My law firm partner, Jonathan Cohen, has been closely monitoring the developments in the regulation of social media and other big tech platforms by the current administration.  He offers these thoughts on likely areas of legislative and regulatory action in this area in the coming year. 

Many nights, the last thing I do before falling asleep is put down my phone, and the first thing I do upon waking is pick it up.  I suspect I’m not alone in this.  Internet-enabled digital technologies seem to have transformed life for most Americans, changing how we conduct business, connect with each other, and receive information and entertainment.  The advent of these technologies in recent years is what former FCC Chairman Tom Wheeler, in his 2019 book From Gutenberg to Google, calls the “third major network revolution,” after the invention of movable-type printing and the innovations in travel and communications brought about by railroads and the telegraph.  This new revolution is rapidly changing our information ecosystem.

Beyond the commercial opportunities and challenges presented for tech, media, and telecom companies, as well as content creators, the societal impact of this third major network revolution is fascinating and wide-ranging, but also potentially troubling.  Illustrating the power that tech platforms exert over us, Taylor Lorenz of The New York Times recently reported on a conversation she’d had with a 10-year-old boy who was disappointed that no photos were available when he Googled himself.  The boy felt that he wasn’t a real person until his photo came up in a Google search.  Leaving aside the numerous sociological implications of the tech revolution, the tech sector is under scrutiny as never before.  Its business model of tracking users’ online actions and using the data to sell targeted advertising and feed algorithmic amplification has been described by Harvard professor emerita Shoshana Zuboff as “surveillance capitalism.”  Others call it the “attention economy.” Continue Reading Hot Topic for 2022: Tech Regulation

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 FCC announced that CDBS, the database where all broadcast applications were filed before most migrated to the newer LMS database, would stop accepting new applications as of last Wednesday, January 12. CDBS was, until being shut down for new filings, still being used for STAs, address changes, and a number of AM applications.  These submissions not yet migrated to LMS will now be filed through emails to the FCC (Public Notice).  For more information, see our article here.
  • A California low power FM station received a Notice of Violation for not monitoring the sources it was assigned to monitor in the State EAS plan. The Enforcement Bureau’s review of the station’s EAS log showed that the station was not monitoring the two EAS sources designated for it in the State EAS Plan but was instead monitoring only an optional monitoring point.  No financial penalty was proposed, but the station must submit a response explaining its violations, with a timeline for coming into compliance.  (Notice of Violation).  This is a good reminder to make sure that your stations are monitoring the sources assigned in your state plan.  The decision also emphasizes that LPFM stations are part of the EAS system and must monitor assigned stations for emergency alerts and pass through such alerts when they are received.
  • A consent decree released this week is a good reminder that, even though the radio license renewal cycle is winding down, FCC staff are still reviewing pending applications and stations’ online public files for completeness. Make sure your online public file holds all of the necessary documents and that those documents are uploaded on time.  (Consent Decree)
  • Now that the repacking of the TV spectrum has been completed and changes to the TV Table of Allotments are permitted, the FCC this week asked for comments on several proposals for existing stations operating on VHF channels to move to UHF (Portland, OR; Henderson, NV; Monroe, LA; Albany, NY), and a proposal for a new TV channel allocation to be reserved for noncommercial operations (Ft. Bragg, CA).
  • The FCC’s Audio Division fined an FM translator operator for not filing a license application when it completed construction and for operating the new translator after its construction permit expired. (Order and Notice of Apparent Liability)  This is another reminder that, when a broadcaster completes construction of any new facility, it must file a license application so that the FCC can confirm that the station was constructed as authorized.
  • The US Senate confirmed Alan Davidson to be head of the National Telecommunications and Information Administration (NTIA). Davidson will be in charge of billions of dollars designated for broadband infrastructure investment and will work closely with the FCC on broadband and spectrum policy.  Read FCC Chairwoman Rosenworcel’s congratulatory statement, here.  In other confirmation news, now that President Biden has re-nominated Gigi Sohn to be an FCC Commissioner, watch for the Senate Commerce Committee to further consider her nomination in the next few weeks.

In Case You Missed It: We published our 2022 calendar of important dates for broadcasters.  In addition to outlining the political windows for the year, it highlights many of the most important dates for broadcasters in the coming year – including dates for license renewalsEEO Public Inspection File ReportsQuarterly Issues Programs listschildren’s television obligations, annual fee obligations, political windows, and much more.  (2022 Broadcasters’ Calendar)

2022 has begun – and we are all wondering what will lie ahead in the New Year.  Each year, at about this time, we put together a look at highlights of the regulatory dates ahead for broadcasters.  This year is no different – and we offer for your review our Broadcaster’s Regulatory Calendar for 2022.  While this calendar should not be viewed as an exhaustive list of every regulatory date that your station will face, it highlights many of the most important dates for broadcasters in the coming year – including dates for license renewalsEEO Public Inspection File ReportsQuarterly Issues Programs listschildren’s television obligations, annual fee obligations and much more.

2022 will likely be a big election year, with all of the US House of Representatives seats and a third of those in the US Senate being contested, as well as many governor’s seats as well as state and local elections.   Our calendar provides the lowest unit charge periods for the primaries and general election as they were available to us last month when this calendar was prepared.  But check locally as these dates can change – and there can be additional local and special elections which are not included here.  See our article here on how the other political broadcasting rules apply to state and local elections, and our article here on what you should be doing to prepare for these elections.

Certainly, as the year progresses, there will be plenty more dates to note.  We have already seen some big news in the first weeks of the year, as the Radio Music License Committee and performing rights organization Global Music Rights, have reached a settlement of their long-running litigation, to which broadcasters must opt in by January 31.  The FCC has also announced likely changes (though minor ones) to its political broadcasting rules, and closed as of yesterday its old database, CDBS, that had been used for many years for the filing of broadcast applications.  Follow our blog where we weekly post a summary of the prior week’s regulatory actions relevant to broadcasters and a look ahead prior to the start of each month at the regulatory dates in the coming month, read other newsletters and trade publications, and consult your own attorney to stay on top of the regulatory obligations that apply to your stations.  We hope that this 2022 Broadcasters Regulatory Calendar will give you a good start on spotting some of the important dates that may be ahead and affect your operations.

 

Since the 1990s, the FCC’s Consolidated Database System (CDBS) has been used for filing broadcast applications.  In recent years, though, much of the filing activity has been migrated to the FCC’s Licensing and Management System (LMS).  While in some ways not as user-friendly as CDBS, LMS apparently has some advantages in, among other things, its searchability.  Given the migration that has already occurred for most FM and TV technical applications, ownership reports, and assignment and transfer applications, CDBS had few continuing uses.  Thus, the FCC yesterday announced that it is ending the filing of new applications in the CDBS system at the end of the day today, January 12, 2022, at 5 PM Eastern Time.  All filings that were still being made in CDBS and that cannot be submitted via LMS are now to be made by email to an email address set out in the FCC’s Public Notice: audiofilings@fcc.gov.

What is left that is not filed in LMS?  Filings that, until 5 PM ET today were made in CDBS, include the following:

  • AM Application for Construction Permit for Commercial Broadcast Station on Form 301
  • AM Application for Construction Permit for Reserved Channel Noncommercial Educational Broadcast Station on Form 340
  • AM Applications for Broadcast Station License on Form 302
  • Special Temporary Authority (STA) Engineering Requests and Extension of Engineering STA Requests for all audio service stations
  • Silent STA / Notification of Suspension/ Resumption of Operations / Extension of Silent STA Requests for all audio service stations
  • Change in official mailing address
  • AM Digital Notification on Form 335-AM
  • All-Digital AM Notification on Form 335-AM
  • FM Digital Notification on Form 335-FM
  • Amendments to pending applications previously submitted in CDBS
  • Pleadings (Petitions to Deny, Informal Objections, Oppositions, Replies, Supplements, Petitions for Reconsideration and Applications for Review) concerning applications submitted through CDBS or using the email procedures that had previously been instituted for some of the above-listed applications in recent years.

In connection with the last bullet, the FCC noted that some parties had been filing pleadings related to applications filed in CDBS in LMS (which usually contains a reference to the CDBS-filed application).  The FCC asks that pleadings filed in connection with applications submitted through CDBS be filed with the email system described above, and not through LMS.  Pleadings concerning LMS-submitted applications should, of course, be filed in LMS. Continue Reading FCC Announces End of Filings in their CDBS Database As of 5 PM Eastern Time Today! 

The FCC, at its January 27 monthly open meeting, will be voting on the adoption of two relatively minor changes to its political broadcasting rules.  While some press reports suggested that the changes would expand the FCC’s jurisdiction into online political advertising, in fact the draft of the FCC’s Report and Order released last week shows that the two rules at issue deal exclusively with over-the-air political advertising.  Moreover, as we wrote here when the proposals were first advanced for public comment, the changes to be adopted are almost ministerial clean-ups of FCC rules, having little substantive effect on the current political sales practices of most broadcasters.

These two rule changes are likely to be adopted at the end of the month by a 4-member FCC that is still evenly divided between Democrats and Republicans.  The first one deals with the showing that needs to be made by a write-in candidate to show that the candidate is “legally qualified” and thus entitled to take advantage of the FCC’s political broadcasting rules. The second change would conform the FCC’s rules to the already existing statutory provisions that require broadcasters to include, in their online public files, information about the sale of advertising time to non-candidate buyers who convey a message on a matter of national importance, i.e., a federal issue ad. Continue Reading FCC Plans to Adopt Two Minor Changes to its Political Broadcasting Rules – What is Being Changed?

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 FCC this week announced that it will vote on two items of interest to broadcasters at its next Open Meeting on January 27.
    • The FCC will likely make two minor changes to its political broadcasting rules.
      • The first will add use of social media and creation of a campaign website to the factors to consider when determining if a write-in candidate has made a “substantial showing” of a bona fide campaign for office so that the candidate can be considered a “legally qualified candidate.” Legally qualified candidates are entitled to all the protections of the FCC’s political rules, including equal opportunities, lowest unit rates and, for federal candidates, reasonable access to buy advertising time on commercial broadcast stations.  In the current rules, the factors that a broadcaster is to consider in assessing if a substantial showing has been made are matters including whether the candidate is actively campaigning by making speeches and hosting rallies, if they are passing out literature and putting up yard signs, and whether they have a campaign headquarters.  Digital media activity will now be considered – though the FCC is poised to say that websites and social media will never, alone, be sufficient to show that a write-in candidate is legally qualified.
      • The same order will also update the FCC’s rules on the political file to require that stations upload to their online political file information about any request to buy federal issue advertising. Stations already are required to upload this information, as it’s mandated by the Communications Act, but the FCC rules were never updated to reflect this 20-year-old statutory requirement.  The FCC will not be making any substantive changes to the requirements, but instead will only be updating its rules to spell out what is already required by the Act.
      • The FCC’s Draft Report and Order spells out the proposed changes to be considered at the January 27 meeting. We wrote about both proposed changes when they were first announced, here.
    • The FCC plans changes to how white space devices that operate in unused portions of the TV band would receive operational information from white space databases about the use of wireless microphones in the areas where the devices operate.  The new rules would require that the devices check the databases at least once per hour, replacing a current rule that has not been enforced which requires the databases to push information about wireless microphone use whenever there is new microphone use in the area.  The FCC believes this will better protect wireless microphones (used for newsgathering and other unplanned purposes) as push notifications might not be received by all the white spaces devices (and verifying receipt of such notices might not be technically feasible).  (Draft Second Order on Reconsideration)
  • Performing rights organization Global Music Rights and the Radio Music License Committee (RMLC) announced a confidential settlement this week in their long-running dispute over the royalties that GMR can charge commercial radio stations. (Letter to Radio Broadcasters). The terms of the settlement have not been disclosed, but commercial stations represented by RMLC should have received a proposed license agreement to review. The settlement depends on enough stations agreeing to the terms of the license agreement by January 31, so don’t delay checking with your station’s counsel and advisors to see if signing the agreement makes sense for your operation.  We wrote at length about the settlement, here.
  • The FCC reported that there were about 100 fewer broadcast stations licensed at year-end 2021 than there were at the end of 2020. Decreases were seen mostly in the number of AM, commercial FM and low power FM stations.  (Station Totals as of December 31, 2021)

A conditional settlement of the long-running litigation between Global Music Rights (GMR), a relatively new performing rights organization formed to license the public performance rights to certain musical works, and the Radio Music License Committee (RMLC) was announced this week.  The terms of the agreement are confidential, so we can’t comment on the specifics of the deal.  But each commercial radio station represented by RMLC should have received a proposed license agreement from GMR.  The settlement will only be effective if an undisclosed number of radio broadcasters agree to the terms of the agreement by January 31, 2022.  For stations that do not agree by that date, or if not enough stations opt into the agreement causing the settlement to fail, the press release about the agreement says that GMR has made no commitment to extend the current interim license (about which we wrote here) beyond its current expiration date of March 31, 2022.  Thus, stations would need to otherwise negotiate an agreement with GMR, pull GMR music from their stations, or risk a lawsuit for playing the music without permission.  If your commercial radio station did not receive a communication from GMR in the last few days, and if you play any GMR music and you are not covered by an independently negotiated agreement, you should discuss with counsel whether you should reach out to GMR to see why you were not offered a license.  Similarly, if not all your stations were included in the offer you received, discuss with counsel whether to communicate with GMR.

While we cannot comment on the specifics of the deal because it remains confidential, there are some observations that can be made based on the public statement released by RMLC and GMR.  One of the first questions is why the settlement is conditioned on enough stations agreeing to it by January 31.  First, it is important to note that the agreement by RMLC to any royalty with any music rights organization does not bind all commercial broadcasters, or even RMLC’s members, to accept the deals that it has negotiated.  See, for instance, the agreements in the last few years with ASCAP, BMI and SESAC, all of which required broadcasters who wanted to be covered by the negotiated agreement to opt in by a date certain.  While a wide cross-section of broadcast companies is represented on the Board of RMLC which approved this agreement, the Board members do not bind their companies or the rest of the radio industry to accept the terms that were negotiated. Continue Reading GMR and RMLC Announce Confidential Settlement on Music Royalties for Commercial Radio Stations – Broadcasters Must Decide Whether to Opt In by January 31

As 2021 wound down, there were significant developments on SoundExchange royalties for webcasters – including broadcasters who simulcast their on-air programming through IP channels (such as on their websites and on mobile apps).  While we covered many of these matters in our weekly Sunday updates on regulatory matters of importance to broadcasters, we thought that it would be worth summarizing all of the action in one place.  Most, but not all, of these developments follow from last year’s  Copyright Royalty Board decision  raising webcasting rates for 2021-2025 (see our article here summarizing that decision).

The CRB’s decision was published in the Federal Register in October 2021.  As of that date, all webcasters, if they had not already been doing so, should be paying the higher royalties ($.0021 per song per listener in 2021 for nonsubscription streams).    SoundExchange has appealed the CRB’s decision (presumably to argue the rates should have been set even higher), as have the NAB and the National Religious Broadcasters Noncommercial Music License Committee.  These appeals are pending and likely will be briefed and argued sometime in 2022.  If you have not trued up your payments (the increase in royalties was retroactive to January 1, 2021), consult your legal advisor as to the effect that these appeals may have on your responsibility for that true-up. Continue Reading A Look at Developments in SoundExchange Webcasting Royalties (Including for Broadcast Simulcasts) From the End of 2021

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

  • The FCC released the results of the August 11 Nationwide EAS Test, finding that, compared to the 2019 test (the 2020 test was cancelled due to the pandemic), this year’s test message reached more EAS participants (89.3% in 2021 vs. 82.5% in 2019) and it was retransmitted successfully more than it was two years ago (87.1% in 2021 vs. 79.8% in 2019).  However, the FCC received reports on the test from only 75.3% of participants, down from 78.6% in 2019.  79.9% of radio broadcasters filed their reports, and only 67.9% of TV stations – with LPFM and LPTV stations representing many of the non-reporting stations.  The FCC noted that ensuring, for future tests, increased compliance with the mandatory reporting requirement will be a priority. (Nationwide EAS Test Report).
  • The date for filing comments on the FCC’s proposal to change the rules for proofing of FM directional antennas was pushed back. Comments are now due by January 20, with reply comments due by February 4.  This proceeding seeks comments on proposals to allow the patterns for directional FM antennas to be verified by computer modeling as opposed to real-world testing.  (Public Notice)
  • Senators Roy Blunt and Ron Wyden introduced the Low Power Protection Act, a bill to open a new window during which LPTV stations that originate at least 3 hours of local programming could qualify for Class A status, meaning that they would be protected from being bumped off their channels by future applications by full-power stations (and these stations would have to be protected if the spectrum allocated to TV was further reduced at some future time, as it was as a result of the Incentive Auction). The bill, as proposed, would only allow new Class A stations in DMAs with 95,000 television households or fewer – approximately DMA 175 and below.  (Press Release)   The bill has not been introduced in the House of Representatives, and will need substantial Congressional consideration before becoming law.
  • The licensee of several Kansas radio stations entered into a consent decree with the Media Bureau because a number of its stations were silent for long periods of time without receiving special temporary authority from the FCC. The FCC requires Commission notification if a station is silent for 10 days, and an STA must be requested when a station is silent for 30 days.  The licensee will pay a $7000 fine and the stations will receive a 1-year license renewal term, instead of the typical 8-year term.  (Order and Consent Decree).
    • In another decision released last week, the FCC proposed to fine another broadcaster $17,500 for not timely requesting an STA when its AM and associated FM translator went silent, plus its failure to amend its pending license renewal application to report that the stations were silent for several months while the renewal was pending – even though the renewal specifically asks if the station whose renewal is sought is silent. The licensee had also failed to complete and timely upload multiple Quarterly Issues Programs lists to its public file (Order and Notice of Apparent Liability)
  • The Media Bureau entered into a consent decree with a radio licensee requiring a $5000 fine because of several violations, including the licensee’s failure to maintain station logs, its failure to upload (or timely upload) certain documents to its online public file, and because its FM translator stayed on the air for extensive periods of time when its primary AM station was not operating, a violation of the rules that prohibit translators from operating when their primary stations are not operating during their authorized hours. This is a reminder to pay close attention to your operations and be sure that you are complying with all applicable FCC rules.  (Order and Consent Decree)
  • The FCC proposed to delete 7 vacant FM channels that were included in the last two FM auctions but received no bids in either auction. The channels proposed for deletion are ones in Snowflake, AZ; Millerton, OK; Powers, OR; Mount Enterprise, TX; Paint Rock, TX; Hardwick, VT; and Meeteetse, WY.  Comments on the proposed deletions are due February 14, with reply comments due March 1.  If no party expresses an interest in operating a station on these channels, or files a counterproposal to move the channels elsewhere, they will be deleted.  (Notice of Proposed Rulemaking)
  • The FCC cancelled Auction 111 after the only mutually exclusive applicants entered into a settlement agreement. The auction was to be a closed auction of LPTV and TV translator construction permits for applicants who submitted mutually exclusive applications either during a 2009 filing window for new LPTV stations or in a 2018 window for stations displaced by the Incentive Auction.  With no mutually exclusive applications to be resolved by competitive bidding, there is no longer a need for an auction.  (Public Notice)
  • The FCC announced its annual calculation of the increase to account for inflation in fines whose amounts are set by the Communications Act. The announced increases include fines for broadcast indecency.  For 2022, indecency fines can be as high as $445,445 for each violation or for each day of a continuing violation, except that the amount assessed for any continuing violation shall not exceed a total of $4,111,796. (FCC Order)

For a summary of the some of the important regulatory dates in January and early February, review our monthly feature on our Blog that looks at dates and deadlines for month ahead.  (Broadcast Law Blog)

As the holiday season comes to an end and 2022 comes into focus, broadcasters have several dates and deadlines to keep up with in January and early February.  We have noted below some of the important dates you should be tracking.  However, as always, stay in touch with your station’s lawyers and other regulatory advisors for the dates applicable to your operations.  We wish you a happy, healthy, and successful New Year – and remembering to track important regulatory dates will help you  achieve those ends.

Let’s start with some of the annual dates that always fall in January.  By January 10, full-power radio, TV, and Class A licensees should have their quarterly issues/programs lists uploaded to their online public file.  The lists are meant to identify the issues of importance to the station’s community and the programs that the station broadcast in October, November, and December that addressed those issues.  Prepare the lists carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its community.  See our post here for more on this obligation. Continue Reading January Regulatory Dates for Broadcasters: Issues/Programs Lists; Digital LPTV Deadline; Audio Description Expansion; Children’s Programming, Webcasting Royalties; NCE FM Settlement Window; and More