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 Media Bureau released a Public Notice reminding commercial and noncommercial broadcasters of their upcoming obligation to file biennial ownership reports.  The ownership report filing window opens on October 2, 2023, and all reports must be submitted by December 1, 2023. Licensees of commercial and noncommercial full power television, Class A television, low power television, and AM/FM radio stations are required to file biennial ownership reports.  The Notice explains that the FCC is seeking accurate ownership information: (1) to ensure that the public knows who owns, operates, and controls broadcast stations; and (2) to understand the levels of diversity in the broadcast industry.  The FCC’s staff may pursue enforcement action against licensees that fail to file their biennial ownership reports in a timely or complete manner.  For more on this requirement, see our Broadcast Law Blog article here.
  • The House of Representatives this past week again failed to decide how to address the funding of the federal government after the September 30 end of the current fiscal year.  Government agencies were, at the end of the week, told to begin to make plans for a potential government “shutdown” as of October 1.  If these funding issues are not resolved in the coming days, watch for FCC guidance on how a shutdown will affect filing deadlines and other FCC operations after October 1.  
  • There were two announcements concerning the government’s review of artificial intelligence.  The Copyright Office announced an extension in the date for comments on its Notice of Inquiry asking for comment on the copyright issues triggered by the use of AI, including the question of whether machine-generated content is entitled to copyright protection and the copyright implications of AI’s use of copyrighted materials (including books and music) to “learn” how to perform certain tasks.  Comments are now due on October 30, 2023, with Reply Comments due by November 29.  Also, the Federal Trade Commission announced that, on October 4, 2023, it would hold a virtual roundtable discussion on AI issues that can be viewed online by the public.  The session will consider how AI may impact open and fair competition or enable unlawful business practices across markets, including in creative industries. The listening session will focus on different issues posed by generative AI, including concerns raised by musicians, actors, and other content creators about the use of AI to create entertainment and other content.
  • The FCC issued a Report and Order updating its rules for full power and Class A stations to reflect their transition from analog to digital-only operations and the post-incentive auction transition to a smaller television band with fewer channels (for more background on this proceeding, see our Blog article here). The Report and Order restructures a portion of the rules largely dealing with the technical licensing, operating, and interference rules for full power television. The updated rules, which for the most part do not change substantive requirements, are scheduled to go into effect 30 days after their publication in the Federal Register, except those involving paperwork changes which require Office of Management and Budget (OMB) approval under the Paperwork Reduction Act.
  • The Bureau also announced that changes in its rules for LPTV and translator stations which imposed new paperwork requirements requiring Paperwork Reduction Act approval went into effect on September 19.  These rule changes, like the TV rule changes mentioned above, were largely non-substantive amendments to reflect the transition of these services to digital operation and the termination of their analog operations (we reported on these changes earlier this year when the FCC issued its Report and Order).  Most of the amended rules went into effect on June 12, 2023. 
  • The Media Bureau proposed to assess a $1,500 fine against a low power television (LPTV) station for failing to file a timely license renewal application.  The FCC’s rules normally require a base fine of $3,000.  However (consistent with recent practice), the Bureau reduced the proposed fine to $1,500, citing the fact that the LPTV station provided a secondary service. 
  • The Bureau also entered into separate consent decrees (available here and here) with the licensee of an AM/FM combination, in which the licensee agreed to pay (1) a $3,000 penalty because the FM station had failed to upload material to its online public inspection file, failed to include a link to its online public inspection file on its website, and falsely certified that its online public inspection file contained the documentation required by the Online Public Inspection File Rule; and (2) a $6,000 penalty for the AM station because it committed the same violations in addition to operating at a variance from its licensed daytime and nighttime parameters for more than 30 consecutive days without FCC approval.  The licensee was also directed to adopt compliance plans to ensure that the stations do not commit similar violations in the future.
  • The Media Bureau proposed to assess a $6,000 fine against a full power television station for by failing to timely upload its quarterly issues/programs lists to its online public inspection file.  The Bureau alleged that the station had failed to timely upload copies of these lists for a total of 12 quarters, i.e., two lists more than one year late, six lists between one month and one year late, and four lists between one day and one month late.
  • The Media Bureau tentatively awarded a construction permit to an applicant for new NCE FM station at Riesel, Texas, instead of a mutually exclusive applicant for an NCE FM station at Golinda, Texas.  Both applications had been filed in the FCC’s November 2021 window for new NCE FM facilities.  The decision largely deals with procedural issues concerning how the FCC interprets the limited one-time opportunity for an applicant in a filing window for new stations to correct certain initial defects in its application.
  • With the 2024 election looming, broadcasters are already receiving requests for political advertising time, from candidates, PACs and other issue groups trying to make an early impression on voters.  Some of these potential buyers advance unique policy positions and, sometimes, unusual ad buying strategies.  See our Broadcast Law Blog article published last week for a discussion of the legal issues and courses of action broadcasters need to consider when handling such inquiries.

With the 2024 election looming, broadcasters are already receiving requests for political advertising time, from PACs and other issue groups, and from both established candidates and newcomers eager to make an early splash to enhance their public standing.  Some of these potential buyers advance unique policy positions and, sometimes, unusual ad buying strategies.  How are broadcasters to deal with these early political ad buyers? 

Each broadcaster needs to discuss the issues that arise with these early political ads, both internally with their business teams and with their outside FCC counsel or in-house legal advisor.  The first question to ask is whether a station even wants to run these ads.  Ads from non-candidate buyers do not need to be run by stations but, if run, will likely impose some political file obligations on stations to the extent that they discuss candidates, potential candidates, or electoral and political issues (for more on political file issues, see our articles here, here, and here, and this video discussion that I did for the Indiana Broadcasters Association). 

Continue Reading Broadcaster’s Legal Considerations for Early Season Political Ads

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 Media Bureau entered into a Consent Decree with the licensee of an Illinois Class A television station in which the licensee agreed to pay a $97,000 penalty for filing its license renewal application late and for failing to fully disclose in its license renewal application that it did not properly place all of its required documents into the station’s online public inspection file in a timely manner.  In fact, the licensee had missed uploading virtually all of the required regular public inspection file documentation including 28 Quarterly Issues Programs Lists, all its records concerning its compliance with the commercial limits in children’s programming, all of its children’s television programming reports on the educational and informational programming, and other documentation.  This case shows that repeated paperwork failures, even for a Class A TV station, can result in substantial fines.
  • The Media Bureau also entered into a Consent Decree with the licensee of two Florida AM stations and three FM translator stations for a transfer of control of the licensee without FCC approval.  One of its LLC members had acquired the 40.5% interest of another member, giving the acquiring party 81% of the company, without seeking prior FCC approval.  In a subsequent application to approve that transfer, the licensee acknowledged the violation, and it agreed to pay an $8,000 penalty.  FCC approval is required whenever an owner is to assume a controlling position in a company, even if that owner had been approved on prior FCC applications.
  • An FCC Administrative Law Judge determined that a felony conviction of the owner of a Tennessee AM station did not warrant the revocation of the station’s license.  In 2007, the owner (who was a member of the Tennessee legislature at the time) failed to report on his federal income tax return $330,0000 in profits from his sale of cigarette tax stamps (a felony under the IRS code), and he was convicted of a felony for that failure in 2016.  The Media Bureau subsequently initiated a license revocation hearing, as “it is Commission policy that any felony conviction of a licensee raises the question of whether that licensee possesses the requisite character to continue to hold a Commission license.”  While conceding that the principal had committed a “serious felony,” the ALJ was persuaded that the principal’s crime was “an isolated occurrence that does not suggest a likelihood of future violations; that “enough time had elapsed to show that the principal had remediated his wrong”; that the principal enjoyed significant support from the station’s local community; and that the station had an overall positive record of public service notwithstanding its previous alleged violations of FCC rules.  This case shows that a felony conviction of the principal of a broadcast station does not necessarily result in the loss of a license if the principal can show that the felony was unrelated to broadcast operations and did not suggest that the principal would be an untrustworthy licensee. 
  • The FCC issued a Public Notice reminding broadcasters that the Communications Act requires all “United States-based foreign media outlets” to submit a report containing: 1) the name of such outlet; and 2) a description of the relationship of such outlet to the foreign principal of such outlet, including a description of the legal structure of such relationship and any funding that such outlet receives from such principal.  For purposes of this filing requirement, the term “United States-based foreign media outlet” means an entity that (A) produces or distributes video programming (as defined in section 602 of the Communications Act) that is transmitted, or intended for transmission, by a multichannel video programming distributor (as defined in such section) to consumers in the United States; and (B) would be an agent of a foreign principal for purposes of the Foreign Agents Registration Act of 1938. The Communications Act defines the term “video programming” as “programming provided by, or generally considered comparable to programming provided by, a television broadcast station.”

This coming week, Annual Regulatory Fees must be paid by commercial broadcast stations through the FCC’s CORES database by 11:59 PM Eastern Time on September 20 (see the FCC’s Public Notice announcing the September 20 deadline).  Late payment of regulatory fees will generally result in a 25% penalty plus interest, so commercial broadcasters should be preparing their fee submissions now to be sure to meet the September 20 deadline. For more on the deadline, and on the other FCC notices that were released to detail the filing obligations, see our Broadcast Law Blog article here.

On the anniversary of September 11, it seems appropriate to highlight the upcoming October 4 Nationwide Test of the EAS system.  While EAS was not activated during the September 11 emergency, the events of that date have provided much impetus for federal emergency authorities to strengthen the EAS system.  Part of that effort has been the regular testing of the Nationwide EAS alert system.  As we wrote in August, the Federal Emergency Management Agency (FEMA) has scheduled a nationwide EAS test for October 4, 2023, at approximately 2:20 pm EDT, using the Internet-based Integrated Public Alert and Warning System (IPAWS) (with a back-up date of October 11 if necessary).  In a Public Notice released in August, the FCC set out steps that broadcasters should take to prepare for that test.

Just last week, the FCC’s  Public Safety and Homeland Security Bureau released a further Public Notice to remind Emergency Alert System participants of their obligation to ensure that EAS alerts are accessible to persons with disabilities.  For TV stations, to be visually accessible, the EAS text must be displayed as follows:

  • At the top of the television screen or where it will not interfere with other visual messages (e.g., closed captioning),
  • In a manner (i.e., font size, color, contrast, location, and speed) that is readily readable and understandable (see below),
  • Without overlapping lines or extending beyond the viewable display (except for video crawls that intentionally scroll on and off the screen),
  • In full at least once during any EAS message. Text should scroll at a speed that allows viewers to read the crawl as if they were going to read it aloud, and
  • The background and text colors should sufficiently contrast to allow for readability. For example, a bright green background with white text may not provide sufficient contrast. Green and red should also be avoided as viewers who are color blind have difficulty seeing these colors.

In addition, the audio portion of an EAS message must be played in full at least once to ensure it is accessible to viewers who are blind or have low vision and should be spoken at a pace that allows for a listener to understand the content. 

Continue Reading Reminder: September 15 Deadline for Updating ETRS Form One in Preparation for Nationwide EAS Test, and an FCC Notice on the Accessibility of EAS Messages

Here are some of the regulatory developments of significance to broadcasters from the past two weeks (including events that occurred during our hiatus for the Labor Day holiday), with links to where you can go to find more information as to how these actions may affect your operations.

  • The Senate approved Anna Gomez to be a new FCC Commissioner, filling the open Democratic seat that has been vacant since the start of the Biden Administration.  Gomez is experienced in government circles, having worked at NTIA (a Department of Commerce agency dealing with federal spectrum use and other communications matters) and recently at the State Department preparing for international meetings about communications issues.  She also has a history in private law firm practice.  Together with her nomination, the President renominated Commissioners Starks and Carr for new terms as Commissioners, but those nominations remain pending – not having been approved this week with the Gomez nomination.  As Democratic Commissioner Starks’ term has expired and he can only serve through the end of this year, there is speculation that these nominations may be approved in combination with nominations for vacancies at other government agencies so as to avoid returning the FCC to a partisan deadlock in January.  See our Broadcast Law Blog article here for a review of broadcast issues the FCC might address now that there is a full Commission.
  • The FCC has announced via Public Notice that Annual Regulatory Fees must be paid through its CORES database by 11:59 PM Eastern Time on September 20.  The FCC also issued a second Public Notice explaining the filing procedures and methods for making payments, including limits on credit card payments, available here. For broadcasters, a third document, a Fact Sheet called “What Your Owe – Media Services Licensees for Fiscal Year 2023,” sets out specific information as to what is owed by commercial broadcasters and restates some of the information from the Notice on filing procedures.  This broadcast-specific Fact Sheet is available here.  The FCC also released a Fact Sheet setting forth the details of who is exempt from regulatory fees, including Noncommercial Educational stations and commercial stations whose total fee obligations are “de minimis,” i.e., they total $1000 or less.  That Fact Sheet is here.  Another Fact Sheet setting out the procedures for seeking a waiver or deferral of the fees is available here.  Paying regulatory fees late can bring substantial penalties (25% penalty plus interest), so commercial broadcasters should immediately review these documents and prepare their fees so that they can be submitted before the September 20 deadline.  For more details on these fee notices, see our blog article here.
  • The FCC’s Public Safety and Homeland Security Bureau (Bureau) issued a Public Notice to remind Emergency Alert System (EAS) participants of their obligation to ensure that EAS alerts are accessible to persons with disabilities.  The Federal Emergency Management Agency (FEMA) has scheduled a nationwide EAS test for October 4, 2023, at approximately 2:20 pm EDT, using the Internet-based Integrated Public Alert and Warning System (IPAWS).  The Public Notice also reminded EAS Participants that they must file ETRS Form Two after the nationwide EAS test no later than October 5, 2023, and they must file ETRS Form Three on or before November 20, 2023. For TV stations, to be visually accessible, the EAS text must be displayed as follows:
    • At the top of the television screen or where it will not interfere with other visual messages (e.g., closed captioning),
    • In a manner (i.e., font size, color, contrast, location, and speed) that is readily readable and understandable (see below),
    • Without overlapping lines or extending beyond the viewable display (except for video crawls that intentionally scroll on and off the screen), and
    • In full at least once during any EAS message. Text should scroll at a speed that allows viewers to read the crawl as if they were going to read it aloud.
    • The background and text colors should sufficiently contrast to allow for readability. For example, a bright green background with white text may not provide sufficient contrast. Green and red should also be avoided as viewers who are color blind have difficulty seeing these colors.
    • In addition, the audio portion of an EAS message must be played in full at least once to ensure it is accessible to viewers who are blind or have low vision and should be spoken at a pace that allows for a listener to understand the content. 
  • The FCC’s Wireless Telecommunications Bureau, in coordination with the Media Bureau, issued a Public Notice which (1) provides detailed instructions for 12.7-13.25 GHz (12.7 GHz) band Broadcast Auxiliary Service (BAS) licensees to file certifications confirming the accuracy of their licensing information in the Universal Licensing System (ULS); and (2) establishes a window for the filing of these certifications.  The FCC directed this updating of ULS in its Notice of Proposed Rulemaking and Order where it has proposed to repurpose some or all of the 12.7 GHz band for mobile broadband or other expanded use, and grandfather, relocate, and/or repack existing 12.7 GHz licensees (we referenced this proceeding in our blog article here).  BAS licensees, who may include satellite communications and mobile TV pickup operations, should take care to comply with this obligation, as the FCC has also proposed to limit eligibility for incumbent status to those licenses for which the licensee has filed the required certification, meaning that if the certifications are not filed, there may be no reimbursement for any required channel moves or no protection from future interference. Review the Public Notice carefully, as there are instructions for licensees that filed applications on or after January 1, 2021, for a new or modified BAS license, and for those that file a modification application correcting license information on or before November 29, 2023. If a licensee is unable to make the certification for a license for reasons including that the required technical data is inaccurate, missing, or incomplete; the license has terminated automatically; or the facilities are not operating as authorized, the licensee must cancel the license or file a modification application to correct the data reflected in the license no later than November 29, 2023.  BAS licensees must file their certifications in ULS using the online portal for non-docketed Pleadings, which can be accessed here.  Read the Public Notice carefully and consult with your legal and technical advisors for more details about these requirements.   
  • The FCC announced that the agenda for its September 21 regular monthly open meeting will include consideration of a Report and Order that would implement proposals to comprehensively delete, update, and revise Commission rules for full power and Class A television stations where those rules no longer have any practical effect given the transition from analog to digital-only operations and the completion of the post-incentive auction transition to a smaller television band with fewer channels.  The proposed rule changes are mostly non-substantive and do not materially change the regulatory obligations of full power and Class A stations.  For more details, see the FCC’s Notice of Proposed Rulemaking here.
  • The Audio Division of the FCC’s Media Bureau entered into a Consent Decree with the licensee of an AM station in Alaska and an associated FM translator, in which the licensee acknowledged that it had violated the FCC’s rules by reducing daytime power and being silent for periods exceeding 30 days without seeking FCC approval, as required by the rules, and for originating programming on its translator while its AM station was silent.  An FM translator for an AM station cannot continue operations if the AM has not operated within the last 24 hours.  In reaching this decree, the Division reduced the licensee’s proposed fine from $7,000 to $4,000, citing the licensee’s showing of financial hardship and indicating that the money that would otherwise go to the higher fine would better be spent on the equipment necessary to repair the station’s transmitter.
  • The FCC’s Video Division issued a Forfeiture Order imposing a $1,500 per station fine on the licensee of four TV translator stations in Colorado for failing late license renewals.  For the same reason, the Division issued three Forfeiture Orders (here, here and here) imposing fines on a licensee of 27 TV translators in Nevada, but reduced the fines from $1,500 per station  to $209 per station.  While declining to find that the initial fines of $1,500 per station were excessive (notwithstanding the licensee’s showing of financial hardship), the Division found that reduction of the fines was warranted “based on the Licensee’s history of compliance and the unique facts and circumstances presented, notably the fact that the Stations are community translators serving rural areas that would otherwise have limited, if any, over-the-air television service.”  The Division also proposed to assess a $37 per station fine against the licensee of three Montana TV translators for failing to timely file “license to cover” applications and engaging in unauthorized operation of the stations after their construction permits had expired.  In substantially reducing the fine normally required by the FCC in this kind of case, the Division cited the licensee’s documented financial inability to pay, its history of compliance, and the fact that the stations provided service to rural areas that has that otherwise had no off-air television service.
  • The Audio Division proposed to allot FM channel 225A at Lac du Flambeau, Wisconsin, as a Tribal Allotment and the community’s first local service.  Comments are due October 30, 2023; reply comments are due November 15, 2023.   The Tribal Allotment is being proposed pursuant to the FCC’s priority established under Section 307(b) of the Communications Act favoring the provision of radio service to tribal lands by stations owned by tribal governments.
  • The Video Division requested comment on a Notice of Proposed Rulemaking proposing to substitute noncommercial channel 34 for noncommercial channel 11 at Des Moines, Iowa and to substitute the allotment of noncommercial channel 21 for noncommercial channel 34 at  Ames, Iowa.  The proponent of this proposal has asserted that the substitution of channel 34 for channel 11 at Des Moines is necessary to overcome signal difficulties associated with digital operation on VHF channels.  Comments and reply comments will be due 30 and 45 days, respectively, from publication of the Notice of Proposed Rulemaking in the Federal Register.  For similar reasons, the Division also approved the substitution of noncommercial UHF channel 27 for noncommercial VHF channel 12 at Lincoln, Nebraska.

The Senate this week approved Anna Gomez for the open Democratic FCC seat that has been vacant since the start of the Biden Administration.  As we wrote in May when the President first nominated her, Gomez is experienced in government circles, having worked at NTIA (a Department of Commerce agency dealing with federal spectrum use and other communications matters) and recently at the State Department preparing for international meetings about communications issues.  She also has a history in private law firm practice. 

Together with her nomination, the President renominated Commissioners Starks and Carr for new terms as Commissioners, but those nominations remain pending – not having been approved this week with the Gomez nomination.  Democratic Commissioner Starks’s term has already expired but he continues to serve under the allowable one-year carry-over which ends at the beginning of January 2024.  Republican Commissioner Carr’s term will expire at the end of this year, but he would be able to serve through the end of 2024 if his renomination is not confirmed.  There is some speculation that these nominations will be packaged with other pending nominations for positions at other government agencies to avoid having the FCC return to a partisan stalemate again in January if the Starks’ renomination is not approved by then. 

Continue Reading And Then There Were Five – Senate Approves Anna Gomez as Fifth FCC Commissioner – What Broadcast Issues Could a Full FCC Consider? 

The FCC issued its Public Notice announcing that Annual Regulatory Fees must be paid by 11:59 PM Eastern Time on September 20, 2023.  As we noted two weeks ago, the FCC earlier this month released its Report and Order setting the amount of the annual regulatory fees that broadcasters must pay, but the Commission had not, until yesterday, followed up on that Order by issuing a Public Notice setting the dates for payment.  Yesterday’s Public Notice, and a set of other Public Notices and Fact Sheets issued yesterday, establishes the payment deadline and announces other procedures for payment. Unlike in past years when the payment window was a limited period, the Public Notice announced that the FCC’s CORES database, through which the fees must be paid, is now available for this payment. 

The FCC issued additional notices detailing various aspects of the fee filing process.  One Public Notice sets out the general filing procedures for making the fee payments.  That Notice makes clear all fees must be paid through CORES.  No checks, money orders, or other forms of payment will be allowed.  Payment must be made either by wire transfers, ACH electronic payments or by credit card.  Credit card payments are limited to $24,999.99.  The Notice tells broadcasters that they will receive an email confirming that they have submitted something through the CORES system – but that email does not confirm that the payment has actually been received by the FCC or debited to a broadcaster’s account.  Broadcasters need to confirm with their banks that the FCC has in fact debited their accounts for the fees. Pay early to make sure that you have time to confirm that the FCC has in fact received the fees by the deadline.

Continue Reading FCC Annual Regulatory Fees are Due September 20 – Flurry of FCC Notices and Fact Sheets Detailing Payment Procedures

On the surface, September appears to have few scheduled regulatory filing dates and deadlines.  But it is period in which many broadcasters will be busy with deadlines that occur in early October and into the rest of the Fall.  TV stations should be finishing their decision-making on must-carry/retransmission consent elections, which need to be in their public files by October 2 (as the 1st is a holiday).  In preparation for the early November filing window for new LPFM stations (see our article here), potential applicants should be determining if a station can technically “fit” in their area without prohibited shortspacings to other stations; if one can be located in their area, they need to locate a transmitter site; and they need to take all the steps other steps needed to be ready to file their application in the early November window.  One of the first regulatory dates of note in September is the freeze on FM translator modification applications that goes into effect on September 1 in anticipation of the LPFM window.  The freeze will be in effect at least through the end of the LPFM filing window on November 8. 

September will also bring the date for the filing of annual regulatory fees by commercial stations.  We recently noted that the FCC earlier this month released its Report and Order setting the amount of the annual regulatory fees that broadcasters must pay, but the Commission has not yet followed up on that Order by issuing a Public Notice setting the dates for payment.  As these payments must be made before the federal government’s October 1 start of the new fiscal year, we expect that Public Notice any day.  We also expect that, as in the past, the FCC’s Media Bureau will release a fee filing guide for the broadcast services.  Licensees should continue to monitor this item closely so that they are ready to pay those fees in a window that will open in September, as the failure to timely pay regulatory fees will result in substantial penalties.

Continue Reading September Regulatory Dates for Broadcasters – Regulatory Fees, HD Radio Power Increase Comments, EAS Filings, and Preparation for Many October Deadlines  

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 Order and Notice of Proposed Rulemaking (“NPRM”) proposing changes to the digital audio broadcasting rules to facilitate greater digital FM radio coverage was published in the Federal Register this week, setting the date for comments.  Comment are due by September 21, 2023 with reply comments due by October 6 (FCC Public Notice).  The NPRM tentatively concludes that there is merit to two petitions for rulemaking filed by NAB and other parties (available here and here), asking the FCC to permit increased FM digital effective radiated power beyond the existing levels and to allow a digital FM station to operate with asymmetric power on the digital sidebands (for more details about these petitions, see our article here).  The FCC seeks comment on a number of specific questions including when a station can seek higher digital power without submitting a contour analysis or otherwise seeking Commission prior approval; whether stations planning asymmetrical side bands need to give notice to adjacent channel stations; whether there is a risk of interference to lower powered FM stations, secondary stations (LPFMs and translators), and even broadband operators who suggest possible interference to equipment that they operate on FM channels; and whether any potential interference calls for limits on the proposed rule changes. 
  • The FCC’s Audio Division of its Media Bureau proposed a $20,000 fine for unauthorized operations and false certifications in connection with a license application for changes in the facilities of an FM translator.  The translator had been authorized to rebroadcast an LPFM station, but received a construction permit to increase power and change its primary station to rebroadcast an AM station.  As the permit was about to expire, the licensee filed a covering license application certifying that the new facilities had been constructed in accordance with its construction permit.  In fact, the translator continued to rebroadcast the LPFM station for at least 6 months after the grant of the license for the new facilities.  As the translator was not rebroadcasting the station specified in the license application, the Division found its operations to be unauthorized and the certification in the license application that it was operating in accordance with the construction permit to be false, warranting the fine.
    • In another interesting aspect of this decision, the Division rejected claims that the licensee, a nonprofit organization governed by its Board, had undergone an unauthorized transfer of control because its Board members were different from those at the time it received its initial license, with no FCC approval having been sought.  The decision noted the FCC’s policy that gradual changes in a non-profit organization’s governing Board do not constitute a transfer of control.  Thus, as the Board changes in this case were gradual, no FCC approval was required even though the current Board was completely different from that which had initially been approved by the FCC.    
  • The FCC’s Video Division issued three forfeiture orders (here, here and here) issuing fines to licensees of TV translators for filing late license renewals.  These decisions reduced the fines of $1500 per station that had been initially issued to these licensees (and were issued to other stations in similar situations in the recent past), to $99 per station, based on showings by the licensee that the higher fines would have caused the licensee substantial financial hardship.  Financial hardship showings must include tax returns or other detailed records showing the revenues of a licensee.  When the proposed fines exceed a percentage of the licensee’s revenue that has in prior cases been found to be excessive (generally, fines in excess of 8% of revenue have been found excessive, while those below 5% are not), the FCC will consider reducing them, as they did in the cases decided this week. 
  • In the continuing efforts of television broadcasters to convert their VHF stations to the UHF frequencies seen as more advantageous for digital broadcasting, the FCC asked for public comment on proposals for TV stations in Winnemucca, Nevada and Idaho Falls, Idaho to make such changes.   

With the Labor Day holiday next week, unless the FCC is very active, we will not publish this update next weekend.  If we do not, we will include any actions taken this coming week in our next weekly update on September 10.  In the interim, watch for an announcement of the deadlines for the payment of Annual Regulatory Fees (we expect to cover any announcement on our Broadcast Law Blog).  We recently noted on our blog that the FCC earlier this month released its Report and Order setting the amount of the annual regulatory fees that broadcasters must pay, but the Commission has not yet followed up on that Order by issuing a Public Notice setting the dates for payment, which must be made before the federal government’s October 1 start of the new fiscal year.

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.

  • In the last two license renewal cycles, more fines have been issued for full-power stations violating the requirement that they quarterly add to their public inspection files a list of the most important issues facing their communities and the programming that they aired in that quarter to address these issues.  This week, the Media Bureau proposed another such fine, proposing to fine a Florida full power television station $9,000 for allegedly failing to timely upload 10 quarterly issues/programs lists to its online public inspection file during the last renewal cycle.  The station offered no explanation for that failure.  See our Broadcast Law Blog article here for more on the importance of the Quarterly Issues/Programs list obligation.
  • For TV translators and LPTV stations, another frequent source of fines has been the late filing of renewal applications. This week, the Bureau proposed to fine a licensee of four television translator stations in Oklahoma $6,000 for failing to timely file renewal applications for those stations.
  • In the last few years, it has become more common to see broadcasters surrendering licenses for stations that they no longer feel that they can operate.  In some cases, other broadcasters have noted the surrenders and expressed interest in acquiring the surrendered license. In a decision released this week, the Media Bureau made clear that any such request needs to come quickly and include the licensee who surrendered the license.  In this week’s decision, the Bureau dismissed an “emergency petition” filed by Albuquerque Board of Education (ABE), requesting that the FCC reinstate the cancelled licenses of an AM station and an FM translator licensed to Los Alamos, New Mexico, and permit ABE to operate those stations.  As the request was filed more than 30 days after the FCC’s public notice of the cancellation of the license, the Bureau determined that it was untimely (as requests to reconsider an FCC action must occur within 30 days of public notice), also noting that ABE had no apparent relationship to the prior licensee (even though it had submitted a statement from the former licensee that she did not reimpose the reinstatement, the licensee did not itself request reinstatement or file any sort of application to transfer the station to ABE).
  • For the second week in a row, the Media Bureau asked for comment on a proposal for a broadcast licensee to be owned by foreign citizens.  This week, the Bureau issued an amended declaratory ruling from Hemisphere Media Group, Inc. (HMTV), the controlling parent of the proposed transferee of various television licensees, to exceed the 25% foreign ownership benchmarks in section 310(b)(4) of the Communications Act of 1934.  The ruling approved foreign ownership up to 100% of HMTV’s equity and voting interests in the aggregate, and ownership interests by certain identified foreign owners.  As we noted in our Broadcast Law Blog articles here and here, the FCC will approve foreign ownership of up to 100% of broadcast licensee after reviewing the individuals or companies involved to ensure that the proposed owners do not pose any threat to national security or otherwise threaten the public interest.
  • The National Association of Broadcasters (NAB) is seeking to compel the FCC, through a petition for a “writ of mandamus” filed with the US Court of Appeals, to conclude the agency’s still pending 2018 Quadrennial Regulatory Review of its broadcast ownership rules; a review that, among other things, is looking at whether the local radio ownership rules and the rule prohibiting common control of two of the Top 4 TV networks are still in the public interest.  This week, the NAB filed its Reply to the FCC’s Opposition to the NAB’s petition.  The FCC argued that, while Congress requires the FCC to begin a Quadrennial Review every four years, it does not require that the review be completed within any set time.  The NAB’s reply contend that such a position would mean that the statutory mandate for a review of the ownership rules every four years would be meaningless if the review never had to be finished.  The NAB also submitted the FCC cannot claim that further delay is justified by the complexities of the 2018 review or political “contentiousness” among the FCC’s Commissioners concerning the scope of the 2018 review.  We expect the Court to rule on NAB’s Petition in the coming weeks.
  • The FCC’s Office of Communications Business Opportunities issued a Public Notice announcing its upcoming review of rules the FCC adopted in calendar years 2007–2012 that have or will have a significant economic impact on a substantial number of small entities. Section 610 of the Regulatory Flexibility Act (RFA), 5 U.S.C. § 610, requires the FCC to determine whether such rules should be continued without change, amended, or rescinded to minimize any significant economic impact on a substantial number of small entities. The Appendix lists the rules the Commission will review during the next 12 months.  The Appendix includes a brief description of each rule, and its policy and legal basis (those that specifically apply to broadcasters begin on page 32 of the Appendix).  Comments on the Public Notice will be due 60 days after it is published in the Federal Register.  This is an ongoing process that rarely results in changes in the rules, but it does allow the public to bring rules that need change to the FCC’s attention.
  • The FCC’s Media Bureau issued an Order to Pay or to Show Cause against an Alabama FM station, initiating a proceeding to revoke the station’s license unless, within 60 days, it pays delinquent regulatory fees and associated interest, administrative costs, and penalties. owed to the Federal Communications Commission (Commission). According to the Order, the FCC’s records indicate that the station currently has unpaid regulatory fee debt of $1,372.94 for FY 2021 and $1,478.34 for FY 2022. 
  • The Media Bureau requested comment on proposals to allocate new noncommercial TV channels to three communities, proposing to allot (1) reserved noncommercial educational (NCE) channel *3 to Tulare, California as the community’s first local television service; (2)   reserved NCE channel *4 to Alamogordo, New Mexico as the community’s first local television service; and (3) reserved noncommercial educational (NCE) channel *2 to Colusa, California as the community’s first local television service.  In all three cases (available here, here and here) comments and reply comments are due 30 and 45 days, respectively, after the proposal is published in the Federal Register.
  • On our Broadcast Law Blog this week, we published articles on the FEC request for comments on the use of Artificial Intelligence in political advertising (here) and on the RMLC’s request to consolidate the ASCAP and BMI rate setting proceedings and whether this could be a first step to consolidated all rate-setting for music royalties (here).