Where do all the Washington DC legal issues facing TV broadcasters stand? While we try on this Blog to write about many of those issues, we can’t always address everything that is happening. Every few months, my partner David O’Connor and I update a list of the legal and regulatory issues facing TV broadcasters. That list of issues is published by TVNewsCheck and the latest version, published today, is available on their website, here. It provides a summary of the status of legal and regulatory issues ranging from the adoption of the ATSC 3.0 standard at one end of the alphabet to White Spaces and Wireless Microphones on the other – with summaries of other issues including the many actions that the FCC took in response to the pandemic to the more traditional issues including Ownership Rule Changes, Children’s Television, Media Regulation Modernization, EEO Compliance, Political Advertising, Sponsorship Identification and dozens of other topics, many with links to more detailed discussions here on the Blog. The article is an easy place to go to see where, as of last week when we finished writing the article, legal matters related to TV broadcasting stand.  Of course, the status of these issues changes almost daily, so watch this Blog and other trade publications, and consult your own legal counsel, for the latest Washington news of interest to broadcasters.

With the October 1 deadline coming up for retransmission consent/must carry elections, and the likely commencement of many retransmission consent negotiations throughout the country, the FCC last week issued a decision that emphasizes the importance of “good faith” retransmission consent negotiations.  In this action, the full Commission denied an Application for Review that sought to reverse the Media Bureau’s ruling that eighteen stations had failed to negotiate in good faith with an MVPD for retransmission consent. The Commission’s decision also included a Notice of Apparent Liability announcing that each station faces a $512,228 penalty for these violations of the requirements for good faith negotiation.

In May, we wrote about the earlier stages of this case where another licensee agreed to a consent decree based on essentially the same allegations addressed in last week’s decision. The consent decree was based on violations described in a decision of the FCC’s Media Bureau released last November (here) finding that 18 television station licensees, operating stations in separate markets, had failed to negotiate retransmission consent in good faith.  Given the size of the proposed fines on the stations named in last week’s Notices of Apparent Liability, it is worth reviewing the basis of this decision.  Even though many of the details are redacted to protect proprietary information, the basis for the decision can still be gleaned from this series of decisions. Continue Reading FCC Proposes $512,228 in Fines to TV Stations for Violating Rules Requiring Good Faith Negotiation of Retransmission Consent Agreements

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

  • Political advertising will continue to blanket the airwaves for the next month and a half and broadcasters need to remain vigilant in complying with all political advertising rules and obligations. We wrote on the blog this week about some of the sponsorship identification issues broadcasters should look out for, especially as busy station staffers are dealing with more orders and more ad copy.  (Broadcast Law Blog)
  • President Trump nominated Nathan Simington to fill FCC Commissioner Michael O’Rielly’s soon-to-be vacated seat. Simington currently serves as senior advisor at the National Telecommunications and Information Administration (NTIA) and is said to have worked on NTIA’s petition asking the FCC to review Section 230 of the Communications Decency Act of 1996, which gives online platforms broad immunity from what users post on those platforms.  O’Rielly’s re-nomination is believed to have been withdrawn over his public comments expressing legal concerns over the President Trump’s desire that the FCC take steps to limit this immunity.  O’Rielly can serve through the end of this year or until Simington is confirmed by the Senate, whichever comes first.  We wrote about O’Rielly’s nomination troubles and Section 230, here.  O’Rielly testified before the House Communications Subcommittee and used his opening remarks to reflect on his time at the Commission.  (O’Rielly Remarks).
  • Chairman Ajit Pai circulated among his fellow Commissioners a Notice of Proposed Rulemaking that would, if adopted, require more specific disclosure when a broadcast station is airing programming that is directly or indirectly provided or sponsored by a foreign governmental entity. The new rules would include standardized disclosure language that specifically identifies the sponsoring foreign entity.  (News Release)
  • A recent consent decree serves as a reminder that changes to ownership and control of broadcast licenses require prior FCC approval. The licensee of two Nevada stations failed to request approval of a buy/sell and stock purchase agreement that gave another party control of the stations.  Under the terms of the consent decree, the transaction will be approved, but the licensee must pay an $8,000 penalty and follow a compliance plan for three years.  (Order)
  • The FCC denied an Application for Review that sought to reverse the Media Bureau’s ruling that eighteen stations had failed to negotiate in good faith with DirecTV for retransmission consent. Each station faces a $512,228 penalty.  We wrote about the earlier stages of this case and generally about the good faith negotiation requirement, here. (Memorandum Opinion and Order and Notice of Apparent Liability for Forfeiture)

This summary of the week’s regulatory news for broadcasters comes from the attorneys at Wilkinson Barker Knauer, LLP in Washington, DC. (https://www.wbklaw.com/).

Now that we are immersed in the heart of the political broadcasting season, issues of sponsorship identification regularly arise.  For on-air broadcasts, any paid advertisement that conveys a message dealing with any controversial issue of public importance (state or federal) requires at a minimum an on-air sponsorship identification stating that the ad was “paid for” or “sponsored by” the person or organization that paid for the time.  Federal candidates have a more extensive obligation for identifying themselves in their ads, particularly if they mention an opposing candidate.  These identification rules come both from the FCC (which stations need to enforce) and from the Federal Election Commission, which are the responsibility of the candidate and their campaign committee.  To help sort out some of these obligations, and the requirements for political disclosure statements and federal candidate certifications that entitle them to lowest unit rates, check out this video that I prepared for the Indiana Broadcasters Association as part of a series on political broadcasting topics:  https://www.indianabroadcasters.org/iba-news/political-advertising-requirements-with-iba-washington-counsel-david-oxenford/

The video covers the requirements of broadcasters to ensure that the proper sponsorship identification is contained in political advertising.  Online political advertising, however, is much more complicated as there is no single body of law that governs those responsibilities.  As we wrote here, the FEC has general requirements providing that online political advertising must have sponsorship identification. The FEC also has an open proceeding to mandate more stringent sponsorship identification obligations akin to those required on broadcast and local cable political advertising.  Last week, the Congressional Research Service issued a study on the state of the law regarding online political advertising, highlighting the many issues involved in providing more robust political disclosures.  These issues are at least partially triggered by the many players involved in online advertising sales.  There is a very readable outline on pages 16-19 of the report on all the players in the digital advertising ecosystem – with intermediaries, including demand- and supply-side platforms, that complicate the usual direct interaction between the media outlet and the advertising buyer, which in turn complicates the political compliance process for sponsorship identification.  The study, on page 18, even cites to the article that I wrote discussing the concerns about sponsorship identification in any programmatic political advertising. Continue Reading Sponsorship of Political Advertising On-Air and On-Line – A Video Presentation and a Congressional Research Service Study

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

  • Information on the FY 2020 regulatory fee process continues to roll out, in advance of the 11:59 p.m. EDT September 25 deadline to pay fees or to request a waiver. The Media Bureau released a fact sheet to answer questions and to help stations figure out how much they owe.  When you log-in to the fee filer, the amount owed is already pre-entered, so you only need to enter payment information.  Should you wish to double-check the amount shown in the filer, the Bureau provides a chart for radio stations that shows payment amounts based on station class type and population served.  Television licensees can consult Appendix G of the FY 2020 Fees Report and Order.  See our blog post for more information.  (What You Owe – Media Services Licensees Fact Sheet)
  • The FCC released the agenda for its September 30 Open Meeting and drafts of the items to be considered at that meeting. There are no items on the agenda that would change broadcasters’ obligations, though as part of its multi-year Media Modernization efforts, the FCC will consider changes to how cable systems must handle certain notifications to its customers of changes to rates, service, or channel position of stations that they carry.   Acknowledging that retransmission consent and program carriage negotiations can continue up until the moment a channel or program has to be pulled from the system, the FCC wants to change its rules to eliminate the 30-day notice required under current rules.  The new rule, if adopted, will allow cable systems to notify viewers “as soon as possible” about changes to channel lineups that occur due to retransmission consent or program carriage negotiations that fail within 30 days of the retransmission or program carriage contract ending.  (Report and Order)
  • Holders of FM translator construction permits awarded to AM stations in Auctions 99 and 100 that expire on or before June 30, 2021 have an opportunity to extend the permit’s expiration date by up to six months. The Media Bureau announced it will accept COVID-19-related requests for waiver of the expiration date. The request must specify how the pandemic has prevented the permit holder’s ability to complete construction and should be submitted no later than 15 days before the permit expires.  More details and waiver request instructions are available in the Public Notice.  (Public Notice)

Looking ahead to next week, Monday, September 14 is the deadline for parties with eligible earth stations involved in the C-Band transition to elect to receive a lump sum reimbursement payment, instead of reimbursement for their actual relocation costs.  For more on the lump sum reimbursement process and some of the issues to consider, see our blog post here.

The Media Bureau yesterday issued its Fact Sheet for the Annual Regulatory Fees for 2020 – expanding on the information available in the various public notices released last week, about which we wrote here.  This Fact Sheet sets out the general information as to how much is owed by various classes of broadcast stations.  The actual fees owed by each station can be determined by entering the station’s call letter or Facility ID Number in the appropriate box on this FCC webpage.  Contact the FCC if you believe that your fee assessment is incorrect.

In addition to the exemption from fees for any entity whose total regulatory obligation is less than $1000, the Fact Sheet also makes clear that FM translators, TV translators and LPTV stations that were not licensed as of October 1, 2019 need not pay a fee.  If, for instance, you received a construction permit for a new FM translator that was not built and licensed until January 2020, then no fee is due. Caution, however, if that station had previously been licensed at a different location (or for LPTV or TV translators, on a different channel), and your construction permit just authorizes a change in an already licensed facility, fees do need to be paid.  Similarly, if a station was licensed on October 1, 2019 and has since been surrendered or cancelled, a fee is still theoretically due. Continue Reading Media Bureau Regulatory Fee Instructions Issued – No Fees for Translator CPs

The FCC released a Public Notice late Friday afternoon announcing the annual regulatory fees for 2020 will be due by 11:59 PM Eastern Time on September 25, and setting out the procedures for payment.  Another Public Notice announced that the fee filing system is now open to accept fee payment.  A third Public Notice set out the procedures for asking for a waiver of the fees based on financial hardship.  That notice also sets out how licensees can ask for permission to pay on an installment basis.  A further public notice from the Media Bureau, providing details on the filing process for broadcasters, should be released shortly (Update – 9/9/20 – you can read about the Media Bureau Fact Sheet here).

The procedures Public Notice makes clear that all payments need to be made electronically using the Fee Filer system.  These payments can be made by any of the following methods:

  • Credit Card (i.e., Visa, MasterCard, Discover, and American Express) via Fee Filer
  • Wire Transfer
  • ACH/Debit from a Bank Account via Fee Filer
  • Visa or MasterCard Debit Card via Fee Filer

However, you cannot rack up unlimited points on your credit card, as credit card transactions are limited to $24,999.99 in a single day.  The FCC also made clear that entities that owe total annual regulatory fees of $1000 or less are exempt from paying the fees, as these fees are considered de minimis – essentially the costs of collection outweigh the amount that the FCC would otherwise receive. Continue Reading 2020 Annual Regulatory Fees Due by September 25 – Fee Filer Now Open and FCC Accepting Waiver Requests

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

  • The FCC released its Report and Order on annual regulatory fees for fiscal year 2020 and, over objections from the NAB, declined to substantially reduce radio regulatory fees, keeping in place its calculation methodology that results in a net increase from 2019 in fees assessed to radio broadcasters (a computational error led to a minor downward adjustment in radio fees from what the FCC set out earlier in the 2020 fee process). The FCC also declined to change its methodology for calculating television fees, transitioning fully to a population-based methodology.  The Commission did acknowledge the hardships stations are facing during the pandemic and has taken steps to provide relief.  That relief for stations that can demonstrate financial hardship includes allowing stations to submit one request seeking a fee waiver and deferral of payment for hardship reasons instead of two separate requests as generally required by the Commission rules; allowing stations to submit by email a request to pay their fees in installments over time at a low interest rate; and directing Commission staff to work closely with and help stations finding it difficult to produce supporting documents that prove financial hardship caused by the virus.  See our post at the Broadcast Law Blog for a deeper look at the Report and Order and see below for links to Public Notices with details about how to pay your fees and how to seek relief, all due by 11:59 p.m. on September 25.  More information and specific fact sheets for the Media Bureau payees will be posted at gov/RegFees.
  • In what could be one of the last steps before opening a noncommercial FM filing window, the FCC denied a Petition for Reconsideration asking it to reexamine the criteria it uses to determine which noncommercial FM application should be granted. Under the current system, when more than one application is submitted, points are awarded to applicants based on certain favored criteria and the applicant with the most points wins.  In the Order, the FCC refused to consider “secondary” grants after the first one is awarded.  For more on how the points system and the “secondary” grants idea would play out and why the FCC declined to change its application evaluation and selection process, read our blog post here.  (Order on Reconsideration)
  • Over the last few weeks, the FCC’s Media Bureau has proposed consent decrees with a large number of radio licensees over their inability to certify on their license renewal applications that they timely uploaded to their online public file all of their political advertising documents (we wrote about the first six of these consent decrees, that were with large companies, here). This coming week watch for an article on our blog about these new consent decrees, and what it means for stations that have not yet filed their license renewal applications.
  • On September 4, the lowest unit charge window opened for the November 3 general election. For more on complying with and calculating lowest unit charges, see our blog post.
  • Comments were due this week on the National Telecommunications and Information Administration’s (NTIA) Petition for Rulemaking asking the FCC to review its interpretation of Section 230 of the Communications Decency Act.  Section 230, which gives online platforms legal protections from liability for content that third-party users post on those platforms, has drawn intense scrutiny from President Trump.  Reply comments are due by September 17.  You can read more about this in our monthly feature of regulatory dates.  (Comments)

Next week, we will be watching for the following to see if any actions affecting broadcasters will be on the agenda at the next FCC meeting:

  • On September 8, we expect Chairman Pai to publish a blog post outlining what the FCC will consider at its September 30 open meeting. Drafts of the items to be considered should be posted September 9 on the meeting webpage.

 

The FCC yesterday dismissed a Petition for Reconsideration of its reexamination of the criteria that it uses for determining which application is granted when there are conflicting applications filed in any window for the filing of new noncommercial FM stations.  We wrote about the reexamination of the noncommercial selection criteria in our article here.  We did not mention the specific issue that was raised in the request for reconsideration, which is explained in more detail below.  The decision resolving this Petition may also be the last step before the FCC opens a window for applications for new stations in the FM reserved band (below 92 FM), something that has not happened in a decade.

In the reconsideration petition, one party asked the FCC to change the position that it has long taken – that if the FCC has to use its points system (the system that awards points for certain favored criteria – criteria including favoring local applicants who are well-established in a community and don’t already have another media outlet and those owned by statewide organizations) to decide between mutually exclusive applications – it will select only one winner even if, by selecting that one winner, other applications may have no technical conflict with the winning application.  The petitioner asked that, in this situation, the FCC grant additional applications once it has decided on the preliminary winner.  Let’s look at how this situation can arise. Continue Reading FCC Dismisses Petition for Reconsideration of Reexamination of Noncommercial Licensing Policy – Next Step, Window for New Applications?

The FCC’s order on this year’s annual regulatory fees was released by the FCC this week.  The FCC rejected calls to forgive broadcast regulatory fees because of the economic fallout of the pandemic, noting that only Congress could pass such relief, as the FCC is required by law to collect fees sufficient to cover the costs of its operations.  The Commission did, however, offer some terms for the payment over time of the fees by companies that are hard-hit by the economic conditions that resulted from COVID-19, and simplified the waiver process for stations that can demonstrate that they cannot pay the fees without imperiling their service to the public.  The order also rejected the NAB’s request to revisit the fees for radio, though some minor downward adjustments were made in those fees based on the FCC’s finding that it had undercounted the number of radio stations that were to share in the payment of these fees.

The FCC determined that it could not waive all regulatory fees for broadcasters, or broadly excuse them from the 25% late-payment penalty, because these obligations are in the statute and cannot be waived without Congressional authorization.  The FCC is required by law to collect these fees before the October 1 start of the next fiscal year in an amount sufficient to reimburse the US Treasury for the costs of operating the Commission.  While the FCC felt itself powerless to totally waive the rules, it did simplify the process for individual stations to make requests for waiver of the fees if the payment of the fees would imperil their ability to serve the public or to extend the payments out over time – without the need for any upfront payment of a significant portion of the fees.  The FCC noted that the Office of the Managing Director will be issuing a separate Public Notice establishing the process for asking for waiver or deferral, so watch for the notice coming soon as these request will likely need to be filed before the payment deadline, which will also be established in a subsequent public notice.  But the Order does say that the requests for waiver and payment over time can be made in a single email to the FCC, and that the Managing Director’s office is to work with broadcasters to try to help them provide the necessary documentation to support the waiver or deferral of payments. Continue Reading FCC Releases Order on Regulatory Fees – No Widespread Waivers of Fees But Some Deferred Payments Possible – Payment Dates Coming Soon