The lowest unit rate window for the November 5 general election opens today, September 6.  With that date in mind, we thought that it was a good idea to review the basic FCC rules and policies affecting those charges. In this election, with the Presidency and control in both houses of Congress at stake as well as many state offices, advertising on broadcast stations, particularly those in some battleground states, is already in great demand by both candidates and issue advertisers.  Your station needs to be ready to comply with the FCC’s political advertising rules and the rates that apply to each of these groups. Lowest unit charges (or “Lowest Unit Rates”) guarantee that, in the 45 days before a primary and the 60 days before a general election, legally qualified candidates get the lowest rate for a spot that is then running on the station within any class of advertising time running in any particular daypart. Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as your most favored advertiser gets for buying hundreds of spots of the same class. But there are many other aspects to the lowest unit rates, and stations need to be sure that they get these rules right.

It is a common misperception that a station has one lowest unit rate, when in fact almost every station will have several, if not dozens, of lowest unit rates – one lowest unit rate for each class of time in each daypart. Even at the smallest radio station, there are probably several different classes and dayparts for advertising spots. For instance, there may be different rates for spots running in morning drive than for spots that run in the middle of the night. Each time period for which the station charges a differing rate is a class of time that has its own lowest unit rate. On television stations, there are often classes based not only on daypart, but on the individual program. Similarly, if a station sells different rotations, each rotation that offers substantially different benefits to an advertiser will be its own class of time with its own lowest unit rates (e.g. a 6 AM to Noon rotation is a different class than a 6 AM to 6 PM rotation, and both are a different class from a 24-hour rotator – and each can have its own lowest unit rate). So, in the same time period (e.g. morning drive on a radio station), there may be spots running in that period that have multiple lowest unit rates (e.g.  spots may end up running in that period that were sold just for morning drive, as well as cheaper spots that were sold as part of a 6 AM to 6 PM rotation that just happened to fall within the morning drive period).  Candidates can buy into any of those classes of time, and they take the same chances as does a commercial advertiser as to where their spots will land (e.g. if a candidate buys a 6 AM to 6 PM rotator, and that rotator ends up in morning drive, another candidate may buy that same rotator the next week and end up at 4 PM. That second candidate can only guarantee that they will end up in morning drive by buying a spot guaranteed to run in that time period).

Continue Reading Window for Lowest Unit Rates for Candidate Advertising for the November Election Opens Today, September 6 – Are You Ready? 

It seems like virtually every panel at every broadcast and media convention, at some point, ends up involving a discussion of Artificial Intelligence. Sessions on AI are filled to capacity, and sessions unrelated to the topic seem to have to mention AI to appear relevant.  Whenever there is a topic that so thoroughly takes over the conversation in the industry, we lawyers tend to consider the legal implications.  We’ve written several times about AI in political ads (see, for instance, our articles here, here and here).  We will, no doubt, write more about that subject (including addressing further action in the FCC’s proceeding on this subject about which we wrote here, on the Federal Election Commission’s pending action on its separate AI proceeding, consideration of which was again postponed at its meeting last week, and on bills pending in Congress to address AI in political advertising). 

We’ve also written about concerns when AI is used to impersonate celebrities and to create music that too closely resembles copyrighted recordings (see, for instance, our articles here and here).  When looking for new creative ways to entertain your audience, a broadcaster may be tempted to use AI’s ability to have a celebrity “say” something on your station by generating their voice with some form of AI.  As we noted in our previous articles, celebrities have protected interests in their identity in many states, and there has been much recent activity, caused by the advent of easily accessible generative AI that can impersonate anyone, to broaden the protections for the voice, image, and other recognizable traits of celebrities.  A federal NO FAKES Act has also been introduced to give individuals more rights in their voice and likeness.  So being too creative with the use of AI can clearly cause concerns.

Continue Reading Using Artificial Intelligence in Developing Broadcast Programming – Watch for Legal Issues

On Friday, the FCC released a Public Notice confirming that the Form 395-B, reimposed by the FCC earlier this year (and the subject of several appeals), will not be due September 30, 2024, as we speculated earlier last week in our look ahead at September regulatory dates.  The Form 395-B is designed to collect information about the race, ethnicity, and gender of all broadcast employees in numerous categories of job responsibilities at broadcast stations (e.g., managers, sales employees, technical employees, “professionals,” clerical, etc.).    Last week’s Public Notice does not specifically say why the use of the form has been delayed, but it appears that the FCC has not determined that the reinstatement of the form must be approved under the Paperwork Reduction Act, or because the public nature of the filings or the addition of the “non-binary” gender category needs approval under the PRA.  In any event, the Public Notice explains that the FCC will provide notice to broadcasters at some future date as to when the filing will be required. 

As we wrote in February when the FCC adopted its Fourth Report and Order reimposing the requirement for the filing of the form, it was to be submitted by September 30 each year, reporting on the make-up of station workforces for a consistently-used two week pay period from July, August, or September.  The use of the form has been on hold for more than 20 years because of constitutional concerns, as the FCC had used the form to impose penalties when a broadcaster’s workforce did not match the demographic profile of its community.  A court decision suggested that the FCC’s approach encouraged reverse discrimination – hiring based on racial or gender profiles rather than job qualifications.  Thus, the FCC put the use of the form on hold while it considered ways to collect demographic information about broadcast employees on an industry-wide basis, without tying that information to any specific stations. 

Continue Reading FCC Announces Form 395-B EEO Report Will Not Be Due September 30, 2024

It is time for our update on the coming month’s regulatory dates and deadlines to which broadcasters should be paying attention – and the deadline that probably is most important to all commercial broadcasters is not yet known.  That, of course, is the deadline for the payment of annual regulatory fees – which must be made before the federal government’s October 1 start of the new fiscal year.  We expect an announcement of the final decision on the amount of those fees for various broadcasters, and the deadlines for payment, in the next few days.  Keep on the alert for that announcement.

A second big date for all commercial broadcasters is September 6, when the lowest unit rate period for political candidate advertising – the “political window” – opens for the November 5 general election.  During this 60-day period prior to the general election, legally qualified candidates buying advertising on a broadcast station get the lowest rate for a spot that is then running on the station within the same class of advertising time and in the same daypart (see our article here on the basics of computing LUR).  Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as the station’s most favored advertiser gets for buying hundreds of spots of the same class.  For a deeper dive on how to prepare for the November general election, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide. 

Continue Reading September 2024 Regulatory Dates for Broadcasters – FCC Regulatory Fees, LUC Window for the General Election, Comment Deadlines on AI in Political Advertising and More

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

  • Some of the big news for broadcasters this week came not from the FCC, but from the Federal Trade Commission:
    • A U.S. District Court in Texas issued an order setting aside the FTC’s non-compete rule, which was set to ban non-compete clauses in employment agreements across the United States beginning on September 4.  The Texas Court found that the FTC lacked legal authority to issue the rule and that the FTC decision was impermissibly arbitrary as the FTC failed to consider the record evidence of the positive benefits of these agreements.  The Court’s decision puts the September 4 effective date on hold nationwide.  Given last month’s decision by a U.S. District Court in Pennsylvania (which we discussed here) rejecting a request to stay the effect of the FTC’s order, finding that the FTC’s order was unlikely to be overturned after that Court’s final review, we can expect further litigation to reconcile these conflicting decisions.  But, for now, absent some other court ruling reversing the Texas decision, the effective date of the FTC ban is on hold.
    • The FTC announced that October 21 is the effective date of its final rule prohibiting the purchase and sale of fake reviews and testimonials concerning products and services, and allowing the agency to seek civil penalties against knowing violators.  Among other things, the rule prohibits activities including the buying and selling of fake consumer reviews, testimonials, and positive or negative consumer reviews; certain insiders creating consumer reviews or testimonials without clearly disclosing their relationships; creating a company-controlled review website that falsely purports to provide independent reviews; certain review suppression practices; and selling or purchasing fake indicators of social media influence.
  • Comment and pleading deadlines were updated in various FCC proceedings:
    • The FCC’s Media Bureau announced an extension of the comment deadline for the FCC’s July Notice of Proposed Rulemaking proposing that broadcasters and cable operators disclose, both on the air and in their Online Public Inspection Files, the use of AI-generated content in political advertisements.  Comments are now due September 19 and reply comments are now due October 11.  The NAB and the Motion Picture Association requested an extension to ensure that the public had sufficient time to provide meaningful responses to the proposals.  The FCC agreed, but only granted half the additional time that the NAB and the MPA requested. For more on the FCC’s AI proceeding, see our Broadcast Law Blog article, here.
    • The FCC published in the Federal Register a notice setting September 4 as the deadline for the filing of oppositions to the National Association of Broadcasters’ petition for reconsideration of the FCC’s June decision to reinstate the rule prohibiting programming duplication by commonly owned or operated commercial FM stations serving the same area.  Replies to oppositions filed against the petition are now due September 16.  Last week, we had incorrectly provided an earlier date as the deadline for comments.  For more on the FCC’s Order reimposing the FM nonduplication rule, see our article here.
    • The FCC corrected the reply comment deadline to October 1 for its July Further Notice of Proposed Rulemaking proposing to exempt video programmers from the closed captioning registration and certification requirements if such programmers provide programming to public, educational, and governmental access channels (PEG channels, which are exempt from captioning requirements) or to nonbroadcast networks which certify that they are exempt from captioning obligations.  Comments are still due September 3. 
  • The FCC announced that August 19 is the effective date of some of the new rules adopted in its October 2020 Report and Order, which brought more structure to the Team Telecom process of reviewing broadcast transactions proposing more than 25% foreign ownership.  This includes requiring applicants to submit responses to standardized questions (available here), and excluding from Team Telecom review certain pro forma transfer/assignment applications and certain other specified applications.  The effective date of these new rules was delayed until this week while the Office of Management and Budget completed its review of the paperwork burden the new rules impose. 
  • The Media Bureau also took these other actions:
    • The Bureau proposed a $3,000 fine against a Georgia FM station for filing its license renewal application almost four months late, noting that the station provided no explanation for the delay in its application.  
    • The Bureau dismissed eight Texas LPFM new construction permit applications filed by local outreach organizations of the same Texas-based church because the applicants failed to demonstrate several requirements for LPFM eligibility.  The applicants had not shown that they were recognized unincorporated non-profit associations under Texas state law.  The applicants had not shown that they were independent of the church that set up each organization, thus giving the church an impermissible interest in multiple LPFM applications.  Finally, the applicants had not shown reasonable assurance of availability of each proposed transmitter site at the time the application was filed. 

The annual Podcast Movement Convention took place this week in the DC area, so we highlighted on our Broadcast Law Blog legal issues for podcasters – in particular focusing on how podcasters, like broadcasters, have sponsorship identification rules requiring that they make clear when they receive something of value in exchange including content in their podcast. 

With the Labor Day holiday next weekend, we plan to take next weekend off.  So, look for our next update in two weeks, summarizing actions in that two-week period.  If any any significant regulatory actions occur in the interim (like releases related to the Annual Regulatory Fees due in September), we will note them on our Broadcast Law Blog.  Also watch our Blog this coming week for a look ahead at September regulatory dates for broadcasters.

This week, I spent some time at the Podcast Movement Annual Convention, this year held in the DC area.  While the convention is always a good time to catch up with industry friends and to spot new trends (AI was, of course, a topic that was discussed on several panels as it is at virtually every media conference these days), it was also a reminder that with all that has been going on at the FCC and with other regulations, we have not written much about podcasting in the recent past.  Previously, we have covered many issues related to the use of music in podcasts (see, for instance, our articles here, here, and here).  We’ve written about other legal issues that need to be considered in connection with podcasting including getting releases from guests, making sure that ownership of the podcast is clear (an issue potentially of more importance if the Federal Trade Commission’s ban on noncompete agreements in employment contracts goes into effect, as it could result in more changes in employment of employees working on podcasts, though the effective date of any noncompete ban is questionable based on a court action this week that throws out that ban – a decision likely to be appealed), and other issues that I covered in the slides from a presentation presented at the Podcast Movement conference several years ago that remain relevant.   Today, I thought that I would revisit another topic from my prior coverage of podcast legal issues, one that was given new urgency by another recent FTC ruling – sponsorship identification. 

Broadcasters are familiar with the FCC requirements for the identification of those who provide something of value to a station in exchange for any on-air content.  Fines can be issued (and big payments under consent decrees have resulted see, for instance, the cases we noted here and here) from broadcasters who do not follow the FCC’s sponsorship identification rules.  But broadcasters are not as familiar with the fact that the FTC also has rules about sponsorship identification requirements that go beyond the FCC’s obligations, looking at questions including the truthfulness of endorsements and testimonials for products and services.  FTC enforcement can be as severe, if not more severe, than that of the FCC (see, for instance, the FTC’s fines we wrote about two years ago on Google and a broadcaster for having DJs talk about their use of Pixel phones that they had not in fact used).  The FTC last week expanded on its policies by adopting a final rule prohibiting the purchase and sale of fake reviews and testimonials concerning products and services, and allowing the agency to seek civil penalties against knowing violators.  Among other things, the new rule prohibits activities including the buying or selling of fake consumer reviews or testimonials, buying positive or negative consumer reviews, using certain insiders to create consumer reviews or testimonials without clearly disclosing their relationships, creating a company-controlled review website that falsely purports to provide independent reviews, using certain review suppression practices, and selling or purchasing fake indicators of social media influence.  We plan to write more about this FTC decision in the near future, but it is important to note that these FTC policies apply with equal force to podcasters and any other online communications medium.

Continue Reading Podcasters and Broadcasters – Disclose Those Sponsors! 

Here are some of the regulatory developments of significance to broadcasters from this 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 oppositions are due August 27 in response to the National Association of Broadcasters’ petition for reconsideration of the FCC’s June decision to reinstate the rule prohibiting programming duplication by commonly owned or operated commercial FM stations serving the same area.  The NAB argues that the FCC had no basis for reinstating the rule and it failed to seek public comment to determine if there were any real public interest issues that developed during the four years that the rule was not in effect.  See last week’s article on our Broadcast Law Blog for more on the nonduplication rule and the issues raised by the NAB’s petition.  Replies to oppositions to the petition are due September 6.
  • The FTC announced a final rule prohibiting the purchase and sale of fake reviews and testimonials concerning products and services, and allowing the agency to seek civil penalties against knowing violators.  Among other things, the rule prohibits activities including the selling or purchasing of fake consumer reviews or testimonials, buying positive or negative consumer reviews, certain insiders creating consumer reviews or testimonials without clearly disclosing their relationships, creating a company-controlled review website that falsely purports to provide independent reviews, certain review suppression practices, and selling or purchasing fake indicators of social media influence. The FTC also stated that the FTC Act prohibits any deceptive or unfair practice involving reviews or testimonials that are not covered by the rule.  In discussing the prohibited acts, the FTC specifically noted the penalties it imposed in 2022 on Google and a large broadcaster when Google paid the broadcaster to have its radio DJs promote their use of the Pixel 4 phones when they had not in fact used those phones (see our article on that case for more details).
  • There was activity in both the FCC and the Federal Election Commission proceedings about requirements for labeling the use of Artificial Intelligence in political advertising.
    • A group of 40 public interest groups signed on to a letter urging the FCC to adopt the rules it proposed that would require broadcasters and other FCC regulated entities to include disclosures, both on the air and in their public files, of political ads using AI. The letter (available here on the website of one group, but not yet included in the FCC docket file for this proceeding) suggests that the rule be applied to mandate disclosures in both candidate and issue advertising, but the letter includes no analysis of the Communications Act ban on broadcasters censoring a candidate ad.  See our Broadcast Law Blog article for a discussion of this and other issues arising from the FCC proposal.
    • The FEC meeting scheduled for August 15 was cancelled.  At that meeting, the FEC was scheduled to consider a Notification of Disposition circulated by the Republican Commissioners proposing to reject a Petition asking that the FEC start a rulemaking to consider restrictions on the use of AI in political ads.  A new FEC meeting is now scheduled for August 29, at which time the Republican proposal may be discussed.  See our Blog article summarizing the impact of this proposed Notification. 
  • The FCC announced that its July Report and Order requiring that device manufacturers and Multichannel Video Programming Distributors make closed captioning display settings “readily accessible” to individuals who are deaf or hard of hearing will be effective September 16.  We noted some of the findings as to what is readily accessible in our weekly summary when the FCC’s Order was first adopted.  The requirement applies to all U.S.-manufactured devices using a picture screen that are designed to receive or play back video programming simultaneously with sound (such as televisions, smartphones, tablets, and computers).  MVPDs that provide their customers with covered devices to use their services must comply with the requirement.  MVPDs, however, are not required to comply with the new rules 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.
  • The FCC’s Media Bureau, along with the FCC’s Managing Director, issued an Order to Pay or to Shaw Cause to an AM and an FM station in Mississippi proposing to revoke the stations’ licenses unless, within 60 days, the stations pay their delinquent regulatory fees and interest, administrative costs, and penalties, or to show that the debts are not owed or should be waived or deferred.  The FM station has an unpaid regulatory fee debt totaling $9,062.22 for fiscal years 2013 through 2020, 2022, and 2023.  The AM station has an unpaid regulatory fee debt totaling $9,825.07 for those fiscal years.
  • The Media Bureau fined a Tennessee FM translator $4,875 for filing its license renewal application almost four years late and engaging in unauthorized operations after its license had expired.  In July, the Bureau proposed a $6,500 fine against the translator, but reduced the fine to $4,875 due to its licensee’s long history of compliance with FCC rules.
  • The Media Bureau also acted on three LPFM construction permit applications:
    • The Bureau granted a Michigan LPFM construction permit application over allegations that the proposed LPFM station failed to protect a proposed FM translator station and that the applicant failed to meet the LPFM localism requirement because neither its headquarters nor 75% of its board members’ residences were within required radius of its proposed LPFM station’s transmitter site.  The Bureau found that protecting the proposed translator was not required because LPFM applicants’ obligation to protect proposed stations only extends to applications filed prior to the release of the LPFM filing window procedures Public Notice on July 31, 2023.  The Bureau also found that there was no credible evidence that the applicant’s headquarters and its board members’ residences were not local.
    • The Bureau dismissed a Louisiana LPFM construction permit application for its applicant’s failure to meet the LPFM localism requirement because its headquarters was roughly 148 miles from its LPFM station’s proposed transmitter site, and therefore beyond the 20-mile radius limit to qualify as local. 
    • The Bureau dismissed a Texas LPFM construction permit application because its applicant failed to provide evidence of its eligibility to be an LPFM licensee as a nonprofit educational institution or organization under Texas law. 

On our Broadcast Law Blog, we discussed the obligation of EAS Participants, including broadcasters, to file their EAS Test Reporting System (ETRS) Form One by October 4, 2024, even though there is no nationwide EAS Test scheduled for this year.

With a number of upcoming regulatory deadlines approaching, including regulatory fees that will likely be announced in the next two weeks with a payment deadline before October 1, we thought that this would be a good time to remind broadcasters of EAS filing obligation that they may have missed as there has not been the widespread publicity that comes with the announcement of a Nationwide EAS test.  While there is apparently no plan to conduct a Nationwide Test this year, broadcasters still must file their EAS Test Reporting System (ETRS) Form One by October 4, 2024.  Filing instructions were provided in the Public Notice issued by the FCC earlier this month (see also our articles here, here and here about past deadlines for filing of the form).  All EAS Participants with limited exceptions are required to register and file in ETRS – including Low Power FM stations (LPFM), Class D non-commercial educational FM stations, and stations that are silent pursuant to a grant of Special Temporary Authority.  The only broadcast exemptions are LPTV stations that operate as television broadcast translator stations, FM broadcast booster stations and FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations, and analog and digital broadcast stations that operate as satellites or repeaters of a “hub” station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (the hub station itself of course having an obligation to file the form). 

This form provides basic information about EAS participants to the FCC. The form requests contact persons at a station, the model of EAS equipment used, and monitoring assignments under the legacy EAS system. In effect, it registers all EAS users in the ETRS system so that they can file reports (using ETRS Forms Two and Three) about the performance of Nationwide EAS tests that are periodically conducted.  For prior filers, much of the information can be pre-filled from prior Form One submissions.  While there is no Nationwide Test scheduled, the FCC still requires this information to track EAS performance of all EAS participants, and the rules require that the form be submitted each year.  We have previously expressed concern about the FCC taking enforcement actions against broadcasters who don’t submit this required form.  So, we are reminding you to file – and carefully read the Public Notice and the form to make sure that all necessary information is properly uploaded by the October 4 deadline.

The agenda for the Federal Election Commission’s August 15 Open Meeting was released last week, and it contains a proposed Notification of Disposition of the FEC’s review of a July 2023 petition for rulemaking filed by the advocacy group Public Citizen seeking to initiate a proceeding to address the use of Artificial Intelligence in campaign communications.  The FEC asked for public comment on that petition last August (see our article here).  The draft Notification and accompanying memorandum circulated by the three Republican members of the FEC proposes to deny the request to initiate such a proceeding.  As the FEC has equal representation of Democrats and Republicans, even if all of the Democrats disagree with the position advocated in the Notification, it would appear that the proposal would still be on hold for the foreseeable future as there would not be a majority of Commissioners necessary to move it forward.

The Public Citizen petition asked that the FEC “clarify that the [Federal Election Campaign Act’s prohibitions] against ‘fraudulent misrepresentation’ (52 U.S.C. § 30124) applies to deliberately deceptive AI-produced content in campaign communications.”  The draft Notification finds that the FEC lacks the statutory authority to initiate the proceeding – that the fraudulent misrepresentation language applies to a misrepresentation of a sponsor of a campaign ad, not to misleading messages in the ads themselves.  The Notice also contends that the FEC is “ill-positioned to take on the issue of AI regulation and does not have the technical expertise required to design appropriately tailored rules for AI-generated advertising.”  The draft notice suggests that, before any action is taken by the FEC, Congress must first authorize it.   

Continue Reading FEC Appears Ready to Take a Pass on Regulating AI in Political Ads

Here are some of the regulatory developments of significance to broadcasters from this 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 October 4 is the deadline for EAS Participants to file their annual Emergency Alert System Test Reporting System (ETRS) Form One – which requires EAS Participants, including broadcasters, to provide information regarding their EAS equipment and monitoring assignments along with other relevant data.  While there is no nationwide EAS test scheduled for this year, the FCC requires all EAS Participants to annually update their EAS information in the ETRS database by filing an ETRS Form One.
  • In other EAS news, the FCC adopted a Report and Order establishing a new Emergency Alert Service event code for persons over the age of 17 who are missing or abducted from states, territories, or tribal communities (known as Ashanti Alerts).  To allow time for implementing the Ashanti Alerts, the new event code will not become effective until twelve months after the Order’s publication in the Federal Register. 
  • The National Association of Broadcasters filed pleadings with the FCC asking for reconsideration of the reinstatement of the FM nonduplication rule and asking for more time to comment on the FCC’s proposed AI disclosure requirement for political advertising:
    • The NAB filed a petition for reconsideration of the FCC’s June decision to reinstate the rule prohibiting the duplication of programming on commercial FM stations serving the same area.  The reinstatement the was the result of a petition filed by music industry groups and an LPFM advocacy group asking for reconsideration of a 2020 FCC decision that had abolished the rule.  The rule prohibits commonly owned or operated commercial FM stations with overlapping 70 dbu service contours from duplicating more than 25% of their programming.  The NAB argues that the FCC had no basis for reinstating the rule and failed to seek public comment to determine if, in the 4 years when the rule was not in effect, any real public interest issues developed from its absence.  See the article on our Broadcast Law Blog on the specific requirements of the rule, the issues raised by the NAB’s petition for reconsideration, and the music industry’s recent activity seeking more broadcast regulation, possibly as a reaction to broadcast radio not paying a performance royalty for the broadcast of sound recordings.
    • The NAB, along with the Motion Picture Association, filed a request to extend the comment and reply deadlines for the FCC’s Notice of Proposed Rulemaking proposing that broadcasters and cable operators be required to disclose, both on the air and in their Online Public Inspection Files, the use of AI-generated content in political advertisements.  The NAB and MPA seek to delay the NPRM’s comment and reply comment deadlines to October 4 (currently September 4) and November 4 (currently September 19) to ensure that the public has sufficient time to provide a meaningful response to the proposals, noting that there is no need for the FCC to rush the proceeding as new rules cannot be effective in time for the November election.
      • Also on the topic of AI in political advertising, the Federal Election Commission’s Republican Commissioners circulated a draft decision that will be considered at the agency’s next Open Meeting on August 15, proposing to reject a petition for rulemaking to initiate a rulemaking proceeding on the use of AI in campaign communications due to their belief that the FEC lacked authority to make rules about such uses.  We will have more on the FEC’s decision on our Broadcast Law Blog on Monday.
  • The FCC’s Office of Communications Business Opportunities announced the FCC’s plan to review rules adopted in 2013 to determine whether such rules should be amended, repealed, or continued without change.  Under the Regulatory Flexibility Act, the FCC is required to review all rules after they have been in effect 10 years to determine if they are still necessary.  The Public Notice lists the rules subject to review, which includes several rules applicable to broadcast stations, including rules on LPFM allocations, interference to AM stations from other Commission licensees operating near an AM tower, and mandating accessibility to emergency information.  Comments in the proceeding will be due 60 days after the notice’s publication in the Federal Register.
  • The FCC’s Enforcement Bureau proposed a $14,000 fine against a group of radio stations for allegedly failing to conduct a nationwide contest as advertised.  Specifically, the Bureau found that the stations failed to select and notify 50 out of the 297 contest’s winners on a timely basis as promised by the contest rules.
  • The FCC reversed the Media Bureau’s dismissal of a modification application for an LPFM station and grant of mutually exclusive FM translator modification application.  The Bureau had dismissed the modification application of a St. Louis Park, Minnesota LPFM and granted the mutually exclusive modification of a Plymouth, Minnesota FM translator station because the St. Louis Park station failed to protect a short-spaced LPFM station in St. Paul, Minnesota, finding that the LPFM had filed its application prematurely, hours before St. Paul station’s license was to expire instead of after its expiration, and that its proposed facilities created impermissible short-spacing to the Plymouth translator.  The FCC found that the Bureau’s dismissal of the St. Louis Park application conflicted with agency policy against dismissing an application for technical defects (the failure to protect the St. Paul station) if the defect is eliminated before a staff decision on the application (here, the St. Paul station’s license expiration).  Consistent with agency policy, the FCC also found that the St. Louis Park station could file an amendment to resolve its Plymouth translator short-spacing issue – which the applicant now has 30 days to do.
  • The Media Bureau granted TBS and TNT’s request for a three-year waiver of the audio description rules which require the top five cable networks to air 87.5 hours of audio described programming per quarter.  In one of our weekly summaries earlier this summer, we noted that the networks claimed that their inability to count “repeats” of described programming kept them from meeting the requirements of the rule, even though they transmitted far more than the minimum amounts of such programming. The Bureau granted the request with certain conditions for each cable network, including that TBS and TNT must air a minimum amount of audio-described programming per quarter and must describe all newly produced, non-live programming aired between 6:00 a.m. and midnight. 
  • The Media Bureau also released a Report and Order substituting Channel 285C1 for vacant Channel 235C1 at Canadian, Texas to allow an FM station in Panhandle, Texas to move from Channel 291C3 to Channel 235C3.  The Bureau found that granting the channel substitution was in the public interest because it will enable the FM station to enhance service to its community of license and the surrounding areas.  In the future, the Bureau will announce the opening of a filing window for construction permit applications for a new station on vacant Channel 285C1 at Canadian. 
  • The Media Bureau denied a request to reinstate an Arizona AM station’s license that expired pursuant to Section 312(g) of the Communications Act, but agreed to reinstate its FM translator.  The Bureau previously ordered the station and its translator to cease operations after finding that their licenses were cancelled automatically pursuant to Section 312(g) because the AM station operated for more than one year from a site without authorization after its Special Temporary Authority had expired, and the FM translator could only rebroadcast the AM station due to a condition on its license.  The Bureau rejected the station’s argument that the cancellation of its license was an excessive penalty for its failure to request an STA extension, finding that FCC precedent supported that decision.  The Bureau did, however, agree to reinstate the translator’s license if it rebroadcast another primary station because the FCC has misinterpreted the condition on its license, and the translator was not permanently tied to the AM station.  The translator now has 60 days to notify the FCC that it has a new primary station. 
  • The Media Bureau also entered into a Consent Decree and proposed a fine for two broadcast stations’ failure to comply with their Online Public Inspection File requirements:
    • The Bureau entered into a Consent Decree with a Texas FM station to resolve its investigation of the station’s purported failure to comply with its OPIF requirements.  The FCC’s release does not specify the station’s OPIF violations, but its renewal application indicated that Quarterly Issues Programs lists had not been timely filed.  The Consent Decree requires that the station implement a compliance plan to ensure future violations do not occur, without having to pay a civil penalty which often accompanies such a Consent Decree.
    • The Bureau also imposed a $6,000 fine on a Florida TV station for its late upload of seven Quarterly Issues/Programs Lists to its OPIF during its last license period.  The Bureau originally imposed a fine of $9,000 against the station for its late upload of ten Issues/Programs Lists but reduced the fine to $6,000 after the station showed that only seven Issues/Programs Lists were uploaded late.

On our Broadcast Law Blog, we discussed how the FCC’s recent Declaratory Ruling approving the acquisition by a company owned by a Canadian citizen of 100% of the ownership interest in a company that owns an AM radio station in Seattle illustrates the approval process for foreign ownership in US broadcast stations and the FCC’s openness to such foreign investment.