For the last few years at this time of the year, we’ve departed from our usual coverage of legal and policy issues to talk about something else – broadcasters giving back.  With Giving Tuesday upon us, we wanted to urge our readers to consider ways to give back to our industry.  I guess it is now a tradition, so we’ll do it again this year and suggest some of the many ways we can express our thanks to the industry in which we work. 

Broadcasters have long been known for their service to their communities, service benefitting individuals and groups across the country.  While broadcasters are always giving back to their communities and should be celebrated for that, those of us who make our living in some aspect of the industry should recognize that there are plenty of ways for us to give back as well – both to those associated with the industry who have fallen on hard times, and to those who need assistance in obtaining education and training to enter the media industry we so appreciate.  We should all be thankful for jobs, friends, and good fortune. But we should also ourselves give back where possible.  In the broadcast industry itself, there are many groups doing good work.

Continue Reading Giving Back to the Broadcast and Media Industries on Giving Tuesday

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 U.S. Court of Appeals for the Fifth Circuit announced that oral argument in the appeal of the FCC’s reinstatement of the FCC Form 395-B is “tentatively scheduled” for the week of February 3, 2025.  The FCC reinstated the Form 395-B in February 2024.  The Form requires a yearly reporting on a station’s employees, broken down by race and gender and employment position (see our Broadcast Law Blog article about that decision here). The effective date of the reinstatement is on hold while the new form is being reviewed (see our article on the delay of the effective date here).  Appeals by several broadcast groups are being heard by the Fifth Circuit.  The appeals argue that the report is unconstitutional because it unlawfully pressures broadcasters to engage in race- and sex-conscious employment practices.  As we discussed here, no matter how the Court rules, the soon-to-be Republican-led FCC may revisit this decision as FCC Chairman designate Carr recently tweeted on X that the agency, under his leadership, would deprioritize “DEI” (Diversity, Equity, and Inclusion) efforts.
  • The FCC’s Media Bureau announced that comments are due December 26 (with replies due January 9) responding to the National Association of Broadcasters’ request for a rulemaking  to change the rule that was to be effective on the November 26 requiring TV stations to provide an aural description of non-textual emergency information, such as maps or other graphic displays, conveyed outside of station newscasts. The NAB requests that broadcasters be able to comply with the rule by providing “textual crawls that provide emergency information duplicative or equivalent to the information conveyed by the visual image.”  Otherwise, the NAB argues, many stations will cease airing visual images regarding emergencies due to their inability to comply with the rule. For more on the NAB petition, see our article here.  The NAB, in its rulemaking proposal, also requested an 18-month extension of the November 26 effective date while the FCC considers the rulemaking request. As this week’s FCC announcement did not address the request to extend the effective date of the rule, the NAB on Wednesday filed a request asking for a retroactive extension while its rulemaking request is being considered.
  • The Media Bureau also reminded broadcasters of a filing freeze starting at 12:01 a.m. EST on December 3, 2024 for all full power TV station channel change petitions and for all full power and Class A TV station minor and major modification applications.  The freeze is to allow for a filing window opening at 12:01 a.m. EST on December 4, 202 for new noncommercial educational TV stations in communities in Alabama, Alaska, California, Idaho, Iowa, New Mexico, Oregon, Texas, and Virginia.  In October, the Media Bureau announced filing procedures for the this filing window and also imposed a filing freeze beginning October 10 on petitions seeking to add new reserved NCE channels to the Table of TV Allotments – in addition to the filing freezes beginning on December 3.  The filing freezes will continue until the filing window closes at 6:00 p.m. EST on December 11, 2024.  See our discussion here for more on the NCE filing window and the filing freezes.
  • The FCC released a Small Entity Compliance Guide summarizing the FCC’s rules governing “Next Generation” broadcast TV stations (Next GenTV or ATSC 3.0), including the ATSC 3.0 technical requirements, interference protection requirements, cable/satellite carriage and simulcasting rules, and recordkeeping and reporting requirements.
  • The Media Bureau granted the substitution of Channel 11, at Lubbock, Texas for Channel 35, and the substitution of Channel 35, at Lubbock, Texas for Channel 36, which allows two Lubbock TV stations to “swap” their channels to enable the Channel 35 station to replace its failing equipment with that of the Channel 11 station.  The Bureau ordered the stations to file minor change applications to move to their new channels within ten days of the Order’s publication in the Federal Register.

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.

  • President-elect Donald Trump announced that FCC Commissioner Brendan Carr will serve as the next FCC Chairman when Trump takes office on January 20, and FCC Chairwoman Rosenworcel announced that she will be departing the FCC that same day.  Chairwoman Rosenworcel and Commissioners Gomez, Starks, and Simington issued statements congratulating Carr.  Commissioner Gomez also issued a statement thanking Chairwoman Rosenworcel for her leadership.  See our article on our Broadcast Law Blog for a discussion on what Carr’s regulatory priorities may mean for broadcasters.
  • The FCC released an Order adopting permanent rules permitting broadcasters to originate programming on FM boosters for up to three minutes per hour for news, advertising, or other content different than that on the primary station (see our article providing more details about this permitted service, written in April when the FCC initially approved this use of  the “geocasting” or “zonecasting” technology).  When the newly adopted rules become effective, initiating such service on an authorized booster will not require FCC prior approval.  Instead, broadcasters only need to notify the FCC, using a form to be developed by the FCC’s Media Bureau, of their intention to begin program origination on an authorized booster 15 days before that operation begins.  The Order also adds rules formalizing other restrictions that were adopted in the FCC’s April order – including capping the number of originating boosters that a single FM or LPFM station can operate at 25 and extending the FCC’s political advertising and political file requirements to originating boosters.  Many of these new rules require the Office of Management and Budget’s approval before becoming effective, so watch for a future announcement of their effective date. 
  • The National Association of Broadcasters requested an 18-month extension of the November 26 deadline to comply with the FCC’s rule requiring TV stations to provide an aural description of non-textual emergency information, such as maps or other graphic displays, conveyed outside of station newscasts.  The extension is requested to permit the FCC to consider NAB’s proposal to amend the rules.  As we discussed, here, here, and here, and here, the FCC has extended this deadline numerous times since its 2013 adoption because of the unavailability of technology needed for stations to comply.  The NAB now requests a rule change allowing broadcasters to meet the FCC’s requirements if they provide “textual crawls that provide emergency information duplicative or equivalent to the information conveyed by the visual image.” Otherwise, NAB argues, many stations will cease airing visual images regarding emergencies if the rule takes effect later this week.  See our article on our Blog for more on the NAB’s petition.
  • The FCC released a draft Notice of Proposed Rulemaking proposing to update several TV and radio rules.  Many of the proposed changes deal with minor changes to rules for processing applications or they clarify or update the language of ambiguous rules.  Some of the more notable proposals include: (1) allowing AM stations seeking to improve their facilities at their current transmitter sites to request power increases of less than 20% (to eliminate burdens on FCC staff, current rules require do not allow a power increase of less than 20% to be considered by the Commission); (2) allowing directors or designated employees to sign FCC applications – not just officers; and (3) allowing STAs for technical or equipment problems to be granted for 180 days, rather than the 90 days currently permitted by the rules.  The FCC will vote on the draft NPRM at its December 11 Open Meeting.
  • The FCC’s Media Bureau reminded broadcasters that its audio description rules will take effect on January 1, 2025 for TV stations affiliated with the Top 4 Networks (i.e., ABC, CBS, Fox, and NBC) operating in Nielsen Designated Market Areas (DMAs) 101 through 110: (101) Tri-Cities, TN-VA; (102) Reno, NV; (103) Greenville-New Bern-Washington, NC; (104) Davenport-Rock Island-Moline, IA-IL; (105) Tallahassee-Thomasville, FL-GA; (106) Lincoln & Hastings-Kearney, NE; (107) Evansville, IN; (108) Ft. Wayne, IN; (109) Johnstown-Altoona-State College, PA; and (110) Augusta-Aiken, GA-SC.  In 2023, the FCC expanded its audio description requirements to Top 4 Network-affilated TV stations operating in DMAs 101 through 210 beginning with DMAs 91-100 on January 1, 2024, and ending with DMAs 201-210 on January 1, 2035 (see our discussion here).  Audio description provides narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue, for the benefit of individuals who are blind or visually impaired.
  • The Media Bureau also entered into a Consent Decree with an Indiana TV station for failing to timely file its license application for its digital replacement translator (DRT) and operating its DRT without FCC authorization for more than four years after it had completed construction of the DRT, including for 18 months after its DRT’s construction permit had expired.  DRTs allow TV stations to continue providing service to viewers that have lost service following a digital transition.  As with the construction of most broadcast facilities, an application for license must be filed when construction of new facilities authorized in a DRT construction permit are completed.  The Consent Decree requires that the station pay a $8,500 penalty and enter into a compliance plan to ensure that future violations do not occur.

President-elect Trump this week selected sitting FCC Commissioner Brendan Carr to be the new Chairman of the FCC starting on Inauguration Day, January 20.  As a sitting Commissioner, Carr can become permanent Chair immediately – no Senate confirmation is necessary.  Current FCC Chair Jessica Rosenworcel announced that, as is traditional, she will not only step down from her position as Chair on January 20 and will also leave the Commission on that date – leaving one empty seat on the FCC to be filled by the new President (to permanently fill that vacancy,  Senate confirmation is needed).  Until that third Republican seat is filled, Chairman Carr will be operating with a Commission split 2-2 on party lines, suggesting that initially any major Commission actions will need to be ones that are bipartisan.  However, when Commissioner Carr becomes Chair, he can appoint the heads of the Bureaus and Divisions at the FCC that do most of the routine processing of applications and issuing most of the day-to-day interpretations of policy.  As Carr has been at the FCC since 2012 and has served as a Commissioner since 2017, one would assume that he already has in mind people to fill these positions – and thus his team should be able to hit the ground running.  What policies should broadcasters and those in the broader media world be looking for from a Carr administration at the FCC?

Immediately after the election, we wrote this article about several of the specific FCC issues where we anticipated that a Republican administration would move forward with policies different than those that have been pursued by the current administration.  Since his nomination, we have seen nothing that would suggest that the issues that we highlighted earlier in the month will not be on the Carr agenda.  In our last article, we noted that the FCC could be expected to take a different tact on the reinstatement of FCC Form 395-B, the EEO form that would require broadcasters to break down their employees by employment position and report on the gender, race, and ethnicity of the employees in each employment category.  In one of his first tweets on X after his nomination was announced, Carr said that the FCC would no longer be prioritizing “DEI” (Diversity, Equity, and Inclusion) efforts – seemingly confirming, among other things, that a reversal of the action on the Form 395-B could be in the works (which could easily be done, as there are pending Petitions for Reconsideration of the reinstatement along with pending appeals in the courts).

Continue Reading Brendan Carr to Become Next FCC Chair – What is Next for Regulation Affecting Broadcasters? 

Since 2015, TV broadcasters that transmit any emergency information visually in text during non-news programming have been required to convert that information into an audio broadcast on a station’s Secondary Audio Programming channel (its “SAP channel”).  The SAP channels are usually used for Spanish and other non-English translations of the audio on TV programs.  As we have written before (see our articles here, here, here and here), TV stations are required to take textual information (like textual crawls) containing information about a current emergency and to provide those messages in audio on SAP channels so that visually impaired viewers can get the emergency information. The blind and other individuals with visual impairments are notified of the emergency information that is contained in a crawl by audible tones that stations air when they are providing such information during a non-news program. 

The rule also provides that TV stations must describe non-textual emergency information (like weather radar images) on the SAP channel when they appear during non-news programming.  But because broadcasters have no way to make such a conversion of graphic images into speech (short of having a person sitting in the studio at all times to make the audio description live if and when necessary), the FCC has agreed on multiple occasions to delay the effective date of that requirement – most recently until November 26, 2024 (see our note in a weekly update here).  With that deadline now looming, and with no obvious technical solutions to make such descriptions available automatically, the NAB last week filed a Petition for Rulemaking and Extension of Waiver asking that the FCC further extend the effective date by 18 months while it considers new rule proposals for making this information available.  The NAB notes that, as there is no technical solution on the immediate horizon that can timely provide reliable descriptions of graphical information, if some relief is not granted, stations will be forced to stop providing emergency information in graphical form outside of their news programming. 

Continue Reading NAB Requests Further Delay in Requirement that TV Stations Provide Audio Description of Non-Textual Emergency Information While Rule Changes are Considered

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 comments are due January 13, 2025, in response to proposed community of license changes for several radio stations.  The proposed changes are: (1) KBFL-FM from Buffalo, Missouri to Fair Grove, Missouri (here); (2) KPWB-FM from Piedmont, Missouri to Marquand, Missouri (here); (3) KVJB(FM) from Las Animas, Colorado to Swink, Colorado (here); (4) KYMO-FM from East Prairie, Missouri to Bertrand, Missouri (here); (5) WPNA-FM from Niles, Illinois to Evanston, Illinois (here); (6) KCAY(FM) from Dammeron Valley, Utah to Enterprise, Utah (here); and (7) WLJL(FM) from Riverside, Alabama to Lincoln, Alabama (here).
  • The FCC’s Media Bureau announced updated pleading deadlines for the Paramount-Skydance Media transfer applications after amendments were filed to revise its proposed post-merger ownership structure.  As we noted in a previous weekly update (here), in September, Paramount filed transfer applications proposing the company’s merger with Skydance Media, LLC which originally proposed that billionaire Larry Ellison would hold a controlling stake in the company.  The amended applications now propose that David Ellison, Larry Ellison’s son, will hold a controlling stake in the company, in addition to serving as its Chairman and CEO.  Petitions to deny the amended applications are now due December 16, oppositions to any petitions to deny filed are due January 2, 2025, and replies to any oppositions filed are due January 13, 2025. 
  • The FCC submitted its required semi-annual report to Congress on U.S.-based foreign media outlets.  The John S. McCain National Defense Authorization Act for Fiscal Year 2019 (NDAA) requires certain U.S.-based foreign media outlets to register with the FCC, and for the FCC to report those registrations to Congress every six months.  Registration is required by entities that are agents of a foreign government and produce or distribute video programming transmitted, or intended for transmission, by multichannel video programming distributors in the United States.  In this report, the FCC stated that no U.S.-based foreign media outlets registered with the agency between April 2024 and October 2024.
  • The FTC announced that January 14, 2025 is effective date of its “Click to Cancel Rule,” which amends its existing “Negative Option Rule” by requiring sellers to allow consumers to easily cancel their enrollments in subscriptions and services with “negative options.”  As we discussed in previous weekly updates here and here, the amended rule prohibits sellers from (1) misrepresenting the terms and conditions of goods or services with a negative option; (2) failing to clearly disclose material terms for goods or services with a negative option before charging a consumer; (3) failing to obtain a consumer’s consent to the negative option before charging the consumer; and (4) failing to provide consumers with an easy way to cancel the product or service.  While the Click to Cancel Rule will take effect on January 14, 2025, compliance with the new rule will not be required until May 14, 2025.
  • The Media Bureau proposed a $6,500 fine against a Florida LPTV station for filing its license application late and operating without FCC authorization for over two and a half years after it completed construction of its facilities.  LPTV stations are supposed to file license applications providing information about any new facilities that they have constructed pursuant to a construction permit before they commence operations with those new facilities.  The Bureau noted that while it normally imposes a $3,500 fine for such violations, an increased fine was warranted because of the station’s lengthy period of time operating without a license. 

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.

  • On our Broadcast Law Blog, we reviewed  many of the broadcast issues pending before FCC that could be affected by the transition to Republican leadership as a result of the change in administration because of Tuesday’s presidential election.  Among the issues that could be impacted are everything from the local ownership rules to the EEO Form 395-B, and from AI in political ads to general attitudes toward enforcement and regulation. 
  • “Pencils Down” letters were sent to FCC Chairwoman Rosenworcel by Republican Congresswoman McMorris Rodgers (see here) and Republican Senator Cruz (see here), the ranking Republicans on the House and Senate committees that have principal oversight responsibility over the FCC.  These letters requested that the FCC cease work on all partisan or controversial proceedings before the agency during the transition period between now and January 20, Inauguration Day, the start of the new Trump Administration.  FCC Commissioner Carr, who is considered to be a favorite for Trump’s pick as the new FCC Chairman, also issued a statement calling on the FCC Chairwoman to cease work on all partisan or controversial matters during the transition period.
    • A similar “Pencils Down” letter was also sent by McMorris Rodgers to FTC Chairwoman Khan, requesting that the FTC stop work on all on all partisan or controversial proceedings during the transition and focus only on non-partisan, consensus issues.
  • Commissioner Carr has seemingly called for an FCC investigation into whether NBC violated the FCC’s equal time rules by broadcasting an appearance by Vice President Harris on Saturday Night Live the weekend before the election.  The equal time rule requires a broadcaster to provide free airtime, on request, to opposing candidates when the broadcaster allowed a candidate’s appearance outside of news interviews or news coverage.  NBC provided President-elect Trump airtime during a NASCAR race on the Sunday before the election and later during the post-game show on Sunday Night Football. 

Also on our Broadcast Law Blog, we discussed the implications of the SESAC rates for commercial radio announced by the RMLC the week before last. As we noted in last week’s weekly summary and discussed in more detail in the blog article, RMLC declared the arbitration decision to be a “win,” despite modest increases in the rates, as SESAC had been asking for far higher rates, attempting to use the GMR agreements signed in 2022 by most commercial radio operators as a benchmark for their requested higher rates. 

With the election over, broadcasters and their Washington representatives are now trying to decipher what the next administration will have in store at the FCC and other government agencies that regulate the media.  Already, the DC press is speculating about who will assume what positions in the government agencies that make these decisions.  While those speculations will go on for weeks, we thought that we would look at some of the issues pending before the FCC affecting broadcasters that could be affected by a change in administration.

There are two issues presently before the courts where the current Republican Commissioners dissented from the decisions which led to the current appeals. The FCC’s December 2023 ownership decision (see our summary here) is being appealed by both radio and television interests, arguing that the FCC did not properly relax the existing ownership rules in light of competition from digital media, as required by Congress when it established the requirement for Quadrennial Reviews to review the impact of competition and assess whether existing radio and TV ownership rules remain “necessary” in the public interest.  While briefs have already been filed in that case, it will be interesting to see how the new administration deals with the issues raised, as both sitting Republican Commissioners dissented, saying that the FCC should have considered digital competition in substantially relaxing those rules (see Carr dissent here and Simington Dissent here).  Even if the change in administration does not change the Commission’s position in court, the 2022 Quadrennial Review has already been started (see our article here), so a new administration already has an open proceeding to revisit those rules.

Continue Reading How FCC Regulation of Broadcasters May Change in a New Administration  – Looking at the Pending Issues

In a Press Release issued on November 1, the Radio Music License Committee announced the results of its arbitration with SESAC.  Despite the arbitrators’ decision that rates for commercial radio broadcasters are going up modestly, RMLC declared the decision a win.  How can an increase in royalties be a win?  Let’s provide some background on this decision and why the radio industry may breathe a sigh of relief.

First, it is important to set the background for the decision.  As we wrote here, in 2015, RMLC and SESAC settled an antitrust lawsuit brought by RMLC, agreeing that rates for the public performance by commercial radio broadcasters of the catalog of SESAC music would be set by binding arbitration.  Every four years, a proceeding is held to set the royalties to be paid by a broadcaster for music used in its over-the-air programming and on internet streams of that signal. 

The royalty currently paid by commercial radio stations was set by a settlement between RMLC and SESAC before arbitration in 2020 (see our article here).  That agreement, under which music radio stations have been paying .2557% of revenue, expired at the end of 2022.  As RMLC and SESAC could not mutually agree to new royalties, the recent arbitration was held to set royalties for the period from January 1, 2023 through December 31, 2026.  The decision announced on Friday set those royalties at .2824% of revenue.  Why is this increase from .2557% to .2824% considered a win?

Continue Reading RMLC Announces Arbitration Decision on SESAC Royalties for Commercial Radio Stations for 2023-2026