This Week at the FCC

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 16, 2020 to May 22, 2020

  • FCC released the agenda for its June 9 Open Meeting announcing that it will consider an item of interest to TV broadcasters planning to transition to ATSC 3.0, the next generation television transmission standard.  The item deals with what the FCC is calling “Broadcast Internet services,” new IP based services compatible with other Internet devices that will allow TV broadcasters to monetize their ATSC 3.0 spectrum in new ways.  If adopted at the June meeting, the item, which we summarized on the Broadcast Law Blog, would do two things:
    • Allow a broadcaster to enter into spectrum lease agreements with other companies who offer Broadcast Internet services on the spectrum of several television stations in the same market without triggering the Commission’s attribution or multiple ownership rules.
    • Seek comment on ideas for changing the FCC’s rules to further promote the deployment of Broadcast Internet services as part of ATSC 3.0.  (draft of the Declaratory Ruling and Notice of Proposed Rulemaking)
  • Last week, FCC announced that comments are due by June 22 in the review of its video description rules.  Video description refers to an audio channel provided to accompany TV programming giving a narration of what is happening on the screen to aid blind or visually impaired persons.  Currently, ABC, CBS, Fox, and NBC stations in the top 60 markets must supply video described programming, but under the FCC’s proposed new rules, those requirements would extend to markets 61 through 100 by January 1, 2021, with ten markets being added in the following four years.  More on the proposed rule changes on Broadcast Law Blog.  (Public Notice)

May 9, 2020 – May 15, 2020

  • New rules were adopted implementing streamlined and standardized public notice obligations associated with various broadcast applications. The revised rules abolish requirements for printed notices in local newspapers and pre-filing announcements for license renewal.  (News Release)  (Second Report and Order).  The effective date of these changes will be announced later, although in a separate Order, the FCC immediately waived the requirement for license renewal pre-filing announcements for all future renewal windows.   The requirements for license renewal post-filing announcements are unchanged
  • Amounts of the annual regulatory fees to be paid in September by broadcasters and other FCC-regulated communications entities were proposed for comment.  In addition to asking for comments on the allocation of the fees to be paid, the FCC asks if it can do anything to assist those who pay the fees in light of the current pandemic.  While the FCC is required by Congress to collect the regulatory fees, it asks if there are actions it can take while still complying with its statutory obligations, e.g. by allowing some companies to pay their fees over a greater period of time.  The FCC also completed the transition of TV fees to a system based on population in a station’s service area instead of the size of the market in which the station operates.  It also reduced the fees to be paid by certain VHF television broadcasters.  The comment period for the proposed 2020 regulatory fees will be set after the notice is published in the Federal Register.  (Report and Order and Notice of Proposed Rulemaking)
  • FCC Public Safety and Homeland Security Bureau released its report on the August 7, 2019 test of the broadcast Emergency Alert System.  The report set out concerns identified by the test, including issues with the technical quality of some alerts, the monitoring of the proper sources for the alerts, and the lower participation among low power broadcasters (particularly LPFM licensees).  However, the Bureau found that the broadcast-based EAS distribution method is largely effective, as the test reached 82.5% of EAS participants.  (Report)
  • Initial comment period closed in the FCC’s proceeding on Significant Viewing.  As we wrote in the Broadcast Law Blog, the proceeding asked, among other things, for comments as to whether the FCC should update its rules for establishing whether a TV station is “significantly viewed” in a market other than the one in which it is located.  A designation of significantly viewed status is important for determining whether a cable or satellite system will carry a TV station in areas that are not part of its home market.  (Significant Viewing Comments).  Reply comments are due by June 15
  • Last week, the comment period was set in the FCC’s Distributed Transmission System (“DTS”) proceeding.  Comments are due by June 12, reply comments are due by July 13.  The notice seeks comment on changes to the FCC’s rules on DTS that could expand and improve the coverage of television stations throughout their service areas as the industry begins to deploy the new ATSC 3.0 television transmission technology.  We wrote more about this rulemaking at the Broadcast Law Blog.  (Federal Register)

May 2, 2020 to May 8, 2020

  • The FCC’s Media Bureau last week made it easier for broadcast stations to rehire employees laid off due to COVID-19-related circumstances by granting relief from the broad outreach EEO requirement otherwise required when filling job vacancies.  Licensees may re-hire full-time employees who were laid off without first conducting broadcast recruitment outreach if the employees are re-hired within nine months of the date they were laid off.  As the economy hopefully turns around, this partial waiver should help stations ramp up their operations to full strength quicker than they would have been able to absent the waiver.  (Order)(Broadcast Law Blog article)
  • Sinclair Broadcast Group (“SBG”) agreed to pay a $48 million penalty—the largest penalty ever paid to the FCC by a broadcaster—and adopt a compliance plan to settle investigations into (1) SBG’s lack of disclosure during its failed merger with Tribune Media; (2) its obligation to negotiate retransmission consent agreements in good faith; and (3) sponsorship identification failures on content produced and supplied by SBG to SBG and non-SBG stations.  (News Release)
  • The FCC released the final agenda for its May 13 Open Meeting, with two items of interest to broadcasters.  It is expected that both these items will be adopted before the virtual meeting scheduled for next Wednesday. (Agenda)

o   The first would modernize and simplify the public notices broadcasters must provide upon the filing of certain applications.  This order, if adopted as drafted, would update many of the public notice requirements, end requirements for newspaper public notice, and abolish required license renewal pre-filing announcements (draft of the Report and Order).

o   The second action deals with regulatory fees. The draft order, despite opposition from VHF station licensees, declines to provide any blanket regulatory fee reductions to these stations as the FCC moves fully to television regulatory fees based on the population served by the TV station rather than the size of the market in which the station operates.  The same document sets out for comment the proposed annual regulatory fees to be paid in September 2020 by all FCC regulated entities, including radio and TV stations (draft of the Report and Order and Notice of Proposed Rulemaking).

  • The Supreme Court granted Prometheus Radio Project more time, until July 21, to file a response to the petitions by the FCC and NAB asking for review of the Third Circuit decision that rolled back the Commission’s 2017 media ownership reforms, including the abolition of the newspaper/broadcast cross-ownership rule.  If the request for review is granted, the Supreme Court will take up the case, at the earliest, during its 2021 term.  (Time Extension Request)(see this Broadcast Law Blog article for more on the appeal that Prometheus seeks to oppose).
  • The comment period closed this week in the FCC’s FM “zonecasting” proceeding.  The comments were submitted on a petition for rulemaking filed by GeoBroadcast Solutions, asking the FCC to change its rules to permit FM boosters to allow commercials, news reports or other short content to be dropped into their programming that would be different than the programming on the main station.  Under the current rules, FM boosters must retransmit 100% of the programming from their originating station.  (FM broadcast booster proceeding filings) (see this Broadcast Law Blog article for more information about the zonecasting proposal, and look for another article early this week summarizing the positions taken in the comments).
  • A Wisconsin television station filed a motion to dismiss the lawsuit brought by the President’s reelection committee claiming that an attack ad from the Priorities USA PAC which was broadcast on the station was defamatory.  The motion argued that the campaign could not sustain a claim of defamation over an advertisement the station claimed was political speech protected by law including the First Amendment. (Motion to Dismiss – and watch for a summary in the Broadcast Law Blog this week).

April 25, 2020 to May 1, 2020

  • The comment period ended in the FCC’s State of the Communications Marketplace Report proceeding.  The FCC sought comment on the report to inform its assessment of the communications marketplace that it must deliver to Congress. In addition to the video and audio marketplaces, the report looked at the wireless, broadband, wired telephone, and satellite marketplaces.  Reply comments are due by May 28.  (Report)
  • The FCC Enforcement Bureau issued a Notice of Violation to a Maryland AM station for violating the operating hours authorized by its license.  In this case, the station was authorized for daytime operation only (average monthly local sunrise time to average monthly local sunset time) and was observed operating long past 5:15 p.m., which was the average sunset time for the station’s service area in January 2019.  Notices of Violation are issued directly by Enforcement Bureau field agents and require a written response.  This serves as a good reminder to stations to abide by operating hours authorized by their license.  (Notice of Violation)
  • In response to a January letter from FCC Commissioner Michael O’Rielly regarding payola practices, Sony Music Entertainment, Warner Music Group, and Universal Music Group submitted written responses that the Commissioner posted to his Twitter feed (Universal’s response will be posted when certain confidential information can be redacted).  The record companies said there is nothing to support the allegations of payola and that any pay-to-play arrangements between the companies and radio stations are given the necessary on-air sponsorship identification.  We wrote more about this at the Broadcast Law Blog.  (@mikeofcc) (Broadcast Law Blog)
  • We published to the Broadcast Law Blog our recurring monthly feature that highlights important regulatory dates for broadcasting during the upcoming month.  May is a month where there are no regularly scheduled regulatory filings (e.g., no renewals, EEO reports, fee filings, or scheduled public file disclosures).  Nevertheless, as always, there are a number of important regulatory dates—and changes in some dates—for May of which broadcasters should be aware.  (Broadcast Law Blog)
  • The FCC voted to reorganize the Media Bureau by eliminating the Engineering Division and moving the division’s staff and work to the Industry Analysis Division.  The Commission believes this reorganization is a more effective use of available resources and should enhance the Bureau’s understanding and analysis of the media industry.  (Order)
  • In advance of the long-expected (and delayed by COVID-19) move of its Washington, DC headquarters, the FCC adopted a new official seal.  Expect to see this new seal adorning FCC materials, websites, and, when it opens, the new headquarters.  (Public Notice)
  • The FCC Media Bureau settled by consent decree an investigation into the retransmission consent negotiating practices of television stations of a television operator who  admitted to violating the good-faith negotiation rules, agreed to pay a $100,000 civil penalty, and adopted a compliance plan to be followed for three years.  (Order and Consent Decree).  This consent decree follows up on an FCC Media Bureau decision from last year which, though heavily redacted, provides more information on the good faith negotiation standards applicable to retransmission consent agreements.

April 18, 2020 to April 24, 2020

  • The Commission held an Open Meeting on April 23 and before and during the meeting acted on three items of interest to broadcasters.  The first item was a Report and Order on LPFM stations that expanded the permissible use of directional antennas, expanded the definition of minor change applications, and allowed LPFM stations to operate boosters.  The Order deferred to a later proceeding a decision on changing the rules for interference between Channel 6 TV stations and noncommercial FM stations operating on the reserved band (Report and Order – and for highlights of the issues in that Order see our Broadcast Law Blog).  The second item was a Notice of Proposed Rulemaking that seeks comment on the possible expansion of television station Video Description obligations (Notice of Proposed Rulemaking).  Finally, the FCC adopted a Report and Order and Further Notice of Proposed Rulemaking that opened use of the 6 GHz band to unlicensed wireless devices.  This move could impact certain broadcast auxiliaries.  (Note: The Report and Order and Further Notice of Proposed Rulemaking has not yet been released – News Release)
  • The FCC adopted a much-anticipated clarification of its Political File Order.  In the Order, the Commission clarified that its Political File Order is limited to requests for the purchase of broadcast time by issue advertisers whose commercials communicate a message relating to any political matter of national importance, not to requests for the purchase of broadcast time by or on behalf of a legally qualified candidate for public office.  Also clarified is the FCC’s intention to apply a standard of reasonableness and good faith decision-making to decisions made by broadcasters in: (1) determining whether, in context, a particular issue ad triggers any disclosure obligations; (2) identifying and disclosing in their online political files the candidates and political matters of national importance that are referenced in each issue ad; and (3) determining when the use of acronyms or other abbreviations in their online political files would be understandable to the general public reviewing the information about issue ads.  (Order on Reconsideration) (Broadcast Law Blog)
  • The FCC released a Public Notice announcing the procedures for the 2020-23 television license renewal cycle.  The Notice covers familiar territory like reminding licensees of their online public file, local public notice, and EEO report filing obligations.  The Commission notes that Schedule 303-S largely remains the same as it has in the past but includes changes to the Children’s TV Programming and ownership questions.  (Public Notice) (Broadcast Law Blog)
  • The Commission released the agenda for the May 13 Open Meeting, with two items for consideration that will interest broadcasters.  The first is a media modernization item that proposes to modernize and simplify the written and on-air public notices broadcasters must provide upon the filing of certain applications.  (Second Report and Order)  The second deals with 2020 regulatory fees.  In the draft FCC action, the Commission would not adopt proposals by VHF licensees to reduce their regulatory fees to account for signal limitations and degradation.  The Commission also seeks comment on its proposal to assess 2020 fees for full-power TV stations based on the population covered by the station’s contour and on the other regulatory fees it would collect later this year.  Stations can find their proposed fee in Appendix G.  (Report and Order and Notice of Proposed Rulemaking)
  • The Media Bureau announced an update to the commercial radio station license renewal form adding a question that asks stations to certify compliance with the Commission’s ownership rules in section 73.3555.  This update discards an interim procedure put in place last year after the Third Circuit Court of Appeals rejected the FCC’s ownership rule changes.  (Public Notice) (Broadcast Law Blog)
  • The chief of the FCC’s Public Safety and Homeland Security Bureau emailed EAS participants a reminder to secure their EAS devices, warning that these devices are vulnerable to hacking if not properly secured.  The Notice refers all EAS Participants to review best practices for securing their EAS systems contained in the 2015 Communications Security, Reliability and Interoperability Council IV, Working Group 3, Emergency Alert System (EAS) Subcommittee, Final Report, and in the 2014 Communications Security, Reliability and Interoperability Council IV, Working Group 3, Emergency Alert System (EAS) Subcommittee, Initial Report.
  • For more on dealing with the FCC during the pandemic, and on the many actions that the FCC has taken during the last 6 weeks – both those dealing with the current crisis and decisions made in processing its normal workload relating to broadcasting – check out the webinar which we presented on Tuesday to broadcasters across the country, available by clicking on this link.

April 11, 2020 to April 17, 2020

  • The FCC and the National Association of Broadcasters with a group of industry intervenors both filed petitions for writs of certiorari in Prometheus Radio Project v. FCC.  (News Release) asking the Court to review the judgment of the Third Circuit Court of Appeals that forced the FCC to abandon its 2017 media ownership reforms and return to its prior rules. For more on the Third Circuit decisions, see our Broadcast Law Blog articles here and here.
  • FCC to hold its monthly Open Meeting by teleconference on April 23—final agenda released. (Agenda).  Issues of importance to broadcasters include changes to the rules on LPFM stations and interference between Channel 6 TV stations and noncommercial FM stations operating on the reserved band (FCC Draft Order – and for highlights of the issues in that order see our Broadcast Law Blog); a Notice of Proposed Rulemaking on the possible expansion of television station Video Description obligations (FCC Draft Order); and a Draft Order and Notice of Further Rulemaking dealing with the use of the 6 mHz band for unlicensed wireless which could impact certain broadcast auxiliaries (FCC Draft Order).
  • Comment (May 14, 2020) and reply comment (June 15, 2020) dates were set for comments on the FCC’s Notice of Proposed Rulemaking on Significant Viewing – a rulemaking that addresses important issues that could impact carriage of television stations by cable systems and satellite television systems. (Public Notice)  You can read more about some of the specific questions asked in the NPRM at the Broadcast Law Blog. (Broadcast Law Blog)
  • FCC to consider “zonecasting” for FM stations—a proposal to use boosters to allow FM stations to target different parts of their service areas with different news or advertising.  Initial comments due May 4. (Broadcast Law Blog)
  • The FCC’s Audio Division released a decision resolving a translator interference complaint (Decision), one of the first cases interpreting the new rules for the resolution of such complaints (see our Broadcast Law Blog for more information on those interference resolution standards).
  • Chairman Pai gave remarks to the Interamerican Development Bank and the International Institute of Communications Online Workshop titled “Regulation In Times of Pandemics: Lessons For The Future.”  In those remarks, the Chairman noted that broadcasters have used their platform to encourage social distancing, expanded news coverage of the pandemic to help Americans stay safe and healthy, and raised funds in their communities to help those in need. (Remarks)