The FCC this week announced a Consent Decree with a TEGNA subsidiary to settle an indecency complaint against a Spokane television station.  The FCC received a complaint about a “pornographic video” which the station admitted had run on a TV screen behind the station’s weathercaster that was visible to the home viewer for approximately 13 seconds during a weather report in 2021.  TEGNA agreed to make a $222,500 “voluntary contribution” to the U.S. Treasury as part of the settlement and to set up a 3-year compliance plan to ensure that the conduct was not repeated.

These penalties were imposed even though, from the description of the incident in the Consent Decree, it appeared that neither the station nor its employees were responsible for the objectionable content that ran on the visible TV screen.  According to the description of the incident, the objectionable video did not pass through the normal transmission chain at the station and did not come from any of its equipment.  Instead, it appeared that someone was able to use an unsecured wireless network at the station to “cast” the video from an outside device to the video monitor behind the weathercaster.  Apparently, the controls on that video monitor were set to permit this wireless access.  This case appears to teach broadcasters several lessons.

First, and most obviously, security of the broadcast chain is paramount.  Following the incident, TEGNA disabled the unsecured network and access to all video monitors so no wireless access outside the normal broadcast chain could occur.  In the past, there have been other incidents where broadcast transmissions were captured by outside parties through unsecured parts of the transmission path.  In one case, access was allowed through unsecured internet access to the Studio Transmitter link of several radio stations around the country, allowing non-station content to be inserted into the chain leading to the transmitter and cutting off the station’s own programming (see our article here about a subsequent government warning about these vulnerabilities).  In another case, access was obtained through the EAS system of several television stations allowing the broadcast of fake alerts warning of a zombie attack.  The FCC itself is looking at requiring all stations to report regularly to the FCC about how its systems are protected so as to secure emergency broadcast channels but, even without such a mandate, incidents like these highlight the importance of security of the transmission chain for every broadcast station.

 Second, this case seems to reinforce the notion that, at the current time, indecency enforcement seems to be reserved for the most egregious cases.  In this case, there is no indication that TEGNA contested the indecent nature of the material broadcast.  In the last major case in recent years where a similarly substantial penalty was imposed ($325,000 – see our article here), the indecent nature of the content was not challenged (though, that case, there were arguments about the fleeting nature of the content – less than 3 seconds – and the fact that the improper images were not prominent on most television sets).  Many will remember the FCC’s indecency enforcement regime earlier this century when a wide array of programming was under scrutiny by the FCC (see, for instance, our articles here, here, and here).  That came to an end with the Supreme Court’s 2012 decision not to review a decision in the Janet Jackson case, where the Court of Appeals found that the FCC’s indecency standard was too unclear to be enforced (see our article here, and our article here about a prior Supreme Court case finding that the FCC had not given proper notice of its decision to fine stations for “fleeting expletives”) .  While the FCC in 2013 asked for comments on how to adopt clearer standards to define indecency, no resolution of those issues was ever reached (see our articles here, here and here).  Given the ambiguity in the lines drawn about what is permitted and what is prohibited, it appears that, for now, most indecency enforcement is confined to instances where, no matter where the line is drawn, the content would be impermissible – in other words, a continuation of the “egregious cases” policy that has been in place since 2013.

But this case shows that indecency is still a concern – and it is a concern no matter the politics of the FCC that may be faced with a complaint.  Broadcasters need to be aware of this decision, and they need to take steps to secure their systems to avoid any recurrence of this situation at their stations. 

Only three weeks ago, we published an article on the FCC’s request for public comment to update the record in the 2018 proceeding looking at whether to change the 39% national cap on the ownership of television stations. That request for comments was published in the Federal Register yesterday, setting the deadline for comments. Comments are due August 4, 2025 and reply comments are to be filed by August 22. Although we published our look at the issues in this proceeding only a few weeks ago, we thought that we would republish it for those who may have missed it. Here is what we said on June 26:

Last week, the FCC released a Public Notice requesting comments to refresh the record compiled in 2018 in a proceeding that proposed to review the TV national ownership cap.  That cap limits any company from having attributable interests in full-power TV stations that reach more than 39% of the nationwide TV audience.  That 2018 proceeding was begun (with a late December 2017 Notice of Proposed Rulemaking)  to assess whether the FCC should raise the cap, and also to explore whether it has the power to do so (see our article here).  This week’s Public Notice, released by the FCC’s Media Bureau, not only seeks information about the questions raised in 2018, but it also poses a number of new issues reflecting the concerns of the current Commission. 

The Public Notice is not seeking comment on the local broadcast ownership rules that govern how many TV (and radio) stations one owner can have in any market.  Those issues are separately considered in the FCC’s Congressionally-mandated Quadrennial Reviews, where every four years the FCC must justify that the local ownership rules remain necessary in the public interest as a result of competition.  The Commission should be considering the local rules this year, as it is in the fourth and final year of the Quadrennial Review cycle for 2022, and also possibly because of the results of the pending appeal of the 2018 Quadrennial Review (see our article here) – a decision in that appeal could be released at any time.  The 39% national TV ownership cap was adopted by Congress and is not specifically subject to the Quadrennial review – hence the questions that were raised in the 2018 proceeding about the FCC’s authority to review these rules.

Continue Reading Comment Dates Set on the FCC Request to Update the Record on the 39% National TV Ownership Cap

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.

  • Paramount/CBS settled its lawsuit with President Trump for $16 million.  Last Fall, President Trump sued CBS for its supposed deceptive editing of the 60 Minutes interview with then-Vice President Harris which, as we noted here, here, and here, is also the basis of a pending news distortion complaint at the FCC.  As part of the settlement, Paramount/CBS agreed to release written transcripts of future 60 Minutes interviews with presidential candidates.  FCC Commissioner Gomez released a statement stating that the settlement “should alarm anyone who values a free and independent press,” and “now casts a long shadow over the integrity of the transaction pending before the FCC.”  Gomez called again for the FCC to bring the Paramount-Skydance transfer applications before the full Commission for a vote given the public’s interest in the deal and the need for transparency.  As we noted here, here, here, here, here, here, and here, the applications propose Skydance principal David Ellison acquire a controlling stake in Paramount and become its Chairman and CEO.
  • The FCC released a draft Direct Final Rule in its Delete, Delete, Delete proceeding that, if adopted at its July 24 Open Meeting, would eliminate 18 rules that are now obsolete or outdated due to technological, marketplace, and other changes since the rules were implemented.  This is the first batch of rules that the FCC has slated for deletion in the proceeding.  For broadcasters, among the rules to be deleted is the FCC’s closed captioning decoder requirements for analog television receivers – technology obsolete after the completion of the DTV transition over a decade ago.  What is perhaps most important about this action is not the decision itself to delete an obsolete rule, but the process that the FCC is using to delete it.  Instead of the usual notice and comment rulemaking proceeding (releasing a Notice of Proposed Rulemaking telling the public what it planned to do and asking for comments), the FCC is electing to proceed by the new “direct final rule” process.  This process announces that the rule is to be deleted and allows for a 10-day period in which the public can comment on the proposed deletion.  If significant comments are filed arguing that the rule should not be deleted, the FCC would proceed with a notice and comment process before acting.  If not, the deletion stands.  If adopted at the July 24 meeting, comments on the proposed rule elimination will be due 10 days after the item’s publication in the Federal Register, and unless the FCC determines that notice and comment procedures are necessary, the rule deletion will take effect 60 days after the Federal Register publication.    
  • The FCC’s Media Bureau granted a series of assignment applications permitting a broadcaster to acquire from subsidiaries of Sinclair, Inc. four TV stations, including stations with two top-4 network affiliations on separate multicast streams in both the Qunicy-Hannibal-Keokuk, IA-IL-MO and Ottumwa-Kirksville, IA-MO DMAs.  The assignee also requested a continuing TV satellite waiver of the FCC’s Local Television Ownership Rule for Sinclair’s two TV stations in the Champaign-Urbana and Springfield-Decatur, IL DMA.  The Bureau rejected a petition to deny against the applications which claimed that Sinclair lacked the required character qualifications to be an FCC licensee because it set up “sidecar” entities to evade the FCC’s TV ownership limitations in certain markets, finding that the FCC had previously considered and rejected arguments about these sidecar entities and that these concerns were unrelated to the present transaction.  As for the present applications, the Bureau found that the assignee made the required public interest showing to justify an exception to the FCC’s Top-4 Prohibition (which prohibits broadcasters from owning two of the top-4 affiliated TV stations in a DMA) to allow it to continue to have two network affiliations in each market, concluding that, without the action, viewers in the markets would lose access to network over-the-air programming as the DMAs could not support another independently owned network-affiliated station.  The Bureau also granted the request for a continuing satellite waiver, finding that the grounds that initially justified the Champaign station’s operation as a satellite of the Springfield station remained unchanged. 
  • The Media Bureau also granted the license renewal applications for three Maryland TV stations over a petition to deny claiming that Sinclair, the licensee of one of the stations, controlled the other two stations and that Sinclair has repeatedly violated the FCC’s sponsorship identification rules, has failed to negotiate with multichannel video programming distributors in good faith, and has failed to maintain its online public inspection files.  Many of these issues were resolved in a Consent Decree, which we noted last week.  The petitioner passed away after filing the petition, and the Bureau rejected attempts to substitute an unrelated party as the petitioner, leading the Bureau to grant the renewal applications as there was no party left to prosecute the petition.
  • The US Supreme Court agreed to hear in its next term a First Amendment challenge by the National Republican Senatorial Committee to restrictions on the amount of money that political parties can spend in coordination with candidates for federal office, potentially setting the stage to give candidates access to additional party funds for advertising and other campaign expenses. 
  • The FCC’s Enforcement Bureau issued two Notices of Illegal Pirate Radio Broadcasting against a Bronx, New York landowner and a Sweet Home, Oregon landowner for allegedly allowing pirates to broadcast from their properties.  The Bureau warned the landowners that the FCC may issue fines of up to $2,453,218 under the PIRATE Radio Act if the landowners continue to permit pirate radio broadcasting from their properties.

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.

  • Olivia Trusty was sworn in as an FCC Commissioner, restoring the Commission’s quorum just before its regular monthly Open Meeting.  With there now being a 2-1 Republican majority, many believe that the Commission will move forward with Chairman Carr’s deregulatory agenda.  In the Press Conference following Thursday’s open meeting, Carr promised that the FCC would have a very busy July and August.  The release of a request to refresh the record on the television national ownership caps the day after Trusty was confirmed (an FCC release which we wrote about on our Broadcast Law Blog this week) may signal the start of proceedings impacting broadcasters.
  • The NAB announced that a majority of the members of both the House of Representatives and the Senate are now co-sponsoring the AM for Every Vehicle Act (see our article here for more details on that Act).  While a majority of Congress has now committed to vote for the legislation protecting AM radio in cars, Congressional leadership must schedule the bill for debate and a vote before the requirements can become law. 
  • The FCC’s Enforcement and Media Bureaus entered into a Consent Decree with Sinclair Broadcast Group to resolve investigations arising from the Media Bureau’s review of its stations’ license renewal applications, including whether some of its stations failed to timely upload Quarterly Issues/Programs Lists and commercial limits certifications to their Online Public Inspection Files and whether it failed to timely file the renewal for one of its TV translators.  Also resolved were claims that one of Sinclair’s TV stations failed to comply with the FCC’s closed captioning rules.  In addition, the Consent Decree settled a September 2024 Forfeiture Order initially imposing a $2,652,000 penalty against Sinclair as well as penalties against several other broadcasters (who were not a party to the Consent Decree and remain subject to the order) for exceeding the limits on commercialization in programming directed to children ages 12 or under (a decision we noted here).  While the Consent Decree does not require Sinclair to admit that it violated the FCC rules, Sinclair must pay a $500,000 civil penalty and enter into a compliance plan to ensure that future FCC rule violations do not occur.
  • The US Court of Appeals for the District of Columbia Circuit issued an Opinion rejecting a claim that the FCC had erred in concluding that only Low Power Television stations in DMAs with fewer than 95,000 households were eligible to file for Class A status under the Low Power Protection Act passed by Congress in 2023 (we noted the FCC decision on the limits of the Act here).  Class A status gives an LPTV station protection against interference from new or improved full-power stations and from any future repacking of the TV spectrum.  The Court rejected arguments of the petitioner, including the argument that the household limit was meant to apply to an LPTV station’s community of license not its DMA, finding that the FCC’s reading of the statutory language was the correct one. 
  • The FCC announced that comments and reply comments are due July 23 and August 22, respectively, in response to its April Notice of Proposed Rulemaking proposing updates to its foreign ownership rules adopted under Section 310(b) of the Communications Act and applicable to many FCC licensees, including broadcasters.  Section 310(b) prohibits foreign entities, individuals, and governments from holding ownership interests of more than 20% in an FCC licensee and ownership interests of more than 25% in a U.S. entity that directly or indirectly controls an FCC licensee.  FCC licensees, however, can ask the FCC to approve foreign ownership interests above the 25% threshold.  The NPRM proposes the adoption of rules detailing many of the policies that the FCC has adopted for dealing with such requests.  We initially noted the adoption of the NPRM here. 
  • Twenty-three state attorneys general filed a joint amicus brief supporting PBS and NPR’s lawsuit challenging President Trump’s Executive Order ending federal subsidies for NPR and PBS provided through the Corporation for Public Broadcasting (CPB).  The attorneys general note that Congress established the CPB through the Public Broadcasting Act of 1967, for the express purpose of maintaining a public broadcasting system free from government influence and intrusion, and they argue that the Executive Order is unconstitutional for violating the First Amendment and conflicting with Congress’ authority to decide whether and how to fund public media through its power of the purse.  They further note the importance of NPR and PBS’s services to their local communities, including their provision of emergency and public announcements and educational programming.  They conclude by stating that losing public media would erode public trust and leave many American communities in the dark.
  • At its Open Meeting, the FCC adopted a Report and Order proposing to streamline its cable rate regulations, many of which are now obsolete or unworkable due to the end of most cable rate regulation years ago.  The full text of the decision of the FCC is available here. 
  • The Enforcement Bureau issued a Notice of Illegal Pirate Radio Broadcasting to an owner and a property manager of a property in the Bronx, New York for allegedly allowing a pirate to broadcast from the property.  The Bureau warned the landowner and the property manager that the FCC may issue a fine of up to $2,453,218 under the PIRATE Radio Act if either of them continue to permit pirate radio broadcasting from the property.
  • The FCC released a Small Entity Compliance Guide regarding compliance with its amended rules permitting digital FM radio broadcast stations to initiate asymmetric sideband operations.  As we noted here, the FCC released a Report and Order in September 2024 permitting digital FM radio stations to operate at different power levels on their upper and lower digital sidebands.  In that Order, the FCC said that to initiate operations with asymmetric sidebands, a notification of digital FM operations would have to be made using the Form 335-FM.  As we noted here, FCC’s Media Bureau announced that May 23 was the effective date of the FCC’s rules adopted in the Order, and the Form 335-FM could now be filed as its use had been approved by the Office of Management and Budget.
  • The Media Bureau entered into a Consent Decree with a South Carolina LPTV station which, due to an administrative oversight, failed to timely file a license application before its construction permit expired and then operated without a valid authorization for nearly four years.  The Consent Decree requires that the station pay a civil penalty of $13,000.

On our Broadcast Law Blog, we discussed upcoming regulatory deadlines in July affecting broadcasters.  These include Quarterly Issues Programs lists for all full-power stations, due in public inspection files by July 10, as well as comments in several FCC proceedings. 

As next week is a short week, given the July 4th Holiday on Friday, depending on the activity that takes place, we may take next weekend off.  So, if you don’t see an update next weekend, we will be back with a summary of the regulatory activity in the intervening two weeks on July 13. 

Last week, the FCC released a Public Notice requesting comments to refresh the record compiled in 2018 in a proceeding that proposed to review the TV national ownership cap.  That cap limits any company from having attributable interests in full-power TV stations that reach more than 39% of the nationwide TV audience.  That 2018 proceeding was begun (with a late December 2017 Notice of Proposed Rulemaking)  to assess whether the FCC should raise the cap, and also to explore whether it has the power to do so (see our article here).  This week’s Public Notice, released by the FCC’s Media Bureau, not only seeks information about the questions raised in 2018, but it also poses a number of new issues reflecting the concerns of the current Commission. 

The Public Notice is not seeking comment on the local broadcast ownership rules that govern how many TV (and radio) stations one owner can have in any market.  Those issues are separately considered in the FCC’s Congressionally-mandated Quadrennial Reviews, where every four years the FCC must justify that the local ownership rules remain necessary in the public interest as a result of competition.  The Commission should be considering the local rules this year, as it is in the fourth and final year of the Quadrennial Review cycle for 2022, and also possibly because of the results of the pending appeal of the 2018 Quadrennial Review (see our article here) – a decision in that appeal could be released at any time.  The 39% national TV ownership cap was adopted by Congress and is not specifically subject to the Quadrennial review – hence the questions that were raised in the 2018 proceeding about the FCC’s authority to review these rules.

Continue Reading FCC Asks for Public Comment on Proposal to Update the 39% National Ownership Cap for Television

The lazy days of summer provide little respite from the regulatory actions of importance to broadcasters.  July brings quarterly requirements, including most importantly, the obligation to upload Quarterly Issues/Programs Lists to a station’s online public file.  There are comment deadlines in July in three FCC proceedings: on regulatory fees, on a proposal for LPTV stations to operate under the 5G Broadcast transmission standard, and in the FCC’s proposal to expand foreign ownership disclosure requirements for FCC-issued licensees, including broadcasters.  Political file windows are also opening in a few states.  So, even if the beach chair is calling, remember to keep an eye on dates that can affect your stations.

The one date that affects all full-power broadcasters, including Class A TV stations, is July 10 -the deadline for all full power and Class A television stations and full power AM and FM radio stations, both commercial and noncommercial, to upload their Quarterly Issues/Program lists for the second quarter of 2025 to their OPIFs.  The lists should identify the issues of importance to the station’s service area and the programs that the station aired between April 1 and June 30, 2025, that addressed those issues.  These lists must be timely uploaded to your station’s OPIF, as the untimely uploads of these documents probably have resulted in more fines in the last decade than for any other FCC rule violation.  As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its community.  See our article here for more on the importance of the Quarterly Issues/Programs list obligation.

July 10 is the deadline for a number of other online public file obligations that apply to certain stations.  The following obligations apply to stations if they have any of the information listed below:

  • documentation from noncommercial educational stations not affiliated with NPR or CPB of any on-air fundraising benefitting third parties that interrupted their normal programming (see our article here for a further explanation of this requirement),
  • documentation by Class A television of their continuing eligibility for Class A status, and
  • documentation from full power television, Class A television, and full power radio stations of any programming time that was leased by a foreign government or an agent of a foreign government or provided by a foreign entity for free in exchange for its airing (see our articles here and here for more information).

There are also deadlines for public comment in a number of FCC proceedings. July 1 is the deadline for reply comments responding to comments filed in early June on HC2 Broadcasting Holdings, Inc.’s petition for rulemaking proposing that LPTV stations be permitted to operate using the 5G Broadcast transmission standard as an alternative to the ATSC 1.0 and 3.0 transmission standards.  According to the petition, this standard can be received by compatible mobile devices and can offer services including enhanced programming, datacasting, and other digital connectivity.  The petition proposes requiring 5G Broadcast LPTV stations to provide at least one free-to-air video signal. 

July 7 is the deadline for comments responding to the FCC’s Notice of Proposed Rulemaking proposing its fiscal year 2025 regulatory fees for broadcasters and for operational earth stations.  The FCC proposes to continue calculating each full-power TV station’s regulatory fee using the population-based methodology in use since 2020, using a factor of $0.006379 per population served for the full-power TV station regulatory fee.  This represents roughly a 3% decrease from the prior year ($0.006598).  Radio fees are proposed to change very little from those paid last year.  The FCC is also proposing an earth station fee of $2,840 for fiscal year 2025, which will be assessed under its new fee methodology adopted this month (see our discussion here).  Reply comments are due July 21.

July 9 is the comment deadline on the FCC’s proposal to close numerous “dormant” rulemaking proceedings. Numerous Media Bureau proceedings are proposed to be deleted.  These go from station-specific items to those that affect numerous stations in which there has been little recent activity including, for instance, portions of the proceeding to revitalize AM radio.   Broadcasters should carefully review the list of proceedings proposed for termination to see if any were inadvertently included that affect your station. Reply comments on the proposals are due by July 24. 

July 21 is the deadline for comments responding to the FCC’s Notice of Proposed Rulemaking proposing to require certain FCC-regulated entities and auction applicants, including all broadcast licensees and permittees, to file a certification stating if they are owned or controlled by a foreign adversary.  As we discussed here and here, the FCC proposes to define foreign adversaries as the Peoples’ Republic of China, Cuba, Iran, North Korea, Russia, and Venezuela.  Entities certifying yes would then need to disclose all ownership interests held by a foreign adversary (including interests held by their citizens or companies organized under their laws) of 5% or greater and describe the nature of the foreign adversary’s control.  The FCC also proposes to revoke FCC authorizations for entities filing false or incomplete certifications or for failing to file certifications when required.  For broadcasters, the FCC seeks comment on whether to use the broadcast ownership rules’ attribution criteria to determine a foreign adversary’s attribution to a broadcaster, and whether to make any changes to the existing foreign sponsorship identification rules to require disclosures for programming provided by foreign adversaries.  Reply comments are due August 19.

In past monthly updates, we have noted certain Lowest Unit Rate windows that opened in June for elections in July.  There are additional LUR Windows that open in July.  There are special Congressional elections in Virginia and in Arizona to fill vacant seats in the US House of Representatives.  In Virginia’s 11th District, an election to fill the vacant seat will be held on September 9, so stations serving that District have an LUR Window that opens on July 11th.  In the Arizona 7th District, the special election to fill the seat will be held on September 23, meaning that the Window will open on July 25th.  Additional LUR windows for broadcasters located in Delaware, Oklahoma, and Tennessee open this month tied to state and local elections occurring in August and September – meaning that Lowest Unit Rates apply to sales to candidates and their authorized committees (see our article here on the basics of computing LUR):

LUR DATESTATEELECTION DATEELECTION TYPE
July 1, 2025DelawareAugust 30, 2025Municipal Election – Henlopen Acres
July 8, 2025DelawareSeptember 6, 2025Municipal Election – Bethany Beach
July 11, 2025OklahomaSeptember 9, 2025Special Election
July 13, 2025TennesseeSeptember 11, 2025Municipal Election – Lexington
July 22, 2025DelawareSeptember 20, 2025Municipal Election – Dewey
July 27, 2025TennesseeSeptember 25, 2025Municipal Election – Dickson

As a refresher, in the 45 days before a primary election, and 60 days before a general or special election, broadcasters must extend to legally qualified candidates their lowest unit rate and continue to follow all other applicable political broadcasting rules.  For a deeper dive on how to prepare for the 2025 elections, see our post here, which also includes a link to our comprehensive Political Broadcasting Guide.  Also, take a look at our 2025 Broadcasters’ Calendar to see if your state has any upcoming primary, general, or special election (though confirm these dates locally as some dates have changed since the calendar was prepared).

Looking ahead to August, Annual EEO Public File Reports are due August 1 for radio and television station employment units with five or more full-time employees located in California, Illinois, North Carolina, South Carolina, and Wisconsin.  Mid-Term EEO Reviews also commence August 1 for radio station employment units in California with eleven or more full-time employees and for television station employment units in Illinois and Wisconsin with five or more employees.  We’ll have more August regulatory dates at the end of July.  

As always, consult your own legal and technical advisors for other dates of importance that might apply to your stations in the upcoming month.

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 Senate voted 53-45 to confirm Olivia Trusty as an FCC Commissioner on a largely party-line vote.  As a result of Trusty’s confirmation, the FCC now has a quorum and a Republican majority, and it may well soon move on some broadcast deregulatory proposals, including ownership rule changes.  Senator Cantwell (D-WA), the Ranking Democratic member on the Senate Commerce Committee, expressed the concerns of many Democrats, by sending Senate Majority Leader Thune (R-SD) a letter expressing her frustration with the Senate’s failure to follow the normal practice of pairing Republican and Democratic FCC Commissioner confirmations, as there remain two additional vacant seats on the FCC.   She expressed her concern that, as President Trump has not been nominating Democrats for seats that are reserved for the minority party on the governing boards of federal government agencies, there could be further moves made to operate the FCC on a strictly partisan basis.
  • The FCC’s Media Bureau released a Public Notice seeking to refresh the record in the National Television Multiple Ownership Rule proceeding.  In December 2017, the FCC released a Notice of Proposed Rulemaking seeking comment on whether to retain, modify, or eliminate its national television ownership cap, which prohibits entities from owning or controlling broadcast TV stations that, in the aggregate, reach more than 39% of the TV households nationwide.  The NPRM also sought comment on the “UHF discount”- a 50% discount for UHF stations in calculating compliance with the 39% cap.  The Bureau seeks comment on a number of issues including marketplace changes impacting the national cap; whether changes in that national cap would affect broadcaster’s ability to negotiate for programming in competition with the digital streaming companies; developments in the relationship between national broadcast networks and their local affiliate TV station groups that impact the cap; and whether the FCC’s prior conclusion that a national cap preserves a market balance between the networks and local affiliates remains valid.  The Bureau further asks that, if the FCC retained the cap, whether common ownership of stations that are unaffiliated with major national broadcast networks (i.e., ABC, CBS, NBC, or FOX) should be excluded and whether the UHF discount should be retained. 
  • The FCC announced that comments and reply comments are due July 21 and August 19, respectively, on the Notice of Proposed Rulemaking proposing to require certain FCC-regulated entities and auction applicants, including all broadcast licensees and permittees, to file a certification stating if they are owned or controlled by a foreign adversary.  As we noted here and here, the FCC proposes to define foreign adversaries as the Peoples’ Republic of China, Cuba, Iran, North Korea, Russia, and Venezuela.  Entities certifying yes would need to disclose all ownership interests of 5% or more held by a foreign adversary (including interests held by their citizens or companies organized under their laws).  The FCC also proposes to revoke FCC authorizations for entities filing false or incomplete certifications or for failing to file certifications when required.  For broadcasters, the FCC seeks comments on whether to use the broadcast ownership rules’ attribution criteria to determine a foreign adversary’s attribution to a broadcaster, and whether to make any changes to the existing foreign sponsorship identification rules to require additional disclosures when programming is provided by foreign adversaries.
  • The FCC’s Administrative Law Judge ruled that an owner of a group of LPTV stations lacked the qualifications necessary to be an FCC licensee because he falsely certified to the FCC that he was a U.S. citizen and he transferred his interests in the stations to his niece, a minor, likely to shield the assets from a civil judgment in a lawsuit, while still maintaining actual control.  In 2010, he purportedly assigned his interests in broadcast licenses to his niece, but a consummation notice was not filed until 2014.  In investigating the late-filed notice, the Media Bureau found that the former owner retained an unlawful reversionary interest in the stations because he agreed with his niece not to file the notice until final payment was made for the stations, and continued controlling the stations’ programming, finances, and operations.  The Bureau also discovered that he misrepresented to the FCC that he was a U.S. citizen on numerous occasions.  After a hearing, the ALJ found him unqualified, and fining him $188,491 and barring him from owning or controlling any broadcast station in the future.  The decision also required any broadcaster who uses the former owner’s broadcast consulting services to disclose that fact in all FCC filings.
  • The Media Bureau announced that iHeartMedia filed a petition for declaratory ruling seeking FCC approval of several new foreign individuals and entities associated with Global Media & Entertainment Investments Ltd. (GMEI), an existing foreign investor in iHeart.  Section 310(b) of the Communications Act prohibits foreign entities, individuals, and governments from holding ownership interests of more than 20% in an FCC licensee and ownership interests of more than 25% in a U.S. entity that directly or indirectly controls an FCC licensee.  FCC licensees, however, can petition the FCC to approve certain foreign ownership interests above those thresholds.  The FCC previously approved direct and indirect foreign ownership of up to 100% in iHeart, as well as approving GMEI’s interests.  iHeart’s petition states that GMEI now wishes to transfer some or all of its existing iHeart interests to a related corporate entity and to expand the number of individuals associated with its iHeart interests. 
  • The Media Bureau granted an application for a new Wyoming FM station, which was filed in conjunction with the applicant’s request for a new FM Channel 260C0 Tribal Allotment at Ethete, Wyoming, located on the Wind River Indian Reservation (which we noted here and here).  The applicant requested a waiver of the FCC requirement that a station using a tribal allotment either have at least 50% of its service contour over Tribal Lands or that its proposed facilities serve at least 2,000 persons with at least 50% of the total population on Tribal Lands.  The applicant stated that this requirement was difficult to meet because of the large size of the reservation and the station transmitter site’s location at the edge of the reservation.  The Bureau granted the applicant’s waiver request, finding that the station fell short of the service area requirement by less than 3% while still serving 20,000 residents of the reservation – over 85% of the reservation’s total population. 

On our Broadcast Law Blog, we discussed broadcasters’ obligations under the FCC’s modified broadcast foreign sponsorship identification rules, which became effective June 10 (even though some of the compliance obligations under the new rule will not be enforced until December 8).  These rules require that broadcasters get certifications from all buyers of program time certifying that the buyers are not representatives of foreign governments.  The modified rules extended this requirement to verify that buyers of spot advertising do not represent foreign governments where their spots are not for commercial products or services.  Thus, spots including issue ads and paid PSAs would be covered by the verification requirement. 

Just about a year ago, the FCC issued an Order which, as we wrote here, contained some good news and some bad news for broadcasters.  The good news was that the FCC came up with a relatively short form (far shorter than the multi-page form originally proposed) that broadcasters could use to assess whether a buyer of program time on the station was a foreign government or an agent a foreign government.  This assessment of buyers of program time was required by FCC rules that became effective in 2022.  In 2022, no form was provided, so broadcasters had to come up with their own certifications to get assurances that program time buyers were not foreign governments or their agents (and if they were, public file and other enhanced on-air disclosures were required).  Last week, the FCC announced the effective date of a new form which, if signed by the broadcaster and the ad buyer, provides broadcasters with a safe harbor for assurances that the buyer is not a foreign agent (the forms are at Appendix C and D on pages 47 and 48 of the 2024 FCC Order).[1] 

The bad news in the order from last year was that the FCC extended the requirement that this assessment be made from buyers of program time, to also include buyers of paid PSAs and other spots that are not for a commercial product or service (including political issue ads – but excepting candidate ads on the theory that those ads had already been vetted for foreign influence by the qualification of the candidate to run for office).  While these rules were adopted a year ago, they have been on hold, until now, while a standard Paperwork Reduction Act review was completed (as required for all rules imposing new paperwork obligations on those subject to the rules). 

Continue Reading FCC Announces Effective Date of Modifications to Rules Governing the Purchase of Broadcast Airtime By Agents of Foreign Governments

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 announced that June 10 is the effective date for the FCC’s modified broadcast foreign sponsorship identification rules, but the announcement stated that the FCC would delay its enforcement until December 8 to give broadcasters time to comply with the new rules.  In June 2024, the FCC released a Report and Order providing a written certification with standardized language that a broadcaster could use to determine whether those who “lease” program time on their stations are foreign government agents (see our discussion here).  Use of this new form, or another form with comparable language, will be required after December 8.  The 2024 decision also required that, for paid PSAs and other spots that are not for commercial products or services (including issue ads), broadcasters confirm whether their sponsors are representatives of foreign governments.  The verification requirement for buyers of paid PSAs and issue ads is being challenged by the NAB in a court appeal, which does not necessarily stop it from becoming effective.  There was no specific reference in this week’s announcement as to whether enforcement of the requirement for paid PSAs and issues ads is currently effective or whether it, too, is covered by the December 8 compliance deadline.  Check with your counsel for advice on this issue. 
  • Senate Majority Leader John Thune filed “cloture” on the nomination of Olivia Trusty to fill one of the three vacancies on the FCC.  This means that the Senate will vote to end debate on her nomination and likely move to a vote on her nomination.  These votes are expected in the next two weeks, potentially quickly restoring a quorum and establishing a Republican majority on the FCC.
  • The U.S. House of Representatives narrowly passed a bill which would rescind $1.1 billion in funding that had previously been appropriated to the Corporation for Public Broadcasting for fiscal years 2026 and 2027.  The Senate must now consider that bill before it becomes effective.  Senator Blackburn also introduced the Free Americans from Ideological Reporting (FAIR) Act which, if adopted, would establish into law President Trump’s Executive Order issued last month blocking the CPB from distributing federal funding to PBS and NPR (see our discussion here). 
  • Independent Senators Bernie Sanders and Angus King introduced The End Prescription Drug Ads Now Act proposing to ban ads for prescription drugs in print, broadcast, and online media (see Sanders’ Press Release for more information).  This follows up on the Make American Healthy Again report we noted two weeks ago, making a similar proposal.  Were such a bill ever to become law, we would expect First Amendment challenges (this article on our Broadcast Law Blog just a few years ago shows how the courts look skeptically at laws restricting speech about legal products – in that case, a court decision finding a law mandating price disclosures about prescription drugs to be unconstitutional).
  • The FCC released a Third Report and Order adopting new fee calculation methodology for earth stations.  In the Order, the FCC decided not to create additional earth station fee categories or to expand regulatory fees to non-operational earth stations, as it had proposed in February (see our note about that proposal here).  The FCC also declined to assess regulatory fees on receive-only earth stations because the registration of receive-only earth stations is not an authorization, but rather a record of the existence of an earth station entitled to interference protection. 
  • Reply comments were recently filed responding to the National Association of Broadcasters’ petition for rulemaking asking for a hard deadline for full-power TV stations to complete the transition to the new ATSC 3.0 transmission standard.  As we noted here and here, the NAB proposes that the transition occur in two phases: TV stations in the top 55 markets would be required to transition by February 2028; and TV stations in remaining markets would transition by February 2030.  Commenters were again mixed in their position on the NAB’s petition.  The National Association of Broadcasters, the Society of Broadcast Engineers, ABC, NBC, CBS , and FBC Television Affiliates Associations, and the Advanced Television Broadcasting Alliance repeat their support for a mandatory ATSC 3.0 transition, noting the benefits that it would have for the broadcast industry.  Other commenters, including representatives of the tech industry and several advocacy organizations, urged the FCC not to proceed with a mandatory transition because it conflicts with the deregulatory policies of the Trump Administration and the FCC’s “Delete, Delete, Delete” proceeding (see comments here, here, here, here, here, here, and here).  Public Knowledge and other public interest advocates argued that the FCC should deny the NAB’s petition, claiming that a mandatory ATSC 3.0 transition would cut off marginalized communities from over-the-air broadcast service.  LPTV broadcasters argued (here and here) that LPTV stations should not be subject to a mandatory transition and should be able to use ATSC 1.0, ATSC 3.0, or 5G Broadcast as they determine best suited to serve the local market.
  • The FCC released a Small Entity Compliance Guide for its rules allowing FM booster stations to originate limited amounts of programming.  As we noted here, in November 2024, the FCC adopted 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 booster’s primary station (see our article providing more details about this permitted service, referred to as “geocasting” or “zonecasting” technology).
  • The FCC’s Enforcement Bureau issued a Notice of Illegal Pirate Radio Broadcasting to an Irvington, New Jersey landowner for allegedly allowing a pirate to broadcast from its property.  The Bureau warned the landowners that the FCC may issue a fine of up to $2,453,218 under the PIRATE Radio Act if the landowner continues to permit pirate radio broadcasting from its property.
  • The Media Bureau entered into a Consent Decree with a Vermont FM station to resolve its investigation into the station’s failure to timely file its license renewal application.  The Bureau found that the station filed its renewal application over one month late, which the station admitted was the result of an inadvertent oversight.  The Consent Decree requires that the station pay $2,250 civil penalty and enter into a compliance plan to ensure that the station’s future renewal applications are timely filed.
  • The Media Bureau affirmed its dismissal of a Florida LPFM construction permit application for the applicant’s failure to provide evidence that it was a nonprofit educational organization incorporated or recognized under Florida state law, which it needed to do to show that it was eligible to be an LPFM station licensee.  The applicant sought reinstatement of the application to provide the missing information.  The Bureau rejected the applicant’s request because the FCC’s LPFM application rules require applicants to be eligible to hold an LPFM license when their applications are originally filed and, from the evidence provided, it appears that state authorities did not recognize the formation of the applicant as being effective until after the application filing deadline.

It was just a few weeks ago when we posted our article talking about how June would bring a Republican majority to the FCC, speculating as to what deregulatory issues would be on the Chairman’s agenda.  Last Wednesday morning, I was on a video call with a broadcaster’s association’s Board of Director, passing along the same message.  Only minutes after I left that call, the news came Republican Commissioner Simington had announced his departure from the FCC effective last Friday.  Shortly thereafter, Commissioner Starks, the Democrat whose planned departure was to have given the Republicans a majority on the FCC, announced that last Friday would also be his departure date.  Suddenly, the FCC had only two Commissioners – one Democrat and one Republican – not even enough for the quorum necessary to do business in the normal course.  So thoughts of quick action on changes to the FCC’s ownership rules or on the many deregulatory Delete, Delete, Delete proposals that have been made seem to be on hold for the moment.  What is likely to happen?

First, it must be remembered that already pending is the nomination of Republican Olivia Trusty to the Commission seat that was vacated when Jessica Rosenworcel left her role as Chair of the FCC upon the change in administration.  Trusty has had a confirmation hearing and was approved by the appropriate Senate committee. All that stands between her and a seat on the FCC is approval by the full Senate – which would then provide the FCC with a quorum and a Republican majority.  But, watch as there could be delays in that confirmation process. 

Continue Reading FCC Loses Two Commissioners and a Quorum – What Does It Mean for Broadcasting?