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

  • The Senate Commerce Committee this week held a hearing on the nomination of FCC Chairwoman Jessica Rosenworcel for another five-year term at the agency. The Chairwoman’s opening remarks focused on broadband availability and called communications technologies “the infrastructure of opportunity.”  Her opening comments included no mention of broadcast issues (Rosenworcel Remarks).  Senators’ questions were also light on broadcast issues, though the Chairwoman voiced her support for tax credits for journalism operations that would be made possible by a bill being considered by Congress and for bringing back the Minority Media Tax Credit.  She said the FCC will find ways to encourage broadcasters to use their FCC license to support local communities.  A hearing on fellow Democrat Gigi Sohn’s nomination to fill a vacant FCC seat hearing has been delayed, which may be a signal that Sohn’s nomination is more controversial than Rosenworcel’s.  In case you missed it, we posted on the Broadcast Law Blog an article highlighting the broadcast issues that a full-strength, five-Commissioner FCC might try to tackle.
  • FCC Commissioner Nathan Simington has started to make known his positions on broadcast issues, addressing a Massachusetts Association of Broadcasters awards program and sharing his thoughts. Simington joined the FCC in December 2020 in the closing days of the Trump Administration and broadcast issues were not covered deeply during his confirmation hearing.  The Commissioner called broadcasting the tentpole of American media and something that must be preserved.  He remarked that broadcasting is a “window into what’s happening where we live, a tether to our civic and cultural identities, and a check against political corruption.”  He will encourage the Commission to consider broadcasting’s role in the media marketplace and further relax broadcast ownership regulations in the face of explosive growth and competition from Big Tech companies like Facebook and Google.  (MAB Remarks)
  • The FCC opened a rulemaking to consider allowing FM broadcast license applicants to verify directional antenna patterns through computer modeling instead of physical testing.  Current FCC rules require applicants to provide measurements using either a full-size mockup or scale model of the antenna and supporting structures to measure the pattern generated. The proposed rule changes would put FM and LPFM applicants on equal footing with their AM radio and television counterparts, which are already permitted to rely on computer modeling to verify directional antenna patterns.  The comment period will be set when the Notice of Proposed Rulemaking is published in the Federal Register.  (Notice of Proposed Rulemaking)
  • The FCC announced that it will hold Auction 112 in June 2022 to award construction permits for 27 full-power TV stations. It released a Public Notice with proposed procedures for the auction (Public Notice).  If you are interested in bidding for a new TV station, take a look at the list of available construction permits.  Most of the channels are in smaller communities in western states (Construction Permit List). Comments on the proposed auction procedures are due by December 13.  Reply comments are due by December 23.
  • A Florida college TV station faces a $6,000 fine in connection with its license renewal application for failing to upload its quarterly issues/programs lists on time. The station uploaded four lists more than one year late, four lists between one month and one year late, and three lists between one day and one month late.  The station also noted in its renewal application that a handful of quarterly lists were mistakenly posted to the station’s website instead of its public file.  Even though the lists eventually made their way to the public file, the Video Division reminded the station that “employee acts or omissions, such as clerical errors in failing to file required forms, do not excuse violations.”  Pay close attention to filing dates and deadlines, so you do not find your operation looking at a monetary penalty.  (Notice of Apparently Liability for Forfeiture)
  • In other confirmation news, Jonathan Kanter was confirmed by a bipartisan vote of the Senate to lead the Department of Justice’s antitrust division. The division examines transactions and mergers that could affect competition in the marketplace (including in the broadcast industry) and provides opinions on broadcast marketplace competition.  The division also oversees the ASCAP and BMI consent decrees. (Vote Summary)

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

  • The Senate Commerce Committee announced this week that it will hold a hearing to consider FCC Chairwoman Jessica Rosenworcel for another five-year term at the agency. Fellow Democratic Commissioner-nominee Gigi Sohn’s confirmation will not appear at the hearing, suggesting to some that her nomination is likely to have more problems being confirmed. Tune in to the livestream at commerce.senate.gov at 10 a.m. Eastern on November 17 to watch the Rosenworcel hearing. If Chairman Rosenworcel receives a majority vote of the committee members, her nomination will move to the full Senate for final approval. (Nominations Hearing Notice). See the article on our Broadcast Law Blog on the issues for broadcasters that the Commission will likely consider when it is back at full strength (Article).
  • The FCC’s filing window for applications for new noncommercial FM stations closed on Tuesday, November 9, with over 1000 applications having been filed. The FCC released a Public Notice announcing the closing of the window and stating that no amendments to applications filed in the window will be permitted until after November 29 at 6 p.m. Eastern. The FCC staff will take that time to evaluate the submitted applications and identify which applications are mutually exclusive with other applications that were filed in the window. More information explaining the procedures for filing settlement agreements and technical amendments to resolve conflicts between applications will be forthcoming. (Public Notice)
  • An AM radio tower owner entered into a consent decree and was fined $1,400 for its failure to properly maintain its tower lights and to report a change in the ownership of the tower. The fine would likely have been higher but the owner made a financial showing to the FCC that it could not afford to pay more. Under the FCC’s rules, owners of FCC-registered lighted antenna structures must confirm at least once every 24 hours that the tower’s lights are functioning properly or connect the lighting system to an alarm that notifies the owner in the event of a malfunction. If ownership of a registered tower is changed, the FCC must be notified of that change. In this case, under the consent decree, the tower owner must appoint a compliance officer, follow a compliance plan, and file compliance reports for three years in addition to paying the fine. (Consent Decree)
  • The FCC continued to enter into consent decrees with broadcasters for violations of the FCC’s requirements for the prompt upload of political advertising orders to a station’s online public inspection file, releasing a number of such decrees this week (Sample Consent Decree). David Oxenford will be conducting a webinar on Thursday, November 18, with members of the FCC’s Political Broadcasting Office to remind broadcasters of the rules in preparation for the expected rush of political advertising in connection with 2022 elections. Check with your state broadcast association to see if this webinar is available to stations in your state.

With the Administration’s decision to renominate Jessica Rosenworcel for another term on the FCC and to select her as the permanent chair of the Commission, and the nomination of Gigi Sohn to fill the vacant seat on the FCC, and assuming both are confirmed by the Senate (though the Wall Street Journal noted that there could be some objections to the Sohn nomination), the FCC could be back at full strength by the first of the year.  As Chairwoman Rosenworcel’s current term ends at the end of this year, Senate confirmation hearings for these nominees are expected shortly with a vote to follow.  What are the broadcast issues that a full FCC Commission will be facing?

During the Pai administration at the FCC, there was a constant stream of media regulatory reforms, particularly as part of his Modernization of Media Regulation initiative.  While many of the rule changes were small, there were significant changes as well, including changes to the media ownership rules that were affirmed by the Supreme Court earlier this year (see our article here), revisions to the children’s television rules (see our article here), the adoption of rules for Next Gen TV (ATSC 3.0 – here and here), and the relaxation of the public file and local main studio rules (here and here).  Some of these changes have drawn some concerns from public interest advocates, so there is a chance that some of these matters will be revisited by a new FCC.  We did note, for instance, that the FCC is looking at accessibility and captioning of children’s programs on multicast channels as perhaps one place where a reexamination of the children’s television rules could occur.  What other issues are pending?

For the radio industry, the outstanding Quadrennial Review looks at the potential for relaxation of the local radio ownership rules.  As we have written, some broadcasters and the NAB have pushed the FCC to recognize that the radio industry has significantly changed since the ownership limits were adopted in the Telecommunications Act of 1996, and local radio operators need a bigger platform from which to compete with the new digital companies that compete for audience and advertising in local markets.  Other companies have been reluctant to endorse changes – but even many of them recognize that relief from the ownership limits on AM stations would be appropriate.

The Quadrennial Review also looks at the dual network rule that currently forbids the common ownership of two of the Top 4 TV networks.  Also under consideration is the potential for the combination of two of the Top 4 television stations in any local market.  Common ownership of such stations is only permitted now through what is essentially a waiver process.  The FCC has asked if there are specific criteria that could be adopted to evaluate those requests (e.g., a combination of the 3rd and 4th stations would be allowed if their market share did not exceed a specific percentage of the market – or the share of the higher rated stations in the market) so that applicants would have more certainty about whether a proposed combination would be allowed.  Look for possible resolution of these issues in 2022.  In addition, because 4 years have passed since the 2018 Quadrennial Review began, we may see the initiation of a new Quadrennial Review process in 2022 as well.

For TV, the FCC last week released a Further Notice of Proposed Rulemaking seeking comment on the interplay between multicast channels and the ASTC 3.0 conversion – particularly in the context of the responsibility for “lighthouse” ATSC 1.0 programming streams left behind on a host station by a station that has converted to the new transmission standard.  Other Next Gen TV issues, including the expansion of single-frequency networks will likely be on the FCC’s agenda (see our article here on an FCC action approving these distributed transmission services – that decision is still subject to FCC review because of reconsideration filings).  Issues of TV white spaces devices and other unlicensed uses of the television spectrum also are under FCC consideration.

Enforcement issues affecting both radio and TV also could be considered by a full-strength FCC.  The FCC has recently requested comments on bringing back the annual EEO Form 395, reporting on the race and ethnicity of broadcast employees (see our article here).  A rulemaking looking at broader reform of the EEO rules is also still outstanding and could be given further consideration (see our article here).  If passed by Congress, the FCC would also have a role to play in drawing up rules for the implementation of the return of the minority tax certificate (here and here).

Political broadcasting is always an issue.  The requirement for quicker disclosure of advertising orders placed by political candidates and issue advertisers has been brought to the foreground by the hundreds of consent decrees signed by broadcasters across the country in the last 15 months (see our articles here and here).  But there are also reconsideration requests pending seeking clarification of the FCC’s order mandating more fulsome disclosure of the issues discussed in non-candidate ads on matters of national importance (i.e., federal issue ads – see our articles here and here).  Disclosure requirements about the funding of political advertising backers has also been considered in previous administrations – and could make a return in this one (see our articles here and here). Watch for developments in the political broadcasting area, especially in light of the wave of political advertising expected for the 2022 election.

For radio, there are various technical proposals that are still on the table for possible consideration.  Proposals for a Class C4 FM service (here) and the limited origination of programming on FM boosters (here) are pending and could be given further consideration, though any resolution is unlikely in 2022 given the procedural status of these proposals.

And, of course, the debate over regulation of tech platforms is an issue affecting the media industry generally.  The FCC’s involvement in this area may grow in the future, either through Congressional delegation of specific powers or the FCC’s own actions on issues including the review of Section 230 (see our article here) or net neutrality.

These are only some of the potential policy issues affecting broadcasters that could be on the plate of a full Commission in 2022. Watch as the nominations progress to see what other issues of importance to broadcasters come up in the discussions on Capitol Hill.  Be prepared for change of some sort – though it may well be in some area that we haven’t even mentioned here.  The FCC adapts to the issues of the day, and broadcasters need to be prepared for whatever comes their way from the new Commission.

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

  • In a Further Notice of Proposed Rulemaking released Friday, the FCC proposed new rules to deal with the responsibility for multicast programming streams as TV stations transition to ATSC 3.0 (Next Gen TV). The FCC proposes to include programming that is broadcast on the multicast channels of host stations continuing to operate in ATSC 1.0 within the license of an ATSC 3.0 station originating that programming.  Comment is also sought on whether to include the programming steam of an ATSC 1.0 host station within the license of that station when its programming is included as a multicast channel on a station that has already converted to Next Gen TV.  The rulemaking is in response to an NAB petition asking the FCC to clarify its rules for licensing these multicast streams during the Next Gen TV transition.  Look for more details on this proceeding on the Broadcast Law Blog later this week.  Comments and reply comments on the proposals will be due 60 days and 90 days, respectively, after publication in the Federal Register.  (Further Notice of Proposed Rulemaking)
  • A Florida radio and TV licensee entered into a consent decree and will pay a $20,000 penalty for violating the FCC’s environmental rules. In this case, the licensee proposed construction of a tower within a designated habitat of the Florida bonneted bat, an endangered species.  The licensee began to clear vegetation from the site before an environmental assessment was completed and before the FCC approved construction.  The consent decree comes with the naming of a compliance officer, implementation of a compliance plan that includes employee training, filing of four compliance reports, and the monetary penalty.  Be sure you complete all necessary environmental reviews before starting the construction of any new facilities.  (Consent Decree)
  • An Alabama FM translator operator entered into a consent decree with the FCC and will pay a $13,000 fine for, among other things, changing transmitter sites without FCC permission, operating the translator at times when its primary station was off the air, and failing to notify the FCC as required when the translator was silent for more than 10 consecutive days. (Consent Decree).
    • In another FM translator matter, a translator in Colorado was sent a Notice of Violation for commencing operations on a new channel without filing a license application on Schedule 350. Translators are not to commence operations with newly authorized facilities without first filing an application for a license once construction of the new facilities has been completed.  (Notice of Violation)
  • The FCC reminded potential applicants that applications for new noncommercial educational FM stations are due by 6 p.m. Eastern on Tuesday, November 9. Applicants in this NCE window may submit up to ten applications for consideration by the FCC.  If you have not yet submitted your application(s), read the Public Notice that sets out the filing procedures and our blog post on the matter.  (Public Notice)
  • Stations that have not yet made progress preparing their biennial ownership report should not rely on an extension of the December 1 filing deadline and should aim to file their report before the deadline to allow for FCC database slowdowns. We wrote more about this reporting obligation, and the potential for penalties for stations that don’t meet the deadline, here.
  • FCC staff will have the option of returning to their new headquarters beginning December 1, according to industry publications. This is apparently a voluntary return – with a full return by FCC staff not likely until sometime in 2022.  FCC staffers in Washington DC have been required to telework since March 19, 2020.  When they go back to the office, staff will be working for the first time from the FCC’s new building that “opened” in October 2020.

On December 1 of this year, Biennial Ownership Reports are due to be filed at the FCC by all full-power radio and TV stations, commercial and noncommercial, as well as from Class A TV and LPTV operators.  These reports are due every two years.  While the last two biennial reports that had been due in December 2019 and in December 2017 had their deadlines extended to early the next year because of issues with the FCC forms that were at that point still being refined, no such issues are expected this year. In fact, a month ago when the window opened for filing these reports, the FCC released a Public Notice reminding broadcasters of the filing deadline, emphasizing its importance, and issuing this warning that there may well be fines or other penalties for stations that do not timely file this required report:

Consistent with the importance of this information, Commission staff intends to pursue enforcement actions against licensees that fail to file their biennial ownership reports in a timely or complete manner. 

Why does the Commission collect this information?  Biennial ownership information not only keeps track for the public of who owns broadcast properties, but it also allows the Commission to track broadcast ownership.  In recent years, the reports ask for the gender and race/ethnicity of owners of stations (and control parties of noncommercial stations), and the Commission plans to use this information to track industry ownership trends.  This was an issue in the most recent change in the broadcast ownership rules, where the Third Circuit, before being overturned by the Supreme Court, had wanted the FCC to determine the impact of past changes in its ownership rules on minority and female ownership – and the FCC fought back, claiming that it did not have that information (see our article here).  These reports are one way in which such information is supposed to be provided by the FCC. Continue Reading Less than a Month to Go – Reminder to Broadcasters to File Biennial Ownership Reports by December 1 or Potentially Face Penalties

Last week, the Australian Competition & Consumer Commission approved an application for Commercial Radio Australia to collectively bargain with Google and Facebook over the carriage by these tech platforms of news content from Australian radio broadcasters (press release here, application and approval here).  This approval is an outgrowth of the adoption of the Australian News Media and Digital Platforms Bargaining Code, which authorized bargaining between traditional news media outlets and tech platforms and, if the bargaining is not successful, a mandatory arbitration process to set appropriate royalties to be paid by the tech companies for the use of the news provider’s content.  These actions could be a preview of what could happen in the United States at some point in the future if pending legislation known as The Journalism Competition and Preservation Act, which we wrote about here, is adopted.

There are, of course, differences between the Australian approach and what has been proposed thus far in the United States. The US bill, while providing an antitrust exemption that would permit collective bargaining with tech companies by groups of traditional media companies, does not provide for any mandatory arbitration process for setting rates if no agreement is reached as to the rates and terms of content carriage by the tech companies.  Without providing any mandatory rate-setting process, if negotiations are not successful, the most significant bargaining chip in the US would be for the local media companies to withhold consent to the use of their content by the tech platforms.  It is interesting to note that, in the application by the Australian broadcasters’ organization for a waiver from their competition (antitrust) laws to allow the collective bargaining, the broadcasters disavowed any boycott of the tech platforms, which presumably would be unnecessary with mandatory arbitration waiting if a voluntary agreement cannot be reached.  In the US, a threat to pull content off tech platforms could become more important, though perhaps more difficult to achieve because of antitrust laws (which may allow collective bargaining but may not permit collective boycotts) and other US laws and policies. Continue Reading Could Australian Decision Giving Broadcasters the Right to Collectively Bargain with Tech Companies Be a Preview of Things to Come in the US?

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

  • President Joe Biden made official his permanent FCC Chair – selecting Acting Chairwoman Jessica Rosenworcel to fill that position. He also re-nominated her for another five-year term, as her current term on the FCC ends at the end of this year.  The President also nominated Gigi Sohn, a former FCC senior staffer under Chairman Tom Wheeler, to be the fifth Commissioner and third Democrat.  Both nominations must be approved by the Senate before Congress adjourns at the end of the year, or the nominees will need to be re-nominated.  (White House Release)
  • The FCC released an advance text of a proposal that would change how FM and LPFM license applicants verify directional antenna patterns, using computer modeling rather than real-world testing. This proposal will be considered by the Commission at its next monthly open meeting on November 18.  Under current rules, FM and LPFM applications must provide real world measurements using either a full-size mockup or scale model of the antenna and supporting structures to measure the pattern generated.  The proposed rule changes would put FM and LPFM applicants on equal footing with their AM radio and television counterparts, which can already use computer modeling to verify directional antenna patterns.  (Draft Notice of Proposed Rulemaking)
  • The C-Band Relocation Payment Clearinghouse (RPC), which is responsible for the processing of claims for reimbursement and lump sum payments associated with the C-band relocation, has begun to pay claims filed by earth station operators.  In a press release, RPC noted that some entities potentially eligible for reimbursement or lump sum payment have not yet filed claims and urged these entities to visit cbandrpc.com/resources to set-up an account and file their claim. (Press Release)
  • The decision of the Copyright Royalty Board raising the royalties for 2021-2025 to be paid to SoundExchange by webcasters for the digital transmission of sound recordings was published in the Federal Register. (Federal Register publication).  The notice makes clear that the rates are now effective, and webcasters need to start paying at the new rates.  Participants in the proceeding have 30 days to decide if they will appeal the CRB decision to the US Court of Appeals.  We wrote more about this decision here.  Look for more on this action later this week on our Broadcast Law Blog.
  • Locast, the service that had been retransmitting local TV signals over the internet, will pay the big broadcast networks $32 million to settle copyright infringement claims tied to the service’s retransmission of television programming without consent. The service has now been terminated.  We wrote more about some of the issues in the case, here.  (Consent Judgment)
  • In other confirmation news, Jonathan Kanter, President Biden’s choice to lead the Department of Justice’s Antitrust Division, was approved by the Senate Judiciary Committee. The division examines transactions and mergers that could affect competition in the marketplace (including in the broadcast industry) and provides opinions on broadcast marketplace competition.  The division also oversees the ASCAP and BMI consent decrees.  Kanter’s nomination will be considered by the full Senate at a later date.  (Committee Action)

With FCC Acting Chair Jessica Rosenworcel now appointed permanent chair of the FCC, and with a fifth FCC Commissioner now having been nominated (Gigi Sohn), the FCC may soon be back to normal strength.  Even before that though, the FCC and other government agencies remain busy, with many important regulatory dates and deadlines in the coming weeks.  We have highlighted some of those dates below.  Pay close attention to these dates, especially the December 1 deadline to file biennial ownership reports that is applicable to all broadcasters.

Reply comments on the FCC proposal to bring back FCC Form 395-B are due by November 1 (comments were due by September 30 and can be read here).  Following the FCC’s review of comments and reply comments on the issue, enhanced equal employment opportunity data collection could again be a reality for broadcasters more than 20 years after the FCC suspended the form’s use.  Form 395-B was an annual report intended to gather information about the race and gender of broadcast employees, thrown out by the courts over fears of the unconstitutional use of the data to force broadcasters to make hiring decisions based on these factors.  We wrote more about the possible resurrection of Form 395-B, here. Continue Reading November Regulatory Dates for Broadcasters: Reply Comments on EEO Reporting and KidVid Accessibility; New Noncommercial FM Filing Window; Biennial Ownership Reports; License Renewals; and More

In a Federal Trade Commission notice published last week, the agency warned the advertising industry that penalties could be coming for the use of deceptive endorsements.  The FTC not only released the notice, but it also sent a letter (a version of which is available here) to hundreds of businesses (a list is here) – advertisers, advertising agencies, and a few media companies – reminding them of the FTC’s concerns about deceptive endorsements in advertising.  While the FTC makes clear that this list of recipients of the letter does not indicate that any of them did anything wrong, it does make clear that the FTC takes this issue very seriously and wants to highlight the issue for the entire advertising ecosystem.  The letter reminds businesses that violations can lead to fines of up to $43,792 per violation and other penalties.

What are the FTC concerns?  The FTC said that prohibited practices “include, but are not limited to: falsely claiming an endorsement by a third party; misrepresenting whether an endorser is an actual, current, or recent user; using an endorsement to make deceptive performance claims; failing to disclose an unexpected material connection with an endorser; and misrepresenting that the experience of endorsers represents consumers’ typical or ordinary experience.”  In other words, when an endorser says something about a product, the FTC is expecting that the endorser used the product and the statements that it makes about the product are accurate and reflect what consumers can expect from that product.  This is not the first time that the FTC has raised these issues. Continue Reading FTC Reminds Advertisers That Deceptive Endorsements in Advertising Can Lead to Penalties

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

  • The Federal Trade Commission issued a press release which warns advertisers to avoid misleading endorsements. The FTC also sent a warning letter to hundreds of advertisers, advertising agencies, and media companies setting out its concerns, and the potential penalties, for misleading endorsements in advertising, including those by endorsers who had not actually used a product or ads that create unrealistic expectations for the products being advertised.  (Press Release and Warning Letter).  Watch our Broadcast Law Blog on Monday for more on this warning and its impact on broadcasters.
  • A recent court case is a good reminder that political attack ads can subject broadcast stations to defamation claims. While broadcast stations are generally immune from liability for the content of candidate advertising, they can have liability if they air an attack ad from a non-candidate group (e.g., a PAC or political party), knowing that the content is false or with notice that the ad might be false.  See our blog post on this issue, here.
  • In last week’s update, we noted that the Copyright Office opened a study to examine the rights and protections of news publishers under copyright and related laws.  We took a longer look at the study this week on the Broadcast Law Blog, including the study’s potential impact on news content produced by broadcasters or news content produced by other outlets and reproduced by broadcasters.  Comments on the notice of inquiry are due November 26, 2021 (Notice of Inquiry).
  • In a reminder that non-broadcast conduct of owners of a company can affect the company’s qualifications to hold a broadcast license, the FCC this week issued an order announcing that they will hold a hearing to determine whether a Pennsylvania FM station licensee who was convicted of a felony and multiple misdemeanors is qualified to continue holding an FM station license. FCC licensees are required to meet certain character qualifications set out in its Character Qualification Policy Statement.  The FCC could determine that the criminal conduct requires a revocation of the station’s license.  (Hearing Designation Order)  See our blog post, here, for a longer discussion of the FCC’s character policy and how it has been used in the past.
  • The FCC entered into a number of consent decrees with broadcasters whose license renewal applications revealed untimely uploads to their online political files (see examples of the FCC orders here and here) or other untimely actions, including other late non-political uploads to online public files (see the orders here and here). For more details on the consent decrees for untimely uploads to the political file, see our articles here and here.  For more on FCC actions for other violations of the public file rules, see our articles here and here.