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 a Notice of Proposed Rulemaking proposing extensive revisions to its Class A TV, LPTV, and TV translator rules.  As we discussed here, the draft NPRM released several weeks ago proposed extending Online Public Inspection File requirements to certain top-rated or network affiliated LPTV stations, and expanding Class A station OPIF requirements to include uploading LMAs, Joint Sales Agreements, and Class A certifications (LPTVs would also upload LMAs and JSAs).  The draft NPRM also included other proposals, including limiting station site moves to 48.3 kilometers and requiring stations to specify a community of license within their service contour.  The FCC has not yet released the final version of the NPRM, but its proposals may have changed since the draft was released due to recent lobbying by broadcasters.  Perhaps most interesting was the National Association Broadcasters’ argument that the OPIF requirements should not be applied to LPTV as the FCC-mandated public file does not serve its intended purpose of informing the public about broadcast station operations, as the public rarely accesses that file.  The LPTV Broadcasters Association challenged any strict application of the 48.3 km limit on station moves and the Advanced Television Broadcasting Alliance suggested that a designated community of license was unnecessary for LPTV stations. We will report next week if any of these issues was addressed in the final version of the NPRM. 
  • The FCC’s weekly list of the items on circulation (those orders or rulemaking proposals that have been drafted and are currently circulating among the Commissioners for review and a vote) removed an order resolving a petition for reconsideration of the FCC’s 2020 decision eliminating the prohibition on radio stations in the same service (AM or FM) that serve the same area duplicating programming (see our Broadcast Law Blog article here, summarizing the 2020 decision).  Some public interest groups asked for reconsideration of the decision as applied to FM stations in the same area duplicating programming. The removal of the draft order from the list likely means that it has been voted on by the Commissioners and will be released soon – possibly in the next few days. 
  • The NAB filed a petition for reconsideration of the FCC’s February Report and Order reinstating the requirement for broadcasters to annually file the FCC Form 395-B, a form that has been on hiatus for over 20 years.  As we discussed in an article on our Blog, here, the form requires broadcasters to annually report their employees’ race or ethnicity and their gender, while classifying the employees by job categories.  The NAB urged the FCC to reverse its decision to make the Form 395-B data publicly available, arguing that doing so violates the First and Fifth Amendments by pressuring broadcasters to engage in preferential hiring practices.  The NAB also cites concerns recently raised by broadcasters that the expansion of the report’s gender categories could lead to harassment of station employees identifying as non-binary. The NAB’s petition joins that of two groups of Catholic broadcasters who sought reconsideration of the reinstatement of the form, and the appeals filed by the National Religious Broadcasters Association and one of its members and by the Texas Association of Broadcasters seeking Court review of the FCC’s order.   
  • Press Communications, LLC and REC Networks filed petitions for reconsideration of the FCC’s April decision permitting FM stations to “zonecast” or “geo-target” by airing a limited amount of original programming (e.g., commercials or news) on their FM boosters.  Press Communications urged the FCC to prohibit zonecasting in “embedded markets” (such as the Northern New Jersey market, “embedded” in the New York City market) because underfunded, lower-powered Class A FM stations in these suburban markets cannot compete with better-funded, higher-powered Class B FM stations from the larger parent market that will be allowed to us use multiple FM boosters to geo-target advertisers in the embedded markets.  Press Communications also argues that the FCC relied on faulty engineering studies in concluding that the interference risks of zonecasting were minimal.  REC Networks argues that the FCC failed to consider potential co-channel interference to unrelated FM broadcast stations and proposes that all FM booster station applications (whether or not they propose zonecasting) include a showing that no interference will occur.  Comments on the petitions are due June 19.
  • Federal Election Commission Chairman Sean Cooksey sent a letter to FCC Chairwoman Rosenworcel arguing that the FCC lacks legal authority to require broadcasters and cable and satellite TV operators to disclose the use of AI-generated content in political ads (as proposed by the Chairwoman last month – see our article here).  The FEC Chairman argues that FCC action could create conflicts with any rules that the FEC might adopt addressing the issue, which would require litigation to resolve, and expressed concerns that imposing the new rules in the limited time before the November election would “create confusion and disarray among political campaigns” and “chill broadcasters from carrying many political ads.”  In the press conference following the FCC’s open meeting this past week, Commissioner Carr reiterated these concerns, while Chairwoman Rosenworcel defended the proposal (which is not yet public) and her belief that it is important to have these rules implemented before the election.
  • In routine actions at the FCC’s Media Bureau, it approved a proposed amendment to the FM Table of Allotments and dismissed two LPFM construction permit applications:
    • The Bureau amended the FM Table of Allotments by downgrading vacant Channel 245B at Mattoon, Illinois to Channel 241B1 to resolve a spacing conflict with a nearby FM station (the vacant allotment arose from the cancellation of a station license).  The Bureau concluded that Channel 241B1 would resolve the spacing issue and comply with the FCC’s minimum distance separation requirements.  The FCC will in the future announce the opening of a filing window for construction permit applications for the new allotment.
    • The Bureau denied applications for new LPFM applications in Arizona and Texas because the applicants failed to show that they were qualified to hold an LPFM license.  LPFM stations must be non-profits or government organizations, and neither applicant provided any evidence that they were organized as non-profits, and the records in their states did not reflect any nonprofit registration for either organization.  Nor could either applicant show it was a public safety radio service provider (which must be a local government or other non-profit that provides emergency services in its service area).

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’s Media Bureau announced the opening of two filing windows for Class A TV, LPTV, and TV translator stations:
    • The Bureau released a Public Notice announcing that, beginning August 20, Class A TV, LPTV, and TV translator stations may file applications to change their existing channels.  No other “major modification” applications (such as transmitter site location changes of more than 30 miles) and no applications for new stations will be accepted.  Channel change applications will be accepted on a first-come, first-served basis, with any applications filed on the same day being deemed “mutual exclusive” if they cannot all granted consistent with the FCC’s interference rules.  Mutually exclusive applicants will have a later opportunity to settle or file a technical amendment to their applications to resolve their conflicts.  More information on the filing and processing of these applications is in the Public Notice.
    • The Bureau also released a Public Notice announcing that eligible LPTV stations may file to convert to Class A status now through May 30, 2025.  In December 2023, following the passage by Congress of the Low Power Protection Act, the FCC released a Report and Order that gave LPTV stations located in small television markets – DMAs ranked 178 (Elmira-Corning, NY) through 210 (Glendive, MT) – a limited opportunity to apply for Class A status.  Class A status protects these stations from interference by new or improved full-power stations, and from changes to the television band (such as those that occurred from the TV incentive auction when parts of the allotted television spectrum was reclaimed by the FCC to be auctioned to wireless operators).  To be eligible for Class A status, LPTV stations must have, between October 7, 2022 and January 5, 2023, been on the air at least 18 hours per day, broadcast an average of at least 3 hours of local programming per week, and otherwise complied with the FCC’s LPTV rules. Additional information about the filing requirements and procedures is in the Public Notice
  • The FCC’s weekly list of the items on circulation (those orders or rulemaking proposals that have been drafted and are currently circulating among the Commissioners for review and a vote) removed an order resolving a pending proceeding that would require that broadcasters receive enhanced certifications from all buyers of programming time on their stations demonstrating that the programmers are not representatives of foreign governments.  The removal of the draft order from the list likely means that it has been voted on by the Commissioners and will be released soon – possibly in the next few days.  For more information about the possible new obligations that would be imposed on broadcasters, see this article on our Broadcast Law Blog.
    • The list also noted the addition of a Report and Order for consideration by the Commissioners to adopt the FCC’s regulatory fees for FY2024.  Orders like this are normally adopted by August so that regulatory fees can be paid before the October 1 start of the federal government’s next fiscal year.  That item also appears to include a Report and Order acting upon the FCC’s March Notice of Proposed Rulemaking, which proposed changes to how the FCC calculates its annual regulatory fees for earth stations.
  • The FCC’s Public Safety and Homeland Security Bureau announced that it will conduct a voluntary Disaster Information Reporting System exercise from June 10 to 12 for communications providers and broadcasters.  The Bureau’s Public Notice contains information on how to register and participate in the DIRS exercise.  As we discussed in our weekly updates here and here, the FCC proposed in a January Notice of Proposed Rulemaking to require TV and radio stations to report their operating status during disasters in the FCC’s DIRS database.  The exercise will provide broadcasters the opportunity to practice the use of the DIRS database should the FCC adopt the proposed mandatory reporting requirement. 
  • The FCC made two announcements concerning its TVStudy software, which is used by broadcasters to conduct TV station coverage and interference analysis for allotment petitions and modification applications.  The Media Bureau announced that the 2020 U.S. Census Data must be used in applications filed on or after August 1, 2024.  The Office of Engineering and Technology also announced the release of an updated version of the TVStudy software.  A full list of the changes can be found here.
  • The Media Bureau affirmed its grant of a new Iowa noncommercial FM station construction permit, rejecting an objection arguing that the applicant’s antenna location was not available as it was in use by a station owned by the company that filed the objection. The Bureau found that, because the applicant relied in good faith on a statement by the tower owner’s representative that the applicant could install its antenna at the originally proposed height, it had reasonable assurance of site availability when it filed its application, and determined that the applicant would be allowed it to amend its application to specify an antenna height at an available lower location on the tower. 

On our Broadcast Law Blog, we highlighted upcoming regulatory deadlines for broadcasters for June and early July.  We also reminded broadcasters of actions that they should take when they get an objection to the content of a political attack ad to avoid potential liability – a reminder we thought appropriate as we anticipate that, particularly given this past week’s verdict in the Trump trial, we may well see some nasty political ads this election season. 

With the verdict in the first criminal case against former President (and now candidate) Trump having been released, we can envision a whole raft of attack ads likely to be airing before the November elections.  The verdict is likely to also increase political divisions within the country, and potentially fuel many other nasty attack ads to be aired in political races from the top of the ballot to the local races that appear toward its end.  The use of artificial intelligence in such ads raises the prospect of even nastier attack ads, and its use raises a whole host of legal issues beyond defamation worries, though it raises those too (see our article here on defamation concerns about AI generated content, and our recent articles here and here about other potential FCC and state law liability arising from such ads).  Given the potential for a nasty election season getting even nastier, we thought that we would revisit our warning about broadcasters needing to assess the content of attack ads – particularly those from non-candidate groups. 

As we have written before, broadcasters (and local cable companies) are forbidden from editing the message of a candidate or rejecting that ad based on what is says except in extreme circumstances where the ad itself would violate a federal criminal law and possibly if it contains a false EAS alert (see, for instance, our articles herehere and here).  Section 315 of the Communications Act forbids a broadcaster or a local cable operator from censoring a candidate ad.  Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads.  (Note that this protection applies only to over-the-air broadcasters and local cable companies – the no censorship rule does not apply to cable networks or online distribution – see our articles here and here)  Other protections, such as Section 230, may apply to candidate ads placed on online platforms, but the circumstances in which the ad became part of the program offering need to be considered. 

Continue Reading Trump Verdict Raises Concerns About A Nasty Election Campaign Getting Nastier – Looking at a Broadcaster’s Potential Liability for Attack Ads

Though school is out for many, the FCC does not take a summer recess.  Instead, regulation continues.  In addition to the regular EEO Annual Public Inspection File Report deadline for broadcasters in a number of states, there are several comment deadlines in June on issues that directly impact broadcasters – as well as the FCC’s regular monthly Open Meeting when it will consider a draft Notice of Proposed Rulemaking that, if adopted, would make significant revisions to its rules for Class A, LPTV, and TV translator stations.  And, as this is an election year, there are several political deadlines this June that broadcasters must be aware of. 

June 3 (as the 1st is on a weekend) is the deadline for radio and television station employment units in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ online public inspection files (OPIFs).  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.  Be timely getting these reports into your public file, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).

The filing of the Annual EEO Public File Reports for radio and television station employment units with eleven or more full-time employees triggers a Mid-Term EEO Review that analyzes the last two Annual Reports for compliance with FCC requirements.  June 1 is the beginning of the Mid-Term EEO Review for radio station employment units in Michigan and Ohio andfor television station employment units in the District of Columbia, Maryland, Virginia, and West Virginia.  Additionally, radio stations located in those states that are part of station employment units with five or more full-time employees must indicate in their OPIFs, when they post their Annual Report, whether their employment unit has eleven or more full-time employees, using a checkbox now included in the OPIF’s EEO folder.  This allows the FCC to determine which station groups need a Mid-Term Review.  See our articles here and here on Mid-Term EEO Review reporting requirements for radio stations.

Continue Reading June Regulatory Dates for Broadcasters – EEO Public File Reports, Rulemaking Comments, Political Deadlines, and More

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.

  • FCC Chairwoman Rosenworcel announced that she had circulated among the Commissioners for their review and approval a draft Notice of Proposed Rulemaking to require TV and radio stations, as well as cable operators and satellite TV providers, to disclose the use of AI-generated content in political ads.  If approved, the NPRM would request comment on whether to require broadcasters to disclose (both on-air and in their political files) when AI-generated content is used in political advertisements from both candidates and issues advertisers, and on how to define the AI-generated content that would need to be disclosed.  Commissioner Carr issued a statement opposing the NPRM, arguing that the Chairwoman’s proposals “fundamentally alter the rules of the road for political speech just a short time before a national election” (even though, if the NPRM is adopted, given normal rulemaking comment periods and processing timelines, it is unlikely that any proposed rule could be adopted in time for this year’s elections) and questioning whether the FCC has the authority to require the disclosures.  See our Broadcast Law Blog article for a discussion of issues that should be considered if the FCC decides to move forward with this proposal and as Congress also considers regulating AI in political advertising.
  • Congressmen Gus Bilirakis (R-FL) and Frank Pallone, Jr. (D-NJ) announced the introduction of a new House of Representatives version of a bill dealing with AM radio in cars titled “AM Radio For Every Vehicle Act of 2024.”  A “mark-up” session on the revised bill was held on Thursday, May 23, when the bill was discussed by the House Subcommittee on Innovation, Data, and Commerce, approved, and sent to the full House Energy and Commerce Committee for approval (see video of the mark-up session here).  As we discussed here, here, and here, the AM Radio for Every Vehicle Act requires that automobile manufacturers retain AM radio in the car dashboard.  The new House version of the bill more closely matches that approved by the Senate Committee on Commerce, Science, and Transportation in July 2023, and provides for enforcement by the Departments of Justice and Transportation through civil penalties and civil actions – provisions that were not included in an earlier House version of the bill.  Any such bill must be passed by both the full House and Senate and signed by the President to become law. 
  • The House Subcommittee on Communications and Technology held a hearing titled: “Legislative Proposal to Sunset Section 230 of the Communications Decency Act.”  At the hearing, the subcommittee discussed the draft bipartisan proposal of Subcommittee Chair Cathy McMorris Rodgers (R-WA) and Ranking Member Frank Pallone (D-NJ) which, on its face, would sunset Section 230 of the Communications Act, effective as of December 31, 2025.  As we discussed here and here, Section 230 was designed to insulate online platforms from liability for content created by others that is hosted on their sites.  Section 230 immunity has long been considered essential to the success of the Internet, but there have been concerns that the law has had unintended consequences, such as enabling terrorist activity, promoting the exploitation of minors, and allowing discrimination and harassment.  In the Subcommittee’s hearing memo outlining the issues to be discussed, it was made clear that the intent of the “discussion draft” was not to actually repeal Section 230, but to encourage its reform with the input of affected technology companies.  A video of the hearing can be viewed here.
  • Comments were filed this past week on the FCC’s March Notice of Proposed Rulemaking (NPRM) proposing the creation of a new Emergency Alert Service event code for missing and endangered persons.  Commenters generally supported the new EAS event code.  Several Tribal groups (here, here, here, here, and here) expressed their support, noting the high numbers of missing persons cases among indigenous people.  Public safety and public interest commenters (here, here, and here) state that the new code would streamline the dissemination of alerts now delivered through multiple codes, facilitating their consistency and speeding delivery to the public.  NCTA – The Internet and Television Association supports the new event code but suggests that the FCC permit its use on a voluntary basis because EAS participants will require equipment upgrades to use the new code, and also urged the FCC to encourage state, local, and tribal official officials to establish clear guidelines to prevent the new event code’s overuse in nonemergency situations.
  • The FCC dismissed a Nevada FM translator licensee’s request for review of the Media Bureau’s November 2022 decision which denied the licensee’s request for waiver of the FCC’s FM translator siting rule .  That rule requires that an FM translator rebroadcasting an AM station be located within the greater of the AM station’s primary service area or a 25-mile radius of its AM station’s transmitter site.  The Bureau dismissed the waiver request because neither the irregular size and shape of station’s market nor terrain obstructions justified waiver of the siting rule.  The Commission found that the applicant was trying to extend, not fill-in, its service area, and determined that it was in the public interest to apply the rule in a fair and consistent manner by prohibiting FM translator locations outside of the AM station’s service area absent compelling circumstances, and the desire to serve a greater area was not such a circumstance. 
  • The FCC’s Media Bureau proposed a $3,250 fine against a Texas TV translator station that failed to timely file its license application and operated for over three years from an unauthorized site.  In April 2021, due to the collapse of its authorized tower, the translator was forced to relocate to operate pursuant to Special Temporary Authority at a temporary site. The STA expired in December 2021.  The licensee failed to extend the STA and did not file a license application for permanent operations from the temporary site until April 2024 –long after its modification application to make the temporary site permanent was granted in May 2021.  The base fine of $13,000 for the licensee’s failure to timely file the license application and the $10,000 base fine for unauthorized operations were reduced because the licensee’s documented inability to pay the base fines, its history of compliance, and the secondary nature of TV translators.  

We’ve written several times (see for instance our articles here, here, and here) about all of the action in state legislatures to regulate the use of artificial intelligence in political advertising – with approximately 17 states now having adopted laws or rules, most requiring the labeling of “deep fakes” in such ads, and a few banning deep fakes entirely.  Action on the federal level seems to be picking up, with two significant actions in the last week.  This week, FCC Chairwoman Jessica Rosenworcel issued a Press Release announcing that the FCC would be considering the adoption of rules requiring broadcasters and other media to include disclaimers when AI is used in political advertising. Last week, the Senate Committee on Rules and Administration considered three bills addressing similar issues.  These actions, along with a long-pending Federal Election Commission proceeding to consider labeling obligations on federal election ads (see our article here), are the federal government’s attempts to address this issue – though, with the time left before the election, none  of these proposals appear likely to have a significant effect during the current election cycle.

At the FCC, according to the Chairwoman’s Press Release, a draft Notice of Proposed Rulemaking is circulating among the Commissioners for their review.  The proposal is to require broadcasters, local cable companies, and other regulated entities with political broadcasting obligations under FCC rules, to include mandatory disclosures on political ads when AI is used.  The disclosures would be required on the air and in writing in a station’s FCC-hosted online public inspection file.  While the text of the NPRM is not yet public, the Press Release did provide some specifics as to the questions that would be asked in this proceeding.

Continue Reading The FCC and Congress Advance Proposals to Regulate Artificial Intelligence in Political Advertising

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 Justice Department has submitted a proposal to be published in the Federal Register to reclassify marijuana under the Controlled Substances Act, asking for public comment as to whether it should be moved from Schedule I (prohibited drugs with no medical benefits and a high potential for abuse) to Schedule III (drugs with some medical benefit with lower risks)(see DOJ’s Press Release containing links to more DOJ information).  The notice recognizes that, even if the rescheduling occurs, the federal government will still have regulatory authority over marijuana and will need to make determinations as to its proper use by, and distribution to, the public so, as we warned in our recent article on our Broadcast Law Blog, this action does not remove all legal risks from advertising marijuana on broadcast stations where its use has been “legalized” under state law. 
  • The FCC announced its agenda for its regular monthly Open Meeting on June 6 at which it will consider a Notice of Proposed Rulemaking proposing extensive revisions to its Class A TV, LPTV, and TV Translator rules.  Most significantly, the FCC proposes extending Online Public Inspection File (OPIF) recordkeeping requirements to LPTV stations – either those affiliated with a top-four broadcast TV network (ABC, CBS, Fox, or NBC) or, alternatively, to LPTV stations rated among the top-four TV stations in their Designated Market Areas.  OPIF requirements would include LMAs or Joint Sales Agreements and Class A certifications.  The NPRM also proposes to make clear that FCC political broadcasting rules – including political file requirements – apply to LPTV stations.  The NPRM includes several other proposed amendments to technical and operational requirements, including limiting minor changes to moves of no more than 48.3 kilometers from a station’s currently licensed site, requiring stations to specify a community of license within their service contour, requiring LPTVs to operate for a minimum of 14 hours per week, and requiring LPTV stations to file a minor modification application to change their designation to a TV translator (and vice versa – this can currently requires only notice to the FCC).  The FCC also proposes to clarify when a station can request authorization to move to another channel by more clearly defining the circumstances when an LPTV or translator station receives or causes interference justifying such displacement.
  • Comments were due this past week in response to the FCC’s January Notice of Proposed Rulemaking proposing to require TV and radio stations to file reports regarding station operational outages in the FCC’s Network Outage Reporting System (NORS) database and on their operating status during disasters in the FCC’s Disaster Information Reporting System (DIRS) database.  DIRS reporting is currently voluntary for broadcasters, and NORS reporting is not currently required or available to broadcasters.  The National Association of Broadcasters and several broadcasters (see here, here, here, here, and here) argue that the proposed requirements would be unduly burdensome for broadcasters and would distract from their primary obligation to provide critical safety information to the public during disasters.  Instead, DIRS reporting requirements should remain voluntary for broadcasters, or as REC Networks proposes, only extend to reporting on the status of Emergency Alert Service infrastructure.  REC also notes that the reporting obligation could require broadcasters to report minor, transitory outages not currently required to be reported to the FCC.  Other commenters (see here and here) ask for an exemption for small noncommercial stations that lack the resources of larger commercial broadcast stations.  National Public Radio asks that the FCC defer imposing DIRS and NORS reporting obligations on broadcasters until it clarifies how it will use the reported data.
  • The Senate Committee on Rules Administration held a hearing in which in reviewed three bills addressing the effect of artificial intelligence (AI) on elections.  The first bill, the Protect Elections from Deceptive AI Act, prohibits the distribution of deceptive AI-generated audio or visual media relating to federal elections, with exceptions for use in bona fide newscasts by broadcasters and cable and satellite television providers if a disclaimer is used at the time of broadcast.  The second bill, the AI Transparency in Elections Act of 2024, requires the use of disclaimers in political advertisements including any AI-generated media.  The final bill, the Preparing Election Administrators for AI Act, requires the Election Assistance Commission to develop voluntary guidelines to be used by election administrators regarding the use and risks of AI in the upcoming 2024 elections.  All bills were voted out of committee – the first with two Republicans objecting, claiming that the language of these bills was too vague to determine what was prohibited and could violate free speech rights.  These bills will only become law if approved by the full Senate the House of Representatives.
    • Senate Majority Leader Chuck Schumer and Senators Mike Rounds, Martin Heinrich, and Todd Young also released a bipartisan AI Roadmap which summarizes the areas of political consensus on AI issues and identifies where further work is needed on these policy issues.
  • The FCC’s Media Bureau dismissed three LPFM construction permit applications for failure to comply with the LPFM application rules:
    • The Bureau dismissed a Wisconsin LPFM construction permit application as the applicant failed to show that it was qualified to hold an LPFM license.  An applicant must either be a public safety radio service provider (which must be a local government or other non-profit that provides emergency services in its service area) or a local non-profit with its headquarters or the residence of 75% of its board members within required radius of its proposed station’s transmitter site – and the applicant did not show that it met either of these criteria.
    • The Bureau affirmed its dismissal of Arkansas and Texas LPFM construction permit applications for their failures to meet the co-channel, first-adjacent channel, or second-adjacent channel spacing requirements necessary to protect nearby broadcast stations.  The Bureau rejected each applicant’s request to amend its application because the LPFM application procedures clearly state that the Tech Box in the initial application must show compliance with the FCC’s channel spacing requirements – and as neither of these applications did, they were properly dismissed without an opportunity to amend.  With the Texas application, the Bureau also rejected the applicant’s request to amend its application to include a waiver of the co-channel spacing requirements because the FCC cannot grant waivers of its co-channel distance separation requirements. 

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 announced that comments are due June 6 on its April Notice of Proposed Rulemaking, exploring state of the market for independent video programming.  The FCC proposes new rules to prohibit “most favored nation” clauses and considers restrictions on clauses in agreements between independent programmers and multichannel video programming distributors (and broadcast companies) that limit alternative distribution methods.  Reply comments are due July 8.  
  • Reply comments were due this week in response to the FCC’s February Notice of Proposed Rulemaking, in which it proposed the adoption of multilingual alerts for the Emergency Alert Service (EAS) using pre-scripted, pre-translated alert messages in thirteen non-English languages that alert originators can distribute during emergencies to broadcasters, cable providers, and other EAS participants.  While there was some support from commenters for multilingual EAS alerts, many commenters, including the National Association of Broadcasters and REC Networks raised concerns regarding their implementation costs, and technological and logistical issues about their use.  While Asian Americans Advancing Justice and the Japanese American Citizens League supports the proposed multilingual alerts, they express concern regarding the accuracy of new multilingual alert templates. 
  • The FCC submitted its semi-annual report to Congress on U.S.-based foreign-government backed media outlets distributing video programming to MVPDs.  By law, the FCC must update Congress every six months with a list of the U.S.-based media outlets who act as agents for foreign governments that registered with the FCC.  The FCC stated in this year’s report that no such outlets registered in the last six months – which has been the case since mid-2021.
  • The FCC released a Small Entity Compliance Guide regarding program origination by FM boosters.  As we discussed on our Broadcast Law Blog here and here, beginning May 16, a licensed FM station may seek experimental authority for up to a year (which can be renewed) to originate up to 3 minutes of programming per hour on an FM booster station.  The guide, among other things, explains that experimental authority must be requested until the FCC adopts final rules for this service, and reminds broadcasters that these FM boosters must comply with the EAS rules, and may cause interference to their primary station’s signal.
  • The FCC’s Media Bureau rejected requests for two broadcast authorizations:
    • The Bureau ordered an Arizona AM station and its FM translator to cease operations after finding that the stations’ licenses were cancelled automatically as of December 6, 2023 pursuant to Section 312(g) of the Communications Act.  Under Section 312(g), a station’s license will be automatically cancelled if the station that has not operated as authorized for a full year, unless the FCC finds that there are public interest factors warranting the preservation of the license.  Here, the bureau found that the AM was either silent or operating from an unauthorized site when it continued to operate at an STA site even after its STA had expired in December 2022, and also had periods when it was totally silent without FCC authorization.  The translator’s license was cancelled because its authorization was granted in a translator window where that license was permanently tied to this AM station.  The Bureau rejected arguments that the stations’ licenses should be reinstated for reasons including the licensee’s inadvertent failure to request an extension of the STA for its AM station, the stations’ minority ownership and programming for the Hispanic community, and the licensee’s significant health challenges due to COVID.
    • The Bureau affirmed its dismissal of an Oregon LPFM construction permit application for its failure to meet the to meet the co-channel and second-adjacent channel spacing requirements for protecting nearby full-power FM stations.  Because LPFM application procedures clearly state that applications failing to comply with spacing requirements in their initial application would be dismissed without an opportunity to amend, and the technical parameters submitted in the “Tech Box” portion of this application were incorrect (and the Bureau will not look to parameters set out in any attached exhibit), the dismissal of the application was proper.

On our Broadcast Law Blog, we discussed why broadcasters should remain cautious about accepting marijuana advertising despite the Attorney General’s recent recommendation to loosen federal restrictions on marijuana.  New rules have not been adopted and, even if they are, any new federal regulatory regime may still restrict advertising for marijuana “legalized” under state laws. 

In recent weeks, we saw press reports on a recommendation from the Attorney General to loosen federal restrictions on marijuana – reclassifying it by moving it off Schedule I (an illegal controlled substance with no medical uses and a high degree of potential abuse) to Schedule III, where many other drugs, including some requiring a prescription, are listed.  No official announcement about any reclassification action has been released, and even when it is, there are apparently other administrative steps that need to occur before any re-scheduling is final.  So, there are many regulatory hurdles still to come.

While a rescheduling to Schedule III may have an impact on research and marijuana’s medical uses, broadcasters need to continue to take a very cautious approach to marijuana advertising while the details of any possible change are worked out and likely even after any re-scheduling as, even as a Schedule III drug, advertising may still be restricted under federal law.

Continue Reading Don’t Start Counting Marijuana Advertising Dollars Yet – Cautions Despite Possible Changes in Its Federal Classification

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 FTC announced that it will hold a 45-minute webinar on May 14 at 11:00 a.m. ET to provide an overview of its final rule banning noncompete agreements.  As we discussed in our update last week, the FTC banned the use of noncompete provisions in employment agreements (and clauses that act like noncompetes by limiting employee mobility) except in connection with the sale of a business.  The webinar is free and open to the public to provide information about compliance with the new rule.  The FTC requests that participants submit questions ahead of the webinar, by emailing them asknoncompete@ftc.gov.  A link to the webinar will be available on the FTC’s website on the day of the event, and a recording of the webinar will later be made available on the site.  The FTC has also posted a Business and Small Entity Compliance Guide about the new rule.
  • On Capitol Hill, there were a number of actions potentially impacting broadcasters:
    • The House Subcommittee on Innovation, Data, and Commerce held a hearing titled “Draft Legislation to Preserve Americans’ Access to AM Radio.”  At the hearing, the subcommittee considered the proposed AM for Every Vehicle Act, which requires that automobile manufacturers retain AM radio in the car dashboard.  As we recently discussed on our Broadcast Law Blog, while this Act has garnered much support on Capitol Hill, there have been concerns regarding mandates on the car industry to protect the AM technology that some see as outdated.  The hearing included testimonies from witnesses representing radio manufacturers, carmakers, broadcasters, and the Navajo nation.  A recording of the hearing can be found here, a copy of the hearing can be found here, and the witnesses’ written testimony can be found here, here, here, and here.  This week, press reports indicated that there are 250 sponsors of the bill in the House (well more than a majority), and a 60-sponsor supermajority in the Senate– making the bill filibuster-proof.  The bill, however, must be brought to the floor of each chamber for a vote before President Biden can sign it into law.  No dates for such votes have been set. 
    • The Senate Subcommittee on Intellectual Property held a hearing titled “The NO FAKES Act: Protecting Americans from Unauthorized Digital Replicas.”  At the hearing, the subcommittee considered a draft of the Nurture Originals, Foster Art, and Keep Entertainment Safe (“NO FAKES”) Act, which seeks to protect actors, musicians, and other performers’ likenesses from unauthorized replicas that are generated using artificial intelligence.  The hearing featured testimony from record labels, entertainment industry associations, and academia.  Further information on the hearing, including video and testimony, is available here
    • The House Subcommittee on Oversight and Investigations announced that it will hold a hearing on May 8 at 10:00 a.m. ET titled “Examining Accusations of Ideological Bias at NPR, a Taxpayer Funded News Entity.”  At the hearing, the subcommittee members will question NPR’s President and CEO, Katherine Maher, regarding concerns over NPR’s lack of diversity in the viewpoints of its staff and in its coverage of issues.  The hearing will be live streamed and available here.
  • When will broadcasters have to file the FCC Form 395B report – classifying their employees into job categories and reporting on their race, ethnicity, and gender?  Activity this week related to the FCC’s February Report and Order (see our article here) voting to reinstate the Form could affect the answer to that question:
    • The FCC announced that the Order will become effective on June 3.  However, compliance will not be required until the Office of Management and Budget (OMB) completes its review of the form to be used for the reports.  The FCC’s Media Bureau will issue a public notice announcing the deadline when the OMB review is complete.  Once that happens, broadcasters would need to file each year by September 30.
    • However, two petitions for reconsideration (see here and here) were filed by Catholic broadcasting groups asking the FCC to revisit its reinstatement of the Form.  The petitioners oppose the FCC’s inclusion of a non-binary option for the Form’s gender identity reporting category arguing, among other things, that this option violates their First Amendment religious freedoms by compelling speech about a gender option in which they do not believe.  One petitioner requests that the FCC suspend broadcasters’ obligation to comply with the gender identity reporting requirement while the matter remains pending.  Instead of asking the FCC to review its own action reinstating the Form, the National Religious Broadcasters (NRB) association and one of its members, American Family Association, filed a petition for review with the US Court of Appeals, seeking to have the Court overturn the FCC’s action (see the NRB Press Release).  Other court appeals may follow. 
  • The FCC’s Media Bureau affirmed its dismissals of three LPFM construction permit applications due to the applicants’ failure to comply with the FCC’s rules governing new LPFM station applications:
    • The Bureau affirmed its dismissal of an Alabama LPFM construction permit application because the proposed coordinates for its transmitter site were such that the applicant was not local as required by the rules (neither its headquarters nor the residence of 75% of its board members were within required radius of its proposed station’s transmitter site – 10 miles in the Top 50 markets, 20 mile outside those markets).  The Bureau rejected the applicant’s request to correct what it claimed was a clerical error in the coordinates, explaining that the qualification requirements must be met based on the information in an applicant’s “Tech Box” portion of its initial application, and the failure to meet those requirements cannot be corrected after the application filing deadline.
    • The Bureau affirmed its dismissals of a Washington and a Pennsylvania LPFM construction permit applications for their failures to meet the minimum distance spacing requirements necessary for protecting nearby FM and LPFM stations, rejecting each applicant’s arguments for reinstatement of their applications because the LPFM application procedures clearly state that initial applications failing to show compliance with the FCC’s channel spacing requirements are to be dismissed without an opportunity to amend.  In the Pennsylvania decision, the Bureau again made clear that it relies on the technical parameters submitted in the “Tech Box” portion of the initial application – not on information set out elsewhere in the application or otherwise “widely known.”
  • The FCC’s Media Bureau released a Notice of Proposed Rulemaking asking for comments on an applicant’s petition for rulemaking proposing the substitution of Channel 285C1 for vacant Channel 235C1 at Canadian, Texas to allow its station KPQP, Panhandle, Texas to move from Channel 291C3 to Channel 235C3.  Comments and reply comments in response to the petition will be due June 24 and July 9, respectively.

On our Broadcast Law Blog, we took a look at the upcoming regulatory deadlines affecting broadcasters in May, including comment deadlines on a number of emergency communications proposals, the effective dates of the FCC’s zonecasting order allowing the origination of limited amounts of programming by FM booters, and the opening of several windows for Lowest Unit Rates required to be charged for ad time bought by political candidates in upcoming elections.