Last week, as we noted in our weekly summary of regulatory actions of importance to broadcasters, the US Court of Appeals for the D.C. Circuit issued an Order directing the FCC to complete its 2018 Quadrennial Regulatory Review of its broadcast ownership rules by December 27, 2023, or show cause why the National Association of Broadcasters’s (NAB) Petition for Writ of Mandamus should not be granted.  The NAB’s petition, filed in April 2023, requests that the D.C. Circuit compel the FCC to conclude the agency’s still-pending 2018 review.  Neither last week’s order, nor any mandamus order that could be issued by the Court should the FCC fail to finish its review by December 27, will compel any particular decision.  Instead, such an order would only require that the FCC finish the review started in 2018 (see our article here on the start of that review process).

The Quadrennial Review process is mandated by Congress.  Every four years, the FCC is required to review its local ownership rules and determine which ones remain in the public interest.  The NAB’s argument to the Court has been that the FCC failed to meet its statutory obligation by not completing the 2018 review last year.  In December, we wrote about the FCC’s failure to complete the Quadrennial Review, and how the inaction has forestalled any review of the issues that were teed up in that review.  What were those issues?

Continue Reading Court Orders FCC to Complete Quadrennial Review by December 27 – What are the Issues for Review by the Commission?

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.

  • In a last-minute reprieve, the House and Senate agreed on Saturday, September 30 to fund the government for another 45 days, through mid-November, averting an October 1 shutdown of the federal government.  While the FCC’s website indicated that it had sufficient leftover funds to stay open through October 20, a shutdown would have nevertheless created issues for broadcasters, not just in connection with its general economic impact, but also with processing issues that might arise from other government agencies, like the cessation of publication of the Federal Register (in which certain FCC actions must be published to become effective).  But, with the shutdown averted for now, FCC operations should be unaffected through mid-November.  Thus, the Nationwide EAS test (see our Broadcast Law Blog article posted on Friday) and other October deadlines including the public file upload of must-carry/retransmission consent elections and quarterly issues programs lists will move forward as scheduled (other October requirements are listed in our summary of regulatory dates for October). 
  • On September 25, Anna Gomez was sworn in as the fifth FCC Commissioner (see the FCC’s announcement here).  Her announcement as to who will be on her staff, including her Acting Legal Advisor on media (e.g., broadcast) matters is available here.  With her arrival, the FCC appears to be ready to revisit “net neutrality” matters at their meeting this month (see the agenda for the monthly meeting released this week).  We wrote on our blog about broadcast issues that the FCC may now consider with a full complement of Commissioners. 
  • The U.S. Court of Appeals for the D.C. Circuit issued an Order directing the FCC to complete its 2018 Quadrennial Regulatory Review of its broadcast ownership rules by December 27, 2023, or show cause why the National Association of Broadcasters’s (NAB) Petition for Writ of Mandamus should not be granted.  The NAB’s petition, filed in April 2023, requests that the D.C. Circuit compel the FCC to conclude the agency’s still-pending 2018 review.  We wrote here about the FCC’s failure to complete the Quadrennial Review in December, and how the inaction has forestalled any review of the radio ownership rules, the dual network rule (prohibiting one company from controlling two of the top 4 broadcast TV networks), and the adoption of specific standards for approving waivers to allow the combination of two of the Top 4 TV stations in a market, all issues teed up in the 2018 Quadrennial Review.
  • The FCC’s Media Bureau issued a Declaratory Ruling allowing Alpha Media Holdings Inc. to exceed the 25% limit on foreign investment established in section 310(b)(4) of the Communications Act.  Alpha, which holds broadcast licenses through indirect, wholly owned subsidiaries, received approval for specific foreign investors to each hold equity and/or voting interests of more than 5% in the company (each being allowed to hold up to 49.99% of the company), ultimately allowing these approved foreign investors to hold in the aggregate up to a 100% interest in the company.  The Declaratory Ruling was necessary due to changes in Alpha’s ownership structure that were an outgrowth of the bankruptcy reorganization of the company and its subsidiaries.  The decision notes that the foreign investors who were approved come from countries with friendly relations with the United States, and these investors were reviewed and approved by the executive agencies of the federal government which assess foreign investments in US companies for security concerns.  We wrote more about the FCC’s process of approving foreign ownership of US broadcast stations on our blog here and here. 
  • The Media Bureau entered into a Consent Decree with a Virginia college where the college surrendered the license for its noncommercial educational station and agreed to pay a $10,000 fine in order to conclude an investigation into the station’s operations.  The station lost its transmitter site and began to operate from a new site under an STA, but continued to operate after the STA expired, apparently from yet another site.  The licensee admitted in the Consent Decree that it operated its station for more than 5 years at variance from its licensed parameters without authorization and that the station’s licensee provided the FCC with incorrect information regarding those operations.  While the Consent Decree stipulated that the station’s licensee did not intentionally deceive the FCC regarding the station’s operations because it believed in good faith that the change in the station’s tower site was merely a correction of licensed coordinates rather than a site change, it nevertheless required that the license be surrendered.  This action is consistent with the FCC’s precedent under Section 312(g) of the Communications Act, which states that a station operating from an unauthorized site for more than one year automatically has its license cancelled unless the FCC finds some unique public interest reason to excuse the station’s failure to operate (see our article here on that policy). 
  • The Bureau entered into two consent decrees with stations that had transferred control of their operations without prior FCC approval.  These cases show that any change of control, even when the result of the death of an owner or because of routine estate planning, require FCC approvals.
    • In one case, the Bureau entered into a Consent Decree with the licensee of two North Carolina AM stations to resolve the licensee’s failure to file applications for involuntary transfer of control within 30 days of the deaths of two of its owners.  When each of these owners died, their spouses, who were also shareholders, assumed the interests of the deceased spouse, giving the surviving spouse 50% “negative control” of the company – the ability to veto company actions.  Each assumption of negative control by an existing shareholder should have been approved on a Form 316 application.  When one of surviving spouses died, her stock passed to her estate and was then controlled by a niece who was the administrator of the estate.  The assumption of the negative control by the niece (who had not previously been approved by the FCC as a shareholder) should have been approved on a Form 315 application.  The licensee agreed to pay a $1,000 penalty to resolve these violations. 
    • In the second case, the Bureau entered into a Consent Decree with the licensee of a Montana AM station and an FM translator for failing to seek prior FCC consent for the transfer of control that occurred when the controlling interests of a husband and wife were transferred to trusts.  Their children where the controlling trustees of these new trusts.  The licensee did not seek FCC approval for the transfer of the interests to the trusts until approximately 6 months after the transfers occurred.  The licensee agreed to pay a $8,000 penalty and to implement a compliance plan to prevent such violations in the future.
  • The Bureau entered into a Consent Decree with a New York LPFM licensee to resolve its admitted operation of an FM broadcast booster station for over 14 months without FCC authorization, an operation which the licensee attributed to a misunderstanding of the rules that permit LPFM boosters (but which require FCC approval before they can commence operations). The licensee agreed to pay a $1,500 penalty and adopt a compliance plan to prevent such violations in the future.
  • The FCC’s Enforcement Bureau issued a Notice of Violation to a Maryland antenna structure owner (who also was the licensee of an AM station), directing it to respond to the Bureau’s findings that it had violated a variety of FCC rules about the painting and lighting of antenna structures and the proper registration of antenna structures.  According to the Notice, the required tower paint was faded and flaking, the tower’s lights were not operational as required by its license, and the FAA had not been notified of the lighting failure so that the FAA had not issued a Notice to Air Missions warning pilots of the dark tower until notified by the FCC of the problem.  In addition, the Notice said that the FCC attempted to contact the licensee about the issues but received no response, and that the lights had been out for several months after the FCC inspection without any repairs being made.  In addition, the tower registration appeared to have an incorrect address for the structure.  The tower owner must respond to this notice to provide all relevant facts about the issues and how they will be addressed.  After the response, the FCC will evaluate whether further actions will be taken against the tower owner. 
  • The Media Bureau proposed to assess a $1,500 per station fine against a licensee of five television translator stations and, separately, a licensee of seven television translator stations for failing to file timely license renewal applications.  The failure to file a timely renewal application will normally require a base fine of $3,000 per station.  However (consistent with recent practice), the Bureau reduced the proposed per station fine to $1,500, citing the fact that television translators only provide a secondary service, but at the same time provide valuable fill-in service for those without off-air access to full power television stations.  In a third consent decree involving the untimely filing of a license renewal application, the licensee of a student-run noncommercial educational (NCE) FM station agreed to pay a $500 penalty and adopt a compliance plan to prevent such violations in the future, a penalty consistent with the Bureau’s more lenient treatment of student-run NCE stations.
  • The Bureau requested comment on a proposal to allot reserved noncommercial educational (NCE) television channel 4 to Jacksonville, Oregon as the community’s first local television service and its first NCE television service.  Comments and reply comments are due 30 and 45 days, respectively, after the proposal is published in the Federal Register.

The Nationwide EAS Test is scheduled for October 4.  Some had wondered if the test would be delayed if the government shut down over budget issues. While an alert could be transmitted whether or not nonessential government employees were working, there was a fear that the EAS Test Reporting System (ETRS) would not be operational.  What good is a test if the reports could not be filed to determine its effectiveness? Now, according to various press reports, it appears that the FCC will have funds to operate for at least another few weeks even without a federal budget being passed, so we are assuming that the EAS test will be going forward as planned (though watch for any last-minute changes).  What should broadcasters know? 

Why is the test important?  Beyond simply testing the system, the test has added importance for AM stations. As Congress debates legislation to ensure that AM remains in the car to provide safety information, it would not look good if AM broadcasters did not participate in the test to ensure the reliability of their systems, or if they did not take the time to file with the FCC the required post-test reports. 

When will the test occur?  The test will be transmitted at approximately 2:20 PM Eastern Time on October 4. 

How will the test be transmitted?  The test will originate using the Common Alerting Protocol on the IPAWS system. Stations should be sure that their EAS receivers are configured to receive this internet delivered alert.

What post-alert reporting obligations do stations have?  The ETRS Form Two report must be filed within a day of the October 4 test.  So, by midnight ET October 5, stations should file Form Two, reporting if they received the test or not and if they successfully transmitted it.  ETRS Form Three is due November 20, providing greater detail about the test, including any issues with audio quality or other concerns.  The FCC has warned that it could take enforcement actions against stations that do not file these required post-test reports. 

How does the Nationwide Test affect other routine EAS test obligations?  The FCC rules say that the Nationwide Test replaces the required weekly test in the week in which it is conducted, and also replaces the routine monthly test for the month in which it occurs.

For more information, see the initial FCC Public Notice about the test, and a subsequent Public Notice addressing accessibility of the EAS alerts broadcast by television stations.  Also see our Broadcast Law Blog articles here and here which highlight some of the issues raised in the FCC Public Notices.    

On paper, this October appears to be a busy month for regulatory deadlines.  But the lack of congressional action to fund the federal government for the coming year (or “continuing resolutions” adopted to allow government agencies to function at their current levels) is making a federal government shutdown appear inevitable.  If a government shutdown does occur, the FCC, the FTC, and the Copyright Office may also shutdown – which, as with previous shutdowns, may result in many of the regulatory deadlines discussed below being delayed. 

According to the August 2023 FCC Shutdown Plan, if a potential lapse in appropriations is imminent, the FCC will determine whether and for how long prior year funds will be made available to continue all agency operations during a lapse.  To date, however, the FCC has not stated whether it plans to remain open – and if so, for how long – if a government shutdown does occur.  Details from the FCC and other agencies should be released shortly given the shutdown that may well occur this weekend. 

Until we receive such guidance, the tentative October regulatory deadlines for broadcasters are provided below.  Even if the government does shut down, these dates will likely be rescheduled for soon after the funding issue is resolved.  So, let’s look at the upcoming deadlines. 

Continue Reading October Regulatory Dates for Broadcasters – Nationwide EAS Test, Annual EEO Public File Reports, Retransmission Consent Elections, Biennial Ownership Reports, and More (If the Government is Open)

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

  • The FCC’s Media Bureau released a Public Notice reminding commercial and noncommercial broadcasters of their upcoming obligation to file biennial ownership reports.  The ownership report filing window opens on October 2, 2023, and all reports must be submitted by December 1, 2023. Licensees of commercial and noncommercial full power television, Class A television, low power television, and AM/FM radio stations are required to file biennial ownership reports.  The Notice explains that the FCC is seeking accurate ownership information: (1) to ensure that the public knows who owns, operates, and controls broadcast stations; and (2) to understand the levels of diversity in the broadcast industry.  The FCC’s staff may pursue enforcement action against licensees that fail to file their biennial ownership reports in a timely or complete manner.  For more on this requirement, see our Broadcast Law Blog article here.
  • The House of Representatives this past week again failed to decide how to address the funding of the federal government after the September 30 end of the current fiscal year.  Government agencies were, at the end of the week, told to begin to make plans for a potential government “shutdown” as of October 1.  If these funding issues are not resolved in the coming days, watch for FCC guidance on how a shutdown will affect filing deadlines and other FCC operations after October 1.  
  • There were two announcements concerning the government’s review of artificial intelligence.  The Copyright Office announced an extension in the date for comments on its Notice of Inquiry asking for comment on the copyright issues triggered by the use of AI, including the question of whether machine-generated content is entitled to copyright protection and the copyright implications of AI’s use of copyrighted materials (including books and music) to “learn” how to perform certain tasks.  Comments are now due on October 30, 2023, with Reply Comments due by November 29.  Also, the Federal Trade Commission announced that, on October 4, 2023, it would hold a virtual roundtable discussion on AI issues that can be viewed online by the public.  The session will consider how AI may impact open and fair competition or enable unlawful business practices across markets, including in creative industries. The listening session will focus on different issues posed by generative AI, including concerns raised by musicians, actors, and other content creators about the use of AI to create entertainment and other content.
  • The FCC issued a Report and Order updating its rules for full power and Class A stations to reflect their transition from analog to digital-only operations and the post-incentive auction transition to a smaller television band with fewer channels (for more background on this proceeding, see our Blog article here). The Report and Order restructures a portion of the rules largely dealing with the technical licensing, operating, and interference rules for full power television. The updated rules, which for the most part do not change substantive requirements, are scheduled to go into effect 30 days after their publication in the Federal Register, except those involving paperwork changes which require Office of Management and Budget (OMB) approval under the Paperwork Reduction Act.
  • The Bureau also announced that changes in its rules for LPTV and translator stations which imposed new paperwork requirements requiring Paperwork Reduction Act approval went into effect on September 19.  These rule changes, like the TV rule changes mentioned above, were largely non-substantive amendments to reflect the transition of these services to digital operation and the termination of their analog operations (we reported on these changes earlier this year when the FCC issued its Report and Order).  Most of the amended rules went into effect on June 12, 2023. 
  • The Media Bureau proposed to assess a $1,500 fine against a low power television (LPTV) station for failing to file a timely license renewal application.  The FCC’s rules normally require a base fine of $3,000.  However (consistent with recent practice), the Bureau reduced the proposed fine to $1,500, citing the fact that the LPTV station provided a secondary service. 
  • The Bureau also entered into separate consent decrees (available here and here) with the licensee of an AM/FM combination, in which the licensee agreed to pay (1) a $3,000 penalty because the FM station had failed to upload material to its online public inspection file, failed to include a link to its online public inspection file on its website, and falsely certified that its online public inspection file contained the documentation required by the Online Public Inspection File Rule; and (2) a $6,000 penalty for the AM station because it committed the same violations in addition to operating at a variance from its licensed daytime and nighttime parameters for more than 30 consecutive days without FCC approval.  The licensee was also directed to adopt compliance plans to ensure that the stations do not commit similar violations in the future.
  • The Media Bureau proposed to assess a $6,000 fine against a full power television station for by failing to timely upload its quarterly issues/programs lists to its online public inspection file.  The Bureau alleged that the station had failed to timely upload copies of these lists for a total of 12 quarters, i.e., two lists more than one year late, six lists between one month and one year late, and four lists between one day and one month late.
  • The Media Bureau tentatively awarded a construction permit to an applicant for new NCE FM station at Riesel, Texas, instead of a mutually exclusive applicant for an NCE FM station at Golinda, Texas.  Both applications had been filed in the FCC’s November 2021 window for new NCE FM facilities.  The decision largely deals with procedural issues concerning how the FCC interprets the limited one-time opportunity for an applicant in a filing window for new stations to correct certain initial defects in its application.
  • With the 2024 election looming, broadcasters are already receiving requests for political advertising time, from candidates, PACs and other issue groups trying to make an early impression on voters.  Some of these potential buyers advance unique policy positions and, sometimes, unusual ad buying strategies.  See our Broadcast Law Blog article published last week for a discussion of the legal issues and courses of action broadcasters need to consider when handling such inquiries.

With the 2024 election looming, broadcasters are already receiving requests for political advertising time, from PACs and other issue groups, and from both established candidates and newcomers eager to make an early splash to enhance their public standing.  Some of these potential buyers advance unique policy positions and, sometimes, unusual ad buying strategies.  How are broadcasters to deal with these early political ad buyers? 

Each broadcaster needs to discuss the issues that arise with these early political ads, both internally with their business teams and with their outside FCC counsel or in-house legal advisor.  The first question to ask is whether a station even wants to run these ads.  Ads from non-candidate buyers do not need to be run by stations but, if run, will likely impose some political file obligations on stations to the extent that they discuss candidates, potential candidates, or electoral and political issues (for more on political file issues, see our articles here, here, and here, and this video discussion that I did for the Indiana Broadcasters Association). 

Continue Reading Broadcaster’s Legal Considerations for Early Season Political Ads

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

  • The FCC’s Media Bureau entered into a Consent Decree with the licensee of an Illinois Class A television station in which the licensee agreed to pay a $97,000 penalty for filing its license renewal application late and for failing to fully disclose in its license renewal application that it did not properly place all of its required documents into the station’s online public inspection file in a timely manner.  In fact, the licensee had missed uploading virtually all of the required regular public inspection file documentation including 28 Quarterly Issues Programs Lists, all its records concerning its compliance with the commercial limits in children’s programming, all of its children’s television programming reports on the educational and informational programming, and other documentation.  This case shows that repeated paperwork failures, even for a Class A TV station, can result in substantial fines.
  • The Media Bureau also entered into a Consent Decree with the licensee of two Florida AM stations and three FM translator stations for a transfer of control of the licensee without FCC approval.  One of its LLC members had acquired the 40.5% interest of another member, giving the acquiring party 81% of the company, without seeking prior FCC approval.  In a subsequent application to approve that transfer, the licensee acknowledged the violation, and it agreed to pay an $8,000 penalty.  FCC approval is required whenever an owner is to assume a controlling position in a company, even if that owner had been approved on prior FCC applications.
  • An FCC Administrative Law Judge determined that a felony conviction of the owner of a Tennessee AM station did not warrant the revocation of the station’s license.  In 2007, the owner (who was a member of the Tennessee legislature at the time) failed to report on his federal income tax return $330,0000 in profits from his sale of cigarette tax stamps (a felony under the IRS code), and he was convicted of a felony for that failure in 2016.  The Media Bureau subsequently initiated a license revocation hearing, as “it is Commission policy that any felony conviction of a licensee raises the question of whether that licensee possesses the requisite character to continue to hold a Commission license.”  While conceding that the principal had committed a “serious felony,” the ALJ was persuaded that the principal’s crime was “an isolated occurrence that does not suggest a likelihood of future violations; that “enough time had elapsed to show that the principal had remediated his wrong”; that the principal enjoyed significant support from the station’s local community; and that the station had an overall positive record of public service notwithstanding its previous alleged violations of FCC rules.  This case shows that a felony conviction of the principal of a broadcast station does not necessarily result in the loss of a license if the principal can show that the felony was unrelated to broadcast operations and did not suggest that the principal would be an untrustworthy licensee. 
  • The FCC issued a Public Notice reminding broadcasters that the Communications Act requires all “United States-based foreign media outlets” to submit a report containing: 1) the name of such outlet; and 2) a description of the relationship of such outlet to the foreign principal of such outlet, including a description of the legal structure of such relationship and any funding that such outlet receives from such principal.  For purposes of this filing requirement, the term “United States-based foreign media outlet” means an entity that (A) produces or distributes video programming (as defined in section 602 of the Communications Act) that is transmitted, or intended for transmission, by a multichannel video programming distributor (as defined in such section) to consumers in the United States; and (B) would be an agent of a foreign principal for purposes of the Foreign Agents Registration Act of 1938. The Communications Act defines the term “video programming” as “programming provided by, or generally considered comparable to programming provided by, a television broadcast station.”

This coming week, Annual Regulatory Fees must be paid by commercial broadcast stations through the FCC’s CORES database by 11:59 PM Eastern Time on September 20 (see the FCC’s Public Notice announcing the September 20 deadline).  Late payment of regulatory fees will generally result in a 25% penalty plus interest, so commercial broadcasters should be preparing their fee submissions now to be sure to meet the September 20 deadline. For more on the deadline, and on the other FCC notices that were released to detail the filing obligations, see our Broadcast Law Blog article here.

On the anniversary of September 11, it seems appropriate to highlight the upcoming October 4 Nationwide Test of the EAS system.  While EAS was not activated during the September 11 emergency, the events of that date have provided much impetus for federal emergency authorities to strengthen the EAS system.  Part of that effort has been the regular testing of the Nationwide EAS alert system.  As we wrote in August, the Federal Emergency Management Agency (FEMA) has scheduled a nationwide EAS test for October 4, 2023, at approximately 2:20 pm EDT, using the Internet-based Integrated Public Alert and Warning System (IPAWS) (with a back-up date of October 11 if necessary).  In a Public Notice released in August, the FCC set out steps that broadcasters should take to prepare for that test.

Just last week, the FCC’s  Public Safety and Homeland Security Bureau released a further Public Notice to remind Emergency Alert System participants of their obligation to ensure that EAS alerts are accessible to persons with disabilities.  For TV stations, to be visually accessible, the EAS text must be displayed as follows:

  • At the top of the television screen or where it will not interfere with other visual messages (e.g., closed captioning),
  • In a manner (i.e., font size, color, contrast, location, and speed) that is readily readable and understandable (see below),
  • Without overlapping lines or extending beyond the viewable display (except for video crawls that intentionally scroll on and off the screen),
  • In full at least once during any EAS message. Text should scroll at a speed that allows viewers to read the crawl as if they were going to read it aloud, and
  • The background and text colors should sufficiently contrast to allow for readability. For example, a bright green background with white text may not provide sufficient contrast. Green and red should also be avoided as viewers who are color blind have difficulty seeing these colors.

In addition, the audio portion of an EAS message must be played in full at least once to ensure it is accessible to viewers who are blind or have low vision and should be spoken at a pace that allows for a listener to understand the content. 

Continue Reading Reminder: September 15 Deadline for Updating ETRS Form One in Preparation for Nationwide EAS Test, and an FCC Notice on the Accessibility of EAS Messages

Here are some of the regulatory developments of significance to broadcasters from the past two weeks (including events that occurred during our hiatus for the Labor Day holiday), with links to where you can go to find more information as to how these actions may affect your operations.

  • The Senate approved Anna Gomez to be a new FCC Commissioner, filling the open Democratic seat that has been vacant since the start of the Biden Administration.  Gomez is experienced in government circles, having worked at NTIA (a Department of Commerce agency dealing with federal spectrum use and other communications matters) and recently at the State Department preparing for international meetings about communications issues.  She also has a history in private law firm practice.  Together with her nomination, the President renominated Commissioners Starks and Carr for new terms as Commissioners, but those nominations remain pending – not having been approved this week with the Gomez nomination.  As Democratic Commissioner Starks’ term has expired and he can only serve through the end of this year, there is speculation that these nominations may be approved in combination with nominations for vacancies at other government agencies so as to avoid returning the FCC to a partisan deadlock in January.  See our Broadcast Law Blog article here for a review of broadcast issues the FCC might address now that there is a full Commission.
  • The FCC has announced via Public Notice that Annual Regulatory Fees must be paid through its CORES database by 11:59 PM Eastern Time on September 20.  The FCC also issued a second Public Notice explaining the filing procedures and methods for making payments, including limits on credit card payments, available here. For broadcasters, a third document, a Fact Sheet called “What Your Owe – Media Services Licensees for Fiscal Year 2023,” sets out specific information as to what is owed by commercial broadcasters and restates some of the information from the Notice on filing procedures.  This broadcast-specific Fact Sheet is available here.  The FCC also released a Fact Sheet setting forth the details of who is exempt from regulatory fees, including Noncommercial Educational stations and commercial stations whose total fee obligations are “de minimis,” i.e., they total $1000 or less.  That Fact Sheet is here.  Another Fact Sheet setting out the procedures for seeking a waiver or deferral of the fees is available here.  Paying regulatory fees late can bring substantial penalties (25% penalty plus interest), so commercial broadcasters should immediately review these documents and prepare their fees so that they can be submitted before the September 20 deadline.  For more details on these fee notices, see our blog article here.
  • The FCC’s Public Safety and Homeland Security Bureau (Bureau) issued a Public Notice to remind Emergency Alert System (EAS) participants of their obligation to ensure that EAS alerts are accessible to persons with disabilities.  The Federal Emergency Management Agency (FEMA) has scheduled a nationwide EAS test for October 4, 2023, at approximately 2:20 pm EDT, using the Internet-based Integrated Public Alert and Warning System (IPAWS).  The Public Notice also reminded EAS Participants that they must file ETRS Form Two after the nationwide EAS test no later than October 5, 2023, and they must file ETRS Form Three on or before November 20, 2023. For TV stations, to be visually accessible, the EAS text must be displayed as follows:
    • At the top of the television screen or where it will not interfere with other visual messages (e.g., closed captioning),
    • In a manner (i.e., font size, color, contrast, location, and speed) that is readily readable and understandable (see below),
    • Without overlapping lines or extending beyond the viewable display (except for video crawls that intentionally scroll on and off the screen), and
    • In full at least once during any EAS message. Text should scroll at a speed that allows viewers to read the crawl as if they were going to read it aloud.
    • The background and text colors should sufficiently contrast to allow for readability. For example, a bright green background with white text may not provide sufficient contrast. Green and red should also be avoided as viewers who are color blind have difficulty seeing these colors.
    • In addition, the audio portion of an EAS message must be played in full at least once to ensure it is accessible to viewers who are blind or have low vision and should be spoken at a pace that allows for a listener to understand the content. 
  • The FCC’s Wireless Telecommunications Bureau, in coordination with the Media Bureau, issued a Public Notice which (1) provides detailed instructions for 12.7-13.25 GHz (12.7 GHz) band Broadcast Auxiliary Service (BAS) licensees to file certifications confirming the accuracy of their licensing information in the Universal Licensing System (ULS); and (2) establishes a window for the filing of these certifications.  The FCC directed this updating of ULS in its Notice of Proposed Rulemaking and Order where it has proposed to repurpose some or all of the 12.7 GHz band for mobile broadband or other expanded use, and grandfather, relocate, and/or repack existing 12.7 GHz licensees (we referenced this proceeding in our blog article here).  BAS licensees, who may include satellite communications and mobile TV pickup operations, should take care to comply with this obligation, as the FCC has also proposed to limit eligibility for incumbent status to those licenses for which the licensee has filed the required certification, meaning that if the certifications are not filed, there may be no reimbursement for any required channel moves or no protection from future interference. Review the Public Notice carefully, as there are instructions for licensees that filed applications on or after January 1, 2021, for a new or modified BAS license, and for those that file a modification application correcting license information on or before November 29, 2023. If a licensee is unable to make the certification for a license for reasons including that the required technical data is inaccurate, missing, or incomplete; the license has terminated automatically; or the facilities are not operating as authorized, the licensee must cancel the license or file a modification application to correct the data reflected in the license no later than November 29, 2023.  BAS licensees must file their certifications in ULS using the online portal for non-docketed Pleadings, which can be accessed here.  Read the Public Notice carefully and consult with your legal and technical advisors for more details about these requirements.   
  • The FCC announced that the agenda for its September 21 regular monthly open meeting will include consideration of a Report and Order that would implement proposals to comprehensively delete, update, and revise Commission rules for full power and Class A television stations where those rules no longer have any practical effect given the transition from analog to digital-only operations and the completion of the post-incentive auction transition to a smaller television band with fewer channels.  The proposed rule changes are mostly non-substantive and do not materially change the regulatory obligations of full power and Class A stations.  For more details, see the FCC’s Notice of Proposed Rulemaking here.
  • The Audio Division of the FCC’s Media Bureau entered into a Consent Decree with the licensee of an AM station in Alaska and an associated FM translator, in which the licensee acknowledged that it had violated the FCC’s rules by reducing daytime power and being silent for periods exceeding 30 days without seeking FCC approval, as required by the rules, and for originating programming on its translator while its AM station was silent.  An FM translator for an AM station cannot continue operations if the AM has not operated within the last 24 hours.  In reaching this decree, the Division reduced the licensee’s proposed fine from $7,000 to $4,000, citing the licensee’s showing of financial hardship and indicating that the money that would otherwise go to the higher fine would better be spent on the equipment necessary to repair the station’s transmitter.
  • The FCC’s Video Division issued a Forfeiture Order imposing a $1,500 per station fine on the licensee of four TV translator stations in Colorado for failing late license renewals.  For the same reason, the Division issued three Forfeiture Orders (here, here and here) imposing fines on a licensee of 27 TV translators in Nevada, but reduced the fines from $1,500 per station  to $209 per station.  While declining to find that the initial fines of $1,500 per station were excessive (notwithstanding the licensee’s showing of financial hardship), the Division found that reduction of the fines was warranted “based on the Licensee’s history of compliance and the unique facts and circumstances presented, notably the fact that the Stations are community translators serving rural areas that would otherwise have limited, if any, over-the-air television service.”  The Division also proposed to assess a $37 per station fine against the licensee of three Montana TV translators for failing to timely file “license to cover” applications and engaging in unauthorized operation of the stations after their construction permits had expired.  In substantially reducing the fine normally required by the FCC in this kind of case, the Division cited the licensee’s documented financial inability to pay, its history of compliance, and the fact that the stations provided service to rural areas that has that otherwise had no off-air television service.
  • The Audio Division proposed to allot FM channel 225A at Lac du Flambeau, Wisconsin, as a Tribal Allotment and the community’s first local service.  Comments are due October 30, 2023; reply comments are due November 15, 2023.   The Tribal Allotment is being proposed pursuant to the FCC’s priority established under Section 307(b) of the Communications Act favoring the provision of radio service to tribal lands by stations owned by tribal governments.
  • The Video Division requested comment on a Notice of Proposed Rulemaking proposing to substitute noncommercial channel 34 for noncommercial channel 11 at Des Moines, Iowa and to substitute the allotment of noncommercial channel 21 for noncommercial channel 34 at  Ames, Iowa.  The proponent of this proposal has asserted that the substitution of channel 34 for channel 11 at Des Moines is necessary to overcome signal difficulties associated with digital operation on VHF channels.  Comments and reply comments will be due 30 and 45 days, respectively, from publication of the Notice of Proposed Rulemaking in the Federal Register.  For similar reasons, the Division also approved the substitution of noncommercial UHF channel 27 for noncommercial VHF channel 12 at Lincoln, Nebraska.

The Senate this week approved Anna Gomez for the open Democratic FCC seat that has been vacant since the start of the Biden Administration.  As we wrote in May when the President first nominated her, Gomez is experienced in government circles, having worked at NTIA (a Department of Commerce agency dealing with federal spectrum use and other communications matters) and recently at the State Department preparing for international meetings about communications issues.  She also has a history in private law firm practice. 

Together with her nomination, the President renominated Commissioners Starks and Carr for new terms as Commissioners, but those nominations remain pending – not having been approved this week with the Gomez nomination.  Democratic Commissioner Starks’s term has already expired but he continues to serve under the allowable one-year carry-over which ends at the beginning of January 2024.  Republican Commissioner Carr’s term will expire at the end of this year, but he would be able to serve through the end of 2024 if his renomination is not confirmed.  There is some speculation that these nominations will be packaged with other pending nominations for positions at other government agencies to avoid having the FCC return to a partisan stalemate again in January if the Starks’ renomination is not approved by then. 

Continue Reading And Then There Were Five – Senate Approves Anna Gomez as Fifth FCC Commissioner – What Broadcast Issues Could a Full FCC Consider?