting, the item, which we summarized on the Broadcast Law Blog, would do two things:
- Allow a broadcaster to enter into spectrum lease agreements with other companies who offer Broadcast Internet services on the spectrum of several television stations in the same market without triggering the Commission’s attribution or multiple ownership rules.
- Seek comment on ideas for changing the FCC’s rules to further promote the deployment of Broadcast Internet services as part of ATSC 3.0. (draft of the Declaratory Ruling and Notice of Proposed Rulemaking)
- Last week, FCC announced that comments are due by June 22 in the review of its video description rules. Video description refers to an audio channel provided to accompany TV programming giving a narration of what is happening on the screen to aid blind or visually impaired persons. Currently, ABC, CBS, Fox, and NBC stations in the top 60 markets must supply video described programming, but under the FCC’s proposed new rules, those requirements would extend to markets 61 through 100 by January 1, 2021, with ten markets being added in the following four years. More on the proposed rule changes on Broadcast Law Blog. (Public Notice)
May 9, 2020 – May 15, 2020
- New rules were adopted implementing streamlined and standardized public notice obligations associated with various broadcast applications. The revised rules abolish requirements for printed notices in local newspapers and pre-filing announcements for license renewal. (News Release) (Second Report and Order). The effective date of these changes will be announced later, although in a separate Order, the FCC immediately waived the requirement for license renewal pre-filing announcements for all future renewal windows. The requirements for license renewal post-filing announcements are unchanged
- Amounts of the annual regulatory fees to be paid in September by broadcasters and other FCC-regulated communications entities were proposed for comment. In addition to asking for comments on the allocation of the fees to be paid, the FCC asks if it can do anything to assist those who pay the fees in light of the current pandemic. While the FCC is required by Congress to collect the regulatory fees, it asks if there are actions it can take while still complying with its statutory obligations, e.g. by allowing some companies to pay their fees over a greater period of time. The FCC also completed the transition of TV fees to a system based on population in a station’s service area instead of the size of the market in which the station operates. It also reduced the fees to be paid by certain VHF television broadcasters. The comment period for the proposed 2020 regulatory fees will be set after the notice is published in the Federal Register. (Report and Order and Notice of Proposed Rulemaking)
- FCC Public Safety and Homeland Security Bureau released its report on the August 7, 2019 test of the broadcast Emergency Alert System. The report set out concerns identified by the test, including issues with the technical quality of some alerts, the monitoring of the proper sources for the alerts, and the lower participation among low power broadcasters (particularly LPFM licensees). However, the Bureau found that the broadcast-based EAS distribution method is largely effective, as the test reached 82.5% of EAS participants. (Report)
- Initial comment period closed in the FCC’s proceeding on Significant Viewing. As we wrote in the Broadcast Law Blog, the proceeding asked, among other things, for comments as to whether the FCC should update its rules for establishing whether a TV station is “significantly viewed” in a market other than the one in which it is located. A designation of significantly viewed status is important for determining whether a cable or satellite system will carry a TV station in areas that are not part of its home market. (Significant Viewing Comments). Reply comments are due by June 15
- Last week, the comment period was set in the FCC’s Distributed Transmission System (“DTS”) proceeding. Comments are due by June 12, reply comments are due by July 13. The notice seeks comment on changes to the FCC’s rules on DTS that could expand and improve the coverage of television stations throughout their service areas as the industry begins to deploy the new ATSC 3.0 television transmission technology. We wrote more about this rulemaking at the Broadcast Law Blog. (Federal Register)
May 2, 2020 to May 8, 2020
- The FCC’s Media Bureau last week made it easier for broadcast stations to rehire employees laid off due to COVID-19-related circumstances by granting relief from the broad outreach EEO requirement otherwise required when filling job vacancies. Licensees may re-hire full-time employees who were laid off without first conducting broadcast recruitment outreach if the employees are re-hired within nine months of the date they were laid off. As the economy hopefully turns around, this partial waiver should help stations ramp up their operations to full strength quicker than they would have been able to absent the waiver. (Order)(Broadcast Law Blog article)
- Sinclair Broadcast Group (“SBG”) agreed to pay a $48 million penalty—the largest penalty ever paid to the FCC by a broadcaster—and adopt a compliance plan to settle investigations into (1) SBG’s lack of disclosure during its failed merger with Tribune Media; (2) its obligation to negotiate retransmission consent agreements in good faith; and (3) sponsorship identification failures on content produced and supplied by SBG to SBG and non-SBG stations. (News Release)
- The FCC released the final agenda for its May 13 Open Meeting, with two items of interest to broadcasters. It is expected that both these items will be adopted before the virtual meeting scheduled for next Wednesday. (Agenda)
- The first would modernize and simplify the public notices broadcasters must provide upon the filing of certain applications. This order, if adopted as drafted, would update many of the public notice requirements, end requirements for newspaper public notice, and abolish required license renewal pre-filing announcements (draft of the Report and Order).
- The second action deals with regulatory fees. The draft order, despite opposition from VHF station licensees, declines to provide any blanket regulatory fee reductions to these stations as the FCC moves fully to television regulatory fees based on the population served by the TV station rather than the size of the market in which the station operates. The same document sets out for comment the proposed annual regulatory fees to be paid in September 2020 by all FCC regulated entities, including radio and TV stations (draft of the Report and Order and Notice of Proposed Rulemaking).
- The Supreme Court granted Prometheus Radio Project more time, until July 21, to file a response to the petitions by the FCC and NAB asking for review of the Third Circuit decision that rolled back the Commission’s 2017 media ownership reforms, including the abolition of the newspaper/broadcast cross-ownership rule. If the request for review is granted, the Supreme Court will take up the case, at the earliest, during its 2021 term. (Time Extension Request)(see this Broadcast Law Blog article for more on the appeal that Prometheus seeks to oppose).
- The comment period closed this week in the FCC’s FM “zonecasting” proceeding. The comments were submitted on a petition for rulemaking filed by GeoBroadcast Solutions, asking the FCC to change its rules to permit FM boosters to allow commercials, news reports or other short content to be dropped into their programming that would be different than the programming on the main station. Under the current rules, FM boosters must retransmit 100% of the programming from their originating station. (FM broadcast booster proceeding filings) (see this Broadcast Law Blog article for more information about the zonecasting proposal, and look for another article early this week summarizing the positions taken in the comments).
- A Wisconsin television station filed a motion to dismiss the lawsuit brought by the President’s reelection committee claiming that an attack ad from the Priorities USA PAC which was broadcast on the station was defamatory. The motion argued that the campaign could not sustain a claim of defamation over an advertisement the station claimed was political speech protected by law including the First Amendment. (Motion to Dismiss – and watch for a summary in the Broadcast Law Blog this week).
April 25, 2020 to May 1, 2020
- The comment period ended in the FCC’s State of the Communications Marketplace Report proceeding. The FCC sought comment on the report to inform its assessment of the communications marketplace that it must deliver to Congress. In addition to the video and audio marketplaces, the report looked at the wireless, broadband, wired telephone, and satellite marketplaces. Reply comments are due by May 28. (Report)
- The FCC Enforcement Bureau issued a Notice of Violation to a Maryland AM station for violating the operating hours authorized by its license. In this case, the station was authorized for daytime operation only (average monthly local sunrise time to average monthly local sunset time) and was observed operating long past 5:15 p.m., which was the average sunset time for the station’s service area in January 2019. Notices of Violation are issued directly by Enforcement Bureau field agents and require a written response. This serves as a good reminder to stations to abide by operating hours authorized by their license. (Notice of Violation)
- In response to a January letter from FCC Commissioner Michael O’Rielly regarding payola practices, Sony Music Entertainment, Warner Music Group, and Universal Music Group submitted written responses that the Commissioner posted to his Twitter feed (Universal’s response will be posted when certain confidential information can be redacted). The record companies said there is nothing to support the allegations of payola and that any pay-to-play arrangements between the companies and radio stations are given the necessary on-air sponsorship identification. We wrote more about this at the Broadcast Law Blog. (@mikeofcc) (Broadcast Law Blog)
- We published to the Broadcast Law Blog our recurring monthly feature that highlights important regulatory dates for broadcasting during the upcoming month. May is a month where there are no regularly scheduled regulatory filings (e.g., no renewals, EEO reports, fee filings, or scheduled public file disclosures). Nevertheless, as always, there are a number of important regulatory dates—and changes in some dates—for May of which broadcasters should be aware. (Broadcast Law Blog)
- The FCC voted to reorganize the Media Bureau by eliminating the Engineering Division and moving the division’s staff and work to the Industry Analysis Division. The Commission believes this reorganization is a more effective use of available resources and should enhance the Bureau’s understanding and analysis of the media industry. (Order)
- In advance of the long-expected (and delayed by COVID-19) move of its Washington, DC headquarters, the FCC adopted a new official seal. Expect to see this new seal adorning FCC materials, websites, and, when it opens, the new headquarters. (Public Notice)
- The FCC Media Bureau settled by consent decree an investigation into the retransmission consent negotiating practices of television stations of a television operator who admitted to violating the good-faith negotiation rules, agreed to pay a $100,000 civil penalty, and adopted a compliance plan to be followed for three years. (Order and Consent Decree). This consent decree follows up on an FCC Media Bureau decision from last year which, though heavily redacted, provides more information on the good faith negotiation standards applicable to retransmission consent agreements.
April 18, 2020 to April 24, 2020
- The Commission held an Open Meeting on April 23 and before and during the meeting acted on three items of interest to broadcasters. The first item was a Report and Order on LPFM stations that expanded the permissible use of directional antennas, expanded the definition of minor change applications, and allowed LPFM stations to operate boosters. The Order deferred to a later proceeding a decision on changing the rules for interference between Channel 6 TV stations and noncommercial FM stations operating on the reserved band (Report and Order – and for highlights of the issues in that Order see our Broadcast Law Blog). The second item was a Notice of Proposed Rulemaking that seeks comment on the possible expansion of television station Video Description obligations (Notice of Proposed Rulemaking). Finally, the FCC adopted a Report and Order and Further Notice of Proposed Rulemaking that opened use of the 6 GHz band to unlicensed wireless devices. This move could impact certain broadcast auxiliaries. (Note: The Report and Order and Further Notice of Proposed Rulemaking has not yet been released – News Release)
- The FCC adopted a much-anticipated clarification of its Political File Order. In the Order, the Commission clarified that its Political File Order is limited to requests for the purchase of broadcast time by issue advertisers whose commercials communicate a message relating to any political matter of national importance, not to requests for the purchase of broadcast time by or on behalf of a legally qualified candidate for public office. Also clarified is the FCC’s intention to apply a standard of reasonableness and good faith decision-making to decisions made by broadcasters in: (1) determining whether, in context, a particular issue ad triggers any disclosure obligations; (2) identifying and disclosing in their online political files the candidates and political matters of national importance that are referenced in each issue ad; and (3) determining when the use of acronyms or other abbreviations in their online political files would be understandable to the general public reviewing the information about issue ads. (Order on Reconsideration) (Broadcast Law Blog)
- The FCC released a Public Notice announcing the procedures for the 2020-23 television license renewal cycle. The Notice covers familiar territory like reminding licensees of their online public file, local public notice, and EEO report filing obligations. The Commission notes that Schedule 303-S largely remains the same as it has in the past but includes changes to the Children’s TV Programming and ownership questions. (Public Notice) (Broadcast Law Blog)
- The Commission released the agenda for the May 13 Open Meeting, with two items for consideration that will interest broadcasters. The first is a media modernization item that proposes to modernize and simplify the written and on-air public notices broadcasters must provide upon the filing of certain applications. (Second Report and Order) The second deals with 2020 regulatory fees. In the draft FCC action, the Commission would not adopt proposals by VHF licensees to reduce their regulatory fees to account for signal limitations and degradation. The Commission also seeks comment on its proposal to assess 2020 fees for full-power TV stations based on the population covered by the station’s contour and on the other regulatory fees it would collect later this year. Stations can find their proposed fee in Appendix G. (Report and Order and Notice of Proposed Rulemaking)
- The Media Bureau announced an update to the commercial radio station license renewal form adding a question that asks stations to certify compliance with the Commission’s ownership rules in section 73.3555. This update discards an interim procedure put in place last year after the Third Circuit Court of Appeals rejected the FCC’s ownership rule changes. (Public Notice) (Broadcast Law Blog)
- The chief of the FCC’s Public Safety and Homeland Security Bureau emailed EAS participants a reminder to secure their EAS devices, warning that these devices are vulnerable to hacking if not properly secured. The Notice refers all EAS Participants to review best practices for securing their EAS systems contained in the 2015 Communications Security, Reliability and Interoperability Council IV, Working Group 3, Emergency Alert System (EAS) Subcommittee, Final Report, and in the 2014 Communications Security, Reliability and Interoperability Council IV, Working Group 3, Emergency Alert System (EAS) Subcommittee, Initial Report.
- For more on dealing with the FCC during the pandemic, and on the many actions that the FCC has taken during the last 6 weeks – both those dealing with the current crisis and decisions made in processing its normal workload relating to broadcasting – check out the webinar which we presented on Tuesday to broadcasters across the country, available by clicking on this link.
April 11, 2020 to April 17, 2020
- The FCC and the National Association of Broadcasters with a group of industry intervenors both filed petitions for writs of certiorari in Prometheus Radio Project v. FCC. (News Release) asking the Court to review the judgment of the Third Circuit Court of Appeals that forced the FCC to abandon its 2017 media ownership reforms and return to its prior rules. For more on the Third Circuit decisions, see our Broadcast Law Blog articles here and here.
- FCC to hold its monthly Open Meeting by teleconference on April 23—final agenda released. (Agenda). Issues of importance to broadcasters include changes to the rules on LPFM stations and interference between Channel 6 TV stations and noncommercial FM stations operating on the reserved band (FCC Draft Order – and for highlights of the issues in that order see our Broadcast Law Blog); a Notice of Proposed Rulemaking on the possible expansion of television station Video Description obligations (FCC Draft Order); and a Draft Order and Notice of Further Rulemaking dealing with the use of the 6 mHz band for unlicensed wireless which could impact certain broadcast auxiliaries (FCC Draft Order).
- Comment (May 14, 2020) and reply comment (June 15, 2020) dates were set for comments on the FCC’s Notice of Proposed Rulemaking on Significant Viewing – a rulemaking that addresses important issues that could impact carriage of television stations by cable systems and satellite television systems. (Public Notice) You can read more about some of the specific questions asked in the NPRM at the Broadcast Law Blog. (Broadcast Law Blog)
- FCC to consider “zonecasting” for FM stations—a proposal to use boosters to allow FM stations to target different parts of their service areas with different news or advertising. Initial comments due May 4. (Broadcast Law Blog)
- The FCC’s Audio Division released a decision resolving a translator interference complaint (Decision), one of the first cases interpreting the new rules for the resolution of such complaints (see our Broadcast Law Blog for more information on those interference resolution standards).
- Chairman Pai gave remarks to the Interamerican Development Bank and the International Institute of Communications Online Workshop titled “Regulation In Times of Pandemics: Lessons For The Future.” In those remarks, the Chairman noted that broadcasters have used their platform to encourage social distancing, expanded news coverage of the pandemic to help Americans stay safe and healthy, and raised funds in their communities to help those in need. (Remarks)