Throughout this election season, we’ve been following the battle over lowest unit rates – the requirement that, during the 45 days before a primary and the 60 days before a general election, political candidates be sold advertising time at the lowest rate given to any commercial advertiser for the same class of broadcast advertising time airing during the same program or daypart.  Candidates even get the benefit of volume discounts without having to buy in volume.  During this election season, there have been many legal battles over a Public Notice from the FCC’s Media Bureau that had the effect of extending these lowest unit charges to political parties and joint fundraising committees when those committees’ ads are authorized by a federal candidate.  While a group of Democratic candidates challenged that ruling, these challenges effectively ended for this political cycle when the Supreme Court decided that the FCC Commissioners needed time to review the decision of the Media Bureau before any court could consider the merits of the Public Notice, effectively putting the issue on hold for the foreseeable future – or so we thought. 

The issue of lowest unit rates refuses to die.  The push to get LUC extended to parties and joint fundraising committees when their ads are authorized by a candidate was led by the Republican party. The perception is that Democratic candidates’ own campaign committees raise substantially more money than do the committees of Republican candidates, so those Democratic candidates get a greater advantage from their money that buys advertising spots at LUC, as these candidates can potentially buy more spots at lower rates than Republican non-candidate groups that may be opposing their election.  Not content with their initial victory in defending the extension of LUC to parties and joint fundraising committees (where Republican groups  tend to raise more money) for their authorized ads, the Republican National Committee, along with the Texas Republican Party and four Republican candidates, last week filed suit against the FCC in US District Court in Texas arguing that the FCC’s application of the lowest unit rate rules is unconstitutional, as those rules discriminate between different types of political speakers by forcing stations to give their lowest advertising rates only to candidates, and allowing stations to charge more to parties (and, though not stated in the complaint, other political advertising buyers like PACs).  The RNC argues that it is unconstitutional for the government to favor certain classes of political speakers over others who may be delivering messages on the same issues. 

Continue Reading Is the Requirement that Broadcasters Give Lowest Unit Rates to Political Candidates Unconstitutional?  The Republican Party Files a Lawsuit to Find Out

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 Republican National Committee, along with the Texas Republican Party and four Republican candidates, filed suit against the FCC in US District Court in Texas arguing that the FCC’s application of the lowest unit rate rules was unconstitutional as those rules discriminated between different types of political speakers by forcing stations to give their lowest advertising rates only to candidates, and allowing stations to charge more to parties (and, though not stated in the complaint, other political advertising buyers like PACs).  The RNC argues that it is unconstitutional for the government to favor certain classes of political speakers over others who may be delivering messages on the same issues.  The RNC asks that, alternatively, all election-related ads get lowest unit charge rates, or that LUC be declared unconstitutional so that no one, including candidates, gets LUC.  No responses to this lawsuit have yet been filed.  As the lawsuit alleges that Democratic candidates are advantaged by LUC as those candidates tend to raise more money from direct donations to candidates, we would expect Democratic Party representatives to oppose the relief requested in this lawsuit. 
  • The FCC’s Media Bureau released a Public Notice announcing that comments and reply comments are due December 14 and January 13, respectively, in response to a broadcast consulting engineer’s petition for rulemaking proposing changes to the FCC’s FM station spacing rules to provide FM stations with more leeway to relocate to existing towers from aging towers or lost tower sites.  The petitioner proposes allowing FM stations to relocate to existing towers at closer distances than allowed under current rules (including at spacings less than allowed for short-spaced stations under Section 73.215 of the FCC rules which currently permit short-spaced stations but sets absolute minimum required separations that are generally enforced strictly) if the move does not create more interference to short-spaced stations than would be permitted under the current rules.  The petitioner states that constructing new towers is not always an option for relocating stations due to tower construction costs and zoning and environmental constraints, and notes that constructing new towers is especially cost prohibitive for stations in smaller markets.  The petitioner also notes that allowing such moves should not create unacceptable interference as reserved band FM stations can already make such moves since they are exempt from the minimum distance requirements that apply to commercial stations under the existing rules.
  • The FCC announced that comments and reply comments are due November 25 and December 28, respectively, in response to its July Further Notice of Proposed Rulemaking concerning changes to its space and earth station rules.  In the accompanying Report and Order, the FCC made significant changes to its earth station rules, including extending license terms to 20 years; allowing earth stations to be licensed on a nationwide, non-site basis; permitting conditional grants for earth stations while frequency coordination remains ongoing under certain circumstances; and standardizing and streamlining earth station application procedures and processing.  In the FNPRM, the FCC seeks comment on several issues including whether to retain rules for receive-only earth stations, revisions to certain earth station technical rules and definitions, and further refinements to the nationwide, non-site earth station license rules.
  • The Media Bureau entered into two Consent Decrees with broadcasters to resolve investigations into the broadcasters’ alleged FCC rule violations:
    • The Bureau entered into a Consent Decree with Nexstar Media to resolve an investigation into whether some of Nexstar’s stations violated the FCC’s limitations on commercial matter aired during children’s programming (which, as we noted here, was part of a 2024 Forfeiture Order where the FCC fined over 100 TV stations for exceeding the children’s programming commercial limits during a Hot Wheels program by creating “program-length commercials” – i.e., the stations ran advertising with Hot Wheels characters during the Hot Wheels programs), whether some of Nexstar’s stations failed to comply with their political file obligations, and whether Nexstar failed to timely file license applications after completing construction of three of its stations’ modified facilities.  The Consent Decree requires Nexstar to make a “voluntary contribution” of $80,500 to the U.S. Treasury and enter into a compliance plan to ensure that future FCC rule violations do not occur.  As part of settling the Hot Wheels matter, the Consent Decree also requires Nexstar to withdraw from the still pending petition for reconsideration filed by several broadcast groups that were fined for running the Hot Wheels commercial (see our notes here, here, here, and here regarding similar Consent Decrees entered into by broadcast groups that ran the Hot Wheels program, and our note here regarding the Consent Decree with Sinclair, the originator of the Hot Wheels program). 
    • The Bureau also entered into a Consent Decree with an Indiana Class A TV station to resolve its investigation into the station’s compliance with the FCC’s children’s television programming rules so that the Bureau could complete processing of the station’s license renewal application.  Under the Consent Decree, the licensee will make a $28,000 “voluntary contribution” to the U.S. Treasury, after which its license renewal will be granted. As we discussed here, in 2019, the FCC revised its processing guidelines for stations’ compliance with their children’s programming obligations (which are assessed with stations’ renewals) and set yearly totals of required regularly scheduled children’s educational and informational programs.  If stations do not meet these safe harbor requirements by running the required amount of educational and informational programming, their renewals are referred to the full Commission for review, as happened in this case.  In September, the FCC directed the Bureau to complete processing of the station’s renewal (as well as renewals for 4 other full-power TV and Class A TV stations that did not meet the safe harbor) after finding that departing from the normal safe harbor processing guidelines was warranted since the station faced significant regulatory changes during its license term due to the revised safe harbor guidelines and experienced significant operational changes for multiple reasons including  the Incentive Auction and the COVID-19 pandemic (see our note here). 
  • The Media Bureau released a Notice of Proposed Rulemaking proposing the substitution of VHF Channel 7 for UHF Channel 31 at Odessa, Texas.  The TV station proposing the substitution seeks to remain on its current Channel 7 after the station determined that it could not build out by its construction permit’s expiration date the facilities to change to Channel 31 that the Bureau had approved at the licensee’s request.  Under FCC policies, when the FCC changes the TV Table of Allotments to accommodate a station’s proposed channel change, the Table is changed even before the station builds its new facilities, thus requiring a proceeding like this one to undo the Table of Allotments change when the new facilities are not built. 

On our Broadcast Law Blog, we looked at upcoming November regulatory dates and deadlines affecting broadcasters, which include the Nationwide EAS Test and a window during which noncommercial stations can file applications seeking construction permits for new FM translators in the FM Reserved Band.

With much of everyone’s focus on the outcome of the November 3 midterm elections, broadcasters cannot forget the regulatory dates and deadlines in November and early December.  While the dates and deadlines in November tend to be lighter than in other months, many routine deadlines do fall in early December, and even the upcoming month does have dates worthy of note to all broadcasters—including the nationwide test of the Emergency Alert System (EAS), which is scheduled for November 17.  For more on the nationwide EAS test and broadcasters’ accompanying filing obligations in the FCC’s EAS Test Reporting System (ETRS), as well as other dates and deadlines occurring next month and in early December, here is our look at what is coming your way.

Daylight Savings Time ends on November 1.  The change in the clocks means that AM daytime-only stations, AM stations with different daytime and nighttime patterns, and AM stations operating with pre-sunrise and/or post-sunset authority should check their sign-on and sign-off times on their current FCC authorizations to ensure continued compliance with the FCC’s technical rules.  AM stations need to note that all times listed in FCC licenses are stated in standard time, not daylight savings time even if it is in effect.

The noncommercial educational (NCE) reserved band (88.1-91.9 MHz) FM translator filing window will open at 12:01 a.m. ET on November 4 and will close at 6:00 p.m. EST on November 17.  To have an application considered by the FCC, by November 17, applicants must have complete applications in the FCC’s electronic filing system providing all the information necessary to establish the applicant’s claims for points to be used in the FCC’s “points system” to choose between mutually exclusive applicants (applicants who, for technical reasons, cannot both be granted without destructive interference).  For more on the points system, see our articles here and here.  Applicants are limited to 10 applications nationwide, except that LPFM operators are only allowed to file for 2 translators (4 if they are a Tribal group).  See our articles here, here, here, and here for more on the NCE FM translator filing window. As we noted here and here, the FCC implemented a filing freeze on all reserved and non-reserved band LPFM, FM translator, and FM booster station minor modification applications to freeze the FM database to facilitate the preparation of applications for the new translators in the reserved band.  The freeze began on October 2 and will end at 6:00 p.m. ET on November 17. 

Continue Reading November 2026 Regulatory Dates for Broadcasters – Nationwide EAS Test and ETRS Reporting, NCE FM Translator Filing Window, Daylight Savings Time, and more

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.

  • FCC Chairman Carr published a tweet saying that there had been a “significant surge in entirely Fake Polls and Suppression Polls” designed to interfere with the election process.  His tweet said that airing information from those polls would be inconsistent with broadcasters’ public interest obligations and a possible violation of the FCC’s news distortion policy or the broadcast hoax rules.
    • FCC Commissioner Gomez, in response to this tweet, announced that she had sent the National Association of Broadcasters a letter.  Her announcement says that “this Administration is running a coordinated, government-wide effort to reshape the media into its sanctioned messenger,” and that the FCC “has become one of its most active instruments.”  Gomez also said that “reporting the results of a poll this Administration happens to dislike does not come close to meeting” the FCC’s news distortion or broadcast hoax standards.  The letter goes on to recite a litany of other Commission actions that she claims are designed to intimidate broadcasters and suggests that the NAB turn up the volume on their protests about these actions. 
  • The FCC announced that comments and reply comments are due November 18 and December 3, respectively, in response to the FCC’s Further Notice of Proposed Rulemaking adopted last month concerning reforms to the FCC’s National Historic Preservation Act (NHPA) framework for determining if constructing communications facilities, including broadcast towers, affect historical sites.  This review will also look at FCC obligations under the Endangered Species Act.  As we noted here, in an accompanying Report and Order, the FCC significantly relaxed its National Environmental Policy Act (NEPA) framework for determining if constructing communications facilities affects the environment.  In the FNPRM, the FCC seeks comment on whether its historical review procedures and those under the Endangered Species Act should be applied to fewer FCC actions, including whether the FCC’s licensing procedures should even trigger review and whether the FCC should change its review procedures in a manner similar to the way it changed NEPA review.
  • The FCC’s Space Bureau released a Public Notice containing an updated list of earth stations operating in the Upper C-Band (4.0-4.2 GHz), which should receive a degree of interference protection from new C-Band users.  The list of incumbent C-Band earth stations, including those used by broadcasters, can be found here.  The Bureau reminds these “incumbent” C-Band users to update their registrations if changes are made and to notify the FCC if these earth stations are no longer actively used.  The list of registered incumbent earth stations will be used in determining eligibility for reimbursement of transition costs in the upcoming Upper C-band transition (see our note here).
  • The Enforcement Bureau issued two Notices of Violation after Bureau investigations revealed that broadcast stations were not complying with the FCC’s rules. In each case, the stations involved must explain to the Bureau how they will correct the rule violations and prevent future violations from occurring and, after receiving the response, the Bureau will consider what further actions are necessary.  The specific concerns identified by the FCC are listed below. 
    • The Bureau found that a group of Montana radio stations failed to monitor the stations they were assigned to monitor in the Montana Emergency Alert Service (EAS) Plan and those stations failed to maintain proper records of their EAS tests in their Station Logs which the station’s Chief Operator is required to maintain. 
    • The Bureau found that a Tennessee international broadcast station was not operating in accordance with its seasonal operating schedule and was otherwise not operating in compliance with the FCC’s technical rules for international broadcast stations. 
  • The FCC’s Enforcement Bureau issued three Forfeiture Orders—each imposing $20,000 fines—against individuals in Brooklyn, New York, Spring Valley, New York, and Hyannis, Massachusetts for operating pirate radio stations.  The pirate broadcasters now have 30 days to pay their fines or the FCC may refer their cases to the U.S. Department of Justice.  The FCC itself cannot sue to collect fines or take actions against individuals who ignore these fines.  It must rely on the DOJ to enforce them in Court.
  • The FCC’s Media Bureau released a Report and Order substituting VHF Channel 10 at Elko, Nevada for UHF Channel 20.  The Bureau found that the channel substitution was in the public interest because the TV station that requested the change to Channel 20 could not complete construction of its Channel 20 facilities, so returning the TV Table of Allotments to reflect that the station would remain on its current Channel 10 would prevent interruption of service to its viewers.  Under FCC policies, when the FCC changes the TV Table of Allotments to accommodate a station’s proposed channel change, the Table is changed even before the station builds its new facilities, thus requiring a proceeding like this one to undo the Table of Allotments change when the new facilities are not built. 

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 U.S. Supreme Court issued an order extending the temporary stay it issued last week (see our note here), rejecting the ruling of the U.S. Court of Appeals for the Fourth Circuit which had granted a mandamus petition filed by several Democratic candidates.  The Fourth Circuit had ordered the FCC to act, by October 9, on the candidates’ application for review seeking review of the controversial FCC Media Bureau Public Notice issued in March which “reminded” broadcasters that Lowest Unit Charges (LUC) apply to advertising bought by political parties and joint fundraising committees when authorized by a federal candidate (see our articles here and here).  The Supreme Court found that the Fourth Circuit’s order was inappropriate because, while the Communications Act of 1934 requires the FCC to act on every application for review it receives, it does not require the FCC to act within a set timeframe—let alone within the 48 hours that the Fourth Circuit gave the FCC here.  The Court also found that the Fourth Circuit’s decision inappropriately forced the FCC to abandon its deliberation process by quickly issuing a final decision on the Democratic candidates’ application for review while it was still reviewing comments filed in response to both that application for review and TVB’s related application for review of the Public Notice (see our note here).  On our Broadcast Law Blog, we took a closer look at the Supreme Court’s decision leaving the Public Notice in place for the remainder of this election season and the challenges raised in the pending applications for review to the underlying constitutionality of LUC and related political advertising rules.     
  • The National Association of Broadcasters and Nexstar filed oppositions to a petition filed with last week by several state cable and broadband associations seeking a stay of the FCC decision to lift the 39% national ownership cap for television (see our note here).  As we noted here, the FCC will now do a case-by-case review of any proposed TV combination exceeding the 39% cap to see if it is in the public interest by weighing factors including the transaction’s potential benefits (e.g., increased local programing and innovation) and its potential harms (e.g., decreased local programming, increased retransmission consent fees, and loss of jobs of communications workers).  The NAB and Nexstar argue that the FCC should dismiss the petition because its claim that retransmission consent rates will increase due to the FCC repealing the cap was speculative and because the petition failed to show why the groups could not challenge specific transactions (by demonstrating the specific harms that would result from those transactions) using the case-by-case review procedures set out in the FCC’s order.  The NAB and Nexstar also reject the groups’ assertion that the FCC lacks authority to alter or repeal the cap, noting that the FCC previously, under both Republican and Democratic chairs, as well as the courts have found that the FCC has the authority to do so.

The question of whether ads from political parties and joint fundraising committees, when authorized by federal candidates, receive Lowest Unit Charge (LUC) from broadcasters and local cable systems has been a contentious one since early in this election year.  We wrote about the FCC Media Bureau’s March Public Notice “reminding” broadcasters that these ads were entitled to LUC, and how that March Public Notice took on greater significance when the Supreme Court ruled in June that federal candidates were not limited in coordinating their spending with their political parties.  Until that ruling, there was a relatively insignificant amount of spending that could be coordinated between parties and candidates, limiting the ability of candidates to authorize such ads.  After the confluence of these decisions, a number of Democratic candidates have been pursuing various legal angles to get review of that Media Bureau Public Notice that is seen as favoring Republicans as the Republican party organizations have significantly more money to spend in coordination with their candidates.  The Democrats did convince the Fourth Circuit Court of Appeals to rule that only candidates were entitled to LUC (see our article here), only to see that decision stayed by the Supreme Court which found that the Fourth Circuit’s decision appeared to be premature, as the Fourth Circuit had intervened before the full Commission issued any ruling on the validity of the Media Bureau’s Public Notice. 

The Democratic candidates did not give up – asking the Fourth Circuit to issue an order granting “mandamus” – forcing the Commission to do what it is required to do.  The candidates asked the Fourth Circuit to order the FCC to decide on the candidate’s application for review filed in April seeking full Commission review of the Media Bureau Public Notice.  The Democrats’ theory seemed to be that, if the full Commission ruled on the application for review, the Supreme Court’s stay would be moot as the Fourth Circuit could apply its ruling to the full Commission decision, rather than to the Bureau action.  As we noted last week, the Fourth Circuit did issue that mandamus order, only to see it stayed again by the Supreme Court.  While the Supreme Court’s initial stay was temporary while they considered the matter further, in a further order this week, the Supreme Court has made the stay permanent – holding that the Fourth Circuit cannot force the Commission to act precipitously, and that the Commission has the right to be deliberative in their consideration of the matter.  That Supreme Court decision thus puts the review back into the FCC’s court – and likely ends any meaningful litigation on this issue until well after the November election.  So, the Public Notice remains in effect for the rest of this election cycle – but it does not resolve this issue forever. 

The Supreme Court in all of its stays has never addressed the merits of the case – whether parties and joint fundraising committees, as well as candidates, get LUC when their ads are “authorized” by a federal candidate.  While that issue remains to be resolved in the courts, an even more fundamental issue has also been put before the FCC, one that may well end up once again before the Supreme Court: i.e., whether the entire concept of a Lowest Unit Charge forced on broadcasters is constitutional. 

To this point, the litigation has focused on whether the Communications Act, when it says that a “candidate” is entitled to LUC really means just the candidate is entitled to LUC (or, whether by “authorizing” the ad, the candidate somehow makes that authorized ad his or her own).  But one of the issues that has been lurking in the petition for reconsideration of the Public Notice filed by TVB (the television advertising bureau) and in its subsequent application for review of the denial of its petition for reconsideration, but which has not had much publicity, is whether compelling broadcasters to sell cheap advertising to political candidates (and likely by extension whether forcing stations to sell time to federal candidates in the first place) is consistent with the First Amendment.  In comments filed in response to the FCC’s request for comment on the TVB petition, several public interest or advocacy groups have filed briefs challenging that constitutionality.

These groups argue (see, for instance, the comments here, here, and here) that the requirement that broadcasters sell time to political candidates forces broadcasters to air content with which they might have a fundamental disagreement and, more than that, to air that content at a discount.  In effect, they are forcing broadcasters to subsidize content from candidates.  This kind of restriction on the price paid for advertising time would never be allowed if it was placed on newspapers or online platforms because of their First Amendment rights to transmit what they want to transmit.  Yet, for decades, such restrictions have been permitted on broadcasters, at least partially based on the belief that broadcasting is different as it uses the public’s airwaves (and that cable uses public rights of way to reach homes).  But, as these days so much online content uses these same pathways to reach consumers, and these competitive media now dominate the advertising world and compete on at least an equal basis for audience, is there really any constitutional basis for subjecting broadcasters to these rules so foreign to any other media outlet in the United States?

This issue is before the Commission in comments filed on TVB’s application for review.  While the current Commission has been very vocal about enforcing public interest obligations of broadcasters (including the political rules) based on the premise that broadcasters are different than other media as Congress has specifically imposed these public interest obligations on them, expect that this issue will be litigated beyond the FCC.  Also, any challenge to LUC and other political obligations of broadcasters on constitutional grounds could have broader ramifications on other unique programming and operational restrictions put on broadcasters that do not apply to other media companies.

This Supreme Court has taken a very expansive view of First Amendment rights in recent years, so this issue may well be one that will be of interest to them.  Don’t expect this to happen overnight, as the Commission will need to decide the issue, and any Commission decision will need to be appealed to the Court of Appeals before it is ripe for Supreme Court review.  Thus, it is an issue that will play out over the next few years.  But it is one that all broadcasters should be watching. 

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.

  • There was an additional flurry of activity related to the controversial FCC Media Bureau’s Public Notice issued in March which “reminded” broadcasters that Lowest Unit Charges (LUC) apply to advertising bought by political parties and joint fundraising committees when authorized by a federal candidate (see our Broadcast Law Blog articles here and here).  Early in the week, the U.S. Court of Appeals for the Fourth Circuit issued a ruling granting a mandamus petition by several Democratic candidates compelling the FCC to act, by October 9, on the candidates’ application for review seeking to overturn the Public Notice.  If the FCC acted on the application for review, that might moot the U.S. Supreme Court decision last month that had stayed the Fourth Circuit’s August decision that ads bought by political parties and joint fundraising committees did not get LUC – that the rates applied only to candidates themselves.  The Supreme Court stay was premised on the fact that the Fourth Circuit decision overturned an FCC staff action before the FCC Commissioners had a chance to rule on the merits of that staff decision.  As other courts had found that action by the full Commission was a precondition for judicial review, the Supreme Court thought that the Fourth Circuit decision ignored this precedent (see our articles here and here).  If the full Commission acted on the application for review, as ordered in this week’s decision on the mandamus request, the Fourth Circuit might be able to overcome the procedural issue identified in the Supreme Court stay. However, before the FCC was compelled to act on the application for review as required by the mandamus order, the Supreme Court again intervened and issued a temporary stay, blocking the effect of the mandamus order at least until additional arguments could be heard. The FCC argued to the Supreme Court in its application for stay that it needed more time to consider public comments filed in response to the Democratic candidates’ application for review and on a related application for review of the Public Notice by TVB (see our note here).  It also wanted to avoid uncertainty about the application of LUC in the middle of the campaign period before November’s midterm elections.  The Republican National Committee and associated groups filed an amicus brief supporting the FCC’s pleading, echoing the FCC’s concerns.  The Democratic candidates were ordered to file a responsive brief on October 10 so that the Supreme Court can issue a final ruling on the stay request.  The candidates’ brief, here, argues that the FCC is purposely using delaying tactics to evade judicial review of the legality of the Public Notice.  Watch for a Supreme Court decision soon on whether the stay should remain in effect. 
  • Two petitions were filed with the FCC seeking a stay of its decision to lift the 39% national ownership cap for television.  One petition, filed by several state cable and broadband associations, argues that the Commission’s decision ignored the harms to consumers from the increase in retransmission consent fees that these associations fear will occur should there be more television ownership concentration.  A second petition, filed by public interest and labor organizations, argues that the FCC does not have the authority to lift a cap set by Congress and that the Commission, in finding that lifting the cap would strengthen local stations so that they can better serve the public, ignored arguments that greater consolidation would actually harm broadcast localism.   
  • The FCC released its Quarterly Broadcast Station Totals.  The release shows that compared to the same release from a year ago, there were 85 fewer AM stations and 54 fewer commercial FM stations, but 85 more noncommercial FM stations.  There were also 6 more commercial UHF TV stations but 5 fewer VHF TV stations; 2 more noncommercial UHF TV stations but 2 fewer noncommercial VHF TV stations.
  • The FCC’s Wireless Telecommunications Bureau announced the selection criteria and submission instructions for proposals for parties to serve in the position of the Upper C-Band Clearinghouse (see here).  In July, the FCC adopted rules reconfiguring the upper C-band (3.7-4.2 GHz) for terrestrial wireless use and requiring incumbent operators, including C-band earth stations used by broadcasters for receiving satellite-delivered programming, to clear the band (see our note here).  The Upper C-Band Clearinghouse would be responsible for administering the payment of transition costs, including reviewing and approving the actual cost and lump sum reimbursement claims filed by incumbent earth station operators transitioning out of the band.  Clearinghouse candidates must submit their proposals for the position by November 9. 
  • The Media Bureau released a Notice of Proposed Rulemaking proposing the substitution of VHF Channel 11 for UHF Channel 34 at Des Moines, Iowa.  The TV station proposing the substitution seeks to remain on its current Channel 11 after the station determined that it could not build out its Channel 34 facilities by its construction permit’s expiration date. 
  • The FCC’s Enforcement Bureau issued a Notice of Violation against the licensee of two North Carolina FM translators after the Bureau’s investigation found that the translators were operating while their designated AM primary station was off the air.  The FCC rules prohibit a translator from operating for more than 24 hours after its primary AM station goes silent. The licensee must now explain to the Bureau how it will correct the rule violation and prevent future violations from occurring.

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 released the final text of its Report and Order eliminating the 39% national TV ownership cap – an Order adopted at its August Open Meeting (see our note here).  The FCC will now do a case-by-case review of any proposed TV combination exceeding the 39% cap to see if it is in the public interest by weighing factors including the transaction’s potential benefits (e.g., increased local programing and innovation) and its potential harms (e.g., decreased local programming, increased retransmission consent fees, and loss of jobs of communications workers). By abolishing the cap, the FCC appears to be starting from a position that the cap is no longer necessary so any objections to proposed combinations that would exceed the current cap must provide specific showings why the transaction before the FCC would harm the public interest (e.g., by showing historical tendencies of the acquiring company to engage in conduct that produced negative results).
    • FCC Commissioner Gomez issued a dissenting statement repeating her earlier statements (see our note here) that only Congress could change the cap and that eliminating the cap risks greater consolidation, less independent/local news, reduced viewpoint diversity, and higher retransmission-consent costs. 
  • The FCC released a Report and Order and Further Notice of Proposed Rulemaking significantly revising the FCC’s procedures under the National Environmental Policy Act (NEPA) for determining if constructing communications facilities, including broadcast towers, affect the environment.  These reforms include limiting the scope of the FCC’s NEPA review, streamlining and expediting the FCC’s NEPA review process, and requiring NEPA review for broadcast activities only if a new tower needs an Antenna Structure Registration.  The FNPRM seeks comment on the FCC’s related National Historic Preservation Act (NHPA) framework, including whether the FCC’s licensing procedures trigger NHPA review and whether the FCC should change its NHPA procedures like it did with NEPA. 
  • The FCC released a Memorandum Opinion and Order concluding that a TV station can be a must-carry signal in only one DMA.  This overturns a 2024 Media Bureau decision finding that DISH Network had to accord must carry rights to a station licensed to Opelika, AL in both the DMA where the station is located (the Columbus-Opelika, GA-AL DMA) and the market to which Nielsen assigns it (the Atlanta, GA DMA).  Under the Satellite Home Viewer Improvement Act of 1999 (SHVIA) and the FCC’s satellite carriage rules, satellite TV providers must carry a TV station in its local market upon demand.  This week’s Commission decision concludes that a station will receive must-carry only in the market to which it is assigned (and, if the station’s city of license is outside that market, in the county where its community of license is located).  The FCC accepted DISH’s assertion that the station could choose which of the two DMAs was the one to which it is assigned and ordered the parties to come into compliance with the ruling within 30 days. 
  • The Media Bureau released a Public Notice announcing that it is requesting one more set of comments on the Bureau’s March Public Notice which “reminded” broadcasters that Lowest Unit Charges (LUC) apply to advertising bought by political parties and joint fundraising committees when authorized by a federal candidate (see our article here).  These comments, due by October 12, with replies due October 19, seek comment on TVB’s application for review of the Bureau’s denial of its petition for reconsideration of the Public Notice.  TVB argues that Section 315(b) of the Communications Act of 1934 clearly limits LUC eligibility to federal candidates and their authorized committees, the LUC violates broadcasters’ First Amendment rights by dictating their programming decisions, and the LUC Public Notice harms broadcasters economically.  As the Bureau stated in last month’s Public Notice seeking comment on several Democratic candidates’ application for review of the LUC Public Notice (see our note here), failing to allow public comment on TVB’s application for review could be legally problematic. The opening of this comment period was brought to the attention of the 4th Circuit Court of Appeals by the FCC to augment its argument that the Court should not order the FCC to act on the Democratic candidate’s request to force quick Commission action on the requests to review the Public Notice (see our article here on that request), seemingly making any change in the policies announced by the Public Notice before the November elections.
    • Comments and reply comments were also filed in response to the Democratic candidates’ application for review of the LUC Public Notice.  Commenters were split over whether the LUC Public Notice should be rescinded.  Some commenters (see here, here, and here) say that the LUC is limited to federal candidates and their authorized committees, and the LUC’s extension to political parties and joint fundraising committees decreases broadcaster revenues—particularly for smaller stations.  Other commenters (see here, here, here, and here) say that the Bureau’s March LUC guidelines should stay in place as political campaigns and parties have already purchased advertising for the midterm elections, and changing those guidelines now could create legal issues for broadcasters.  The Center for American Rights says that the LUC’s mandate of preferential pricing for only federal candidates and their authorized committees violates the First Amendment
  • The Media Bureau released an Order in the FCC’s ongoing Delete, Delete, Delete proceeding (see our article here) deleting the FCC’s rules requiring broadcasters to file the FCC Form 395-B—an annual report that, in the past, was to be placed in stations’ online public files classifying all their employees by race, gender, and employment position.  The Bureau found that the Form 395-B rules had to be deleted after the U.S. Court of Appeals for the Fifth Circuit ruled last year that the FCC lacked authority to require broadcasters to file the form (see our article here).  The Bureau said that since the deletion of the rules was a ministerial action, there would not be a public comment period before the deletions take effect. 
  • The FCC and the FCC Wireless Telecommunications Bureau released two items concerning earth station licenses:
    • The Wireless Telecommunications Bureau released a Public Notice seeking comment on the Upper C-band Transition Preliminary Cost Catalog.  In July, the FCC adopted rules reconfiguring the upper C-band (3.7-4.2 GHz) for terrestrial wireless use and requiring incumbent operators to clear the band, including relocated lower C-band earth stations used by broadcasters for receiving satellite-delivered programming (see our note here).  The FCC required new upper C-band licensees to reimburse eligible incumbent earth station operators for their transition costs and directed the Bureau to create a catalog of reimbursable costs.  The Bureau seeks comment on the proposed cost catalog and whether the lower C-band’s reimbursement policies and procedures should be used or adjusted for the upper C-band transition.  Comments and reply comments responding to the Notice are due October 20 and November 9, respectively. 
    • The FCC released an item updating its earth station rules and seeking comment on encouraging new and more intensive satellite communications use in certain spectrum bands.  These changes include placing a filing freeze on new earth station license applications in the 12.7 GHz band, adopting a 10-year sunset period for protected terrestrial earth station operations in the 12.7 GHz band, and limiting earth station deployment opportunities in the 42 GHz band.  The FCC also seeks comment on limiting earth station operations in other bands, including the Ku-Band, the Ka-Band, and the 2360-2395 MHz band, to allow new uses of those bands. 
  • The Media Bureau updated the FM Table of Allotments to resolve short-spacing issues created by 2 vacant FM allotments in Tennessee and Michigan.  The Bureau deleted vacant Channel 288A at Selmer, Tennessee to resolve a short-spacing conflict with a nearby FM station but did not substitute the vacant allotment with another channel because there were no other channels that could resolve the issue.  The Bureau also substituted Channel 258A for vacant Channel 248A at Whitehall, Michigan to resolve short-spacing conflicts to 3 nearby FM stations while keeping a second local service at Whitehall.

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.

  • Senator Ron Wyden (D-OR) wrote a letter to the sole Democratic FCC Commissioner, Anna Gomez, highlighting questions about whether it was legal for the FCC to operate with three Republican commissioners.  There has been concern expressed by some that, should the nomination of Danielle Thumann to be the third Republican commissioner be confirmed, the President would fire Gomez, leaving a three-member FCC, with all being Republicans.  While three members of the FCC are all that is necessary for a quorum, Wyden points to language in the Communications Act that states “The maximum number of commissioners who may be members of the same political party shall be a number equal to the least number of commissioners which constitutes a majority of the full membership of the Commission.” An accompanying press release offers the opinion that, if there are three commissioners, this language means that only two can be members of the same political party.  It further suggests that, if all the Commissioners were Republicans, all actions of the Commission could be subject to judicial challenge.  We would anticipate that this issue will come up in any hearing on the nomination of Thumann when the Senate returns after the mid-term elections and Thumann is available following her maternity leave. 
  • FCC Chairman Carr responded to a letter from Democratic Congress members suggesting that the FCC did not have the power to impose content warnings on TV programming that features transgender characters or topics.  As we noted here, the Media Bureau released a Public Notice in April requesting comment on the TV Parental Guidelines ratings system and asking if specific disclosures for shows with transgender and gender non-binary content are needed.  Carr’s response said that the Congressional members opposing such warnings “stake out the radical position that parents have no right to know whether controversial gender identity ideologies are being promoted in children’s television programming,” claiming that there is “a sudden surge in children’s television programming secretly promoting gender ideology to young kids without the knowledge or consent of their parents.”  Carr also said that the position of the representatives who signed the letter was at odds with Congress’ intent in establishing the ratings system “to allow parents to determine the type of TV programming that is appropriate for their children.”
  • FCC Commissioner Gomez released a statement on the settlement between a number of state attorneys general and Paramount which is expected to allow the company’s acquisition of Warner Bros. Discovery to be completed.  Gomez said that she was “disappointed that this settlement appears to pave the way for yet another massive media consolidation deal that could raise prices for consumers, reduce content diversity, and weaken editorial independence.”  Gomez also said that the “settlement does nothing to resolve the FCC’s own unprecedented decision to approve near complete and unchecked indirect foreign ownership of one of America’s largest media companies from some of the most repressive governments in the world” (see our note here).
  • The FCC released an Order directing its Media Bureau to complete processing of 5 full-power TV and Class A TV stations’ license renewal applications that the Bureau had referred to the FCC because the stations did not comply with the safe harbor processing guidelines for core children’s programming.  As we discussed here, in 2019, the FCC revised its processing guidelines for stations’ compliance with their children’s programming obligations (which are assessed with stations’ renewals) setting yearly totals of required regularly scheduled children’s programs.  If stations do not meet the quantitative requirements for the safe harbor, their applications are referred to the full Commission for review, where they can demonstrate how they had served the needs of children in other ways.  The stations, in Florida, Indiana, New Hampshire, Pennsylvania, and Wisconsin, each had different reasons for not meeting the safe-harbor requirements, but each put forward reasons that their applications should be granted.  The FCC found that the significant regulatory changes that the stations faced during their license term due to the revised safe harbor guidelines, and significant operational changes due to the Incentive Auction, the COVID-19 pandemic, and for other reasons, warranted departure from the normal safe harbor processing guidelines for each station.  The FCC cautioned that it did not anticipate in the future returning renewals to the Bureau for processing when stations do not comply with the safe harbor processing guidelines. 
  • The FCC’s Enforcement Bureau issued several Notices of Illegal Pirate Radio Broadcasting to property owners in Brooklyn New York, Bronx, New York, Mount Vernon, New York, and Cleveland, Ohio for allegedly allowing pirates to broadcast from their properties.  The Bureau warned the property owners that the FCC may issue fines of up to $2,453,218 under the PIRATE Radio Act against each owner if they continue allowing pirate radio broadcasting from their properties.
  • The Media Bureau took two actions regarding the Table of TV Allotments:
    • The Bureau released a Notice of Proposed Rulemaking proposing the substitution of UHF Channel 18 for VHF Channel 8 at Savannah, Georgia.  The TV station proposing the substitution states that moving to a UHF channel serves the public interest by improving the community’s access to the station’s locally produced programming due to improved indoor reception, noting VHF channels’ inherent reception issues.
    • The Bureau released a Report and Order adopting the substitution of Channel 10 for Channel 36 at Norwell, Massachusetts.  The Bureau found that the channel substitution was in the public interest because it allows the station proposing the substitution to continue operating on its current Channel 10 after the station determined that it would not build out the Channel 36 facilities authorized by a construction permit.
  • The Media Bureau removed a condition from Bluewater, Arizona FM station’s construction permit prohibiting the station from commencing operations on Channel 230C3 until a Parker, Arizona FM station operating on Channel 230C3 began operating on Channel 224B1.  Even though the Parker station requested and was granted a channel change over 20 years ago, the licensee never implemented that change.  As the FCC considers an FM stations channel to have been changed once it is granted a CP for that new channel, the Parker station’s continued operation on its old channel constituted an “implied STA.” After the Parker station’s channel was changed, the Bluewater station was authorized on the old Parker channel, but its permit was conditioned on it not starting operations until the Parker station moved to its new channel.  Given the length of the delay in the Parker station changing channels, and because that delay impedes the commencement of service by the Bluewater station, the Bureau ordered the Parker station to cease Channel 230C3 operations within the 120 days so that the Bluewater station can commence its operations.
  • The FCC and the Media Bureau took actions concerning new LPFM construction permit applications:
    • The FCC released a Memorandum Opinion and Order affirming the Media Bureau’s tentative selectee determinations in a group of 6 mutually exclusive (MX) Puerto Rico LPFM construction permit applications (applications that cannot all be granted consistent with the FCC’s technical rules).  In May 2025, the Bureau granted 3 of those MX applications on a time-sharing basis.  An applicant whose MX application was dismissed claimed that the Bureau failed to award it an extra point in the point system analysis for having an established community presence and that the time-sharing arrangement removed the applicant from the MX group, thereby permitting its application to be granted.  The FCC rejected the applicant’s arguments, finding that the applicant’s initial application did not include documentation showing that it had an established community presence as a non-profit organization existing for at least 2 years, and the time-sharing arrangement did not create a new opportunity for the applicant to obtain a permit after the comparative process had ended.
    • The Bureau dismissed 36 LPFM construction permit applications filed by a group of commonly controlled applicants after determining that the applicants failed to meet the LPFM localism requirements (either physically headquartered or 75% of its board members resided within 10 miles of the proposed transmitter site for stations in the top 50 urban areas or 20 miles in all other areas).  The Bureau found that the applicants appeared to all be operated and controlled by a national headquarters that was not in any of the proposed LPFM stations’ communities of license, and none of the applicants’ directors resided within those communities.  
    • The Bureau dismissed a Texas LPFM construction permit application after the applicant failed to respond fully to the Bureau’s inquiries regarding the applicant’s eligibility to hold an LPFM authorization and compliance with the FCC’s foreign ownership rules.  The applicant initially listed three directors, two of whom were not US citizens, but claimed that the US citizen had voting control of the non-profit applicant.  When asked to substantiate that the corporate documents permitted directors to have different voting interests, the applicant amended its application to remove the 2 non-U.S. directors, leaving only one director.  As Texas requires a non-profit corporation to have at least three directors, and as the applicant did not substantiate its initial structure, the Bureau dismissed its application finding that it failed to demonstrate its legal existence under state law and failed to respond fully to the Bureau’s inquiries.

On our Broadcast Law Blog, this week we took a look at the important October regulatory dates and deadlines for broadcasters.  These include Quarterly Issues Programs lists and the required filing of ETRS Form One in connection with the upcoming Nationwide EAS Test.  We also discussed the latest developments in the legal proceedings regarding the Media Bureau’s extension of Lowest Unit Rates to political parties and joint fundraising committees and the impact of these proceedings on broadcasters in these weeks before the midterm elections.  Finally, we wrote about the FCC’s posting of FAQs on the new EAS cybersecurity rules taking effect on September 29.

October is another busy month of regulatory dates and deadlines for broadcasters.  Unlike previous years, there is no threat of a federal government shutdown on its October 1 start of the new fiscal year, so the dates and deadlines discussed below should not move on broadcasters.  As we detail below, all stations will need to observe EAS reporting requirements for the filing of ETRS Form One in anticipation of the upcoming Nationwide EAS Test, and all full-power stations need to remember the Quarterly Issues Programs list filing deadline.  While there always can be an October surprise, we take a look below at these and other significant dates and deadlines in the coming month. 

October 1 is the deadline for radio and television station employment units in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Missouri, Northern Mariana Islands, Oregon, Puerto Rico, the U.S. Virgin Islands, and Washington 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 station’s OPIF, as even a single late report has in the past led to significant FCC fines (see our article here about a $26,000 fine for a single late EEO report).

The filing of the Annual EEO Public File Reports triggers the Mid-Term EEO Review beginning October 1 for TV station employment units with five or more employees in Alaska, American Samoa, Guam, Hawaii, Northern Mariana Islands, Oregon, and Washington.  The Mid-Term EEO Review that analyzes the last two Annual EEO Public File Reports for compliance with the FCC’s EEO requirements.  See our articles here and here on stations’ Mid-Term EEO Review reporting requirements.

Continue Reading October 2026 Regulatory Dates for Broadcasters – Quarterly Issues/Programs Lists; EAS Test Form One; Annual EEO Public File Reports; EEO Audit Responses; Filing Freeze on FM Translators; and more