• Congress passed a $1.2 trillion spending bill to keep the federal government funded through the end of this fiscal year on September 30 – thereby narrowly averting a government shutdown that would have begun as of midnight on Saturday, March 23.
  • The FCC issued a Notice of Apparent Liability proposing to fine Nexstar Media Group, Inc. $1,224,790 and Mission Broadcasting, Inc. $612,395.00 for their purported violations of the FCC’s broadcast ownership rules resulting from Mission’s acquisition of WPIX, New York, NY.  The FCC found that Mission’s acquisition of WPIX apparently resulted in Nexstar taking de facto control of WPIX without prior FCC authorization.  Although Mission and Nexstar have a local marketing agreement (LMA) in place – pursuant to which Nexstar programs WPIX on Nexstar’s behalf while Mission retained ultimate control over the station’s operations – the FCC found that, in practice, Nexstar actually controlled the station’s finances, personnel, and programming.  The FCC also found that Nexstar’s apparent control of WPIX resulted in Nexstar exceeding the 39% national TV audience reach limit, the National Ownership Cap, when added to Nexstar’s other TV station interests.  To remedy Nexstar’s purported violation of the National Ownership Cap, the FCC gave the parties the option of, within one year of the FCC’s issuance of an order finally ordering the fine or the payment of the fine, Mission divesting WPIX to an unrelated third party, or Mission selling WPIX to Nexstar and Nexstar to simultaneously divest a sufficient number of other TV stations to reduce below the Cap its national footprint.  Nexstar and Mission have 30 days to respond to the proposed findings in the Notice of Apparent Liability, which Nexstar stated it will do.  Chairwoman Rosenworcel stated that this action was necessary to enforce the 39% National Ownership Cap imposed by Congress.  Commissioner Carr issued a statement suggesting that Mission and Nexstar had disclosed, when Mission first acquired WPIX, much of the information relied on by the Commission in the Notice of Apparent Liability, and based on that information, the FCC approved the acquisition, thus raising questions to be reviewed when a response to the Notice is filed as to whether the parties justifiably relied on the Commission’s prior decision. 
  • The FCC’s Enforcement Bureau released its first EEO audit notice for 2024, which targets 250 radio and television stations for review of their EEO compliance.  The FCC randomly audits approximately 5% of all broadcast stations each year regarding their EEO compliance.  Audited stations and their station employment units – which are commonly owned stations serving the same area – must provide to the FCC their last two years of EEO Annual Public File Reports and documentation demonstrating that the stations did everything that is required under the FCC’s EEO rules.  Audited stations have until May 6, 2024, to upload that information to their online public inspection files.  As with the last FCC audit, the FCC staff will review the audit responses and ask for additional information if they find the public file documentation to be incomplete, but they will not inform audited stations that their EEO performance was found satisfactory.  See this our article here for more detail on EEO audits and how seriously the FCC takes broadcasters’ EEO obligations.
  • The FCC released the full text of its Report and Order adopted at its regular monthly Open Meeting the week before last, in which it requires cable operators and direct broadcast satellite (DBS) providers to specify the “all-in” price for video programming in their promotional materials and on subscribers’ bills.  The “all-in” price includes all video programming charges, including those for broadcast retransmission consent, regional sports, and other programming.  Cable operators and DBS providers have until December 19, 2024 to comply with the new rules, unless the Office of Management and Budget (OMB) completes its review of the new rules at a later date.  Small cable operators (those with $47 million or less in annual receipts), however, have until March 19, 2025 to comply with the new rules.
  • The FCC’s Media Bureau released a Notice of Proposed Rulemaking (NPRM) in which it proposes to amend the FM Table of Allotments by downgrading the class of vacant Channel 245B to Channel 241B1 at Mattoon, Illinois.  The Bureau stated that downgrading the allotment was necessary because the existing Channel 245B did not comply with the FCC’s the 74-kilometer minimum separation distance requirement since it was short-spaced with a licensed FM station operating on Channel 248B located only 10 kilometers away.  The Bureau asserts that downgrading the vacant allotment to Channel 245B1 would result in compliance with the FCC’s minimum distance requirement.  Comments and reply comments responding to the NPRM will be due May 13 and May 28, respectively. 
  • The Bureau dismissed a New Mexico construction permit application for a new noncommercial (NCE) FM station filed during the 2021 NCE FM filing window because it was not signed by an officer of the applicant.  A party who filed a mutually exclusive application (a conflicting application which could not be granted consistent with the FCC’s technical rules) objected by noting that the signature was from a person not identified as an officer in the application.  The Bureau agreed, and dismissed the application as applicants must strictly adhere to the FCC’s signature requirements in their initial application, meaning that deficiencies cannot be fixed through an amendment.  As a result of the dismissal, the Bureau accepted the objector’s application for filing as a singleton application (one that is not predicted to cause interference to any other translator application or any existing station) which will be further reviewed and potentially granted at a later time.
  • The Media Bureau also took several actions dealing with recently filed applications for new LPFM stations:
    • The Bureau released a Public Notice in which it provided further guidance on the settlement window for resolving mutually exclusive (MX) new LPFM construction permit applications filed during the December 2023 filing window.  As we discussed last week, the Bureau identified several groups of MX applications and announced that such applicants have until May 14, 2024 to file settlement agreements or technical amendments to resolve their conflicts.  In this week’s Notice, the Bureau clarifies that MX applicants may also submit time-share agreements (two or more parties agree to operate a station at different times) during the settlement window to resolve their conflicts.  Time-share agreements must be in writing and signed by each party and must specify the proposed hours of operation of each party.  Each time-share party must operate the LPFM station for at least 10 hours per week and cannot operate the station simultaneously.  Time-share agreements must also be limited to three MX applicants, propose the grant of technically acceptable applications, and not create new MX conflicts. 
    • The Bureau dismissed an application for a new LPFM construction permit in Rhode Island because the applicant failed to demonstrate that it was a non-profit organization eligible to be an LPFM licensee.  An objector claimed that the applicant could not be an LPFM licensee because its certificate of authority was revoked by the Rhode Island Secretary of State.  The applicant responded that its certificate of authority had been subsequently reinstated.  The Bureau nevertheless dismissed the application because the applicant’s certificate of authority was revoked as of the date that the application was filed.  The Bureau, however, stated that the application could be reinstated if the applicant demonstrated that the applicant remained qualified as a non-profit entity under Rhode Island law while its certificate of authority was revoked, or that its reinstatement had retroactive effect. 
    • The Bureau affirmed its dismissals of New Hampshire and Mississippi LPFM construction permit applications because the applicants failed to meet the co-channel and/or second-adjacent channel spacing requirements necessary for protecting nearby full-power FM stations.  The applicants claimed that the failure resulted from their engineers’ typographical errors and requested that the Bureau allow them to amend their applications to fix their errors.  The Bureau rejected the applicants’ requests because typographical error claims are not an acceptable basis for reinstating and amending an LPFM application, as the rules state that the failure to meet spacing requirements (or to request a waiver) in an initial application is fatal to an application and cannot be cured by an amendment.

On our Broadcast Law Blog this past week, we looked at the trademark issues that can arise from uses of the well-known words and phrases associated with the NCAA basketball tournaments in advertising, promotions, and other media coverage (see here and here).

Yesterday, I wrote about the history of the NCAA’s assembling of the rights to an array of trademarks associated with this month’s college basketball tournaments.  Today, I will provide some examples of the activities that can bring unwanted NCAA attention to your promotions or advertising, as well as an increasingly important development that should be considered when considering whether to accept advertising.

Activities that May Result in a Demand Letter from the NCAA

The NCAA acknowledges that media entities can sell advertising that accompanies the entity’s coverage of the NCAA championships.  However, similar to my discussion in February on the use of Super Bowl trademarks (see here) and my 2018 discussion on the use of Olympics trademarks (see here), unless authorized by the NCAA, any of the following activities may result in a cease and desist demand:

  • accepting advertising that refers to the NCAA, the NCAA Basketball Tournament, March Madness, The Big Dance, Final Four, Elite Eight or any other NCAA trademark or logo (The NCAA has posted a list of its trademarks here.)
    • Example: An ad from a retailer with the headline, “Buy A New Big Screen TV in Time to Watch March Madness.”
    • Presumably, to avoid this issue, some advertisers have used “It’s Tournament Time!”
  • local programming that uses any NCAA trademark as part of its name
    • Example: A locally produced program previewing the tournament called “The Big Dance: Pick a Winning Bracket.”
  • selling the right to sponsor the overall coverage by a broadcaster, website or print publication of the tournament.
    • Example: During the sports segment of the local news, introducing the section of the report on tournament developments as “March Madness, brought to you by [name of advertiser].”
  • sweepstakes or giveaways that include any NCAA trademark in its name (see here)
    • Example: “The Final Four Giveaway.”
  • sweepstakes or giveaways that offer tickets to a tournament game as a prize
    • Example: even if the sweepstakes name is not a problem, offering game tickets as a prize will raise an objection by the NCAA due to language on the tickets prohibiting their use for such purposes.
  • events or parties that use any NCAA trademark to attract guests
    • Example: a radio station sponsors a happy hour where fans can watch a tournament game, with any NCAA marks that are prominently placed on signage.
  • advertising that wishes or congratulates a team, or its coach or players, on success in the tournament
    • Example: “[Advertiser name] wishes [Name of Coach] and the 2022 [Name of Team] success in the NCAA tournament!”

There is a common pitfall that is unique to the NCAA, namely, basketball: tournament brackets used by advertisers, in newspapers or other media, or office pools where participants predict the winners of each game in advance of the tournament.  The NCAA’s position (see here) is that the unauthorized placement of advertising within an NCAA bracket and corporate sponsorship of a tournament bracket is misleading and constitutes an infringement of its intellectual property rights.   Accordingly, it says that any advertising should be outside of the bracket space and should clearly indicate that the advertiser or its goods or services are not sponsored by, approved by, or otherwise associated with the NCAA or its championship tournament.

Continue Reading Guard Yourself Before Moving Forward When Accepting or Engaging in Advertising or Promotions that Use FINAL FOUR or Other NCAA Trademarks:  2024 Update – Part II

Each year, as the NCAA basketball tournaments get underway, my colleague Mitch Stabbe highlights the trademark issues that can arise from uses of the well-known words and phrases associated with the games in advertising, promotions, and other media coverage. Here is Part I of his review. Look for Part II tomorrow.

The last few years have filled with changes in college sports.  Teams that have been part of a conference for decades have decided to jump to another conference, with movement of different schools from or to the Big 12 Conference, the Big Ten Conference, the Pac 12, the Atlantic Coast Conference, the Southeastern Conference and others.  In addition, we are starting to see the consequences of the NCAA finally allowing athletes to monetize the commercial use of their name, images and likenesses, now called “Name, Image and Likeness” (NIL) and previously described as the Right of Publicity.

One thing that has not changed is the NCAA’s hard line against unauthorized uses of FINAL FOUR or its other marks.  Thus, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use of terms and logos associated with the tournament.

NCAA Trademarks

The NCAA owns the well-known marks March Madness®, The Big Dance®, Final Four®, Women’s Final Four®, Elite Eight,® Women’s Elite Eight®  and The Road to the Final Four® (with and without the word “The”), each of which is a federally registered trademark.  The NCAA does not own “Sweet Sixteen” – someone else does – but it does have federal registrations for NCAA Sweet Sixteen® and NCAA Sweet 16®.

Continue Reading Guard Yourself Before Moving Forward When Accepting or Engaging in Advertising or Promotions that Use FINAL FOUR or Other NCAA Trademarks:  2024 Update – Part I

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC held its March regular monthly open meeting and adopted two items of interest:
    • A Notice of Proposed Rulemaking in which the FCC proposes a new Emergency Alert System alert code for missing and endangered adults to be used by EAS participants, including broadcasters.  In the Notice, the FCC is seeking comment on whether to apply the new EAS alert code to individuals over the age of 17, missing adults with special needs or circumstances, and missing adults who are endangered or who have been abducted or kidnapped. 
    • A Report and Order adopting rules requiring cable and direct broadcast satellite service providers to state in promotional materials and on subscriber bills the price of video programming as a clear, easy-to-understand, and accurate single line item.  This “all-in” price is to include all video programming charges, including those for broadcast retransmission consent, regional sports, and other programming.  As of the date we are publishing this article, the FCC has not released the final version of the Order, but the FCC’s press release summarizing its decision can be found here.
  • Broadcasters and other groups lobbied the FCC this week on two pending Notices of Proposed Rulemaking:
    • Currently being considered by the FCC Commissioners is a decision on the October 2022 Second Notice of Proposed Rulemaking on foreign government sponsored programming which, as we wrote here, proposes to require that all buyers of program time sign a 14 paragraph standardized certification form, and that stations complete a similar certification verifying that they received the certification from the program buyer. The buyer’s certification would state whether it is a foreign government representative or if it has been paid by a foreign government to produce the program, and both the buyer and licensee certifications would have to be included in a station’s public file.  In anticipation of an FCC decision, the NAB, along with a group of broadcasters, urged the FCC this week not to adopt the proposed rules because, among other reasons, they are unduly burdensome and are unnecessarily broad given that foreign government sponsored programming appears on less than one-tenth of one percent of all broadcast stations. 
    • Comments were due this past week responding to the FCC’s January Notice of Proposed Rulemaking (NPRM) proposing to prioritize the review of certain applications filed by a broadcast station providing at least three hours per week of local programming.  As we discussed here, the proposed prioritization policy is intended to incentivize stations to provide local programming – which the majority of the Commissioners suggested was necessary after the FCC’s 2017 elimination of the main studio rule (see our articles here and here).  Several commenters (see here, here, and here) state that the prioritization would not incentivize broadcasters to provide local programming.  Some commenters propose alternatives to incentivize localism, including providing funding for news from auction proceeds or adopting policies that would foster a broadcaster’s financial ability to compete in today’s marketplace, including lessening ownership restrictions, accelerating ATSC 3.0 rollout, and regulating virtual MVPDs.  Others (see here and here) oppose reinstating the main studio rule because it would not increase local programming and would disadvantage broadcasters – particularly noncommercial broadcasters.  One commenter (here) argues the contrary, submitting that the FCC should not have completely eliminated the main studio rule and supporting the proposed preference (though admitting that it had no hard evidence to support its claim that the elimination of the main studio rule harmed the public interest). 
  • The FCC released a Notice of Proposed Rulemaking in which it proposes changes in how it calculates annual FCC regulatory fees for earth stations to properly account for the FCC resources used in regulating such licenses.  This proposed change would result in increased earth station regulatory fees – the question for comment is how much the increase should be.
    • It was also reported (see articles here, here, and here) that the budget proposed by the President this week would raise the amount allocated to fund the FCC by 14.8%.  This would result in increased annual regulatory fees as these fees are used to repay the government for the cost of FCC regulation. 
  • The FCC’s Bureaus took numerous actions dealing with fines imposed on broadcasters:
    • The Enforcement Bureau entered into a Consent Decree with a Maine LPTV station for not passing through to viewers closed captioning in its MeTV network programming.  The Bureau also faulted the licensee for failing to monitor and maintain its captioning equipment.  The Consent Decree requires that the station implement a compliance plan and pay a $2,500 penalty – which would increase to $15,000 if the station fails to comply with the Consent Decree’s terms.
    • The Media Bureau proposed a $16,200 fine against the licensee of a Georgia AM station and terminated its FM translator’s license under Section 312(g) of the Communications Act for failing to operate from its authorized location for more than twelve consecutive months.  The Bureau alleged that the AM station periodically operated at variance from its license without prior FCC authorization and discontinued operations without notifying the FCC or requesting authority to go silent, transferred control of the station and the translator without prior FCC authorization, and failed to respond to Commission inquiries about its operation. 
    • The Bureau proposed a $9,500 fine against a Missouri LPTV station for its alleged failure to timely file an application for a “license to cover” a construction permit.  The construction permit authorized the station to change channels, and the license application certifying the completion of construction was not filed until 4 years after that completion.  The station was also faulted for operating on its new channel for nearly six years without authorization after an STA to do so expired in 2018.  Although the FCC’s forfeiture guidelines prescribe a $26,000 fine for these violations, the Bureau reduced the proposed fine to $9,500 because LPTV stations provide secondary service.  The Bureau, however, noted that the proposed fine was still larger than fines imposed on LPTV stations in similar circumstances because of the station’s nearly six years of unauthorized operations.
    • The Bureau cancelled its proposed $3,000 fine for a California TV station’s failure to timely upload six Quarterly Issues/Programs Lists to its online public inspection file.  Based upon the station’s response to the proposed fine, the Bureau determined that the station only failed to timely upload four Quarterly Issues/Programs Lists to its public file – which the Bureau found did not to require a fine.  The Bureau nevertheless cautioned the station in the future to comply with its public file obligations.
  • The Media Bureau updated the FM Table of Allotments to list the following channels as vacant following the cancellation of authorizations for stations on each of these allotments: North English, Iowa (Channel 246A); Colfax, Louisiana (Channel 267A); Calhoun City, Mississippi (Channel 272A); Battle Mountain, Nevada (Channel 253C2); Independence, Oregon (Channel 274C0); Huntington, Oregon (Channel 294C1); Monument, Oregon (Channel 280C3); Murdo, South Dakota (Channel 265A); Selmer, Tennessee (Channel 288A); Camp Wood, Texas (Channel 251C3); Cotulla, Texas (Channel 289A); Los Ybanez, Texas (Channel 253C2); Ozona, Texas (Channel 275A); and Stamford, Texas (Channel 233A).  The FCC will in the future announce a window for the filing of applications for new stations to operate on these allotments.
  • The Media Bureau took several actions dealing with recently filed applications for new LPFM stations:
    • The Bureau identified several groups of mutually exclusive (conflicting applications which cannot all be granted consistent with the FCC’s technical rules) new LPFM construction permit applications filed during the December 2023 filing window, a list of which can be found here.  Mutually exclusive applicants identified in the public notice have until May 14, 2024 to enter into and file settlement agreements or to submit technical amendments to resolve the technical conflicts. 
    • The Bureau dismissed a Rhode Island LPFM construction permit application because the applicant failed to meet the FCC’s LPFM licensee eligibility requirements because it was not a “local” entity (an LPFM applicant needing to either have its headquarters, or 75% of its board members residing, within ten miles of its proposed LPFM transmitter site).  After a challenge, the applicant amended its application to provide a new headquarters address within the ten-mile limit, but the Bureau refused to accept the amended address because the applicant must show that it is local at the time of the filing of its application.
    • The Bureau affirmed its January dismissals of Tennessee and Massachusetts LPFM station construction permit applications because the applicants failed meet the co-channel spacing requirements necessary for protecting nearby full-power FM stations.  The applicants claimed that the failure resulted from their engineers’ typographical errors and requested that the Bureau allow them to amend their applications to fix their errors.  The Bureau rejected the applicants’ requests because typographical error claims are not an acceptable basis for reinstating and amending an LPFM application, as the rules state that the failure to meet spacing requirements (or to request a waiver) in an initial application is fatal to an application and cannot be cured by an amendment . 
    • The Bureau dismissed a Nevada LPFM station construction permit application proposing to provide public safety radio services.  The Bureau rejected the applicant’s argument that a for-profit entity may provide public safety radio services as an LPFM station licensee – such licenses are reserved for non-profit or governmental groups.  The Bureau also found that the applicant’s second-adjacent channel waiver request was deficient because it was not supported by any engineering studies to demonstrate how it would protect a nearby second-adjacent channel FM station from interference. 

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • Last week, we noted that petitions for review of the FCC’s December 2023 Report and Order which concluded its 2018 Quadrennial Regulatory Review of the local broadcast ownership rules, had been filed in three different Courts of Appeals.  This week, the lottery used to assign the Court that will hear the consolidated appeal decided on the Eighth Circuit, headquartered in St. Louis.  This is the first time in twenty years that an appeal of a Quadrennial Review will not be heard in the Third Circuit in Philadelphia, a Court which had been very reluctant to allow any relaxation of the ownership rules (with broadcasters having to get a Supreme Court decision to finally overturn the Third Circuit and uphold the FCC’s 2017 decision relaxing some of the local ownership rules, including abolishing the newspaper-broadcast cross-ownership rules – see our article here on the Supreme Court’s decision).  Joining the appeal in the Eighth Circuit will be the NAB, which this week filed its appeal of the FCC’s December decision.  Among the grounds that it cited in asking the Court to overturn the December decision was that the FCC was directed by the law requiring the Quadrennial Review to relax the ownership rules as competition dictated, but the decision disregarded ample evidence of vastly increased competition faced by broadcasters from digital media platforms, proceeded “as if the competitive environment from decades ago remains essentially unchanged,” and instead tightened the rules. As we discussed here, the FCC December’s decision declined to make any substantial changes to its broadcast ownership rules other than expanding the prohibition that had been in place, which prohibited one network-affiliated top-4 TV station (i.e., ABC, CBS, Fox, and NBC) from acquiring the top-4 network programming of another station in the market to move it to a commonly-owned full-power station, by extending that prohibition to situations where the network programming is purchased to be moved to a commonly-owned LPTV station or multicast stream. 
  • The FCC announced that comments are due April 8 in response to its February Notice of Proposed Rulemaking, which proposes to implement multilingual capabilities for the Emergency Alert Service (EAS).  The FCC is proposing that public safety and other groups that originate alerts would be provided pre-scripted, pre-translated alert messages in thirteen non-English languages that the originators can distribute during emergencies to TV and radio broadcasters, cable service providers, and other EAS participants.  Among the questions asked in the NPRM is whether a station receiving these pre-scripted alerts in multiple languages would have to broadcast the alert only in the language of its programming, or whether it would have additional obligations to broadcast alerts in other languages common in its service area. Reply comments are due May 6. 
  • The FCC’s Commissioners are currently considering a decision on petitions for reconsideration of the FCC’s 2020 elimination of the rule prohibiting two commonly owned radio stations in the same service (AM or FM) serving the same area from duplicating more than 25% of their programming (see our article here on that 2020 decision).  This week, the NAB again (see prior filing here) urged the FCC not to reinstate the rule without refreshing the record to determine if there have been any real world harms caused by the elimination of the rule in the more than three years since the rule was abolished.  The NAB emphasized that collecting updated information would allow the FCC to determine the actual effect of the rule’s elimination.  That real information should be used to make a decision instead of relying on predictions in the reconsideration filings formulated over three years ago when the rule was still in place as to how the rule’s elimination would affect broadcasters’ programming. 
  • The FCC’s Enforcement Bureau issued two Notices of Illegal Pirate Radio Broadcasting to landowners in Greenville, South Carolina and Maplewood, New Jersey for allegedly allowing pirates to broadcast from their properties.  The Bureau warned the landowners that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowners continued to permit any individual or entity to engage in pirate radio broadcasting from their properties.
  • The FCC’s Media Bureau issued several allocations decisions of interest to broadcasters:
    • The Bureau granted a modification application filed by an Illinois AM station over an objection that claimed that the station’s requested reduction of its nighttime power from 50 kW to 37.5 kW did not meet the FCC’s technical requirements for Class A AM stations (commonly known as “clear channel” stations).  The objection also suggested that if the application was not denied, the station should be reclassified as a Class B station and lose certain nighttime interference protections.  The Bureau rejected the objector’s arguments because the station had been classified as a Class 1-B AM station, a classification done away with in the 1990s, when former Class 1-B stations were grandfathered to permit nighttime operations at less than 50 kW.  The Bureau noted that this exception allowing lower nighttime power applies to a very small number of grandfathered clear channel stations. 
    • The Bureau granted a TV station’s petition for rulemaking and substituted Channel 29 for Channel 2 at Greenville, South Carolina.  The FCC agreed that the station had justified its moved by citing the station’s poor reception on VHF Channel 2 by viewers (this is another instance where the FCC recognized the superiority of UHF channels for the transmission of digital signals). 
    • The Bureau also granted a TV station’s proposal to allocate reserved noncommercial educational (NCE) TV Channel 12 to Waynesboro, Virginia, as the community’s first local TV service and its first NCE TV service.  The Bureau will release a public notice in the future announcing when it will accept applications for new NCE TV stations to operate on this new allotment.

Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • Congress passed, and the President signed, a continuing resolution to extend funding for the Federal government, including the FCC, averting a partial government shutdown.  Funding for some government agencies is extended through March 8, with the remainder funded through March 22, in hopes that a more permanent funding solution will be agreed to this week.  On our Broadcast Law Blog, this past week we looked at the regulatory dates of importance to broadcasters in March, noting that many dates would be postponed if there was a government shutdown, a risk that will be averted if permanent funding is adopted. 
  • Petitions for review were filed in three separate federal circuit courts seeking to overturn the FCC’s December 2023 Report and Order concluding its 2018 Quadrennial Regulatory Review of the local broadcast ownership rules.  As we discussed here, the FCC concluded its 2018 review without making significant changes to its ownership rules other than extending the prohibition on one network-affiliated top-4 TV station (i.e., ABC, CBS, Fox, and NBC) acquiring the top-4 network programming of another station in the same market and then moving that programming to a commonly owned LPTV station or multicast stream.  The petitioners argue that the December decision unnecessarily maintained and tightened the broadcast ownership rules despite evidence of increased competition from digital media platforms.  The petitions argue that the statute mandating the Quadrennial Review is meant to relax broadcast ownership restrictions because of new competition, not to tighten those rules.  Additional appeals can be filed through April 15, so it is possible that other parties will also file appeals of the December Order. 
  • Comments were filed in two open FCC proceedings:
    • Comments were filed this week on the FCC’s December 2023 Notice of Proposed Rulemaking proposing to require cable operators and direct broadcast satellite (DBS) providers to report to the FCC TV blackouts caused by failed retransmission consent negotiations with TV stations (see our discussion here).  The NCTA  and the American Television Alliance support the reporting requirement, both blaming broadcasters for these blackouts.  In contrast, the National Association of Broadcasters opposes the reporting requirement contending, among other arguments, that the reporting would lead to more retransmission consent disputes because cable advocates will encourage blackouts and the resulting public filings to put pressure on regulators to change the must carry/retransmission consent rules.  The NTCA – The Rural Broadband Association also opposes the requirement because the reports would be burdensome for small cable providers and would fail to collect sufficient information regarding the root causes of TV blackouts.
    • The FCC’s Commissioners are currently considering a decision on petitions for reconsideration of the FCC’s 2020 elimination of the rule prohibiting two commonly owned radio stations in the same service (AM or FM) serving the same area from duplicating more than 25% of their programming (see our article here about the repeal of the rule).  This week, the NAB urged the FCC not to reinstate the rule without refreshing the record to determine if there have been any real world harms caused by the elimination of the rule in the over three years since the rule was abolished. REC Networks, musicFIRST Coalition, and Future of Music Coalition asked that the rule be reinstated, not because of any demonstrated harms caused by the abolition of the rule, but because of a procedural argument that the FCC violated its rulemaking procedures by not providing enough public notice that it was considering the elimination of the rules for FM stations before it made its 2020 decision.
  • The FCC’s Media Bureau announced that April 1 is the comment deadline for responding to the NAB and Xperi, Inc.’s petition for clarification of a digital FM signal’s maximum allowable operating power proposed in the FCC’s August 2023 Notice of Proposed Rulemaking.  NAB and Xperi seek to clarify an ambiguity in the expression of the maximum digital FM power levels permitted for multichannel hybrid service modes, proposing the addition of clarifying text to the rules. Reply comments are due April 15.
  • The Bureau issued three Reports and Orders (see here, here, and here) allotting new FM channels to several Hawaii communities: Koloa, Waimea, Lihue, Princeville, Puhi, and Kekaha.  The Bureau will in the future announce the opening of the filing windows for construction permit applications for new FM stations to operate on these new allotments. 
  • The Bureau granted the requests of Fox News Channel, ESPN, and MSNBC for exemption from the FCC’s audio description rules applicable to the top five nonbroadcast networks. Audio description provides narrated descriptions of a TV program’s key visual elements during natural pauses in the program’s dialogue for the benefit of individuals who are blind or visually impaired.  Like most TV stations affiliated with the Top 4 TV networks, covered non-broadcast networks stations must provide a certain amount of audio described programs per calendar quarter.  The Bureau exempted these networks from the audio description requirements because they provided on average less than the required 50 hours of non-exempt programming, as most of their programming is exempt because it is live or near-live. 
  • The Bureau affirmed its dismissal last month of an application for a new LPFM station construction permit in Pennsylvania because the applicant failed to show that it met the second-adjacent channel spacing requirements to protect a nearby full-power FM station.  The applicant asked the Bureau to reconsider the dismissal because its engineer inadvertently failed to include a second-adjacent channel waiver request with the application.  The Bureau rejected the request because the rules require that an LPFM application include such a waiver request in its initial application, so that request cannot be provided as a later amendment. 
  • The NAB called for Congress to prioritize policy issues affecting broadcasters, including: the passage of the AM Radio for Every Vehicle Act to mandate that auto manufacturers include AM radio in new cars (see our discussions here and here); the passage of the Journalism Competition and Preservation Act to allow broadcasters to jointly negotiate with dominant digital platforms to ensure fair compensation for accessed online content (see our discussions here and here); encouraging the FCC to refresh its record regarding the regulation of streaming services as virtual Multichannel Video Programming Distributors (vMVPDs); the passage of the Local Radio Freedom Act – a resolution opposing a new sound recording performance royalty on broadcasters (see our discussions here and here); supporting the NextGen TV standard (ATSC 3.0) for broadcasters; and regulating the use of artificial intelligence (AI) such that its use does not threaten local broadcast journalism.  Also on the subject of AI, the NAB announced that it will open its upcoming NAB show this April in Las Vegas with an AI humanoid robot to discuss a study concerning audience perspectives on AI’s use in broadcast media.
  • The FCC announced its receipt of a Technology & Engineering Emmy® Award by the National Academy of Television Arts & Sciences for the creativity and engineering design of the FCC’s Broadcast Incentive Auction, which it will receive at the NAB’s New York convention this October.

Also on our Broadcast Law Blog, we discussed what the FCC’s reinstatement of the FCC Form 395-B EEO reporting requirement means for broadcasters – including the implications of the reported employment data being readily available to the public through stations’ online public inspection files.  We also discussed whether the FCC’s recent efforts to increase regulation of broadcasters are appropriate given the current state of competition and the deregulatory trends of the past 40 years. 

While there are a number of regulatory deadlines scheduled for broadcasters in the month of March, there is also the potential for some of those to shift if we have a federal government shutdown.  As of the date of the publication of this article, we do not know if a federal government shutdown will occur this month, with the FCC and FTC currently being funded only through March 8.  As we recently discussed here, the FCC and other government agencies may have to cease all but critical functions if they do not have any residual funds to continue operations during a shutdown.  Therefore, if Congress fails to extend funding of the FCC and other government agencies past March 8, many of the regulatory deadlines discussed below will likely be postponed. If there is a shutdown, and any of the deadlines below apply to you, be sure to research how the shutdown affects your operations.

There are certain technical deadlines likely not affected by any shutdown.  Those include the requirement that, by March 11, broadcasters using Sage EAS equipment implement the requirement that, when a station receives an over-the-air EAS alert, it must wait at least 10 seconds to determine if a CAP alert has been sent through the IPAWS system and, if it has, the station should rebroadcast that internet-delivered CAP alert rather than the one received over the air.  We wrote more about that requirement on our Broadcast Law Blog, here. For stations using other EAS equipment, the deadline was December 12, 2023 to implement this requirement but as Sage was delayed in pushing out its equipment update, users of that equipment were given until March 11 to comply with this requirement. 

Continue Reading March Regulatory Dates for Broadcasters – Sage EAS Compliance Deadline, Effective Dates of New FCC Rules, Comment Deadlines, Daylight Savings Time, Political Windows, and More

When you have been representing broadcasters in Washington for as long as I have, you see cycles in regulation of the industry.  I was reminded of how long the FCC has been on a deregulatory cycle in reading today’s Washington Post obituary of former Democratic FCC Chair Charlie Ferris, who headed the FCC many decades ago when I interned there and when I later started to work in private practice representing broadcasters.  One line in the Post article in particular stood out – where Ferris was said to have “argued that unless regulations were ‘improving the market,’ they ‘were nothing but a nuisance.’”  Since the administration of Chairman Ferris, the FCC has generally moved forward to implement that philosophy of eliminating unnecessary regulation, with only occasional consideration given to the reinstatement of certain regulations (efforts that were often unsuccessful).  With the spate of recent rulings from the FCC, one questions whether the direction that Chairman Ferris pointed the FCC is now being slowed or reversed at a time when the market may well be crying out for an increase in the speed of that deregulation.

The obituary itself quoted one media observer as suggesting that the deregulatory direction in which Ferris took the FCC might not have been entirely successful, based on a persistent lack of minority ownership of broadcast properties, and “’a shortage of local, professional, accountable reporting’ in many communities.”  But are those failings ones that are attributable to the deregulatory trends of the FCC, or greater marketplace forces that have strained not just broadcasting but all traditional media?  In reading the media headlines in the last few weeks, one can’t help but conclude that the latter is more likely the cause, and that another quote from Chairman Ferris cited in the article has never been more appropriate, as he warned broadcasters: “If you cannot compete with new technologies, you will be overcome by them.”  As we’ve argued in this blog before (see for instance our article here reflecting on the warnings of another former Chairman, Ajit Pai), given the slew of new technologies available to consumers, imposing new rules on a broadcast industry flooded with new competition for audience and revenues simply does not make sense.

Continue Reading Just Because the FCC Can Regulate Broadcasting, Should It? 

On February 22, the FCC released an Order reinstating the requirement for radio and television broadcasters, commercial and noncommercial, to annually file an FCC Form 395-B.  All station employment groups with 5 or more full-time employees would need to classify all station employees, both full-time and part-time, by race or ethnicity and gender, as well as by the type of job they perform at the station (see the most current version of the form here).  The form, which will be amended to allow employees to be classified as “non-binary” as well as male and female, will likely need approval of the Office of Management and Budget under the Paperwork Reduction Act before broadcasters will be required to comply.  The Form would be filed by September 30 of each year after the effective date, reporting on the employment profile of the station in a pay period in July, August, or September (the same pay period to be used each year).

The Form is not new, though its use has been on hold for over 20 years.  A version of this form had been used by the FCC in the 1980s and 1990s, but its use was put on hold in 1998 as the result of court decisions finding unconstitutional the FCC’s use of this information to impose additional regulatory burdens on broadcasters whose employment profile did not reflect the demographics of its service area.  The court’s concern was that these additional regulatory actions forced broadcasters to make hiring decisions based on race or gender, a form of prohibited discrimination. 

Continue Reading Reinstating FCC Form 395-B Reporting on the Race and Gender of Broadcast Employees – What the Action Means for Broadcasters

Here are some of the regulatory developments of significance to broadcasters from this past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC adopted an Order that will reinstate FCC Form 395-B, which requires broadcasters to annually report their employees’ race or ethnicity and their gender, while classifying the employees in job categories (e.g., Officers and Managers, Professionals, Sales Workers, Clerical – see the most recent version of the Form for all the categories).  This week’s decision said that the collection of this information was required to provide Congress with regular snapshots of the demographics of the broadcast industry.  The Form 395-B, which will be due annually on or before September 30, will be included in stations’ public files.  The use of the form was suspended over twenty years ago because two Court decisions found that the FCC’s use of race and gender information to penalize broadcasters whose workforce did not reflect the demographics of their service area compelled unconstitutional race-based hiring decisions (for more information, see our Broadcast Law Blog article posted last year when the FCC asked for comments on the proposed return of the form).  This week’s decision also adopted rule changes prohibiting the FCC from using the data from the reinstated Form 395-B to judge a broadcaster’s compliance with the FCC’s EEO outreach policies, concluding that this prohibition would avoid the constitutional concerns that had been raised by the Courts.  Commissioners Carr and Simington issued dissenting statements, questioning the conclusion that the public reporting of this information would not force race- and gender-based hiring decisions and thus challenging the constitutionality of the FCC’s action.  The reporting requirement will become effective after the revised form, which adds “non-binary” as a gender classification, receives approval from the Office of Management and Budget. The FCC also requested comment on a proposal to adopt similar reporting requirements on Form 395-A for Multichannel Video Programming Distributors. 
  • In another EEO action, the FCC’s Enforcement Bureau fined a group of Kansas radio stations $25,000 for violations of the FCC’s EEO rules.  The Bureau proposed that fine in October 2023 (see our article here) because the stations did not timely upload to the public file a few Annual EEO Public File Reports, did not do public outreach for two job openings, and did not produce records to support its outreach claims.  The stations did not raise specific objections to the FCC’s findings in the 2023 Notice of the proposed fine but instead argued that since the stations’ owners had filed for bankruptcy and the stations were to be sold, the decision was moot.  The FCC disagreed, finding that it could still fine a company for rule violations even if it was in bankruptcy.
  • The FCC announced its tentative agenda for its next monthly Open Meeting scheduled for March 14, at which it will consider two items of interest to broadcasters:
    • A Report and Order adopting rules requiring cable and direct broadcast satellite service providers to state in promotional materials and on subscriber bills the price of video programming as a clear, easy-to-understand, and accurate single line item.  This “all-in” price is to include all video programming charges, including those for broadcast retransmission consent, regional sports, and other programming.   
    • A Notice of Proposed Rulemaking (NPRM) in which the FCC proposes a new Emergency Alert System alert code for missing and endangered adults to be used by EAS participants, including broadcasters.  In the NPRM, the FCC is seeking comment on whether to apply the new EAS alert code to individuals over the age of 17, missing adults with special needs or circumstances, and missing adults who are endangered or who have been abducted or kidnapped. 
  • The FCC’s Media Bureau released a Public Notice announcing the filing of a petition by the National Association of Broadcasters and Xperi, Inc., which seeks clarification regarding the maximum allowable operating power of a digital FM signal as proposed in the FCC’s August 2023 Notice of Proposed Rulemaking (NPRM).  NAB and Xperi seek to clarify an ambiguity in the expression of the maximum digital FM power levels permitted for multichannel hybrid service modes, proposing the addition of clarifying text to the rules.  The FCC seeks comments on this proposed clarification.  Comments and reply comment dates will be set when the Bureau’s Public Notice is published in the Federal Register.
  • The Bureau also made two decisions dealing with applicants for new stations.
    • In one, the Bureau affirmed the tentative selectee from a group of mutually exclusive applications filed during the 2021 noncommercial educational (NCE) FM station filing window.   The Bureau rejected arguments that the applicant did not have reasonable assurance of its tower site’s availability, finding that the tower owner’s representative confirmed the availability of the site to the applicant’s engineer (finding it insignificant that the applicant’s name had not been revealed at the time of the initial confirmation from the tower owner’s representative).  The Bureau also rejected the argument that the applicant needed to be incorporated in the proposed station’s state and confirmed as a Section 501(c)(3) nonprofit entity to be an NCE licensee.  The decision found that, for FCC purposes, as long as the applicant was in some state a non-profit legal entity formed for educational purposes, it could file for an NCE station even if it was not tax exempt or registered in the state where the station would operate.  Finally, the Bureau found no evidence that the tentative selectee attempted to circumvent the limit imposed in the 2023 window restricting any person or entity from having interests in more than 10 applications as the challengers did not demonstrate common control with another applicant.  The challengers had only shown that two applicants had used the same engineering consultant and that there was a familial relationship between principals of the two applicants, neither of which is sufficient under FCC precedent to establish common control.  We wrote last week, here, of another Bureau decision involving challenges against the same tentative selectee.
    • In another decision, the Bureau dismissed several applications for new LPFM stations because the applicant failed to demonstrate that it was eligible to hold an LPFM authorization.  The applicant proposed to broadcast weather-related information as a public safety radio service in several states, stating that it was in contact with local public safety organizations that agreed to work with it in providing its proposed services.  The Bureau found that just coordinating with these local organizations did not make the applicant a local community organization as required by the LPFM rules.
  • The FCC Chairwoman announced the relaunch of the FCC’s Consumer Advisory Committee to examine emerging artificial intelligence (AI) technologies on consumer privacy and protection, including how AI can protect consumers from unwanted and illegal calls.  As the FCC stated in a separate announcement, the relaunched committee will be comprised of new and returning members from a mix of non-profit organizations, communications companies, trade associations, and other individuals – including some government employees.  The committee’s first meeting will occur on April 4, which will be broadcast live over the Internet on the FCC’s live web page, here.  Also on the topic of AI, FCC Commissioner Gomez gave a speech this week in which she discussed the FCC’s recent effects to combat misinformation created by the use of AI and consumers’ need for additional tools for understanding and consuming media generated by AI.