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

  • The FCC’s Public Safety and Homeland Security Bureau partially granted NAB and REC Networks’ waiver request (discussed in our last update here) of the December 12, 2023 deadline for compliance with the FCC’s new Emergency Alert Service (EAS) rules – which require that, when a station receives an over-the-air EAS alert, it must wait at least 10 seconds to determine if a CAP alert has been sent through the IPAWS system and, if it has, the station should rebroadcast that internet-delivered CAP alert rather than the one received over the air.  We wrote more about that requirement on our Broadcast Law Blog, here.  The Bureau extended the compliance deadline until March 11, 2024 for EAS Participants using Sage EAS equipment, as Sage is only now delivering an update to its equipment to allow for this default-to-CAP requirement to be implemented.  The Bureau, however, declined to extend the compliance deadline for all EAS Participants.  Thus, EAS Participants that do not use Sage EAS equipment must still comply with the December 12, 2023 deadline. 
  • The FCC’s Media Bureau reminded TV broadcasters that the FCC’s audio description rules will apply to DMAs 91 through 100 as of January 1, 2024.  As we previously discussed here, the FCC expanded the FCC’s audio description requirements to commercial broadcast television stations affiliated with one of the top four television broadcast networks (i.e., ABC, CBS, Fox, and NBC) in Designated Market Areas 101-210.  Currently, the FCC’s audio description requirements apply only to the top 90 DMAs.  As a result of the FCC’s Order, the audio description requirements will now expand to 10 additional DMAs each year – with the expansion to DMA 91-100 effective as of January 1, 2024, and then DMAs 101-110 on January 1, 2025, and ending with DMAs 201-210 on January 1, 2035.  Audio description provides narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue, for the benefit of individuals who are blind or visually impaired. 
  • The Copyright Royalty Board published in the Federal Register two notices of cost-of-living increases in the fees paid by broadcasters for the use of music in their operations.  The first notice announces that, for webcasters, including broadcasters who stream their programming on the Internet or deliver it through mobile apps, the SoundExchange royalty fees will increase to $.0025 per performance (up from $.0024 in 2023) for performances delivered on or after January 1, 2024.  The second notice announces that noncommercial radio stations affiliated with high schools or colleges but not affiliated with NPR or CPB will pay yearly royalties of $194 to both SESAC and GMR (up from the $188 paid in 2023) for licenses to perform musical compositions licensed by these organizations on these school’s over-the-air stations.  We wrote more about these royalty increases on our blog, here. 
  • Also in the music royalty world, just before Thanksgiving, BMI announced that the company was being sold to an investment fund.  BMI was founded by broadcasters over 80 years ago to moderate music licensing fees by providing a competitor to ASCAP.  Until 2023, it operated as a non-profit entity. BMI collects royalties for songwriters and their publishing companies when their music is performed in public (including by broadcasters, online companies, retailers, bars and restaurants, and other venues that play music outside the home or other circles of close family and friends).  BMI is currently engaged in litigation with the Radio Music License Committee over how much commercial radio stations should pay for the use of BMI-licensed music.  How private ownership by an investment fund will affect this litigation and future royalties, and whether changes to the antitrust consent decree under which BMI operates will be sought (see our blog article on recent consideration given to changes in the consent decree), are all unknowns raised by this sale. 
  • The FCC circulated drafts of two items of interest to broadcasters that it will consider at its next open meeting on December 13:
    • A Notice of Proposed Rulemaking, which proposes to eliminate video service “junk fee practices” by cable and direct broadcast satellite (DBS) service providers.  As we wrote here, the FCC previously proposed “all-in-pricing” for cable and satellite services.  The FCC now proposes additional customer service protections that prohibit cable operators and DBS service providers from imposing a fee for the early termination of a cable or DBS video service contract; and requiring cable and DBS service providers to provide subscribers with a prorated credit or rebate for the remaining days in a billing cycle after service cancellation.  
    • A Report and Order which, if adopted, will create rules implementing the January 2023 Low Power Protection Act (LPPA) – which provides LPTV stations in very small television markets with a limited window of opportunity to apply for status as Class A television stations.  Class A status gives a station protection from being bumped off its frequency by new full-power TV facilities.  The status also protects a station in the event of a future contraction of the TV band as recently occurred with the repacking that followed the 2017 TV “incentive auction.”  As we noted here, in March 2023, the FCC released a Notice of Proposed Rulemaking to implement the LPPA.  The FCC’s Order largely adopts the proposals in the NPRM – except that stations converting to Class A status will not lose their status if the Designated Market Area where they operate subsequently grows beyond the limit of 95,000 households that applies to stations eligible to apply for this upgraded status. 
  • The FCC has until December 27th to comply with a court order requiring the agency to conclude its still-pending 2018 quadrennial review of its local broadcast ownership rules (see our blog article for more on the Court order and on the issues under consideration in that proceeding, including a review of the local radio ownership limits, the restrictions on combinations of two of the Top 4 TV stations in any market, and the dual network rule forbidding common ownership of two of the Top 4 TV networks).  With that deadline in sight, lobbying at the FCC on how the FCC should conclude the proceeding has continued during the past two weeks.  A small broadcaster suggested that the FCC should keep the overall radio ownership caps in place, but eliminate limits on the number of AM vs. number of FM radio stations a single owner could hold in a market.  Another group of broadcasters urged the FCC to eliminate the local radio ownership rules given the dramatic change in marketplace competition since the ownership rules were adopted, noting that local stations need greater scale to compete with digital media for advertisers and listeners.  Those comments suggested that radio’s share of local advertising and audience has been cut in half in the last 12 years, while the shares of digital media companies, unconstrained by local ownership restrictions and offering no local service, have exploded.  A group of TV broadcasters noted their concerns (here and here) with pay TV advocates seeking to treat LPTV stations and multicast streams as full power stations for purposes of the TV Duopoly rule (which restricts the ownership of two TV stations in the same market), noting that many small markets cannot support four full-power television stations and therefore continuing to permit dual or multiple affiliation agreements by a single broadcaster is the only way that such markets will receive a full complement of television network programming.  Finally, the NCTA urged the FCC to retain the prohibition on combinations of Top 4 TV stations arguing that these rules prevent broadcasters from exercising undue leverage during retransmission consent negotiations. 
  • The FCC’s Enforcement Bureau issued nine Notices of Illegal Pirate Radio Broadcasting to landowners in the Boston area for apparently allowing illegal broadcasting from their properties.  The Bureau warned the landowner that the FCC may issue fines of up to $2,316,034 under the PIRATE Radio Act if the FCC determines that the landowner continues to permit any individual or entity to engage in pirate radio broadcasting from their property.  The nine notices can be found here, here, here, here, here, here, here, here, and here.
  • The FTC took action to expand its authority to investigate the use of artificial intelligence to engage in fraud, deception, infringements on privacy, and other unfair practices by streamlining its staff’s ability to issue civil investigative demands (CIDs) – an investigative tool much like a subpoena – in investigations relating to AI.  The FTC issues CIDs to obtain documents, information, and testimony that advance FTC consumer protection and competition investigations. 
  • The FTC also announced that it issued warning letters to two trade associations and 12 social media influencers alleging that the influencers were receiving payments or other consideration for Instagram and TikTok posts promoting sugar and other sweeteners without providing adequate notice of the payments and the sponsors in those posts.  The letters ask that the recipients contact the FTC to explain how the FTC’s concerns would be addressed and warned of $50,120 fines that could be imposed for each violation.  These actions reflect the FTC’s policy requiring disclosure to the public when endorsements and testimonials for products and services, even those on social media, are sponsored.  See our articles here and here on these policies.
  • The FCC’s Media Bureau and Managing Director revoked a Texas AM station’s license for failure to pay delinquent FCC regulatory fees.  The station failed to timely pay all of its regulatory fees for FYs 2012, 2015, 2016, 2017, 2018, 2019, 2020, and 2021; and it did not respond to an Order to Pay or Show Cause (which we wrote about here) providing either evidence that the fees were fully paid or an explanation why the fees should be waived or deferred.  The station still must pay the delinquent regulatory fees even though the station’s license was revoked.  While this is an extreme case, it is a reminder that the FCC takes unpaid regulatory fees seriously, and that licensees must ensure that such fees are timely paid.
  • The FCC’s Media Bureau denied an informal objection filed against a new noncommercial FM station application.  The objection claimed that the application should be denied because it did not comply with the FCC’s technical rules governing such applications – even after the application was refiled at FCC staff’s direction with amended technical parameters following its dismissal for being technically defective.  The Bureau instead granted the application – finding that the applicant was permitted to amend its amended application to resolve minor deficiencies in that amended application.
  • The FCC’s Media Bureau released a Notice of Proposed Rulemaking asking for comments on a TV station’s petition for rulemaking that proposes the substitution of Channel 29 for Channel 2 at Greenville, South Carolina.  The petitioner is proposing the channel substitution due to the station’s poor reception on VHF Channel 2 by viewers, another reflection of the superiority of UHF channels for the transmission of digital television signals.
  • Based on complaints, the FCC’s Enforcement Bureau issued Notices of Violation against two Texas FM translator stations for operating with antennas and at heights not approved by the FCC.  The stations have 20 days to respond to the notices detailing how the violations occurred and how they will remedy these violations.  Copies of the notices are available here and here.

On our Broadcast Law Blog, we wrote an article setting out many of the most significant regulatory dates for broadcasters in the month of December – see that summary here. 

In Federal Register notices published this week, the Copyright Royalty Board announced cost-of-living increases for two sets of music royalties.  Webcasters, including broadcasters streaming their signals on the web or through mobile apps, will be paying more to SoundExchange for the public performance of sound recordings.  In addition, noncommercial broadcasters affiliated with educational institutions, but not affiliated with NPR or CPB, will be paying more to SESAC and GMR for their over-the-air broadcasts.  These changes go into effect on January 1, 2024.  More information about each of these royalties is set out below. 

The webcasting royalties that are increasing are those that are paid to SoundExchange by those webcasters making “noninteractive digital transmissions” of sound recordings (see our article here on the difference between interactive and noninteractive transmissions).  This includes broadcasters who simulcast their over-the-air programming on the internet or through mobile apps (or through other digital means including smart speakers like Alexa, see our article here).  The notice just published in the Federal Register sets out the computations that the Board used to determine the amount of the cost-of-living increase.  Those computations led to a royalty rate for 2024 of $.0025 per performance for services that do not charge a subscription fee. A performance is one song played to one listener – so for one song paid to four listeners one time each, a webcaster pays a penny. For subscription services, the rate will be $.0031 per performance.  This represents an increase from the 2023 rates of $.0024 for nonsubscription performances and $.0030 per performance for subscription stream. 

Continue Reading Cost of Living Increases Announced for Music Royalties Paid by Webcasters to SoundExchange and by Noncommercial Broadcasters to SESAC and GMR

Even with the holidays upon us, regulation never stops.  There are numerous regulatory dates in December to which broadcasters need to keep in mind.  Furthermore, as the 2024 presidential campaign is already underway, there are political advertising deadlines to watch out for.  Here are some of the upcoming deadlines:

December 1 is the filing deadline for Biennial Ownership Reports by all licensees of commercial and noncommercial full-power TV/AM/FM stations, Class A TV stations, and LPTV stations.  The reports must reflect station ownership as of October 1, 2023 (see our article here on the FCC’s recent reminder about these reports).  The FCC has been pushing for stations to fill these out completely and accurately by the deadline (see this reminder issued by the FCC last week), as the Commission uses these reports to get a snapshot of who owns and controls what broadcast stations, including information about the race and gender of station owners and their other broadcast interests (see our article from 2021 about the importance the FCC attaches to these filings). 

Continue Reading December Regulatory Dates for Broadcasters – Biennial Ownership Reports, Annual EEO Public File Reports, LPFM Filing Window, LUC Political Windows for 2024 Election, and More

For the last few years at this time of the year, we’ve departed from our usual coverage of legal and policy issues to talk about something else – broadcasters giving back.  With Giving Tuesday upon us, we wanted to urge our readers to consider ways to give back to our industry.  I guess it is now a tradition, so we’ll do it again this year and suggest some of the many ways we can express our thanks to the industry in which we work.  Broadcasters have long been known for their service to their communities, service benefitting individuals and groups across the country.  While broadcasters are always giving back to their communities and should be celebrated for that, those of us who make our living in some aspect of the industry should recognize that there are plenty of ways for us to give back as well – both to those associated with the industry who have fallen on hard times, and to those who need assistance in obtaining education and training to enter the media industry we so appreciate.  We should all be thankful for jobs, friends, and good fortune. But we should also ourselves give back where possible.  In the broadcast industry itself, there are many groups doing good work.

One that bears mention is the Broadcasters Foundation of America, which provides relief to broadcasters and former broadcasters who have, for one reason or another, fallen on hard times – whether that be for health reasons or because of some other disaster that has affected their lives. The Foundation deserves your consideration. More about the Foundation and its service, and ways to contribute, can be found at their website, here.

Continue Reading Giving Back to the Broadcast Industry on Giving Tuesday

Even after yesterday’s deadline for filing ETRS Form Three in connection with the nationwide test of the Emergency Alert System back in October, there are two more deadlines coming next week that broadcasters should bear in mind.  As you prepare to celebrate the Thanksgiving holiday, don’t forget these FCC deadlines.  Most broadcasters have received plenty of notice about the December 1 deadline for Biennial Ownership Reports.  The FCC has been pushing for stations to fill these out completely and accurately by the deadline (see this reminder issued by the FCC just yesterday), as the Commission uses these reports to get a snapshot of who owns and controls what broadcast stations.  The reports also provide information about ownership diversity as they request information about the gender, race, and ethnicity of attributable owners.  The reports are required for all full-power stations (both commercial and noncommercial stations are covered) and for LPTV stations.  For more about the biennial ownership report filing requirement and the importance that the FCC puts on these reports, see our 2021 article here.

A deadline that has not received as much publicity is the November 29 deadline for users of the “13 GHz” spectrum to certify to the FCC that their systems are being used where licensed, or to file applications to modify the systems to accurately reflect their current use.  The spectrum, which includes operations from 12.7 to 13.25 GHz, is used by some broadcasters for Electronic News Gathering and for Studio Transmitter Links.  There may be other broadcast auxiliary uses beyond ENG and STLs that are also conducted in this band, so check your operations to see if a filing is required.

Continue Reading Reminder: Deadlines Next Week for Biennial Ownership Reports and Filings to Preserve and Protect Broadcast Auxiliary Operations in the 12.7-13.25 GHz (13 GHz) Band

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 NAB and REC Networks, an LPFM advocacy organization, jointly requested an extension of the December 12, 2023 deadline for broadcasters to comply with a new EAS rule.  The new rule requires a broadcaster, when receiving an EAS alert, to default for at least 10 seconds to the IPAWS internet-based alert system to see if a CAP-formatted message is conveyed, and to rebroadcast that CAP message unless it is not available, when the over-the-air “daisy-chain” delivered message can be broadcast.  The requirement to “default to CAP” was set out in the FCC’s September 2022 Report and Order which we wrote about on our Broadcast Law Blog, here.  The extension request states that Sage, a major EAS encoder-decoder manufacturer, is unable provide the necessary firmware update to their EAS equipment, used by many full-power and low power broadcast stations, in time for these stations to comply with the deadline.  With the intervening holiday season, NAB and REC Networks requested a 90-day extension of the deadline, until March 11, 2024.  Watch for FCC action soon on this request. 
  • FCC Chairwoman Rosenworcel announced the circulation of a draft Notice of Proposed Rulemaking which proposes prioritizing FCC review of applications seeking approval for license renewal and assignments or transfers of control when those applications are submitted by broadcasters that provide locally originated programming.  The proposal is intended to support and incentivize local journalism by rewarding broadcasters’ commitment to meeting the needs and interests of their local communities.  How the prioritization of these applications, which are, for the most part, routinely processed and granted within a few weeks of the end of statutorily required public comment periods, would promote local journalism was not set out in the announcement.  The full text of the proposal, which is not yet public, will presumably give such details. 
  • The FCC’s Media Bureau released a Public Notice announcing an effective date of November 16 for certain amendments to its ATSC 3.0 rules adopted in June (we previously discussed that decision, here).  The effective date was set by the publication in the Federal Register of final approval for new paperwork requirements set out in the FCC’s order amending the rules.  The newly effective rule requires a Next Gen TV station that programs multicast streams “hosted” by another station during the ATSC 3.0 transition to seek modification of its license on FCC Form 2100 to include those streams as part of its license.  These arrangements have up until now been permitted through Special Temporary Authority.  Stations currently operating with an STA must file a Form 2100 license application no later than the expiration date of their current STA. Any stations that have a pending multicast STA request, or a pending request for an extension of an expired STA, have until December 18 to file the Form 2100 license application.  Details about how to complete the application are in the Public Notice. 
  • The Media Bureau entered into Consent Decrees with two LPFM station licensees to resolve issues raised during the Bureau’s review of the stations’ license renewal applications:  
    • The Bureau entered into a Consent Decree with the licensee of a Puerto Rico LPFM station to allow the grant of the station’s license renewal.  The Consent Decree admitted to violations based on the failure of the church that was the station’s licensee to seek FCC approval when it merged with another church, resulting in a new licensee with a new controlling board.  The licensee also did not accurately certify in its renewal that there was a period when its station was silent for more than 30 days (even though that period of silence was approved by an FCC-granted STA), its failed to maintain station logs, and it did not provide information, when requested, stating that it had operational EAS equipment.  A compliance plan to ensure that these issues are not repeated was part of the Consent Decree. The station only avoided a fine by a showing that it could not afford to pay a penalty if one was assessed.    
    • The FCC’s Media Bureau entered into a Consent Decree with the licensee of a Kansas LPFM station following its disclosure in the station’s license renewal application that the station was constructed and operated with an antenna height different from what was authorized in its license.  The Consent Decree required that the licensee pay at $2,500 fine and seek FCC authorization for the location of the antenna at the height at which it is operating. 
  • The FCC continued to crackdown on pirate radio operators by imposing the maximum penalty on two pirate radio operators and proposing a substantial fine against another operator who ignored FCC warnings to cease their operations.  The pirate radio operators have 30 days to pay the fine or their case will be referred by the FCC to the U.S. Department of Justice for enforcement.  The FCC itself cannot sue to collect fines against individuals who ignore the penalties issued in cases like this; instead, it relies on the DOJ to enforce the penalties in Court.  The specifics of these cases follow:
    • In one case, the FCC imposed $2,316,034 fine against an individual for operating a pirate FM radio station in the Bronx, New York – the maximum penalty permitted under the 2020 PIRATE Act.  The FCC concluded that the maximum penalty was appropriate because the FCC was able to extensively document that the pirate radio operator operated the pirate station for at least of 98 days in the past two years.  This was evidenced through FCC monitoring and what was advertised on the pirate’s website. The FCC also had evidence that the pirate had been operating as far back as 2018.  The pirate has ignored at least one written warning to cease operations. 
    • In the second case, the FCC also imposed the maximum penalty against an individual for operating a pirate FM radio station in Mount Vernon, New York.  The FCC was able to document that the pirate operated the pirate station for at least 20 days during the past year, and noted that the individual being fined was involved with the pirate station for over 15 years, and had previously been fined for the station’s operation and otherwise been given legal notice of the station’s illegal operation many times  – factors which the FCC cited as justification for maximum fine being imposed in this case.
    • In the final case, the FCC proposed a $1,780,000 fine against an individual for operating a pirate FM radio station in Brooklyn, New York.  The FCC concluded that the fine was appropriate both based on the FCC’s direct observation of the illegal operations and the documentation of operation provided by the pirate’s robust social media presence promoting the station’s operation, showing that the station operated for at least 89 days in the last two years. 
  • The FCC’s Media Bureau proposed a $3,000 fine against a noncommercial full power television station for 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., 9 lists more than 1 year late, and 3 lists between 1 month and 1 year late.
  • In news about government regulation of Artificial Intelligence in areas potentially important to broadcasters and other media companies:
    • The Copyright Office extended the deadline for reply comments on the copyright implications of AI.  Reply Comments are now due on December 6, 2023.
    • At its open meeting this week, the FTC announced the “Voice Cloning Challenge” to promote the development of ideas to protect consumers from the misuse of artificial intelligence-enabled voice cloning.  The FTC is requesting that members of the public submit proposals for tools that can be used to prevent, monitor, and evaluate the malicious use of voice cloning technology.  Proposals can be submitted online between January 2 and January 12, 2024.  Information on how to submit a proposal for the challenge as well as complete challenge rules can be found on the FTC website here.  The FTC will offer $25,000 to the winner.

Also, this week Congress averted a shutdown of the federal government by passing a continuing resolution to fund the government – including the FCC.  Some government funding was extended until January 19, with the funding for other parts of the government to run through February 2, 2024.  Another showdown over government funding, however, remains looming early next year.  As we previously discussed here and here, if a government shutdown does occur in early 2024, the FCC and other government agencies may have to cease all but critical functions if they do not have any residual funds to continue operations.  Stay tuned in the new year to see what happens.

With the Thanksgiving holiday next week, unless it is an unexpectantly busy week, we may skip next weekend’s update, and will be back with a summary of two weeks’ actions on December 3. Look on our Broadcast Law Blog for other updates, including our summary of December regulatory dates for broadcasters, between now and then.

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 has until December 27th to comply with a court order requiring the agency to conclude its still-pending 2018 quadrennial review of its local broadcast ownership rules (see our Broadcast Law Blog article for more on the Court order and on the issues under consideration in that proceeding, including a review of the local radio ownership limits, the restrictions on combinations of two of the Top 4 TV stations in any market, and the dual network rule forbidding common ownership of two of the Top 4 TV networks).  With that deadline in sight, lobbying at the FCC on how the FCC should conclude the proceeding has increased.  Gray Television recently told the FCC that it should not tighten its television ownership rules due to the negative impact it would have on small and rural television markets.  Similarly, the National Association of Broadcasters urged the FCC to relax its radio ownership rules to enable radio broadcasters to better compete with digital audio platforms through greater scale and economic efficiencies.  Music industry groups, however, told the FCC that the current radio ownership restrictions should be maintained to preserve and promote not only ownership diversity, but viewpoint diversity through music and lyrics.  An individual who formerly worked as a  broadcaster urged the FCC to use its broadcast ownership rules to promote more small, local, and minority ownership in radio.  Expect more comments in the coming weeks containing last minute pleas for the FCC to favor various positions advanced in this proceeding. 
  • This week, an automotive industry group published a blog article in opposition to the AM Radio for Every Vehicle Act now pending in Congress– an Act which would mandate the installation of AM radios in all new cars, including electric vehicles.  The blog article cited a study claiming that compliance with such a mandate would cost automakers $3.8 billion.  The NAB responded stating that the Congressional Budget Office released a report last month which estimated that compliance would actually cost automakers only a fraction of that amount. 
  • As we discussed last week, the White House’s recent executive order regarding Artificial Intelligence encourages the FTC to exercise its authority to promote a fair, open, and competitive AI system.  This week, the FTC announced that it will consider at its open meeting next week whether to initiate a proceeding examining how to use its authority to protect consumers from AI-enabled voice cloning harms, such as fraud and the broader misuse of biometric data and creative content.  The FTC also filed comments in the Copyright Office’s proceeding exploring the copyright implications of AI which stated that the FTC might consider AI’s impact on the creative community to be an unfair trade practice – an interesting suggested expansion of the FTC’s usual regulatory focus.
  • Senator Chuck Shumer stated this week (here and here, and here), at the Fifth and Sixth Bipartisan Senate Forums on Artificial Intelligence, that Congress must act quickly to address the potential harm to elections and democracy posed by the use of AI-generated political advertisements.  Earlier this week, we published an article examining recent calls from some for federal regulation of the use of AI-generated content in political ads, and the state and federal legislative actions taken to address these concerns.  While most governmental action on this issue remains to be seen, Facebook’s parent company Meta announced that it will voluntarily impose labeling requirements on ads appearing on its social media platforms when those ad use AI or other digital tools to add false images or sounds in messages addressing elections and other political and social issues (see our discussion here of Meta’s announcement and why broadcasters are limited in taking a similar action). 
  • The FCC’s Media Bureau issued a $9,000 fine against a full power television station for failing to timely upload its quarterly issues/programs lists to its online public inspection file.  The Bureau found that the station had failed to timely upload copies of these lists for a total of 10 quarters in its prior license renewal term.  The Bureau also noted that the station failed to provide any explanation in its license renewal application for its failure to timely upload the lists, and instead stated in the application the lists were uploaded on-time.  According to the decision, the station in fact uploaded the lists only after FCC staff alerted it that the lists were missing from its public file.  The Bureau also proposed to assess a $9,000 fine against a noncommercial full power television station for 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 in its renewal term – seven lists more than one year late, four lists between one month and one year late, and one list between one day and one month late.  See our article here on the importance the FCC places on the quarterly issues/programs lists.
  • The FCC’s Media Bureau continues to substitute UHF channels for VHF channels in local markets to improve reception of over-the-air television channels as UHF channels offer superior digital broadcasting service.  The most recent examples include the substitution of channel 18 for channel 8 at Idaho Falls, Idaho, and the Bureau’s substitution of channel 16 for channel 7 at Winnemucca, Nevada.  The Bureau also released a Notice of Proposed Rulemaking asking for comments on a TV station’s petition for rulemaking proposing the substitution of channel 21 for 20 at Missoula, Montana, which follows the station’s previous request to change its station from channel 13 to channel 20.  The station is now requesting substitution of channel 21 for channel 20 at Missoula, Montana to mitigate co-channel interference and to increase the over-the-air reception of the station.

Looking ahead, as Congress still has not passed budget bills for the fiscal year that started on October 1, and “continuing resolutions” to fund the federal government at last year’s levels run out on November 17, a government shutdown may well occur if Congress fails to act this week.  As we previously discussed here and here, if a government shutdown does occur, the FCC and other government agencies may have to cease all but critical functions if they do not have any residual funds to continue operations.  Stay tuned to see what happens.

Facebook parent Meta announced this week that it will require labeling on ads using artificial intelligence or other digital tools regarding elections and political and social issues. Earlier this week, we wrote about the issues that AI in political ads pose for media companies and about some of the governmental regulations that are being considered (and the limited rules that have thus far been adopted).  These concerns are prompting all media companies to consider how AI will affect them in the coming election, and Meta’s announcement shows how these considerations are being translated into policy.

The Meta announcement sets out situations where labeling of digitally altered content will be required.  Such disclosure of the digital alteration will be required when digital tools have been used to:

  • Depict a real person as saying or doing something they did not say or do; or
  • Depict a realistic-looking person that does not exist or a realistic-looking event that did not happen, or alter footage of a real event that happened; or
  • Depict a realistic event that allegedly occurred, but that is not a true image, video, or audio recording of the event.

The Meta announcement makes clear that using AI or other digital tools to make inconsequential changes that don’t impact the message of the ad (they give examples of size adjusting, cropping an image, color correction, or image sharpening) will be permitted without disclosure.  But even these changes can trigger disclosure obligations if they are in fact consequential to the message.  In the past, we’ve seen allegations of attack ads using shading or other seemingly minor changes to depict candidates in ways that make them appear more sinister or which otherwise convey some other negative message – presumably the uses that Meta is seeking to prohibit. 

This change will be applicable not just to US elections, but worldwide.  Already, I have seen TV pundits, when asked about the effect that the new policy will have, suggesting that what is really important is what other platforms, including television and cable, do to match this commitment.  So we thought that we would look at the regulatory schemes that, in some ways, limit what traditional electronic media providers can do in censoring political ads.  As detailed below, broadcasters, local cable companies, and direct broadcast satellite television providers are subject to statutory limits under Section 315 of the Communications Act that forbid them from “censoring” the content of candidate advertising.  Section 315 essentially requires that candidate ads (whether from a federal, state, or local candidate) be run as they are delivered to the station – they cannot be rejected based on their content.  The only exception thus far recognized by the FCC has been for ads that have content that violates federal criminal law.  There is thus a real question as to whether a broadcaster or cable company could impose a labeling requirement on candidate ads given their inability to reject a candidate ad based on its content.  Note, however, that the no-censorship requirement only applies to candidate ads, not those purchased by PACs, political parties, and other non-candidate individuals or groups.  So, policies like that adopted by Meta could be considered for these non-candidate ads even by these traditional platforms. 

Continue Reading Meta to Require Labeling of Digitally Altered Political Ads (Including Those Generated By AI) – Looking at the Rules that Apply to Various Media Platforms Limiting Such Policies on Broadcast and Cable

In the Washington Post last weekend, an op-ed article suggested that political candidates should voluntarily renounce the use of artificial intelligence in their campaigns.  The article seemed to be looking for candidates to take the actions that governments have largely thus far declined to mandate.  As we wrote back in July, despite calls from some for federal regulation of the use of AI-generated content in political ads, little movement in that direction has occurred. 

As we noted in July, a bill was introduced in both the Senate and the House of Representatives to require that there be disclaimers on all political ads using images or video generated by artificial intelligence, in order to disclose that they were artificially generated (see press release here), but there has been little action on that legislation.  The Federal Election Commission released a “Notice of Availability” in August (see our article here) asking for public comment on whether it should start a rulemaking to determine if the use of deepfakes and other synthetic media imitating a candidate violate FEC rules that forbid a candidate or committee from fraudulently misrepresenting that they are “speaking or writing or otherwise acting for or on behalf of any other candidate or political party or employee or agent thereof on a matter which is damaging to such other candidate or political party or employee or agent thereof.”  Comments were filed last month (available here), and include several (including those of the Republican National Committee) that question the authority of the FEC to adopt any rules in this area, both as a matter of statutory authority and under the First Amendment.  Such comments do not portend well for voluntary limits by candidates, nor for actions from an FEC that by law has 3 Republican and 3 Democratic commissioners.

Continue Reading Artificial Intelligence in Political Ads – Media Companies Beware

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 Enforcement Bureau released its second EEO audit notice for 2023, which targets 150 radio and television stations for review of their EEO compliance.  The FCC randomly audits approximately 5% of all broadcast stations each year regarding their EEO compliance.  Audited stations and their station employment units – which are commonly owned stations serving the same area – must provide to the FCC their last two years of EEO Annual Public File Reports and documentation demonstrating that the stations did everything that is required under the FCC’s EEO rules.  Audited stations have until December 14, 2023 to upload that information to their online public inspection files.  As with the last FCC audit, the FCC staff will review the audit responses and ask for additional information if they find the public file documentation to be incomplete, but they will not inform audited stations that their EEO performance was found satisfactory.  See this week’s blog article here for more detail on the EEO audit and how seriously the FCC takes broadcasters’ EEO obligations. 
  • The White House issued an executive order directing federal agencies to address the risks of generative AI.  The order is quite lengthy and includes some matters of potential interest to broadcasters.  For instance, the order directs the Department of Commerce to protect Americans from fraud and deception from “synthetic media” and other uses of AI by identifying standards and best practices for detecting AI-generated content and authenticating official content.  We recently wrote here and here about the legal issues from AI-generated content facing broadcasters in both the evaluation of political ads and the concerns about falsification of celebrity endorsements and other content.  The order also encourages the FTC to exercise its authority to promote a fair, open, and competitive AI system.  We noted here the FTC’s recent investigatory hearing on the harms of generative AI to the creative community.  While this week’s order encourages the FCC to consider actions related to how AI will affect communications networks and consumers, the FCC thus far has considered AI matters only as to robocalls and not yet generative AI matters directly impacting broadcasters. 
  • The FCC this week released a Second Order and Second Notice of Proposed Rulemaking on changes to the use of the 6 GHz band to encourage more unlicensed wireless use in that band (including expanded wi-fi).  That band is currently used for many things including Broadcast Electronic News Gathering and Auxiliary Services.  In its Order, the Commission rejected requests by the National Association of Broadcasters to limit the power of these unlicensed uses, accepting arguments from tech companies that any interference can be managed.  The Commission did ask for additional comment on whether there should be restrictions on the use of these devices near EMG “receive sites” including ENG trucks and, if so, what limits should be imposed.
  • The FCC’s Media Bureau partially granted two Pennsylvania television stations’ request for waiver of the significantly viewed exception to the FCC’s network non-duplication and syndicated exclusivity rules.  Under the FCC’s rules, if a local television station has exclusive rights to distribute network or syndicated programming within a market, cable operators in that market are precluded from carrying a duplicating program broadcast by a “distant” station located in another market – unless the distant station is “significantly viewed” in that market.  A television station, however, may seek to reinstate its exclusivity rights against such a distant station by demonstrating that the station is no longer significantly viewed in the market.  Here, the television stations located in the Johnstown-Altoona, PA market sought to reinstate their exclusivity rights against a distant station located in the Pittsburgh, PA market which was being carried by cable operators within the Johnstown-Altoona market.  The Bureau concluded that the Johnstown and Altoona stations’ network affiliation agreements granted them exclusivity rights in certain communities in their market – known as a “zone of exclusivity.”  Furthermore, the Bureau found that while the stations provided sufficient information demonstrating that the Pittsburgh station was no longer significantly viewed in certain communities within the stations’ zones of exclusivity, they did not provide enough data to make such a determination in other communities.  Therefore, the Bureau only granted the waiver for the communities where the stations had provided sufficient data that the Pittsburgh station was no longer significantly viewed. 
  • The FCC’s Media Bureau continues to substitute UHF channels for VHF channels to improve reception of the digital signals of over-the-air television channels, the most recent example being its substitution of channel 34 for channel 11 at Des Moines, Iowa.  In that decision, the Bureau also substituted vacant channel 34 for vacant channel 21 at Ames, Iowa to ensure that the Des Moines channel substitution met the FCC’s distance separation requirements. 
  • The FCC’s Media Bureau issued an Order to Pay or to Show Cause to a Missouri FM station, proposed to revoke the station’s license unless, within 60 days, the licensee pays the delinquent regulatory fees and interest, administrative costs, and penalties.  According to the Order, the FCC’s records indicate that the station currently has unpaid regulatory fee debt totaling $25,893.90 for FYs 2010 through 2023.
  • The FCC’s Media Bureau issued three Forfeiture Orders against a LPTV station and four TV translator stations for failure to timely file their license renewal applications.  In these decisions, the Bureau continued its recent practice of assessing a $1,500 fine against a LPTV or TV translator station for failure to timely file a license renewal application.  In the first decision, the Bureau issued a $1,500 fine against the licensee of an Oregon LPTV station for filing its renewal over one month late.  In the second decision, the Bureau issued a $4,500 fine against the licensee of three Washington TV translators for filing their renewals over two months late.  In the final decision, the Bureau issued a $1,500 fine against the licensee of a Montana TV translator station for filing its renewal over one month late.

Last Monday was the 85th anniversary of the radio broadcast of the Orson Welles production of The War of the Worlds.  To note this occasion, we published an article on our Broadcast Law blog examining whether the panic that broadcast caused could happen today in light of the FCC’s rule prohibiting the broadcast of hoaxes and other FCC rules seeking to bar programming that upsets audiences or potentially imperils public safety – such as false EAS tones.