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 US Court of Appeals for the Fifth Circuit issued a decision that raises significant questions about the FCC’s ability to fine entities that it regulates for violations of its rules. The Court’s decision overturned a $57 million FCC-imposed fine on AT&T for not adequately protecting the location data of some of its mobile phone users, finding that the imposition of the fine violated the company’s 7th Amendment rights to a jury trial. The Court cited the Supreme Court’s Jarkesy decision from last year, holding that administrative agencies cannot issue fines that are analogous to penalties at common law without affording the right to a jury trial to those accused of the violation. The Fifth Circuit’s decision focused on the fine on AT&T being a monetary penalty paid to the US Treasury and that it was not associated with any reimbursement to injured parties, and it determined that AT&T’s alleged failure to safeguard customer data was analogous to a negligence action where a defendant is entitled to a jury trial. Commissioner Simington has been consistently dissenting from decisions where the FCC imposes fines on regulated entities, including broadcasters, since the Jarkesy decision was issued (see his statement here calling on the FCC to review its authority to issue fines, which we noted in our Broadcast Law Blog’s look at issues that might be addressed by this new administration at the FCC), and this case magnifies those concerns. Look for future court cases or FCC actions to further define the FCC’s ability to issue fines in light of this decision.
- Comments were due last week in the FCC’s “Delete, Delete, Delete” proceeding in which the FCC sought to identify FCC rules, including those applicable to broadcasters, that are worthy of modification or deletion (see our discussion here). Copies of the nearly 900 comments filed can be found here. Commenters called on the FCC to eliminate most of its ownership rules, including the national television ownership cap, the local television ownership rule, and the radio ownership rule. There were also calls to eliminate online public file requirements, biennial ownership report requirements, and the FCC’s equal employment opportunities rules. Commenters also recommended eliminating or reforming children’s television programming requirements and the news distortion policy. Several commenters made suggestions regarding repeal or reform of technical rules, including rules impacting everything from ATSC 3.0 to FM translators. MVPD interests called for elimination or reform of TV carriage-related rules including non-duplication and syndicated exclusivity rules and must carry requirements. Watch for further developments as the FCC processes these comments.
- The FCC’s Enforcement Bureau issued a Notice of Violation against a Puerto Rico AM station licensed to operate with a two-tower directional array that was found to be transmitting from a single tower without requesting Special Temporary Authority to operate at variance from its license. The station must now explain to the Bureau how it will correct the rule violations and prevent future violations from occurring.
- The FCC’s Media Bureau entered into a Consent Decree with the licensee of a group of Nevada TV translator stations due to its filing of the translators’ license renewal application over four months late and over one month after their licenses had expired, and for operating the translators without authorization after their licenses had expired. The Consent Decree requires that the licensee enter into a compliance plan to ensure that future FCC rule violations do not occur.
- President Trump stated this week (see here and here) that CBS should lose its broadcast station licenses for 60 Minutes’ alleged false and defamatory coverage of Trump during the 2020 and 2024 presidential elections as well as its recent coverage of the President’s policies concerning Greenland. Trump also stated that he hoped that FCC Chairman Carr would impose the maximum fines and penalties on CBS stations for 60 Minutes’ news coverage.
- Chairman Carr stated this week that Comcast was ignoring its public interest obligations by misleading the public by implying in recent news reports regarding a Maryland man, who is a permanent U.S. resident that a federal court found was wrongly deported to El Salvador by the Trump Administration, was “merely a law abiding U.S. citizen.” Instead, Carr implied that Comcast was engaging in news distortion by, in his view, failing to inform its viewers that the man was a member of the MS-13 gang and failing to disclose that he was denied bond by a federal immigration court for failing to show why he did not pose a danger to the public.
- During a visit to a Philadelphia NPR and PBS affiliate, FCC Commissioner Gomez stated that the FCC’s recent investigations into public broadcasters (see our discussion here) “threaten to create a new kind of news desert—one where communities can’t access the local critical information they need.” Instead, Gomez stated that the FCC “must prioritize protecting and expanding the public’s access to timely, accurate news, free from political interference.” Gomez visit to the Philadelphia public broadcaster is, according the FCC press release issued in connection with the trip, part of a series of such visits by the Commissioner to engage with local broadcasters to better understand the current media landscape and to draw attention to how the FCC’s recent investigations of PBS and NPR affiliates can disrupt their distribution of local news and emergency information that is vital to such stations’ public interest obligations.