With less than a month to go before the November election, we can expect more and more attack ads, some of which may lead to cease and desist letters from the candidate being attacked.  These letters can raise the risk of defamation claims against broadcasters and cable companies when the ads are not bought by candidates.  The use of artificial intelligence in such ads raises the prospect of even nastier attack ads, and its use raises a whole host of legal issues beyond defamation worries, though it raises those too (see our article here on defamation concerns about AI generated content, and our articles here, here and here about other potential FCC and state law liability arising from such ads – note that since our last article on state AI laws, there are now over 20 states with AI laws I place).  Given the potential for a nasty election season getting even nastier, we thought that we would revisit our warning about broadcasters needing to assess the content of attack ads – particularly those from non-candidate groups. 

As we have written before, Section 315 of the Communications Act forbids broadcasters (and local cable companies) from editing the message of a candidate or rejecting that ad based on what is says except in extreme circumstances where the ad itself would violate a federal criminal law and possibly if it contains a false EAS alert (see, for instance, our articles here, here and here).  Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads.  (Note that this protection applies only to over-the-air broadcasters and local cable companies – the no censorship rule does not apply to cable networks or online distribution – see our articles here and here)  Other protections, such as Section 230, may apply to candidate ads placed on online platforms, but the circumstances in which the ad became part of the program offering need to be considered. 

Continue Reading Broadcasters Should Evaluate Attack Ads for Liability Concerns in the Final Weeks Before the November Election

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 Public Safety and Homeland Security Bureau announced that the deadline for EAS Participants to file their annual Emergency Alert System Test Reporting System (ETRS) Form One is extended to October 18 in order to reduce burdens on EAS Participants that are recovering from the damage caused by Hurricane Helene.  The form requires all EAS Participants, including broadcasters, to provide information regarding their EAS equipment and monitoring assignments along with other relevant data.  While a nationwide EAS test is not scheduled for this year, the FCC still requires all EAS Participants to annually update their EAS information by filing an ETRS Form One, now due by October 18.
  • The FCC granted Audacy’s assignment applications approving its reorganization to allow its emergence from bankruptcy.  The applications were opposed by conservative groups due to George Soros’ proposed involvement in the reorganized company, who these groups fear will use Audacy’s broadcast stations to suppress conservative viewpoints.  Republican Commissioners Simington and Carr issued dissenting statements claiming that the applications were subject to preferential treatment by postponing FCC approval of certain investments by foreign entities, even though the entities with foreign interests will have special warrants with no equity or voting interests until that subsequent approval is obtained.  FCC Chairwoman Rosenworcel responded that Audacy’s bankruptcy reorganization is using the same process that the FCC approved in multiple prior cases, including the emergence from bankruptcy of broadcasting companies Cumulus, iHeart, and Alpha. 
  • As we discussed in last week’s update, the FCC announced that it took actions against several pirate radio broadcasters operating in the Miami and New York metro areas.  The FCC has now released the full text of these decisions (described below).  The decisions note a dissent from Commissioner Simington, presumably based on his statement in a recent case dealing with violations of the children’s television rules (which we noted in a weekly update last month) where he stated that he would dissent from all decisions imposing fines until the FCC examined if it still had the authority to issue such fines following a recent Supreme Court case that held that, in some instances, administrative agencies could not issue fines as those being fined had a right to a jury trial.
    • The FCC also issued Forfeiture Orders affirming its proposed fines against three other pirate radio operators as follows: a $120,000 fine against a Miami, Florida operator, a $358,665 fine against another Miami, Florida operator, and another $358,665 fine against a Miami-Dade County, Florida operator.  These pirate radio operators now have 30 days to pay the fines, or the FCC may refer the cases to the U.S. Department of Justice.  The FCC itself cannot sue to collect fines or take actions against individuals who ignore the penalties.  Instead, it must rely on the DOJ to enforce the penalties in Court.
    • The FCC separately issued a Notice of Illegal Pirate Radio Broadcasting against a Miami, Florida landowner for allegedly allowing a pirate to broadcast from its property.  The Bureau warned the landowner that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowner continues to permit pirate radio broadcasting from its property after receiving this notice.
  • The Media Bureau resolved several other cases where broadcasters were found to have violated FCC rules:
    • The Bureau proposed a $16,000 fine against the licensee of an Oregon AM station for two unauthorized transfers of control.  The Bureau found that the licensee failed to seek FCC consent before transferring its LLC membership interests to an employee for “sweat equity” earned by providing bookkeeping and administrative services.  The Bureau looked at the Purchase Agreement which called for a transfer upon full performance of the services (which had happened), plus a filing with the State of Oregon stating that the employee was now the sole owner, and found that these documents indicated that the transfer had taken place despite the parties’ subsequent amendment of their agreement to state that prior FCC consent was required for the transfer of the membership interests.  The Bureau also found that, based on their public representations in social media, on the stations’ website, and in the local press, the buyer then included her sisters in the control of the station before obtaining FCC consent for their ownership interests. 
    • The Bureau entered into a Consent Decree with a California LPFM station to resolve an investigation of several FCC rule violations including an unauthorized transfer of control, a failure of certain Board members of the station to resign from the Board of another LPFM station before commencing operations, and failure to broadcast post-filing notifications for its license renewal application.  The Consent Decree requires that the station pay a $9,000 civil penalty and enter into a compliance plan to ensure that future FCC rule violations do not occur.
    • The Bureau entered into a Consent Decree with a Tennessee Class A TV station to conclude its investigation of the station’s failure to comply with its Online Public Inspection File requirements (including its failure to upload 32 issues programs lists, 15 certifications of compliance with the commercial limits in children’s programming, and four children’s television programming reports), and its certification in its license renewal application, despite all of these missing documents, that it had complied with the public file rules.  The Consent Decree allows the grant of both the station’s license renewal and an application for the sale of the station to an unrelated party, if the licensee pays a $53,000 fine within 15 days of closing of the sale. 
    • The Bureau entered into a Consent Decree with a Virginia LPFM station to resolve the Bureau’s investigation of the station’s failure to comply with the FCC’s underwriting rules, based on allegations that the Station impermissibly promoted for-profit underwriters’ products or services and aired spots that contained comparative and qualitative descriptions, pricing information, calls to action, and inducements to buy products or services.  The decision also carefully reviewed a “co-op” arrangement that the station had with other local LPFM stations for sharing facilities, and another agreement where those stations employed a common agent to sell their underwriting, but found that, as these arrangements did not affect control over the programming, personnel, or finances of the station, they did not violate the rules.  The Consent Decree requires that the station pay a $1,000 fine and enter into a compliance plan to ensure that future FCC underwriting rule violations do not occur, and the station’s license renewal was granted for a “short-term,” only two years, so that the effectiveness of the compliance plan could be reviewed. 

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 a Report and Order permitting digital FM radio stations to operate at different power levels on their upper and lower digital sidebands and clarifying that. To initiate such service, a notification of digital FM operations must be made using the FCC Form 335-FM.  The Commission has postponed any decision on higher power levels for digital FM while more testing is done with the aviation industry to ensure that there is no interference to aviation communications which uses frequencies just above the FM band.  The FCC made one change from the draft version of the Order that the FCC made available a few weeks ago – expanding the requirement that prior authorization from the FCC for different sideband power levels would be needed from digital FM stations operating on frequencies 107.1 to 107.9 MHz, rather than simply 107.9 as initially proposed, again while further studies are done with the aviation industry.  The new Form 335-FM notification procedures require the Office of Management and Budget’s approval before becoming effective.   
  • The FCC took actions against several pirate radio broadcasters operating in Miami and the New York City area.  While the fines are significant in and of themselves, the decisions (the full texts of which have not yet been released), are also notable as reportedly Commissioner Simington dissented, questioning the authority of the FCC to impose fines for violations of its rules without a jury trial, based on a Supreme Court decision issued earlier this year.  What we know about the fines is set out below:
    • The FCC issued fines totaling $837,330 for three Miami pirate radio operators.  In January, the FCC proposed two $358,665 fines against two of these pirate radio operators for three days of violations and a $120,000 fine against the third pirate radio operator (we noted the proposals for these fine earlier this year in one of our weekly update here).  The pirate radio operators now have 30 days to pay the fines, or the FCC may refer the cases to the U.S. Department of Justice.  The FCC itself cannot sue to collect fines or take actions against individuals who ignore the penalties.  Instead, it must rely on the DOJ to enforce the penalties in Court.
    • The FCC also announced proposed fines totaling $1 million for three New York City area pirate radio operators as follows:  a $920,000 fine against an Irvington/Maplewood, New Jersey operator, a $40,000 fine against a Bronx, New York operator, and a $40,000 fine against a Spring Valley, New York operator. 
  • The Media Bureau issued a complicated decision enforcing its rural radio policy (see our article here raising questions about the continuing benefits of that policy) to stop two stations from moving from Caliente, Nevada to communities that would serve the St. George, Utah urbanized area.  In one case, the FCC had already granted permission for one successful applicant for a Caliente construction permit for a new FM station to move to Dammeron Valley, Utah in the St George urbanized area, and a subsequent channel change. When the permit holder sought another city of license change, the Bureau determined that allowing the move had been an error and issued an order to show cause to the permit holder asking for reasons why his permit should not be relocated to Caliente. The Bureau also dismissed a noncommercial FM station’s community of license change application to move from Caliente to Dammeron Valley as it would remove Caliente’s second local service, which the decision said was preferred (even though Caliente has a population of less than 1000 people) over a move into the St. George urbanized area which already has 25 other services.
  • The FCC’s Media Bureau and Office of Managing Director issued an Order to Pay or Show Cause to a New Jersey AM station proposing to revoke the station’s license unless, within 60 days, the station pays its delinquent regulatory fees and interest, administrative costs, and penalties, or shows that the debts are not owed or should be waived or deferred.  The station has an unpaid regulatory fee debt totaling $32,367.36 for fiscal years 2010, 2011, 2012, 2014, 2015, 2016, 2017, 2018, 2019, 2021, 2022, and 2023. 

On our Broadcast Law Blog, we took a look at the upcoming regulatory dates for broadcasters in October, which are all in effect following President Biden’s signing on Friday of the extension of federal funding through mid-December (setting up another federal funding fight in Congress later this year).

October is, on paper, another busy month of regulatory deadlines for broadcasters.  But there is again the looming possibility of a federal government shutdown beginning October 1 if Congress fails to fund the government for the coming year (or pass a “continuing resolution” to allow government agencies to function at their current levels).  While as of today there are reports of a plan to extend funding through December, until a continuing resolution is passed, the threat remains.  If a shutdown does occur, the FCC, the FTC, and the Copyright Office may have to pause their operations which may result in some of the regulatory deadlines discussed below being delayed.  However, in some cases agencies have leftover funding to keep them functioning for a few extra days.  Stay tuned to see if any of the dates below have to be rescheduled. [Update – 9/26/2024, 9:00 AM – a continuing resolution extending government funding through December 20 was passed late yesterday by both the House and the Senate averting, for now, the shutdown about which we were concerned. Thus, the deadlines listed below are in effect as scheduled]

Assuming this recurring issue is resolved, let’s look at some of the October dates and deadlines, starting with the routine dates of importance to broadcasters. October 1 is the deadline for radio and television station employment units in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Missouri, Northern Mariana Islands, Oregon, Puerto Rico, the U.S. Virgin Islands, and Washington with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ Online Public Inspection Files.  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.  Be timely getting these reports into your station’s OPIF, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).

Continue Reading October 2024 Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists, Annual EEO Public File Reports, ETRS Form One, Comment Deadlines, 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 announced that it has corrected its CORES database which had overstated the regulatory fees to be paid by many radio stations.  As we discussed on our Broadcast Law Blog here, this announcement lifts the FCC request from late last week asking radio stations to wait to pay their regulatory fees while the problem was being fixed.  With the resolution of the problem, regulatory fees remain due September 26. The FCC said that it will contact those broadcasters who paid an incorrect fee amount before the issue was discovered to “reconcile” the improper payments.
    • The FCC also released two Fact Sheets regarding regulatory fees.  The first Fact Sheet identifies general regulatory fee exemptions, including for nonprofit entities designated under Section 501 of the Internal Revenue Code, noncommercial educational FM and TV stations, and broadcast licensees whose total fee obligations are “de minimis,” meaning that they total $1,000 or less. The second Fact Sheet provides guidance on regulatory fee payments by entities regulated by the FCC’s Space Bureau, including for earth stations, noting that fees are due only for earth stations with transmit-only or transmit/receive antennas and not for earth stations with receive-only antennas. 
  • The House Committee on Energy and Commerce approved the House version of the AM Radio for Every Vehicle Act with a vote of 45-2.  As we discussed here, here, and here, the bill requires that automobile manufacturers keep AM radio in the car dashboard.  The bill, which closely matches the bill approved by the Senate last year, can now advance to the House floor for a vote.  Reconciled versions of this bill (ones with identical language) must be approved by the full House and full Senate before Congress adjourns at the end of the year.  The bill enjoys broad bipartisan support in both chambers, so it is possible that it will be passed alone or be made part of other legislation that will be approved before year’s end.
  • Numerous questions have been raised in recent weeks about the FCC being used to punish broadcasters for political reasons. At a House Oversight Committee hearing this week, FCC Commissioner Carr responded to Democratic lawmaker’s questions regarding his position on former President Trump’s call to revoke ABC’s FCC licenses for its handling of the presidential debate.  Carr stated that all decisions of his decisions at the FCC were consistent with federal law and the First Amendment.  FCC Chairwoman Rosenworcel also responded to Senators Markey and Wyden’s inquiry on the subject by stating that the FCC would not use its licensing authority to retaliate against a broadcaster over the content of its coverage.  Last week, FCC Commissioner Simington also responded to the Senate inquiry, stating that he was committed to making broadcast license determinations fairly and objectively in a manner consistent with the First Amendment, and suggesting that this same policy be applied to a Fox television station with a long-pending renewal application whose processing has been delayed by objections about the actions of Fox News’ cable operations. 
  • The FEC declined to adopt specific rules regulating the use of Artificial Intelligence in political advertising.  Instead, the FEC adopted a “technology neutral” case-by-case approach where it will look to see if the use of AI in any political ads violates the FEC’s existing rules prohibiting fraudulent misrepresentations by one federal candidate or committee of the speech or writing of another candidate or committee.  As we discussed here, there has been much debate at the FEC regarding whether the agency has the authority to regulate AI use in political ads, and this bipartisan decision represents an apparent compromise on the issue.
    • Comments were due September 19 in response to the FCC’s July Notice of Proposed Rulemaking proposing that broadcasters and cable operators be required to disclose AI use in political ads both on the air and in their Online Public Inspection Files.  Several broadcasters (see here, here, here, and here) and media industry groups (see here, here, here, and here) object to the FCC’s proposal for reasons including the disproportionate burden broadcasters and cable providers would bear, while leaving undisturbed a much larger concern, AI-generated deepfakes on social media.  These commenters also argue that the FCC lacks authority to regulate AI use in political ads and its proposals raise First Amendment issues.  In contrast, several public interest groups (see here, here, here, and here) support the FCC’s proposal, noting that deepfakes in political ads are a threat to the democratic electoral process, and urge the FCC to expand its proposals to include “cheapfakes” (false and misleading content not created using generative AI).
  • The FCC released a Small Entity Compliance Guide summarizing its new closed captioning accessibility rules for video programming, which it adopted in a July Report and Order.  As we discussed here and here, the new rules require device manufacturers and Multichannel Video Programming Distributors to make closed captioning display settings “readily accessible” to individuals who are deaf or hard of hearing.  The requirement applies to all U.S.-manufactured devices using a picture screen that receives or plays back video programming simultaneously with sound (such as televisions, smartphones, tablets, and computers).  MVPDs must comply with the requirement if they provide their customers with covered devices to use their services.  While the Order became effective on September 16, MVPDs do not have to comply with the new requirements until the later of August 17, 2026 (two years after the Order’s publication) or after the Office and Management Budget finishes its review of the new rules.

On our Broadcast Law Blog, we discussed how the recent use of the rural radio policy by the FCC’s Media Bureau to block a move of a silent AM radio station to a new city of license raises the question of whether prohibiting radio station moves from rural to urban areas remains in the public interest given other programming options now available in rural markets. 

Our recent posts have been obsessed with the FCC’s regulatory fees and the issues with the CORES fee filing system miscomputing the fees for many radio stations (an issue that seemingly has now been resolved so that payments can be made by the September 26 deadline).  In doing so, we have minimized our coverage of some of the other interesting decisions and regulatory activity from the FCC and other agencies that affect broadcasters.  One of those actions involved the proposal of a now-silent AM station to move from the small Alabama community of  Bay Minette, Alabama to another small Alabama community, Spanish Fork.  The Commission issued a letter saying that they could not grant the application as the proposal would move the station from a rural area to a community within an urbanized area – the Fairhope-Daphne urbanized area.  The FCC found that this move would violate the FCC’s rural radio policy unless a showing could be made that there were public interest reasons to rebut the application of the policy in this case.  The letter gave the applicant 30 days to attempt to rebut the presumption against the move.   

The rural radio policy was adopted more than a decade ago to, in theory, preserve program diversity in rural areas by restricting the move of radio stations into more urbanized areas through community of license changes.  The policy restricts rural stations from changing their city of license to a location from which the station could place a principal city contour over 50% of any urbanized area (see our articles here and here for more details on this policy).  As the proposed move in the Alabama case would allow the AM to cover more than 50% of the Fairhope-Daphne urbanized area with its proposed new 2 mv/m contour, the change would be prohibited unless a special showing can be made overcoming the presumption against such moves, even though the move would allow the AM station to cover over 250,000 more people than it currently does.  The Commission notes that it also disfavors removing a second local service (a service licensed to a particular community) from a community of over 7,500 people.  As Bay Minette has over 7,500 people, and the town has only one other existing radio station, the move of the AM station would also run afoul of this policy.  These presumptions are very difficult, if not impossible, to overcome absent some showing that the FCC’s technical analysis is incorrect. 

Continue Reading FCC Applies Rural Radio Policy to Block Move of Silent AM Station to New City of License – Do We Still Need a Rural Radio Policy? 

The FCC yesterday released a Public Notice announcing that its CORES system, through which regulatory fees are submitted, has been updated and the incorrect regulatory fee amounts for radio stations have been corrected.  As we wrote last week, the FCC asked that radio broadcasters suspend their fee filings when it became apparent that many radio fees had been miscomputed and CORES reported those fees to be much higher than they were supposed to be.  The Public Notice says that problems that caused the misstated fees have been corrected, and that radio operators can now submit their fees. 

The Public Notice says that fees are still due by September 26 at 11:59 PM EDT.  No extension of time appears to have been granted.  The Public Notice also says that the FCC will “reconcile” with radio broadcasters who paid an incorrect amount before the issue with CORES was discovered -seemingly indicating that refunds will be provided to those who paid more than was due.  The FCC says that they will be reaching out to those broadcasters who paid incorrect amounts before the CORES problem was discovered. 

Continue Reading FCC Announces Filing of Radio Regulatory Fees is Back On – Due Date Still September 26

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 that annual regulatory fees must be paid through its CORES database by 11:59 p.m., Eastern Time, on September 26.  The FCC also issued a Public Notice explaining the procedures for making payments, including limits on credit card payments.  For broadcasters, the FCC’s Media Bureau released a Fact Sheet explaining what is owed by commercial broadcasters.  The FCC released another Fact Sheet explaining the procedures for seeking a waiver or deferral of the fees.  Paying regulatory fees late can bring substantial penalties (25% penalty plus interest), so broadcasters should immediately review these documents and begin to prepare their fees so that they can be timely submitted.  However, incorrect FCC calculations caused many stations’ fees to be stated in the FCC CORES system through which the fees are to be submitted, often stating the fees as being substantially higher than they were supposed to be (fees were to have decreased for most radio stations from the amounts paid last year).  The FCC is determining how to correct its CORES fee filing system. In the meantime, the FCC has posted a notification in the CORES database instructing AM and FM broadcasters not to make any fee payments until it has resolved the issue – which it expects to occur early next week.    See our Broadcast Law Blog articles here and here regarding broadcasters’ regulatory fee obligations, including our discussion of the glitches resulting in the FCC databases providing incorrect information about how much radio stations owe. 
  • The FEC announced that, at its next meeting on September 19, it will vote on a Notification of Disposition circulated by four FEC Commissioners proposing that the FEC not open a rulemaking proceeding to adopt specific rules regulating the use of AI in political ads.  Instead, the draft Notification would adopt a policy of deciding on a case-by-case basis whether any AI use in political ads violates the FEC’s existing rules prohibiting fraudulent misrepresentations by one federal candidate or committee of the speech or writing of another candidate or committee.  As we discuss in our article here, there has been much debate at the FEC regarding whether the agency has the authority to regulate AI use in political ads, and this item appears to represent a compromise on the issue among a majority of the FEC Commissioners.
  • The NAB and the Society of Broadcast Engineers released a self-inspection checklist for AM stations.  This follows the NAB and SBE’s release of self-inspection checklists for FM and TV stations, which were announced at the NAB Show in April.  As the FCC discontinued preparing self-inspection guides in 2010, these new checklists provide broadcast stations a comprehensive outline for reviewing their compliance with the FCC’s rules.  NAB members can access the checklists here, and SBE members can access the checklists here. 
  • The FCC announced that October 11 is the deadline for all “U.S.-based foreign media outlets” to register with the FCC.  These outlets are companies which are backed by a foreign government or political party that provide video programming to MVPDs.  These entities must notify the FCC of their ownership structure and their relationship with the foreign government or political party, including whether the outlet receives funding from that government or political party.  The FCC is required to report to Congress every six months on the operations of U.S.-based foreign media outlets,  The FCC will submit its next report by November 9.  
  • A Field Office of the FCC’s Enforcement Bureau issued a Notice of Violation against a Pennsylvania LPFM station after FCC agents found that the station was operating from an unauthorized site, over 5 miles from its licensed site, and almost a mile from a site authorized in a construction permit.  The station now has 20 days to respond to the Notice by detailing the steps it will take to correct the violation and prevent its recurrence.  The FCC will decide what action to take against the licensee after the response is filed. 
  • The Media Bureau took several actions against broadcasters for violations of FCC rules:
    • The Bureau entered into a Consent Decree with a group Missouri, Illinois, and Virginia radio stations to conclude its investigation of unauthorized transfers of control resulting from several changes in the stations’ corporate ownership occurring since 2009, including the buy-out of certain shareholders, the transfer of ownership interests between shareholders, and the conversion of certain companies owning shares from LLCs to corporations .  The Consent Decree requires that the stations pay a $15,000 penalty and enter into a compliance plan to ensure that similar violations do not occur in the future.
    • The Bureau fined an Idaho TV translator $1,000 for the late filing of a license application informing the Commission that it had completed construction of facilities authorized by a construction permit granting a change in channels.  The license application was filed over two years after the construction was complete (such applications are due upon the completion of construction).  The fine also cited the station’s operation without FCC authorization after the construction permit expired. The Bureau reinstated the translator’s construction permit and accepted its license application, finding that the loss of the translator would deprive viewers in the rural area it serves of access to programming of the translator’s network affiliated primary station.
    • The Bureau entered into Consent Decrees with a Wyoming AM station and an Idaho FM station for failing to comply with their Online Public Inspection File obligations, requiring the stations to enter into compliance plans to prevent future OPIF violations.

As we noted on our Blog earlier this week, there were reported problems with the system for filing annual regulatory fees.  Fee amounts in the FCC’s CORES system, where the fee payments are made, were not corresponding in some cases to the FCC’s look-up system for checking what a station’s regulatory fees were supposed to be.  In addition, many radio stations were reporting substantial increases in their fees, when those fees were supposed to be decreasing.  We had initially attributed the increase in fees to a change in the census data used, but it appears that this benign excuse was not accurate – instead the problem appears to have been with the FCC’s CORES database itself where the contours of many stations were computed incorrectly.  This improper calculation resulted, in most cases, adding more population to a station’s predicted service area and pushing the station into a higher fee tier with greater fees.  The FCC now appears to have admitted the issue – and it has asked broadcasters to hold off on paying their fees until the filing system is corrected.

It may be that Friday the Thirteenth was really bad luck for the FCC, as the Commission recently posted the following note in its CORES filing system:

NOTICE: The FCC is continuing to do its due diligence to reevaluate the population count information for AM and FM broadcasters for FY 2024 regulatory fees.  We expect to have this situation resolved early next week.  In the meantime, we request that AM and FM broadcasters do not make any payments in CORES.  Thank you for your patience.      

We expect that the FCC will be making every effort to quickly resolve this issue so that the fees can still be paid this month before the October 1 start of the new fiscal year.  And, thus far, the FCC has not extended the September 26 filing deadline for the fee payment.  Stay alert for more information from the FCC about the correction of this problem so that you can pay your fees quickly once the issues are resolved. 

Also be sure to check carefully all other information in the FCC filing system.  We are told that, in some cases, FM translators were listed as full-power stations, and that stations were listed as being exempt from fees that really were not.  There may well be other issues that arise as well.  Look carefully at your fees, make sure that all of your stations are included before you make your payment, and question anything that does not look right. 

After postponing consideration of a proposal (which we wrote about here) from the Republican Commissioners at the Federal Election Commission to reject calls for a rulemaking to look at whether to require that there be labeling of political ads generated by artificial intelligence that falsely depicts a candidate, the AI item is back on the FEC’s agenda for its September 19 meeting.  This time, there is a big difference.  On the agenda for consideration is not only the proposal from the Republican Commissioners to reject the proposed rulemaking out of hand until Congress provides more guidance on the subject, but also a proposal that appears to have the backing of the three Democrats and at least one of the Commissioners who had also signed on to the Republican proposal.  That apparent compromise proposal, while also rejecting the proposal to open a new rulemaking on the subject, would decide that, under existing FEC rules and legislative authority, there would be instances where the use of AI to depict a candidate could already be prohibited, and thus complaints about the use of AI in political ads should be evaluated on a case-by-case basis under the FEC’s current policies. 

This new draft decision looks at the FEC’s current laws and rules that prohibit a candidate or their agent from purporting to speak, write, or act for another candidate or political party on a matter that is damaging to the other candidate or party.  Those rules also  prohibit any person from falsely representing that they are speaking, writing, or acting on behalf of a federal candidate or a political party for the purpose of soliciting contributions.  This compromise proposal looks at these current prohibitions and notes that they do not specify the technology that could be used to falsely speak or act on behalf of another candidate or party – and thus the use of AI in a way that would violate these existing rules could already be sanctioned by the agency.  Thus, this proposal concludes, no additional proceeding would be needed – instead cases would be decided based on their facts as they arise.

As explained in this new proposal:

[I]t does not matter whether a regulated person uses any particular form of technology, including AI, in order to “fraudulently misrepresent himself or any committee or organization under his control as speaking or writing or otherwise acting for or on behalf” of another “candidate or political party or employee or agent” or to engage in the “[f]raudulent solicitation of funds” by “misrepresent[ing] the person as speaking, writing, or otherwise acting for or on behalf of any candidate or political party or employee or agent thereof for the purpose of soliciting contributions or donations.” 52 U.S.C. 30124(a)-(b).  The legal question is whether the actor fraudulently holds himself or herself out as “acting for or on behalf of any other candidate or political party or employee or agent thereof.” Id. This fraud may be accomplished using AI-assisted media, forged signatures, physically altered documents or media, false statements, or any other means. The statute, and the Commission’s implementing regulation, is technology neutral. 

We’ll be watching as this proposal plays out at the FEC meeting next week, and we will be looking for indications as to how any decision might affect the use of AI in ads during this hotly contested election season.