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

  • The FCC announced that March 18 is the effective date of the rules adopted in its December 2023 Report and Order concluding its 2018 Quadrennial Review of its broadcast ownership rules.  As we noted in our Broadcast Law Blog article when the FCC adopted its Order, the only meaningful change made in the local ownership rules was to make clear that one TV station cannot acquire the Top 4 network programming from another station in its market and move that programming to a commonly owned LPTV or multicast stream without seeking a prior FCC waiver of the general prohibition on two stations owning two of the Top 4 stations in any market. The Federal Register publication also means that March 18 is the deadline for filing petitions for reconsideration of the December decision, and April 15 is the deadline for appealing the decision to the Courts. 
  • The FCC held its February Open Meeting this past week and adopted two items of interest to broadcasters:
    • A Notice of Proposed Rulemaking proposing that public safety and other groups that originate Emergency Alert Service (EAS) alert messages be provided pre-scripted, pre-translated “template” alert messages in thirteen non-English languages for distribution during emergencies to broadcasters and other EAS participants.  Among the questions asked in the NPRM is whether the FCC’s Public Safety and Homeland Security Bureau should oversee the development of the templates, and whether a station receiving these pre-scripted alerts in multiple languages would have to broadcast the alert only in the language of its programming, or whether it would have additional obligations to broadcast alerts in other languages common in its service area. Comment dates will be set when the Notice is published in the Federal Register.
    • A Report and Order permitting operations of a new type of licensed wireless microphone system called “Wireless Multi-Channel Audio System” in frequency bands where wireless microphones are currently authorized, including the TV bands (VHF and UHF).  Effective dates for the new rules will be set by the publication of the decision in the Federal Register.
  • The FCC affirmed the Media Bureau’s denial of a third-party’s “emergency petition” to reinstate the licenses of a New Mexico AM station and FM translator – which were surrendered by their former licensee.  As we noted in our discussion of the Bureau’s 2023 decision, it has become more common during the last few years to see broadcasters surrendering licenses for stations that they can no longer operate.  As this week’s FCC’s decision affirms, third parties cannot acquire those cancelled licenses without demonstrating that they have some sort of legitimate interest in the station (such as the filing of an application to assign the stations to that party before the cancellation).  A broadcaster’s interest in continuing to operate the station is alone insufficient for the FCC to restore the licenses of such stations after they have been cancelled.  Instead, any party wanting to operate a station on the frequency on which the surrendered station operated will need to file for a new station the next time the FCC allows applications for the channels involved. 
  • The FCC proposed a $40,000 fine against an alleged pirate radio operator in Hazelton, Pennsylvania.  Based on a consumer complaint and the FCC’s subsequent investigation, the FCC concluded that the individual operated a pirate radio station since at least May 2022, even selling local advertising.  The amount of the fine was based on two days of FCC monitoring of the pirate operation.  It proposed a fine of $40,000 ($20,000 per day) even though the PIRATE Act permits a fine for pirate radio operations of up to $119,555 per day (with a maximum of $2,391,097 for a continuing violation).  The pirate radio operator has 30 days to pay the fine or to show reasons why the FCC’s proposed fine is not justified. 
  • The FCC’s Media Bureau dismissed an application for a construction permit for a new Virginia LPFM station because the applicant failed to provide documentation necessary to demonstrate that it was an entity eligible to hold an LPFM license.  FCC rules require LPFM applicants that are allegedly nonprofit unincorporated associations (as this applicant claimed to be) to submit documents demonstrating that they meet state requirements to be recognized as a non-profit educational entity.  To make such a showing, the Bureau requires evidence that an unincorporated association is a state-recognized non-profit entity; evidence such as a letter from a local attorney explaining how the association qualifies under local law or a citation to the text of a relevant state law recognizing unincorporated associations as non-profit legal entities. 
  • The House Subcommittee on Communications and Technology held a hearing titled “Securing American Communications Networks from Foreign Adversaries,”  where it discussed several proposed bills concerning securing American communications networks from foreign adversaries, including the “Foreign Adversary Communications Transparency Act” or FACT Act.  As we previously noted here, this legislation, if enacted, would require the FCC to publish a list of every entity that holds or has an interest in an FCC license and has ties to any authoritarian regime.  A recording of the hearing can be viewed here, and a copy of the hearing memo setting out the issues considered at the hearing can be found here.
  • The FTC held an informal hearing on its proposed rule banning fake reviews and testimonials in advertisements and marketing materials, including those enabled by the emergence of generative artificial intelligence.  A recording of the hearing may be found here. The FTC already prohibits deceptive endorsements in advertisements, as we discussed in a Blog article here.  The FTC has even issued penalties against media companies for permitting the use of deceptive endorsements in advertisements (see our article here). 

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 removed from its list of tentative written decisions circulating among the Commissioners for review and approval an item addressing the EEO rules for broadcasters and cable companies.  This means that we will likely see the decision, “Broadcast and Cable EEO Rules and Policies, Fourth Report and Order, Second Further Notice of Proposed Rulemaking,” released this coming week.  While no draft of that document is publicly available, we expect that the Order will reinstate the FCC’s Form 395-B.  That form was once filed yearly by each broadcaster, detailing the gender, race, ethnicity, and job function of all station employees.  The filing requirement was suspended over 20 years ago when a court suggested that its use was discriminatory because the FCC was penalizing stations that did not meet specific racial or gender quotas in their workforce (see our article here for more on the proposal to bring back the Form 395-B).  The Further Notice portion of the decision likely will ask for comments on other ideas to reform the FCC’s EEO policies for broadcast and cable companies.
  • The FCC’s Media Bureau proposed a $720,000 fine against the licensee of six Hawaii TV stations for allegedly failing to negotiate in good faith a retransmission consent agreement with a cable provider.  The Bureau concluded that the good faith requirements were violated by the TV operator’s insistence on including in any final agreement terms that prevented the parties from filing FCC complaints about the negotiations.  The Bureau decision reiterated an conclusion reached in another recent case (which we noted in a past weekly summary here) that either party must be able to complain to the FCC about whether an agreement complies with FCC rules, even if that party decided to enter into the agreement to avoid a blackout that would occur without the agreement.
  • The FCC announced the comment deadlines for two Notices of Proposed Rulemaking (NPRMs) adopted at its January Open Meeting (actions we discussed in a past weekly update here):
    • The FCC announced that March 8 is the deadline for comments responding to its NPRM in which it proposes to require cable operators and direct broadcast satellite providers to issue rebates to subscribers affected by TV station blackouts resulting from failed retransmission consent negotiations.  Reply comments are due April 8. 
    • The FCC announced that March 11 is the deadline for comments responding to its NPRM in which it proposes to prioritize the review of certain applications filed by broadcast stations that provide at least three hours per week of locally originated programming.  Reply comments are due April 8.  We provided more details about this proceeding and the questions posed by the FCC, including its questioning of the 2017 abolition of the main studio rule, here
  • The FCC’s Enforcement Bureau issued a Notice of Illegal Pirate Radio Broadcasting to landowners in Providence, Rhode Island for allegedly allowing pirates to broadcast from their property.  The Bureau warned the landowners that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowners continued to permit any individual or entity to engage in pirate radio broadcasting from their property.
  • The FCC’s Media Bureau affirmed the tentative selectee among a group of mutually applications filed during the 2021 filing window for new noncommercial FM stations. An applicant whose application was rejected because it was mutually exclusive with the tentative selectee alleged that the selectee failed to demonstrate that it had reasonable site assurance for its proposed transmitter site, that it was not financially qualified to construct and operate all of the stations that it applied for in the 2021 window, and that it conspired with another applicant to circumvent the 10-application cap for the filing window.  The Bureau rejected these arguments, concluding that based upon the tentative selectee’s responses to the Bureau’s inquiry into the matter, the applicant had the required reasonable assurance of its tower site as it had contacted and been told by a representative of the tower owner that there was available space for its antenna, and it had assurance of funding from an agreement by the father of one of the selectee’s principals that he would lend money to the applicant from his IRA (demonstrating sufficient funds in that IRA to build the stations).  The Bureau also rejected the argument that the tentative selectee attempted to circumvent the 10-application cap as the challenger did not show any evidence of common control with another applicant beyond the use of a common engineering consultant and the familial relationship between principals in two applicants, factors which in and of themselves do not support a claim of common control, and the selectee had submitted declarations specifically rejecting any such conclusion.
  • The FCC’s Media Bureau announced the opening of a 30-day filing window for applicants to file construction permit applications for the Channel 225A Tribal Allotment at Lac du Flambeau, Wisconsin, an FM channel reserved for use by qualified Tribal entities.  Applications are due by March 6 and must demonstrate that the applicant is a Tribe or Tribal entity eligible to apply for the Tribal allotment.
  • The U.S. Copyright Office announced that it will hold public hearings in its rulemaking proceeding under the Digital Millennium Copyright Act (DMCA) concerning proposed exemptions to the DMCA’s prohibition against the circumvention of technological measures used by copyright owners to prevent unauthorized access to or use of their works.  The hearings will be held April 15 through April 19 via Zoom.  Members of the public who wish to testify must submit a request form available on the Office’s website by March 1.
  • The U.S. Department of Commerce announced the formation of the U.S. AI Safety Institute Consortium through which artificial intelligence (AI) creators and users, academics, government and industry researchers, and other organizations will help craft policies governing the deployment of safe and trustworthy generative AI.  Commerce Secretary Raimondo stated that the consortium, which includes more than 200 member companies and organizations, was created in response to President Biden’s October 2023 Executive Order (see here and our discussion here) directing agencies and departments in the federal government to set standards and develop tools to mitigate the risks of generative AI.

On our Broadcast Law Blog, we discussed how a recent Congressional hearing on the impact of streaming media on sports and other video programming rights (which we discussed in a weekly update here) demonstrated that the broadcast industry needs to do more to emphasize the role that over-the-air television plays in the media landscape.  We also took a look at what the Supreme Court’s review of the Chevron doctrine (which requires courts to defer to an agency’s interpretation of an ambiguous statute unless the agency’s decision is arbitrary and capricious or contrary to law) means for media companies challenging decisions of the FCC and other government agencies. 

Today’s post will be a bit more into the legal weeds than many of our articles, addressing the standards used by courts to review the decisions of administrative agencies like the FCC.  Last month, there was a Supreme Court argument in a case called Relentless, Inc. v. Department of Commerce that the popular press suggested was going to end the regulation of media companies.  Even the media trade press seemed to think that the decision could cut back on regulations that come from the FCC and other agencies.  As with much popular coverage of legal issues, the real-world impact of the case, while certainly significant in legal practice, is probably overstated.

The Relentless case challenges a judicial precedent in place since a 1984 decision in another case, Chevron [U.S.A.] Inc. v. NRDC, Inc.  The policy adopted in that case, referred to as the “Chevron Doctrine,” says that the courts will defer to the decision of an administrative agency interpreting an ambiguous Congressional statute unless the agency’s decision is arbitrary and capricious or contrary to law.  What that basically means is that, if a policy adopted by Congress is capable of many different interpretations, the Courts will defer to the interpretation of the expert agency that is supposed to enforce that statute, unless the interpretation cannot be squared with the language of the statute or the record before the agency.  We’ve written many times on this blog about this doctrine without necessarily identifying it by name, usually in connection with appeals of a Copyright Royalty Board or FCC decision and how difficult it is to convince a court to overturn these actions.

Continue Reading What Does the Supreme Court’s Review of the Chevron Doctrine Mean for Media Companies Challenging Decisions of the FCC and Other Government Agencies? 

Last week, when the NFL playoffs and upcoming Super Bowl had everyone thinking football, Congress held a hearing on how streaming media has affected sports and other video programming rights.  We noted that hearing in our weekly update this weekend.  As we said in our update, the hearing touched on all the video media issues of the day – sports rights, retransmission consent, the changing balance between pay TV (cable and satellite) versus streaming, and similar issues (the House staff memo outlining the issues to be discussed at the hearing can be viewed here, and a video of the hearing can be viewed here).  During the discussion, there were even some questions about whether there needed to be some local access mandates for some forms of programming – whether that be sports or, probably more importantly, access to emergency information.  In some sense, that discussion provided some faint echoes of the debate over mandates to preserve AM radio in the car (see our articles here and here).  The discussion, and a review of recent articles on accessing sports events without pay TV that omit any discussion of over-the-air television, makes clear that everyone in the industry needs to do more to emphasize the role that over-the-air television plays in the media landscape before those faint echoes of the AM debate become pronounced.

While the hearing touched how some local television stations have been able to acquire some sports rights from failing regional sports networks and expand the viewership for those games, the role of local television broadcasting was overshadowed by the discussion of the rights issues and streaming video.  Yet the role of local media, including local television, is one that pervades many of the regulatory debates ongoing at the FCC.  The FCC and NAB are cooperating with other industry stakeholders in exploring the role of over-the-air television in connection with the roll out of the new ATSC 3.0 “Next Gen” television transmission standard.  The health of local television, and whether local ownership restrictions should be lessened to ensure that television can better compete from digital media that is directly affecting both the audiences and advertising revenue of every station, was part of the debate over the Quadrennial Review decision released by the FCC in December, and this issue is likely to be debated in any appeal that may follow from that decision.  Local over-the-air television also is under consideration in many other pending FCC proceedings, including possible review of the main studio rules, priority processing of applications proposing local programming, emergency communications issues, and many other topics under consideration at the FCC. 

Continue Reading Sports Rights, the Super Bowl, and the Perception of Local Over-the-Air TV

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

  • The FCC announced the circulation for Commissioner review and approval of two decisions of interest to broadcasters, signifying that we may soon see FCC action on these matters:
    • FCC Commissioners Carr and Starks released a joint statement supporting FCC Chairwoman Rosenworcel’s action circulating an order resolving the FCC’s long-pending proceeding about whether to authorize “zonecasting” or “geo-targeting” for FM stations.  This proceeding considers allowing FM broadcasters to use on-channel FM boosters to originate limited amounts of programming, presumably allowing different commercials in different parts of a station’s service area.  The Commissioners suggested that giving FM stations the option to air geotargeted content would allow broadcasters to reach targeted audiences more cost effectively.  For further discussion of this zonecasting issue and why many broadcasters oppose the idea, see the article we posted this week on our Broadcast Law Blog, here.
    • In this week’s list of tentative written decisions circulating among the Commissioners for review and a vote, a new item was added – a decision on petitions for reconsideration of the Commission’s 2020 decision to abolish the rule prohibiting two commonly owned radio stations serving the same area in the same service (AM or FM) from duplicating more than 25% of their programming (see our article here on that 2020 decision).  While the tentative decision on the reconsideration petitions is not yet public, we note that FCC Chairwoman Rosenworcel and Commissioner Starks dissented from the 2020 decision, arguing that only AM radio should have been freed from the duplication restrictions. Now that there are three Democratic commissioners, could that 2020 decision, when there was a majority Republican commission, be changed?  Watch for further action on this item.
  • This week, there were also actions on Capitol Hill of interest to broadcasters:
    • Congressman Josh Gottheimer (D) sent a letter to the National Highway Traffic Safety Administration (NHTSA) requesting NHTSA to require manufacturers to display a safety warning on the car window “sticker price” when a vehicle does not have an AM radio.  The warning would be required until the AM Radio for Every Vehicle Act is passed by Congress.  As we discussed here, the Act has not yet passed in either House of Congress.  Gottheimer states that such a warning is necessary because AM radio forms the backbone of the Emergency Alert System and provides broadcasts that reach remote areas of the country – making AM radio a more reliable means of communication than FM or satellite radio during emergencies.  See our discussion here regarding the bill, and its importance to AM broadcasting.
    • On January 31, the House Subcommittee on Commerce and Technology held a hearing titled “TV Timeout: Understanding Sports Media Rights,” which focused on how streaming services have disrupted the media marketplace.  Television and media representatives were witnesses at the hearing (see here, here, here, and here for each witnesses’ written testimony).  Key lines of questioning included: streaming services, retransmission consent and TV blackouts, local broadcasting, media rights, and regional sports networks.  The House staff memo outlining the issues to be discussed at the hearing can be viewed here, and a video of the hearing can be viewed here.  
    • Also on January 31, the Senate Judiciary Committee held a hearing “Big Tech and the Online Child Sexual Exploitation Crisis,” where the CEOs of many of the largest social media companies testified on ways to protect children when they use these online platforms.  Discussions included ways Congress could act to regulate social media.  Testimony from the witnesses and a video of the hearing is available on Judiciary Committee website, here.
  • The FCC’s Media Bureau released a Public Notice in which it summarized the processing procedures for the 1,336 applications filed during the December 2023 LPFM filing window, and announced that the temporary freeze on filing amendments to new LPFM station applications was lifted at 6:00 p.m. EST on January 31, 2024, meaning that such applications can now be updated.  The Bureau also noted that new LPFM station applicants may now communicate and collaborate with other applicants to enter into voluntary time-share agreements to resolve their mutual exclusivities (where two or more applications cannot all be granted under the FCC’s technical rules).  See our article here for a discussion of the filing window and how the Bureau evaluates applications filed in the window if there are no voluntary agreements to resolve mutually exclusive situations. 
  • The FCC announced that March 4 is the effective date of rules adopted in its September 2023 Report and Order, which revised many rules for full power and Class A television stations, particularly those that no longer have any practical effect given the transition from analog to digital-only operations and the post-incentive auction transition.  For the most part, these changes did not make substantive changes in rules governing station operations.  As the FCC notes in its announcement, however, certain rules adopted in the Order will not become effective until after they receive approval by the Office of Management and Budget.  The FCC’s Media Bureau will announce when those rules have become effective.

On our Broadcast Law Blog, summarized upcoming February regulatory dates for broadcasters.  We reminded commercial radio stations of the April 1 deadline to report their 2023 revenue to ASCAP, BMI, and SESAC as that information is needed for computing 2024 royalty fees.  We also looked at the legal issues in Super Bowl advertising and promotions with our resident trademark specialist, Mitchell Stabbe. 

This week, Commissioners Carr and Starks issued a joint statement congratulating Chairwoman Rosenworcel for circulating an order to resolve the FCC’s long-pending proceeding about whether to authorize “zonecasting” or “geo-targeting” for FM stations.  Zonecasting would allow FM broadcasters to use FM booster stations operating on the same channel as their main signal, within a station’s existing service area, to originate different programming in different parts of their markets.  Theoretically, this would allow a station to run different commercials in different parts of a station’s service area during the same commercial break. The Commissioners applauded the technical innovation giving broadcasters a choice as to whether they will implement the new system.  While some small broadcasters have supported this proposal, many other broadcasters have vehemently opposed the idea.  Why would so many broadcasters oppose the idea that the Commission seems poised to adopt?

Many of the objections are technical in nature.  Even though the proponents of the system argue that they have minimized any interference that would occur from different FM boosters originating different programming on the same channel as the main station on the same frequency in the same service area, other broadcasters argue that no matter how good the technology, putting more signals on the same channel cannot avoid creating more FM noise.  In today’s electronic world, there are already innumerable sources of potential noise to over-the-air signals, and adding programming on the same channel cannot avoid adding to the problem.

Continue Reading FCC Nears Decision on Zonecasting for FM Stations – What’s at Stake?

Mitchell Stabbe, our resident trademark law specialist, today takes his annual look at the legal issues in Super Bowl advertising and promotions (see some of his past articles here, here, and here).  Take it away, Mitch:  

As a life-long fan of the Baltimore Ravens (the life of the Ravens, not my life), my interest in the Super Bowl XVII has waned a bit.  The opposite is true for those who seek to profit from the playing of the game.  Accordingly, following are updated guidelines about engaging in or accepting advertising or promotions that directly or indirectly reference the Super Bowl without a license from the NFL.  But, first, a trivia question.  Who won Super Bowl I.  (Answer at end)

The Super Bowl means big bucks.

There are currently four primary television networks that broadcast and stream NFL games in the United States (CBS/Paramount+, Fox, ABC/ESPN/ESPN+ and NBC/Peacock).  It is estimated that, with the new contract which took effect this year, each will pay the NFL an average of over $2 billion per year for those rights through 2032, including the right to broadcast the Super Bowl on a rotating basis.

The investment seems to pay off for the networks.  Reportedly, it will cost $7M for a 30-second spot during this year’s Super Bowl broadcast, which is about the same as last year.  It has also been reported that last year’s game brought in advertising revenue totaling $600 M (up from $545 M the prior year).  These figures do not include income from ads during any pre-game or post-game programming.  (In addition to the sums paid to have their commercials aired, some advertisers spend millions of dollars to produce an ad.)  In addition, the NFL receives hundreds of millions of dollars from licensing the use of the SUPER BOWL trademark and logo.

Continue Reading 2024 Update on Super Bowl Advertising and Promotions

We often write about issues concerning the royalties paid by radio stations for their various uses of music.  It is not just paying the royalties that are important, but stations must also observe all of all the other obligations under each of their license agreements.  The Radio Music License Committee asked us to remind commercial radio stations of one of those obligations – the requirement that commercial radio operators report their prior year’s annual station revenues to the Performing Rights Organizations – ASCAP, BMI, and SESAC.  As commercial radio stations pay their royalties to these organizations based on a percentage of the revenues earned by the station, the PROs need this information to compute the royalties that are owed.  Because of the importance of the information, there are penalties in each of the license agreements for stations that don’t timely report their income.  The deadline for reporting the revenue under the agreements with each of the three PROs is April 1, 2024, so stations need to report this information in the next two months.  Note that GMR, which is not subject to antitrust restraints and does not license commercial radio under uniform agreements and procedures worked out with RMLC as do the other PROs, may use metrics other than revenue to set its royalties and may not have this same revenue reporting obligation – check your individual agreement with GMR as to required reporting obligations.

The revenue information for ASCAP, BMI, and SESAC is reported through online portals that each host.  All of these portals are now open for the reporting of last year’s revenue.  SESAC’s online reporting portal is available here, ASCAP’s is here, and BMI’s portal can be found here.  If broadcasters have any problems accessing the portals, they should contact their representatives at the PROs – not the RMLC as it has no control over any of these portals. The deadline is coming up in just two months, so stations should submit the information now rather than risk forgetting and incurring the penalties for late reporting.

President Biden’s signing of the Continuing Resolution last week (see our discussion here) has kept the federal government open, with the FCC and FTC having money to stay open through March 8.  So the FCC will be open and thus there are February regulatory dates to which broadcasters should be paying attention. 

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

Continue Reading February Regulatory Dates for Broadcasters – Annual EEO Public File Reports, C-Band Transition Reimbursement, Political Windows, 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.

  • The FCC released its agenda for its Open Meeting scheduled for February 15.  The FCC will consider two items of interest to broadcasters:
    • For years, the FCC has been exploring how to provide multilingual EAS alerts on broadcast stations (see our Broadcast Law Blog articles here, here, and here on the FCC’s past rejection of attempts to mandate that broadcasters originate such alerts).  At its upcoming meeting, the FCC will consider a draft Notice of Proposed Rulemaking (NPRM) proposing that public safety and other groups that originate alerts would be provided pre-scripted, pre-translated alert messages in thirteen non-English languages that the originators can distribute during emergencies to TV and radio broadcasters, cable service providers, and other EAS participants.  Among the questions asked in the NPRM is whether a station receiving these pre-scripted alerts in multiple languages would have to broadcast the alert only in the language of its programming, or whether it would have additional obligations to broadcast alerts in other languages common in its service area. 
    • The FCC will also consider a draft Report and Order that, if adopted, would permit a new type of wireless microphone system called “Wireless Multi-Channel Audio System” (WMAS).  The new rules permit the use of WMAS on a licensed basis in frequency bands where wireless microphones already are currently authorized, including the TV bands (VHF and UHF).  The FCC stated that its goal was to enhance the spectral efficiency of wireless microphone use and noted that it did not intend to alter the existing spectrum rights or expectations of existing users, including broadcast licensees. 
  • The FCC adopted a Notice of Proposed Rulemaking, in which it proposes to require TV and radio stations to file reports with the FCC regarding station operational outages in the FCC’s Network Outage Reporting System (NORS) database and on their operating status during disasters in the FCC’s Disaster Information Reporting System (DIRS) database.  DIRS reporting is currently voluntary for broadcasters.  The FCC’s Public Safety and Homeland Security Bureau also issued a Public Notice announcing that it will be conducting a DIRS voluntary exercise on February 6 through February 8 to ensure that communications providers, including broadcasters, can access and file reports in the DIRS system.  The Bureau’s Public Notice contains information on how to register and participate in the DIRS exercise. 
  • The FCC announced that February 26 will be the deadline for filing comments in response to the FCC’s Notice of Proposed Rulemaking (NPRM) adopted last month (see our articles here and here) which proposes to require multichannel video programming distributors to report lapses in their carriage of TV stations when retransmission consent negotiations fail, i.e., “blackouts.”  Reply comments will be due March 26. 
  • The FCC took several actions related to pirate radio:
    • The FCC submitted its annual report to Congress on its enforcement of the PIRATE Act, which enables the FCC to issue fines up to $2,391,097 against pirate radio operators (see our article on the adoption of the Act).  The report notes some of the substantial fines issued against pirate radio operators, as well as the issuance of 44 warning notices sent to property owners and managers of sites hosting pirate radio activities (some of which we discussed here, here, and here).  It also noted that the FCC started a pirate radio database in January 2023 (now updated with all publicly released enforcement activity through December 2023), it has expanded its staff dedicated to enforcing the PIRATE Act, and it will be buying additional equipment over the next two years to better investigate pirate radio activities. 
    • The FCC also proposed to fine five Florida-based pirate radio operators a total of $3.5 million, actions which were the result of the FCC’s first sweep of the Miami area for pirate radio activities under the PIRATE Act.  Under the PIRATE Act, the FCC can fine pirate radio operators up to $119,555 per day and a maximum of $2,391,097 as recently adjusted for inflation (see here and here regarding our discussion of the FCC’s recent adjustments of fines for inflation).  In one decision released this week, the FCC proposed a $2,391,097 fine – the maximum penalty allowable under the Act – against a pirate radio operator for operating illegally on 22 specific days in 2023 when the FCC was monitoring its operations, a fine that was multiplied by the pirate’s 12 year history of illegal operations, which included multiple prior FCC actions including seizures of broadcast equipment.  The FCC also proposed $358,665 fines – the maximum penalty for three days of violations – against three additional pirate radio operators and a $120,000 fine against the fifth pirate radio operator.  The decisions proposing these fines are available here, here, here, and here.
  • The House Subcommittee on Communications and Technology announced that it will hold a hearing on January 31 at 10:30 AM EST titled “TV Timeout: Understanding Sports Media Rights.”  The focus of the hearing is on how streaming services have disrupted the media marketplace. The hearing can be viewed live here.    
  • The FCC’s Media Bureau entered into a Consent Decree with the licensee of a group of Nebraska FM stations requiring an $8,000 penalty to resolve the Bureau’s review of three unauthorized transfers of control. The Bureau found that the stations’ licensee failed to seek FCC consent prior to the transfer of the voting stock of its controlling shareholder to successive trusts three times between 2017 and 2019.  This is one of several recent cases that show that changes in estate planning by station owners can trigger FCC requirements for prior approval of changes in control of an FCC licensee, and the penalties that can result when such approvals are not obtained (see, for instance, the cases we noted here, here, here, here, and here). 
  • In a Memorandum Opinion and Order, the full Commission selected the winning applicants in six groups of mutually exclusive applications filed during the November 2021 filing window new for noncommercial educational (NCE) stations – selecting winning applicants proposing to serve the following communities: Gallup, New Mexico; Weeki Wachee, Florida; Burlington, Iowa; Central Gardens, Texas; Key West, Florida; and Grand Forks, North Dakota.  The facts leading to the Commission’s decisions are based on detailed factual analysis and vary widely from group to group, and thus each will not be summarized here.  But, in many cases, losing applicants were cited for failing to properly document their claim of eligibility for points under the points system criteria used to choose between mutually exclusive applications for new noncommercial stations, or for untimely or inaccurately reporting their other broadcast interests. The Order provides good examples of the Commission’s application of the points system (see our articles here and here for more information on how the point system works).
  • The Commission published in the Federal Register a list of proposed community of license changes, allowing the public to comment on these changes (as required by the rules for all radio city of license changes).  Comments are due by March 22, 2024.  The proposed changes are: KKIS(FM), from Jacksonville, TX to Maydelle, TX; KUNY(FM), from Paragonah, UT to Enoch, UT; KYML(FM), from Mount Laguna, CA to San Diego Country Estates, CA; WCQS(FM), from Asheville, NC to Mars Hill, NC; and WYQS(FM), from Mars Hill, NC to Asheville, NC.
  • The Bureau issued a Report and Order allotting TV channel 31 to Shawano, Wisconsin, allowing the permittee of an unbuilt TV station at Wittenberg, Wisconsin to change its city of license to Shawano.  The Bureau agreed that providing Shawano (a community nine times larger than Wittenberg) with its first local TV service is the type of “rare circumstance” which justifies a waiver of the general prohibition on the removal of a community’s sole first local service.  The Bureau also found that the public interest would not be adversely affected by the change in city of license because the station had not yet been constructed, and thus no Wittenberg viewers rely on any existing service from the station. 

As we discussed on our Blog this week, the Copyright Royal Board corrected the deadline for interested parties to file petitions to participate its new proceeding to set webcasting royalty rates for 2026 through 2030.  The new filing deadline is now February 5, not February 6 as originally stated.  We also discussed SoundExchange’s announced audits of five broadcast companies to assess their compliance with their statutory music licenses, noting SoundExchange’s ability to audit any licensee operating under the licenses for which it collects royalties.

We also discussed on the Blog the FCC’s Notice of Proposed Rulemaking released last week aimed at giving incentives to broadcasters to air more local journalism and local programming by prioritizing the processing of certain applications filed by stations that feature local programming.  We look at the FCC’s question posed in the NPRM as to whether the abolition of the main studio rule in 2017 achieved what the FCC alleges was its goal of fostering the creation of more local content, and the Republican Commissioners’ dissents based on their belief that the NPRM was laying the groundwork for reinstating the main studio rule.