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.
May 15 to May 19, 2023
- On May 17, the AM For Every Vehicle Act was introduced in both the US Senate and the House of Representatives, proposing to mandate that carmakers include AM radio, as a standard feature, in all cars sold in the United States. The mandate would take effect after rules are issued by National Highway Traffic Safety Administration, which would be required within one year of the bill’s passage. For more details on this proposed legislation, see this article on our Broadcast Law Blog.
- The FCC released a Report and Order and Notice of Proposed Rulemaking regarding the 2023 FCC annual regulatory fees to be paid in September by broadcasters and other FCC-regulated entities. Regulatory fees reimburse the government for the cost of operating the FCC and are allocated based on how many FCC staff employees work on matters relating to a particular industry. The FCC tentatively concluded that certain employees whose costs had in the past been included in broadcasting’s allocation do not in fact have any role in regulating broadcasting – so their costs have been reallocated to other regulated industries. That reallocation has resulted in a proposed decrease in the 2023 fees to be paid by broadcasters. For example, the FCC proposes to reduce the per population fee used to set the amount TV stations owe by approximately 11.5% from last year. The FCC also included a more graduated schedule for radio fees, further reducing fees on some of the smallest radio stations. For more on the fee proposal, see our recent article on our Blog. Comments on the proposed fees will be due June 14, 2023, with reply comments due June 29, 2023. Expect a final decision on the fees around Labor Day so that the fees can be paid before the October 1 start of the government’s new fiscal year.
- The FCC’s Media Bureau released a Public Notice announcing that it was repealing the COVID-related guidance released in March 2020 that allowed broadcasters and local cable operators to offer free advertising time to advertisers and other local businesses without those spots being considered in calculating the Lowest Unit Charge accorded to candidates in “political windows,” 45 days before a primary and 60 days before a general election. During the early days of the COVID emergency, broadcasters used free advertising schedules, not directly tied to any advertising contract, to fill gaps in their advertising schedules and to promote businesses who were still operating. With the pandemic emergency now declared over by the federal government, the FCC believes that this specific accommodation can come to an end. For more information on this decision, see our article here.
- The FCC reinstated the license of an FM translator in Vermont, overturning a decision of the Audio Division of the FCC’s Media Bureau which had canceled the license under Section 312(g) of the Communications Act. That section requires automatic termination of a broadcast license if a station is silent for more than 12 consecutive months. The decision was significant in that it accepted the licensee’s sworn statements attesting to the station’s operation within the one-year period as adequate evidence that the station had been operating within one year of going silent, even without documentary evidence of electric bills, logs, recordings, and similar items that the Audio Division’s decision had indicated was necessary. The Commission also concluded that the translator’s operation at an apparent variance from its authorized facilities, but at its authorized transmitter site, would not subject it to automatic license cancellation under Section 312(g), distinguishing past cases where licenses were cancelled when stations resumed operations from an unauthorized transmitter site. The Commission did direct the Bureau to consider appropriate enforcement action (e.g., a possible fine) for the licensee’s failure to seek authorization to operate at variance from its licensed facilities
- The FCC continues its enforcement actions against pirate radio operations, with the FCC’s San Francisco Office issuing a Notice of Illegal Pirate Radio Broadcasting about an unlicensed FM broadcast station in the vicinity of Wasilla, Alaska. The FCC notified the owner of the property from which the pirate was operating that the FCC could issue a fine of up to $2,149,155 if the pirate radio broadcasting continued. The FCC gave the property owner 10 days to respond that they are no longer permitting pirate radio broadcasting on their property, and to identify the individual(s) who were engaging in the unauthorized broadcasting.
- The FCC’s Media Bureau and Office of Managing Director issued an Order to Pay or Show Cause why an FM station license should not be cancelled for failure to pay its 2013, 2014, and 2015 regulatory fees. Consistent with the FCC’s prior practice, the Order gives the licensee 60 days to either submit evidence that all debts have been paid or show cause why the payment should be waived or deferred, or its license will be revoked.
- The Supreme Court issued opinions on two subjects of interest to media companies. In two cases, it avoided addressing the scope of Section 230 of the Communications Decency Act, which protects online platforms from legal liability for content created by others and posted to their sites. These two cases, seeking to hold Twitter and YouTube liable for postings by terrorist organizations, were thought to have the potential to limit the insulating effect of Section 230. As we’ve noted on our blog (see, for instance, our articles here and here), some have called for a narrower interpretation of the liability shield afforded by Section 230. In these decisions, the Court instead found that the claims could be rejected on other grounds, avoiding the Section 230 issue.
May 8 to May 12, 2023
- The FCC’s Enforcement Bureau released a Public Notice announcing that EEO Mid-Term Reviews for radio and television stations will start with review of the Annual EEO Public File Reports filed by radio stations in DC, Maryland, West Virginia, and Virginia. Reports for those stations are due to be uploaded to each station’s online public inspection file by June 1, 2023, the fourth anniversary of the June 1, 2019 filing deadline for those stations’ last license renewal application. On a rolling basis through April 1, 2027, stations licensed in all other states will be subject to the Mid-Term Review on the fourth anniversary of the filing deadline for their most recent license renewal application. In the Mid-Term Review, the FCC will review the two most recent Annual EEO Public File Reports. Mid-Term Review is only required for radio employment units with 11 or more full-time employees. Thus, radio stations must now indicate when they upload their annual EEO Public File Report whether their employment unit (a commonly controlled cluster of stations in the same geographic area that have at least one common employee) has 11 or more full-time employees, using a checkbox now included in the EEO folder in the online public file. All TV stations with 5 or more full-time employees will undergo a Mid-Term review. As only station with 5 or more full-time employees need to complete the Annual EEO Public File Report, the question about the number of employees is not necessary for TV. The upload of the public file report by a TV station means that the mid-term review of its EEO performance is required.
- The FCC recently issued a Report and Order updating its Part 74 rules for LPTV and TV translator stations, to reflect their termination of analog operations as of July 13, 2021. These rule changes, which do not materially affect the basic regulatory obligations of LPTV or TV translators now operating with digital facilities, were published in the Federal Register this week, meaning that most will be effective on June 12, 2023. The June 12 effective date does not apply to rules that change paperwork obligations, as these changes must undergo a Paperwork Reduction Act Review and will become effective after the FCC publishes notice of the Office of Management and Budget’s approval of those changes in a subsequent Federal Register notice.
- The Media Bureau issued a Notice of Apparent Liability proposing a $16,000 fine for a licensee’s alleged unauthorized operation of an LPTV station in Pittsburgh. The fine stemmed from the 2019 displacement of the station from Channel 31 to Channel 10. Between October 2019 and March 2023, the station operated on Channel 31 with reduced power to prevent co-channel interference to a full-power TV station without Special Temporary Authority (STA) to do so. The fine was for three and a half years of unauthorized operations as the licensee failed to request an STA to operate at reduced power on Channel 31 during the pendency of its displacement application. Because of prior rule violations by the licensee, the FCC declined to lower the proposed fine to the base amount – which would have been $13,000 ($3,000 for the failure to file the required STA request and $10,000 for the station’s unauthorized operations).
- The Media Bureau issued a fine in the amount of $750 to the operator of a TV translator station in Washington state for its failure to timely file an application for a “license to cover” after the station was constructed pursuant to its construction permit, and for its subsequent unauthorized operations after the station’s construction permit had expired. Once a station is constructed pursuant to a construction permit, the permittee must file a “license to cover” informing the FCC of the details of the completed construction.
- The Enforcement Bureau issued a $15,000 fine to an LPFM operator in Colorado for broadcasting promotional announcements for for-profit entities in exchange for consideration. The Bureau concluded that over a period of 3 months in 2018 alone, the permittee aired more than 1,800 commercial announcements on its LPFM station. LPFM stations are licensed as noncommercial broadcasters who, pursuant to Section 399b of the Communications Act and certain Commission rules, cannot run paid promotional announcements for for-profit entities. The Bureau declined to reduce the fine as the licensee did not submit sufficient evidence of an inability to pay the proposed amount. The fine would be about 7% of the station’s annual gross revenue which, under Commission precedent, is not excessive.
- Two Congressmen wrote a letter to the Administrator of the Federal Emergency Management Agency asking FEMA to detail the harm to the EAS system that would result if AM radios are not include in automobiles. This is part of the increasing Congressional concern over the plans of certain manufacturers to remove AM radios from new cars. The Washington Post published a multi-page article, starting on the front page of its Sunday paper, on the issue of AM in cars, focusing on the importance of the local service provided for over a century by WTAW(AM) in Bryan-College Station, Texas.
- The FCC’s Items on Circulation list (which lists draft orders circulating among the Commissioners for approval) this week removed a recently added item titled “Review of the Commission’s Assessment and Collection of Regulatory Fees; Amendment and Collection of Regulatory Fees for Fiscal Year 2023, Report and Order and Notice of Proposed Rulemaking.” This likely means that we will see a public release early in the coming week of the Commission’s proposal for the annual regulatory fees to be paid by broadcasters in August or September. The annual fees are paid by all entities that the FCC regulates to reimburse the government for the cost of FCC operations. Whether the amount of the fees allocated to broadcasters is fair has been the subject of significant debate over the last year.
May 1 to May 5, 2023
- The FCC continues to consider its Second Notice of Proposed Rulemaking seeking comment on proposals to enhance the FCC’s requirements that each broadcaster verify that any program time sold to third parties (or any pre-produced programming received for free) does not come from a “foreign government entity,” i.e., a foreign government or one of its agents (see our articles here and here). Among other things, the FCC’s Second Notice proposes the adoption of a detailed form that any buyer of program time on a station would need to sign so that the licensee can certify whether the buyer is or is not a “foreign governmental entity.” NAB, in tandem with several broadcasters, recently submitted an ex parte filing highlighting the burden imposed by the detailed form which could intimidate buyers of broadcast time, especially local buyers like churches and community groups who may want to buy blocks of time. The NAB stated that “[t]he burden of the rules falls almost entirely on broadcasters that have never aired – and will never air – foreign propaganda.” NAB thus urges the FCC to lighten this burden by clarifying that the foreign sponsorship identification diligence requirements do not apply to advertisements for commercial products and/or services of any length or format or to leases involving religious programming or locally produced and distributed programming. Also, citing the FCC’s less regulatory approach for ensuring nondiscrimination in advertising sales agreements, NAB et al. ask the FCC to “seriously consider ways to streamline substantially its regulatory approach to foreign sponsorship identification.”
- In connection with the continuing battle by Standard General to acquire TEGNA’s television stations (find previous updates on this proceeding on our Broadcast Law Blog noted here), including the FCC’s designation of the associated assignment/transfer applications for hearing before an Administrative Law Judge (ALJ), we previously reported that Senator Ted Cruz and Rep. Cathy McMorris Rodgers sent a joint letter to FCC Chairwoman Rosenworcel asking the FCC to provide detailed information about, among other things, the circumstances surrounding and the FCC’s rationale for designating the matter for hearing. In her recent response, Chairwoman Rosenworcel stated that the FCC’s ability to share the requested information was limited because the matter was subject to pending litigation, and because the proposed transaction remains active at the FCC. The Chairwoman also stated that “many of the questions contained in your letter are addressed in either the Hearing Designation Order issued in this case or the Commission’s Opposition to Petition for Writ of Mandamus filed recently with the Court of Appeals for the D.C. Circuit,” both of which are publicly available documents.
- The FCC’s Media Bureau and Office of Managing Director jointly issued an Order to Pay or Show Cause initiating a proceeding to revoke an AM station’s license due to the licensee’s failure to pay delinquent FCC regulatory fees and associated interest, administrative costs, and penalties. Specifically, the licensee had unpaid regulatory fee debts for fiscal years 2014, 2016, 2017, 2018, 2020, 2021 and 2022. Consistent with the FCC’s prior practice, the Order gives the licensee 60 days to either submit documented evidence that all debts have been paid in full or show cause why the payment is inapplicable or should be waived or deferred. The Order further notifies the licensee that failure to provide such evidence of payment or to show cause within the time specified may result in revocation of its license.
- The FCC issued a Public Notice requesting comment on an FM licensee’s request for an FCC ruling that would allow it to transfer control of its FM station in Cape Vincent, New York, near the Canadian border and the Ontario city of Kingston, where the new foreign ownership would be in excess of the 25% foreign ownership benchmarks set forth in Section 310(b)(4) of the Communications Act. The requested ruling would (1) permit up to 100% aggregate foreign investment (voting and equity) in the licensee, and (2) specifically approve certain foreign investors to hold more than 5% equity and/or voting interest in the licensee. The ruling was necessitated by a proposed transfer of 100% control of the licensee to a Delaware corporation whose sole shareholder is a Canadian corporation, which is in turn is owned by two Canadian citizens and their respective family trusts. In total, the transaction requires the FCC to specifically approve six Canadian entities, individuals or trusts that would hold indirect ownership interests in the licensee. Comments are due June 5, and reply comments are due June 20.
- The FCC’s Enforcement Bureau issued the first of its Equal Employment Opportunity (EEO) audit letters for 2023 to randomly selected radio and television stations. Each year, approximately five percent of all radio and television stations are selected for EEO audits. A list of the radio and television stations included in this audit as well as the text of the April 24, 2023 audit letter is available here and at the Enforcement Bureau’s EEO headline page on the FCC website at: https://www.fcc.gov/enforcement/eb-eeo/equal-employment-opportunity-headlines. The deadline for the selected stations to upload responses to their FCC-hosted online public inspection file is June 8, 2023.
- The NAB filed a petition with the US Court of Appeals for a “writ of mandamus” to force the FCC to resolve its 2018 Quadrennial Review. As we wrote on our Broadcast Law Blog, the FCC started its 2022 Quadrennial Review in December despite not having concluded its 2018 review. The 2018 Review addresses issues including whether to relax the local radio ownership rules, whether to provide specific guidance as to when one entity can acquire two TV stations in the same market (rather than the ad hoc waiver standard currently in effect), and whether to abolish the rule that prohibits an ownership combination of any two of the Top 4 TV networks. Even if successful, the Court’s mandamus order likely would not require that the FCC reach a particular decision in the 2018 review. Instead, an order would just require that the Commission reach a conclusion in the proceeding.
- The Enforcement Bureau issued sixteen warnings to New York City and New Jersey landowners for allegedly allowing pirate radio broadcasts from their properties. These Notices of Illegal Pirate Radio Broadcasting (available here) target properties identified by Bureau field agents as sources of pirate radio transmissions during the Bureau’s 2022-2023 New York Pirate Sweeps. Under the PIRATE Act adopted in 2020, the FCC must conduct an annual sweep looking for offenders in the top 5 most active markets for pirate radio. The Notices formally notify landowners of the illegal broadcasting activity purportedly occurring on their property; inform them of their potential liability of over $2 million for permitting such activity to occur on their properties; demand proof that the illegal broadcasting has ceased; and request identification of the individual(s) engaged in the illegal broadcasting.
- The FCC will consider at its May 18 monthly open meeting its 2022 Notice of Inquiry that explores opportunities to open the 12.7-13.25 GHz (12.7 GHz) band for next-generation wireless services. This week, the FCC released a draft of the Notice of Proposed Rulemaking and Order stemming from the Inquiry to be considered at that May 18 meeting. Licensed services currently in the 12.7 GHz band whose operations could be affected include satellite communications and mobile TV pickup operations (for more background, see our articles here and here). The FCC’s draft would formally propose and seek comment on rules that would authorize mobile broadband and other expanded uses in some or all of the 550 MHz of spectrum in the 12.7 GHz band. If the NPRM is adopted as drafted, it would, among other things, propose to grandfather, relocate, and/or repack incumbent non-federal licensees in the 12.7 GHz band. In addition, the Order would direct fixed and mobile Broadcast Auxiliary Service (BAS) licensees in the 12.7 GHz band to certify the accuracy of all information reflected on each license, including whether the facilities are operating as authorized.
- The Media Bureau rejected one of two mutually exclusive applications for a construction permit for a new NCE FM station at Ketchum, Idaho, and granted the surviving application. The applications were filed during the November 2021 NCE FM filing window. Last year, the Bureau identified numerous defects in one application and offered the applicant 30 days to submit a corrective filing. In response, the applicant revised its application to specify new coordinates for the proposed station’s transmitter. The Bureau found the amendment was unacceptable because it was a major amendment (since its revised 60 dBu contour did not overlap the 60 dBu contour in its original application) and created additional overlap with the other application with which it was already in conflict. Because the applicant did not remedy all the deficiencies in its application with the sole opportunity to file a corrective amendment that the FCC allows mutually exclusive applicants, the FCC dismissed that application. The opposing application thus became a “singleton,” and the Bureau granted it.
- In a similar case, the Media Bureau affirmed the grant of an application for a new NCE FM construction permit at Central Gardens, Texas and dismissed three mutually exclusive applications. In so doing, the Bureau found that even after recalculating the coverage area proposed by each applicant, none of the applicants were eligible for points under “the best technical proposal” criterion because no applicant proposed to serve at least 10% more area and population than the next best proposal, as required to gain such a preference. The decision on other comparative criteria was thus upheld.
- We have been reporting on the continuing battle by Standard General to acquire TEGNA’s television stations (find previous updates on this proceeding on our Broadcast Law Blog noted here), including the FCC’s designation of the associated assignment/transfer applications for hearing before an Administrative Law Judge (ALJ). That hearing (which has proceeded while Standard simultaneously pursued relief, thus far unsuccessfully, in court and before the full FCC) took a turn on April 27 when the ALJ issued an order suspending the hearing, finding that the hearing required discovery that, along with resolving the parties’ access to confidential information, would extend the proceeding well beyond Standard’s May 22, 2023 deadline for action. Thus, rather than requiring the parties to spend time and resources on a potentially moot proceeding, the ALJ suspended the hearing. If Standard finds a way to keep the transactions alive past May 22, then, presumably, the ALJ will resume the hearing. The ALJ ordered Standard/TEGNA to file a status report on or before June 1, 2023, to update the record. In the interim, various Congressional leaders and interest groups have weighed in (see the NAB blog here), urging the FCC to act on the application before the May 22 deadline rather than requiring the hearing.
- Shifting to must-carry issues, the Media Bureau denied a market modification petition filed by a commercial television station licensed to Fort Bragg, CA. Market modification is the statutory process by which, as in this case, a commercial television station may seek to add communities to its DMA and thereby expand the zone where it may assert must-carry rights. Fort Bragg is in the San Francisco-Oakland-San Jose, CA DMA, and the station sought in its petition to add Santa Rosa, CA to that DMA so it could compel the cable operator there to carry it. After reviewing the petition according to the statutory market modification criteria and reviewing the evidence required under the FCC’s market modification rules, the Bureau denied the petition, weighing factors including that (i) the station’s historic carriage by other MVPDs in Santa Rosa only entitled it to a slight preference; (ii) Fort Bragg is 110 road miles from Santa Rosa; (iii) the station’s 41 dBu noise limited service contour did not reach Santa Rosa, and the station’s translator coverage cannot compensate for this in a market modification case; (iv) the station had failed to demonstrate meaningful economic connections between Fort Bragg and Santa Rosa; and (v) the station’s local programming was not sufficient enough to qualify as “coverage or other local service” to Santa Rosa.
- The Media Bureau entered into a consent decree with an AM station to resolve the station’s repeated failure to timely place records in its online public inspection file. The consent decree requires the station to adopt a public file compliance plan but does not impose a fine.
April 17 to April 21, 2023
- At the NAB show last week, FCC Chairwoman Jessica Rosenworcel announced a new public-private initiative led by NAB to guide the next steps in the development of NextGen TV. Per the FCC’s associated press release, “The Future of TV” initiative “will work to identify a roadmap to orderly transition ATSC 1.0 to ATSC 3.0-based services as smoothly as possible for consumers. . . Working groups are expected to focus on addressing backwards compatibility and its impact on consumers; the final conditions needed to complete the national transition to ATSC 3.0; and consideration of the post-transition regulatory landscape.” Further details about the initiative will be provided in future FCC announcements.
- In remarks delivered to the NAB Convention, Commissioner Simington suggested that current broadcast regulation was a result of an outmoded picture of the competitive landscape and that, rather than viewing broadcasters as adversaries, regulators should work with broadcast companies to help them overcome some of the current regulatory headwinds to allow them to take advantage of the new technical opportunities.
- In the continuing battle by Standard General to acquire TEGNA’s television stations (find previous updates on this proceeding on our Broadcast Law Blog noted here), the US Court of Appeals denied the parties request for “mandamus,” a request which had asked for a Court Order telling the FCC to terminate the hearing ordered by its Media Bureau and immediately act on the pending application for approval of the sale. Thus, the hearing will continue despite Standard General’s claim that, if the deal is not closed in May, its financing commitment will run out.
- The FCC’s Enforcement Bureau issued an advisory reminding regulated entities (including broadcasters) of the need to seek and receive Commission approval prior to assignments or transfers of control through mergers, sales or otherwise and prior to other changes in ownership that result in reportable new foreign interest holders or reportable increases in existing foreign ownership interests. The advisory cautions that failure to comply with these requirements may result in monetary fines, divestiture of ownership, continuing reporting obligations, and/or revocation of the underlying license(s). As we’ve noted in past articles on our Blog (see, for instance, our articles here and here), when foreign ownership of broadcast stations has been approved by the FCC, changes in that foreign ownership may need FCC approval even when they do not constitute a change in control.
- On April 18, 2023, the FCC announced in the Federal Register that the Office of Management and Budget (OMB) approved changes to FCC forms which allow LPTV, TV translator, and Class A stations to operate with a Distributed Transmission System (DTS). On January 19, 2021, the FCC released an Order creating new DTS rules that permitted DTS signals to spill over beyond a broadcast station’s authorized service area. The rule changes afforded broadcasters more flexibility in the placement of their DTS transmitters to enhance their signal capabilities (for more details about the new DTS rules, see our Blog article here.) The rules became effective May 24, 2021, except for LPTV, Class A, and television translator stations where changes to FCC Forms were necessary, and those changes had to be approved by OMB. With this week’s notice, effective May 18, 2023, LPTV, television translators, and Class A stations may propose DTS operations by filing the appropriate new Schedule of FCC Form 2100.
- The FCC adopted a Report and Order in which it updated its Part 74 rules for LPTV and TV translator stations, to reflect the termination of analog operations of LPTV/translator stations as of July 13, 2021. The rule changes do not materially affect the basic regulatory obligations of LPTV or TV translators now operating with digital facilities. The Report and Order does make changes including updating geographic coordinates in the rules for purposes of protecting land mobile stations; requiring LPTV stations to comply with station identification requirements with some modifications, including an amendment for LPTV/translator alphanumeric call signs to account for exhaustion of all two letter call sign combinations for some channel numbers; retaining the rule related to the LPTV Pilot Project Digital Data Services Act; and requiring a minor modification application for all station relocations not just those over 500 feet. Some rules will become effective 30 days after publication of the Order in the Federal Register, while others requiring new forms or new paperwork will become effective after OMB approval when the FCC publishes notice of that approval in the Federal Register.
- The Media Bureau dismissed one of two mutually exclusive applications for a construction permit for a new NCE FM station at Darien, Georgia. The applications were filed during the November 2021 NCE FM filing window. In a petition to deny, the surviving applicant contended, with unrefuted documentary evidence, that its competitor was ineligible to hold an NCE FM license because it is neither incorporated in the state of Georgia nor recognized as an unincorporated association under Georgia law. The Bureau agreed and dismissed the competing applicant’s application.
- The Media Bureau, in response to a third-party objection, dismissed an application to assign an FM translator license, rescinded the grant of that station’s authorization, and deleted the station’s call sign. The assignor of the FM translator had initially obtained its authorization by filing, in 2017, a contingent construction permit application for a new FM translator to be used with an AM station that it had just filed to acquire. The Bureau granted the translator permit application conditioned on common ownership of the FM translator and AM stations. The Bureau found that notice of the consummation of the assignment of the AM license to the translator applicant had not been filed by the FCC-specified deadline and that the parties had not requested an extension of that deadline. The Bureau thus found that the applicant had not complied with the terms of its conditional authorization, rescinded its grant of the translator’s authorization, and terminated the translator’s operating authority.
- As it has over the past several weeks with respect to various television translator licensees that filed their renewal applications late, the Media Bureau proposed to fine a Nevada television translator licensee a total of $7,500 ($1,500 per license) for late-filed renewals. The Bureau noted that its rules specify a base fine of $3,000 for such violations, but in this case (as in the other recent cases) decided to reduce the fine to $1,500 because translators only provide secondary service and provide important “fill-in” service to areas that otherwise may be unable to receive over-the-air television service.
- The Media Bureau entered into a consent decree with CSN International (CSN) to terminate the Bureau’s investigation into CSN’s compliance with Section 1.17 of the Commission’s rules in connection with its acquisition of certain radio station licenses. Section 1.17 prohibits any person from providing, in any written statement of fact to the FCC, material factual information that is incorrect. On each of the assignment applications, CSN listed only the members of its governing board’s executive committee and did not disclose the remainder of its governing board. As it had not reported all the Board members who each has an attributable interest in the licensee, its certifications that all statements made in the applications were complete was false. As a result, the consent decree requires CSN to pay a fine of $10,000.
April 10 to April 14, 2023
- The FCC has requested comments on NAB’s petition asking the Commission to grant a two-year extension of the May 26, 2023 deadline by which broadcasters must comply with Section 79.2(b)(2)(ii) of the Commission’s rules, which requires television broadcasters to provide an aural description of visual, non-textual emergency information, such as radar maps or other graphics, on the station’s SAP channel, i.e., a secondary audio stream. The FCC has already issued such an extension three times since the initial compliance deadline of May 26, 2015, as the NAB contends that there still is no workable technology that can perform the functions required by the rule (see our Broadcast Law Blog article here from the last extension 5 years ago). NAB asserts that the waiver will allow it to explore other possibilities to develop a system to provide accurate audio descriptions of pictures and graphics about emergency situations, solutions possibly including those afforded by artificial intelligence (AI)-based systems. NAB further claims that the impact of the waiver will be mitigated by the fact that critical details of an emergency will usually be provided in accompanying textual crawls, which are already aurally described and accessible. Comments are due April 24, reply comments are due May 1.
- As we’ve previously reported, the FCC has issued a Notice of Proposed Rulemaking (NPRM) requesting comment on a variety of proposed rules implementing the Low Power Protection Act (LPPA). The LPPA provides certain low power television stations in small markets with a “limited window of opportunity” to apply to become Class A television stations with primary status, protecting them from interference from new or improved full-power stations. The FCC is seeking comment on interpreting the eligibility requirements for stations seeking this status. The FCC this week issued a Public Notice confirming that, by virtue of the NPRM’s publication in the Federal Register, comments and reply comments on the NPRM will be due May 15 and June 13, respectively.
- The FCC issued an Order on Reconsideration, Report and Order and Memorandum Opinion and Order addressing some of the rules that permit unlicensed wireless devices to operate in TV “white spaces” (i.e., portions of the TV broadcast bands where frequencies are not in use by licensed services or other protected entities). In the Order on Reconsideration, the FCC upheld its prior decision (see our articles here, here and here) to permit mobile white space devices to operate at 16 watts EIRP and narrowband white space devices to operate in all areas rather than limiting them to “less congested” areas. In the Report and Order, the FCC (i) permits mobile white space devices to comply with the same hourly interval for rechecking the database of protected users that the Commission recently required for most other white space devices, and (ii) continues to require narrowband white space devices to re-check the white space database once per day rather than once per hour. The Commission also refused to allow the white space database to use terrain-based models, such as the Longley-Rice Irregular Terrain Model (Longley-Rice) to determine which TV channels are available for white space device operation at a particular location. Instead, the Commission will require that white space databases continue to use only the current model for determining TV channel availability.
- The FCC’s Enforcement Bureau issued a Revocation Order revoking the license of an FM station in Pennsylvania. The licensee had pled guilty to five crimes, consisting of one felony (criminal use of a communications facility) and four related misdemeanors, but received probation instead of a prison sentence. The Media Bureau subsequently initiated a hearing before an FCC Administrative Law Judge (ALJ) to determine whether, based on these crimes, the licensee’s license should be revoked. The licensee, who chose to represent himself, repeatedly failed to comply with the hearing’s procedural requirements so the Judge found that he had waived his right to a hearing and terminated that hearing. In this Order, the Enforcement Bureau revoked the licensee’s license finding that the criminal convictions and the licensee’s disregard for the hearing rules supported a finding that the licensee lacked the character qualifications to hold a Commission license.
- As it has over the past several weeks with respect to various television translator licensees that filed their renewal applications late, the Media Bureau, in two separate decisions, has proposed to fine a Nevada translator licensee a total of $32,000 ($1,500 per license) for late-filed renewals. The Bureau noted that its rules specify a base fine of $3,000 for such violations, but in this case (as in the other recent cases) decided to reduce the fine to $1,500 because translators only provide secondary service and provide important “fill-in” service to areas that otherwise may be unable to receive over-the-air television service. For similar reasons, the Bureau also proposed to fine an Oregon LPTV station $1,500 for failing to file a timely license renewal application.
- The Media Bureau reinstated FM channel 290A at Hardwick, Vermont to the FM Table of Allotments. This channel had previously been deleted as it received no bids in previous FM auctions, and no one expressed an interest when the FCC asked if the channel should be retained. However, one company expressed late interest in the Hardwick allotment. That party subsequently filed a petition for reconsideration of the deletion, repeating its interest in the allotment and primarily citing the COVID pandemic as the reason why it did not participate in competitive bidding for the Hardwick channel and why it failed to file its expression of interest in time. In this week’s decision, the Bureau accepted the party’s late expression of interest (noting that the proceeding was uncontested, and no prejudice would occur to other parties) and reinstated the Hardwick allotment, which will be available for application in a future FM window.
April 3 to April 7, 2023
- Since the February 24 hearing designation order (HDO) from the FCC’s Media Bureau referring questions about Standard General Broadcasting’s proposed acquisition of the TEGNA broadcast stations to an Administrative Law Judge (ALJ) for an evidentiary hearing, many of our weekly updates have highlighted the attempts of the parties to have the HDO overturned (see, for instance, our articles here, here and here). Congressional representatives are now looking into this unusual HDO. In a joint joint letter to FCC Chairwoman Rosenworcel, Senator Ted Cruz (Ranking Member of the Senate Committee on Commerce, Science and Transportation) and Rep. Cathy McMorris Rodgers (Chair, House Energy and Commerce Committee) asserted that the HDO “violates Commission rules and precedents in several ways,” and asked the Chairwoman to provide, by April 19, responses to fourteen questions concerning the facts surrounding the decision to issue the HDO and the Bureau’s legal theories supporting it. At the same time, the United States Court of Appeals for the D.C. Circuit dismissed Standard’s direct appeal of the HDO (finding that there was not yet a final FCC action for Standard to appeal) but set for expedited briefing Standard’s request for a writ of mandamus (a Court order forcing the FCC to act on the pending application). Such requests are rarely granted but, if granted here, might require the FCC to approve the transaction before the current May 22 date that the parties allege is the deadline for the transaction to close. And, notwithstanding all of this, the hearing designated by the Bureau continues before the ALJ, who has issued an initial case order establishing the date by which parties should submit proposed schedules (April 19) and the date of the initial status conference (April 26).
- In Congress, the Journalism Competition and Preservation Act has been reintroduced in Congress (Press Release). That Bill, if adopted, would allow traditional media outlets, including broadcasters, to jointly negotiate for compensation for the use of their content by Big Tech platforms. While the Bill passed out of a Senate committee in the last session of Congress, it never came to a vote before the full House or Senate.
- Late on March 31, Chairwoman Rosenworcel released a letter responding to Senator Grassley’s request that the FCC take action on a long-pending FCC proceeding regulate video streaming services that carry broadcast TV signals as MVPDs subject to FCC rules, such as must carry and retransmission consent (see our Broadcast Law Blog article on the FCC’s 2015 proceeding). Many televisions station owners have been requesting action by the FCC. The Chairwoman’s response said that she did not believe that the FCC had jurisdiction to regulate virtual MVPDs, and suggested that Congress would first need to amend the Communications Act to refine the definition of an MVPD before the FCC could consider such regulation.
- After conducting a “paper” hearing that had been initiated by the Media Bureau, an ALJ issued a decision finding that an AM station’s license had not expired automatically under the provisions of Section 312(g) of the Communications Act which automatically cancels a broadcast station’s license if it had been silent for more than12 consecutive months. The record was confusing, but the ALJ found that the licensee had demonstrated by a preponderance of the evidence that its station had not been silent for more than 12 consecutive months, even though, in the ALJ’s view, it would have been helpful if the licensee had submitted more written evidence confirming that it had resumed operations at its authorized site in a timely manner. The ALJ did, however, find that the station merited only a one-year renewal, as the station had been silent for about 80% of the prior license term and been deficient in its recordkeeping.
- The Bureau denied two closely-related petitions for reconsideration filed by the permittee of two FM translator stations in Puerto Rico, protesting the Bureau’s refusal to toll the stations’ construction deadlines and the Bureau’s subsequent grant of a third party’s application for facilities for an FM translator on the same channel as one of its translators. The Bureau found that the petitioner’s request for tolling had not been filed in accordance with the special procedures that applied when the FCC’s headquarters were closed during the pandemic, so the request never was officially on file. Thus, it was not in the FCC’s database to preclude the third’s filing of the application that conflicted with one of the permits. The Bureau also rejected the petitioner’s other arguments in support of tolling, including its contention that it qualified for tolling or waiver based on new local land use procedures in Puerto Rico and purported lingering “bureaucratic” delays in issuing local permits following hurricanes and COVID, as no specific showing was made that any delays that might have occurred were outside the control of the permittee.
- Consistent with the FCC’s policy of relative leniency in resolving first-time paperwork violations of FCC requirements by student-run noncommercial educational stations, the Bureau entered into a consent decree with a Massachusetts FM station that had filed its renewal application three and a half months late, The decree mandates that the licensee adopt a compliance plan to ensure that no such violations occur in the future and pay a $500 civil penalty to the U.S. Treasury.
- The Bureau dismissed a petition for reconsideration of its decision to cancel an AM license that had been surrendered by the station’s licensee. The petitioner was a listener of the station and resident of its community of license and asked the Bureau to reinstate the license so that it could be assigned to someone else. The Bureau rejected the request as it could not grant the petitioner’s requested relief, as the Bureau has no power to require the licensee to resume broadcasting or to require it to seek out and enter into an agreement with another party to assign the station’s license.
- This week, on our Broadcast Law Blog, we published an article on the legal issues of using Artificial Intelligence to create synthetic voices of celebrities and using such voices on the air or online.
March 27 to March 31, 2023
- The FCC released a Notice of Proposed Rulemaking (“NPRM”) to implement the Low Power Protection Act (“LPPA”), which was signed into law by President Biden on January 5, 2023. The LPPA directs the FCC to open a limited opportunity window for certain LPTV stations to apply for Class A TV status, giving them primary status that protects against being knocked off the air by a change in operations by a full-power station (or any further repacking of the TV spectrum like that following the incentive auction). Under the LPPA, an LPTV station will be eligible to convert to Class A if (i) between October 7, 2022 and January 5, 2023 (the “Eligibility Period”), the station operated a minimum of 18 hours per day, aired an average of 3 hours per week of locally-produced programming, and was otherwise in compliance with the LPTV rules; (ii) the station causes no interference; and (iii) the station operates in a DMA of 95,000 households or fewer. The FCC’s proposed rules would impose additional limits on eligibility including excluding LPTV stations which were silent during the Eligibility Period; and proposes to define “locally-produced programming” as that produced within the station’s noise-limited contour or the contiguous contours of commonly owned stations. Interested parties can comment on these questions and other FCC proposals advanced in the NPRM. Comments and reply comments will be due 30 days and 60 days, respectively, after the NPRM is published in the Federal Register.
- The FCC’s Media Bureau announced that the FCC’s Further Notice of Proposed Rulemaking proposing to extend the FCC’s audio description rules to DMAs below the top 100 has been published in the Federal Register, and therefore comments and reply comments are due April 28 and May 15, 2023, respectively. Audio description provides narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue, for the benefit of individuals who are blind or visually impaired. The full text of the Further Notice is available here.
- Action continued this week on the FCC’s Media Bureau’s hearing designation order referring questions about Standard General Broadcasting’s proposed acquisition of the TEGNA broadcast stations to an Administrative Law Judge (ALJ) for an evidentiary hearing. Two weeks ago, we wrote about the parties to the sale filing an Application for Review, asking the Commission to overturn the Media Bureau’s decision to designate the transaction for hearing. Because that request has not been granted and the commitment for the acquiror’s financing ends soon, the parties this week asked the US Court of Appeals to immediately intervene to stop the hearing and order the grant of the application. Even though no appeal to the Court is routinely permitted until an FCC action is final, the parties asked that the Bureau’s hearing designation be treated by the Court as if it was a denial of the application, or that the Court take extraordinary action to order FCC action on the application. The Court ordered immediate briefing by the parties; all submitted this past week. The NAB submitted a brief in support of the parties arguing that the bases for the hearing designation were not supported by FCC precedent and would upset marketplace expectations.
- The FCC’s Media Bureau continued to process late filed license renewals, proposing to impose a $10,500 fine on the licensee of seven Nevada television translator stations that without explanation filed its renewal applications nearly four months late. Ordinarily, the FCC’s rules require a fine of $3,000 per station for such a violation. The Bureau reduced the fine to $1,500 per station in recognition of the fact that translator stations only provide a secondary service, but often provide important “fill-in” service to areas that otherwise may be unable to receive over-the-air television signals. Likewise, the Bureau proposed to impose a $12,000 “late renewal” fine on a second licensee of eight Nevada television translator stations, and proposed to impose a similar $1,500 fine on a low power television station in Alaska.
- The Media Bureau, jointly with the FCC’s Managing Director, issued an Order to Pay or to Show Cause to an AM station that had not fully paid its annual regulatory fees for 2010, 2012, 2013, 2014, 2016, 2017, 2020 and 2022. The Order directs the station to either provide the Bureau with evidence of full payment (or, alternatively, a showing as to why payment is inapplicable or should be waived or deferred) in 60 days or risk revocation of its license.
- The Bureau issued a Report and Order substituting FM channel 288A for vacant channel 237A at South Padre Island, Texas to allow the use of channel 237A by an existing station at Port Isabel, Texas. The South Padre Island channel will be available for application in a subsequent FM filing window.
- The Media Bureau rescinded its grant of a construction permit for a new NCE FM station at Golinda, Texas, which it had awarded via its “points system” for selecting among mutually exclusive applicants for NCE FM stations filed in the 2021 window for new NCE stations. The winning applicant had received its construction permit for its greater technical service by claiming that it would provide second NCE service to 14,178 people but, as pointed out in a challenge filed by a competing applicant, the applicant would actually provide second NCE service to only 1,706 people, not enough to warrant a preference. As a result, the Bureau rescinded the winning applicant’s grant and returned its application to pending status so that the Bureau can re-compare the applications.
- On our Broadcast Law Blog, we highlighted the upcoming regulatory dates and deadlines for broadcasters in April. We also wrote about some of the policy issues for media and music companies that arise from the growth of Artificial Intelligence.
March 20 to March 25, 2023
- FCC Chairwoman Rosenworcel announced a proposal which would require that all pay TV providers prominently display “all in” pricing on bills and in advertising so that consumers know what their monthly charges will be. The News Release about the proposal states that its aim is to eliminate “the misleading practice” of describing video programming costs, including retransmission consent fees paid to broadcast stations, as a tax, fee, or surcharge rather than as part of the price of the service. The News Release suggests that these practices make it difficult for a consumer to compare prices among competing video providers and can surprise consumers with unanticipated costs. The details of the proposal have not been made public but are circulating among the FCC Commissioners for their consideration.
- In a similar attempt to enforce billing transparency, the Federal Trade Commission (“FTC”) released a Notice of Proposed Rulemaking to amend the FTC’s existing “Negative Option Rule.” That rule addresses “negative options” used in marketing and sales that come in a variety of forms, which each contain a term or condition that allows a seller to interpret a customer’s silence, or failure to take an affirmative action, as acceptance of an offer to sell and charge for goods or services. Negative option marketing generally falls into four categories: (1) prenotification plans (the only ones currently covered by FTC rules – like “book of the month clubs,” where a product is regularly offered to a consumer and then shipped and charged unless the consumer affirmatively declines the offer), (2) continuity plans (where a product is routinely shipped and charged to a consumer until they say to stop – like bottled water delivery services), (3) automatic renewals (like magazine subscriptions or credit monitoring services where subscriptions automatically renew upon expiration), and (4) free trial marketing where a free or nominal price offer is made which automatically converts to a paid plan with recurring charges after a certain period if not cancelled. The proposal would amend the existing rule to: (i) expand its scope to cover all negative marketing practices and cover offers made in all media, including Internet, telephone, in-person, and printed material; (ii) require businesses to obtain consumers’ express informed consent before charging them for a good or service they subscribe to; (iii) require businesses to provide a simple cancellation mechanism to immediately halt any recurring charges; and (iv) require businesses to provide an annual reminder to consumers enrolled in negative option plans involving anything other than physical goods. Comments on the Proposed Rule will be due 60 days after it is published in the Federal Register.
- The FCC’s Media Bureau proposed to impose a $4,500 fine on the licensee of three Nevada television translator stations that without explanation filed its renewal applications nearly four months late. Ordinarily, the FCC’s rules require a fine of $3,000 per station for such a violation. The Bureau reduced the fine to $1,500 per station in recognition of the fact that translator stations only provide a secondary service, but also provide important “fill-in” service to areas that otherwise may be unable to receive over-the-air television signals. For similar reasons, the Bureau proposed to impose a $1,500 fine on a second Nevada television translator licensee (this time for only one station) and a $13,500 fine on a third Nevada television translator licensee (for nine stations) that each filed their renewal applications nearly four months late.
- The Media Bureau, jointly with the FCC’s Managing Director, issued an Order to Pay or to Show Cause to an FM station that had not fully paid its annual regulatory fees for 2010, 2012, 2013, 2014, 2015, 2016, 2018, 2020, 2021 and 2022. The Order directs the station to either provide the Bureau with evidence of full payment (or, alternatively, a showing as to why payment is inapplicable or should be waived or deferred) in 60 days or risk revocation of its license. While this is an extreme case, it is another reminder that the FCC takes unpaid regulatory fees seriously, and that licensees must ensure that such fees are paid in a timely manner.
- On our Broadcast Law Blog, we provided more information about the Request for Declaratory Ruling filed by the Florida Broadcasters Association, which we mentioned in last week’s summary of regulatory actions. This request asks the FCC to conclude that political advertising not sponsored by a candidate’s official campaign committee is not entitled to lowest unit rates during the 45 days before a primary and the 60 days before a general election, even if that advertising claims to be authorized or approved by the candidate.
March 13 to March 17, 2023
- On March 16, the Federal Trade Commission (“FTC”) held an open meeting at which it voted to issue “6(b) orders” to eight social media and video streaming platforms (specifically Meta, Instagram, YouTube, TikTok, Snap, Twitter, Pinterest and Twitch) requesting information on how they monitor and review deceptive advertising on their platforms. “6(b) orders” are issued pursuant to the FTC’s authority under Section 6(b) of the FTC Act to compel information so that the FTC can investigate businesses and business practices. The FTC at the same time announced that it will conducting a study of the social media and video streaming platforms’ policies and practices to detect, prevent, and reduce deceptive commercial advertising and online shopping fraud, including the platforms’ maintenance and enforcement of advertising standards; verification and authentication of advertisers; screening for misleading, deceptive, and fraudulent ads; and use of disclosures and other techniques to ensure commercial messages are identifiable as advertising. The FTC also announced that it would issue a 6(b) order to five business credit reporting agencies (Dun & Bradstreet, Experian Information Solutions, Equifax, Ansonia Credit Data, and Creditsafe USA) requesting information on how they collect and report data about small businesses, and how they market their business credit reporting products. It will also conduct a study of the credit reporting agencies to bring more transparency to how algorithms and alternative data are utilized in the small business credit reporting market and whether there are disparities that disadvantage small business owners. Press releases announcing the FTC’s actions are available here and here; models of the 6(b) orders sent by the FTC are available here and here.
- At the same open meeting, various individuals and representatives from various organizations spoke on the FTC’s Proposed Rule to Ban Noncompete Clauses in employment relationships, specifically encouraging the FTC to provide an opportunity for reply comments. The FTC recently extended the deadline for public comment on the FTC’s proposed ban to April 19.
- The Florida Association of Broadcasters this week filed a Petition for Declaratory Ruling asking the FCC to declare that political ads run by committees and organizations which are not a candidate’s official campaign committee, but are “authorized” by the candidate, are not entitled to lowest unit rates. There has been a dispute over that question in the last few election cycles. The FCC has not yet announced whether it will take comments on this petition.
- As expected, the FCC, at its March 16 open meeting, adopted a Further Notice of Proposed Rulemaking (the full text of which is available here) seeking comment on whether to apply its audio description requirements to the TV markets where those requirements do not already apply (i.e., DMAs 101 through 210). Audio description inserts narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue, for the benefit of individuals who are blind or visually impaired. The FCC proposes that, if it determines that the costs are reasonable, the phase-in of the requirements will begin with DMAs 101 through 110 on January 1, 2025, and extend to an additional 10 DMAs per year, concluding with DMAs 201 through 210 on January 1, 2035. Comments and reply comments on the Further Notice will be due 30 and 45 days, respectively, after it is published in the Federal Register.
- As we’ve reported in previous weekly updates, the FCC’s Media Bureau has issued a hearing designation order referring questions about Standard General Broadcasting’s proposed acquisition of the TEGNA broadcast stations to an Administrative Law Judge (ALJ) for an evidentiary hearing. In response, the parties filed a Motion asking the ALJ to certify this designation to the FCC Commissioners for a determination as to whether the case really should have been designated for hearing. The ALJ this week denied that Motion. Because the FCC’s rules do not permit the parties to appeal the ALJ’s ruling, the hearing ordinarily would proceed before the ALJ as scheduled. The parties have nonetheless responded by filing an Application for Review, asking the Commission to overturn the Media Bureau’s decision to designate the transaction for hearing. At this time, it is unclear what if any impact this filing will have on the conduct of the hearing.
- The FCC released two Notices of Apparent Liability proposing to impose big fines on two pirate radio operators (the Notices are available here and here). Using the enforcement tools – particularly the higher fines – authorized by the PIRATE Act passed by Congress in 2020, the FCC proposed a to impose a fine of $2,316,034 on one alleged operator of a pirate radio station in the New York City area, and a fine of $80,000 fine on another operator of a pirate station in Oregon. As the FCC noted in its press release, this is the first time since the adoption of the PIRATE Act that the FCC has gone beyond the warning phase to issue notices of “forfeitures” (fines) on pirate operators and, in the New York case, use the full force permitted by the law to levy a multimillion dollar fine. For more details about these cases, see our Broadcast Law Blog article here.
- The Media Bureau denied a broadcaster’s petition for reconsideration asking for reinstatement and an 18-month extension of a construction period for a new FM in Florida. The decision highlights Section 73.3598(a) of the FCC’s rules, which states that an “eligible entity” buying a construction permit for a new station will be afforded an 18-month period to construct, beginning on the consummation date of its acquisition of the permit. The effect of that rule, which can extend the length of construction permits that would otherwise expire, had been suspended by a Court of Appeals decision in 2011 when the Court overturned the “eligible entity” definition. An eligible entity is one that qualifies as a “small business” until Small Business Administration rules. While the FCC eligible entity definition and its rule on the extension of construction permits was reinstated by the FCC in 2021, because the permit in this case expired in 2014 and that expiration was final before the policy was reinstated, the Commission declined to reinstate the construction permit.
- Via its “points system” for selecting among mutually exclusive applicants for NCE FM stations filed in the 2021 window for new NCE stations, the FCC’s Media Bureau awarded a construction permit to an applicant for a new station at Bernardsville, New Jersey. The Bureau did so notwithstanding an informal objection by one of the competing applicants, contending that the winning application should have been dismissed because it did not include a showing demonstrating the applicant’s compliance with the spacing requirements in Section 73.525 of the Commission’s rules to two television stations operating on Channel 6 (Channel 6 being adjacent to the NCE band). The winning applicant eventually amended its application to include the required showing. The Bureau ruled that the applicant’s initial failure to include the required showing was a curable defect, and the applicant’s showing demonstrated compliance with the rule.
- The Bureau entered into a Memorandum of Understanding (MOU) with an FM station that acknowledged that it had failed to timely place records in its online public inspection file. The MOU included a commitment from the station to implement a compliance plan to ensure compliance with its online public inspection file obligations.
- The Bureau proposed to impose a $1,500 fine on a low power television (LPTV) station that without explanation filed its license renewal application six weeks late. Ordinarily, the FCC’s rules require a $3,000 fine for such a violation. The Bureau reduced the fine $1,500 in recognition of the fact that LPTV stations only provide a secondary service.
- The Media Bureau proposed to substitute Channel 256A for vacant Channel 288A at Tecopa, California, to accommodate a proposed upgrade of an existing FM station from channel 290C1 to channel 291C at Amargosa Valley, Nevada. Channel 288A at Tecopa became vacant due to the Bureau’s cancellation of the license of the station that previously occupied that channel and will be available for application in a future FM auction window.
- The Bureau issued a Report and Order granting a noncommercial educational television station’s request that the FCC substitute noncommercial VHF channel 13 for noncommercial VHF channel 3 at Roanoke, Virginia, to address signal quality issues. For similar reasons, the Bureau substituted UHF channel 35 for VHF channel 11 at Hampton, Virginia. These decisions recognize the industry consensus that UHF channels, and even high VHF channels, provide better reception of digital television transmissions than do low VHF channels.
- The Bureau, jointly with the FCC’s Managing Director, issued an Order to Pay or to Show Cause to an AM station that had failed to pay or only partially paid its annual regulatory fees for 2012, 2015, 2016, 2017, 2018, 2019, 2020, and 2021. The Order directs the station to either provide the Bureau with evidence of full payment in 60 days or risk revocation of its license. While this is an extreme case, it is a reminder that the FCC takes unpaid regulatory fees seriously, and that licensees must ensure that such fees are paid in a timely manner.
March 6 to March 10, 2023
- As widely reported, Gigi Sohn has asked President Biden to withdraw her nomination to become the third Democratic FCC Commissioner (her statement to the Washington Post about her withdrawal is available here). Had it been successful, Sohn’s nomination would have eliminated the 2-2 deadlock between Republicans and Democrats that has existed at the FCC for over two years. Sohn’s withdrawal came shortly before Sen. Joe Manchin of West Virginia became the first Democrat to formally oppose her confirmation. As of the date of publication of this article, the White House had not provided any updates regarding potential replacement nominees. For a further discussion of Sohn’s withdrawal and its implications for broadcast regulation, see the article on our Broadcast Law Blog, here.
- As we reported in our weekly update the week before last, the FCC’s Media Bureau issued a hearing designation order referring to an Administrative Law Judge for an evidentiary hearing questions about the proposed acquisition of the TEGNA broadcast stations by Standard General Broadcasting. This week brings news that the parties have filed a Motion asking that the Judge certify this designation to the FCC Commissioners for a determination as to whether the case really should have been designated for hearing. For more details on this matter and the legal issues associated with it, see our Blog article here.
- The FCC issued an Order temporarily staying the March 6, 2023 sunset of the requirement that television station’s that convert to the new ATSC 3.0 transmission standard must maintain their primary broadcast streams in accord with the ATSC A/322 standard, which defines the waveforms that ATSC 3.0 signals must take. In June 2022, the FCC issued a Third Further Notice of Proposed Rulemaking (Third FNPRM) seeking comment on, among other things, whether to retain the requirement that broadcasters comply with the ATSC A/322 standard and, if so, for how long. The Order leaves the requirement in place indefinitely (thus maintaining the status quo) until the Third FNPRM is resolved. In support, the Order notes that virtually all who commented on the Third FNPRM supported at least a temporary extension of the requirement; that it is unclear whether any consumer receive equipment could display 3.0 signals that are noncompliant with A/322; and that there is no information in the record indicating that any party would be harmed by the grant of an interim stay.
- The FCC issued its Application Fee Filing Guide for its Media Bureau. The Guide, which provides fee amounts and instructions for paying those fees, covers applications filed by, among others, commercial television stations, commercial AM and FM stations, TV translators and LPTV stations, FM translator stations, Class A television stations, and FM booster stations. The FCC’s Managing Director subsequently issued an Erratum correcting the fees for certain types of AM applications.
- The FCC’s Public Safety and Homeland Security Bureau issued a Public Notice encouraging broadcasters who did not file their Form One in the EAS Test Reporting System (ETRS) by the February 28, 2023 deadline to do so now. The Public Notice also provided information about FCC assistance that is available for applicants who have not yet filed this Form One which provides basic information about EAS participants and the EAS equipment that they use. As we noted in an article on our Blog, the FCC has made clear that this filing is mandatory for virtually all broadcast stations and suggested that there may be consequences for those who have not filed. This form is the first of three used to report on the results of Nationwide EAS tests – one of which is expected to be conducted later this year. If your station has not filed the ETRS Form One yet, you should do so immediately.
- The FCC’s International Bureau released a Public Notice and a list of the C-Band earth stations that it has found to be “incumbent earth stations” entitled to reimbursement as part of the repurposing of part of this spectrum for wireless uses. As set out in the Notice, all earth stations continuing to operate in the C-Band are required to register with the International Bureau’s filing system, and any earth stations that are deactivated must also be reported. If you have C-Band earth stations, review this notice for more details.
- With the NCAA Basketball Tournaments for both men and women set to start this coming week, we published on our Broadcast Law Blog a two-part article (here and here) about the NCAA’s trademarks, how it protects those marks, and the legal issues that can arise in broadcast advertising and promotions tied to the tournaments.
- Via its “points system” for selecting among mutually exclusive applicants for NCE FM stations filed in the 2021 window for new NCE stations, the Bureau awarded a construction permit to an applicant for a new station at Baker City, Oregon. The Bureau did so notwithstanding an informal objection by a third party alleging that the winning application should have been dismissed because its proposed directional antenna radiation pattern varied more than 2 dB per 10 degrees of azimuth in violation of section 73.316(b)(2) of the FCC’s rules. The winning applicant subsequently amended its application to bring its antenna pattern into compliance with the rules. The Bureau ruled that the antenna pattern was a curable defect and thus the winning applicant’s amendment was permissible, thus mooting the third party’s objection. The Bureau also found that the winning applicant remained the winner on points even though its amendment resulted in reduced coverage that rendered it ineligible for a point under the “best technical proposal.”
- The Bureau proposed to substitute Channel 287A for vacant Channel 280A at Peach Springs, Arizona to accommodate a proposed upgrade of an existing FM station from channel 280A to channel 280C2 at Fort Mohave, Arizona. Channel 280A at Peach Springs became vacant due to the Bureau’s cancellation of the license of the station that previously occupied that channel.
- The Bureau entered into a consent decree with a student-run NCE FM station that filed its license renewal application nearly four months late. Consistent with the FCC’s policy for treating first-time violations of FCC “paperwork” rules by student-run NCE radio stations more leniently than violations by other stations, the licensee agreed to implement a compliance plan to prevent future untimely renewals, and make a civil penalty payment to the United States Treasury in the amount of $500.
February 27 to March 3, 2023
- FCC Commissioner Simington issued a statement supporting a recent letter from former FEMA leaders to the Department of Transportation highlighting AM radio’s importance for public safety. The letter was to address the concern about AM radios being left out of electric cars. He said that the issue “deserves urgent attention”; that “as adoption of electric vehicles increases, we must not leave behind those in rural areas who depend upon radio for their news and alerts”; and that the FCC must “be good stewards of the AM radio band” by “safeguarding reception of AM radio from arrogation by incidental and unintentional radiation.”
- The FCC’s Media Bureau proposed to assess a fine of $3,000 against the licensee of a full power television station that, without explanation, filed its license renewal application five weeks late ($3,000 is the base fine in the FCC’s rules for an untimely renewal application). At the same time, the Bureau proposed to assess a fines of $1,500 against each of two low power television stations, in one case for filing the license renewal applications nearly four months late (two days before the license expiration date), and over six weeks late in the other case. In both cases, the Bureau reduced the proposed fine to $1,500 from the $3000 base fine because the stations were LPTV stations and thus only provided a secondary service.
- The Bureau also entered into a Consent Decree with an AM station to resolve the station’s admitted failure to timely file its renewal application (the licensee filed five months late) and timely upload any issues and program lists to its online public inspection file. The Bureau did not impose a fine, citing difficult economic circumstances within the radio industry generally and the illness and death of the station’s sole owner. Instead, the Bureau mandated that the licensee implement a compliance plan to ensure the station’s compliance with the FCC’s rules pertaining to filing deadlines and the online public inspection file.
- The Bureau proposed to fine an LPTV station $3,500 for its failure to file an application for a “license to cover” its construction permit until over a year after its displacement construction permit had expired and almost nine months after commencing operations. As we’ve noted before, upon completion of the construction of new technical facilities authorized by a construction permit, a station must file a license application specifying details of the facilities that were built and certifying that those facilities align with those authorized by the construction permit. The station also had engaged in unauthorized operation on two separate occasions for a cumulative period of approximately 14 months for operations after the construction permit expired and before the license application was filed. The Bureau rejected the licensee’s claim that its violations were due to “administrative oversight.” The base forfeiture in the FCC’s rules for the licensee’s violations was $10,000, but the Bureau reduced the proposed fine to $3,500, citing the fact that, as an LPTV facility, the station only provided a secondary service.
- The Bureau continues to substitute UHF channels for VHF channels in local markets to improve reception of over-the-air television channels, recognizing the preference for UHF channels for digital operations, the most recent examples being its proposed substitution of channel 17 for channel 9 at Kalispell, Montana; its substitution of channel 31 for channel 7 at Odessa, Texas; its substitution of channel 24 for channel 9 at Lufkin, Texas; and its proposed substitution of channel 20 for channel 10 at Elko, Nevada.
- In another allocations decision, the Bureau issued a Report and Order amending the FM Table of Allotments (section 73.202(b) of the FCC’s rules) by allotting a new FM channel, Channel 233C, at Ralston, Wyoming as its first local service. Ralston is listed in the 2020 U.S. Census as a census-designated place having a population of 240 persons, although the Bureau also noted that Ralston has its own post office, zip code, and a variety of local and area businesses and event venues. This channel will be available for application in a future window for filing applications to be considered in an auction for new FM stations.
- Via its “points system” for selecting among mutually exclusive applicants for NCE FM stations filed in the 2021 window for new NCE stations, the Bureau awarded a construction permit to an applicant for a new station at Willows, California. The Bureau did so notwithstanding a petition to deny filed by one of the other mutually exclusive applicants, which alleged that the winning applicant’s application should have been denied for reasons including diversity of ownership; whether the winning applicant was an “established local applicant”; public inspection file and local public notice requirements; and violation of the FCC’s technical rules. The Bureau conducted a factual analysis of the claims of the petitioner as to the localism of the application and found them to not be sufficiently supported by the facts, and it found the technical and application preparation issues to be insubstantial, not justifying the denial of the application.
February 20 to February 25, 2023
- The FCC’s Media Bureau designated for evidentiary hearing a series of applications that, if granted, would transfer control of TEGNA Inc. to SGCI Holdings III LLC. TEGNA is the parent company of the licensees of 64 full-power television stations, two full-power radio stations, and other related Commission licenses. In its Hearing Designation Order, the Bureau directs an FCC Administrative Law Judge to resolve questions regarding (i) whether the transactions are likely to trigger a cable or satellite rate increase harmful to consumers because of increases in retransmission consent fees, and (ii) whether the transactions will reduce or impair localism, including whether they will result in fewer employees and less local content at the stations. In a news release, FCC Chairwoman Rosenworcel stated that “[t]he additional review will allow us to make a more informed assessment on whether proposed safeguards [related to the transactions] are sufficient to protect the public interest, and we will take the time needed to address these critical questions.” From the Republican side, Commissioners Carr and Simington issued a joint statement that was less enthusiastic: “[T]he FCC should be working to encourage more of the investment necessary for . . . local broadcasters to innovate and thrive. . . After a protracted, nearly yearlong review, the Commission should be providing the parties with a decision on the merits—not an uncertain future.”
- The FCC released a draft Further Notice of Proposed Rulemaking (“FNPRM”) that, if adopted as scheduled at the FCC’s March 16 open meeting, would formally propose to extend the FCC’s existing audio description requirements for broadcast television to DMAs below the top 100 (i.e., DMAs 101-210). Audio description makes video programming more accessible to individuals who are blind or visually impaired by inserting, using a secondary audio stream, narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue. Audio description is already required in DMAs 1 through 90, and these requirements will go into effect in DMAs 91 through 100 on January 1, 2024. In these markets, “Big Four” stations (ABC, NBC, CBS, and Fox) are required to provide 50 hours of audio description per calendar quarter, either during prime time or in children’s programming, and 37.5 additional hours of audio description per calendar quarter between 6 a.m. and 11:59 p.m. local time. The FCC proposes to extend these requirements to DMAs 101-210 by phasing in 10 DMAs per year starting on January 1, 2025, meaning that the bottom 10 DMAs would not be phased in until January 1, 2035. The draft FNPRM asks for comment on, among other things, the cost implications of imposing audio description requirements on stations in DMAs below the top 100; the appropriate compliance deadlines for those stations; how the FCC’s proposals may affect advances in diversity, equity, inclusion, and accessibility; and the FCC’s legal authority to extend the audio description rules as proposed. If adopted, comments and reply comments on the FNPRM will be due 30 days and 45 days, respectively, after its publication in the Federal Register.
- The FCC recently released a new 2023 version of the EAS Operating Handbook. A copy of the Handbook must be located at normal duty positions of station operators or at the location of EAS equipment where it can be immediately available to staff responsible for authenticating messages and initiating actions. The handbook provides duty operators information about what to do when EAS alerts (tests or real activations of the system) are received by the station. The new handbook updates the old handbook in a limited fashion, but it also provides stations an opportunity to update their own practices as the Handbook requires that the broadcaster provide information in spaces provided as to the broadcaster’s specific equipment and procedures at their stations. Stations should download this Handbook and make sure that it is available as required.
- Stations are reminded that the deadline for filing EAS Test Reporting System (ETRS) Form One is February 28, 2023. Filing instructions are provided in the Public Notice issued by the FCC earlier this year. All EAS Participants – including Low Power FM stations (LPFM), Class D non-commercial educational FM stations, and EAS Participants that are silent pursuant to a grant of Special Temporary Authority – are required to register and file in ETRS, with limited exceptions. See our recent Broadcast Law Blog article for more information.
- The Media Bureau entered into a Consent Decree with the licensee of a noncommercial low power FM (LPFM) station to resolve the licensee’s admitted failure to comply with Section 73.850(d) of the FCC’s rules, which requires a station to notify the FCC within ten days that it has gone silent and request special temporary authority (STA) to remain silent for more than 30 days. The licensee admitted that the station had discontinued operations for 61 days (from May 26, 2021, to July 25, 2021), that it failed to comply with the 10-day notice rule, and that it failed to request an STA after 30 days of silence. The licensee also inaccurately certified in its renewal application that it had complied with Section 73.850(d), thus violating the FCC’s rule prohibiting inaccurate certifications. The Bureau directed the licensee to pay a civil penalty of $500 to the U.S. Treasury and to adopt a compliance plan to ensure future compliance with the rules that it violated. The Bureau also rejected a third-party objector’s claims relating to the station’s ownership, the station’s alleged unauthorized operation as a translator for another LPFM station, the station’s alleged airing of commercial advertising, and the station’s alleged failure to air local programming, finding that the objection did not provide specific allegations sufficient to support the claims made.
- The Bureau proposed to assess a fine of $13,500 against the licensee of nine digital television translator applications (i.e., $1,500 per station) because the licensee had without explanation filed the renewal applications for the stations over two months late. The Bureau noted that the base fine under the FCC’s rules for this type of violation is $3,000, but that it was reducing it to $1,500 because the stations provide a secondary service and were providing important “fill-in” service to areas that otherwise may be unable to receive over-the-air television signals.
- The Bureau continues to substitute UHF channels for VHF channels in local markets to improve reception of over-the-air television channels, the most recent example being its substitution of channel 27 for channel 11 at Yuma, Arizona.
February 13 to February 18, 2023
- The US Court of Appeals for the District of Columbia Circuit held an oral argument on the appeals of three parties seeking review of the Copyright Royalty Board’s decision setting the royalties for webcasting to be paid to SoundExchange for the period 2021-2025 (see our Broadcast Law Blog article for a summary of the Board’s decision being appealed). The NAB argued that the rates for broadcasters who simulcast their programming on the Internet should be substantially lower than the rates for other webcasters. The NRB’s Noncommercial Music Licensing Committee argued that the rates for noncommercial religious webcasters should be lower, mirroring the rates paid by nonprofit webcasters affiliated with NPR and the Corporation for Public Broadcasting. SoundExchange argued that the rates should actually be higher than those set by the CRB. The Court’s three-judge panel vigorously questioned the premises advanced by the attorneys for each of the parties (a recording of the argument is available here). A decision from the Court addressing the issues will likely not be released for several months.
- The Federal Trade Commission held a public forum on its proposal to ban noncompete clauses in employment agreements. The forum included many speakers supporting the proposed ban, and a few suggesting that the proposed across-the-board ban be limited. The FTC notice of the forum is here, and a recording of the session is available here. Written comments on the FTC proposal can be filed through March 20.
- The FCC upheld its Media Bureau’s determination that the licenses of an AM station and associated FM translator station in South Lake Tahoe had expired automatically when the stations did not operate for over a year. Section 312(g) of the Communications Act states that a broadcast license will automatically expire when a station is silent for more than a year, unless the FCC finds that “equity and fairness” requires that the license be extended. In this case, the licensee, without advising the FCC, stopped operating both stations from its licensed site sometime in December 2018 when its landlord seized all equipment at the transmitter site for unpaid rent. There was no evidence that either station operated in 2019. It was not until 2021 that the licensee asked for special temporary authority (STA) to operate both stations from a new site. In that STA, it failed to disclose that the stations had been silent for a consecutive 12-month period. While the Bureau granted the STA, once it learned of pending complaints about the station’s operations and the information gathered by the Enforcement Bureau about the complaints, it advised the licensee that the stations’ licenses had expired automatically as a matter of law pursuant to section 312(g). The licensee sought review raising several arguments including that the owner was suffering from Parkinson’s disease and thus had problems addressing the issues, that the pandemic made resumption of operation difficult, and that the licensee would transfer the station to its engineer, who was a minority. The FCC rejected these and other arguments, finding that the illness of the owner was not an excuse (he should have delegated operational issues to someone else), there was no showing that pandemic issues specifically caused any of the station’s financial issues in 2019, and that the proposed sale did not excuse the problems of the current licensee. The FCC found that there was nothing outside the control of the licensee that caused the period of extended silence so there was no reason to grant any relief by exercising its discretion under Section 312(g)’s “equity and fairness” exception.
- The Media Bureau entered into a consent decree with an FM station to resolve its admitted failure to timely upload records to its online public inspection file. The Bureau did not impose a fine, but the licensee agreed, among other things, to implement a comprehensive compliance plan to ensure future compliance with its online public inspection file obligations and, one year after entering into the consent decree, submit a compliance report to the Bureau’s Audio Division.
- The FCC issued a Public Notice announcing the agenda for the February 23 meeting of its Communications Equity and Diversity Council (CEDC). The agenda includes, among other things, a report on the activities of one of its working groups to provide recommendations for reducing entry barriers and encouraging diverse ownership and management of media, digital, communications services and next-generation technology properties, and to encourage start-ups advancing viewpoint diversity by a broad range of voices. The CEDC meeting will be held virtually, beginning at 10:00 a.m. ET, and will be available to the public for viewing at http://www.fcc.gov/live.
February 6 to February 12, 2023
- The Senate Commerce Committee announced that it will hold a hearing on February 14 on the long-delayed nomination of Gigi Sohn for the vacant Commissioner’s seat on the FCC. As we wrote on our Broadcast Law Blog in our January review of the many broadcast issues pending before the FCC, action on controversial issues has been delayed by the current deadlock of two Democratic and two Republican commissioners. Even if approved by the Committee following the hearing, the Sohn nomination will still need to get the approval of the full Senate before she fills the empty seat on the Commission.
- Congresswoman Elise Stefanik (R-NY), Congressman Ro Khanna (D-CA) and Congressman Mike Gallagher (R-WI) introduced the “Foreign Adversary Communications Transparency Act” or FACT Act. If enacted, this legislation, in the name of national security, would require the FCC to publish a list of every entity that holds or has an interest in an FCC license (including any equity interest or any other interest identified by a national security agency) and has ties to any authoritarian regime (including with any company organized in, or which is a subsidiary of a company organized in, one of the identified countries). The identified countries are China, Russia, Cuba, Venezuela, Iran, and North Korea. FCC Commissioner Carr issued a statement in support of this legislation, consistent with his previous support of other national security-related proposals involving the FCC.
- The FCC, via public notice, set the comment and reply comment deadlines for its Notice of Proposed Rulemaking (NPRM) in which it proposes to update certain TV technical rules that no longer have any practical effect given, among other things, the transition from analog to digital-only operations and the completion of the post-incentive auction transition to a smaller television band with fewer channels. We noted the initial adoption of this NPRM affecting TV and Class A stations in our Weekly Update when it was adopted at the FCC’s September meeting. Comments are due April 10 and reply comments are due April 25. The NPRM seeks comment on, among other things, whether to eliminate rules that relate to analog operating requirements; and to similarly eliminate language in rules to remove references to digital television or DTV service (as all TV service is now digital); whether to delete outdated rules that are no longer valid given changes in other Commission-adopted policy, such as the elimination of references to the comparative hearing process to award and renew broadcast licenses, a process eliminated by Congressional and FCC action over 25 years ago; and whether to make other mostly editorial updates to the Commission’s rules for TV and Class A stations.
- The FCC’s Media Bureau issued an Order reinstating seventeen channels as vacant FM allotments. The reinstated allotments include three FM channels in each of Arizona, California, and Texas, and one channel in each of eight other states. The listed allotments are now vacant because of the cancellation of a construction permit or license that had been issued for these channels. The vacant allotments will be available for application by interested parties in a future FM auction.
- In another decision involving NCE FM stations and “Raleigh” waivers (we noted other cases involving this policy last week), the FCC’s Media Bureau granted a station’s application to relocate its transmitter to a site that changed the location of existing contour overlap where the station would be predicted to cause interference to a neighboring station. A Raleigh waiver permits an NCE station to increase facilities and receive interference provided that the received interference would be from second- or third- adjacent channel stations and in a small area (an area less than 10% of the proposed service area), and where the benefit of increased NCE service heavily outweighed the predicted interference. In this case, the FCC approved the existing overlap between the applicant and the neighboring station by issuing the neighboring station a Raleigh waiver several years ago, allowing the neighboring station to increase its facilities and receive interference from the station that has now filed to increase its own facilities. Because the neighboring station had received the benefit of this past Raleigh waiver, the current application to change the interference area would be granted because the proposal served the public interest for reasons including the increase in the service that would be provided by the applicant. The Bureau noted that the neighboring station’s Raleigh waiver included a standard condition that, in effect, permitted the current applicant to subsequently modify its facilities in a manner that changed the overlap area, as it did in the current application.
January 30, 2023 to February 5, 2023
- The American Music Fairness Act, proposing to enact a sound recording performance royalty for over-the-air broadcasters, was introduced in in both the House and Senate this past week. Last year, a similar bill was approved by the House Judiciary Committee but did not advance further before the last Congress adjourned, requiring it to be reintroduced in the new Congress that began in January. SoundExchange issued a press release supporting the new bill, while the NAB issued a statement opposing it and urging the record labels to negotiate with the NAB to try to reach a compromise. We wrote about last year’s version of the bill on our Broadcast Law Blog when it was being considered by the Judiciary Committee.
- The NAB submitted a filing urging the FCC to complete its 2018 quadrennial review of the broadcast ownership rules by the end of the first quarter of 2023. NAB also urged the FCC to toll the 2022 quadrennial review (including the upcoming March comment deadlines) until the 2018 review is completed. The 2018 review, among other issues, proposed to revise the local radio ownership rules, to review the dual network rule, and to consider an objective formula for considering any proposal for the combination of two Top 4 television stations in any market. The Public Notice beginning the 2022 review essentially asks for an update of the 2018 record. For more on the 2018 review and the 2022 notice, see our article here. It is unclear at this time when or how the FCC will handle the NAB’s request.
- Related to the ownership review, the FCC released a Public Notice announcing the agenda for the Communications Equity and Diversity Council (CEDC)’s “Expanding Digital and Media Ownership opportunities for Women and Minorities,” symposium on February 7, 2023, from 9:30 am to 4:45 pm, ET. The CEDC is an advisory council of the FCC. The goal of the symposium is to explore the challenges as well as possible solutions for increasing ownership opportunities for women and people of color in all facets of media – TV, radio, cable, and streaming.
- Notwithstanding “a long history of rule violations” and a third-party objection, the FCC’s Media Bureau renewed the license of a noncommercial educational (NCE) FM station, conditioned on the licensee’s continued compliance with a September 2020 consent decree with the Bureau. After a probationary period under a new Board of Directors, and the licensee having taken steps to resolve complaints of “blanketing interference,” the Bureau renewed the license subject to future FCC oversight of the resolution of additional interference complaints and the licensee’s maintaining an accurate public file. Blanketing interference, which led to the objection to the renewal, is interference to RF devices owned by consumers in the area within an FM station’s 115 dbu contour. Within one year of starting operations with any new facility, broadcasters must resolve all complaints of blanketing interference (with certain limited exceptions). This includes the broadcaster having to buy a consumer new equipment if the interference cannot otherwise be resolved. After one year of operations, the station must still assist consumers in resolving such complaints, though the station no longer has financial responsibility.
- In another decision dealing with NCE stations and interference, the Bureau weighed the application of one NCE station to increase its facilities even though the proposal would increase existing areas where the station caused interference to another station, and increase the areas where the upgrading station would receive interference within its protected contour from the other station. The FCC has a policy of granting a so-called “Raleigh waiver” to allow an NCE station to increase facilities and receive interference where the received interference is from second- or third- adjacent channel stations, is in a small area (an area less than 10% of the proposed service area), and where the benefit of increased NCE service heavily outweighs the predicted interference. In this case, as the received interference was proposed to occur in less than 5% of the applicant’s proposed new service area, the Bureau found that the Raleigh standard was met. The application would also cause increased interference to the other station, but the FCC found that the small area of possible new interference to the other station was insignificant, particularly as the other station had itself been allowed many years ago to increase facilities by accepting the interference that it receives from the station now proposing to upgrade, so a small increase in that area of interference should not be prohibited.
- The FCC’s Enforcement Bureau issued a Notice of Violation to an FM translator for purportedly violating the FCC’s rules that (1) prohibit FM boosters and translators from operating during extended periods when signals of the primary station are not being retransmitted, and (2) require that station employees maintain station logs. The station’s licensee was given 20 days to respond to the Notice.
- The Media Bureau issued a Declaratory Ruling permitting Spanish Broadcasting System, Inc. (SBS) to exceed the 25% benchmark for foreign equity investment set out in section 310(b)(4) of the Communications Act. The FCC is permitted to allow foreign entities to own more than 25% of the equity of the parent company of an FCC licensee if that ownership would not harm the public interest. That evaluation is made by looking at factors including whether there are any national security concerns about the proposed foreign ownership. Here, proposed ownership by foreign investors of up to 49.99% of SBS’s equity was found not to harm the public interest, as the company would still be controlled by a US citizen and the investments by funds organized in foreign countries but controlled by US and Canadian entities were found by executive agencies to not pose any security risk. For more information on the FCC’s process of approving foreign investment in companies owning US broadcast stations, see our articles here and here.
- The Media Bureau issued a Public Notice setting comment dates as to whether, in determining if specific closed captioning display settings are readily accessible, the FCC should consider the following factors: proximity, discoverability, previewability, and consistency and persistence. Comments are due March 3, and reply comments are due March 20. The request for comments is an offshoot of the FCC’s ongoing rulemaking on requiring manufacturers of video displays, including television sets, to make closed captioning display settings readily accessible to individuals who are deaf and hard of hearing.
January 23, 2023 to January 30, 2023
- The FCC issued a Public Notice extending the deadlines for all filings in the FCC’s LMS or online public file systems. The new deadline is February 28, 2023. The extension was necessitated by widespread technical issues throughout the month of January with the FCC’s LMS and online public file systems. The February 28 deadline applies to TV license renewal applications in New York and New Jersey, Annual Children’s Programming Reports, Quarterly Issues Programs lists for all broadcast stations (the deadline for which was already extended once before), and EEO Public File Reports for broadcast employment units with 5 or more full-time employees in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York, and Oklahoma. Notwithstanding the extension, licensees should not wait until the last minute to upload documents, as there may still be residual issues with the system for some time. For more details about the extension and about other technical issues with the FCC’s filing systems, see the article we recently published on our Broadcast Law Blog.
- The FCC issued a Notice of Apparent Liability (NAL) proposing a penalty of $504,000 against Fox Corporation and related entities for apparently violating Section 11.45(a) of the FCC’s rules, which prohibits false or deceptive emergency alert system (EAS) codes or EAS Attention Signals. According to the NAL, on November 28, 2021, Fox transmitted a three second excerpt of the EAS Tones during a Fox National Football League broadcast in a short comedic promotional segment for an upcoming game. The segment was run on its 18 owned-and-operated stations, on 190 network affiliated stations, on Fox Sports Radio (reaching nearly 15 million listeners on iHeartRadio and FOXSportsRadio.com), and on the “Fox Sports on XM” channel carried nationwide on the Sirius XM satellite digital audio radio service. The FCC applied an $8,000 base penalty multiplied by 18 (i.e., the number of Fox owned-and-operated stations involved) to arrive at a total base penalty of $144,000, with an upward adjustment to $504,000 due to the audience reach of the Fox stations, the fact that the creation and transmission of the segment involved self-promotion by Fox for the purposes of economic gain, and as Fox is an experienced broadcaster well aware of the FCC rules. While the FCC also found Fox responsible for transmitting the segment to its affiliates nationwide in violation of the rule, the FCC did not fine Fox as a programming network because the one-year statute of limitations period applicable to non-broadcasters had expired.
- The FCC’s Audio Division released a Public Notice informing broadcasters that 2020 census data is now available and should be used for all technical applications when computing areas and populations served by any proposal. The Notice also describes the Census Bureau’s new list of Urbanized Areas, relevant to FCC applications including those that involve an analysis of the Commission’s Rural Radio policy.
- The Copyright Royalty Board published in the Federal Register the proposed rates for the public performance of musical compositions by noncommercial broadcasters for the period 2023 through 2027. The rates reflect settlements between ASCAP, BMI, SESAC and GMR with various organizations representing noncommercial broadcasters, including the Corporation for Public Broadcasting and the NRB (the religious broadcasters’ organization which has a noncommercial licensing committee). The decision also includes rates for noncommercial stations licensed to colleges, universities, and other schools. Comments and objections, if any, to these proposed rates are due on or before February 27, 2023. More information about the rates and the CRB proceeding is available in this article we published on our Blog.
- In 2018, the FDA announced that it would be adopting rules for CBD health claims and the inclusion of CBD in ingestible products. The FDA this week announced that it has been unable to reach a decision, as it was not in a position to approve CBD as a food additive or health supplement, suggesting that Congress should address these issues. Broadcasters should consult with counsel before running CBD advertising that makes health-related claims, or ads for ingestible CBD products.
- Several decisions were issued in connection with applications filed in the 2021 noncommercial FM window.
- The Bureau rescinded its selection of the winning applicant for an NCE FM station at Dasher, Georgia, after considering a petition to deny that it did not review before the winning applicant was selected. The Bureau had mistakenly relied on the applicant’s original population coverage analysis submitted in its application in finding the applicant to be preferred in a “fair distribution” analysis, overlooking an amended analysis submitted later. After considering the amended analysis, the Bureau found that the winner’s coverage proposal exceeded that of the remaining competing applicant by less than the 5,000 people necessary for a decisive preference. Accordingly, the Bureau referred the two applications to the full FCC for evaluation under its point system analysis.
- The Bureau also rescinded the tentative selection of an applicant for a new NCE FM station at Shiner, Texas, finding that the applicant lacked reasonable assurance of the availability of its tower site when it filed its application. An NCE applicant is required to specify in its application the name of the person contacted about the site, the person’s telephone number, and the person’s authority to give permission (i.e., are they an owner, agent, or authorized representative). The applicant instead submitted information regarding an individual employed by a tower company unrelated to the actual tower owner, and never amended its application to correct the error or to provide information that it had received permission from the tower owner.
- The FCC issued a Memorandum Opinion and Order tentatively selecting winning applicants from 34 groups of mutually exclusive NCE FM applications using its points analysis. The decision is a good primer on how the FCC’s point system works and what the FCC considers when performing the points analysis.
- The Bureau entered into a consent decree with a student-run NCE FM station to resolve the station’s acknowledged violation of the FCC’s rules relating to timely filing of renewal applications and maintenance of an online public inspection file. As this was a first-time paperwork violation by a student-run station, it fell within the policy treating such violations leniently, so the consent decree required a penalty payment to the United States Treasury in the amount of only $500 and implemented a comprehensive plan to ensure future compliance by the station with the FCC’s online public inspection file and application filing obligations.
- The FCC’s Wireless Telecommunications Bureau issued updated instructions to the tower industry for considering as part of an applicant’s environmental review the potential effects that proposed facilities could have in the northern long-eared bat’s (Myotis septentrionalis) range. The U.S. Fish and Wildlife Service’s new rule on the subject will go into effect on March 31, 2023. The most recent Public Notice on these items is available here.
- The FCC’s Media Bureau issued a Public Notice requesting comment on a proposal that would require the FCC to consider proximity, discoverability, previewability, consistency, and persistence when determining whether closed captioning display settings are readily accessible. The Public Notice is an offshoot of the FCC’s ongoing rulemaking on requiring manufacturers of video displays, including television sets, to make closed captioning display settings readily accessible to individuals who are deaf and hard of hearing. Comments and reply comments will be due 30 and 45 days, respectively, from the date on which the Public Notice is published in the Federal Register.
January 15, 2023 to January 22, 2023
- The Federal Trade Commission’s proposal to ban noncompete clauses in employment agreements was published in the Federal Register, setting a comment deadline of March 20, 2023. The proposal is a broad one, proposing to prohibit any agreement that has the same effect as a noncompete agreement, including broad nondisclosure agreements that would preclude a worker from working in their field at a new company, or contract clauses that require an employee to repay a company for training costs if the employee leaves the company. The proposed rule would apply not just to employees of a company, but also to independent contractors, interns, and others performing work for a company.
- The FCC’s Media Bureau issued a Public Notice announcing that the comment dates for the FCC’s 2022 Quadrennial Review of the broadcast ownership rules were set by the publication of the announcement of the review in the Federal Register. As we reported last week when the Federal Register publication occurred, comments are due March 3, 2023, with reply comments due by March 20, 2023. For more about the issues in this proceeding, see our article here on our Broadcast Law Blog.
- The Media Bureau granted an application for a construction permit for a new noncommercial education (NCE) FM station at Spencer, Iowa, providing a new wrinkle in the policies for processing mutually exclusive applications in noncommercial FM filing windows. The Bureau allowed the Spencer applicant to file a technical amendment to eliminate its application’s mutual exclusivity with all of the other mutually exclusive applications, rendering its application grantable. The new wrinkle was that the amendment was filed after one of the other applicants in the group of mutually exclusive applications had already been tentatively selected by the Bureau for a grant following a comparative analysis. The Bureau found that granting the amended Spencer application would not violate the FCC’s policy of granting only one application per mutually exclusive group as there was nothing in the FCC’s rules or its NCE FM processing procedures that prohibits an applicant from filing a technical amendment to eliminate its mutual exclusivities before, or after, the Bureau or the FCC conducts a comparative analysis. The Bureau did find that a second amendment to increase power to take advantage of the dismissal of another application that was not selected as the comparative winner was improper as, in prior cases, the FCC has not allowed applicants to take advantage of the involuntary dismissal of other conflicting applications in an MX group.
- The Bureau also issued a Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture in which it proposes to fine a low power television (“LPTV”) station $6,500 and issue it a two-year license renewal for failing to timely file an application for a license to cover the construction of facilities authorized by its digital construction permit, and thereby engaging in unauthorized operation for over two years after its construction permit expired. License applications certifying to the FCC that the new facilities were constructed according to the specifications in the construction permit must be filed when construction is complete. As applicants before the FCC are responsible for ensuring that their actions are consistent with FCC rules, the Bureau did not excuse the violations even though the station claimed that its failure to timely file for a license to cover was inadvertent and its actions (or lack thereof) were taken at the advice of its engineering consultant. Although the FCC’s policies establish a base fine amount of $3,000 for the failure to file a required form, and a base fine amount of $10,000 for construction and operation without a valid authorization, the Bureau reduced the proposed fine to $6,500 because the station was an LPTV station and thus providing a secondary service. The short-term renewal was issued to give the FCC the opportunity to sooner review the licensee’s future performance not only because of the failure to timely file the license application, but also because the Bureau found the licensee was slow to respond to FCC requests for information and often inaccurate in its FCC filings.
- The FCC issued its Sixth Report on Ownership of Broadcast Stations, based on FCC Form 323 and Form 323-E ownership data as of October 1, 2021. This report provides a detailed review of the ownership interests in commercial and noncommercial broadcast stations (specifically full power television, Class A television, low power television, AM radio and FM radio) by gender, race, and ethnicity.
- The FCC released a Public Notice announcing that it will host a symposium on “Expanding Digital and Media Ownership Opportunities for Women and Minorities” on Tuesday, February 7. The FCC states that the symposium will feature panels discussing the competitive challenges facing minorities in media and tech, best practices for cultivating the next generation of diverse media leaders, and tax and other incentives to support diverse owners. Symposium participants will include media companies, entrepreneurs, research and thought leaders, advertising and marketing experts, and media/tech training program representatives.
January 7, 2023 to January 14, 2023
- On Tuesday, January 17, the Public Notice that initiates the 2022 quadrennial review of the FCC’s media ownership rules is to be published in the Federal Register. As a reminder, the Public Notice seeks comment on (i) the Local Radio Ownership, Local Television Ownership, and Dual Network Rules; (ii) the public interest impact of the FCC’s media ownership rules, including changing market conditions; and (iii) the effects of the media ownership rules on the ownership of broadcast stations by minorities and women. The Federal Register publication sets the comment dates for the proceeding. Comments and reply comments will be due March 3 and March 20, respectively. For more background on this proceeding, see our article here.
- The Commission also released a study of Television Station Ownership Diversity conducted by an FCC staff economist. The information provided in that study may be referenced by the FCC in its evaluation of the ownership rules. The study found that, in the last ten years, there has been a decrease in the number of female-, Asian-, and American Indian/Alaska Native-owned stations and an increase in Black/African-American- and Hispanic/Latino-owned stations. It found that most minority-owned station were in smaller markets, but that there was no disparity in their advertising sales compared to stations owned by white men in the same markets. It also found, perhaps unsurprisingly, that most of the biggest billing, large market stations were held by public company with few attributable owners given the broad ownership of such companies.
- The FCC’s Media Bureau continues to make UHF-for-VHF channel substitutions to facilitate better technical service in local markets. This past week the FCC substituted Channel 36 for Channel 10 at Norwell, Massachusetts, and Channel 30 for Channel 5 at Memphis, Tennessee. In the Memphis case, the Commission found that, although there was some predicted loss of service by the channel change, the loss area was already well covered by other broadcast stations, and the licensee had also purchased LPTV stations to provide its programming to the vast majority of the loss area. The FCC also proposed a noncommercial VHF-for-VHF substitution at Roanoke, Virginia, i.e. noncommercial Channel 13 for noncommercial Channel 3, on the theory that allowing the requesting station to move to a high-VHF channel would address viewer complaints about the quality of the station’s signal and thus improve the viewability of the station’s PBS programming. While the Bureau noted that the proposal would cause over 64,000 persons to lose access to the station’s signal, it states that only 94 of those viewers would lose all access to all PBS programming as other PBS stations service most of the loss area.
- The FCC released a Public Notice providing the total number of broadcast stations licensed as of December 31, 2022. That notice continues to show a drop in the number of AM stations compared with the Public Notice released 6 months ago, with a smaller increase in the number of FM stations. Compared to 6 months ago, there are slightly more commercial UHF stations, but slightly fewer commercial VHF stations.
- On our Broadcast Law Blog, we published an article linking to our Broadcasters’ Regulatory Calendar, setting out many of the routine regulatory dates that broadcasters should keep in mind in 2023. These include routine public file uploads of Quarterly Issues Programs Lists and EEO Public File Reports, as well as matters less routine, like the December 1 deadline for Biennial Ownership Reports and this year’s must-carry/retransmission consent elections.
December 31, 2022 to January 6, 2023
- In a Public Notice released late on Friday, the FCC’s Media Bureau extended the deadline for the upload of Quarterly Issues Programs lists to the online public inspection file of full-power broadcast stations. These reports were due to be uploaded by January 10 but, as the FCC’s online public inspection file system has been experiencing technical difficulties in the new year, the Media Bureau extended the deadline to January 31, 2023.
- The President renominated Gig Sohn for the vacant Commissioner’s seat on the FCC (nomination contained in the list, here). She was initially nominated in 2021, but her nomination was not approved by the Senate before the last session of Congress ended at the end December, and she thus had to be renominated. It is unclear when the Senate will consider the nomination and whether the steps taken to consider her nomination in the prior Congress (including public hearings) will need to be repeated.
- On our Broadcast Law Blog, we posted an article listing many of the issues that will be facing the FCC in the new year, and some of the issues that may be impacted by when the new Commissioner is approved by the Senate.
- The Federal Trade Commission issued a Notice of Proposed Rulemaking which would ban non-compete agreements in all employment contracts (except where related to the sale of a business)(FTC “Fact Sheet” here). The proposed rule would apply to any agreement that has the same effect as a noncompete agreement, including broad nondisclosure agreements that would preclude a worker from working in their field at a new company, or contract clauses that require an employee to repay a company for training costs if the employee leaves the company. The proposed rules would also require that existing contracts be amended to exclude any noncompete language, and workers would have to be informed that any noncompete language is no longer enforceable. The proposed rule would apply not just to employees of a company, but also to independent contractors, interns, and others performing work for a company. Comments will be due 60 days after the publication of the Notice of Proposed Rulemaking in the Federal Register.
- The FCC’s Public Safety and Homeland Security Bureau issued a Public Notice announcing that the EAS Test Reporting System (ETRS) is now open for the filing of ETRS Form One, with a deadline for submission of February 28, 2023. ETRS is used to report on the results of nationwide EAS tests which assess the ability of the President to get an alert out to the full country. ETRS Form One requests basic information about contact persons at a station, the model of EAS equipment used, and monitoring assignments under the legacy EAS system. The Bureau explains that it is important that EAS Participants confirm that the information they enter is accurate and that they correct any past filing errors. There was no nationwide EAS test during 2022 and, while FEMA has not announced a test date for 2023, one is expected. See the article on our Broadcast Law Blog, here, for more information.
- President Biden signed the Low Power Protection Act, which directs the FCC to start a proceeding to give LPTV stations Class A status if they have provided 3 hours of local programming per week in the 90 days prior to the enactment of the legislation. Class A status means that the stations are protected against interference from any new full-power TV station or other spectrum user. To qualify, the LPTV station must be in a DMA with not more than 95,000 households. That is approximately DMA 175 and smaller.
- The FCC’s adjustment of the maximum amount of FCC fines was published in the Federal Register this week, setting the effective date of these increase as January 15, 2023. The FCC’s Order adjusting these penalties noted that, for most violations, after the effective date of these increases, a fine shall not exceed $59,316 for each violation or each day of a continuing violation, with a maximum total fine for any continuing violation not to exceed $593,170. For fines involving indecency, the fines can be up to $479,945 for each violation or each day of a continuing violation, with a maximum for a continuing violation of $4,430,255 for any single act. For violations of the rules prohibiting pirate radio operations, the fine can be as much as $115,802 per day not to exceed a total of $2,316,034.
- The Video Division of the Media Bureau issued a list of LPTV and TV translator stations in Alaska, Hawaii, Oregon, and Washington State that did not timely file license renewal applications by the October 3, 2022 deadline. The licenses for these stations (and their operating authority) will expire on February 1, 2023 if no application is on file by that date.
December 17 to December 30, 2022
- The FCC, as required by the Communications Act, released a Public Notice announcing the start of the 2022 Quadrennial Review of the FCC’s ownership rules. The FCC is required, once every four years, to review their local ownership rules to see if they remain in the public interest. The Notice starts the review required for this year even though the 2018 review remains pending with seemingly little likelihood of any action as long as the FCC remains politically divided (currently two Republicans and two Democrats with one open seat). The Public Notice asks for interested parties to update the record gathered in the 2018 review to discuss, among other things, the current state of competition in the media marketplace and whether, given any changes in that marketplace, whether changes in the rules are required. For more on this Notice and its background, see our article on our Broadcast Law Blog.
- The FCC also released its Marketplace Competition Report where, each year, it reports to Congress on the state of competition in all of the markets it regulates – including both the audio and video marketplaces. This report is provided to advise Congress on the state of competition in the communications marketplace so that the facts can be considered in connection with any legislation.
- Congress passed the Low Power Protection Act, which directs the FCC to start a proceeding to give LPTV stations Class A status if they have provided 3 hours of local programming per week in the 90 days prior to the enactment of the legislation. Class A status means that the stations are protected against interference from any new full-power TV station or other spectrum user. To qualify, the LPTV station must be in a DMA with not more than 95,000 households. That is approximately DMA 175 and smaller.
- The Commission released an Order adjusting for inflation the maximum penalties that can be assessed for a violation of FCC rules. For most violations, after the effective date of these increases, the fine shall not exceed $59,316 for each violation or each day of a continuing violation, with a maximum total fine for any continuing violation not to exceed $593,170. For fines involving indecency, the fines can be up to $479,945 for each violation or each day of a continuing violation, with a maximum for a continuing violation of $4,430,255 for any single act. For violations of the rules prohibiting pirate radio operations, the fine can be as much as $115,802 per day not to exceed a total of $2,316,034. These increased fines will be effective upon publication in the Federal Register.
- The Audio Division of the Media Bureau issued a Letter asking an applicant seeking a city of license and transmitter site change for an existing FM station in Texas for more information as to why those changes were in the public interest. In seeking a change in the city of license of a radio station, the FCC looks at the areas and populations covered by the station currently and compares it to the areas and populations that will be served by the station after the proposed changes. Here, where the proposal would serve fewer people and move the city of license to a substantially smaller community, the Division’s letter suggested that the change was not in the public interest. This Letter provides a good example of the considerations weighed by the Division in assessing the public interest considerations in any city of license change.
- The Audio Division also released a Letter decision upholding a prior decision rescinding the license of a FM translator that had been constructed at a site that was not authorized by its construction permit, and was operated from a mobile home park for only three months before being taken silent, violating the FCC’s policy requiring “permanent” construction of any facility used to meet a construction deadline so as to not waste the FCC’s time granting temporary facilities that will not make permanent use of the broadcast spectrum.
- The Enforcement Bureau issued a Citation against a manufacturer of FM transmitters that could operate outside the FM band, did not have the proper connections for antennas to be used with the transmitter, and did not come with appropriate operator’s manuals. As noted in the Citation, all radio frequency devices marketed in the US must have FCC approval, which these transmitters allegedly did not when initially marketed. The Bureau asked for the company’s response and warned that it could impose fines of up to $22,021 for each such violation, and up to $165,159 for any single act or failure to act.
December 3 to December 9, 2022
- The FCC has sent an e-mail, apparently to all broadcasters, regarding the cybersecurity of broadcast stations that use the DASDEC EAS encoder/decoder device sold by Digital Alert Systems (formerly Monroe Electronics), using software prior to version 4.1. The email states that the Cybersecurity and Infrastructure Security Agency issued an advisory expressing concern that there is a vulnerability in the code used by the system that can be used by remote attackers. The e-mail recommends that stations using this equipment make sure that they have downloaded the latest updates containing a patch to the vulnerability, and adopt good “cyber hygiene,” including the steps set forth in the FCC’s August 5 Public Notice on that subject, which include updating passwords, using firewalls and isolating equipment that may be subject to attack.
- On Wednesday, the House Judiciary Committee held a “mark-up session” for the American Music Fairness Act, which proposes to impose a sound recording performance royalty on over-the-air broadcasting. This bill proposes a royalty paid to SoundExchange by over-the-air radio to benefit the recording artist and copyright holder (usually the record company), in addition to the royalties already paid to composers and publishing companies through ASCAP, BMI, SESAC and GMR. The Committee approved the bill, passing it on to the full House of Representatives for consideration. The full House and the Senate would have to approve it, and have it and signed by the President, before it became law. With the current session of Congress coming to a close at the end of the month, if not approved this month, the proposed legislation would need to start over in the new Congress in January. Thus, unless the bill is tacked on to some must-pass legislation in this “lame duck” session of Congress, this week’s action by the Committee is likely a marker for action in the new year. We wrote more about the bill and its impact this week on our Broadcast Law Blog
- The FCC has published in the Federal Register the Report and Order (R&O) that updates the FCC’s rules to identify Nielsen’s monthly Local TV Station Information Report as the new publication for determining a television station’s designated market area for satellite and cable carriage purposes. As a result, the R&O and associated rule changes will be effective January 6, 2023. For more details, see our articles here and here.
- As we’ve previously reported, the Federal Election Commission (“FEC”) has adopted new disclaimer requirements for internet-based political advertising, including detailing the required identification of the ad sponsor. When it adopted its new rules, the FEC rejected a broader proposal that would have included not just communications where the owner of the digital platform was paid for the inclusion of the ad, but also political communications where the platform itself may not have been paid, but where the sponsor of the communication paid others to promote or otherwise broaden the dissemination of the communication. Instead, the FEC issued a Supplemental Notice of Proposed Rulemaking seeking public comment as to whether disclaimers should be required for such promoted communications. The Supplemental Notice was published in the Federal Register on December 9, meaning that public comments are due by January 9, 2023. The Supplemental Notice asks about the impact of such a rule, and whether the FEC’s proposed rules for sponsorship disclaimers for promoted communications appropriately covered the issues. These rules are important to influencers and other social media users who are paid to promote political messages.
- The FCC’s Media Bureau has entered into a Consent Decree due to the operation of a station by the deceased licensee’s daughter (the licensee’s beneficiary) for nine years after the death of the licensee, without anyone seeking any FCC approval for her assumption of control. The estate and the daughter were required to pay a $7,000 fine and adopt a mandatory plan to ensure compliance with the FCC rules that had been violated. The FCC rules require that the FCC be notified of a licensee’s death within ten days, and to seek approval for an involuntarily transfer control of the station’s license to the estate within 30 days. Once the estate has been probated, another application to transfer control to the beneficiary is also required. None of those applications were filed for nine years in this case. In addition, the parties admitted that they had not timely uploaded records to the station’s online public inspection file, and were further found to have violated the FCC’s ownership report rule, apparently for failing to file a biennial ownership report by December 1 in all odd-numbered years. The case is a reminder that upon the death or incapacity of a licensee or a controlling owner of a licensee, the FCC needs to be notified and approve those who subsequently control the station (similar rules apply where a licensee goes into bankruptcy).
- On our Broadcast Law Blog this week, we wrote more about the meaning and implications for local advertising of the FTC decision we noted in last week’s regulatory update, fining Google and iHeart Radio for running ads by local announcers touting their use of a new Google phone, which they in fact had not used. In our article, we noted that all media companies need to make sure that any ad using endorsements or testimonials is fully accurate and meets FTC guidelines to avoid penalties for deceptive advertising.
November 26 to December 2 , 2022
- The Federal Trade Commission and seven state Attorneys General announced a settlement with Google LLC and iHeart Media, Inc. over allegations that iHeart radio stations aired thousands of deceptive endorsements for Google Pixel 4 phones by radio personalities who had never used the phone. The FTC’s complaint alleges that in 2019, Google hired iHeart and 11 other radio broadcast companies to have their on-air personalities record and broadcast endorsements of the Pixel 4 phone, but did not provide the on-air personalities with the phone that they were endorsing. Google provided scripts for the on-air personalities to record, which included lines such as “It’s my favorite phone camera out there” and “I’ve been taking studio-like photos of everything,” despite these DJs never having used the phone. The deceptive endorsements aired over 28,000 times across ten major markets from October 2019 to March 2020. As part of the settlement, subject to approval by the courts, Google will pay approximately $9 million and iHeart will pay approximately $400,000 to the states that were part of the agreement. The settlement also imposes substantial paperwork and administrative burdens by requiring both companies to submit annual compliance reports for a period of years (10 years in the case of iHeart), and create and retain financial and other records (in the case of iHeart, the records must be created for a period of ten years and retained for five years). This case is a reminder that stations must ensure that their on-air talent have at least some familiarity with any product they endorse, particularly where on-air scripts suggest that they have actually used the product. Stations should not assume that talent know the relevant rules – they more likely will just read whatever is handed to them without understanding the potential legal risk for the station, which, as demonstrated in this case, could be significant.
- In a Federal Register notice, the Copyright Royalty Board announced cost-of-living increases in the statutory royalties to be paid by webcasters for the public performance of sound recordings. These are the royalties paid to SoundExchange by those making noninteractive digital transmissions of sound recordings. In 2022, commercial webcasters, including broadcasters streaming their programming on the Internet, pay $.0022 per performance for a nonsubscription transmission and $.0028 per performance for a subscription transmission. The Federal Register publication sets out the computations for the cost-of-living increase and announces that the rate for nonsubscription transmissions made in 2023 will be $.0024 per performance, and for subscription transmissions, the rate will be $.0030 per performance. For noncommercial webcasters, the 2023 rate will be $0.0024 per performance for all digital audio transmissions in excess of the monthly 159,140 aggregate tuning hours of music programming per channel or station that a noncommercial webcaster gets for its yearly $1000 per channel minimum fee. We provided more information about this cost-of-living increase in an article on our Broadcast Law Blog.
- At an open meeting held on December 1, 2022, the Federal Election Commission (FEC) adopted new disclaimer requirements for internet-based political advertising, including the identification of the ad sponsor. This decision resolves issues that have been debated at the FEC for over a decade. These rule changes will impact anyone that accepts political advertising on websites or other digital platforms. The FEC adopted a proposal that would amend its rules to require disclaimers on all “communications placed for a fee on another person’s website, digital device, application, or advertising platform.” The FEC rejected, by a 4 to 2 vote, a broader proposal that would have included not just communications where the owner of the digital platform was paid for the inclusion of the ad, but also political communications where the platform itself may not have been paid, but where the sponsor of the communication paid others to promote or otherwise broaden the dissemination of the communication. Instead, the FEC issued a Supplemental Notice of Proposed Rulemaking seeking public comment as to whether disclaimers should be required for such promoted communications. The new rules also describe the disclaimers that will be required on internet communications once the new rules become effective, and include exceptions to these requirements where, because of the size of the announcement or other technical limitations, the full disclaimer cannot be added. The new rules will become effective after they have been transmitted to Congress for a 30-day review period. Comments on the Supplemental Further Notice will be due 30 days after the notice is published in the Federal Register.
- The FCC’s Media Bureau released a Public Notice seeking comment on a Petition for Rulemaking filed in October 2022 by the NAB and Xperi Inc. The Petition asks the FCC to (i) adopt an updated formula to determine FM digital sideband power levels that would allow many stations to increase digital power; and (ii) consider this request with another raised in a 2019 petition to permit digital FM radio stations to utilize asymmetric sideband power levels without having to request experimental (a request granted by the Public Notice consolidating the issues raised by both petitions into one proceeding). The petitioners believe that adoption of these proposals will give FM HD Radio signals a greater coverage area and more robust signal strength, enhancing the attractiveness of the service to stations and consumers. We wrote more about this proceeding and the issues it raises, here. Comments and reply comments in this proceeding will be due January 12, 2023 and February 13, 2023, respectively.
- The Media Bureau issued a Public Notice reminding television stations that the FCC’s audio description rules will extend to Nielsen DMAs 81 through 90 on January 1, 2023. Audio description makes video programming more accessible to individuals who are blind or visually impaired through “[t]he insertion of audio narrated descriptions of a television program’s key visual elements into natural pauses between the program’s dialogue.” The FCC’s audio description rules require television broadcast stations affiliated with the Top 4 networks and multichannel video programming distributors (MVPDs) to provide audio description for 50 hours per calendar quarter, either during prime time or on children’s programming, and 37.5 additional hours of audio description per calendar quarter between 6 a.m. and 11:59 p.m. local time, on each programming stream on which they carry one of the top four commercial television broadcast networks. The FCC relies on Nielsen’s list of DMAs as of January 1, 2020, meaning that DMAs 81 through 90 are the following: Madison, WI; Waco-Temple-Bryan, TX; Harlingen-Weslaco-Brownsville-McAllen, TX; Paducah, KY-Cape Girardeau-Harrisburg, MO; Colorado Springs-Pueblo, CO; Shreveport, LA; Syracuse, NY; Champaign and Springfield-Decatur, IL; Savannah, GA; and Cedar Springs-Waterloo-Iowa City and Dubuque, IA.
- The Auctions Division of the FCC’s Office of Economics and Analysis issued a Notice of Demand for Payment in the amount of $522,500 to the winning bidder of an FM construction permit in Auction 98 who defaulted on its auction bid and did not receive a waiver of the down payment deadline. The large amount due is attributable to fact that the winning bid received when the permit was re-auctioned was significantly less the bid originally submitted by the defaulting bidder. This case is a reminder to auction participants that a winning bidder assumes a binding obligation to pay the full amount of its accepted winning bid. A bidder who defaults on its bid is subject to a default payment including the amount by which the defaulted bid exceeds the amount received when the channel is sold in a subsequent auction, which, as demonstrated in this case, can be significant.
- The Media Bureau continues to drop in new FM channel allotments, and grant channel substitutions for television stations to address signal reliability. Comments and reply comments are due January 23 and February 7, 2023, respectively. If allotted, the channel would be available to interested applicants in a future FM auction. These VHF to UHF channel changes, which are sought because of UHF’s recognized superiority for digital television service, have been permitted since last year when the FCC lifted the freeze on TV channel changes that had been in effect for almost a decade while the FCC conducted its incentive auction and the subsequent repacking of the TV band.
November 19 to November 25, 2022
- The FCC’s Notice of Proposed Rulemaking (“NPRM”) looking to enhance the security of the Emergency Alert System (“EAS”) and Wireless Emergency Alerts (“WEA”) was published in the Federal Register this week. That publication sets the deadlines for public comment as December 23, 2022, for comments and January 23, 2023, for replies. The FCC seeks comment on, among other things, whether to require EAS Participants (including broadcasters) to report to the FCC incidents of unauthorized access to EAS equipment within 72 hours of when the participant knew or should have known that the incident occurred, and whether EAS Participants (including broadcasters) should be required to submit an annual cybersecurity certification that demonstrates how the participant identifies the cyber risks that it faces, the controls it uses to mitigate those risks, and how it ensures that these controls are applied effectively. We wrote more extensively about this proceeding on our Broadcast Law Blog.
- The FCC’s Wireless Telecommunications Bureau and Office of Engineering and Technology jointly issued an Order granting an extension of the comment and reply comment deadlines for the FCC’s Notice of Inquiry on how to encourage more efficient and intensive use of the 12.7-13.25 GHz band. Licensed services in the 12.7 GHz band which might be affected by any changes in the use of this spectrum include satellite communications and mobile TV pickup operations. Comments are now due December 12, 2022, and reply comments are now due January 10, 2023. For background on this proceeding, see our notes about previous steps in this proceeding in our articles here and here.
- In a decision regarding the sale of radio stations by Univision Radio to Latino Media Network, the Audio Division of the FCC’s Media Bureau discussed the FCC’s longstanding prohibition on the seller of a broadcast station retaining a “reversionary interest” in the station it is selling. In this case, FCC staff found that the intent of the buyer to enter into a Local Marketing Agreement by which the seller would program some of the stations after closing was not a reversionary interest, because the buyer was free to make post-closing programming decisions for the stations by retaining ultimate control over the programming and station operations, including whether or not to enter into the LMA. Had the LMA been a condition of the sale required by the seller, or had it served as partial consideration to the seller for the sale, the FCC suggested that it would have violated the prohibition against revisionary interests. For further information about this case and the FCC’s prohibition on reversionary interests, and the impact that this prohibition has on broadcast financing, see our article here.
November 12 to November 18, 2022
- On November 17, the FCC’s Second Notice of Proposed Rulemaking (“Second NPRM”) on foreign government sponsored programming was published in the Federal Register. The Second NPRM seeks comment on proposals to enhance the FCC’s requirements that each broadcaster verify whether any program time that it sells to third parties (or any pre-produced programming that it receives for free) does not come from a “foreign government entity,” i.e., a foreign government or one of its agents. The Federal Register publication sets the comment dates for the Second NPRM – with initial comments due December 19, 2022, and reply comments due by January 3, 2023. In the Second NPRM, the FCC proposes, among other things, that a licensee certify that it has informed any buyer of program time of the foreign sponsorship identification rules and obtained, or sought to obtain, a certification from the program buyer stating, with standardized language proposed by the FCC, whether the buyer is or is not a “foreign governmental entity.” The FCC also proposes to require that all of those certifications be included in a station’s online public inspection file. For further background on this proceeding and its implications for broadcasters, see our articles here and here.
- At the November 17 regular monthly open meeting of the FCC, the Commissioners unanimously adopted a Report and Order to update its rules to identify Nielsen’s monthly Local TV Station Information Report (“Local TV Report”) as the new publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes, in place of the Nielsen Annual Station Index and Household Estimates currently referenced in the rules. Also, in response to concerns raised by Commissioner Simington, the Commission committed to monitoring the broadcast audience measurement market. It encouraged stakeholders to keep the FCC apprised of changes in that market. For further background about this proceeding, see our article here.
- The FCC’s Media Bureau announced that the FCC’s new FM broadcast directional antenna verification rules went into effect on November 10, 2022. These new rules allow for FM and LPFM directional antenna pattern proofing by computer modeling performed by the directional antenna’s manufacturer. Under the old rules, an FM or LPFM directional antenna’s performance measured relative field pattern had to be verified using either a full-scale mockup or a scale model on a test range or in an anechoic chamber. The rule change brings the FM rules in line with those for AM and DTV directional antennas.
- In a speech at the National Association of Farm Broadcasters, Commissioner Simington proposed that the FCC renew its efforts to help AM radio. Among his proposals were a revamping of FCC regulatory fees to ease the burden on broadcasters, encouragement of auto manufacturers to retain or include AM in new cars, and FCC study of AM receiver standards. He also suggested that the FCC once again look at the potential for activating FM chips in mobile devices. Watch to see if these ideas proceed at the FCC.
- In two recent speeches to Washington groups, including one delivered last week to the Media Institute, Commissioner Geoffrey Starks talked about the opportunities presented by ATSC 3.0, NextGen TV. In both speeches he cautioned that, while the technology offers many benefits, there are concerns that its capabilities to interact with internet technologies could impinge on consumer privacy. He suggested that the FCC should review whether privacy rules need to be adopted to govern the use of any consumer information gathered through this new technology.
- Last week, Sen. Ed Markey (D-MA) and Rep. Anna Eshoo (D-CA) introduced the Communications, Video, and Technology Accessibility Act of 2022 (“CVTAA”)(a press release summarizes the goals). Among the proposals in the legislation is the extension of closed captioning obligations and the requirement for audio description of video programming to online video providers. The legislation would also require the FCC to review the rules it has on the quality of closed captioning. While it is late in the legislative session and this proposal is unlikely to advance before the end of this Congress, look for these concepts to reemerge in the new session of Congress that begins in January.
November 5 to November 11, 2022
- The effective date of a recently adopted FCC Report and Order aimed at making emergency alerts delivered over television and radio stations more informative and easier to understand by the public, particularly people with disabilities, was set when the order was published in the Federal Register. Among other changes, the updated rules require broadcasters, cable systems, and other Emergency Alert System participants to transmit the Internet-based version of emergency alerts (i.e., those transmitted through the internet based Integrated Public Alert and Warning System, “IPAWS,” using the Common Alerting Protocol or “CAP”) when the station receives alerts from both IPAWS and from the traditional over-the-air “daisy chain” system. The Report and Order was published in the Federal Register on November 10, 2022, meaning that the rules are effective on December 12, 2022, and broadcasters are required to update their systems to comply with the requirements imposed in the new rules within one year, by December 12, 2023. For more details on these new rules and on other proposed changes in EAS requirements for broadcasters, see the article on our Broadcast Law Blog, here.
- The FCC’s Media Bureau dismissed an application for a new noncommercial educational FM station due to prohibited contour overlap with a second-adjacent channel NCE station. The applicant had requested, and the Bureau denied, a “Raleigh waiver,” which allows an NCE station to receive – not cause – a small amount of interfering contour overlap from second- or third-adjacent stations, provided that the public interest benefit of increased NCE service heavily outweighs the potential for interference that may occur in the overlap area. However, Raleigh waivers are not available to applicants for new NCE stations, being accepted only with applications seeking changes in an existing NCE station. The Bureau therefore found that the applicant was ineligible for a Raleigh waiver and dismissed the application.
- This case is also instructive in that the application was filed for a “share-time” facility. Under a rarely used section of the FCC rules, Section 73.561(b), when an NCE FM station does not regularly operate for at least 12 hours per day, another noncommercial licensee can file an application to use the frequency during the hours that the station is not operating and, if the existing licensee and the new applicant cannot agree on a shared operating schedule, the new applicant can ask the FCC to force the shared-time operation. While, because of the technical defect, the applicant attempting to force the share-time operation was dismissed here, it should serve as a reminder to NCE stations everywhere that, if they do not operate for 12 hours every day, they stand a risk of having to share their frequency with another broadcaster. However, the FCC will only force a share-time operation during the pendency of the existing station’s license renewal so this risk likely will not arise for the vast majority of stations until the next license renewal cycle which begins in 2027.
- The FCC issued three notices proposing significant fines for pirate radio operations. The FCC continues to aggressively police pirate radio stations, issuing notices warning the alleged violator that it could be subject to a fine of up to $2,149,551 if such illegal operations continued. These notices were again directed at the owners of the properties from which the pirates were operating. See the three notices here, here, and here. For more information on the 2020 law that authorized large fines and actions against landowners, see our article here.
- The FCC issued two notices to parties who had been the high bidders in auctions for new commercial FM stations but failed to pay the amounts that they bid. Under the FCC rules for broadcast auctions, if a successful bidder fails to pay the amount that it bid, the bidder will be liable to the federal government for the difference between what it bid in the auction and any lesser amount paid by a winning bidder when the channel is reauctioned in a subsequent auction. In the two cases released this week, here and here, the FCC seeks to collect several hundred thousand dollars from each of the defaulting bidders.
October 29, 2022 to November 4, 2022
- The FCC issued a Forfeiture Order imposing a penalty of $518,283 against Gray Television, Inc., for violating the FCC’s prohibition against owning two top-four television stations (KYES-TV and KTUU-TV, both in Anchorage, Alaska) in the same Nielsen Designated Market Area (DMA). This Order follows a Notice of Apparent Liability for Forfeiture (NAL) released on July 7, 2021, in which the FCC found that Gray acquired the CBS network affiliation from KTVA(TV) (another station in Anchorage), which resulted in Gray’s ownership and operation of two of the top-four stations in the Anchorage DMA. For more background on this case, see our article on the NAL here. After considering Gray’s response to the NAL, the FCC elected not to cancel, withdraw, or reduce the penalty proposed. This case is notable for its interpretation of the note to the FCC’s ownership rule prohibiting a Top 4 television station owner from acquiring a network affiliation and moving it to a commonly owned station that results in that station also becoming a Top 4 station in the market. The Commission also decided that each day of the combined operation of the two stations constituted a separate violation of the rule. That meant that the $8000 base fine for a violation of the FCC’s ownership rules would be multiplied by the days that the combination remained in place, resulting in the large fine which represents the maximum fine for a continuing violation of the FCC’s rules.
- The FCC issued the final text of its Notice of Inquiry and Order that explores opportunities to open the 12.7-13.25 GHz (12.7 GHz) band for next-generation wireless services and extends the freeze on new or modified applications for existing users of the band. As we’ve previously reported, the Notice of Inquiry and Order was approved at the FCC’s October 27 open meeting. Licensed services in the 12.7 GHz band include satellite communications and mobile TV pickup operations. Comments and reply comments on the Notice of Inquiry will be due November 28, 2022 and December 27, 2022, respectively.
- The FCC’s Media Bureau issued an Order under which it entered into a Consent Decree with the licensee of an AM station and its FM translator to resolve various FCC rule violations. The licensee acknowledged that it had (1) operated the AM station at reduced daytime power without FCC authorization, (2) failed to maintain station logs for the AM station, and (3) originated programming on its FM translator while the AM station was silent. Pursuant to the Consent Decree, the licensee agreed to implement a comprehensive compliance plan to ensure future compliance and to make an $8,000 payment to the United States Treasury.
- The Media Bureau also issued an order that reduced by nearly $10,000 a fine it had previously proposed against the licensee of two low power television stations that had failed to timely file “license to cover” applications and engaged in unauthorized operation of the stations after their construction permits had expired. Applications for a “license to cover” are required to be filed by any broadcaster when they complete construction of new technical facilities authorized by a construction permit. The license application tells the FCC that construction has been completed and provides information about the specific facilities constructed, showing that they were constructed as authorized by the permit. Claiming financial hardship and submitting its 2019, 2020 and 2021 tax returns in support, the licensee asked the Bureau to reduce or cancel the proposed fine of $13,000. The Bureau noted that in cases involving financial hardship, fines usually average about five percent but have not exceeded eight percent of the violator’s gross revenues. Here, the Bureau found that the initially proposed fine exceeded eight percent of the licensee’s gross revenue as averaged over the last three years, but the licensee had not operated at a significant financial loss during that period. The Bureau thus elected not to cancel the fine entirely, but it did reduce it to $3,400.
- On our Broadcast Law Blog, we posted an article highlighting some of the important regulatory dates for broadcasters in November and early December. We also published an article reminding stations to take seriously requests to cease and desist airing political attack ads in the days before an election, and another article about the $24 million dollar penalty imposed by a Washington State court on the parent of Facebook for its violation of the state’s political advertising disclosure rules.
October 22, 2022 to October 28, 2022
- On October 26, NAB and Xperi Inc. jointly filed a Petition for Rulemaking asking the FCC to amend its rules governing in-band/on-channel (“IBOC”) digital audio broadcasting (Xperi is the parent of IBOC technology developer iBiquity). More specifically, NAB and Xperi request that the FCC (i) adopt an updated formula to determine FM power levels for stations seeking to exceed the currently authorized FM digital Effective Radiated Power (ERP) of -14 dBc; and (ii) commence a rulemaking proceeding on this issue and the one raised in a pending 2019 petition to permit digital FM radio stations to utilize asymmetric sideband power levels without the need for separate or experimental authorization. NAB and Xperi contend that the FCC’s current approach is problematic because it assumes symmetric rather than asymmetric digital sidebands, which eliminates a path for stations to increase power on at least one sideband to improve digital coverage. In addition, NAB and Xperi argue that the existing formula is too restrictive, because it overstates the level of protection analog stations need. NAB and Xperi assert that blanket authorization of asymmetric sidebands and the adoption of a more market-based formula for assessing digital interference risk will encourage greater station adoption of the technology. The FCC has yet to announce comment dates for the NAB/Xperi petition.
- The Commission issued a Memorandum Opinion and Order resolving 32 groups of mutually exclusive applicants for new Noncommercial Educational (NCE) FM stations. These applications were filed in the 2021 window for the filing of applications for new NCE stations in the FM reserved band. This week’s decision goes through an analysis of the point system that the FCC uses to determine the preferred applicant among applications in the same geographic area that cannot all be granted without causing each other destructive interference. The point system analysis looks at factors including the proposed coverage of the applicants, whether an applicant is local and how long it has been established, whether it is part of a statewide network, and whether the applicant has other broadcast interests. The decision announces tentative winners in each of these groups, whose applications will now be subject to “petitions to deny” and other objections before the award of their construction permit is finalized.
- At its October 27 regular monthly open meeting, the FCC adopted without substantive edits, its draft Notice of Proposed Rulemaking (“NPRM”) in which, as we’ve previously reported, it proposes a number of steps designed to strengthen the security of the Emergency Alert System (“EAS”) by requiring reporting to the FCC of breaches of any station’s EAS system and the adoption and yearly reporting to the FCC of security protocols to prevent unauthorized breaches. A copy of the “as adopted” NPRM is available here. Comments and reply comments will be due 30 days and 60 days, respectively, after the item’s publication in the Federal Register.
- At the same open meeting, the FCC also adopted a Notice of Inquiry and Order that explores opportunities to open the 12.7-13.25 GHz (12.7 GHz) band for next-generation wireless services and extends the freeze for new or modified applications for existing users of the band. Licensed services in the 12.7 GHz band include satellite communications and mobile TV pickup operations. Although the as-adopted item has yet to be released, a press release noting its approval can be found here, and the draft version circulated prior to the meeting can be found here (also see our article here).
- The FCC announced that the agenda for its November 17 open meeting will include consideration of a draft Report and Order (“Draft R&O”) that, if adopted, would update the FCC’s rules to identify a new publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes. Current FCC rules direct commercial TV stations to use Nielsen’s Annual Station Index and Household Estimates to determine their DMA, and stations rely on these determinations when they seek carriage on cable and satellite systems. Nielsen, however, has replaced the Annual Station Index and Household Estimates with a monthly Local TV Station Information Report (“Local TV Report”). The draft R&O, if adopted, would (i) revise the FCC’s rules to eliminate references to the Annual Station Index and Household Estimates and instead direct broadcasters to the Local TV Report – specifically, the October Local TV Report published two years prior to each triennial carriage election; and (ii) conclude that the Local TV Report should be used to define “local market” in other statutory provisions and rules relating to carriage (e.g., retransmission consent, distant signals, significantly viewed, and field strength contour). For further background regarding this proceeding, see our article here.
- The FCC’s Media Bureau issued an Order under which it entered into a Consent Decree to resolve a student-run noncommercial FM station’s filing of its license renewal application two months late, and the station’s failure to place any issues and programs lists in its online public inspection file. The station demonstrated that its violations were first-time paperwork violations which fell within an FCC policy of affording student-run stations with this kind of violation an opportunity to negotiate a consent decree in which the station agrees to a compliance plan and makes a voluntary contribution to the United States Treasury rather than suffering a more substantial penalty. Under the Consent Decree, the station agreed to, among other things, make a civil penalty payment to the United States Treasury in the amount of $500 and implement a comprehensive compliance plan to ensure future compliance with its online public inspection file obligations and timely filing of renewal applications (for a similar Consent Decree between the Bureau and a second student-run NCE station, go here).
October 15, 2022 to October 21, 2022
- On October 17, Sen. Brian Schatz (D-HI), Sen. Marsha Blackburn (R-TN), and Rep. Anna Eshoo (D-CA) introduced the Identifying Propaganda on Our Airwaves (IPA) Act, which would essentially undo the recent D.C. Circuit decision in National Association of Broadcasters v. FCC, which rejected the requirement that broadcast licensees independently check two federal databases to verify whether an airtime lessee is a “foreign governmental entity” (see our Broadcast Law Blog article on the Court’s decision here). Specifically, the IPA Act would amend Section 317(c) of the Communications Act to provide the FCC with authority to require radio station licensees to consult “any additional source of information the Commission designates that may enable the licensee to verify whether the matter broadcast by the radio station was paid for or furnished by a foreign governmental entity.” FCC Chairwoman Rosenworcel and Commissioner Starks both issued statements in support of the IPA,
- The FCC’s Media Bureau issued a Notice of Proposed Rulemaking seeking comment on a proposed allotment of a new FM channel, 272A, to Dennison, Ohio as that community’s first local radio service. Comments are due December 8 and reply comments are due December 23. If adopted, the channel would be available in a future FM auction for those interested in the construction of a new FM station to serve Dennison.
- In addition, the Media Bureau granted an AM station a short-term renewal of two years and proposed to issue the station a $20,000 fine for operating at variance with its authorized parameters. Specifically, the Bureau found that in 1993 the station obtained Special Temporary Authority (STA) to decrease nighttime power from 5 kW (directional) to 1 kW (non-directional). The station filed for and received multiple extensions of its STA, but, after it received its last extension in 1996, the Bureau warned that the station must either return to its licensed operation or file an FCC 301 application to modify its facilities. The station nonetheless continued to operate at reduced nighttime power (which it had been doing for its entire license term) and never filed an FCC Form 301, nor did it seek a further extension of its STA until September 7, 2022.
- In a similar vein, the Bureau issued a two-year renewal to a daytime-only AM station and proposed to impose an $11,000 fine on a station, citing violations including the station (1) failing to obtain FCC authorization to remain silent for four months, (2) operating at variance from its authorized parameters since September 22, 2022 when an STA for reduced-power operations expired without being extended, and (3) failing to file its license renewal application by, as required, February 17, 2021 following a prior short-term renewal for inconsistent operations of the station in the prior license term. The Bureau did, however, choose not to fine the station for its unauthorized operation after its license expired, citing mitigating factors that may have led the station to become confused as to its renewal deadline as the current licensee acquired the station after the imposition of the short-term renewal and was not notified by the FCC of the need to file that early renewal. These two cases remind licensees to keep the FCC informed in changes in station operation and to seek approval when that operation does not conform to what is authorized by the station’s FCC license.
- The FCC issued notices to several landowners (here and here) that there appeared to be illegal “pirate” radio operations going on from their properties, and warned that if these operations did not immediately cease, the FCC could fine the operator or the landowner as much as $2,149,551 (the inflation adjusted maximum fine authorized by the 2020 Pirate Act, which also authorized fines against landowners as well as pirate operators, legislation we wrote about here).
October 8, 2022 to October 14, 2022
- A judge in King County, Washington, released his decision finding that Facebook parent Meta intentionally violated the Washington State requirements for public access to documents concerning the sale of advertising to state political candidates. We wrote about the Washington State rules and this case on our Broadcast Law Blog, here. The state’s Attorney General has announced that he will seek the maximum penalty of $24.6 million for the 822 violations found by the judge.
- The FCC’s Enforcement Bureau issued a Notice of Violation to an FM station after FCC field agents discovered that the station was operating three miles from its authorized transmitter site. If your station needs to make technical changes to its operations, be sure to seek FCC permission for those changes, which is required in most cases before they are implemented.
- The Media Bureau proposed to assess a fine of $1,500 each on two low power FM (LPFM) stations (see decisions here and here) that failed to file their license renewal applications on time. In each case, the station’s license renewal applications were filed four months late without explanation, but before its license expiration date. The Bureau reached its conclusion notwithstanding its finding that neither violation was so “serious” as to warrant the denial of the renewal applications.
- The FCC’s Media Bureau issued a one-year license renewal to an AM station for its failure to consistently remain on the air and its failure to timely place documents in its online public inspection file. The station was also required to adopt a compliance plan to address the public file violation. As to the station’s failure to stay on the air, the Bureau found that the station was assigned to the current licensee on November 16, 2019, and its license term ended on August 1, 2021. The Station was silent at the time its license was assigned, having gone silent on January 20, 2019, until January 6, 2020, and then again from November 11, 2021, to July 30, 2022 (i.e., for over 8% of its license term under the current licensee and 30% of its extended term while the renewal application was pending, warranting the short-term renewal).
October 1, 2022 to October 7, 2022
- On October 6, the FCC released a Second Notice of Proposed Rulemaking (Second Notice) proposing to strengthen the process for identifying foreign governmental entities that sponsor or “lease” broadcast programming. The Second Notice was released in the wake of the D.C. Circuit’s July 2022 ruling in National Association of Broadcasters v. FCC, which rejected the requirement that broadcast licensees independently check two federal databases to verify whether an airtime lessee is a “foreign governmental entity” (see our Broadcast Law Blog article on the Court’s decision here). While the Court decision did not change broadcasters’ obligation to obtain certifications from all buyers of program time that they are not foreign government representatives and have not been paid by foreign governments to produce the program (see our article here), the Second Notice proposes standardized language for such certifications. It also provides interested parties an additional opportunity to comment on a long-pending petition for clarification on what constitutes leased program time, asking whether the FCC should establish a presumption that any broadcast matter that is two minutes or less in length, absent any other indicia, should be considered “advertising” that is exempt from the application of the foreign sponsorship identification rules. Comments and reply comments on the Second Notice will be due 30 and 45 days, respectively, following its publication in the Federal Register.
- Global Music Rights (GMR) has sued three radio groups for not paying royalties for the public performance of songs written by songwriters who are now represented by GMR (see our article on the GMR lawsuit here). GMR is a performing rights organization (a “PRO”) representing songwriters including Bruce Springsteen, Bruno Mars, Drake, Pharrell Williams, John Lennon, and The Eagles (with a full list of their songwriters available on their website here). As these songwriters are no longer represented by ASCAP, BMI or SESAC, for a broadcaster to publicly perform any of these songwriters’ music, they generally either need a license from GMR or they need to directly license the music from the songwriters or their agents. The lawsuits seek $150,000 for each copyrighted work that was allegedly infringed – the maximum set out by the Copyright Act for “statutory damages,” i.e., damages that can be collected even without providing evidence of actual harm caused by the alleged copyright infringement. Commercial radio stations that play GMR music and have not entered into an agreement with GMR following the settlement earlier this year of its litigation with the Radio Music License Committee should enter into a license or consult with their attorneys to see if there is any way to otherwise receive permission to use GMR music.
- On October 6, the FCC released a draft Notice of Proposed Rulemaking that, if adopted, would propose a number of steps designed to strengthen the security of the Emergency Alert System (“EAS”) and Wireless Emergency Alerts (“WEA”). The draft NPRM is slated for consideration at the FCC’s October 27, 2022 regular monthly open meeting. In general, the draft NPRM seeks comment on ways to strengthen the operational readiness of EAS and WEA, including, among other things, requiring EAS Participants (including broadcasters) to report to the Commission incidents of unauthorized access of its EAS equipment within 72 hours of when it knew or should have known that the incident occurred, and requiring EAS Participants to submit an annual cybersecurity certification that demonstrates how the participant identifies the cyber risks that it faces, the controls it uses to mitigate those risks, and how it ensures that these controls are applied effectively. If the NPRM is adopted, comments and reply comments would be due 30 days and 60 days, respectively, after the NPRM is published in the Federal Register.
- Also on October 6, the FCC released a draft Notice of Inquiry and Order that seeks information on the current use of the 12.7-13.25 GHz band (“12.7 GHz band”). Licensed services in the 12.7 GHz band include satellite communications and mobile TV pickup operations. The draft Notice of Inquiry seeks information on how the FCC could encourage more efficient and intensive use of the band, and whether the band is suitable for mobile broadband or other expanded use. The draft Order would extend the temporary freeze on applications in the 12.7 GHz band (see our reference to that freeze here). If adopted at the FCC’s October 27 Open Meeting, comments and reply comments will be due 30 days and 60 days, respectively, after publication in the Federal Register.
- The FCC’s Media Bureau (“Bureau”) issued a Notice of Apparent Liability for Forfeiture (“NAL”) proposing a fine of $13,000 against the licensee of two low power television stations, finding that the licensee apparently violated section 74.788 of the FCC’s Rules by filing its “license to cover” applications informing the FCC that it had completed construction of new facilities for the stations when that construction was completed, and for violating section 301 of the Communications Act by engaging in unauthorized operation. Construction was apparently completed in 2018 but no license application was filed until 2022, a year after the construction permit for the new facilities expired. The Bureau was not persuaded to reduce or eliminate the fine by the licensee’s contention that it was not represented by counsel when it failed to timely file its license applications. It also found that imposition of a proposed fine is consistent with other recent FCC cases that have similar underlying facts (see, for instance, the cases we have noted in weekly updates here and here).
- Due to damage associated with Hurricane Ian that was caused to broadcasters in South Carolina and Florida, the Media Bureau extended from October 11 to December 12, 2022 the deadline by which the impacted stations in those states must place their Quarterly Issues Programs Lists with material covering the previous calendar quarter in their public inspection file. All other full-power stations should remember to upload Quarterly Issues Programs Lists to their public files by October 11. Similarly, for Florida stations, the deadline to place their EEO public file report in their public inspection file is extended to December 12, 2022.
September 24, 2022 to September 30, 2022
- At its September 29 regular monthly open meeting, the FCC adopted a Notice of Proposed Rulemaking (NPRM) proposing to update the FCC’s technical rules for full power TV and Class A TV stations. The FCC determined that a review and update of these rules is necessary due to the digital transition, the incentive auction repack, current technology, and changes in Commission practices. The NPRM seeks comment on, among other things, whether to eliminate rules that relate to analog operating requirements, and to similarly eliminate language in rules to remove references to digital television or DTV service (as all TV service is now digital); whether to delete outdated rules that are no longer valid given changes in other Commission-adopted policy, such as the elimination of references to the comparative hearing process to award and renew broadcast licenses which was eliminated by Congressional and FCC action over 25 years ago; and whether to make other updates to the Commission’s rules. Comments and reply comments will be due 60 days and 75 days, respectively, after the NPRM is published in the Federal Register.
- Also at its September 29 open meeting, the FCC adopted a Report and Order updating its Emergency Alert System, aiming to make alerts delivered over television and radio more informative and easier to understand by the public, particularly people with disabilities. The updated rules require broadcasters, cable systems, and other Emergency Alert System participants to transmit the Internet-based version of alerts when available, rather than transmitting the legacy version of alerts which often contain less information or information of lower quality. The updated rules will also replace the technical jargon that accompanies certain alerts, including test messages, with plain language terms so that the visual and audio messages are clearer to the public. The new rules will go into effect 30 days after the Report and Order is published in the Federal Register and provide a transition period for EAS participants to implement some of the required technical changes.
- The FCC announced a virtual event, the “Video Programming Accessibility Forum – Emergency Information,” to be held on October 6, 2022, from 1:00 pm to 3:00 pm ET. The forum will focus on accessibility issues surrounding emergency information in video programming, as well as advancements that may occur in the future. The Forum will include two panels that will feature speakers representing television companies and consumer groups. The agenda for the Forum is available here.
- The Media Bureau issued a Memorandum Opinion and Order granting the request of an Iowa television station to determine that a Minneapolis television station was no longer “significantly viewed” in a television market that included counties in southern Minnesota and northern Iowa. This order provided a good example of the issues that must be addressed in any petition to change the designation of a station as being significantly viewed. That designation can be important as significantly viewed stations are not subject to the network nonduplication and syndicated exclusivity rules, meaning that cable systems in a market carrying the significantly viewed station might be duplicating the programming that is also carried by an in-market station.
September 17, 2022 to September 23, 2022
- The FCC’s Media Bureau issued a Notice of Apparent Liability proposing to fine licensees of over 100 television stations for exceeding the limits on commercialization in programming directed to children of ages 12 or under. The FCC found that these stations aired “program length commercials” by running ads for Hot Wheels toys during a Hot Wheels program, which under FCC precedent makes the entire program into a commercial. Fines ranged from $20,000 for single station licensees up to $2,652,000 to Sinclair Broadcasting for running these commercials on 83 stations. The licensees have 30 days to pay the proposed fines or to file a written statement either disputing the fine or seeking a reduction in the proposed amount.
- The FCC issued an Order that denied a request for review of a Media Bureau decision rejecting an objection to the grant of a construction permit for a new FM translator to rebroadcast an AM station. The objection argued that the FCC’s windows that authorized new FM translators for AM stations violated the Local Community Radio Act of 2010 (LCRA) by awarding construction permits for new FM translators without considering their effect on the potential for new LPFM stations. The Commission upheld the Bureau’s conclusion that the LCRA did not require that each new translator application be required to demonstrate that it did not preclude LPFM opportunities. Instead, efforts by the FCC to limit translator applications, and a prior LPFM window, provided adequate LPFM opportunities. Similar objections have been rejected by the FCC in the past (see our Broadcast Law Blog article on this issue).
- The FCC’s request for comment on the methodology that it uses to allocate its employees to determine regulatory fees was published in the Federal Register, setting the dates for the comments. This proceeding is important as the allocation of FCC employees determines the regulatory fees paid by each industry regulated by the FCC. The fees are set to reimburse the government for the costs FCC operations, allocated by the percentage of FCC employees whose time is spent regulating a particular industry. The proceeding raises issues as to how FCC’s employees who perform functions that are not industry specific should be allocated to specific fee payers, including broadcasters. Comments are due October 26, with reply comments due November 25, 2022.
- The Commission issued a Public Notice announcing the dates for comments and replies on the FCC’s proposals for updating its rules for LPTV and TV translators. These comments are on the FCC’s Order and Sixth Notice of Proposed Rulemaking (on which we previously reported) to delete or revise analog rules for LPTV and television translator stations that no longer have any practical effect or that are otherwise obsolete or irrelevant after the transition of these stations to digital operation. Comments are due on October 24, and reply comments are due November 7, 2022.
- The FCC’s Video Division issued a Forfeiture Order reducing a proposed fine on an LPTV station licensee that had constructed its station and commenced operations without filing until after its construction permit for the station had already expired an application for license to inform the FCC of the completion of construction. The Division agreed to reduce the proposed fine from $6500 to $1300 based on the licensee’s ability to pay. The Division looked at precedent as to when fines are excessive, stating that fines should not exceed 8% of a licensee’s gross revenue and should normally not exceed approximately 5% of revenues, or lower when a licensee is losing money. The $1300 fine was about 5% of the licensee’s revenue.
- The Commission issued a Public Notice imposing a 180-day freeze on applications in the 12.7-13.25 GHz band. This includes applications for new earth stations and applications for new stations or modifications to fixed or mobile BAS (broadcast auxiliary) stations to operate in the 12.7 GHz band. The freeze was imposed while the Commission considers changes in the band to make more effective uses of this spectrum. There are limited exceptions to the freeze, including one for changes to broadcast auxiliary stations that can be shown to have no effect on reimbursement costs for any future user of any cleared spectrum.
- In response to Hurricane Fiona and its impact on Puerto Rico, the FCC issued a Public Notice extending to September 30 the due date for Puerto Rico stations to file their 2022 regulatory fees. All other stations still must pay their fees by September 28, 2022. Another Public Notice gives Puerto Rico stations until November 14 to upload their Quarterly Issues Programs Lists for the third quarter of 2022 to their online public inspection file (for all other stations, those reports should be uploaded by October 11 as the normal October 10 deadline is a Sunday).
- The Senate Judiciary Committee passed the Journalism Competition and Preservation Act designed to allow news creators, including broadcasters, to negotiate jointly without antitrust concerns with big Tech Platforms over the rates and terms by which those platforms use the news creators’ content. A summary of the bill that was passed is available on Senator Klobuchar’s website. To become law, the bill still must be passed by the full Senate and the House of Representatives before the current session of Congress ends in January.
September 10, 2022 to September 16, 2022
- The FCC released additional public notices in connection with the upcoming September 28 deadline for submission of annual regulatory fees. Specifically, the FCC issued a Public Notice setting out the procedures for paying the fees. The Notice addressed matters including the required use of the CORES system and the permissible methods of payment. The FCC also announced that broadcast licensees can look up their Fiscal Year (FY) 2022 regulatory fee amounts by logging onto the FCC’s website at http://fccfees.com and clicking on the “View Fee Information and Exempt Status for any Broadcast Property” link. In some instances, it may be necessary to clear your browser before logging onto the website. After clicking on this link, licensees will be able to view their fee amounts, fee codes, facility identification numbers, and other information pertinent to the filing of their FY 2022 regulatory fees. Another Public Notice announced that, as it did for FY2020 and FY2021, it is streamlining and easing its processes through which fee payors suffering pandemic-related financial hardship may request and obtain waiver, deferral and installment payment relief for FY 2022 regulatory fees. Further details about this process, the required showings, and the evidence that must be submitted when requesting relief are provided in the Public Notice. The FCC also issued a Fact Sheet providing information about those entities, including noncommercial broadcasters, that are exempt from payment of regulatory fees.
- The FCC’s Media Bureau issued a decision in which it determined whether certain expenses were reimbursable to an FM station moved to a new channel to facilitate the upgrade of another station. To make it possible to upgrade a station, one licensee can force another station to change channels if it reimburses the station that is forced to move for the reasonable expenses of the move, and as long as the new channel is technically equivalent and can work at the station’s current transmitter site. Noting that the station seeking reimbursement bears the burden of proving whether an expense is legitimate and prudent, and whether its cost is reasonable, the Bureau conducted a detailed analysis of the extent to which the station in question’s engineering and equipment expenses, legal fees, printing expenses, promotional expenses (including those for promoting the station’s new frequency), and miscellaneous expenses. For further details on how the Bureau resolved these matters, see the Bureau’s decision available here.
- The Media Bureau issued a reminder that, as required under the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (“NDAA”), United States-based foreign media outlets providing video programming must submit by October 12 their next semi-annual report disclosing their relationships with their foreign principals, including a description of the legal structure of such relationships and any funding the outlets receive from their foreign principals. The reminder sets out who is covered by this requirement and the specific means to be used by such outlets to provide these reports.
- The FCC’s Media Bureau issued an Order granting the license renewal of an FM station is Arizona for only one year, instead of the normal eight year period, because the station had been silent for extended periods. The Bureau found that the station was silent for 27% of its license term and 33% of its extended term (the license term plus the period after the license expired while the renewal was pending). This is another case where the Bureau has concluded that it needs a shorter term to assess whether the station will continue to operate and serve the public, which it cannot do when silent. For more on the Media Bureau’s emerging policy on renewals for stations that had been silent for extended periods, see our article here.
- In a major First Amendment decision, the 5th Circuit Court of Appeals upheld a Texas law forbidding large social media platforms from censoring speech based on the viewpoints of the individuals posting on the site. The Court determined, among other things, that regulating censorship is not subject to the same First Amendment protections as regulating speech and that Texas was justified in concluding the platforms were “common carriers” required to allow all people to access their services without discrimination. This decision seems to contradict that of the 11th Circuit finding a similar Florida statute to be unconstitutional (which we mentioned in a prior weekly summary here). These contradictory holdings may well lead to the Supreme Court resolving the extent to which states can regulate the content moderation policies of tech platforms.
- On our Broadcast Law Blog, we wrote about the bill introduced in Congress by Senator Rand Paul to eliminate the FCC’s multiple ownership rules that limit the number of broadcast stations that one company can own in any market. This bill would also require that, in any antitrust review of a broadcast merger, the reviewing authority recognize that tech companies provide many of the same services as broadcasters and are increasingly becoming competitors with broadcasters, and that the impact of any broadcast merger be assessed in the broader media marketplace, rather than in isolation by looking solely at broadcasting as a stand-alone market that is immune from broader marketplace competition.
September 3, 2022 to September 9, 2022
- The FCC announced that regulatory fees must be submitted by 11:59 PM Eastern Time on September 28. In addition, the Media Bureau’s guide to fee filing for broadcasters was released and is available here (the Bureau also separately issued a listing of TV stations by call sign, identifying their population count and fee amount). Note that the FCC’s fee look-up database for radio does not reflect the exempt status of some noncommercial stations – particularly those that do not operate in the reserved FM band. Noncommercial licensees with stations that do not show their exempt status should discuss with their FCC counsel how to correct that information to properly reflect their exempt status. There are significant penalties for late payment, so it is a good idea to file before the September 28 deadline to avoid any last-minute issues that, if they result in a fee being late, can result in a 25% late fee penalty.
- The FCC has released a draft Notice of Proposed Rulemaking (NPRM), available here, proposing to update the FCC’s rules for full power TV and Class A TV stations. The draft NPRM, which is tentatively on the FCC’s agenda for the September 29, 2022 monthly open meeting, indicates that a review and update of these rules is necessary due to the digital transition, the incentive auction repack, current technology, and changes in Commission practices. Assuming the FCC adopts the NPRM as scheduled, it will seek comment on, among other things, whether to eliminate rules that relate to analog operating requirements, and to similarly eliminate language in rules to remove references to digital television or DTV service; whether to delete outdated rules that are no longer valid given changes in Commission-adopted policy, such as the elimination of the comparative hearing process to award and renew broadcast licenses; and whether to make other updates to the Commission’s rules. Comment dates will be announced when the final version of the NPRM is released (probably on or shortly after September 29).
- FCC Chairwoman Rosenworcel has circulated a Notice of Proposed Rulemaking (“NPRM”) to bolster the security of the nation’s public alert and warning systems, the Emergency Alert System (“EAS”) and Wireless Emergency Alerts (“WEA”). If adopted by a vote of the full Commission, the NPRM would seek comment on, among other things, ways to improve the operational readiness of the EAS, including the amount of time that broadcasters, cable providers, and other EAS participants may operate before repairing defective EAS equipment; requiring EAS participants to report compromises of their EAS equipment; and requiring EAS participants to employ sufficient security measures to ensure the confidentiality, integrity, and availability of their respective alerting systems and to annually certify to having a cybersecurity risk management plan in place.
- The decision of the United States Court of Appeals for the D.C. Circuit in NAB v. FCC became effective on September 6, meaning that the requirement that broadcasters check Justice Department and FCC websites to verify the foreign governmental entity status of lessees of their airtime is no longer in effect. The FCC still has the option of petitioning by October 11, 2022 the Supreme Court to review the D.C. Circuit decision. For more details about this case, see our Broadcast Law Blog here. The requirement that broadcasters receive a verification directly from program suppliers that they are not representatives of foreign governments remains in place. Broadcasters should have written verification by September 15 from all parties buying program time on broadcast stations (or supplying programming for free) certifying that they are not representatives of foreign governments, and that have not been paid by foreign governments to supply their programming to a station.
August 27, 2022 to September 2, 2022
- On September 2, the FCC released a Report and Order (“R&O”) and Notice of Inquiry adopting the regulatory fee schedule for fiscal year 2022 and seeking comment on issues related to the FCC’s allocation of indirect “full time equivalents” for its employees. Allocation of the FCC’s employees is important because the number of its employees allocated to particular tasks is used as the basis for allocating regulatory fees among the various industries regulated by the FCC. The R&O largely adopts the proposals from the FCC’s Notice of Proposed Rulemaking (“NPRM”) released on June 2, 2022 but, notably for radio broadcasters, fees will increase by 7-8% compared to the 12-13% increase proposed in the NPRM. And for full power TV broadcasters, the R&O adopts a factor of .84 of one cent ($.008430) per person served compared to the .88 of one cent proposed in the NPRM. The R&O declined to adopt other broadcaster-specific relief proposals from the National Association of Broadcasters and others, rejecting proposals including one to raise the de minimis threshold above $1,000 and another to exempt broadcasters from the costs associated with the FCC’s broadband data mapping work. The regulatory fees adopted in the R&O will be due in late September 2022 on a date to be announced in a soon-to-be-released public notice.
- On August 31, the FCC’s Media Bureau entered into two consent decrees in connection with its review of the renewal applications of a group of commonly owned FM stations in California. In the first consent decree, five of the six stations conceded that they failed to timely place issues and program lists in their online public inspection files. The Bureau granted the stations’ renewal applications but required that the licensee adopt a comprehensive Compliance Plan to prevent future violations of the FCC’s public file rule. For the same reason, the Bureau entered into a similar separate consent decree consent decree with the sixth station, but also denied an informal objection against the station’s renewal application. The objection alleged that the station had been off the air for 18 months, which would have required the cancellation of the license (required for stations silent for more than a year without a rarely granted public interest exception). The Bureau found that there was insufficient evidence to support this allegation, and instead relied on the station’s certification that it had remained on the air for the requisite period of time.
- On our Broadcast Law Blog, we published our monthly look ahead at the regulatory dates and deadlines for broadcasters in September, including the deadlines for filing for reimbursement of expenses incurred because of the TV incentive auction by radio, LPTV and TV translator stations and the date by which broadcasters are required to have received assurances from all buyers of program time that they are not foreign governments or agents of such governments.
August 20, 2022 to August 26, 2022
- Revisions to the pending Journalism Competition and Preservation Act were released to the public this week (revised draft bill). The bill is designed to provide an antitrust exemption to media companies to jointly negotiate with the big tech platforms over the terms on which the platforms can distribute their content. We wrote on our Broadcast Law Blog about the original bill when it was introduced last March. The new draft makes a number of changes, including providing more details on the mechanics for forming negotiating groups of traditional media companies to qualify for the antitrust exemption. It also contains provisions to prevent the online platforms from refusing to deal with a media negotiating group based on the political leanings of its members, and it provides for groups of publishers (apparently not including broadcasters) to force arbitration if their negotiations with the tech platforms are unsuccessful. The bill has bipartisan political support (see the press release listing Democratic and Republican co-sponsors). Additional actions to move this legislation in Congress are expected after the end of the summer recess.
- The FCC’s Media Bureau entered into a consent decree with a New Jersey noncommercial FM station to allow the grant of the station’s license renewal despite its failure to timely place material in its online public inspection file. As has been the case during this radio renewal cycle, no fine was imposed but the station was required to implement a comprehensive Compliance Plan to ensure future compliance with the public file rules (contrast this with the TV renewal cycle where fines have been imposed for similar violations – see, for instance, the last item on another of our recent weekly summaries, here). The Consent Decree serves as a reminder to all stations that the FCC takes its public file rule seriously and thus stations must remain diligent in ensuring that their online public inspection files are properly maintained.
- The Federal Trade Commission announced that it is seeking additional public comment on how children are affected by digital advertising and marketing messages that may blur the line between ads and entertainment. The FTC is seeking public input in conjunction with an October 19, 2022 event that will examine this topic. The public will have until November 18, 2022 to submit comments. Information on how to submit comments is available on the event page.
- The FCC allotted a new FM channel to Big Coppitt Key, Florida. This Class C3 FM channel will be available in a future FCC auction window when parties interested in starting a new radio station to serve that community can bid on the channel.
- On our Broadcast Law Blog, this week we wrote about the legal issues that may arise where broadcasters air “franking” ads from Congressional representatives running for reelection. Congress each year allows its members to spend certain amounts of money to communicate with their constituents. When these ads are voiced by a Congressional representative running for reelection, FCC equal time and political file issues can be raised, as described in the article. In addition, we wrote about the FCC’s second EEO audit notice for 2022 and the implications for stations selected for audit (we also covered this in last week’s weekly update of regulatory actions), the copyright issues raised by a Texas church’s performance and YouTube transmission of their adapted version of the musical Hamilton, and about the different political broadcasting rules that cover broadcasters, cable and satellite television providers, and online companies which allow online providers to reject candidate ads that a broadcaster would have to air.
August 13, 2022 to August 19, 2022
- On August 19, 2022, the FCC’s Enforcement Bureau issued the second set of Equal Employment Opportunity (EEO) audit letters for 2022. Each year, approximately five percent of all radio and television stations are randomly selected for EEO audits. A list of the radio and television stations included in this audit as well as the text of the audit letter, setting out the requirements for the responses from the stations selected, is available here. The deadline for stations to upload their responses to their FCC-hosted online public inspection file is October 7, 2022. Note that, in contrast with past practice, the Enforcement Bureau will no longer issue letters to licensees upon completion of its review of the audit responses. If questions arise during staff review, the Enforcement Bureau will contact the licensee.
- The FCC maintains a list of “Items on Circulation” – decisions that have been drafted by the FCC staff for consideration, revision, and review by the Commissioners before those decisions are adopted. On August 18, a new item was added to the list of matters being reviewed by the Commissioners – a Report and Order and Notice of Inquiry on the Annual Regulatory Fees. As the FCC must adopt a decision soon so that fees can be paid before the start of the FCC’s new fiscal year on October 1, we can expect a quick review by the Commissioners. Broadcast interests continue to lobby for reduced broadcast fees, including a letter from 92 Congressional representatives opposing increased fees sent this week to the FCC Chair. As we wrote here, broadcasters have suggested that technology companies should pay a share of the regulatory fees as they benefit from FCC decisions. Now, only licensees pay for the cost of FCC regulation. But, given the need for immediate adoption of the fees for this year, the NAB has recognized that the extension of the obligation to pay fees may need to wait for future years. The Notice of Inquiry may well ask questions as to how such a policy could be implemented in future years consistent with the provisions of the Communications Act.
- On our Broadcast Law Blog, this week we wrote more about the $60,000 penalty imposed on an LPTV station for violations of the FCC sponsorship identification and political broadcasting rules. We mentioned that case in last week’s summary of regulatory actions. Our article this week details the legal issues raised in that case where the broadcaster sold advertising packages that included not only spots but also an interview in what was seemingly a local interest news interview program, without identifying the interview segments as having been sponsored.
August 6, 2022 to August 12, 2022
- The FCC’s Media Bureau released a consent decree, including the payment of a $60,000 penalty, with an LPTV station operator to resolve sponsorship identification issues, including those associated with political ad sales. FCC staff alleged that the LPTV station was airing paid-for appearances by legally qualified candidates in what appeared to be a local news program without disclosing that the candidates had actually paid to be in the news segments. The Bureau found that the station was offering candidates the opportunity to purchase an “All-in-One” advertising package for $1,500 which explicitly included advertising spots and a personal live interview in the news program. In addition, the station had accepted money from several commercial entities in exchange for interviewing their spokespersons on the news program, again without the required sponsorship ID. Along with paying a $60,000 civil penalty, the station operator admitted in the consent decree that it violated the FCC’s sponsorship identification rules and agreed to implement a five-year compliance plan with regular reporting requirements. The Consent Decree noted that the $60,000 financial penalty was determined taking into account the licensee’s ability to pay, suggesting that it would have been higher for a more profitable station. Look for more on this decision on our Broadcast Law Blog this coming week.
- The FCC’s Enforcement Bureau issued a Forfeiture Order imposing a $25,000 fine against a Florida LPFM licensee for failing to comply with the terms of its license, failing to make its station available for inspection, and EAS violations. The Bureau found that the licensee operated its station at the wrong power level, with the wrong antenna from the wrong location, failed to make the station available for inspection, and failed to maintain required EAS equipment. Among other things, the station was operating with an effective radiated power (“ERP”) of 177 watts (instead of the authorized 20 watts), and with a two-bay antenna (instead of a single-bay antenna), ultimately resulting in an ERP that was 8.88 times the authorized power level and far in excess of the 100-watt maximum for LPFM stations. The licensee did not contest the Bureau’s findings but requested a reduction or rescission of the proposed penalty. The Bureau denied that request.
- As we are now in hurricane season, the FCC released its annual Public Notice reminding television broadcasters of the importance of emergency information broadcast on the station being accessible to viewers who are visually or hearing impaired. See our summary of the issues covered by this reminder here.
- The FCC’s decision, making clear that Class D educational FM stations with “instructional programming” are exempt from the obligation to prepare and retain Quarterly Issues Programs Lists, was published in the Federal Register this week. We noted that decision in a prior weekly update here. The publication sets the effective date of the rule change as September 12, 2022, though that date has little real effect as the rule change merely codifies existing FCC policy.
July 30, 2022 to August 5, 2022
- Both the Federal Emergency Management Agency (FEMA) and the FCC released public notices, available here and here, alerting broadcasters and cable companies that they recently became aware of certain vulnerabilities in EAS encoder/decoder devices which, if not updated to most recent software versions, could allow an intruder to issue unauthorized EAS alerts. Broadcasters are urged to update their EAS devices with the latest software and security patches, change default passwords, make sure that their systems are behind a firewall, and review audit logs regularly to make sure that there has been no unauthorized access.
- The FCC issued a Public Notice reminding FM broadcasters, LPTV and TV translator operators, and MVPDs, of the September 6, 2022 deadline to submit all remaining invoices to the TV Broadcaster Relocation Fund. This fund is to reimburse these entities for costs incurred because of the television incentive auction. The FCC also asked that entities initiate close-out procedures as soon as possible and reminded parties receiving reimbursement to keep all receipts for ten (10) years as the FCC can audit the claims for reimbursement at any time during that period.
- The Media Bureau entered into a consent decree, including a $25,000 monetary penalty and a compliance plan, with a Trust which controlled multiple companies that owned radio stations. The FCC faulted the Trust for not seeking permission for almost 10 months for the involuntary transfer of control caused by the death of the controlling shareholder. The consent decree made clear that a broadcaster is to file a transfer of control application within 30 days of the death of a controlling principal. The broadcaster also did not seek Special Temporary Authority for a translator that had been silent for seven months.
- The FCC issued an order selecting the winners in 27 groups of mutually exclusive noncommercial applications from the 2021 window for filing applications for new noncommercial FM stations in the reserved band. An FCC summary of the points earned by each applicant in the 27 groups is available here. This is the first order applying to the 2021 applications the FCC’s points system for choosing among mutually exclusive applicants. We wrote on our Broadcast Law Blog more about the point system for choosing between mutually exclusive noncommercial applicants here and here.
- The FCC’s Media Bureau entered into two consent decrees, here and here, with noncommercial licensees over public file rule violations at their radio stations. The Bureau granted these stations’ renewal applications without any monetary penalties but imposed significant regular reporting requirements so the FCC can monitor their continued compliance. The decrees also required a training program for the stations’ staffs, and compliance plans to ensure that violations do not occur in the future. These decisions show how seriously the FCC takes public file compliance.
July 23, 2022 to July 29, 2022
- A bill was introduced in the US Senate proposing to prohibit any FCC or criminal action against a broadcaster who ran ads for a cannabis business legal in the state in which the station is licensed. We wrote, on our Broadcast Law Blog, about the three different legislative efforts now underway to lift any prohibitions on broadcasters running these ads from businesses in states where marijuana has been legalized.
- Federal Register publication of the FCC’s Notice of Proposed Rulemaking to modify the Nielsen reports that are specified in the FCC’s rules to determine what a station’s local market is for cable and satellite carriage purposes occurred this week. As the Nielsen report currently specified in the rules is being phased out, another Nielsen report is proposed to be substituted in these rules. Comments are due on this proposal on August 29, with reply comments due by September 26. FCC Public Notice of these filing dates was published this week.
- The FCC’s Video Division issued a Memorandum Opinion and Order and Notice of Apparent Liability to an LPTV station in Reno, Nevada for failing to file a license application following the completion of the construction of new facilities and for operating without authorization. The station claimed to have started operating in digital in 2016 on its old analog channel, even though it had a construction permit to operate on another channel. In 2021, it modified its construction permit for retroactive approval to make its “flash-cut” to digital on its existing channel, but then failed to file a covering license for those digital operations until a 2022 inquiry from the FCC staff as to the status of the station. A fine of $6500 is proposed. We noted a similar case two weeks ago. It appears that the Commission is contacting LPTV stations that have not shown that they are operating in digital to see if their licenses are still valid. The FCC is apparently discovering stations that converted before last year’s deadline for the digital conversion but did not, after completing the conversion, file the required paperwork seeking a license. With very limited exceptions, all broadcast stations need to get FCC approval before making changes to their transmission facilities, and then file an application for a license to cover after they complete construction demonstrating to the FCC that construction was completed as authorized.
- In a Second Order on Reconsideration, the FCC upheld a decision allowing the holder of a construction permit for a new FM station to change city of license from a community in the Longview, Washington Urbanized Area (UA) to one outside that UA. This case discussed the UA Service Presumption (UASP), which is a part of the FCC’s Rural Radio policy. The UASP considers a station licensed to any city in an urbanized area, or one that can provide city-grade service from any fully spaced transmitter site to 50% of the urbanized area, to be licensed to the urbanized area unless a showing can be made rebutting the presumption. The presumption would be rebutted by a showing that the community really is independent of the UA and has its own needs for a broadcast radio service. The presumption is important in applying the criteria of Section 307(b) which seeks to make a preferential distribution of broadcast services among the states and communities by giving a preference to proposals for a first local service to a community. A community considered to be in a UA gets no preference because the application of the UASP means that all other stations in the UA are deemed to serve that community. A station outside the UA (except when the community is an extremely small “quiet village”) gets a preference if there are no other stations licensed to that community (see our article here for more information about this preference and how the UASP affects it). In this case, the applicant moving out of the UA could do so without removing the only broadcast service to its community because, applying the UASP, the other stations in the Longwood market were deemed to meet the needs of the community. The challenger objecting to this move argued that the initial community was independent from the rest of the Longwood UA and had its own local needs for a broadcast service that should be met by the station’s continued service to that initial community. The FCC found that the challenger’s pleadings did not rebut the application of the UASP by providing enough evidence of the independence of the initial community from the rest of the UA, so moving the station to a new community without a local service and located outside the UA was a preferred arrangement of allotments. The FCC provided a detailed analysis of the factors that can go into rebutting the UASP and the evidentiary burdens that proponents and challengers to such a showing must provide. The case is worth reading if you are contemplating a city of license change.
- The Federal Trade Commission published in the Federal Register its request for comments on its revised guide to The Use of Endorsements and Testimonials in Advertising. Any media company creating commercials using celebrities or experts designed to promote commercial goods and services should be familiar with the guide and should review the FTC’s proposed changes. Comments on the proposed changes are due by September 26.
- On Friday, we published our monthly article highlighting regulatory dates and deadlines for the coming month. August Regulatory Dates for Broadcasters is now available.
- With the final political primaries occurring in August and early September, and as advertising is already heating up for the November election, we published an article on the Political File requirements for federal and state “issue” ads, i.e., those ads not bought by candidates or their authorized campaign committees. The article talks about the more detailed public file obligations required for a federal issue than for ads about state and local issues.
July 16, 2022 to July 22, 2022
- July 18, 2022 was the reply comment deadline for the FCC’s Notice of Proposed Rulemaking on the its proposed regulatory fees for fiscal year 2022. The NAB Reply argued that broadcasters are proposed to pay too much, and contends that certain FCC operational costs have been misallocated to broadcasters for regulatory activities that do not involve them (the reg fees are allocated to reimburse the FCC for the costs of regulating each industry that the FCC oversees). The NAB recognized that, as the fees need to be set soon so that they can be paid before the October 1 start of the next fiscal year, the FCC may not be able to broaden the base of payors to include currently unlicensed entities that benefit from FCC regulation, fees on broadcasters should be limited to an increase of no more than 5% rather than the 13% increase proposed for radio. The FCC budget, which the fees are to reimburse, only increased by 2.1%. As might be expected, representatives of other segments of the communications industry argued that their portion of the fees should not be increased. Expect an FCC decision setting the final amounts for the fees in late August or very early September.
- The FCC’s Enforcement Bureau issued a Notice of Violation (NOV) to an FM station in Georgia for operating an FM booster without FCC authorization – and without even applying for one. The NOV directs the station to file within 20 days a written explanation of its violations and what it has done to cure the problem. The NOV cautions that the Enforcement Bureau could take further action against the station in the future, including assessment of a fine. The Bureau also issued a similar NOV to an FM station in Florida for operating from a location not authorized by its Special Temporary Authority (STA), using an antenna not authorized by the STA. Remember, if you plan to change the transmission facilities with which your station operates, in the vast majority of cases, you will need the FCC’s prior approval to do so.
- The FCC’s Audio Division issued a short-term renewal of one year (as opposed to a full term of eight years) to a group of Texas FM stations, each of which was alleged to have been silent for 25% of its license term and over 40% of the period covered by the renewal application plus the time that the renewal was under consideration. This again reminds broadcasters of the seriousness with which the Audio Division is treating stations that have been silent for extended periods. See the July 19 entry on our Broadcast Law Blog for further discussion of the FCC’s developing practices in dealing with stations that are not continuously operating.
- The FCC continues to aggressively police pirate radio stations, issuing five notices of illegal operation on July 18. In each case, the FCC warned the alleged violator that it could be subject to a fine of up to $2.1 million if such illegal operations continued. These notices were again directed at the owners of the properties from which the pirates were operating. See a sample notice here.
- The FCC’s Audio Division rejected a request for the grant of an application from last year’s window for new Noncommercial Educational (NCE) reserved-band FM stations. The applicant requesting the grant was not preferred in a May decision awarding a construction permit to another mutually exclusive (MX) applicant based on its proposed superior technical coverage. After that decision, the applicant in this case amended its application and contended that, as the amendment removed any conflict with the winning applicant, its application should also be granted. The FCC rejected that contention, as its rules only allow grant of one application out of any group of MX NCE applicants. In its rulemaking setting the rules for deciding between MX NCE applications, it specifically rejected a proposal to allow “secondary grants” from within any MX group, fearing that allowing such grants would be administratively difficult and might result in the grant of technically inferior applications. Without compelling reasons, which the Division did not see in this case, this policy will not be waived.
- A new Chief Judge was appointed to the Copyright Royalty Board (CRB). The CRB sets certain music royalties and allocates certain fees collected by the Copyright Office. For instance, the CRB sets the fees radio broadcasters pay to SoundExchange for streaming their signals on the Internet. It also decides on the distribution of the distant signal royalties paid by cable and satellite for importing non-local television stations and the fees paid to ASCAP, BMI, SESAC and GMR by noncommercial broadcasters. We wrote on our blog about the many other proceedings relevant to media companies in which the CRB is involved.
July 9, 2022 to July 15, 2022
- The US Court of Appeals this week determined that the FCC’s requirement that broadcasters confirm by searching DOJ and FCC databases that all buyers of program time on their stations are not representatives of foreign governments was beyond the power of the FCC as authorized by Congress. The Court decision will become effective if no appeals are filed. The ruling does not change the obligation of broadcasters to have all buyers of program time certify in writing that they are not foreign governments, agents of foreign governments, or funded by foreign governments, and that no one in the production chain for any paid programming is a foreign government or its representative (or, if there are foreign governments behind the programming supplied to the station, the station must make appropriate on-air and public file disclosures). Instead, the decision will simply remove the requirement that broadcasters verify the programmer’s certifications by reviewing the DOJ’s Foreign Agent Registration Act database and an FCC database listing foreign government funded video programmers. For more on this decision, see the article in our Broadcast Law Blog, here.
- This week, the FCC unanimously adopted an Order and Sixth Notice of Proposed Rulemaking (on which we previously reported) to delete or revise analog rules for LPTV and television translator stations that no longer have any practical effect or that are otherwise obsolete or irrelevant after the transition of these stations to digital operation. Comments and reply comments on the Sixth Notice of Proposed Rulemaking will be due 30 and 45 days, respectively from publication of the document in the Federal Register
- At its July 14 Open Meeting, the FCC unanimously adopted a Notice of Proposed Rulemaking (also previously reported) seeking comment on whether to update its rules to identify a new Nielsen publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes. Nielsen has notified the FCC that it will no longer publish its Station Index Directory, which has historically been used in combination with the Nielsen Station Index and United States Television Household Estimates to determine a station’s DMA for carriage purposes. In his separate statement on the Notice of Proposed Rulemaking, Commissioner Simington, citing Nielsen’s current unaccredited status, expressed concerns about the FCC’s reliance on Nielsen data and Nielsen’s inclusion in nearly two dozen FCC rules, and called on the FCC to open a notice of inquiry on this topic. Comments and reply comments on the Notice of Proposed Rulemaking will be due 30 and 60 days, respectively, from the date the document is published in the Federal Register.
- Forty-nine state broadcaster associations, “represent[ing] nearly the entire universe of radio stations in every state and territory in the United States,” this week submitted a joint letter to the FCC to voice their “strong opposition” to GeoBroadcast Solutions’ (GBS) proposal that would permit GBS to deploy its proprietary ZoneCasting technology in the marketplace. Among other things, the associations state that “GBS’s approach would only undermine, rather than serve, listeners and local broadcasters, raising serious concerns about this new technology’s effect on local radio’s important public safety function and ability to provide the free, local news, information, and entertainment on which Americans rely.” The associations also highlighted the potential impact of ZoneCasting on public safety, listeners and the economics of the radio industry.
- The FCC’s Audio Division of the Media Bureau released an Order adopting a consent decree with an Oklahoma AM station, in which the station was granted a short-term renewal of one year instead of a full term renewal for eight years. The Bureau found that the station had been silent for four periods during its license term (including the period when its renewal application was pending), three of which were almost 12 months in length. The Bureau was not persuaded to grant a full-term renewal by the fact that the station had sought FCC authorization for its periods of silence. The station also disclosed that it had failed to comply with the FCC’s online public inspection file requirements. In addition to the short-term renewal, the consent decree requires the station to implement a compliance plan to ensure future compliance with the online public inspection file requirements. For another consent decree issued to resolve online public inspection file violations (but without issuing a short-term renewal, go here).
- The FCC’ Video Division issued a Memorandum Opinion and Order and Notice Of Apparent Liability For Forfeiture proposing a $6500 fine on an LPTV station that had completed construction of its digital facilities in 2017 but did not file a license to cover that construction permit until late 2021 after the station’s digital construction permit expired and the FCC issued a notice cancelling the station license for not having met the July 2021 deadline for the commencement of LPTV digital operations. As the licensee was able to prove the prior construction of the station, the FCC reinstated the license but proposed the fine for late filing of the license application and operating without authority for the periods of its digital operation before the license application was filed. This decision serves as a reminder that broadcasters who construct new facilities pursuant to a construction permit must file a license application upon the completion of construction notifying the FCC of the actual facilities constructed and verifying that the construction was accomplished according to the requirements of the permit.
- The FCC’s Enforcement Bureau issued a Notice of Violation to an LPFM station in Florida for failure to allow FCC representatives to inspect the station. In this case, FCC agents from a Field Office were not allowed by employees of the station to inspect its operation, and the owner of the station allegedly, after being called, also refused to permit the inspection. As noted in the Notice of Violation, the FCC rules require that all stations be available for inspection by FCC agents during all hours of operation.
- This week, we published on our Broadcast Law Blog an article about two new performing rights organizations that are seeking royalties for the public performance of comedy recordings. ASCAP, BMI, SESAC and GMR do not typically cover the performance of the “literary work” underlying a recorded comedy routine, so these new PROs are seeking royalties for these performances. Also on the Broadcast Law Blog was an article reminding stations that they need to register in the new CORES2 FCC database, and to use the FCC’s LMS database for all call sign change requests (or requests for call signs for new stations) as the independent call sign database is no longer in use.
June 25, 2022 to July 8, 2022
- The FCC has issued a Public Notice confirming the comment and reply comment dates for its Third Further Notice of Proposed Rulemaking on the adoption of ATSC 3.0. Comments are due August 8, 2022, and reply comments are due September 6, 2022. As we reported in our last weekly update, the Third Further Notice seeks comment on the status of the Next Gen TV rollout and on certain specific issues including (1) the scheduled 2023 sunset of the requirement that a Next Gen TV station’s ATSC 1.0 simulcast primary video programming stream be “substantially similar” to its 3.0 primary programming stream, (2) the scheduled 2023 sunset of the requirement that a Next Gen TV station comply with the current ATSC A/322 technical standard, and (3) whether the FCC needs to take any action to insure that the patent rights in ATSC 3.0 technologies are being fairly licensed.
- The FCC’s Public Safety and Homeland Security Bureau issued a Public Notice offering assistance to any State Emergency Communications Committee that had not filed an updated State EAS Plan with the FCC. These updated EAS plans were due to be filed on July 5. Broadcasters should insure they understand how any changes to their state’s plan affect their EAS obligations, including whether any changes have been made to the stations that they are to monitor to receive EAS alerts in their area.
- The FCC issued its final agenda for next week’s monthly open meeting on July 14, 2022. As we have previously reported, the FCC is scheduled to consider whether to adopt a Notice of Proposed Rulemaking seeking comment on whether to update its rules to identify a new Nielson publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes, and an Order and Sixth Notice of Proposed Rulemaking on the TV digital conversion. The Order and Sixth Notice of Proposed Rulemaking would update the FCC’s rules to eliminate analog rules to reflect the recent termination of analog operations by LPTV and television translator stations.
- July 18, 2022 is the reply comment deadline for the FCC’s Notice of Proposed Rulemaking on the FCC’s proposed regulatory fees for fiscal year 2022. In initial comments filed this week, the NAB argued that the FCC’s methodology for imposing the fees on broadcasters was inexplicable as it raised fees on broadcasters by 13% while the FCC budget which the fees are to reimburse only increased by 2.1%. The NAB made specific arguments as to where it believes the FCC misallocated its costs to broadcasters when computing the fees. The state broadcast associations jointly filed comments expressing many of the same concerns. The fees that the FCC is proposing for television and radio stations are set forth in Appendix C and Appendix G of the NPRM. In the NPRM, the FCC specifically sought comments on the mechanism it uses to calculate the regulatory fees for television stations based on the population-based methodology it adopted several years ago. While no specific issues on radio fees were teed up for comment by the NPRM, the broadcasters’ comments, as noted above, complain that the fees as proposed are too high.
- The FCC issued a Public Notice with its quarterly summary of the number of broadcast stations in the country. This notice shows that the number of full-power and Class A TV stations is almost identical to that shown in the pre-pandemic June 2019 Public Notice. There are about 135 fewer full-power radio stations, principally due to there being over 200 fewer AM stations.
The FCC’s Media Bureau entered into five consent decrees with radio licensees to resolve investigations into their online political files. In all five cases (available here, here, here, here and here), the licensees admitted that they had failed to timely place records of all requests for the purchase of political broadcast time in their political files in a timely manner, in violation of section 315(e)(3) of the Communications Act and Section 73.1943(c) of the FCC’s rules. Noting, however, the licensees’ disclosures in their license renewal applications and the financial stress suffered by the radio industry due to the COVID pandemic, the Bureau did not impose financial penalties on the licensees, opting to only require them to implement a comprehensive compliance plan. The continuing issuance of these consent decrees and their paperwork obligations reminds broadcasters of the importance that the FCC places on orders for political time being uploaded immediately (within one business day) into the political broadcasting section of a station’s online public inspection file.
June 18, 2022 to June 24, 2022
- The FCC has released a draft Notice of Proposed Rulemaking that, if adopted at the FCC’s July 14, 2022 regular monthly open meeting, would seek comment on whether to update its rules to identify a new publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes. Current FCC rules direct commercial TV stations to use Nielsen’s annual Station Index Directory and Household Estimates to determine their DMA, and stations rely on these determinations when they seek carriage on cable and satellite systems. The proposed rule changes would remove references to the now defunct annual Station Index and Household Estimates and instead direct broadcasters to Nielsen’s Local TV Report.
- The FCC released a Third Further Notice of Proposed Rulemaking in which it seeks comment on the state of the Next Generation Television, or ATSC 3.0, transition and on the scheduled sunsets of two rules adopted in 2017. First, the FCC seeks comment on the progress of broadcasters’ voluntary, market-driven deployment of ATSC 3.0 service and the current state of the ATSC 3.0 marketplace. The first rule on which the FCC seeks comment is the scheduled 2023 sunset of the requirement that a Next Gen TV station’s ATSC 1.0 simulcast primary video programming stream be “substantially similar” to its 3.0 primary programming stream. The FCC also seeks comment on the scheduled 2023 sunset of the requirement that a Next Gen TV station comply with the current ATSC A/322 technical standard. Additionally, the FCC seeks comments on whether the technology for ATSC 3.0 has been made available on fair terms by the patent holders for that required technology. Comments and reply comments will be due 30 and 60 days, respectively, after publication of the Third Further Notice of Proposed Rulemaking in the Federal Register.
- In an Order released on June 22, 2022, the FCC restores clarifying language that was inadvertently eliminated almost 40 years ago from section 73.3527 of the FCC’s rules. The clarification relates to applicants, permittees, or licensees whose existing or prospective facilities are Class D FM stations or other educational stations that are wholly “instructional” in their programming. Class D stations are noncommercial stations that operate with 10 watts on commercial channels. Instructional stations are those used by schools wholly for student instruction or teacher training. This clarification makes clear that Class D and Instructional stations are exempt from the obligation to complete Quarterly Issues Programs Lists.
- The FCC has released a draft Order and Sixth Notice of Proposed Rulemaking, which, if adopted at the FCC’s July 14, 2022 open meeting, would update the FCC’s rules to reflect the recent termination of analog operations by LPTV and television translator stations. The Order would (i) delete or revise rules that no longer have any practical effect given the completion of the LPTV/translator digital transition, or that are otherwise obsolete or irrelevant, and (ii) make certain ministerial changes, for example, to delete analog rules that were found in Part 74, and to add definitions and other information previously adopted in prior rulemaking proceedings. The Sixth Notice of Proposed Rulemaking would seek comment on updates to rules which reflect the digital transition, current technology, and/or Commission practices.
- In a Memorandum Opinion and Order, the FCC’s Media Bureau entered into a Consent Decree, which included a $1500 monetary penalty, with a licensee who admitted that it had transferred control of its station to a time broker during the course of a time brokerage agreement. The licensee admitted in FCC filings that there were times when it was unfamiliar with the programming and operations of the station. FCC rules require that a licensee maintain ultimate control of all aspects of a station’s operations, even if another entity is providing programming and sales services.
- The FCC announced the winners of the auction of construction permits for 18 new full-power television stations. The highest winning bid was just over $6.4 million for a new station at Grand Forks, ND. Winning bids of over $4 million were received for construction permits authorizing new stations at Freeport, IL; Alexandria, MN; and Flagstaff, AZ. The full list of winning bids is available here, and the FCC public notice setting out the post-auction proceedings that are required before permits are issued is available here.
June 11, 2022 to June 17, 2022
- Comment dates have been announced in the Federal Register for the FCC’s Notice of Proposed Rulemaking proposing to authorize LPTV stations operating on TV channel 6 to continue to provide an analog audio stream that can be received on FM radios at 87.7. Comments are due July 18, 2022; reply comments are due August 1, 2022. The proposal would limit that authorization in many ways, including suggesting that the authority would be restricted to those LPTV Channel 6 stations already providing such an audio service. The Notice also asks for comments as to whether Channel 6, in geographic areas where it is not currently used for TV services, should be repurposed for FM use (a proposal that has previously been advanced by the FCC, see our Broadcast Law Blog article here on previous FCC requests for comment on this issue).
- The Radio Music License Committee has asked a single court to decide what a reasonable license fee would be for royalties owed by commercial broadcasters to both ASCAP and BMI. Both the ASCAP and BMI licenses with the radio industry expired at the end of 2021. As both ASCAP and BMI routinely argue in license proceedings that they have the largest share of the music played by radio stations, RMLC suggests that a combined case, arguably permitted for the first time by the Music Modernization Act, would allow for this issue to be decided in a uniform way by a single judge. See the RMLC press release for more information.
- The FCC’s Video Division proposed to fine a television translator permittee $6500 for filing an application for a license to cover its displacement construction permit over three years after completing construction and nearly six months after its permit expired. As no license had been filed before the permit expired, this fine also covered the unauthorized operation of the station during the six months after the permit expired. The mere fact that the FCC’s database did not reflect the cancellation of the permit after its expiration did not excuse the late filing. When completing construction of new facilities authorized by a construction permit, a broadcaster must file a license application demonstrating that construction was completed as authorized by the permit.
- Issues with a license application resulted in the FCC’s Audio Division rescinding the license of an FM translator. The FCC found that the licensee had falsely stated in its license application that it had completed construction at its authorized location. The licensee had instead constructed its facilities in a recreational vehicle (“RV”) park approximately 30 yards away from its authorized site, receiving power through a permanent electric outlet shared with an RV. The FCC emphasized that “[c]onstruction permits expire automatically and are forfeited if the facilities authorized therein are not completed by the established deadline; use of an alternate site or construction of temporary facilities does not prevent such forfeiture.” As an alternate basis for rescission, the FCC also found that the licensee had failed to comply with a condition in its license requiring continuous operation for the first year and establishing that station silence within that period evidenced unlicensable, temporary construction (the Media Bureau has placed this condition on all new radio broadcast licenses since 2015 to address perceived abusive practices in the industry). As evidence of the temporary construction, the FCC cited, among other things, the fact that RVs are inherently mobile and also noted the absence of any written lease with the RV owner or any agreement with the landowner of the RV park.
- The FCC’s Video Division also proposed to fine a full power television licensee $6,000 for failing to timely file its quarterly issues/programs lists and failing to report these violations in its license renewal application. Specifically, the licensee uploaded one list to its online public inspection file more than one year late, and seven lists between one month and one year late. The FCC also found, however, that the licensee’s violations did not constitute a “serious violation” warranting designation of the license renewal application for hearing, it would grant the license renewal application at the conclusion of the forfeiture proceeding if there were no other issues with the application.
- The FCC’s Enforcement Bureau issued Notices of Illegal Pirate Radio Broadcasting to two property owners for allegedly hosting unlicensed FM broadcast stations in Queens, New York and Newark, New Jersey, respectively. The Notices each included the following language: “[Y]ou are hereby notified and warned that the FCC may issue a fine of up to $2,000,000 if, following the response period set forth below, we determine that you have continued to permit any individual or entity to engage in pirate radio broadcasting from the property that you own or manage.
June 4, 2022 to June 10, 2022
- The FCC this week announced that in-person meetings at its new headquarters building will now be allowed – though only when scheduled in advance and subject to COVID protocols. (Public Notice of Reopening and Public Notice on COVID Protocols). The FCC had been closed to outside visitors since March 12, 2020. In the interim, it moved to a new building. The FCC plans its first in-person meeting open to the public in July.
- The FCC announced that requests for changes in the call letters of broadcast stations, previously requested in a stand-alone database, will be requested through the LMS database as of June 22, 2022. The old call letter reservation system will be decommissioned. Procedures for using LMS to request call letter changes are set out in the FCC’s Public Notice released this week (Public Notice).
- The FCC adopted the Notice of Proposed Rulemaking asking for public comment on a proposal to authorize LPTV stations operating on TV channel 6 to continue to provide an analog audio stream that can be received on FM radios at 87.7. Its proposal would limit that authorization in many ways, including suggesting that the authority would be restricted to those LPTV Channel 6 stations already providing such an audio service. The Notice also asks for comments as to whether Channel 6, in geographic areas where it is not currently used for TV services, should be repurposed for FM use (a proposal that has previously been advanced by the FCC, see our Broadcast Law Blog article here on previous FCC requests for comment on this issue). Comment dates will be announced by a Federal Register publication (Notice of Proposed Rulemaking).
- The FCC issued a reminder that all invoices for amounts that can be reimbursed from the TV Broadcaster Relocation Fund for costs incurred because of the incentive auction must be filed by September 6. These remaining requests are due from LPTV stations, MVPDs, and FM stations affected by the repacking of the television band following the incentive auction (FCC Reminder).
- The FCC’s new rules authorizing computer modeling for FM directional antennas was published in the Federal Register. Those rules go into effect on July 11, 2020.
- EAS rules adopted last year, providing for the regular filing of updated state EAS plans and their approval by the FCC, became effective earlier this week after approval of their paperwork collection requirements. State EAS committees should review and update their plans as required by these new rules (Public Notice).
- In a decision released this week in a dispute between two radio companies over the appropriate compensation due to a broadcaster who was forced to change channels on its FM station to accommodate the upgrade in the facilities of another broadcaster’s FM station, the FCC clarified what expenses were appropriately the subject of a reimbursement request. The FCC allows one FM broadcaster who wants to upgrade its facilities to obtain an FCC order changing the channel of another broadcaster (at its same site and power) as long the upgrading broadcaster pays the reasonable costs of the broadcaster being forced to change channels. This decision helps to clarify what expenses are considered reasonable. (Decision)
- The FCC proposed to fine a public broadcasting company for incomplete public inspection files at four of its television stations. These deficiencies were discovered by the FCC during the license renewal process. They had not been reported by the broadcaster even though the renewal application asks for a certification as to whether the broadcaster was timely in uploading materials to its public file. Two of the broadcaster’s stations are proposed to receive fines of $6000 for the violations, and two would receive $9000 fines. The deficiencies that were identified by the FCC included instances where a station had three Quarterly Issues Programs lists that were uploaded over a year late and four lists uploaded between one month and one year late ($9000 fine, $6000 fine). These decisions demonstrate that the Video Division is fining stations for violations of its public file rules, where the Audio Division, for the most part dealt with such violations discovered during the license renewal process through consent decrees.
- The Federal Trade Commission initiated a proceeding to update its guidelines on preventing digital deception. The proceeding looks at issues including online sponsorship identification and other disclosures in advertising, with the FTC fearing that disclosures often were not evident to consumers when available only though multiple hyperlinks or otherwise did not provide clear information to consumers. Comments are due by August 2, 2022. (Press Release, Request for Comments)
May 28, 2022 to June 3, 2022
- The FCC issued its Notice of Proposed Rulemaking proposing the annual regulatory fees to be paid by September 30, the end of the government’s fiscal year, by broadcasters and others regulated by the FCC. Public comment on the FCC’s proposal is due July 5, 2022, with replies due by July 18 (Notice of Proposed Rulemaking). The NAB issued a statement attacking the proposed 13% increase in the fees to be paid by radio stations as “an unjustified increase” that would be “devasting” to local radio services (NAB Statement). A decision on the final amount of the proposed fees is routinely released in late August or very early September so that fees can be paid before the October 1 start of the new fiscal year.
- In connection with the proposed acquisition of the Tegna TV stations by Standard General, L.P., the FCC issued a letter request asking for significant additional information about the pending application – including documents submitted to the Department of Justice in connection with the Hart-Scott-Rodino filing that seeks antitrust approval for the deal. The HSR documents include internal memos and documents submitted to funding sources that outline the competitive impact of the proposed transaction. The FCC request also asks for a description of the public interest benefits of the proposed transaction, and the impact it would have on employment at the stations to be acquired (FCC Request). This is information not routinely sought by the FCC in the assessment of a broadcast acquisition.
- The FCC’s Enforcement Bureau issued another letter to a landowner in Baltimore whose property was believed to be home to a pirate radio operation. The letter gives the property owner 10 days to respond, and notes that hosting a pirate radio station can lead to a $2,000,000 fine (Letter). We recently wrote on our Broadcast Law Blog, here, about other landowners who received similar letters when they were identified as hosting pirate radio operations.
- Following Federal Register publication, new FCC rules became effective, making it clear that broadcasters and cable companies have obligations to post information to their online public file about advertising that runs on their stations addressing federal issues (Public Notice). As we wrote here when these rule changes were initially announced, they have little practical effect as their requirements were already spelled out in the Communications Act, and the FCC already enforced the Act’s requirements. The changes just made the FCC’s rules conform to the language of the Act.
- The FCC’s Further Notice of Proposed Rulemaking on unlicensed “white spaces” devices that operate in the TV Band was published in the Federal Register, setting the deadline for public comment as July 1, with reply comments due August 1 (Federal Register). The FCC earlier this year adopted new rules that require fixed and certain personal/portable white space devices to check white space databases at least once per hour for other spectrum users to be protected from interference, replacing a prior rule that had not been enforced requiring the databases to push information to white spaces devices whenever there was a new wireless microphone or other protected use in the area in which the white space device was operating. This Further Notice seeks comments on whether “unlicensed narrowband white space devices” should be subject to the same hourly requirement to check white space databases as other users or whether some other monitoring obligation should apply.
May 21, 2022 to May 27, 2022
- The FCC has requested comments on a proposal for a new Content Vendor Diversity Report. A public interest group has asked the Commission to require this report to gather information on the race and ethnicity of employees and senior leadership of vendors of video content to both traditional media and streaming services. The requested comments are meant to inform the FCC as to whether it should move forward to review this proposal. A formal Notice of Proposed Rulemaking would be necessary before any final rules are adopted. Comments are due July 22, with replies due August 22. (Request for Comments)
- In a major First Amendment decision, the 11th Circuit Court of Appeals issued an injunction prohibiting the State of Florida from enforcing its laws that would have limited social media platforms from various forms of content moderation. The law had provisions including forbidding the “deplatforming” of any candidate for public office, limiting the platforms’ ability to favor or disfavor content about any candidate, restricting any actions favoring or disfavoring content from any “journalistic enterprise,” and requiring the release of a “thorough rational” for every content moderation decision made by the platforms. The Court determined that, as private companies, these platforms could make such decisions without government intervention, and the state cannot penalize them for the content moderation decisions that they make. (Opinion of the Court)
- The FCC issued fines to two companies whose broadcast stations were silent for extended periods without requesting FCC approval. In one case, a translator operator was fined $4000 for being silent for over 11 months without requesting FCC approval, and for failing to notify the FCC that the translator has changed its primary station. This fine was reduced from a proposed fine of $8000 upon the licensee’s showing of economic hardship (Forfeiture Order). In another case, the Media Bureau fined a broadcaster $17,500 for the silence of an AM station and associated translator that was only brought to the FCC’s attention by informal objections to the licensee’s license renewal application. The fine also covered the failure to report the silence in connection with the renewal application (where the licensee had certified that the station had not been silent for more than 30 days) and for public file violations (Forfeiture Order)
- The Media Bureau denied a request for an extension of the deadline for comments on the tests of GeoBroadcast Solutions system of using FM boosters to originate limited amounts of programming different from that provided by their primary stations. We wrote about this request for comments on our Broadcast Law Blog, here. The Bureau denied the extension request filed by the NAB and NPR which had asked for an additional two weeks to review the technical showings. The Bureau said that extensions are not routinely granted, and no good cause had been shown for an extension in this case (Order). The comment date remains June 6 with replies due June 21.
- The FCC’s Office of Managing Director announced that the “legacy CORES” database will be decommissioned on July 15. A new system, CORES2 has been active since 2016. To manage their FCC Registration Numbers (FRNs) needed for many FCC filings, including the resetting of passwords, any FCC user who has not registered in the new CORES2 system should do so to avoid delays in future FCC filings (Public Notice).
- In allocations proposals, the FCC proposed substituting channel 22 for channel 9 at Orono, Maine for WMEB-TV (Notice of Proposed Rulemaking). The FCC also allocated a new FM channel, 263A, to Hamilton, Texas, which will be available in a future FM auction (Report and Order).
May 14, 2022 to May 20, 2022
- The FCC issued a draft Notice of Proposed Rulemaking to be considered at its required monthly open meeting on June 8 that asks for public comment on its proposal to authorize LPTV stations operating on TV channel 6 to continue to provide an analog audio stream that can be received on FM radios at 87.7. Its proposal would limit that authorization in many ways, including suggesting that the authority would be restricted to those LPTV Channel 6 stations already providing such an audio service. The Notice also asks for comments as to whether Channel 6, in geographic areas where it is not currently used for TV services, should be repurposed for FM use (a proposal that has previously been advanced by the FCC, see our Broadcast Law Blog article here on previous FCC requests for comment on this issue). If the FCC adopts this Notice at its June meeting, comment dates will be announced by a Federal Register publication (draft Notice of Proposed Rulemaking).
- The FCC, at its May open meeting held Thursday, adopted its order approving the use of computer modeling for FM directional antenna – eliminating the need under current rules for a measured relative field pattern verified through either a full-scale mockup or a scale model on a test range or in an anechoic chamber. The Order will be effective at a later date after publication in the Federal Register (Report and Order).
- The FCC’s Office of Economics and Analytics issued the FCC’s annual call for comments on the State of Competition in the Communications Marketplace. Comments are due July 1 with reply comments due August 1. These comments are used to prepare a report to Congress on communications competition issues and are sometimes referenced by the FCC itself in proceedings dealing with competition issues.
- The FCC seeks comments on a list of questions about competition in both the Video and Audio marketplaces, including the impact of digital competitors on traditional providers and the role that regulation plays in the competitive landscape (Public Notice).
In its continuing review of applicants for new noncommercial FM stations filed during the filing window in 2021, the FCC reversed a decision granting an application for a new station in Mississippi based on its proposed coverage. The decision was reversed as the FCC found that a showing of the populations covered by the proposed new station, which supported the claims for that preference, was not filed by the deadline date for the filing of applications. As the FCC procedures for the filing window required all claims for preferences be filed by the application deadline, the grant was rescinded, and another application was granted instead (Letter Decision).
- In Auction 112, the sale of construction permits for 27 new full-power TV stations, mostly in rural western markets, the FCC announced that there were 10 qualified applicants who had paid their upfront fees to participate in the auction where bidding is scheduled to begin on June 7, 2021. (Public Notice)(List of Qualified Bidders)
- On Capitol Hill, a bipartisan group of 4 senators introduced legislation which, if adopted, would force large online platform to own only one of the three parts of the digital ad ecosystem – they could only be a Supply-side ad provider (bundling advertising availabilities to provide them to an ad exchange), an Advertising Exchange (where buyers and sellers are matched), or a Demand-side provider (where those buying advertising come to buy ads on the exchanges). Smaller digital advertising platforms would also be regulated to require more transparency and to avoid internal conflicts of interest. The proposed legislation is intended to boost competition in digital advertising sales and to lower the costs allegedly imposed by the overlapping interests of companies with interests in multiple aspects of the digital ad sales process. (Press Release)(Summary)(Text of Proposed Legislation)
- At a meeting this week, the Federal Trade Commission announced that it is considering changes to its endorsement guidelines which regulate false and misleading reviews of products and services, and which require disclosure of anything that the endorser receives in exchange for its review. While principally targeted to online marketing, these rules also apply to endorsements on more traditional media platforms. (Press Release)(Notice of Proposed Changes and Request for Comments)
May 7, 2022 to May 13, 2022
- The FCC rejected a request that it reconsider its December 2020 decision to end a proceeding to set aside one vacant TV channel in each market for exclusive use by unlicensed wireless microphones and white space devices. The Commission concluded that, following the incentive auction and repacking, there was insufficient television spectrum left for there to be a set-aside channel in every market, and there were other ways to accommodate wireless microphones and other unlicensed users (Order on Reconsideration). Read our blog post about the December 2020 decision, here.
- Legislation has been introduced in Congress to update the CALM Act. The proposed legislation, if adopted, would eliminate the safe harbor that TV broadcasters currently enjoy if they use approved technology to prevent loud commercials. Instead, that technology would not shield a video provider from possible liability if there was evidence that significant violations were occurring, a determination to be made based on factors including the number of complaints pending and the nature of those complaints. The legislation would also extend the applicability of the act beyond broadcast and cable to cover streaming video providers. (Press Release)(CALM Modernization Act).
- On our Broadcast Law Blog, we wrote last week about the FCC’s current role in regulating the Internet (Blog Post). On the same day we published our article, it was announced that Senator Bennett from Colorado introduced legislation in Congress to create a Federal Digital Platform Commission to regulate Internet platforms. If adopted, the new commission would regulate online platforms to achieve many goals including consumer protection, transparency in moderation policies, ensuring robust competition, and increased educational and public interest content. (Press Release)(Section by Section summary)(Text of Legislation)
- Following a “paper hearing” designed to speed FCC decisions when cases require fact finding by an FCC administrative law judge, a judge found that a convicted felon’s crimes were not serious enough to warrant his company’s losing its radio licenses. In the case of a felony conviction, the FCC analyzes whether the crimes are so serious that the licensee does not have the character to serve the public as well as whether the crime is indicative of the licensee’s likelihood of not being truthful and forthcoming with the FCC. In this case, the sole shareholder of the licensee, a former speaker of the Alabama House of Representatives, was convicted of crimes relating to improper use of his office for private gain. The judge determined that those crimes were not predictive of his likelihood to be truthful with the FCC, especially given the station’s history of FCC compliance. Nor were the crimes deemed so morally reprehensible that they demanded that the license be forfeited (Decision). We took a deeper look at this case and the FCC’s character policies when the hearing in this case was first announced, here.
- The Media Bureau deleted FM channels at Millerton, Oklahoma; Powers, Oregon; Mount Enterprise, Texas; Paint Rock, Texas; Hardwick, Vermont; and Meeteetse, Wyoming. These channels had been included in multiple FM auctions without being sold and no party expressed an interest in bidding on those channels in a future action. But, because a party pledged to file for it in the next FM auction filing window, the FCC did not delete a vacant allotment at Snowflake, Arizona. (Order)
- The Audio Division of the Media Bureau rejected a request to cancel the license of a station that went silent and failed for more than a year to notify the FCC that it had gone back on the air. Under Section 312(g) of the Communications Act, a station that is silent for more than a year will have its license automatically canceled unless it can show that the public interest requires the license be extended. In this case, as the licensee showed that it had in fact returned to operations within the one-year period, the license was not cancelled. However, because the station was silent for 248 days out of the two years that it was licensed to operate, it was given only a short-term license renewal for only one year, instead of the normal eight years, as the FCC found that prolonged periods of silence did not serve the public. The short term renewal will allow the licensee to demonstrate that it would in fact serve the public in the future. (Order and Consent Decree
April 30, 2022 to May 6, 2022
- Follow field testing by GeoBroadcast Solutions of its zonecasting system, the FCC opened a new comment period for interested parties to weigh in on the test results released by the company. Zonecasting technology allows FM boosters to originate some local programming so an FM broadcaster can provide different commercials or news inserts to different parts of its service area. Comments and reply comments on the test results are due by June 5 and June 21, respectively. (Public Notice)
- The FCC announced that more radio applications would soon be migrated from the now-shuttered CDBS application platform to the Licensing and Management System (LMS). Starting May 17, broadcasters must use LMS to file requests for Special Temporary Authority (STA) and extensions of STAs, among other filings. We wrote about this announcement on our Broadcast Law Blog, here. Review the full Public Notice for additional information and filing procedures. (Public Notice)
- The FCC released a Notice of Illegal Pirate Radio Broadcasting to four separate property owners warning them that FCC agents, acting on complaints, determined that unauthorized radio broadcast signals were originating from their properties. Under the 2020 PIRATE Act, property owners can be held liable for pirate radio broadcasts, even if they are not involved in the broadcasts themselves. The property owners could face penalties of up to $2 million if they continue to allow any individual or entity to engage in pirate radio broadcasting from the property that they own or manage (Summerville, Oregon) (Baltimore, Maryland) (Kissimmee, Florida) (Philadelphia, Pennsylvania). We covered these FCC actions in more detail on the Broadcast Law Blog, here.
- The FCC resolved another 13 groups of mutually exclusive applicants from last year’s window for filing for new noncommercial FM stations, selecting the tentative winner in each group based either on a preference for coverage proposed to areas underserved by noncommercial stations or on one applicant’s significantly greater proposed coverage area (Memorandum Opinion and Order). The FCC has yet to process mutually exclusive applications that cannot be resolved based on technical coverage. These applications will instead be processed based on the “point system” analysis that applies to NCE applications. See our articles here and here on the point system.
- In remarks to the American Association of People with Disabilities Tech Forum, FCC Chairwoman Jessica Rosenworcel, in highlighting the FCC’s accomplishments in advancing accessibility to various channels of communications, promised to hold additional forums on the accessibility of video programming – including looking at the accessibility of video programming delivered online (Remarks). We wrote about the forum held last year by the FCC to consider these issues and the jurisdictional questions raised about the FCC’s review of the activities of online platforms, here.
- A Petition for Rulemaking was filed by Fuse LLC, backed by Common Cause, National Hispanic Media Coalition, Public Knowledge, and United Church of Christ Media Justice Ministry, asking the FCC to establish an annual program diversity reporting requirement for broadcast, cable and satellite television providers and their affiliated online platforms. Fuse asks that this annual report detail the diversity of the vendors of content to these video providers – including reporting on the diversity of their full-time employees and of the leadership of networks and studios. (Petition for Rulemaking). This is merely an initial proposal for the FCC’s consideration. Several rounds of public comment would be required if the FCC decides to further consider this proposal.
- In response to the suggestion of a public interest group that the FCC block the takeover of Twitter by Elon Musk, both Republican Commissioners released statements questioning the authority of the FCC to review this merger. (Carr Statement, Simington Comments)
April 23, 2022 to April 29, 2022
- FEMA officials announced at the NAB Show that there will be no national EAS test in 2022. FEMA is planning for the next test to occur in the early part of 2023.
- The FCC released a draft Order that, if adopted, would allow FM and LPFM broadcasters using directional antennas to use computer modeling to verify the antennas’ directional patterns. The current requirement is that an FM or LPFM directional antenna’s performance measured relative field pattern must be verified using either a full-scale mockup or a scale model on a test range or in an anechoic chamber. The proposed rule change would bring the FM rules in line with those for AM and DTV directional antennas. Watch for a vote on this item at the FCC’s May 22 Open Meeting. (Draft Order)
- The chief of the Media Bureau’s Audio Division, Al Shuldiner, told NAB Show attendees that the migration of applications and forms from the FCC’s legacy filing portal CDBS to its current portal LMS will continue next month. LMS users should watch for a Public Notice in mid-May. This will include moving STA requests, now submitted by email, to LMS. In the same session, Video Division chief Barbara Kreisman encouraged licensees and their attorneys to ensure that their LMS contact information is correct so that the FCC can contact the proper person when necessary, particularly to resolve issues with pending renewal applications. Media Bureau Chief Holly Sauer urged broadcasters to respond to FCC inquiries about Biennial Ownership Reports, as the FCC staff has been reviewing the reports filed at the end of last year and identifying corrections that are necessary, and it wants to complete that review shortly. She also indicated that the FCC would be bringing back the FCC Form 395, annually reporting the breakdown by race and gender of each station’s employees. That form has not been used for the last two decades. We wrote about the proposal for the return of that form, and the issues the FCC is considering, in an article on our Broadcast Law Blog, here.
- The FCC announced the status of the fourteen applications submitted in Auction 112, the June auction of construction permits for 27 new full-power TV stations. Seven applications are complete, and those applicants can move forward and submit their upfront payments. Six applications are incomplete and need to be amended, and one application was rejected because it proposed a noncommercial educational station and the auction rules do not allow for the inclusion of noncommercial applications in a commercial auction where there are commercial applicants for the same channel. To continue in the auction, those with incomplete applications must submit amendments, and all participating parties must make upfront payments, both to be submitted by 6 p.m. Eastern on May 6. Bidding will begin on June 7. See the Public Notice for more details. (Complete Applications) (Incomplete Applications) (Rejected Application)
April 16, 2022 to April 22, 2022
- The FCC this week released a Public Notice announcing that it is soliciting public comment on the recent tests of GeoBroadcast Solution’s zonecasting system, which proposes to allow FM boosters to originate some local programming so an FM broadcaster can provide different commercials or news inserts to different parts of its service area. Comment dates will be announced after this notice is published in the Federal Register (Public Notice). One party, NABAB (National Association of Black Owned Broadcasters), wasted no time, meeting with FCC staff to support the deployment of the zonecasting system, arguing that it would give smaller stations a new tool with which to compete in their markets (NABOB ex parte). This position is contrary to that taken by the NAB, which we noted last week.
- Another presentation on a controversial issue was made to FCC decision-makers last week when the organizations representing the affiliates of the four major television networks asked that the FCC adopt rules to treat for purposes of the retransmission consent rules virtual cable systems delivering multichannel video programming through online platforms like cable and satellite television providers. The affiliates suggested that this would be so that local TV stations can guide retransmission consent negotiations (Affiliates ex parte). When the FCC 7 years ago last asked for comments on treating online linear video programming providers as MVPDs for purposes of the FCC rules, it noted many issues raised by the proposal, issues we summarized here.
- The FCC Commissioners this week upheld a Media Bureau decision to grant an application for a new FM translator near San Diego, California after an opposing party filed for review and dismissal of the application. The application was granted after the applicant had been given an opportunity to amend its application to resolve a perceived interference issue. The FCC determined that applicants in translator windows should be able to amend their applications to non-adjacent channels to resolve interference issues, as long as the applicant specified a new channel that was open in the area that the applicant planned to serve. The FCC also determined that, in allowing such an amendment, the alternative channel must not only have no current stations operating on it, but there cannot be any dismissed applications for new stations on that channel if an appeal of the dismissal is still pending, as resolution of such an appeal could result in the amended translator application having no viable channel. (Order)
- The FCC resolved another group of mutually exclusive applications filed in last year’s window for new reserved-band noncommercial stations. One of the applicants, Southern California Tribal Chairmen’s Association (“SCTCA”) proposed to serve Tribal lands and was tentatively selected to receive the construction permit as the FCC gives a preference to a federally recognized Native American Tribe or Alaska Native Village proposing to serve Tribal land. In selecting SCTCA, the FCC waived the requirement that, to qualify for the preference, at least 50% of the proposed 60 dBµ contour be comprised of the applicant’s Tribal Lands and that at least 50% of the population covered must be members of the tribes. Because the tribal areas were so diffuse, and the population of the area so great, the FCC waived the rule on population coverage to allow the numerous small Southern California reservations to receive this tribal service. (Order)
- Following last month’s filing of applications that would transfer control of dozens of TEGNA stations to Standard General, the FCC set the pleading cycle deadlines. Interested parties must file comments by May 23, 2022. Oppositions to those comments are due by June 7, 2022. Replies to those oppositions are due by June 17, 2022. (Public Notice)
- On our Broadcast Law Blog, we provided more context on the FCC’s recent decision determining that a purported write-in candidate for a US Congressional seat was not entitled to reasonable access to buy advertising time for his campaign on a local radio station as the candidate had not made a “substantial showing” of his candidacy entitling his to be treated as a “legally qualified candidate.” (Blog Article)
April 9, 2022 to April 15, 2022
- A list of “ex parte” presentations made to the FCC (disclosures of presentations made to FCC decision makers outside of a proceeding’s formal comment filing period) was released this week, and it included a summary of meetings between NAB leaders and FCC Chairwoman Jessica Rosenworcel and Commissioner Geoffrey Starks (and members of their staffs) on several pending matters. At these meetings, the NAB asked the FCC to do more to support the TV industry’s transition to ATSC 3.0, including completing its ATSC 3.0 multicast proceeding (which we summarized on our Broadcast Law Blog, here). It also asked that the FCC abandon its rulemaking that would allow FM boosters to originate limited amounts of programming through “zonecasting” technology. (Read more on “zonecasting,” here). Another request was that the Commission wrap up its 2018 Quadrennial Review of broadcast ownership rules, even if the FCC does not soon have its fifth Commissioner in place (as the nomination of Gigi Sohn remains pending in the Senate with the timing of action uncertain). As we noted in one of our recent weekly summaries here, the NAB in February made a written presentation to the FCC arguing that the record developed in the 2018 Quadrennial Review justified substantial relaxation in the radio ownership rules. Finally, the NAB said that, while it does not oppose reinstatement of FCC Form 395-B for collection of industry-wide employment data, the Commission first needs to have concrete plans for the analysis of such data to produce meaningful insights into employment in the broadcast industry (see our article here for more on this pending EEO proposal). (NAB Ex Parte)
- Almost every week, the FCC announces consent decrees with radio station licensees over public file and political file violations discovered through the license renewal process, and this week was no different. If your radio station submitted its license renewal application and had documents missing from its public file or uploaded required documents late, consult your station’s advisors about the potential for a consent decree. Some TV stations have received fines for similar violations. Both types of radio consent decrees include enhanced administrative, recordkeeping, and reporting obligations. (Public File Consent Decree Example) (Political File Consent Decree Example).
- The FCC continues to consider channel changes for TV stations, particularly proposals to allow a station to move from a VHF channel to a UHF one because of the UHF band’s perceived superiority for digital services. The FCC Media Bureau’s Video Division released requests for comments on two such proposals this week.
- The first considers substituting channel 35 for channel 11 in Hampton, Virginia for station WVEC. The request notes that viewers have complained about reception problems with WVEC which do not exist for the other network stations which transmit on UHF channels in the market. (Notice of Proposed Rulemaking)
- Augusta, Maine, PBS station WCBB requested that UHF channel 20 be substituted for its current VHF channel 10. To refute concerns about predictions of a loss of service from the channel change, the applicant showed that all but 144 people would receive service from other PBS stations, including other stations owned by the licensee of the Maine PBS station. (Notice of Proposed Rulemaking)
April 2, 2022 to April 8, 2022
- Broadcast operations that use uninterruptable power supply (UPS) devices as either a primary or backup power source should be alert for possible cybersecurity threats and review the federal government’s guidance on Mitigating Attacks Against Uninterruptible Power Supply Devices. The federal Cybersecurity and Infrastructure Security Agency (CISA) and the Department of Energy are aware of threats to a variety of internet-connected UPS devices, often through unchanged default usernames and passwords. Companies should immediately ensure their UPS and similar systems are either not accessible from the internet or, if these systems are accessible, companies should use other controls including having them behind a VPN, using multifactor authentication, and adopting strong passwords. For more information, contact firstname.lastname@example.org. (Public Notice)
- The FCC Media Bureau rejected a complaint by a purported congressional write-in candidate that two Cincinnati radio stations violated federal law by censoring his advertisements and not providing him reasonable access. After initially accepting and airing his ads, the stations went back to the candidate for more evidence that his candidacy was substantial and, being provided insufficient evidence, the stations pulled the ads. Write-in candidates must make a substantial showing of a serious candidacy to be eligible to receive the benefits and protections of the FCC’s rules. The Bureau noted that, except for maintaining a website, appearing in one Internet interview, and establishing a campaign headquarters, the complainant engaged in no other significant campaign activities in the district in which he was purportedly a candidate. Thus, the Bureau found that he had not established that his campaign was bona fide, so the stations were justified in denying him further access. (Order)
- The licensee of a Chicago FM translator will pay $9,000 to settle an investigation that found rule violations including that the translator was, for extended periods of time, broadcasting when its primary station was off the air, carrying the primary station’s internet-only feed. Under FCC rules, a translator should generally not be operating when its primary station is off the air (unless the translator is rebroadcasting an AM daytimer, when it can rebroadcast at night only if the primary station has been on the air in the last 24 hours). The investigation also found that the licensee (1) did not notify the FCC or ask permission for special temporary authority when the translator was silent for almost a year (under the rules, notification is to be made in 10 days and an STA requested if the station will be silent for 30 days), and (2) was not fully truthful and accurate in its FCC correspondence. (Order)
- As we noted in last week’s update, the House of Representatives approved the MORE Act, which, if passed by the Senate and signed by the President, would decriminalize marijuana at the federal level. But, as we wrote on the Broadcast Law Blog, broadcasters as federal licensees should still steer clear of marijuana advertising unless and until the bill becomes law, even if marijuana has been legalized in the state in which they operate as, until then, it remains a felony under federal law. (Broadcast Law Blog)
- After recent maintenance, the FCC’s Electronic Comment Filing System (ECFS) is back online and has received some upgrades. As a first step in a series of upgrades, ECFS is now cloud-based, which the FCC says will make the platform more agile and scalable. A reCAPTCHA function has been added to reduce spam filings. (News Release)
March 26, 2022 to April 1, 2022
- The US House of Representatives, in a bipartisan vote, passed the MORE Act, a bill to decriminalize marijuana at the federal level (HR 3614). For this action to be effective, the Senate would need to also vote on this bill to take the drug off Schedule I, which currently makes its possession and distribution (and the use of radio to promote it), a federal felony. Then the President would have to sign the bill. As federal licensees, because of the federal criminal statute, broadcasters have been advised to avoid marijuana advertising, even as the states in which they operate have relaxed their marijuana laws. As we wrote on our Broadcast Law Blog in 2020 in connection with the passage of an earlier version of this bill, the House action should not be seen as a signal for broadcasters to start accepting marijuana advertising unless and until the Senate and President also act on this legislation.
- The FCC’s Video Division notified the permittee of a new Low Power TV station of a violation of the FCC’s rules. The notice said that the permittee, for almost three years after the facilities were constructed (about six months after the permit expired), failed to file the required application for a license to cover its construction permit. An application for license is filed upon completion of the construction of a new station and informs the FCC of the specific facilities that were built and certifies that these facilities track what was authorized by the construction permit. Without filing a license application, the station was operating for this period without authority. The permittee faces a $6,500 fine for these violations. (Notice of Apparent Liability for Forfeiture)
- Owners of a tower in Virginia were cited by the FCC Enforcement Bureau for tower lighting failures. Acting on a complaint, enforcement agents visited the site and found that the tower, which exceeds 200 feet (the height at which towers generally must be lit), did not have its required lights operating after sunset and that the FAA had not been notified of the lighting outage. The tower owners also had not kept the FCC appraised of its current ownership through updating the tower’s FCC Antenna Structure Registration. The Notice made clear that, even though the tower is no longer used for licensed radio operations, the owners are still required to maintain the tower until it is dismantled. (Notice of Citation)
- The FCC’s Electronic Comment Filing System (ECFS) and financial systems were scheduled to undergo maintenance this weekend that will make both unavailable. ECFS was to be unavailable from 12 am Saturday, April 2 through no later than 7 am Monday, April 4. As this outage occurred outside normal business hours, filing deadlines will not be routinely extended. The FCC’s financial systems, including the system used to process application payments, are expected to be unavailable through 5 am on Tuesday, April 4. (ECFS Public Notice)
- A radio company’s request to amend the FM Table of Allotments by allotting Channel 284A to Bruce, Mississippi was rejected, showing some of the FCC’s considerations in making FM channel changes. The request was denied as the proposed allotment would not allow the construction of a station that could cover the proposed city of license with the required city-grade signal. In addition, the company seeking the allotment was planning to use it as a “back-fill,” that would allow it to move another FM channel to which it had rights from Bruce to another community. The FCC said that its “Rural Radio” policy prohibits the use of a new vacant allotment to justify the removal of a community’s only radio service. As vacant allotments often go unsold in auctions, the FCC said that they cannot realistically be considered as an alternative service to the community. (Letter)
- The House Communications Subcommittee held an oversight hearing with FCC Chairwoman Jessica Rosenworcel and Commissioners Brendan Carr, Geoffrey Starks, and Nathan Simington. Testimony by the Chairwoman and Commissioners and questions from the committee members were light on broadcast issues. In response to a question about removing market obstacles for diverse and small independent programmers, Chairwoman Rosenworcel indicated that more independent voices are needed on screen and that a new proceeding may be necessary to review current viewing habits. Commissioner Starks, in support of modifying FM booster rules, said that geotargeting technology has great potential in improving the local radio experience, and better positions small broadcasters and broadcasters of color to compete for advertising dollars and for listeners. (Hearing Video and Testimony)
March 19, 2022 to March 25, 2022
- The FCC Enforcement Bureau this week announced its latest round of random EEO audits. More than 250 radio and TV stations were randomly selected for an audit of their EEO performance. These stations have until May 5, 2022 to prepare and upload their responses to their online public files. The response from stations with five or more full-time employees in their station employment unit (commonly owned stations serving the same area) must include copies of their last two annual EEO Public File Reports, documentation of their recruitment efforts to fill full-time positions, and documentation to back up their non-vacancy specific recruitment initiatives. Station employment units with fewer than five full-time employees are generally exempt from EEO recordkeeping and can respond to the audit with an upload that confirms their status by listing the unit’s full-time employees by job title and number of hours worked per week. See our post on the Broadcast Law Blog for more information, and read the audit letter setting out all the requirements for the audit response and the list of audited stations, here.
- The FCC announced that one of its Administrative Law Judges will hold a hearing to determine if a Tennessee AM station’s license should be revoked after the sole principal of the licensee, a former state senator, was convicted in 2016 of fraud for making false statements in his federal tax return. The FCC’s Character Qualifications Policy Statement sets out criteria to determine if non-broadcast misconduct is serious enough to warrant a penalty including the possible loss of the broadcast license. A felony conviction involving lying to another government agency will normally trigger such a review. The FCC suggested that the criminal violation for not being truthful to another government agency might be more serious in this instance as that conviction was not reported timely (a broadcast licensee must report to the FCC a felony conviction of any of its principals by the next anniversary date of the filing of the station’s license renewal application – the licensee’s notice here came a few weeks late) and because other required station documents were not timely uploaded to the station’s public file. (Hearing Designation Order)
- The FCC denied an appeal of a Media Bureau decision rejecting an objection to a proposed assignment of a broadcast station. The objector argued that they had a contractual right to acquire the station, and that the sale of the station would not be in the public interest because the petitioner would be a better licensee as it was controlled by minorities not well represented in station ownership in the market where the station operated. The FCC denied the objection as there was no local court adjudication of the claims of the third-party to its rights to acquire the station (in fact, allegedly, no claim had even been filed in local courts). The FCC itself will not routinely assess contract claims, leaving those determinations to state courts. The FCC also denied claims that the petitioner would be a better licensee than the actual buyer, as the Communications Act forbids the FCC rejecting a proposed sale where the buyer is otherwise qualified to own a station just because there might be some allegedly better buyer. The FCC also did not find any evidence of actual discrimination in the sale to the proposed buyer. (Order)
- The FCC released its second order resolving conflicts between groups of mutually exclusive applications filed during last year’s filing window for new noncommercial FM stations in the reserved band. 19 groups of mutually exclusive applications were resolved, again based on a determination that the winning applicant was preferred because of its greater service to areas where there were few other noncommercial stations (Order). Read more about the mutually exclusive noncommercial applications resolved in the first group and the standards used by the FCC in making these determinations in our post on the Broadcast Law Blog.
- In response to a recent NPR article that suggested that advertisers could lie in political advertisements, we posted on the Broadcast Law Blog an article that looks at the restrictions on a broadcast licensee censoring the political message of a candidate. However, those same restrictions do not apply to ads from a non-candidate group – meaning that stations must assess the truth of ads from PACs, political parties and similar organizations, particularly when the truth of those ads is challenged, as station can have liability if the ads are found to be defamatory. (Broadcast Law Blog)
Looking ahead to next week, March 31 is the deadline for commercial radio stations that have not already signed a music licensing agreement with Global Music Rights (GMR) to either sign the agreement offered as part of GMR’s settlement of its litigation with the Radio Music License Committee (RMLC), negotiate a different deal with GMR, or to make sure that they are not playing any music in the company’s catalog. Continuing to play GMR music without a license risks a copyright infringement action and significant liability. Read more about the GMR license agreement, here.
For television operators, 6 pm Eastern on March 30 is the deadline for filing short-form applications to participate in Auction 112, an upcoming auction of 27 construction permits for new full-power TV stations. Read the auction procedures and see the list of available construction permits, here.
March 12, 2022 to March 18, 2022
- New FCC sponsorship identification rules that impose obligations on almost all broadcast licensees took effect on March 15. The new rules require that programming that has been sponsored, paid for, or furnished by a “foreign governmental entity” include a clear, standardized disclosure. The rules also set “reasonable diligence” steps a broadcaster must take to determine whether a foreign government entity is the source of programming aired pursuant to a “lease agreement.” This includes asking program suppliers if they are representatives of foreign governments and confirming their answers by checking specified government websites. The new rules are now effective for all new or updated leases of program time. Stations have six months to review existing contracts for the sale of program time to determine if there is foreign-government involvement and to come into compliance with the disclosure requirements. Short-form advertising, like 30- and 60-second spots, is exempt from the rules. Stations with questions on the new rules should read our post at the Broadcast Law Blog and reach out to their FCC attorney. (News Release) (Public Notice) (Report and Order)
- The FCC rejected an appeal of $512,228 fines it imposed on 18 different TV stations for violations of the FCC’s rules requiring “good faith negotiation” of retransmission consent agreements. The fines were originally handed down in September 2020 after the Media Bureau found that the stations, through a shared consultant, had not operated in good faith in negotiating retransmission consent agreements with a satellite TV provider. The penalties were based, among other things, on the stations’ failures to meet and negotiate the terms of these agreements and to respond to proposals of the other party, including providing the reasons for the rejection of any such proposal. The decision implied that the negotiations for these stations were put on hold until some other agreement was reached, when the FCC requires each station to negotiate in good faith. This week’s order found that the parties had fair notice of how the FCC would enforce the good faith negotiation standards and how much of a financial penalty could be imposed. We wrote more about the earlier stages of this proceeding, here. (Order and Order on Reconsideration).
- Several changes to the FCC’s radio technical rules that clean up inconsistent, outdated, or inaccurate rules will take effect on April 18. The changes eliminate the rule on the maximum rated power of AM transmitters, clarify city-coverage requirements for NCE FM stations, lessen second-adjacent channel interference protections for Class D NCE FM stations, and update some FM spacing requirements in border areas to conform to Mexican and Canadian treaty obligations. See more on these changes in this article on our Broadcast Law Blog. (Federal Register)
- The Media Bureau fined the licensee of a Chicago FM translator $8,000 for failing to request special temporary authority when it discontinued operations, failing to notify the FCC of changes to the primary station the translator was rebroadcasting, and for failing to update its pending license renewal application with accurate information. The failures were raised in an objection filed against the renewal application. (Notice of Apparent Liability for Forfeiture)
- The FCC announced that it would be holding a forum on March 28 to discuss the accessibility of online programming, this time to discuss whether audio description requirements, like those that apply to television stations and MVPDs, could or should be extended to online video programming. Audio description requires that television stations provide audio descriptions of the principal visual elements of a television program during natural breaks in dialog in the program. Details for online viewing of the forum are in the FCC’s Public Notice (Public Notice). More on the latest expansion of those audio description rules for television stations and MVPDs is available in articles on the Broadcast Law Blog, here and here. We looked at the FCC’s authority over online video in a blog post here when the FCC hosted another forum last year on other accessibility issues for that programming.
- A Media Bureau Order announced that certain cable systems have been requested to provide information on the prices paid by consumers for cable television services, and the costs the systems incurred in providing those services, including the amount of retransmission consent fees paid to broadcast stations for the rebroadcast of their signals. This information is required so that the FCC can provide its annual report to Congress on the state of the communications marketplace. (Order)
March 5, 2022 to March 11, 2022
- The Media Bureau this week released the first of what will likely be a series of decisions resolving conflicts between mutually exclusive applications for new noncommercial FM stations filed during last year’s filing window. Mutually exclusive applicants are those that, because of interference considerations, cannot both be granted. These applicants did not enter into settlement agreements when the FCC provided a window for voluntary resolutions of conflicts earlier this year. Because there was no voluntary resolution offered to the FCC, the applications underwent comparative consideration by the FCC. The 15 groups of mutually exclusive applicants analyzed this week were all resolved through a “307(b) analysis,” a technical review as to whether one of the applicants will provide substantially more first or second noncommercial radio service than the other applicant (see our article describing the application of the 307(b) analysis here). As a result of this analysis, fifteen applicants were tentatively selected to be awarded construction permits (Memorandum Opinion and Order). These were relatively easy conflicts to resolve, as each group had only two mutually exclusive applicants. The FCC is analyzing other groups of mutually exclusive applicants, some including groups of many conflicting applications where only one will be selected. Where the 307(b) analysis of the relative coverage areas does not find meaningful differences between mutually exclusive applicants, the FCC will conduct a “point system” analysis of other attributes of the applicants. See our article here for more information on the FCC selection criteria for mutually exclusive noncommercial applications.
- A consent decree requiring a company to pay a $250,000 penalty and surrender about 100 LPTV authorizations shows the FCC’s insistence that LPTV applicants filing construction permits for changes in their transmitter site locations have a serious intent to permanently construct the proposed new facilities and to continuously serve the public in the area authorized by the permits. In this decree, the FCC explained that the company had abused FCC processes by filing for and receiving construction permits for changes in at least 30 of its stations and only operating those stations for a matter of days before taking them silent and filing applications to move to yet another transmitter site. The FCC found that the company tried to use a series of “minor” changes (which can be filed at any time) to accomplish a “major” change in the stations, when major changes are only permissible during rare filing windows. The company also used the serial minor changes to “hop” signals closer to urban areas, when many of the permits for the stations were awarded as of a result of a filing window designed to authorize new stations to serve rural areas (Order and Consent Decree). This decision mirrors similar decisions from the Media Bureau in connection with FM translators. We wrote more about this week’s decision on our Broadcast Law Blog, here.
- The Office of Management and Budget approved the paperwork collection aspects of the FCC’s new rules on enhanced sponsorship identifications required for broadcast programming paid for by foreign governments and their agents. These rules also require that broadcasters, when selling any block of program time, investigate the buyer to make sure that it is not a foreign agent. These rules will become effective on a date to be announced by the Media Bureau – an announcement that is expected soon.
- Our law partner Mitch Stabbe wrote a two-part article on the Broadcast Law Blog about legal concerns that stations should keep in mind when designing advertising or promotions using March Madness, the Final Four, and many other trademarks associated with the upcoming NCAA basketball tournaments. (Part 1, Part 2)
Looking ahead to next week, March 14 is the effective date for a new FCC requirement that stations consider a write-in candidate’s social media and online presence when deciding if the candidate is a “legally qualified candidate” entitled to the protections of the FCC’s political broadcasting rules. See our article on this rule change here. March 14 is also the deadline to submit reply comments in the ATSC 3.0 licensing rulemaking. In that proceeding, the FCC proposes to determine that the station originating the programming is responsible for legal and regulatory compliance when their programming is “hosted” on the multicast stream of another station as part of the Next Gen TV transition. Read the comments submitted in that docket, here. And with the March 13th start of Daylight Saving Time, operators of AM daytime-only stations and stations with pre-sunrise and/or post-sunset authorizations should confirm that they are operating with the proper sign-on and sign-off times specified on their current FCC authorizations, as these times are usually specified in “standard time.”
February 26, 2022 to March 4, 2022
- The FCC’s Enforcement Bureau issued a Notice of Apparent Liability proposing a $20,000 fine on an iHeart radio station for violations of the broadcast contest rules. The FCC found that a station contest was not conducted in accordance with its written rules – as an ambiguity in the rules would be construed strictly against the station. The rules stated that no one who had won another station contest in the 30 days prior to the start of the contest could win again. Here, an apparent winner was disqualified as he had won another station contest about two months after the start of the contest in question. The FCC said that, as the language of the rule could be read to only prohibit winners who had won in the 30 days before the start of the contest, and this contestant won the other contest after the start of the contest, the winner should not have been blocked from winning. In addition, the FCC found that its rules had been violated because the contest rules were removed from the station’s website immediately after the contest ended, when the FCC rules require that contest rules be maintained on the website at least 30 days after the end of the contest (Notice of Apparent Liability for Forfeiture). Taken together with a proposed EEO fine noted in our summary of regulatory actions last week, it seems the FCC is becoming more aggressive in enforcing its rules. Be sure you are reviewing all aspects of your operation to ensure compliance with applicable FCC rules. We wrote in greater detail about both of these cases and what they may signal, here.
- A Nevada AM station received a Notice of Violation after enforcement agents out of the FCC’s Los Angeles field office inspected the station’s transmitter site and found the tower fence gate unlocked. Under FCC rules, AM antenna towers having the potential for high levels of RF radiation at their base (including series fed, folded unipole, and insulated base antennas) must be enclosed within effective locked fences or other enclosures. The licensee has 20 days to submit a written statement explaining the circumstances behind the unlocked gate and any corrective actions it will take and when it will take those actions. (Notice of Violation)
- The FCC continues to enter into consent decrees with stations over public file violations. In one case, a California noncommercial FM station appears to have not uploaded any quarterly issues/programs lists since the current licensee took over the station in late 2019. In another case, an American Samoa noncommercial FM station appears to have uploaded all of its quarterly issues/programs lists on the same day it filed its license renewal application. There were no fines tied to the violations, but the stations must follow a compliance plan that includes training and reporting obligations. We’ve noted that fines have been imposed on TV stations for this kind of violation, and the FCC is omitting language about economic hardship caused by the pandemic from many radio consent decrees, so don’t expect the FCC to avoid fines for radio violations in the future.
- Gigi Sohn’s months-long bid for confirmation for the last open seat on the FCC took a step forward this week when the Senate Commerce Committee voted on her nomination, splitting evenly along party lines. Because of the deadlocked committee vote, the full Senate must first vote to bring her nomination to the Senate floor, and then to end floor debate on her nomination, before it can actually vote on her confirmation. Some Republican Senators have suggested that they could try to block some of these procedural votes. If she is confirmed by the full Senate, her term will run through 2026.
- The FCC posted an online tutorial for Auction 112, an upcoming auction of construction permits for 27 new full-power TV stations. If you are interested in bidding on any of the 27 permits, view the tutorial and file your initial “short-form application” (FCC Form 175) between March 17 at 12pm ET and March 30 at 6pm ET. Bidding will begin on June 7. Read more about the auction procedures, here. (Tutorial)
- CNN reported last week that the FCC, in partnership with the Departments of Justice and Homeland Security, opened a probe into companies it regulates to find possible ownership links to Russia, with an eye toward possible enforcement actions. Also this week, RT America, a Russian state-sponsored cable network, laid off most of its staff and ended production due to “unforeseen business interruption events.” In light of these developments and the international tensions following the recent military actions by Russia, it is worth taking another look at the FCC’s warning to communications companies to step up protection of their networks and operating systems and other critical digital infrastructure and to stay vigilant against cyber threats.
February 19, 2022 to February 25, 2022
- The FCC proposed a $32,000 fine to a subsidiary of Cumulus Media for EEO and public file violations by a group of stations it previously owned. The Notice of Apparent Liability for Forfeiture details the station group’s failure to timely upload one annual EEO report to the stations’ online public files, to timely post the annual report on the stations’ website, and to analyze its EEO program. The stations were nine months late uploading their 2018 EEO report due to employee oversight. The FCC noted that “where lapses occur in maintaining the public file, neither the negligent acts or omissions of station employees or agents, nor the subsequent remedial actions undertaken by the licensee, excuse or nullify a licensee’s rule violation.” The failure to self-analyze its EEO program was based on the failure to catch the late-filed annual report. As there had been several other EEO and sponsorship identification violations by the company over the last 15 years, the FCC increased the base amount of the proposed fine. (Notice of Apparent Liability for Forfeiture)
- The FCC announced that there is sufficient money in the incentive auction reimbursement fund to increase reimbursement allocations for parties affected by the repacking to 100% of verified estimates. The FCC also announced that its contractors will visit a sample of sites to confirm the existence and functionality of equipment paid for from the fund – essentially conducting random audits of the use of the reimbursement funds. Letters to schedule these visits will be sent by both overnight mail and email to the entity’s reimbursement point of contact and counsel of record, and visits are expected to start next month and continue through 2022. Full power and Class A TV stations assigned to repack phases 6-10 must have any remaining invoices or documentation submitted by March 22. (Public Notice)
- Comments were filed in a Forest Service rulemaking proposing to add an annual administrative fee of $1400 per licensed facility using a Forest Service transmitter site. The fee would be in addition to the rent paid to the Forest Service for the use of the site. The NAB comments argued that the same flat fee on every user in every market could discourage broadcasters from providing service to rural area residents, especially in the case where translators and boosters in these areas would be paying the same fees as full-power broadcast stations in major markets. (NAB Comments).
- The Senate Commerce Committee is scheduled to vote on March 2 on Gigi Sohn’s nomination to fill the final vacant seat on the FCC. If she receives a favorable committee vote, her nomination will head to the full Senate for consideration and a vote. (Executive Session Notice)
- An Ohio low power FM station’s license renewal application has been set for a hearing to determine if the licensee made misrepresentations and lacked candor in its dealings with the FCC. At issue are the makeup of the licensee’s board of directors and the licensee’s representations to the FCC of who served on its board and when, including in assignment and transfer applications and in multiple written responses to letters of inquiry. These inquiries suggested an unauthorized transfer of control. (Hearing Designation Order)
- A federal appeals court denied the NAB’s attempt to stay the effect of the FCC’s foreign government entity sponsorship identification rules, though the parties are still scheduled to argue the merits of these rules before the Court on April 12. The rules require that stations disclose when programming has been paid for or provided by a foreign governmental entity and take investigatory steps whenever they sell any blocks of program time to determine if any buyer of program time is a representative of a foreign government. The NAB has been arguing that the rules, especially the requirement that all buyers of program blocks be investigated for foreign-government ties, are unduly burdensome and have not been adequately justified. Even though the stay was denied, the new rules are not yet effective while undergoing a Paperwork Reduction Act review.
- We posted on our Broadcast Law Blog our monthly feature on important dates and deadlines for broadcasters in March and early April. These include EAS and Next Gen TV rulemaking comments, a GMR music license deadline for commercial radio stations, an initial filing deadline to participate in an auction for new TV stations (Auction 112), license renewal deadlines, and requirements for the uploading of quarterly issues/programs lists. (Broadcast Law Blog)
February 12, 2022 to February 18, 2022
- Following up on its proposals from last summer to clean up radio technical rules that were inconsistent, outdated, or inaccurate, the FCC adopted an order implementing all but one of the proposed changes. The changes eliminate the rule on the maximum rated power of AM transmitters, finding it no longer needed as long as a station operates within its authorized power limits. This change is expected to increase the availability of used transmitters for AM stations, as a station can buy any class of transmitter to achieve its authorized power rather than being limited to buying transmitters that correspond to specific AM power levels. The rule changes that were adopted also clarify city-coverage requirements for NCE FM stations, lessen second-adjacent channel interference protections to Class D NCE FM stations, and update some FM spacing requirements in border areas to conform to Mexican and Canadian treaty obligations. The Commission declined to adopt one proposed change that would have eliminated a rule that requires any application that proposes to locate a new FM antenna within 60 meters of an existing FM or a TV station to show how its operation would affect existing operators. While seldom used, commenting parties argued (and the Commission agreed), that retaining the rule reinforced the policy that “newcomers” to a transmitter site are responsible for resolving interference complaints to existing stations. (Report and Order)
- The NAB filed with the FCC a comprehensive “ex parte” statement in connection with the FCC’s Quadrennial Review of its ownership rules. In a 56-page letter, with additional attachments, the NAB set out in detail why it believed that parties that opposed ownership relaxation – principally for the radio industry – were wrong on the law and the facts – citing all the record evidence that showed that relaxation of the local ownership rules is necessary to allow radio to compete with the digital media companies that now unquestioningly compete with both radio and TV for audience and advertising dollars (Ex Parte Statement). The FCC is supposed to complete the current Quadrennial Review begun in late 2018 and begin its next Quadrennial review of ownership rules at some point this year. See our article here for more on this review.
- More stations – commercial and noncommercial – signed consent decrees with the FCC over online public file violations. Be sure that you are staying on top of your public file obligations whenever they arise, and especially when it is time for renewal of your license. Examples of the recent consent decrees are here and here.
- One station was ordered to pay $1,500 and another station faces a similar fine for failing to file license renewal applications on time—one filing was made about six weeks late and one filing was made right before the station’s license was set to expire. Make sure you stay on top of the deadlines for your regulatory filings to avoid such issues. (Forfeiture Order and Notice of Apparent Liability for Forfeiture)
- Satellite TV provider DISH Network and TV station group TEGNA settled their long-running retransmission consent dispute. Both companies had accused the other of failing to negotiate in good faith for retransmission consent as required by the FCC’s rules. The FCC dismissed the complaints once the dispute was resolved by the parties. (Order)
- We posted on our Broadcast Law Blog two articles on recent industry events:
- The first article, here, noted that, in certain markets, controversial ads from political candidates ran during last week’s Super Bowl. The article looked at why broadcasters had to run those ads despite their controversial content, as the “no censorship” provision of Section 315 of the Communications Act forbids stations from editing a candidate ad (with some very limited exceptions).
- The other article was the second part of our series looking at the music royalty issues surrounding the disputes about Joe Rogan’s podcast on Spotify. In Part 2, we looked at how music rights and royalties impact decisions like those of Neil Young and other musicians who wanted to pull their music to support the protest over Rogan’s podcast. See the post, here.
February 5, 2022 to February 11, 2022
- Global Music Rights (GMR) and the Radio Music Licensing Committee (RMLC) announced that enough broadcasters had agreed to GMR licensing terms to make the negotiated settlement between these groups effective. As we wrote here in early January, GMR and RMLC entered into a conditional settlement to end their long-running court battle over music royalty rates, but enough radio stations had to agree to the licensing terms set by GMR before the settlement would become effective. Now that the threshold has been reached and the deal is effective, GMR has extended through March 31 the sign-up period for its license agreements for commercial radio stations. By that date, commercial stations either need to sign the agreement, purge GMR music from their stations, or negotiate a different deal with GMR, or they will be subject to infringement actions. See our post on the Broadcast Law Blog for more information.
- The FCC announced that Auction 112, an auction for the rights to build new full-power TV stations in 27 markets, will move ahead with the initial “short-form applications” (FCC Form 175) necessary to participate in the auction due between 12pm EST on March 17 and 6pm EST on March 30. Bidding will begin on June 7. See the Public Notice for details on the filing window, upfront payments, and bidding procedures. The list of channels available in the auction on which new TV stations can be built is available, here.
- The FCC announced that, in 27 communities, FM channels in the commercial band that had been reserved for noncommercial use will no longer be reserved. Applications or authorizations for those reserved channels did not result in the construction of new noncommercial stations, so the FCC has decided to remove the noncommercial reservation and make those channels available for commercial use in a future FM auction. The FCC’s Order, including a list of the vacant channels that will be auctioned, is available here.
- Gigi Sohn went before the Senate Commerce Committee for questioning for a second time as senators continue to consider her nomination for the last open Commissioner’s seat on the FCC. Sohn was questioned about her role as a board member for Locast (the now-defunct TV streaming service that was found to have violated copyright law by rebroadcasting TV stations without permission), her decision to recuse herself from certain matters if she is confirmed, and how her past work as a public interest advocate would influence her decisions on the Commission. Her nomination must clear the committee before it can be taken up by the full Senate, and the timing of any action is uncertain. See archived video of the hearing, here.
- A Federal Register notice announced that starting March 14, broadcast stations, in assessing political advertising from purported write-in candidates, will need to include in their review the candidate’s social media presence and creation of campaign website when determining if the candidate has made a “substantial showing” of a bona fide candidacy. If a write-in candidate can make the substantial showing, he or she is considered a “legally qualified candidate” entitled to all the benefits and protection of the FCC’s rules, including equal opportunities, lowest unit rates and, for candidates for federal office, reasonable access to buy advertising time on commercial stations. A second rule change that requires broadcasters to upload documentation about federal issue ads to their public file will be effective after additional review to assess the rule’s compliance with the Paperwork Reduction Act. Broadcasters already upload this information to their public file, and this update merely brings the FCC’s rules in line with the requirements of federal statute and thus has no practical effect on a station’s political file obligations. We wrote in more detail about these changes, here. (Federal Register)
- Comment dates are now set on FCC proposals to reform certain EAS rules. These include a Notice of Proposed Rulemaking that seeks to enhance visual EAS messages to assist people who are deaf or hard of hearing and a Notice of Inquiry that asks for suggestions on how to improve the current EAS daisy chain architecture to better deliver alerts. Comments and reply comments on the NPRM are due by March 11 and March 28, respectively. Comments and reply comments on the NOI are due by April 11 and May 10, respectively. (Federal Register)
- The US Court of Appeals for the DC Circuit set April 12 as the date for the FCC and NAB to present oral arguments over the FCC’s new rules on sponsorship identification for programming provided by a foreign governmental entity. Under the new rules, stations will have to disclose when certain programming has been provided by a foreign governmental entity and take investigatory steps whenever they sell any blocks of program time to determine if any of buyer of program time is a representative of a foreign government. The NAB has argued that the new rules exceed the FCC’s authority and that the required disclosures violate the First Amendment.
- The FCC has designated for a hearing the renewal application of an Idaho radio station based on the station’s record of extended silence and operation at significantly reduced power. The FCC found that the station was silent for 80% of the time from the current licensee’s acquisition of the station in February 2018 through present day. The hearing will determine if the station adequately served the needs of its community in light of the extended silent periods, if the station’s license expired due to its prolonged silence (licenses expire if a station is silent for over a year unless a public interest showing is made that the license should be preserved), and ultimately if the renewal should be granted. Whenever a station goes silent, minimize the period when it is not operating to avoid these issues. (Hearing Designation Order)
- The FCC’s Audio Division released three decisions dealing with various issues that come up in connection with FM stations changing channels to improve their facilities.
- In the first, the Division’s decision shows the difference in treatment between commercial FM stations that change their city of license and translators and other stations who take the same action. The change in a city of license for a commercial FM station granted through a minor change application is effective immediately upon the grant of the construction permit, even before the station has built the new facilities to serve its new community. Until it builds the new facilities, the permit holder operates from its original community under an “implied STA” which can be revoked if it delays building its new facilities. In contrast, a change in the city of license for an FM translator (as well as AM and reserved-band noncommercial FM stations) is not effective until it has constructed the new facilities and filed a license to cover those changes. (Letter Decision #1)
- A second case dealt with an FM station that was ordered to change channels to accommodate the channel change of another broadcaster. To allow for new FM stations or station upgrades of their facilities, another station can be forced to change its channel of operation if the forced change is to a channel that allows an equivalent power operation from the station’s existing transmitter site. The broadcaster seeking the change must agree to reimburse the station that is being forced to change its reasonable costs incurred in the change. In a decision released this week, the Commission ordered a station that did not cooperate in changing its channel after having been ordered to do so to cease operations as the station that had sought the changes was ready to commence its operations. (Letter Decision #2).
- The third case considers also considers a forced channel change but focuses on the reimbursement due to the station being forced to change channels to accommodate the upgrade of another station. In most cases, the parties come to an agreement as to the reasonable costs for the channel change. This was one of the rare cases where the Commission had to intervene to determine the proper amount of the reimbursable costs, ordering the upgraded station to pay the station that was forced to change channels $96,566.58, about $60,000 more than the upgraded station argued was reasonable. The FCC determined that a costs of a new transmitter and for extensive legal fees incurred to collect the reimbursement were legitimate costs that should be paid by the benefitting station. (Letter Decision #3)
- With Spotify and Joe Rogan’s podcast (and Neil Young’s decision to remove his music from the platform) in the news over the last couple of weeks, we wrote on the Broadcast Law Blog about some of the rights and royalty issues behind the story. Read the post for some insight into why Spotify has poured money into podcasting and why it may be reluctant to drop Rogan, even if some of his content is objectionable. (Broadcast Law Blog)
January 29, 2022 to February 4, 2022
- FCC Chairwoman Jessica Rosenworcel announced several leadership changes at the FCC. The changes include a new head of the Media Bureau, which oversees policies and licensing for broadcasters. The new Chief will be Holly Saurer, who has much experience in supervisory roles at the Bureau and has also served as an advisor on media matters to two FCC Commissioners. The Enforcement Bureau, which enforces FCC rules (including EEO) and oversees operation of the FCC field offices, will be headed by Loyaan Egal, a former federal prosecutor who was most recently at the Justice Department overseeing foreign investment issues. The Chairwoman’s News Release sets out details of these and other appointments.
- The Senate Judiciary Committee’s Subcommittee on Competition Policy, Antitrust, and Consumer Rights held a hearing examining the impact of Big Tech on local journalism and the merits of the Journalism Competition and Preservation Act. That Act, which we summarized here, would allow traditional media companies to jointly negotiate with tech platforms to set rates for the use by the platforms of content from these media companies. Joel Oxley of Hubbard Radio’s WTOP News Radio represented the NAB and broadcasters in arguing in favor of the legislation, and representatives of other traditional media companies also spoke in support of the legislation. They argued that tech platforms were building their businesses by distributing media company content without adequate consideration, and the preservation of local journalism required fair compensation to the local media outlets creating the content. Other participants countered that the proposed legislation would infringe on the tech platforms right to make “fair use” of content from traditional media and argued that the legislation would allow big traditional media companies to get bigger while not benefitting small local outlets. More information on the hearing and the arguments that were made, including archived video, can be found here.
- On the other side of Capitol Hill, the House Judiciary Committee held a hearing examining the American Music Fairness Act, which proposes to impose a sound recording performance royalty on over-the-air radio. We wrote about that legislation when it was introduced, here. NAB CEO Curtis LeGeyt represented radio broadcasters and urged the committee to reject the legislation, defending radio’s role in local communities, and discussing the importance of not upending the structure of music licensing that has developed over the last century. He also reiterated the radio industry’s willingness to negotiate with the recording industry on these royalties but stated that the music industry has refused to participate in such discussions. Music industry representatives, pushing for a Congressional vote on the royalty, emphasized how the US is one of the few countries in the world to not have a sound recording performance royalty on broadcasters, and argued that broadcasters no longer provided the promotional value to musicians that they once did, with digital platforms (which do pay these royalties) now playing that role. Witness testimony and video of the hearing are available, here.
- As a follow-up to what we wrote last week, the Senate Commerce Committee pulled consideration of Gigi Sohn’s nomination to be an FCC Commissioner from its February 2 session, and will now have a further hearing on the nomination on February 9 (Executive Session agenda). A vote on her nomination is likely delayed further if no Republican support for her nomination materializes as, due to New Mexico Senator Ben Ray Lujan’s current absence while recovering from a stroke, there will be insufficient votes for the committee to approve the nomination and pass it on to the full Senate for consideration.
- A $7000 fine was imposed on a Mississippi AM licensee for not filing its license renewal application until after its license had expired and continuing to operate the station without permission (Notice of Apparent Liability for Forfeiture). If your station has not yet filed its renewal application, this case reminds you of the penalties for not filing on time.
- The licensee of a Florida translator station faces a $3,500 fine for failing to timely file a license to cover application after constructing a new facility. Stay in touch with your engineering and legal advisors after completing construction of a new facility to be sure you are filing all necessary applications and documents to inform the FCC of the changes in your operations. (Notice of Apparent Liability for Forfeiture)
January 22, 2022 to January 28, 2022
- The FCC adopted two items of interest to broadcasters that were on the agenda for its January 27 Open Meeting.
- Broadcasters will have to consider social media activity and a campaign website when determining if a write-in candidate has made a “substantial showing” that they are a “legally qualified candidate.” Legally qualified candidates receive the benefits and protections of the FCC’s political broadcasting rules. The FCC also brought its rules in line with existing federal statutory requirements that require stations to upload to their political file information about advertising on federal issue ads. Broadcasters are already required by the statute to do this, so the adoption of this rule does not change a station’s recordkeeping obligations. For more information, see our blog post on these issues, here, and the Report and Order, here.
- The FCC modified its rules to allow for better protection of wireless microphones from the use of “white space” spectrum (portions of the broadcast TV bands at locations where frequencies are not being used by TV broadcasters). When the new rules become effective, they will require fixed and personal/portable white space devices to check white space databases at least once per hour for other spectrum users to be protected from interference, replacing a current rule that has not been enforced requiring the databases to push information to white spaces devices whenever there is new wireless microphone use in the area. The FCC also opened a rulemaking that seeks comment on how often white space devices should be required to check white space databases. Comments and reply comments on the rulemaking will be due 30 days and 60 days, respectively, after publication in the Federal Register. The new rules will become effective 30 days after publication in the Federal Register. (Second Order on Reconsideration, Further Notice of Proposed Rulemaking, and Order)
- The FCC sent notices to broadcasters who had not filed their required Biennial Ownership Reports by the December 1, 2021 deadline that they needed to do so by March 1. As we wrote on the Broadcast Law Blog this week, these notices may be a last chance for AM, FM, TV and LPTV broadcasters to comply with the Biennial Ownership Report filing requirement before penalties are imposed. (Broadcast Law Blog article)
- The FCC told the owners of land in Arkansas on which an abandoned tower sits to dismantle the tower within 90 days. The tower was at one time was used for an FM station but has been neglected for years and has not been properly illuminated since 2005, posing a hazard to aircraft. The ownership of the tower was unknown as the FM station with which it was associated had its license cancelled and the company that owned the station was long ago dissolved (the tower was still registered to a prior owner of the FM station, which had also been dissolved). The landowner feared dismantling the tower without authority, which the FCC provided in this Order. The decision reminds broadcasters to update tower registrations and to either continue to light towers or dismantle them when they are no longer in use. (Order)
- The FCC issued further guidance on its termination of filings in its old broadcast application database, CDBS. CDBS had until January 12 still been used for filings of a limited number of applications not yet migrated to the newer LMS database, including many AM technical applications and STA requests for all broadcast services. The further guidance addresses the process for the payment of filing fees and the submission of Anti-Drug Abuse Act certifications with the applications that are now filed through emails to FCC staff. (Public Notice). For more on this further notice, see our Blog article here, and our article here on the end of CDBS filings.
- The FCC released a draft Report and Order that, if adopted at its regular monthly open meeting for February to be held on the 18th, will update several technical radio rules. The changes correct inconsistencies in some FCC rules and clarifies the wording of others. The changes also clarify city-coverage requirements for NCE FM stations, lessen second-adjacent channel interference protections to Class D NCE FM stations, and update some FM spacing requirements in border areas to conform to treaty obligations. (Draft Report and Order)
- The Senate Commerce Committee on February 2 will vote on the nomination of Gigi Sohn to be an FCC Commissioner (Executive Session agenda). If Sohn’s nomination is voted out of committee, it will advance to the full Senate for consideration. Sohn has agreed to recuse herself for three years from retransmission consent and TV copyright issues and for four years from matters arising under a retransmission consent rules docket. New NAB President & CEO Curtis LeGeyt said the recusal promise satisfies NAB.
On the Broadcast Law blog: Our law partner Mitch Stabbe refreshed his yearly reminder on staying out of trouble when running Super Bowl advertising and promotions, addressing trademark and copyright issues that can arise from the use of the term “Super Bowl” and other associated NFL brands.
January 15, 2022 to January 21, 2022
- The FCC issued a Public Notice urging all communications companies to take steps to ensure the security of their facilities and operating systems. The Notice points to an advisory, Understanding and Mitigating Russian State-Sponsored Cyber Threats to U.S. Critical Infrastructure, authored by the Cybersecurity and Infrastructure Security Agency (CISA), Federal Bureau of Investigation (FBI), and National Security Agency (NSA), setting out threats and steps to take to mitigate risks. As several broadcast companies, large and small, have suffered from cyber attacks in recent years, broadcast companies should carefully review this notice.
- The FCC reminded full power and Class A TV stations that were assigned transition completion dates in phases 6-10 of the incentive auction repack that they must submit all remaining invoices and documentation for reimbursement by March 22, 2022. FM stations and LPTV/translator stations seeking repack reimbursement must submit all remaining invoices and documentation by September 6, 2022. (Public Notice)
- The FCC issued a reminder that broadcasters who need help initiating, resuming, or maintaining service as a result of winter weather (or other emergencies) can contact the FCC Operations Center for assistance at 202-418-1122 or by e-mail at FCCOPS@fcc.gov. (Public Notice)
- The FCC released the final Agenda for its upcoming required monthly open meeting. Two items on the agenda are of particular interest to broadcasters. Tune in to the live stream on January 27 at 10:30am Eastern to watch the meeting where these topics will be discussed:
- The first item is two minor changes to the political broadcasting rules. The first change is to include social media activity and a campaign website in the criteria that broadcasters must consider when determining if a write-in candidate has made a “substantial showing” that they are a legally qualified candidate. Legally qualified candidates receive the benefits and protections of the FCC’s political broadcasting rules. The second change brings the FCC’s rules in line with existing federal statutory requirements by requiring stations to upload to their political file information about advertising on federal issue ads. Broadcasters are already required to do this, so this rule change does not change a station’s recordkeeping obligations. For more information, see our blog post, here.
- The second item modifies the FCC’s rules to allow for better use of “white space” spectrum (portions of the VHF and UHF broadcast TV bands at locations where frequencies were not being used by TV broadcasters). The FCC plans changes to how white space devices would receive operational information from white space databases about the use of wireless microphones in the areas where the devices operate. The new rules would require that the devices check the databases at least once per hour, replacing a current rule that has not been enforced which requires the databases to push information about wireless microphone use whenever there is new microphone use in the area. The FCC believes this will better protect wireless microphones (used for newsgathering and other unplanned purposes) as push notifications might not be received by all the white spaces devices (and verifying receipt of such notices might not be technically feasible).
- On the Broadcast Law Blog: Our law firm colleague Jonathan Cohen wrote about the state of play in tech regulation and what to watch for in 2022 from the Biden Administration and Congress. Read his post for updates on the likely areas of legislative and regulatory action. (Hot Topic for 2022: Tech Regulation)
January 8, 2022 to January 14, 2022
- The FCC announced that CDBS, the database where all broadcast applications were filed before most migrated to the newer LMS database, would stop accepting new applications as of last Wednesday, January 12. CDBS was, until being shut down for new filings, still being used for STAs, address changes, and a number of AM applications. These submissions not yet migrated to LMS will now be filed through emails to the FCC (Public Notice). For more information, see our article here.
- A California low power FM station received a Notice of Violation for not monitoring the sources it was assigned to monitor in the State EAS plan. The Enforcement Bureau’s review of the station’s EAS log showed that the station was not monitoring the two EAS sources designated for it in the State EAS Plan but was instead monitoring only an optional monitoring point. No financial penalty was proposed, but the station must submit a response explaining its violations, with a timeline for coming into compliance. (Notice of Violation). This is a good reminder to make sure that your stations are monitoring the sources assigned in your state plan. The decision also emphasizes that LPFM stations are part of the EAS system and must monitor assigned stations for emergency alerts and pass through such alerts when they are received.
- A consent decree released this week is a good reminder that, even though the radio license renewal cycle is winding down, FCC staff are still reviewing pending applications and stations’ online public files for completeness. Make sure your online public file holds all of the necessary documents and that those documents are uploaded on time. (Consent Decree)
- Now that the repacking of the TV spectrum has been completed and changes to the TV Table of Allotments are permitted, the FCC this week asked for comments on several proposals for existing stations operating on VHF channels to move to UHF (Portland, OR; Henderson, NV; Monroe, LA; Albany, NY), and a proposal for a new TV channel allocation to be reserved for noncommercial operations (Ft. Bragg, CA).
- The FCC’s Audio Division fined an FM translator operator for not filing a license application when it completed construction and for operating the new translator after its construction permit expired. (Order and Notice of Apparent Liability) This is another reminder that, when a broadcaster completes construction of any new facility, it must file a license application so that the FCC can confirm that the station was constructed as authorized.
- The US Senate confirmed Alan Davidson to be head of the National Telecommunications and Information Administration (NTIA). Davidson will be in charge of billions of dollars designated for broadband infrastructure investment and will work closely with the FCC on broadband and spectrum policy. Read FCC Chairwoman Rosenworcel’s congratulatory statement, here. In other confirmation news, now that President Biden has re-nominated Gigi Sohn to be an FCC Commissioner, watch for the Senate Commerce Committee to further consider her nomination in the next few weeks.
January 1, 2022 to January 7, 2022
- The FCC this week announced that it will vote on two items of interest to broadcasters at its next Open Meeting on January 27.
- The FCC will likely make two minor changes to its political broadcasting rules.
- The first will add use of social media and creation of a campaign website to the factors to consider when determining if a write-in candidate has made a “substantial showing” of a bona fide campaign for office so that the candidate can be considered a “legally qualified candidate.” Legally qualified candidates are entitled to all the protections of the FCC’s political rules, including equal opportunities, lowest unit rates and, for federal candidates, reasonable access to buy advertising time on commercial broadcast stations. In the current rules, the factors that a broadcaster is to consider in assessing if a substantial showing has been made are matters including whether the candidate is actively campaigning by making speeches and hosting rallies, if they are passing out literature and putting up yard signs, and whether they have a campaign headquarters. Digital media activity will now be considered – though the FCC is poised to say that websites and social media will never, alone, be sufficient to show that a write-in candidate is legally qualified.
- The same order will also update the FCC’s rules on the political file to require that stations upload to their online political file information about any request to buy federal issue advertising. Stations already are required to upload this information, as it’s mandated by the Communications Act, but the FCC rules were never updated to reflect this 20-year-old statutory requirement. The FCC will not be making any substantive changes to the requirements, but instead will only be updating its rules to spell out what is already required by the Act.
- The FCC’s Draft Report and Order spells out the proposed changes to be considered at the January 27 meeting. We wrote about both proposed changes when they were first announced, here.
- The FCC plans changes to how white space devices that operate in unused portions of the TV band would receive operational information from white space databases about the use of wireless microphones in the areas where the devices operate. The new rules would require that the devices check the databases at least once per hour, replacing a current rule that has not been enforced which requires the databases to push information about wireless microphone use whenever there is new microphone use in the area. The FCC believes this will better protect wireless microphones (used for newsgathering and other unplanned purposes) as push notifications might not be received by all the white spaces devices (and verifying receipt of such notices might not be technically feasible). (Draft Second Order on Reconsideration)
- The FCC will likely make two minor changes to its political broadcasting rules.
- Performing rights organization Global Music Rights and the Radio Music License Committee (RMLC) announced a confidential settlement this week in their long-running dispute over the royalties that GMR can charge commercial radio stations. (Letter to Radio Broadcasters). The terms of the settlement have not been disclosed, but commercial stations represented by RMLC should have received a proposed license agreement to review. The settlement depends on enough stations agreeing to the terms of the license agreement by January 31, so don’t delay checking with your station’s counsel and advisors to see if signing the agreement makes sense for your operation. We wrote at length about the settlement, here.
- The FCC reported that there were about 100 fewer broadcast stations licensed at year-end 2021 than there were at the end of 2020. Decreases were seen mostly in the number of AM, commercial FM and low power FM stations. (Station Totals as of December 31, 2021)
December 18, 2021 to December 31, 2021
- The FCC released the results of the August 11 Nationwide EAS Test, finding that, compared to the 2019 test (the 2020 test was cancelled due to the pandemic), this year’s test message reached more EAS participants (89.3% in 2021 vs. 82.5% in 2019) and it was retransmitted successfully more than it was two years ago (87.1% in 2021 vs. 79.8% in 2019). However, the FCC received reports on the test from only 75.3% of participants, down from 78.6% in 2019. 79.9% of radio broadcasters filed their reports, and only 67.9% of TV stations – with LPFM and LPTV stations representing many of the non-reporting stations. The FCC noted that ensuring, for future tests, increased compliance with the mandatory reporting requirement will be a priority. (Nationwide EAS Test Report).
- The date for filing comments on the FCC’s proposal to change the rules for proofing of FM directional antennas was pushed back. Comments are now due by January 20, with reply comments due by February 4. This proceeding seeks comments on proposals to allow the patterns for directional FM antennas to be verified by computer modeling as opposed to real-world testing. (Public Notice)
- Senators Roy Blunt and Ron Wyden introduced the Low Power Protection Act, a bill to open a new window during which LPTV stations that originate at least 3 hours of local programming could qualify for Class A status, meaning that they would be protected from being bumped off their channels by future applications by full-power stations (and these stations would have to be protected if the spectrum allocated to TV was further reduced at some future time, as it was as a result of the Incentive Auction). The bill, as proposed, would only allow new Class A stations in DMAs with 95,000 television households or fewer – approximately DMA 175 and below. (Press Release) The bill has not been introduced in the House of Representatives, and will need substantial Congressional consideration before becoming law.
- The licensee of several Kansas radio stations entered into a consent decree with the Media Bureau because a number of its stations were silent for long periods of time without receiving special temporary authority from the FCC. The FCC requires Commission notification if a station is silent for 10 days, and an STA must be requested when a station is silent for 30 days. The licensee will pay a $7000 fine and the stations will receive a 1-year license renewal term, instead of the typical 8-year term. (Order and Consent Decree).
- In another decision released last week, the FCC proposed to fine another broadcaster $17,500 for not timely requesting an STA when its AM and associated FM translator went silent, plus its failure to amend its pending license renewal application to report that the stations were silent for several months while the renewal was pending – even though the renewal specifically asks if the station whose renewal is sought is silent. The licensee had also failed to complete and timely upload multiple Quarterly Issues Programs lists to its public file (Order and Notice of Apparent Liability)
- The Media Bureau entered into a consent decree with a radio licensee requiring a $5000 fine because of several violations, including the licensee’s failure to maintain station logs, its failure to upload (or timely upload) certain documents to its online public file, and because its FM translator stayed on the air for extensive periods of time when its primary AM station was not operating, a violation of the rules that prohibit translators from operating when their primary stations are not operating during their authorized hours. This is a reminder to pay close attention to your operations and be sure that you are complying with all applicable FCC rules. (Order and Consent Decree)
- The FCC proposed to delete 7 vacant FM channels that were included in the last two FM auctions but received no bids in either auction. The channels proposed for deletion are ones in Snowflake, AZ; Millerton, OK; Powers, OR; Mount Enterprise, TX; Paint Rock, TX; Hardwick, VT; and Meeteetse, WY. Comments on the proposed deletions are due February 14, with reply comments due March 1. If no party expresses an interest in operating a station on these channels, or files a counterproposal to move the channels elsewhere, they will be deleted. (Notice of Proposed Rulemaking)
- The FCC cancelled Auction 111 after the only mutually exclusive applicants entered into a settlement agreement. The auction was to be a closed auction of LPTV and TV translator construction permits for applicants who submitted mutually exclusive applications either during a 2009 filing window for new LPTV stations or in a 2018 window for stations displaced by the Incentive Auction. With no mutually exclusive applications to be resolved by competitive bidding, there is no longer a need for an auction. (Public Notice)
- The FCC announced its annual calculation of the increase to account for inflation in fines whose amounts are set by the Communications Act. The announced increases include fines for broadcast indecency. For 2022, indecency fines can be as high as $445,445 for each violation or for each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $4,111,796. (FCC Order)
December 11, 2021 to December 17, 2021
- Music licensing organization Global Music Rights (GMR) has agreed to a three-month extension of its current interim licensing agreement. GMR and the Radio Music License Committee (RMLC), which represents commercial radio broadcasters, have been in court for years arguing over whether GMR’s royalty rates should be subject to antitrust regulation. According to the letter announcing the extension, it appears that GMR and RMLC are seriously discussing a settlement to resolve their litigation. We wrote more about the litigation and this extension of the interim license on our Broadcast Law Blog, here. See the joint RMLC-GMR letter announcing the extension, which contains a link to the form used to sign up for the extension, to be completed by December 29.
- The FCC announced that comments are due by February 11, 2022, with reply comments due by March 14, 2022, on an FCC proposal to allocate responsibility for multicast streams that are originated by one TV station and hosted by another during the ATSC 3.0 Next Gen television transition. Under the proposal, these multicast streams will be considered part of the license of the originating station, not the station that is hosting the channels. The proposal would include not just the required ATSC 1.0 “lighthouse signals” originated by a station that has already converted to ATSC 3.0 but hosted by a station that has not converted, but also the program stream of an unconverted station hosted on a station that has converted to Next Gen TV. (Public Notice)
- At its last Open Meeting of 2021, the FCC adopted a Notice of Proposed Rulemaking and Notice of Inquiry that seek ways to make the visual component of EAS alerts on TV stations more accessible to viewers who are deaf or hard of hearing. As proposed, the on-screen messages that accompany alerts would be made more uniform so that they are clearer and more descriptive. Broadcasters would also be required to check for and use the Common Alerting Protocol (CAP) version of an EAS alert, if one is available, as these IP-based alerts have more robust visual information. The Notice of Inquiry asks for ideas on how the legacy, over-the-air “daisy chain” EAS architecture can be redesigned to deliver better visual messaging. Comment periods on the NPRM and NOI will be set after publication in the Federal Register. (NPRM, NOI, and News Release)
- The FCC issued a $3,500 penalty to a licensee for failing to file a license application when it finished construction of a new FM translator. The license application tells the FCC that the station is on the air and operating and allows the FCC to confirm that it was constructed as approved by the new station’s construction permit. By not filing the license application, the station was operating without authorization. Work with your technical and legal advisors to be sure you are filing all of the required documentation when you put a new station on the air or modify a station already operating. (Forfeiture Order)
- A North Dakota TV licensee filed must-carry complaints against two local MVPDs for their refusal to carry the licensee’s TV station. The MVPDs claimed that the station was unable to deliver a good quality signal, so the station was not entitled to must carry. The FCC rejected the MVPDs’ arguments, finding that as the station had agreed to assume all costs necessary to provide a good quality signal to the system’s headend, the systems must carry the station. (Order)
- Monday was the deadline to file for a place on the primary ballot for candidates for Texas elective offices to be decided in the November 2022 elections. While Texas’ primary, currently scheduled for March 1, is the earliest in the 2022 election cycle, other states will follow soon. See our Broadcast Law Blog article here for more information on the political advertising issues that you should be considering now in preparation for the upcoming elections.
- The Senate Commerce Committee approved the nomination of Alan Davidson to be head of the National Telecommunications and Information Administration. NTIA oversees federal government spectrum policy. Look for Senate leadership to try to get Davidson confirmed by the full Senate by the end of the year.
December 4, 2021 to December 10, 2021
- FCC Chairwoman Jessica Rosenworcel was confirmed by the Senate to serve a new, five-year term. (Rosenworcel Statement) She will continue to lead an agency split along partisan lines with two Commissioners from each party until a third Democratic Commissioner is confirmed. Gigi Sohn, a public interest lawyer and former FCC senior staffer under Chairman Tom Wheeler, has been nominated for that third seat, but her nomination has faced resistance. Her nomination is not scheduled to be considered at a December 15 Senate Commerce Committee meeting which will consider other nominations. Further action on that nomination may be delayed until the New Year.
- The FCC’s Media Bureau denied a request by the NAB and two other industry groups to delay implementation of the FCC’s new sponsorship identification rules for programming financially supported by a foreign government entity. The industry groups wanted the FCC to let the court challenge the groups filed play out before allowing the rules to become effective. (Order) Even though the FCC denied this request, the rules are not yet effective as they are undergoing a Paperwork Reduction Act review. Once effective, the new rules will require broadcast licensees to air specific disclosures for programming that is paid for by any foreign government-backed entity. Licensees also will be required to take steps to determine if any buyer of block programming on their stations, including existing programmers who seek to renew their agreements, have ties to a foreign government entity.
- The FCC dismissed 75 technically defective applications filed in the recent window for new noncommercial educational FM stations. Some of the defects appear minor, while others are more significant. These applicants have one opportunity to file an amendment that clears up the technical defect with a petition for reconsideration of dismissal. The amendment can only propose a minor change and cannot create any new conflicts with other already-submitted applications. The amendments and petitions must be filed by January 7, 2022. (Public Notice) (Dismissed Applications List)
- A Las Vegas radio station faces a $20,000 fine for apparently transmitting EAS Tones during a block of leased time used by a local radio host, when no emergency or EAS test had occurred. This is a reminder that the FCC takes seriously any unauthorized use of EAS tones and will issue fines or take other enforcement actions against a station licensee, even if the violation occurred during a block of leased time. Part of this fine was for the broadcast of the programming containing the EAS tone on a multicast channel of an FM station, making clear that these channels are just as subject to FCC rules as are a station’s main channel. (Notice of Apparent Liability for Forfeiture)
Looking ahead to next week, the FCC will hold its last regular monthly Open Meeting of the year. The Commissioners are expected to vote to open a rulemaking to examine whether to require that a predetermined script be used for visual display of EAS messages, and to require that stations, whenever they receive an alert (including state and local alerts) from their legacy (over-the-air) EAS alerting system, check their IPAWS Internet-delivered CAP (Common Alerting Protocol) based system to see if additional visual information about the alert has been provided, as that IP-based system allows for alerts containing more visual information. The FCC also asks for suggestions on how the current, legacy EAS can be updated to make those systems more robust in providing visual information. (Fact Sheet and Draft Notice of Proposed Rulemaking). Tune it at https://www.fcc.gov/live at 10:30 am Eastern on December 14 to watch the meeting.
November 27, 2021 to December 3, 2021
- FCC Chairwoman Jessica Rosenworcel’s nomination for another five-year term at the agency was approved by the Senate Commerce Committee. The final step in the consideration of her nomination is for the full Senate to vote to confirm that nomination before the end of the year when her current term expires.
- The Senate Commerce Committee also held a hearing on the nominations of Gigi Sohn for a position as a Democratic FCC Commissioner and of Alan Davidson as NTIA Administrator. Sohn was pressed by senators on her past public interest work and some of her tweets and other public statements made in connection with that work, her time advising FCC Chairman Tom Wheeler, and her role as a board member for now-shuttered local TV streaming service Locast. Sohn expressed general support for local broadcasting but suggested that she would favor rolling back some recent relaxations of the media ownership rules. Davidson’s questioning focused on broadband issues and overall federal spectrum policy. We took a look at some of the issues that would be waiting in Commissioner Sohn’s inbox if she were to be confirmed.
- Parties interested in the FCC’s rulemaking to consider allowing FM broadcast license applicants to verify directional antenna patterns through computer modeling instead of real-world testing should file their comments by December 30. Reply comments are due by January 14, 2022. (Public Notice)
- The FCC finished its review of the applications filed during last month’s noncommercial educational FM radio station filing window. The review found 231 groups of mutually exclusive (MX) applications. The FCC opened a settlement window through January 28, 2022 for parties to submit technical amendments or work with others in their MX group to enter into settlement agreements or otherwise resolve conflicts. Applicants in an MX group that have not submitted a settlement agreement or technical amendment by the January 28 deadline will have their application undergo a comparative analysis to determine which of the mutually exclusive applications should be granted. Thirteen applications were deemed defective and dismissed. (Public Notice) (MX Groups) (Dismissed Applications)
- The FCC reminded stations in DMAs 71-80 affiliated with one of the top four TV networks that they must comply with the FCC’s audio description rules beginning January 1, 2022. The audio description (formerly known as video description) rules make video programming more accessible to blind or visually impaired persons by requiring the use of an audio subchannel to provide descriptions of the visual action in a TV program that is occurring on screen. The affected DMAs are Omaha, Wichita-Hutchinson Plus, Springfield, MO, Charleston-Huntington, Columbia, SC, Rochester, NY, Flint-Saginaw-Bay City, Huntsville-Decatur, Portland-Auburn, and Toledo. (Public Notice)
- FCC fee filers take note. By December 15, the FCC will close its current fee filer payment system and open a new payment system within its CORES platform. The Red Light Display system, which allowed users to view and clear financial holds on their account, will also be closed. Past due fee information will be available only through CORES. (Public Notice)
- The licensee of two Mississippi Class A TV stations faces a combined $38,000 in fines over the company’s failure to upload quarterly issues/programs lists on time and for failing to disclose to the FCC in the stations’ license renewal applications that the lists were uploaded late. The stations’ renewal applications certified that all documents had been timely uploaded to its public file, as required by FCC rules, when more than three dozen issues/programs lists had not been timely uploaded. (Notice of Apparent Liability for Forfeiture – W34DV-D) (Notice of Apparent Liability for Forfeiture – W39CA-D). These actions once again emphasize the importance of timely uploads of all documents to the online public file.
- The FCC proposed a $6,000 fine for a TV station that uploaded issues/programs lists to its online public file late and admonished the same station for displaying during its children’s programming the URL for a website that contained a “shop” button. The FCC’s children’s TV rules prohibit stations from displaying on-screen during programs directed to children the URL for websites that have a commercial purpose, including e-commerce or advertising. The programming was supplied by a TV network, but the station is ultimately responsible for its programming content. (Notice of Apparent Liability for Forfeiture and Admonishment)
- The Copyright Royalty Board announced the that royalties for streaming music on the Internet will increase in 2023 from the $.0021 per performance royalty rate recently sent by the CRB for the period from 2021 to 2025. The rates were subject to cost-of-living increases – and the rise in the cost-of-living index triggered the increase for 2022. The cost-of-living increase will increase the royalties for non-subscription, non-interactive streaming, like simulcasting a radio station on the Internet including through a mobile app, to $.0022 per performance (a performance occurs each time any song is streamed to a single user – so, for example, a station that plays 10 songs in an hour and had 10 listeners throughout the hour must pay for 100 performances in that hour). (CRB Notice) (Summary of new royalties for 2021-2025). Some of the rates set last year are still under review. Appeals of last year’s CRB decision setting these rates were filed on November 26. We will have more on those appeals in our Broadcast Law Blog soon.
- With TV’s Dr. Mehmet Oz declaring his candidacy for nomination to run for an open US Senate seat in Pennsylvania, we wrote on our Broadcast Law Blog about what a station should do to avoid issues under the FCC’s political broadcasting rules, including the equal time rule when one of its on-air employees decides to run for public office.
November 13, 2021 to November 19, 2021
- The Senate Commerce Committee this week held a hearing on the nomination of FCC Chairwoman Jessica Rosenworcel for another five-year term at the agency. The Chairwoman’s opening remarks focused on broadband availability and called communications technologies “the infrastructure of opportunity.” Her opening comments included no mention of broadcast issues (Rosenworcel Remarks). Senators’ questions were also light on broadcast issues, though the Chairwoman voiced her support for tax credits for journalism operations that would be made possible by a bill being considered by Congress and for bringing back the Minority Media Tax Credit. She said the FCC will find ways to encourage broadcasters to use their FCC license to support local communities. A hearing on fellow Democrat Gigi Sohn’s nomination to fill a vacant FCC seat hearing has been delayed, which may be a signal that Sohn’s nomination is more controversial than Rosenworcel’s. In case you missed it, we posted on the Broadcast Law Blog an article highlighting the broadcast issues that a full-strength, five-Commissioner FCC might try to tackle.
- FCC Commissioner Nathan Simington has started to make known his positions on broadcast issues, addressing a Massachusetts Association of Broadcasters awards program and sharing his thoughts. Simington joined the FCC in December 2020 in the closing days of the Trump Administration and broadcast issues were not covered deeply during his confirmation hearing. The Commissioner called broadcasting the tentpole of American media and something that must be preserved. He remarked that broadcasting is a “window into what’s happening where we live, a tether to our civic and cultural identities, and a check against political corruption.” He will encourage the Commission to consider broadcasting’s role in the media marketplace and further relax broadcast ownership regulations in the face of explosive growth and competition from Big Tech companies like Facebook and Google. (MAB Remarks)
- The FCC opened a rulemaking to consider allowing FM broadcast license applicants to verify directional antenna patterns through computer modeling instead of physical testing. Current FCC rules require applicants to provide measurements using either a full-size mockup or scale model of the antenna and supporting structures to measure the pattern generated. The proposed rule changes would put FM and LPFM applicants on equal footing with their AM radio and television counterparts, which are already permitted to rely on computer modeling to verify directional antenna patterns. The comment period will be set when the Notice of Proposed Rulemaking is published in the Federal Register. (Notice of Proposed Rulemaking)
- The FCC announced that it will hold Auction 112 in June 2022 to award construction permits for 27 full-power TV stations. It released a Public Notice with proposed procedures for the auction (Public Notice). If you are interested in bidding for a new TV station, take a look at the list of available construction permits. Most of the channels are in smaller communities in western states (Construction Permit List). Comments on the proposed auction procedures are due by December 13. Reply comments are due by December 23.
- A Florida college TV station faces a $6,000 fine in connection with its license renewal application for failing to upload its quarterly issues/programs lists on time. The station uploaded four lists more than one year late, four lists between one month and one year late, and three lists between one day and one month late. The station also noted in its renewal application that a handful of quarterly lists were mistakenly posted to the station’s website instead of its public file. Even though the lists eventually made their way to the public file, the Video Division reminded the station that “employee acts or omissions, such as clerical errors in failing to file required forms, do not excuse violations.” Pay close attention to filing dates and deadlines, so you do not find your operation looking at a monetary penalty. (Notice of Apparently Liability for Forfeiture)
- In other confirmation news, Jonathan Kanter was confirmed by a bipartisan vote of the Senate to lead the Department of Justice’s antitrust division. The division examines transactions and mergers that could affect competition in the marketplace (including in the broadcast industry) and provides opinions on broadcast marketplace competition. The division also oversees the ASCAP and BMI consent decrees. (Vote Summary)
November 6, 2021 to November 12, 2021
- The Senate Commerce Committee announced this week that it will hold a hearing to consider FCC Chairwoman Jessica Rosenworcel for another five-year term at the agency. Fellow Democratic Commissioner-nominee Gigi Sohn’s confirmation will not appear at the hearing, suggesting to some that her nomination is likely to have more problems being confirmed. Tune in to the livestream at www.commerce.senate.gov at 10 a.m. Eastern on November 17 to watch the Rosenworcel hearing. If Chairman Rosenworcel receives a majority vote of the committee members, her nomination will move to the full Senate for final approval. (Nominations Hearing Notice). See the article on our Broadcast Law Blog on the issues for broadcasters that the Commission will likely consider when it is back at full strength (Article).
- The FCC’s filing window for applications for new noncommercial FM stations closed on Tuesday, November 9, with over 1000 applications having been filed. The FCC released a Public Notice announcing the closing of the window and stating that no amendments to applications filed in the window will be permitted until after November 29 at 6 p.m. Eastern. The FCC staff will take that time to evaluate the submitted applications and identify which applications are mutually exclusive with other applications that were filed in the window. More information explaining the procedures for filing settlement agreements and technical amendments to resolve conflicts between applications will be forthcoming. (Public Notice)
- An AM radio tower owner entered into a consent decree and was fined $1,400 for its failure to properly maintain its tower lights and to report a change in the ownership of the tower. The fine would likely have been higher but the owner made a financial showing to the FCC that it could not afford to pay more. Under the FCC’s rules, owners of FCC-registered lighted antenna structures must confirm at least once every 24 hours that the tower’s lights are functioning properly or connect the lighting system to an alarm that
notifies the owner in the event of a malfunction. If ownership of a registered tower is changed, the FCC must be notified of that change. In this case, under the consent decree, the tower owner must appoint a compliance officer, follow a compliance plan, and file compliance reports for three years in addition to paying the fine. (Consent Decree)
- The FCC continued to enter into consent decrees with broadcasters for violations of the FCC’s requirements for the prompt upload of political advertising orders to a station’s online public inspection file, releasing a number of such decrees this week (Sample Consent Decree). WBK attorney David Oxenford will be conducting a webinar on Thursday, November 18, with members of the FCC’s Political Broadcasting Office to remind broadcasters of the rules in preparation for the expected rush of political advertising in connection with 2022 elections. Check with your state broadcast association to see if this webinar is available to stations in your state.
October 30, 2021 to November 5, 2021
- In a Further Notice of Proposed Rulemaking released Friday, the FCC proposed new rules to deal with the responsibility for multicast programming streams as TV stations transition to ATSC 3.0 (Next Gen TV). The FCC proposes to include programming that is broadcast on the multicast channels of host stations continuing to operate in ATSC 1.0 within the license of an ATSC 3.0 station originating that programming. Comment is also sought on whether to include the programming steam of an ATSC 1.0 host station within the license of that station when its programming is included as a multicast channel on a station that has already converted to Next Gen TV. The rulemaking is in response to an NAB petition asking the FCC to clarify its rules for licensing these multicast streams during the Next Gen TV transition. Look for more details on this proceeding on the Broadcast Law Blog later this week. Comments and reply comments on the proposals will be due 60 days and 90 days, respectively, after publication in the Federal Register. (Further Notice of Proposed Rulemaking)
- A Florida radio and TV licensee entered into a consent decree and will pay a $20,000 penalty for violating the FCC’s environmental rules. In this case, the licensee proposed construction of a tower within a designated habitat of the Florida bonneted bat, an endangered species. The licensee began to clear vegetation from the site before an environmental assessment was completed and before the FCC approved construction. The consent decree comes with the naming of a compliance officer, implementation of a compliance plan that includes employee training, filing of four compliance reports, and the monetary penalty. Be sure you complete all necessary environmental reviews before starting the construction of any new facilities. (Consent Decree)
- An Alabama FM translator operator entered into a consent decree with the FCC and will pay a $13,000 fine for, among other things, changing transmitter sites without FCC permission, operating the translator at times when its primary station was off the air, and failing to notify the FCC as required when the translator was silent for more than 10 consecutive days. (Consent Decree).
- In another FM translator matter, a translator in Colorado was sent a Notice of Violation for commencing operations on a new channel without filing a license application on Schedule 350. Translators are not to commence operations with newly authorized facilities without first filing an application for a license once construction of the new facilities has been completed. (Notice of Violation)
- The FCC reminded potential applicants that applications for new noncommercial educational FM stations are due by 6 p.m. Eastern on Tuesday, November 9. Applicants in this NCE window may submit up to ten applications for consideration by the FCC. If you have not yet submitted your application(s), read the Public Notice that sets out the filing procedures and our blog post on the matter. (Public Notice)
- Stations that have not yet made progress preparing their biennial ownership report should not rely on an extension of the December 1 filing deadline and should aim to file their report before the deadline to allow for FCC database slowdowns. We wrote more about this reporting obligation, and the potential for penalties for stations that don’t meet the deadline, here.
- FCC staff will have the option of returning to their new headquarters beginning December 1, according to industry publications. This is apparently a voluntary return – with a full return by FCC staff not likely until sometime in 2022. FCC staffers in Washington DC have been required to telework since March 19, 2020. When they go back to the office, staff will be working for the first time from the FCC’s new building that “opened” in October 2020.
October 23, 2021 to October 29, 2021
- President Joe Biden made official his permanent FCC Chair – selecting Acting Chairwoman Jessica Rosenworcel to fill that position. He also re-nominated her for another five-year term, as her current term on the FCC ends at the end of this year. The President also nominated Gigi Sohn, a former FCC senior staffer under Chairman Tom Wheeler, to be the fifth Commissioner and third Democrat. Both nominations must be approved by the Senate before Congress adjourns at the end of the year, or the nominees will need to be re-nominated. (White House Release)
- The FCC released an advance text of a proposal that would change how FM and LPFM license applicants verify directional antenna patterns, using computer modeling rather than real-world testing. This proposal will be considered by the Commission at its next monthly open meeting on November 18. Under current rules, FM and LPFM applications must provide real world measurements using either a full-size mockup or scale model of the antenna and supporting structures to measure the pattern generated. The proposed rule changes would put FM and LPFM applicants on equal footing with their AM radio and television counterparts, which can already use computer modeling to verify directional antenna patterns. (Draft Notice of Proposed Rulemaking)
- The C-Band Relocation Payment Clearinghouse (RPC), which is responsible for the processing of claims for reimbursement and lump sum payments associated with the C-band relocation, has begun to pay claims filed by earth station operators. In a press release, RPC noted that some entities potentially eligible for reimbursement or lump sum payment have not yet filed claims and urged these entities to visit www.cbandrpc.com/resources to set-up an account and file their claim. (Press Release)
- The decision of the Copyright Royalty Board raising the royalties for 2021-2025 to be paid to SoundExchange by webcasters for the digital transmission of sound recordings was published in the Federal Register. (Federal Register publication). The notice makes clear that the rates are now effective, and webcasters need to start paying at the new rates. Participants in the proceeding have 30 days to decide if they will appeal the CRB decision to the US Court of Appeals. We wrote more about this decision here. Look for more on this action later this week on our Broadcast Law Blog.
- Locast, the service that had been retransmitting local TV signals over the internet, will pay the big broadcast networks $32 million to settle copyright infringement claims tied to the service’s retransmission of television programming without consent. The service has now been terminated. We wrote more about some of the issues in the case, here. (Consent Judgment)
- In other confirmation news, Jonathan Kanter, President Biden’s choice to lead the Department of Justice’s Antitrust Division, was approved by the Senate Judiciary Committee. The division examines transactions and mergers that could affect competition in the marketplace (including in the broadcast industry) and provides opinions on broadcast marketplace competition. The division also oversees the ASCAP and BMI consent decrees. Kanter’s nomination will be considered by the full Senate at a later date. (Committee Action)
October 16, 2021 to October 22, 2021
- The Federal Trade Commission issued a press release which warns advertisers to avoid misleading endorsements. The FTC also sent a warning letter to hundreds of advertisers, advertising agencies, and media companies setting out its concerns, and the potential penalties, for misleading endorsements in advertising, including those by endorsers who had not actually used a product or ads that create unrealistic expectations for the products being advertised. (Press Release and Warning Letter). Watch our Broadcast Law Blog on Monday for more on this warning and its impact on broadcasters.
- A recent court case is a good reminder that political attack ads can subject broadcast stations to defamation claims. While broadcast stations are generally immune from liability for the content of candidate advertising, they can have liability if they air an attack ad from a non-candidate group (e.g., a PAC or political party), knowing that the content is false or with notice that the ad might be false. See our blog post on this issue, here.
- In last week’s update, we noted that the Copyright Office opened a study to examine the rights and protections of news publishers under copyright and related laws. We took a longer look at the study this week on the Broadcast Law Blog, including the study’s potential impact on news content produced by broadcasters or news content produced by other outlets and reproduced by broadcasters. Comments on the notice of inquiry are due November 26, 2021 (Notice of Inquiry).
- In a reminder that non-broadcast conduct of owners of a company can affect the company’s qualifications to hold a broadcast license, the FCC this week issued an order announcing that they will hold a hearing to determine whether a Pennsylvania FM station licensee who was convicted of a felony and multiple misdemeanors is qualified to continue holding an FM station license. FCC licensees are required to meet certain character qualifications set out in its Character Qualification Policy Statement. The FCC could determine that the criminal conduct requires a revocation of the station’s license. (Hearing Designation Order) See our blog post, here, for a longer discussion of the FCC’s character policy and how it has been used in the past.
- The FCC entered into a number of consent decrees with broadcasters whose license renewal applications revealed untimely uploads to their online political files (see examples of the FCC orders here and here) or other untimely actions, including other late non-political uploads to online public files (see the orders here and here). For more details on the consent decrees for untimely uploads to the political file, see our articles here and here. For more on FCC actions for other violations of the public file rules, see our articles here and here.
October 9, 2021 to October 15, 2021
- The Copyright Office initiated a study of the rights of publishers, to explore ways to assist local journalism. The notice of inquiry seeks comments on the protections afforded to publishers under Copyright law and whether these protections should expand to shield publishers from the dilution of their product by digital services. The study asks for comments on the rights of news aggregators and whether there should be additional limits on their distribution of information about stories that publishers originate. In addition, the study asks whether there should be more protections for “hot news,” protecting the facts contained in such stories instead of just protecting the way those facts are expressed. Ideas for reimbursing publishers for the use of their content by digital platforms, similar to laws recently adopted in Australia and in parts of Europe, are also part of the inquiry (see our article here for more on this idea). Comments on notice of inquiry are due November 26, 2021 (Notice of Inquiry). This study could lead to more protections for the news content of broadcasters, but also limit their ability to distribute content that originates with others. Watch for more on this proceeding in our Broadcast Law Blog this week.
- The FCC updated the list of applicants eligible to participate in Auction 111, an upcoming closed auction of LPTV and TV translator construction permits. The applicants who can participate in the auction submitted mutually exclusive applications either during a 2009 filing window for new LPTV stations or in a 2018 window for stations displaced by the Incentive Auction. Short-form applications by auction participants are due between November 1 and November 9, 2021 and bidding begins February 23, 2022. See the updated list of the construction permits available and eligible participants, here. (Public Notice)
- The FCC entered into a consent decree with a North Dakota noncommercial FM station over its failure to comply with the public file rules and its failure to file biennial ownership reports since 2014. As the biennial ownership report filing window is currently open through December 1, stations should make sure their reports are completed and filed on time, especially as the FCC is scrutinizing stations’ compliance with its rules during the license renewal process. (Consent Decree)
October 2, 2021 to October 8, 2021
- The FCC issued a Public Notice to remind potential applicants of the upcoming filing window for applications for construction permits for new noncommercial educational FM stations. The application window will open at 12:01 am Eastern Time on November 2 and close at 6:00 pm Eastern on November 9. Applications will only be accepted for construction permits in the FM reserved band (channels 201-220, 88.1 through and including 91.9). The Public Notice also reminds broadcasters that there is a filing freeze in place on any application for a minor change that could impact potential filings in the window – freezing minor change applications by existing stations in the FM reserved band and by stations on unreserved channels adjacent to the reserved band (channels 221–223) and those on intermediate frequency (IF) channels (channels 254-274). The freeze will be in place through November 9. (Public Notice)
- The FCC held an information session this past week to explain the requirements for the filing of Biennial Ownership Reports which must be submitted by commercial and noncommercial AM, FM, TV and LPTV operators by December 1, 2021. These reports inform the FCC of the ownership of each station as of October 1, 2021. The FCC has already warned broadcasters that there will be enforcement penalties for stations that do not file these reports. A replay of the information session is available on the FCC’s website, here, and on the FCC’s YouTube channel, here.
- The FCC released a draft Order that cleans up FCC rules that apply to TV and LPTV stations by reflecting changes caused by the broadcast incentive auction and repacking process. If adopted, the Order will revise the DTV Table of Allotments to reflect the current, post-auction channels of TV stations. The Order would also delete or revise FCC rules that, following the DTV transition, incentive auction, and repack, no longer have any practical effect. Most of these rules involve references to channels that are no longer part of the TV band or procedures that only applied during the incentive auction and its immediate aftermath. This Order should be adopted at the FCC’s regular monthly Open Meeting on October 26. (Draft Order)
- The FCC published its broadcast station totals as of September 30. The accounting shows 157 fewer stations are licensed now than were licensed at the end of June. The most significant decrease came in the FM and TV translator category. (Station Totals)
September 25, 2021 to October 1, 2021
- ViacomCBS and its subsidiary Pluto TV agreed to pay $3.5 million and enter into a consent decree with the FCC because Pluto failed to include captions in streamed programming that had previously been broadcast with captions on TV. The FCC’s investigation revealed that Pluto did not enable the delivery of captions provided by the programmer on numerous online platforms that carry Pluto TV, did not implement certain closed captioning functionalities, and did not make contact information for closed captioning complaints available to viewers. Under FCC rules, all nonexempt full-length video programming delivered over the internet must be closed captioned, if the programming had previously been shown on television in the U.S. with captions. (Order and Consent Decree)
- The FCC issued a Public Notice reminding broadcasters that a two-month biennial ownership report window opened Friday, October 1 and will stay open through Wednesday, December 1. All licensees of commercial and non-commercial full power television, Class A television, low power television, AM radio, and FM radio stations must file a report with ownership information current as of October 1. Filers can watch an online informational session hosted by FCC staff on October 5 at 2:00 p.m. Eastern that will explain the filing requirements.
- At its monthly open meeting this past week, the FCC started a proceeding looking at ways to make communications networks more reliable and resilient during emergencies. As part of this effort, the FCC asked for comments on whether it should require broadcast stations to report their operational status during an emergency to the FCC using its Disaster Information Reporting System (DIRS). The use of DIRS by broadcasters is currently optional. The comment period will open after the Notice of Proposed Rulemaking is published in the Federal Register.
- The FCC reviews the contents of stations’ online public files, especially as part of the license renewal process, and continues to fine TV stations for their failure to timely upload quarterly issues/program lists. In a decision released this week, an Alabama television station was fined $9,000 for uploading 5 lists more than one year late, 4 lists between one month and one year late, and 5 lists between one day and one month late, without providing an explanation for the late uploads. (Notice of Apparent Liability for Forfeiture). Broadcasters should remember that their next quarterly issues/programs list should be uploaded to their online public files by October 10.
- The FCC adopted rules that formalize and standardize the national security and law enforcement questions to be answered by broadcast applicants seeking permission for foreign ownership in excess of 25%. The questions will be posted on the FCC website to give applicants advance notice of the information that they must submit. (Report and Order)
September 18, 2021 to September 24, 2021
- At the last minute, the deadline for broadcasters to pay their annual regulatory fees was extended to Monday, September 27, 2021 at 11:59 PM Eastern Time. The deadline had been Friday, September 24. Procrastinators need to file by the new date to avoid the 25% penalty for late-filed fees. (Public Notice) (Fee Filer Website)
- The FCC opened a rulemaking to consider whether unlicensed spectrum users, like large technology companies, should be required to pay annual regulatory fees. It has been argued that these companies receive benefits from FCC regulation and thus should pay fees that offset the FCC’s costs of operation, reducing the fees paid by regulated entities, including broadcasters. Commenters are invited to comment on whether the FCC has the authority to impose such fees and, if so, how such fees should be assessed. Comments are due by October 21 and reply comments are due by November 5. (Federal Register)
- Both the Audio and Video Divisions of the FCC continued to penalize broadcasters for late uploads to their online public inspection files discovered during the license renewal process. One Class A TV station was issued an admonition for failing to timely upload 11 Quarterly Issues Programs Lists to its public file (all uploads were less than a month late). Several other TV stations also received admonitions (admonitions can be considered in assessing penalties for future violations) for violations discovered by the FCC’s staff in their review of stations’ public files. Among the actions taken against radio stations was a consent decree with a Kentucky AM station requiring a $4500 monetary penalty plus the requirement for a compliance plan imposing significant paperwork requirements. The station had not submitted an EEO Program Report with its renewal application and had not uploaded to its public file quarterly issues programs lists during the renewal term.
- The FCC issued rules for Auction 111, which is open to a limited group of applicants for low power TV and TV translator stations. The applicants who can participate in the auction submitted mutually exclusive applications either during a 2009 filing window for new LPTV stations or in a 2018 window for stations displaced by the Incentive Auction. Short-form applications are due between November 1 and November 9, 2021 and bidding begins February 23, 2022. (Public Notice) (Eligible Applicant List)
- We wrote on our Broadcast Law Blog about the effort to bring back the old FCC Form 395-B which required broadcasters to report on the racial and gender make-up of their workforce in various job categories. Comments on the FCC’s Further Notice of Proposed Rulemaking proposing to revive this form are due by September 30 and reply comments are due by November 1. (Broadcast Law Blog)
- Fans of copyright law will enjoy reading our look at the federal court decisions that led to the termination of operations by streaming company Locast which, before the court orders, had been transmitting broadcast TV stations’ programming on the internet without the permission of the stations. (Broadcast Law Blog)
September 11, 2021 to September 17, 2021
- In anticipation of this week’s deadline for payment of annual regulatory fees – 11:59 pm, Eastern Daylight Time on Friday, September 24, 2021 – the FCC’s Media Bureau released a guide to computing the fees due for broadcast stations (Media Bureau Fee Filing Guide) and made available a fee lookup webpage. A separate Fact Sheet on who is regularly exempt from paying these fees (including noncommercial stations and those payors with total obligations of $1000 or less) was also released this week. Read our summary of all of the FCC notices on the procedures and requirements for paying these fees on our Broadcast Law Blog, here.
- The FCC released a draft rulemaking that asks, among other things, whether broadcast stations should be required to report their operational status to the Disaster Information Reporting System (DIRS) when it is activated during an emergency. That reporting is currently voluntary. If the rulemaking is adopted by the FCC, it would ask about the burden that mandatory reporting would place on stations in the middle of an emergency and whether the burden would impede coverage by the station of the emergency, whether the FCC has the legal authority to require reporting, and the penalties that could be tied to a failure to report. The draft will be considered at the FCC’s September 30 regular monthly open meeting. (Draft Notice of Proposed Rulemaking)
- NAB and two other media trade groups are trying to delay the effective date of the FCC’s new rules which require the on-air identification of programs supported by foreign governments (and require research by broadcasters as to whether any buyer of program time is a representative of a foreign government), while the groups pursue a review of the rules in federal court. The groups argue that they are likely to win in court, so implementation of the rules before the court acts would be premature and unnecessarily costly for stations. We mention the foreign government sponsorship identification rules in one of our weekly updates, here and the court case, here. (Petition for Stay)
- A New York federal district court judge issued a permanent injunction blocking Locast from any further operation of its service which had retransmitted on the internet the programming from over-the-air television stations without consent of the stations. The same federal judge two weeks ago ruled that Locast’s operation violated federal copyright law. We noted that decision, here.
- About a hundred organizations wrote Acting FCC Chairwoman Jessica Rosenworcel urging the FCC to formally examine what is claimed to be the agency’s history of systemic racism in its policies and licensing. The letter calls on the FCC to “investigate its own history of anti-Black racism in the policies it has adopted” and to “identify reparative actions it will take to redress the structural racism that exists in our media system due to those FCC policies.” (Letter) This letter comes as some of these issues may be considered in in comments due September 30 on the FCC’s rulemaking on whether to bring back the FCC Form 395, reporting on the racial and gender breakdown of each broadcast station’s workforce, and in the October 1 reply comments on the FCC’s inquiry into potential changes to its multiple ownership rules, including changes to the radio ownership rules, changes opposed by several organizations because of the alleged impact that changes would have on minority ownership (see our blog article here about the FCC inquiry on the ownership rules).
September 4, 2021 to September 10, 2021
- The FCC opened the window for Fiscal Year 2021 regulatory fees which must be paid no later than 11:59 pm, Eastern Daylight Time on September 24, 2021 – a 25% penalty will be attached to late payments (Public Notice). The Media Bureau released a guide to computing the fees due for broadcast stations (Media Bureau Fee Filing Guide). A separate notice on payment procedures was also released by the FCC (Payment Procedures Public Notice). Licensees that want to seek a waiver, deferral, or reduction of their regulatory fees based on financial hardship from the pandemic should review yet another public notice setting out the procedures for such requests. These requests, which are to be submitted by September 24, must include financial documentation demonstrating the hardship of a timely payment. (Public Notice on Fee Waivers)
- The FCC reminded broadcasters of their obligations to file biennial ownership reports this year. The window to file these reports opens on October 1 and closes on December 1 (Public Notice). To help broadcasters prepare for filing their biennial ownership reports, the FCC will present an online information session on October 5, 2021 at 2:00 PM EDT, which will include the opportunity for questions from online attendees. The session is designed to help both novice and experienced filers. It will be streamed live from the FCC’s web page at www.fcc.gov/live and the FCC’s YouTube page at https://www.youtube.com/user/fccdotgovvideo (where it will also be available for later viewing). )
- The FCC is seeking comment on the accessibility to children with disabilities of children’s educational and informational television programming. Specifically, the agency wants to gather information on the extent to which short-form programming and regularly scheduled weekly programming aired on multicast streams is closed captioned and/or audio described, including on multicast channels like PBS KIDS. Comments are due October 7, and reply comments are due November 8. (Public Notice)
- The Incentive Auction Task Force reminded phase 0-5 repacked full power and Class A TV stations that they must submit all remaining invoices for reimbursement from the TV Broadcaster Relocation Fund by October 8, 2021. The deadlines to submit all remaining invoices and initiate interim close-out procedures for phase 6-10 repacked stations is March 22, 2022, and the deadline is September 5, 2022 for all eligible MVPDs, FM stations, and LPTV/translator stations that intend to seek reimbursement. (Public Notice)
- The FCC released the tentative agenda for its September public open meeting to be held on September 30 (Agenda). The agenda includes the proposed adoption of a Notice of Proposed Rulemaking seeking comments on standardized questions to be asked of foreign entities seeking to acquire interests in US communications facilities, including interests in broadcast stations, which require approval of the FCC or other government agencies (Factsheet and Draft Notice of Proposed Rulemaking)
A Low Power FM station entered into a consent decree for violating the FCC’s underwriting rules. LPFM stations are all licensed as noncommercial educational broadcasters and cannot run commercials. The consent decree includes a $17,500 fine and requires that the licensee adopt a compliance plan to prevent future violations. The station was also granted a short-term, four-year license renewal instead of the normal eight-year renewal. This action began with a complaint from a commercial station which argued that the LPFM station routinely aired commercial advertisements and had failed to air educational content. The Media Bureau rejected the educational content argument, noting that the FCC has long recognized that licensees are entitled to broad discretion in the scheduling, selection, and presentation of programming; but found that many of the underwriting announcements were too promotional leading to the fine and other penalties. (Consent Decree)
August 28, 2021 to September 3, 2021
- In a significant win for television broadcasters, a federal district court in New York determined that the nonprofit company Locast, which was retransmitting to viewers via the Internet local television stations without permission of the stations and without compensating them, was not entitled to rely on an exception in copyright law that allows nonprofit entities to retransmit copyrighted material without permission. One of the requirements to qualify for the exception is that the nonprofit that is retransmitting the signal do so without charge to the consumer other than a reasonable amount to cover its costs of maintaining and operating the service. The Judge found that Locast was receiving revenues from viewers which exceeded its costs of operation, and thus he concluded that Locast could not rely on this exception. After the release of the decision, the company shut down its operations, though an appeal of the decision may be filed. (Decision)
- For radio broadcasters, the full decision of the Copyright Royalty Board setting webcasting streaming royalty rates to be paid to SoundExchange for the period 2021-2025 was released, redacting confidential business information submitted as evidence by the parties (CRB Decision). We wrote about the decision here when the rates were initially announced, explaining how the royalty rates will increase from those that were in effect through 2020. The decision can be appealed to the US Court of Appeals but will become effective while any appeal is pending.
- Comments and reply comments will be due September 30, 2021 and November 1, 2021, respectively, in connection with the FCC’s Further Notice of Proposed Rulemaking that seeks comment on reviving the FCC’s collection of data from broadcasters via Form 395-B which would require periodic reporting on the racial and gender characteristics of a station’s workforce. (Public Notice)
- Eighteen television stations that were fined $512,228 each for violations of the good faith negotiation requirements of the FCC’s retransmission consent rules have petitioned the agency to reconsider its decision upholding the fines. The TV stations make, among others, a constitutional argument saying, in effect, that the stations could not have had notice that such large fines were possible, because the FCC had never fined a station for violation of the good faith negotiation requirement of the retransmission consent rules. For more background on the earlier stages of this proceeding, see our blog posts here and here. (Petition)
- With about a month to go until broadcasters can start filling out their biennial ownership reports, the FCC released its report on broadcast station ownership as of October 1, 2019 as compiled from the last set of biennial reports. The Report provides a breakdown of the race and gender of broadcast station owners – information compiled from the 2019 biennial reports. (Report)
August 21, 2021 to August 27, 2021
- On Friday, the FCC released its decision setting 2021 annual regulatory fees. In a win for broadcasters, the NAB and other broadcast groups convinced the FCC to lower the broadcast fees that the FCC had initially proposed, avoiding a proposed significant increase in the fees on radio. As was the case last year, stations that can show that COVID significantly affected their finances may qualify to pay their fees over time, rather than in the lump sum that will be due before October 1. The FCC will release a Public Notice in the next few days announcing the window during which broadcasters are to pay their fees. (Report and Order)
- The FCC’s Media Bureau continues to scrutinize television license renewals. This week, the Bureau announced that a South Carolina TV station faces a $3,000 fine for uploading four quarterly issues/programs lists more than one year late and three lists between one month and one year late. The violations were discovered during the FCC staff’s review of the stations’ public files for license renewal. (Notice of Apparently Liability for Forfeiture) It also admonished a Mississippi TV station for uploading two lists between one month and one year late, and eight lists between one day and one month late. (Letter)
- In our weekly update last week, we noted a proposed $3500 fine on a broadcaster who had completed construction of a new FM translator and commenced its operations, but forgot to timely file a license application informing the FCC of the completion of construction in accordance with the translator’s construction permit. Showing that this fine is now a standard in similar cases, the FCC issued four more decisions this week imposing similar penalties (here, here, here and here). These decisions remind broadcasters who are building new technical facilities authorized by an FCC construction permit to file a license application before the construction deadline showing that they have timely constructed the station as authorized by their permit.
- Flo & Eddie, leaders of the 1960s band the Turtles, were again rejected—this time by a federal appeals court in California—in their latest attempt to get a court to recognize a right to receive royalties for the public performance of pre-1972 sound recordings. The case had implications for broadcasters, as a contrary decision could have recognized a state-based performance royalty that could have applied to over-the-air radio and to anyone else who played these oldies in public in California. (Opinion). Watch for an article with more details on this decision later this week on our Broadcast Law Blog.
- Visit the Broadcast Law Blog on Monday afternoon for our monthly feature on important September regulatory dates and deadlines for broadcasters.
August 14, 2021 to August 20, 2021
- Two Federal Register notices set dates for changes to the FCC’s EAS rules. We wrote about these issues here and here.
- One notice set an effective date of September 20, 2021for rule changes expanding FEMA’s ability to send emergency alerts during national emergencies and requesting that States that don’t have effective State Emergency Communications Committees (SECC) activate one. Other rules changes adopted at the same time will take effect after further Paperwork Reduction Act review and approval. These include rule changes allowing government entities to report false EAS alerts to the FCC, requiring submission of State EAS plans to the FCC for its review, requesting annual updates to State EAS plans, and mandating annual SECC meetings. (Federal Register)
- A second Federal Register notice announced that the FCC will accept comments through October 19 and reply comments through November 18 on several other EAS changes, including whether to delete, redefine, or replace certain EAS codes that are no longer relevant or may cause confusion, and whether to update EAS to support “persistent” alerts that continue to be transmitted through EAS for the duration of an emergency involving possible loss of life.
- The FCC proposed a $3,500 fine against the licensee of a new Oklahoma FM translator for its failure to file a license application and for its subsequent unlicensed operation after the completion of its construction. As a reminder, when you have a construction permit for a new station and complete construction, you need to file with the FCC a license application certifying that construction was compete in the manner set out in the permit – for translators, before commencing operations. (Notice of Apparent Liability)
- Two radio stations entered into consent decrees with the FCC over their failure to comply with the FCC’s online public file rules and, in one case, failure to file biennial ownership reports. In the first case, a commercial station appears to have failed to upload any quarterly issues/programs lists. (Georgia Consent Decree) In the second case, a noncommercial station appears to have not uploaded any quarterly issues/programs lists or filed any biennial ownership reports for the entirety of its license period. (Montana Consent Decree). In each case, the consent decrees impose reporting conditions and other paperwork requirements so that the FCC can more closely supervise the operations of the stations in the future. These decisions are another reminder that you need to be sure your station’s online public file is complete and accurate, as the FCC will scrutinize it when it processes your license renewal application.
- The FCC issued a Public Notice setting out a dispute resolution process for the reimbursement due to C-band satellite dish operators by the satellite companies for costs the dish operators incur as a result of the partial repurposing of the C-band so that it can be used by wireless carriers. This notice should serve as a reminder that the transition deadline for C-Band operators in Phase I markets is December 5, 2021 (Phase 1 stations are located in Partial Economic Areas 1-50, except stations in the Washington, DC area and certain counties in Georgia, Colorado, and Hawaii – see a PEA list here). By that date, C-band earth stations in Phase I markets need to install filters or make other changes to avoid interference from the new wireless users. The transition deadline for the remaining markets is December 5, 2023.
- In the last two weeks, the FCC’s reimbursement coordinator, RPC, has begun emailing entities holding C-band earth station authorizations, alerting them that RPC has begun to accept claims for C-band transition reimbursements, including for lump sum payments. To be reimbursed, C-band operators need to set up an account in RPC’s Coupa payment system. See RPC’s site here for a flow chart of the reimbursement process plus information on setting up an account and on dispute resolution. When RPC will begin paying out the reimbursements is, at this point, still not known.
- On our Broadcast Law Blog, we this week summarized recently introduced legislation to bring back the minority tax certificate which, if adopted, would allow the seller of a broadcast station to defer any gains from the sale if the buyer is controlled by women or members of socially disadvantaged groups. (Broadcast Law Blog article)
August 7, 2021 to August 13, 2021
- The FCC and FEMA conducted their annual Nationwide Test of the EAS system on Wednesday, August 11. All broadcasters should have submitted “day of” test results in the FCC’s ETRS system by Thursday, August 12, and are required to provide more detailed information about the test results in ETRS Form Three due by September 27, 2021. (FEMA/FCC Announcement)
- The FCC this week announced the close of Auction 109, which offered for sale construction permits for 139 new radio stations – 4 AM stations in the St. Louis area whose licenses were surrendered by the prior licensee, and 135 new FM channels. 97 of the channels were sold but 42, including the AM stations, went unsold. The FCC’s announcement also sets post-auction deadlines for winning bidders to submit their payments and long-form applications for the channels that they won. The full auction results can be seen on the FCC’s auction site here. The FCC will raise $12,344,110 from the auction – though over $9,000,000 of that is to be paid for two channels – over $6 million for a Sacramento FM and over $3 million for an FM to be licensed to a community just north of the Dallas metro. (Public Notice of Closing of Auction and post-auction deadlines). See our Broadcast Law Blog article here about the implications of the large number of unsold channels.
- The FCC issued a Public Notice reminding all full-power and Class A TV stations that were repacked in Phases 1 through 5 of the post-incentive auction repacking of the TV band (and repacked stations that were granted permission to transition prior to Phase 1) that they must submit all remaining invoices for reimbursement from the TV Broadcaster Relocation Fund no later than October 8, 2021. The remaining full-power stations must submit their reimbursement requests by March 22, 2022, with others eligible to receive repacking funds (LPTV and TV translator stations as well as radio and MVPD claimants) needing to submit their reimbursement requests by September 5, 2022. (Public Notice)
- Bills were introduced in both the House of Representatives and the Senate seeking to bring back the minority tax certificate, providing a deferral of taxable gain to the seller of a broadcast station who sells their station to a buyer controlled by “socially disadvantaged individuals.” These individuals are defined as women and members of groups that have been subject to racial or ethnic prejudice or cultural bias – such groups to be defined by FCC rulemaking. (Press Release). See our article here for more information about the background of the tax certificate.
- The National Association of Broadcasters (NAB), the Multicultural Media, Telecom and Internet Council (MMTC), and the National Association of Black Owned Broadcasters (NABOB) filed a petition with the US Court of Appeals seeking review of recently adopted FCC rules which these groups argue impose unnecessary burdens on broadcasters to conduct inquiries about any entity that leases program time on broadcast stations to see if the entity must be identified on the air as a representative of a foreign government. (Press Release and Petition)
- The FCC issued notices of violations to the operator of two FM translators that were operating with unmodulated signals at times when their primary station was silent. (sample Notice of Violation). These notices remind FM translator operators that their stations must shut down if they do not receive a signal on their input channel.
- We alerted website owners to a recent court decision suggesting that embedding pictures or video hosted by a social media site on their website without permission of the copyright owner may not excuse the website from liability for copyright infringement. Old court decisions that suggest that no liability would arise unless the copyrighted content is hosted on the server controlled by the website owner may no longer be good law. In the recent court decision, the judge found that, if a website viewer would assume that a picture or video has been provided by the website owner, that owner should get permission of the copyright owner before displaying the content on their site. (Broadcast Law Blog article)
July 31, 2021 to August 6, 2021
- In the run-up to the August 11 National EAS Test, the FCC released a Public Notice reminding broadcasters to ensure their EAS equipment is all updated, their EAS equipment can receive and process the National Periodic Test code (the “six zeroes” national location code), and their equipment is configured for the monitoring assignments designated in their State EAS Plans. This year’s test will not be distributed over the internet using IPAWS but will instead use traditional broadcast distribution, which will cause the aural and visual messages received by TV viewers to not be identical. Stations must file EAS Form Two “day of test” information by August 12 and EAS Form Three with post-test data by September 27. (Public Notice)
- In other EAS news, the FCC Enforcement Bureau proposed a $20,000 fine against ESPN for alleged violation of the FCC rules that prohibit the transmission of false or deceptive EAS tones. In an episode of 30 for 30, the tones were heard briefly during the dramatic depiction of a severe weather event, though ESPN said the tones could not have triggered any automated relay equipment. This is another reminder that the FCC prohibits use of EAS tones – real or simulated – not tied to an actual emergency or test. (ESPN NALF)
- Nearly 200 radio and TV stations have been randomly selected by the FCC for an audit of their compliance with the FCC’s EEO rules. Station employment units (i.e., commonly owned stations serving the same area) with five or more full-time employees are required to provide to the FCC (by posting the information in their online public inspection file) their EEO Annual Public File reports for the last two years, as well as backup data showing that the station did everything that was required under the EEO rules. Station employment units exempt from EEO reporting (i.e., they employ fewer than five full-time employees) still need to respond to the audit, though with much less paperwork. The deadline for posting audit information in the public file is September 20. We wrote, here, about EEO audits and rules after the first round was announced in February. (Audit Letter and Station list)
- The FCC’s Media Bureau is seeking comment on a petition filed by the four major networks affiliates’ association regarding recently adopted rules that require broadcasters make specific sponsorship identification disclosures about programming blocks purchased by a foreign government or their representatives, and to take steps to assess if parties leasing airtime on a station requires such disclosures. The affiliates are concerned that the new rules might be read to apply to common forms of broadcast advertising and asked the FCC to clarify that these rules do not apply when a station sells time to advertisers in the normal course of business, no matter the length of the advertisement. The Media Bureau encouraged commenters that agree with the affiliates’ position “to provide objective criteria that could distinguish between advertising and arrangements for the lease of airtime” and “to articulate specific characteristics that might distinguish what they consider to be advertising from a lease of airtime on a station, such as duration, content, editorial control, or differences in the nature of the contractual relationship between the third-party and the station.” Comments on the petition are due by September 2, 2021, with reply comments due by September 17, 2021. (Public Notice) (Petition).
- Two Class A TV stations face fines of $15,000 and $20,000 for failing to timely upload a significant number of quarterly issues/programs lists to their public file. These notices are reminders that the FCC scrutinizes public files as part of its evaluation of a station’s license renewal application and that stations need to stay on top of their upload deadlines if they want to avoid these penalties. Issues/programs lists are the only FCC-required documents that demonstrate a station’s public service to its community. See the letters here and here.
- The FCC voted to begin a rulemaking that proposes two updates to the political broadcasting rules. The first proposal would add use of social media and creation of a campaign website as factors to consider when determining if a write-in candidate has made a “substantial showing” of a bona fide campaign for office so that they can be considered a “legally qualified candidate.” The second proposal would update the political file recordkeeping rules to require that stations upload to their political files any request for advertising time that “communicates a message relating to any political matter of national importance” (i.e., federal issue ads). Comments and reply comments will be due 30 days and 45 days, respectively, after publication of the item in the Federal Register. We wrote more about the proposals, here. (Notice of Proposed Rulemaking)
- The comment period has been set for interested parties who want to weigh in on several technical changes the FCC has proposed making to its rules for radio. Read the Notice of Proposed Rulemaking, here, and have your comments and reply comments in by September 7 and September 20, respectively. (Federal Register)
- Auction 109 for new broadcast stations has ended, with construction permits for nearly 100 new FM stations being sold. The four St. Louis-area AM licenses received no bids. See the list of winning bidders, here.
- Keep an eye on Capitol Hill, where bills were recently introduced in the House and Senate that are designed to support local media in the face of more advertising dollars migrating to digital media. If this proposal was to become law, a tax credit of up to $5,000 would be available to small business advertisers who place advertising in either a local newspaper or on a local broadcast station. Local media outlets could also receive tax credits of up to $12,500 for hiring a local journalist. We wrote about the bills, here. (House Bill) (Senate Bill)
July 24, 2021 to July 30, 2021
- The FCC wants to refresh the record on its collection of information about the race and gender of broadcast employees. This information was once collected from all broadcasters on an annual FCC Form 395 until use of that form was suspended by Court action in 2001 as it was seen as constitutionally suspect since its information was used to penalize broadcasters whose workforce profile did not match the racial and gender characteristics of their service area. The proposal released last week asks interested parties to weigh in on reviving the collection of the data and whether the FCC should keep it confidential or otherwise anonymize it once collected. The proposal also asked for comment on whether certain racial classifications need to be updated to align with current Equal Employment Opportunity Commission classifications, and for any other comments on the reviving the collection of this employee information. Read the Further Notice of Proposed Rulemaking for more details and watch the Federal Register for comment and reply comment deadlines. (Further Notice of Proposed Rulemaking)
- The FCC’s Office of Economics and Analytics released two letters, in which it referred to the Enforcement Bureau for possible enforcement action, an apparent violation of the Prohibited Communications Rule disclosed by two applicants in Auction 109, the auction of AM and FM construction permits that began last week. If you are ever involved in an FCC auction, take note of the Prohibited Communications Rule that prohibits communications among parties to an auction related to bidding amounts or bidding strategies once auction applications are filed. (Letter)
- In an Order that was heavily redacted to protect confidential business information, the FCC affirmed its decision to fine 18 television stations $512,228 each for violations of the good faith negotiation requirements of the FCC’s retransmission consent rules. The FCC found that the stations shared a consultant who failed to negotiate in good faith with AT&T while negotiating for carriage on DirecTV. Among other things, the consultant was found to have refused to negotiate carriage with AT&T for the 18 stations until AT&T agreed to a retransmission deal with another station group represented by the consultant. Read the full decision for more details and read our blog post about the case when the fines were first proposed. (Forfeiture Order)
July 17, 2021 to July 23, 2021
- The four television network affiliates groups have asked the FCC to clarify its new rules for sponsorship identification of programming paid for or produced by foreign governments or their representatives. The new rules require broadcasters to inquire of any party purchasing program time as to whether they are representatives of foreign governments, and to confirm the response by searching a database maintained by the Department of Justice of companies that are representatives of a foreign government. The FCC provided an exception to the requirements of the enhanced sponsorship identification and the investigation into the foreign connections of the programming buyer for “traditional short-form advertising.” The affiliate groups want the FCC to clarify that the new rules do not apply to advertising regardless of its length. (Affiliate Groups Petition). These rules are also being reviewed under the Paperwork Reduction Act, and a Federal Register publication this week sets a September 20 deadline for interested parties to file comments on the information collection requirements imposed by these rules. (Federal Register)
- The FCC released a Public Notice this week with more information on how to apply for new reserved-band noncommercial educational FM stations during the November 2-9 filing window. Applicants may file or hold attributable interests in up to ten applications. Other requirements set out by the Media Bureau include that applicants must certify that (1) they are an entity qualified to hold a noncommercial educational FM license (nonprofit educational institution, governmental entity, or nonprofit educational organization); (2) the entity has the financial ability to build the new station and run it for at least three months; and (3) the entity has reasonable assurance that its specified transmitter site will be available for the construction and operation of the proposed station. The FCC also will impose a freeze on certain FM minor change applications from October 5 through November 9 to stabilize the FM database while potential applicants prepare their applications. (Public Notice)
- President Biden has nominated Jonathan Kanter to be chief of the Department of Justice’s antitrust division. The division examines transactions and mergers that could affect competition in the marketplace. The antitrust division has in the past provided opinions as to what competitors are part of the broadcast marketplace (thus far not fully acknowledging that digital media is in the same competitive market as broadcasters leading to challenges to some broadcast mergers). It also oversees the long-standing ASCAP and BMI consent decrees that have been reviewed by the last two administrations. (White House Nomination)
- In a slight change from what was previously published in the Federal Register, the FCC’s Public Safety and Homeland Security Bureau released a Public Notice indicating that the deadline for filing State EAS Plans and for complying with the content requirements for the plans is now July 5, 2022, not July 1, 2022. The content requirements can be found in the FCC’s rules, here. (Public Notice)
- A review of certain FCC’s EEO policies has been removed after five months from the list of items being considered by FCC Commissioners. This may mean that the item has been adopted by a majority of the Commissioners and will be released within the next few days. Watch the FCC website for more on the contents of the item.
July 10, 2021 to July 16, 2021
- The FCC’s Video Division of its Media Bureau has begun to release decisions on TV license renewal applications filed in the renewal windows beginning last June that have been held up for public file deficiencies. For the first time since the pandemic started, proposed fines were announced for untimely uploads of documents to an online public file. The Video Division proposed fines of $9000 to two noncommercial Virginia TV stations – one of which uploaded four quarterly issues/programs lists over a year late and three others less than a month late; the other station was more than a year late with five lists and had another that was uploaded less than a month late. (Notice of Apparent Liability). Two other Virginia noncommercial TV stations were admonished by the Video Division for lesser delays in uploading quarterly issues/programs lists, problems apparently caught by FCC staff in reviewing the public files after the filing of the stations’ license renewal applications. (Admonishment Letter Example) These actions highlight the importance that the Commission places on timely uploads of documents to broadcasters’ online public files generally, and on the quarterly issues/programs lists in particular (see our article on the importance of such lists, here).
- New FCC application fees became effective on July 15, and the FCC released a Guide to the new fees for entities regulated by the Media Bureau. Many common applications, like applications for license renewal, assignment, transfer of control, and special temporary authority, now cost more to file. Biennial ownership reports, which will be filed later this year, will cost $15 more to file than they did during the 2019 filing cycle. FM translator minor changes will, for the first time, carry fees. The fee adjustments are meant to reflect the legal, engineering, and supervisory resources used in reviewing an application. (Fee Filing Guide)
- The FCC released a proposal to update certain rules dealing with political advertising to make them consistent with common practice in the regulation of such advertising. The first proposal would formally add use of social media and creation of a campaign website to the factors to consider when determining if a write-in candidate has made a “substantial showing” of a bona fide campaign for office so that they can be considered a “legally qualified candidate.” Legally qualified candidates, even write-ins who have made this substantial showing, are entitled to all the protections of the Commission’s political rules, including equal opportunities, lowest unit rates and, for candidates for federal office, reasonable access to buy advertising time on commercial broadcast stations. Looking at the online activities of an alleged candidate has already been part of the evaluation of whether write-in candidates have made a substantial showing of a “bona fide candidacy” – one demonstrating that the write-in candidate was conducting a serious campaign for office entitling them to the protections of the political rules. The second proposal would update the political file recordkeeping rules to require that stations upload to their political files any request for advertising time that “communicates a message relating to any political matter of national importance” (i.e., federal issue ads) – a requirement that was imposed by statute almost two decades ago but never reflected in the FCC rules. The Notice of Proposed Rulemaking containing these updates is to be considered at the Commission’s regular monthly open meeting to be held on August 5. If adopted, comments on the proposals will be due after Federal Register publication. (Draft NPRM)
- At the request of several industry parties, the Media Bureau gave interested parties more time to file comments and reply comments to refresh the record in the 2018 Quadrennial Review of media ownership, which includes proposals for relaxation of the local radio ownership rules. Comments will now be due September 2, 2021 with reply comments due October 1, 2021. We wrote in more depth about this quadrennial review, here. (Public Notice)
- The FCC adopted a Notice of Proposed Rulemaking that proposes updates and changes to, or elimination of, several broadcast radio technical rules. Comments will be due 30 days after publication in the Federal Register, with reply comments due 45 days after Federal Register publication. (NPRM)
- The FCC released its accounting of broadcast station totals as of June 30, showing a slight decrease in full-power radio stations and a slight increase in translators and boosters over the totals released in early April. (Station Totals)
July 3, 2021 to July 9, 2021
- This week all but ends analog television operations in the US. The FCC’s Media Bureau reminded all low power television and television translator stations that their digital transition must take place by Tuesday, July 13, 2021. By that date, LPTV and translator stations must terminate all analog television operations. All permittees and licensees with a July 13, 2021 expiration date on their digital construction permits must complete construction of their new facilities by that date or their license or permit will be automatically cancelled unless they have received an extension from the FCC giving them more time to construct these digital facilities. If your operations are affected by the transition deadline, read the Public Notice for more details. (Public Notice)
- Revised fees for broadcast applications will take effect July 15. As we noted in early January when the fees were adopted, they were adjusted to reflect the FCC’s estimation of the amount of legal, engineering, and supervisory resources spent on reviewing an application. One of the changes was that FM translator minor modifications will now, for the first time, require a fee. (Public Notice)
- The FCC proposed a fine of $518,283 to Gray Television for allegedly violating the FCC’s rule that prohibits ownership of two top-four TV stations in a market. Gray was already the licensee of the NBC affiliate in Anchorage when it purchased the CBS affiliation agreement from another station and moved that affiliation to another Gray station, which resulted in the company owning two of the top-four stations in the Anchorage market. The Commission went through a detailed analysis of its 2016 rulemaking that clarified its rules on combinations of Top 4 stations to justify its conclusion that the transaction in this case was prohibited. The amount of the proposed fine is an indication of the seriousness with which the FCC regards violations of its ownership rules. (Notice of Apparent Liability for Forfeiture)
- An auction of LPTV construction permits in 17 markets is on the horizon. A Public Notice released on Friday asked for comments on the rules that will govern the auction to be held among mutually exclusive applicants for these 17 channels. These applicants had not been able to resolve their conflicts when previously given the chance by the Commission (though the Notice indicates that there will be another potential for settlements before the auction). The applications that will be involved in this auction were initially filed in 2009. (Public Notice)(List of channels and mutually exclusive applicants).
- Wireless microphone company Shure has asked the FCC to reconsider its 2020 decision to expand white space device use in portions of the TV band (channels 2-35). Shure takes issue with an FCC decision on white space devices that Shure contends will limit opportunities for wireless microphones and suggests that the relaxed rules on these white space devices apply only in rural areas with less spectrum congestion. Comments will be due within 15 days of publication of this week’s Public Notice of the filing of this petition in the Federal Register, but interested parties can read the petition now and start developing their comments. (Public Notice)
- The Media Bureau gave notice that the licenses of eleven Texas radio stations that did not timely file a license renewal application will be cancelled on August 1 if they do not file a renewal by that date. In recent months, the FCC fined stations that had, like these stations, filed late renewals only after an FCC reminder that they had missed the license renewal filing deadline in their state. This notice serves to remind radio stations in California and TV stations in Illinois and Wisconsin that they should be preparing now to file their license renewal applications on or before August 2. We wrote more about preparing for license renewal, here. (Public Notice)
- Prompted by dissenting opinions released this month by two Supreme Court Justices, last week we wrote on our Broadcast Law Blog about a growing debate on changes to the law governing liability for defamation of public figures, and the impact that any change would have on broadcasters in connection with their news and political sales operations. (Blog)
June 26, 2021 to July 2, 2021
- The FCC this week reminded television broadcasters of their obligation to make televised emergency information accessible to persons with disabilities. Specific reminders include that emergency information provided visually during any newscast must also be conveyed verbally, and emergency information provided in the audio portion of programming must be provided on screen visually. In addition, emergency information provided visually (e.g., through crawls) during non-news programming must be provided aurally on a station’s secondary audio program (SAP) channel. Examples of the types of emergencies covered by the rule include pandemics, extreme weather, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, and other actionable information arising from such conditions. (Public Notice) (Broadcast Law Blog)
- Though it is mid-way through 2021, the FCC is reopening the comment period in the 2018 Quadrennial Review proceeding on media ownership. It wants to refresh the docket in which initial comments were filed in mid-2019. The issue in the proceeding likely to have the broadest impact is the consideration of possible changes to the local radio ownership rules. The FCC seeks, among other information, updates on developments in the marketplace since the initial comments were submitted. In particular, parties should address the impact of digital competition, including issues of access to and use of broadband, and how it should factor into revisions of the media ownership rules. We wrote more about the 2018 Quadrennial Review, here. Comments will be due Monday, August 2, 2021, and reply comments will be due Monday, August 30, 2021. (Federal Register)(Broadcast Law Blog)
- June 30 was the effective date of the reinstatement of the 2017 FCC ownership rule changes following their being upheld by the Supreme Court’s Prometheus Radio decision. The Newspaper/Broadcast Cross-Ownership Rule, the Radio/Television Cross-Ownership Rule, and the Television Joint Sales Agreement Attribution policy have been eliminated, as was the rule that required eight independently operated stations in a market to remain after the combination of any two TV stations in that market. We wrote in depth about the Court’s decision, here. (Public Notice)
- With four months remaining in the 2021 election cycle, remember that the FCC’s political broadcasting rules apply even in odd-year elections. Federal candidates (like those running in this year’s special House elections) are entitled to reasonable access and equal opportunities once the candidates become legally qualified. State and local candidates are not entitled to reasonable access but are entitled to both equal opportunities and lowest unit rates. See our article here for more on these requirements. Lowest unit charges apply during the political window that opens on July 16 for the upcoming California gubernatorial recall election to be held on September 14. The political window opens on September 3 for the November 2 general election. See our 2020 political broadcasting guide for more information on the political broadcasting rules and answers to common questions.
- The FCC released the final list of bidders that qualified to participate in Auction 109, the upcoming auction of AM and FM construction permits scheduled to begin on July 27, 2021. Of the 158 applicants, 114 were deemed qualified to bid during the auction. An upstate New York construction permit that had been offered was removed from the auction. See the Public Notice for more auction details. (List of Qualified Bidders) (List of Disqualified Bidders)
- A Federal Register notice last week reminds State Emergency Communications Committees that they have one year—by July 1, 2022—to upload to the FCC’s Alert Reporting System their state EAS plan. State EAS plans must describe state and local EAS operations and contain guidelines that must be followed to activate the EAS. (Federal Register)
- On the legislative front this week, Sen. Ron Wyden (D-OR) introduced a media shield bill that seeks to protect journalists from having to disclose a source’s identity unless the information is necessary to prevent an act of terrorism against the United States (and to catch the perpetrator of such an act) or to prevent other imminent violence, significant bodily harm, or death. The bill also seeks to shield journalists’ communications from being secretly obtained by the federal government. Many states have media shield laws in place, but those laws do not reach actions by the federal government. (PRESS Act)
June 19, 2021 to June 25, 2021
- Congressmen Ted Deutch (D-FL) and Darrell Issa (R-CA) introduced the American Music Fairness Act which would impose a royalty payable to SoundExchange on over-the-air broadcasts by radio stations. The money collected would be paid to performing artists and record labels. This new royalty would be in addition to the royalties paid by radio stations to composers and publishing companies through ASCAP, BMI, SESAC and GMR. While the proposal would impose relatively low flat fees on small commercial and noncommercial stations, those reduced fees disappear if the station has revenues of more than $1.5 million or if it is co-owned with stations with revenues of $10 million or more. Other rates would be set by the Copyright Royalty Board. (Press Release) The NAB has already stated its opposition to the bill, but the introduction of the bill is bound to spur debate on this issue. Watch for more details about this legislative proposal in our Broadcast Law Blog this week.
- The FCC’s International Bureau released its most recent list of earth stations operating in the C-Band. The updated list (see a PDF version here and an Excel version here) reflects a variety of changes to earth station registrations, including address or coordinate corrections, registration/licensee name changes due to sales or other transfers, and the removal of earth stations that were reportedly inactive and unresponsive to FCC inquiries about their status. Review the list to make sure that any earth station that you operate is included and that all of the details of its operations are correct. (Public Notice)
- The Media Bureau reminded broadcast licensees that Biennial Ownership Reports are due again this year. Between October 1 and December 1, stations must file a biennial ownership report that details who owns, controls, and operates their broadcast station or stations. (Public Notice)
- The FCC released the items to be considered at its regular monthly open meeting to be held on July 13. Just one broadcast item made it on the agenda – a proposal to clean up a few technical rules that apply to radio stations. If adopted, the public will have the opportunity to submit comments on proposed changes to certain radio rules that the FCC considers outdated, redundant, or unnecessary. Read the draft notice to see if any of the proposals affect your operations. (Draft Notice of Proposed Rulemaking)
June 12, 2021 to June 18, 2021
- The FCC this week adopted revisions to certain EAS rules. Among other actions, the new rules (1) will change the name of Presidential alerts to “National Alerts” which can be originated not only by the President but also by the FEMA Director (and noted that these alerts need not be directed to the whole country but can also be sent regionally), (2) set out new requirements for State Emergency Communications Committees to require regular meetings and the filing and review by the FCC of state EAS plans (which will now be kept confidential for security reasons), and (3) allow reporting to the FCC of false EAS alerts not only by broadcasters themselves, but also by local, state and national officials (and encourages the reporting not just of alerts broadcast when there was no emergency, but also of emergency alerts broadcast in a location where they would not be relevant, e.g. an alert about a New York snowstorm broadcast on an Arizona station). We wrote about some of these changes before they were adopted, here.
- The FCC also opened a proceeding which seeks comment on several EAS changes suggested by FEMA, including whether to delete, redefine, or replace certain EAS codes that are no longer relevant or may cause confusion, and whether to update EAS to support “persistent” alerts that continue to be transmitted through EAS as long as an emergency that could lead to loss of life lasts. (News Release) (Order). Separately, the FCC continues to consider whether to expand the requirement for EAS alerts to streaming services.
- The 2021 version of the FCC’s Emergency Alert System Operating Handbook is now available, replacing the 2017 version. FCC rules require that a copy of the Handbook be maintained by stations and be immediately available to staff responsible for authenticating messages and initiating actions. Download the Handbook, here. As part of the preparations for the upcoming August nationwide EAS test, the FCC has reminded stations of their obligation to download this new version of the Handbook. See our article here for more on the upcoming test.
- The FCC denied two petitions asking it to reconsider its 2020 order adopting changes to certain technical rules for low-power FM stations. The Order rejected a request to increase maximum LPFM power to 250 watts as well as requests to do away with the requirements for directional antenna proofs and that LPFM transmitters be type-accepted. (Order). The proposal for the 250-watt power increase has already been revived in a more recent proposal currently under review by the FCC. See our article here. Comments on that new proposal are due on June 21.
- The FCC published its final rules on sponsorship identification requirements for foreign government-provided programming. The new rules adopt specific disclosure requirements for broadcast programming that is sponsored, paid for, or provided by a foreign government or its representative pursuant to program “leasing agreements.” While this publication means that the rule changes will be effective next month, the changes will not be enforced until approved by the Office of Management and Budget after a Paperwork Reduction Act review, at which time a date for required compliance will be announced by the FCC. (Federal Register). These rules will have an impact on any broadcast station that sells any blocks of program time to third parties, as stations will be required to check the Foreign Agents Registration Act database maintained by the Department of Justice to be sure that every broker is not a representative of a foreign government – even if you know the broker, the database must be consulted.
- There is a new program to address the Homework Gap through which schools and libraries can receive federal funds to buy equipment that allows students, teachers, and library users to receive broadband transmissions of educational content. Funding for equipment to receive educational content transmitted by public television station through datacasting may be available where there are no other broadband Internet options for delivery of that content. The window for requesting funds opens for applications on June 29 for a 45-day period. Though public TV stations apparently cannot themselves apply for funding, they may be able to partner with schools and libraries eligible for funding. (News Release) A June 25 webinar will explain the program. Check with your counsel to determine if there may be opportunities for your station.
June 5, 2021 to June 11, 2021
- The Copyright Royalty Board (CRB) released its long-awaited decision on streaming royalties for 2021-2025, finding that the rates applicable to both broadcasters that simulcast their over-the-air signals on the internet and other non-interactive webcasters will go up. The per performance (per song, per listener) royalty rate increases to $.0021 for non-subscription streams, up from the current $.0018. In another change, the minimum per-channel fee is going up to $1,000 for each channel that is streamed (from $500). For each entity that is relying on this compulsory license, their maximum aggregate per-channel minimum fee is $100,000 (up from $50,000). That means that, each January, a company relying on this license will have to pay $1,000 per channel that they stream up to the maximum $100,000. These yearly up-front payments will be credited against actual usage fees, which are paid monthly. Nonprofit webcasters will be subject to the same minimum per-channel fees. However, a webcaster that is a nonprofit entity is permitted to stream on any channel up to 159,140 aggregate tuning hours per month for the yearly $1,000 minimum. That permits a nonprofit webcaster to average approximately 200 simultaneous listeners on a channel before having to pay for streaming at the commercial per performance rate. Webcasters who are affiliated with the Corporation for Public Broadcasting are not subject to these fees, as CPB has negotiated a separate blanket license that covers its affiliates. Payments under these new rates will likely be retroactive to January 1 of this year. (Rate Determination) Look for more details on this decision on the Broadcast Law Blog on Monday.
- Broadcasters can mark August 11 in pen on their calendars as the date of the next National EAS Test. After cancellation of last year’s test due to the pandemic, an FCC public notice this week confirmed the date and provided more details. The test will be held on August 11, 2021, at 2:20 p.m. EDT, with a backup date of August 25, 2021. Broadcasters are reminded to renew their information in the EAS Test Reporting System (ETRS) by July 6, 2021. To test alerting capabilities in the event of a widespread internet failure, the test will be distributed to broadcast stations through the over-the-air “daisy chain” rather than through internet-based IPAWS. Following the test, on August 11 or 12, stations must file in ETRS “day of test” information reporting on the success of the test at their station. (Public Notice)
- The last remnants of analog television will disappear in a month. The Media Bureau reminded analog low power TV and TV translator stations that they have until July 13, 2021 to complete their transition to digital operations. Stations that have failed to either complete the transition to digital or to receive an extension to build their digital facilities will have their license cancelled. (Public Notice). The Media Bureau also released a list of LPTV and translator stations that have not applied for a digital construction permit. Be sure to check the list for translators that may rebroadcast your station and, if one is on the list, apply immediately for a digital construction permit (a link to the list of those stations is provided in the Public Notice)
- In news about a broadcast competitor, Rep. Jerry Nadler (D-NY) and Rep. Hank Johnson (D-GA) sent a joint letter to Spotify requesting information about the promotional music royalty rates it offers where, in exchange for lowered royalties, songs would be played more frequently. The congressmen ask whether these promotional royalty rates set up a “race to the bottom” forcing lower royalties on artists, resulting in economic losses to these artists. Congressman Nadler chairs the House Judiciary Committee, which oversees music licensing issues and Congressman Johnson chairs the House Subcommittee on Courts, Intellectual Property, and the Internet. Read more about the issues raised by this letter on our blog, here.
May 29, 2021 to June 4, 2021
- Because of the Supreme Court’s decision earlier this year upholding the Commission’s 2017 relaxation of certain media ownership rules, the FCC reinstated those rule changes. Rules reinstated include the elimination of the Newspaper/Broadcast Cross-Ownership Rule, the Radio/Television Cross-Ownership Rule, the Local Television Ownership Rule’s “eight-voices” test (which prohibited the ownership of two TV stations in one market unless there would be 8 independent TV operators in the market after the proposed combination) and the Television Joint Sales Agreement Attribution Rule (which counted a station receiving sales services under a JSA as if the station was owned by the party providing those services). The absolute ban on top-four television station combinations was also eliminated, returning to the case-by-case assessment adopted in 2017 for those proposals. See the FCC’s order, here.
- As the Supreme Court decision cleared the way for the FCC to resume its review of its ownership rules, the FCC announced that it would open a new comment window to refresh the record established when it began a new Quadrennial Review of these rules in 2018. This review features possible changes to the local radio ownership limits were little affected by the rule changes made in 2017. The Commission asks for comments on industry developments since parties submitted their views in this Quadrennial Review in 2019, including how the COVID-19 pandemic changed the broadcast industry. Comments will be due 30 days after the FCC’s notice asking for these comments is published in the Federal Register. Read the entire Public Notice to learn more, and watch for our thoughts on the issues raised in the open Quadrennial Review on our Blog this week.
- The FCC announced the status of the 158 short-form applications it received for Auction 109, the upcoming auction of 136 FM and 4 AM construction permits for new radio stations. Of the 158 applications, 107 were classified as complete, 50 were classified as incomplete, and one was rejected. (Complete applications, incomplete applications, rejected application). To become a qualified bidder, upfront payments are due by June 16, as are corrections to any application found to be incomplete. See the Public Notice, here.
- As we previewed in last week’s regulatory update, we took a longer look at the various LPFM proposals being considered by the FCC. We wrote about two of the technical proposals that are likely to be rejected by the Commissioners at their June 17 meeting and a new proposal that seeks an increase in maximum power of LPFM stations to 250 watts – all looking forward to a future window for the filing of applications for new LPFM stations. (Broadcast Law Blog)
- Just before Facebook announced that it would continue its suspension of former President Trump from its platform for at least another two years, we published a blog article about a related move by Facebook: its decision to subject politicians to the same Community Standards that it enforces against other users. The company had said previously that posts by politicians were especially newsworthy and therefore should receive less scrutiny and censorship. Our article highlights the different legal standards that apply to broadcasters and online platforms in dealing with content from political candidates. (Broadcast Law Blog)
May 22, 2021 to May 28, 2021
- New rules went into effect on May 24 that are designed to give broadcast TV stations greater flexibility in the placement of transmitters in Distributed Transmission Systems (DTS, also known as Single Frequency Networks). DTS is seen as important as many stations convert to the ATSC 3.0 transmission standard. For more on the new rules, see our blog article here. While these rules have become effective, Microsoft has asked the FCC to reconsider them claiming, among other things, that the new rules harm the ability to deploy white space devices. The FCC will be soliciting public comment on the Microsoft petition in the near future. (Petition for Reconsideration)
- The FCC announced this week that, at its June 17 meeting, it will vote on two petitions asking the FCC to reconsider LPFM technical rules that were issued in April 2020 which, among other things, permitted greater use of directional antenna by LPFM stations. In its draft order on those petitions, the Commission appears ready to reject them which, according to Acting Chairwoman Rosenworcel, will help pave the way for a window for the filing new LPFM applications in the near future. (Draft Order on Reconsideration). Look for more details on these LPFM issues in an article that should be posted on our blog on Tuesday.
- At the same June 17 meeting, the Commissioners will vote on updates to its Emergency Alert System (EAS) and Wireless Emergency Alerts rules that it proposed in February, including introducing a new class of alerts called “National Alerts” and updating the process for reviewing and approving state EAS plans and for reporting false alerts. We wrote at length about the draft rules, here. The Commissioners will also vote on a request for comments on whether certain irrelevant EAS event codes should be deleted, changed, or replaced and whether EAS should support “persistent” display and notification of severe threats to loss of life. (Draft Report and Order and Further Notice of Proposed Rulemaking). The February FCC notice also asked whether emergency alerts can and should be delivered via streaming services The FCC is still accepting reply comments on its inquiry into that issue through June 14.
May 15, 2021 to May 21, 2021
- The FCC asked for public comment on a proposal to increase from 100 to 250 watts the maximum power allowed for Low Power FM stations. This proposal has previously been raised by LPFM advocates many times, and thus far it has been rejected by the FCC (see our article here on a prior attempt). Comments on this updated petition to raise the allowable power for LPFMs are due by June 21, 2021. (Public Notice)(Petition for Rulemaking and Appendix)
- As we noted in updates over the last three weeks (here and here), the FCC released a Notice of Proposed Rulemaking that sets out its tentative plan for assessing broadcast regulatory fees to be collected before October 1 of this year. Broadcasters can file comments now through June 3, with reply comments due by June 18. (Federal Register). As the FCC’s proposal includes increases in some broadcast fees for the third year in a row, the proposal has met resistance from the National Association of Broadcasters. Members of the NAB staff talked with FCC to voice their concern about the fee increases, especially in light of broadcast revenue decreases due to COVID. The NAB argued that the FCC’s costs, used to determine the fees each regulated industry pays, were improperly allocated and that the fees for other industries, which were not as hard-hit by the pandemic, should bear a bigger burden in paying these costs. (NAB Letter)
- FCC extended by two weeks the dates by which interested parties can submit comments on the FCC’s rules which arose after the passage of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). The CVAA was designed to make broadcasts and other communications channels more accessible. It has resulted in requirements including audio description of television programming and captioning of TV programming delivered over the internet. Comments on whether any of these rules should be modified are now due on June 7, 2021 with replies due by July 6. We wrote more about the CVAA and the request for comments, here. (Public Notice)
- This week, in ten separate actions, the FCC either changed, or proposed to change, the channel of a full-power television station from a VHF to a UHF channel. Since the FCC late last year lifted its freeze on channel changes by TV stations (see our article here), a freeze that had largely been in place for over a decade, many stations operating on VHF channels (13 and below) have requested to change their channels to UHF. UHF channels (14 and above) are subject to less interference and provide better building penetration for digital operations, and these channels are also seen as superior for ATSC 3.0 operations (see our article here).
- In legislative developments, we wrote on our blog this week about a congressional effort to establish a “Future of Local News Committee” that would be tasked with examining the state of local news in the United States. The committee would ultimately deliver a report to Congress with recommendations for protecting and enhancing local news operations, and potentially the federal funding of newsrooms. (Committee Bill)
May 8, 2021 to May 14, 2021
- In a speech to the Media Institute, FCC Commissioner Starks spoke of the importance of diversity in media ownership and how it should be considered in making any decisions on revisions to the media ownership rules. In addition, the Commissioner stated that a proposal is now circulating among the Commissioners to regularly gather details from broadcasters on the race and gender of their employees. That information has not been collected for almost 20 years after questions were raised about the constitutionality of the use of such data in assessing broadcasters hiring practices. The text of the Commissioner’s speech is here.
- Commissioner Carr issued a statement arguing that the Commission should not interfere with a broadcast station’s newsroom decisions following a complaint filed by the Baltimore City State’s Attorney’s Office about a TV station’s coverage of its office. [Complaint and Carr Statement]. We looked at this complaint and similar cases and the role of the First Amendment in broadcast regulation, here.
- The NAB released a study prepared by BIA Advisory Services finding that social media and other online platforms underpay broadcasters by billions of dollars each year for use of their content, undermining the economic support for local news that these stations provide. [NAB Statement and Study]. NAB President Gordon Smith at the NAB Leadership Conference this week mentioned this report and Congressional proposals to remedy this situation. [Smith Statement]. We wrote here about the details of the pending legislative proposal to give broadcasters more bargaining power with tech platforms.
- The regulation of online platforms was much discussed at the Leadership Conference and has otherwise been in the news. In another article, we wrote about how this regulation (including reforms of Section 230 which insulates online platforms from liability for content posted by others) could affect advertising on such platforms.
- As we noted in last week’s update, the FCC released a Notice of Proposed Rulemaking that sets out its tentative plan for assessing broadcast regulatory fees to be collected before October 1 of this year, with comments due on or before June 3 and reply comments due by June 18. (Federal Register). The FCC’s proposals include increases in some broadcast fees and questions as to whether the Commission needs to accommodate broadcasters and other regulated companies who experienced economic hardship because of the pandemic. The Commission this week released several decisions by its Office of Managing Director on individual requests for waivers of the payment of annual regulatory fees – decisions that made clear the high burden that an applicant faces in receiving such a waiver. [Summary of denials, full decisions available at links in FCC’s Daily Digest]
- The FCC’s Media Bureau this week released announcements of consent decrees with nine different radio broadcasters over late uploads to their online political file disclosed in their license renewal applications. The FCC in the previous week announced ten additional consent decrees with other broadcasters. The consent decrees mandate training programs for station employees on political file obligations and two years of regular reporting requirements where these broadcasters must provide specifics on their compliance to the FCC. These consent decrees show just how seriously the FCC takes violations of a broadcaster’s obligations to immediately upload information about political advertising orders to their online public inspection files. We wrote about political consent decrees and what they require here.
May 1, 2021 to May 7, 2021
- The FCC released a Notice of Proposed Rulemaking that sets out its tentative plan for assessing broadcast regulatory fees to be collected before October 1 of this year to pay for FCC operations for the current fiscal year. The notice proposes sticking with last year’s decision to assess television fees based on the population served by a station. The proposed fees to be paid by each TV station are included in an Appendix to the Notice. While proposing to use these unique fees for each station for this year, the FCC proposes for next year to group TV station fees within tiers, and it seeks comments on the tiers to be used. While the total fees to be paid this by the radio industry are the same as last year, each station is proposed to pay more, apparently based on the FCC’s estimates that there will be fewer total stations paying fees. The FCC also asks if it should again provide some relief to companies that, because of COVID-related financial difficulties, cannot pay their fees or cannot pay them on time. Comments on the FCC’s proposal are due by June 3 and reply comments are due by June 18. (Notice of Proposed Rulemaking)
- As we noted a few weeks ago, FEMA has now officially chosen August 11, 2021 as the date for the next national EAS test (with August 25 as a backup date). The test will originate through Primary Entry Point facilities (i.e., principally through broadcast transmissions) rather than through internet dissemination via the Integrated Public Alert & Warning System (IPAWS) to test how well alerts are distributed if internet delivery is unavailable. (FEMA Letter)
- The C-band Relocation Payment Clearinghouse (RPC) posted its Draft C-band Handbook and will accept comments on the draft before 6:00 p.m. Eastern on May 14. The handbook covers, among other things, how funds will be distributed from the money received from entities that purchased C-band spectrum rights to those entities, like broadcasters, eligible for reimbursement for clearing the spectrum. In the past week or two, many broadcasters who are eligible for reimbursement, either through lump-sum payments or through the actual reimbursement of out-of-pocket expenses, have heard directly from the companies coordinating the reimbursement process asking questions about the details for such reimbursement. Stations should be sure to quickly respond to these inquiries to avoid delays or other problems with those payments.
April 24, 2021 to April 30, 2021
- The FCC’s new rules that permit AM broadcasters to convert to all-digital operations became effective April 29. The new rules require the filing of the FCC’s Digital Notification Form (Form 335-AM) within 10 days of the start of all-digital AM operations. A station converting to all-digital operations must run on-air notices for 30 days before converting to alert analog listeners of their plans. See our blog post, here, for more on all-digital AM. (Public Notice)
- The FCC released a guide summarizing TV closed captioning quality standards (accuracy, synchronicity, completeness, and placement). The guide includes best practices and discusses how TV stations must monitor and maintain their equipment and signal transmissions associated with closed captioning, perform technical equipment checks, take any corrective measures necessary to ensure that captioning is passed through to viewers intact, and keep records of these activities for a minimum of two years. The guide serves as a good reminder to TV stations of their closed captioning obligations. (Closed Captioning Compliance Guide)
- The application window is now open for parties interested in participating in the FCC’s upcoming auction of construction permits authorizing the construction of 136 new FM stations and 4 AMs (Auction 109). The application window will close on May 11 at 6:00 p.m. Eastern Time. (FCC Auction 109 Page)
- Following the Supreme Court decision reinstating the FCC’s 2017 changes in its ownership rules, which also reinstated the FCC’s incubator program (see our article here), the FCC noted that the broadcast interests of certain investors in auction applicants classified as “eligible entities” under that program may not need to be counted against the applicant if it is seeking bidding credits in the auction for having three or fewer other broadcast interests. The application of these rules is very fact dependent so consult your attorney for advice on how this change might affect your status in the auction. (Public Notice)
- New radiofrequency (RF) exposure rules, adopted in 2019, will go into effect on May 3, 2021, requiring that all new facilities must comply with the new rules beginning May 3, 2021 and providing a two-year compliance transition period for existing facilities. The new rules include updated signage requirements for areas of high RF radiation. They also make changes to the “categorical exemption” or “categorical exclusion” rules by which some facilities were exempted from demonstrating compliance with RF exposure limits. (Public Notice)
- The FCC cleaned up its retransmission consent rules to make them consistent with certain statutory changes, making clear that the requirement for parties to negotiate retransmission consent agreements in good faith and the prohibition on exclusive agreements will continue indefinitely. The language of the FCC rules, which was based on prior statutory language, suggested that these provisions terminated on January 1, 2020. This week, the FCC made clear that they have no expiration date and thus remain in effect. (Order)
April 17, 2021 to April 23, 2021
- At the FCC’s regular monthly Open Meeting, the Commissioners voted to adopt new rules mandating sponsorship identification of foreign government-provided broadcast programming. The new rules require on-air and public file disclosures when programming is supplied by a foreign governmental entity. Even though many broadcast groups argued for rules requiring broadcasters to take specific steps to warn programmers about these requirements and to research the foreign-government connections of programmers only when they had reasons to suspect a programmer of having such connections, the FCC required that these steps be taken whenever they enter into any agreement to lease airtime. (Report and Order)
- As we noted last week, Congresswoman Anna Eshoo (D-CA) wrote to Acting FCC Chairwoman Jessica Rosenworcel requesting that the agency look at the reported increase in complaints tied to the loudness of TV commercials and, if necessary, take enforcement action under the CALM Act. The FCC wasted no time acting on this letter and is now seeking comment on whether updates are needed to the FCC’s rules that implemented the CALM Act. The FCC wants to hear from consumers about their television-watching experience as it relates to the loudness of commercials and from the industry about whether the rules are serving their intended purpose. Comments are due by June 3 and reply comments are due by July 9. We wrote more about this issue and the request for comments, here. (Public Notice)
- The FCC adopted a ten-application limit for the upcoming filing window for noncommercial FM radio stations to operate in the reserved band below 92 MHz on the FM band. (Public Notice). The Media Bureau also set the dates for the filing of applications for these new noncommercial stations – requiring that they be submitted during a filing window running from 12:01 Eastern Time on Tuesday, November 2, 2021 through 6:00 pm Eastern Time on Tuesday, November 9, 2021. More details about these applications will be released by the Commission at some point in the future. Read more about this upcoming window on our blog, here. (Public Notice)
- New rules for distributed transmission systems (DTS, also known as single frequency networks) will go into effect May 24, 2021. The new rules are designed to give broadcast TV stations greater flexibility in the placement of multiple transmitters throughout their protected service area to provide a stronger, more uniform signal throughout their markets. This is seen as important to facilitate the provision of the additional services that can be offered through the new ATSC 3.0 transmission standard (NextGen television). The new rules provide broadcasters with a bright-line rule that will expand the permissible range of “spillover” by DTS facilities beyond current protected service areas. The rules for full-power stations go into effect on May 24, but rules that apply to Class A, low power TV, and TV translator stations will not be effective until some later date following approval by the Office of Management and Budget. (Federal Register)
April 10, 2021 to April 16, 2021
- According to press reports, broadcasters should pencil in August 11, 2021 on their calendars for the next national test of the Emergency Alert System (EAS). Following the test, broadcasters will need to report to the FCC how their EAS equipment functioned and what, if any, problems were encountered relaying the test message. This information will be used by the FCC in a report on the readiness of EAS in the event of an activation.
- The FCC posted an online tutorial for parties interested in participating in Auction 109, the upcoming auction of 136 FM construction permits and 4 AM construction permits which will allow winning bidders to construct new radio stations. The tutorial is available for on-demand viewing on the “Education” tab of the Auction 109 website at http://www.fcc.gov/auction/109. The window to apply for a construction permit is from 12:00 p.m. Eastern on April 28 to 6:00 p.m. Eastern on May 11. We wrote about the auction, here.
- Congresswoman Anna Eshoo (D-CA) wrote to Acting FCC Chairwoman Jessica Rosenworcel requesting that the agency look at the reported increase in complaints tied to the loudness of TV commercials and, if necessary, take enforcement action under the CALM Act. The letter cites press reports of thousands of consumer complaints to the FCC which never resulted in any enforcement action. Rep. Eshoo sits on the House Energy and Commerce Committee, which has jurisdiction over the FCC, so stations should review CALM Act compliance as this may be an area of FCC review in coming months. (Eshoo Letter)
- We reminded broadcasters that, even outside of political windows, they must upload appropriate information to the political files folder in their FCC-hosted online public inspection file reporting on ads that run on their stations addressing controversial issues of public importance. (Broadcast Law Blog article).
Looking ahead to next week, earth stations operating in the C-Band that have been reported as no longer operational or that have not responded to communications from the C-Band Relocation Coordinator must act by April 19 and file with the FCC confirming their continuing operational status or their authorizations will be deleted from the FCC’s database and no longer protected. While this deadline has been the subject of many trade press reports and some widely distributed memos from law firms, it actually affects only a handful of broadcasters. Earth station operators that have filed for lump sum reimbursement or have otherwise been in contact with the Relocation Coordinator should not appear on the lists and have no April 19 filing obligation. We posted the lists and wrote more, here, about the deadline.
Also next week, the FCC will hold its required monthly Open Meeting. Broadcasters will be watching two agenda items in particular: the vote to adopt new rules for identification of programming that is sponsored by a foreign governmental entity and the vote to adopt a ten-application limit in the upcoming noncommercial, reserved band FM construction permit filing window. We wrote briefly about these items, here.
April 3, 2021 to April 9, 2021
- NAB announced that its CEO, Gordon Smith, will be stepping down at the end of the year to be replaced by COO, and former head of Government Relations at the NAB, Curtis LeGeyt. We wrote here about some of the many legal and policy issues likely to be facing the NAB in the coming years.
- FCC continues to scrutinize public file compliance in connection with the filing of a license renewal application. After several noncommercial stations entered into consent decrees over non-compliance, commercial stations have started to receive consent decrees, as well. The consent decree comes with the requirements to name a compliance officer, adopt a written plan that includes a compliance manual and mandatory training for employees, quickly report future public file violations to the FCC when they are discovered, and file periodic compliance reports with the Commission. (Consent Decree)
- FCC reminded full-power TV stations, Class A TV stations, LPTV and TV translator stations, FM radio stations, and multichannel video programming distributors (MVPDs) that filing deadlines begin in six months for the submission of all remaining invoices for reimbursement for the costs they incurred from the repacking of the TV band following the Incentive Auction. Full-power TV and Class A TV stations that were assigned to repack phases 1-5 have a final invoice submission deadline of October 8, 2021. Full-power TV and Class A stations assigned to repack phases 6-10 have a deadline of March 22, 2022. Low power TV stations, TV translators, FM radio stations, and MVPDs have a filing deadline of September 5, 2022. See the Public Notice for more details on the close-out procedures. We wrote more about this, here.
- FCC issued a Public Notice asking interested parties for comment on whether updates are necessary for the rules that are required to implement the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). The CVAA is responsible for such agency rules as audio description, accessible emergency information, and closed captioning of video delivered over Internet Protocol. Comments are due by May 24 and reply comments are due by June 21. (Public Notice)
March 27, 2021 to April 2, 2021
- The Supreme Court this week announced its decision in FCC v. Prometheus Radio Project, the broadcast ownership case that was argued before the Court in January. In a unanimous opinion, the Court sided with the FCC and with broadcasters and upheld the FCC’s 2017 ownership rule changes which eliminated the newspaper-broadcast cross ownership rule, the radio-television cross ownership rule, and the television “8-voices test” allowing combinations of two TV stations in any market where at least one of the stations is not one of the top-4 ranked stations. Also gone is the blanket prohibition on combinations involving two top-4 TV stations in a market, which is replaced with a case-by-case analysis by the FCC. Our discussion of the opinion is here and the full opinion is available here.
- Comment and reply comment deadlines were set for the FCC’s proposal to update its Emergency Alert System (EAS) and Wireless Emergency Alerts system (WEA) rules, including enhancing the reporting requirements for false EAS alerts, and its inquiry into whether emergency alerts can be delivered through the internet, including through streaming services. Comments on the EAS/WEA proposal are due by April 20, 2021, and reply comments are due by May 4, 2021. Comments on the delivery of alerts by internet are due by May 14, 2021, and reply comments are due by June 14, 2021. WBK wrote about the proposal and inquiry, here. (Federal Register)
- The FCC released more details for its upcoming Auction 109, which will auction the rights to 136 FM construction permits and 4 AM construction permits, allowing winning bidders to start new radio stations in the listed communities. The auction itself is scheduled to begin on July 27, 2021 (a list of the permits to be auction is here, with opening bid amounts). Interested applicants must submit “short-form” applications to participate in the auction during a window that runs between 12:00 p.m. Eastern on April 28 through 6:00 p.m. Eastern on May 11. For more details, review the Public Notice and our article here. A freeze on FM minor change applications will be in place during the filing window.
- The Copyright Royalty Board was given another two months to complete its work setting the royalty rates to be paid in 2021-2025 to Sound Exchange for the public performance of sound recordings by webcasters, including broadcasters who simulcast their programming on the internet. Instead of a decision in the next two weeks (which we anticipated in our summary of April regulatory dates for broadcasters), the CRB decision can now be expected by June 14. WBK wrote about the extension and the ongoing proceeding, here. (News Release)
- There are two items of interest to broadcasters on the agenda announced this week for the FCC’s April 22 required monthly Open Meeting. Scheduled to be voted on are:
- New rules for standardizing and formalizing sponsorship identification requirements for broadcast stations that accept foreign government-provided programming. (Draft Report and Order)
- Adoption of a ten-application limit per applicant in the upcoming 2021 noncommercial educational radio filing window where nonprofit educational broadcasters will be able to file for construction permits to build new noncommercial stations in the reserved band (below 92 FM). (Public Notice)
- Two items we covered on the blog this week are also worth noting, one of which is regulatory and one of which is legislative. We wrote about the recent spate of noncommercial educational stations entering into consent decrees with the FCC over public file noncompliance tied to their license renewal applications. On the legislative side, we wrote about a congressional effort to provide an antitrust exemption for creators of news content to get together to negotiate collectively with tech companies for payments for the use of that content on social media and other digital platforms.
March 20, 2021 to March 26, 2021
- While the rules adopting updated fees for broadcast applications will be effective April 19, the fees themselves will not be assessed until later, probably sometime in May, after the FCC has time to update its databases, internal procedures and fee filing documents. Watch for an announcement from the FCC as to the exact date that the new fees will go into effect.
- New penalties for pirate radio go into effect April 26. The FCC will have the ability to assess fines of $100,000 per day (up to a total of $2 million) against pirate radio operators. Landlords who are found to have “willfully and knowingly” allowed pirates to broadcast from their properties can also face penalties. (Federal Register)
- FCC’s new Broadcast Internet rules became effective March 25. The principal effect of the new rules was to clarify issues about the FCC fees to be paid by TV stations for ancillary and supplementary non-broadcast services using their datacasting capabilities. Read about the new rules, here. (Public Notice)
- In connection with the FCC’s decision to not set aside a vacant TV channel in each market for use by wireless microphones and unlicensed devices, two wireless microphone companies have petitioned the FCC to reconsider that decision. Oppositions to the petition are due by April 9 and replies to the oppositions are due by April 19. Broadcasters argued successfully that reserving a channel in every market would further shrink a TV band already made smaller by the incentive auction and could harm future broadcast innovation. (Federal Register)
- Read WBK’s monthly feature on some of the important regulatory dates and deadlines coming up in April. (Broadcast Law Blog)
March 13, 2021 to March 19, 2021
- At this week’s FCC March Open Meeting, the Commissioners unanimously adopted a Notice of Proposed Rulemaking and Notice of Inquiry that seek comments on whether the FCC should modify aspects of the Emergency Alert System – which could affect broadcasters in the requirements for reporting false EAS alerts and the updating of state EAS plans. The FCC also asks for comments on whether it can order the delivery of emergency alerts over streaming services. We wrote, here, about the proposal when it was initially released.
- If you are planning to file an application with the FCC soon, note that new fees for broadcast applications take effect April 19, 2021. The FCC based its changes in the fees on its analysis of the FCC staff resources used to process and review each filing. (Federal Register)
- Two members of the US House of Representatives have introduced the Modern Television Act of 2021. The bill from Minority Whip Steve Scalise (R-LA) and House Communications Subcommittee member Anna Eshoo (D-CA) seeks to modify the provisions of the Communications and Copyright Acts governing the carriage of television stations by cable and satellite systems. Similar bills have been introduced by Congressman Scalise in previous sessions of Congress. Among its changes, the bill would eliminate the compulsory copyright license allowing cable systems to carry programs on local television stations without negotiations with the copyright holders of the station’s programs (leaving those rights to be determined by the marketplace), and it would replace the current open-ended retransmission consent negotiations to set the fees paid by MVPDs to TV stations for the carriage of their programming with a binding arbitration process. (Press Release)(2019 Version of the Bill)
- A bill introduced by a bipartisan group of House members and senators seeks to allow news outlets like local broadcasters to collectively negotiate with tech powerhouses like Facebook and Google for compensation for the distribution of their content. This proposal is more limited than a similar law which recently received so much publicity when enacted in Australia. The National Association of Broadcasters supports passage of the bill. (Press Release)(2019 Version of the Bill)
- The FCC’s Audio Division entered into consent decrees with two noncommercial stations over unspecified public file violations. Both stations in their license renewal applications certified that all required documents had been uploaded to their public files, but the FCC apparently thought differently. The consent decrees are not for political file violations, but carry some of the same requirements, including naming of a compliance officer, putting in place a compliance plan and written compliance manual, implementing a training program, and reporting to the FCC in a year whether the station complied with the terms of the decree and timely uploaded all required documents to the public file. These consent decrees serve as a good reminder that the FCC reviews a station’s online public file during the license renewal process and can easily determine if documents are missing. (Consent Decree Example)
- With the NCAA’s March Madness basketball tournament now underway, we turned the keys of the blog over to our partner, Mitch Stabbe, to write a two-part series about how broadcasters can navigate the use of the terms and logos associated with the tournament to steer clear of legal liability. (Part 1) (Part 2)
- We also covered on the blog this week the FCC’s sponsorship identification requirements, how extended periods when a station is silent and not broadcasting can lead to license renewal problems, and a recent case involving a lawsuit by Dr. Seuss’ estate that shows that fair use does not cover as many “parodies” of copyrighted works as broadcasters may think.
March 6, 2021 to March 12, 2021
- The FCC’s Enforcement Bureau reminded stations of their obligation to comply with all sponsorship identification rules and to disclose information about the sponsors of all paid-for programming. It is the station licensee’s responsibility to ensure that, if it receives anything of value in exchange for the airing of any on-air content, the station must disclose that consideration to its listeners. Stations also have an obligation to inquire of each of their program providers, including syndicators and time brokers, to assure that none have received any undisclosed consideration for the inclusion of any content in programs that they provide. (Public Notice)
- The FCC’s Media Bureau reminded commercial broadcasters of their obligation to upload to their online public files every “sharing” agreement for the operation of a station whether involving time brokerage agreements (TBAs), joint sales agreements (JSAs), or shared services agreements (SSAs). These agreements must be placed in the public file within 30 days of execution and remain there for as long as the agreement is in force. (Public Notice)
- The FCC will conduct a hearing to determine whether a Georgia AM station’s license renewal should be denied. At issue is the station’s extended periods of silence since January 2018 when the current licensee took control of the station. In recent years, the FCC has been aggressive with stations that have been silent for extended periods during their license term, denying license renewals or imposing other sanctions (like short-term renewals). (Hearing Designation Order)
- As part of the COVID-19 relief package signed Thursday by President Biden, $175 million was allocated to the Corporation for Public Broadcasting for COVID-related emergency assistance for public radio and television stations, including a provision for fiscal stabilization grants. The infusion of funds is intended to help public broadcasters respond to the coronavirus, allow them to maintain programming and services, and to preserve small and rural stations threatened by declines in non-Federal revenue, like revenue from state governments and private sources lost due to the economic downturn. (H.R.1319 Section 7601)
- The FCC‘s Audio Division acted on a complaint of interference by a full-power station against a new FM translator. As part of its decision, the FCC required that the complaining station and the translator operator jointly conduct on-off tests to determine if the translator is the source of the alleged interference – and to report the results of the tests to the FCC. The decision is a good review of the FCC’s policies for resolving translator interference complaints. (Audio Division letter). See our articles here and here for more on the FCC’s procedures for resolving engineering complaints about new FM translators.
February 27, 2021 to March 5, 2021
- Global Music Rights (GMR) has offered commercial radio stations an extension of their interim license for the public performance of musical compositions by the songwriters that it represents. The extension through January comes at a price – a 20% increase in the royalty fees. GMR offers these interim licenses while its antitrust litigation with the Radio Music License Committee is pending, where RMLC seeks to put checks on GMR’s right to unilaterally set prices. We covered the issues broadcasters should consider in weighing this extension on our blog, here.
- With the July 13 deadline for analog low-power TV and TV translator stations to transition to digital or cease operations and for the expiration of many construction permits for new digital LPTV stations granted prior to the TV Incentive Auction, the FCC reminded broadcasters subject to the deadline that their opportunity to file for a one-time extension of not more than 180 days ends on March 15. We covered the FCC’s Public Notice on this issue in more detail, including a discussion of the as yet unresolved issue of “Franken FMs” (radio services on 87.7 FM provided by analog LPTVs on Channel 6), here. (Public Notice)
- By March 15, comments are due on the minimum bid amounts and procedures proposed for Auction 109, which will auction construction permits for 136 new FM stations and 4 AMs. Reply comments are due by March 22 and bidding is scheduled to begin July 27. (Federal Register)
- Two Florida LPFM stations received Notices of Violation for transmissions on frequencies other than as permitted by their license. Stations must exercise care to ensure that their transmission facilities do not produce spurious emissions outside their licensed frequencies. These emissions can cause interference to other broadcasters and to non-broadcast radio communications (one of the stations investigated here was reviewed because of a complaint from the FAA). Read more about this on our blog, here. (Orlando Notice of Violation) (Miami Notice of Violation)
- A handful of Republican congressmen have introduced a bill to prevent the FCC from reinstating the Fairness Doctrine, which the FCC found unconstitutional in 1987. We wrote, here, about what the Fairness Doctrine was and why, even absent congressional action barring its reintroduction, it is unlikely to make a comeback. (H.R.1409)
- Following last fall’s order designed to bring more structure and transparency to the Executive Branch (Team Telecom) review of proposals for foreign ownership of communications facilities including broadcast stations, the FCC has set the dates by which interested parties can comment on the standardized questions applicants will be asked, including national security and law enforcement questions. Comments are due by April 2 and reply comments are due by April 19. (Federal Register)
February 20, 2021 to February 26, 2021
- About 200 radio and television stations have been randomly selected to be audited by the FCC for their EEO compliance. The FCC audits about five percent of all broadcast stations each year, requesting documentation of an audited station’s hiring practices. Stations on the audit list have until April 26 to upload their audit response to their public file. (Audit Notice and Station List) (Broadcast Law Blog)
- A draft of a proposal for changing the broadcast EEO rules is circulating for review among the Commissioners. It appears that this proposal will seek public input on changes arrived at after the Commission’s review of the comments in its 2019 rulemaking that looked at how to make the EEO program more effective. See our article here on that 2019 rulemaking proceeding.
- The FCC’s Wireless Telecommunications Bureau reminded parties of their obligation to report in the Antenna Structure Registration system all transfers of ownership of registered towers. The Bureau notes that accurate records are necessary to protect aircraft navigation safety. (Public Notice). See our articles here and here about past FCC fines for companies who forgot to update this information.
- Beginning March 26, broadcasters will no longer have the option of submitting checks or other “manual” payments for fees due for applications processed by the FCC’s Media Bureau. With the closure of Lockbox 979089, all application fee payments must be electronic. (Federal Register)
- At the FCC’s March 17’s FCC monthly Open Meeting, the Commissioners will consider an Emergency Alert System proposal for new rules to keep the public safe and informed during emergencies and disasters, including an inquiry as to whether it is possible to deliver emergency alerts through the internet, including over streaming services. (Meeting Details) (Emergency Alert NPRM and NOI)
- Comments are due by March 29 on the FCC’s proposal to use a terrain-based methodology (such as Longley-Rice) for determining where white space devices can operate in the television band. Reply comments are due by April 26. The Further Notice of Proposed Rulemaking was released in October. (Federal Register)
- Reps. Anna Eshoo (D-CA) and Jerry McNerney (D-CA) sent letters to the heads of the country’s biggest cable, satellite, and streaming platforms requesting information on how they intend to police misinformation disseminated by certain news networks they carry. As the inquiry targeted conservative networks and alleged misinformation about the presidential election and the pandemic, Republican objections, including statements from FCC Commissioners Carr and Simington, were swift. It is likely that the Congressional letter, this week’s congressional hearing on misinformation in the media, and other efforts to address media bias will keep the First Amendment and the Fairness Doctrine in the news. We wrote about these debates in the context of the Fairness Doctrine, here, and NAB CEO Gordon Smith wrote an op-ed about broadcasters’ dedication to reporting facts, here.
- The FCC announced the winning bidders of the C-Band auction that raised more than $81 billion selling off spectrum made available, in part, by relocating broadcasters. This moves the FCC another step closer to releasing reimbursement payments to affected broadcasters. (Public Notice) (Bidding Summary)
- We published our monthly look at the upcoming regulatory dates and deadlines coming in March and early April. We covered comment periods in rulemaking proceedings, application filing deadlines, and other regulatory dates for the coming month. Read our blog post, here.
February 13, 2021 to February 19, 2021
- Bidding in the auction of the C-Band has concluded. The FCC’s auction page for Auction 107 states that a formal public notice will be released shortly announcing the winners and setting deadlines for payment and other post-auction actions. Broadcasters who elected lump-sum payments for clearing the C-Band spectrum sold in this auction will be paid at some point after the payments by the winning bidders are received, so the close of the auction moves the FCC one step closer to issuing those payments. (Auction Notice)
- FCC modified the market of a television station licensed to a community in the northern part of the New York City DMA to include communities in New Jersey which had previously been found to be outside its market (meaning local cable companies had no carriage obligations for the station). The prior decision had been based on the station’s lack of over-the-air coverage of the New Jersey communities. In this week’s decision, the Commission determined that the change in the signal contours of the station because of its post-incentive auction channel sharing agreement with a station licensed to New Jersey, giving it coverage of the communities, warranted a change in the cable carriage of the station in those communities. The Commission noted that where channel-sharing arrangements change a station’s coverage, those changes can affect its cable carriage rights – positively or negatively. (Media Bureau decision)
- At her press conference following the February monthly meeting of the FCC (at which no broadcast matters were considered), Acting Chairwoman Rosenworcel stated that she had a “slate” of upcoming broadcast matters for the Commission to consider, but did not identify what those were. She also noted that, because of the current even representation of Democrats and Republicans on the Commission, major broadcast policy issues might not be addressed in the short term.
- FCC Commissioner Nathan Simington used his maiden speech to highlight his priorities and guiding principles. Among those principles are a belief that Congress—not the FCC—should make telecom policy reforms, a commitment to pursuing a light regulatory touch, and a willingness to listen to all sides of an argument. He noted that the video marketplace deserves a “fresh look” without offering more details. (Simington Remarks)
- There was much news this week about Facebook pulling all news articles from its service in Australia in response to legislation there that would make large digital media platforms pay for any news posted on their pages when that news came from established media companies, including broadcasters. There is already speculation that such a law could be introduced here, including Microsoft’s call for the US government to explore that possibility. (Microsoft blog)
February 6, 2021 to February 12, 2021
- The FCC has started planning for its next AM/FM radio auction (Auction 109) scheduled to begin on July 27. Four AM construction permits in the St. Louis area and 136 FM construction permits across the country will be available, with minimum opening bids ranging from $750 to $75,000. Comments and reply comments on the proposed bidding procedures are due by March 15 and March 22, respectively. More details about the auction and proposed bidding procedures can be found, here, and the list of permits to be auctioned is available, here. For more on the filing process and issues to consider, see our article here.
- In preparation for Auction 109, the FCC froze any FM filing that proposes to change one of the available allocations’ channel, class, community of license or reference coordinates. (Public Notice)
- The renewal applications for seven FCC authorizations in Alabama were designated for hearing to determine if their licensee possesses the basic character qualifications to hold an FCC license. The licensee’s principal was convicted of six felonies and imprisoned for these crimes he committed while in the Alabama House of Representatives. This decision serves as a good reminder that, under the FCC’s Character Qualifications Policy Statement, non-FCC misconduct can be grounds to deny FCC licenses and can even prevent a licensee from selling a station as FCC precedent is that someone without the requisite character should not be able to profit from the sale of a government-granted broadcast license (Order). We took a closer look on our blog at some of the FCC’s considerations in enforcing this policy.
- Many television stations took advantage of the FCC’s lifting of its freeze on television applications, including channel changes. This week, numerous proposals for changes in the operating channel of television stations, most proposing changes from VHF to UHF channels better able to operate in a digital environment, were put out for public comment. Notices of nine channel-change proposals filed immediately after the freeze was lifted were included on the FCC’s Daily Digest of its actions on Friday.
- The FCC‘s Audio Division denied the application of an FM station seeking a waiver of Commission rules to upgrade its facilities to those that would be allowed under the pending proposal to create a new class of FM stations – Class C4. The letter denying the application said that a waiver for this station would pre-judge the current FCC proceeding which is trying to determine whether to authorize this new class of FM stations (Letter Decision). For more about the proposed Class C4 for FM stations, see our blog article here.
- As the FCC reviews radio license renewals filed in recent months in various midwestern states, this week we have again seen a flurry of consent decrees with broadcasters who could not certify compliance with the political broadcasting rules. These consent decrees require the broadcaster to engage in training for its staff on political broadcasting issues and to report to the FCC for two years on its compliance with the political file rules. See our article here for more information about these consent decrees.
- With Democrats in control of the White House, Congress, and the FCC, we have noted increased interest in the Fairness Doctrine. In light of the many recent articles on the topic, we wrote about the history of the Doctrine and what its reinstatement, however unlikely, would mean for broadcasters. (Blog)
January 30, 2021 to February 5, 2021
- Two Kentucky FM translator stations filed their license renewal applications nearly four months late and now face $1,500 fines. From time to time, the FCC has announced that numerous stations failed to file their renewal applications on time during this license renewal cycle, putting at risk their authority to operate. These cases also remind broadcasters to remember to renew their translator licenses as well as those for their primary stations. Be sure to mark your calendar with your renewal filing deadline date (radio dates here; TV dates here) and start your preparations early. Radio stations in Texas and TV stations in Indiana, Kentucky, and Tennessee are the next groups to file for renewal and must do so by April 1. (W278BK Notice) (W280FH Notice)
- TVNewsCheck published our updated high-level look at the state of play in Washington for broadcast issues. This is a good resource to learn about new issues and to get caught up with the latest on issues that have been around for a while. (Broadcast Law Blog)
- We wrote about the “performance complement” and other music licensing issues while we wait for the Copyright Royalty Board to say how much webcasters (including broadcasters who simulcast their over-the-air programming on the internet) will pay for the public performance of sound recordings for 2021 through 2025. (Broadcast Law Blog)
January 23, 2021 to January 29, 2021
- Often when a new administration takes over and a new Chairperson is installed at the FCC, some of the agency’s non-routine work slows down as the new Chair and her staff look to align the bureaus and offices with their priorities. The last week under Acting Chairwoman Jessica Rosenworcel has been no exception to this, with few public releases coming out of the Media Bureau. But the FCC’s routine work, like license renewals, EEO filings, and comment deadlines, continues and our monthly feature on broadcast regulatory dates and deadlines highlights some of these upcoming obligations.
- With the Super Bowl next Sunday, if you are planning any advertising or promotions tied to the game, we published an article by our law partner Mitch Stabbe on how broadcasters and advertisers can steer clear of the NFL’s aggressive efforts to protect its Super Bowl trademarks and other intellectual property rights. (Broadcast Law Blog)
- Parties interested in the future of copyright law and the Copyright Office should note that Sen. Thom Tillis (R-NC) has drafted legislation on various copyright topics and is accepting comments on the legislation through March 5th. The legislation seeks changes to the Copyright Act which would, among other things, lessen protections that online services have from infringement claims about user-generated content, as well as changing the organization and authority of the Copyright Office. Legislators do not often release draft legislation this far in advance and ask for public input, so, as these changes would affect all media companies, be sure to take advantage of the open process and send in your ideas. We wrote about the draft legislation, here.
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. (News Release)
- 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, here. In an article, here, 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. (Report and Order)
- 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. (Order)
- As we noted in last week’s summary, the Department of Justice declined to act on the ASCAP and BMI consent decrees. We took a deeper look, here, 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. (Remarks of Mr. Delrahim) See our blog article 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, here. (Federal Register)
- 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, here. (Federal Register)
- 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. (Forfeiture Order)
- 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. (Working Paper)
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 available on C-SPAN at 10 am. EST and a downloadable recording should be available by January 22 on the Supreme Court’s website. A decision is expected in early summer. To get caught up on this case and other media ownership issues, see our blog post, here. (Case Docket)
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. (Advisory)
- 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. (Public Notice)
- 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. (Broadcast Station Totals)
- 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. (Report)
- 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. (Public Notice)
- In the copyright world, the Copyright Office released a Notice of Inquiry 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, here.
- 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, here.
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. (Report and Order)
- The FCC announced that, beginning January 15, it will marginally increase its fines for rule violations to adjust for inflation. (Order)
- 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 here.
- 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 (FTC Press Release). For more information on these decrees and other cannabis advertising issues for broadcasters, see our blog article here.
- 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 letter 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 Estrella Broadcasting, Inc. and Univision Holdings, Inc.)
- 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. (Public Notice) 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. (2020 Communications Marketplace Report)
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, here. We wrote about the PIRATE Act, here. (Order)
- 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, here. (Public Notice)
- 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 @SimingtonFCC. (Commission Simington Bio)
- 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. (Pai Speech). Look for our thoughts on those issues, particularly for the radio industry, on our blog 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. (Prometheus Brief).
- 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. (Order)
- 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. (Federal Register)
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. (Report and Order)
- 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. (Order)
- 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, here. (Report and Order)
- 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, here.
- 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. (Letter)
- 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. (Order on Reconsideration)
- 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, here.
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, tha