Two weeks ago, a three-judge panel of the US Court of Appeals for the 4th Circuit heard an oral argument on the challenge by a number of Democratic candidates to the FCC Media Bureau’s March Public Notice which purported to “remind” broadcasters of their obligations to give Lowest Unit Rates not only to ads purchased by political candidates and their own campaign committees but also to Joint Fundraising Committees and Political Party ads when those ads are authorized by a candidate.  We wrote here about the issues raised by the Public Notice and the importance of the pending appeal and other requests for clarification, as the Notice did not address many issues crucial to broadcasters, especially when we are in the middle of an important election season.  The oral argument and its aftermath at the FCC should have broadcasters regularly refreshing their newsfeeds prior to the September 4 start of the Lowest Unit Charge window for the November election to see how they should be treating these ads during the window.  A decision of the court could come down before September 4, and that decision could dictate whether or not broadcasters and local cable operators need to give LUC to political parties and joint fundraising groups when their purchases are coordinated with federal candidates.

At the argument, two of the three judges appeared skeptical of the FCC’s defense of the Media Bureau’s actions, directing many questions to the FCC’s attorney as he attempted to argue that any action by the court was premature, as the Media Bureau action was not a final decision over which the court had jurisdiction given that the full Commission had not had a chance to rule on the application for review by the same Democratic candidates.  Those candidates have sought review of the Media Bureau Public Notice by the Commissioners.  Historically, it has been rare that courts review decisions of the FCC staff until the Commissioners have first had the opportunity to review the staff decision and decide if that decision was correct. 

In this case, counsel for the Democratic candidates argued that the plain language of the law governing court review of FCC decisions did not require that the FCC actually rule on an application for review of a staff decision before the court could review that decision, only that the application for review be filed.  And, given the impending September 4 deadline, the skeptical judges asked whether, by not acting by the September 4 deadline, the FCC might have constructively denied the application for review as, without a ruling, the guidance in the Media Bureau Public Notice would stand during the upcoming LUC window (and FCC counsel indicated that he did not expect a ruling by the full Commission by September 4).  The oral argument was light on discussion of the substance of the issues raised by the Public Notice, and it was instead much more focused on the procedural questions of whether the court could review the issues at all.  Since the argument before the court, unexpectedly, there have been further actions from the FCC and responses to those FCC actions at the court, all seemingly looking to head off a court decision on the case.

Continue Reading Court of Appeals Hears Oral Argument on FCC’s Extension of LUC to Joint Fundraising Committees and Political Party Ad Buys – While FCC Moves to Resolve Appeals of the Same Decision – Where Do These Actions Leave Broadcasters? 

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 issued an Order that dismissed a petition for reconsideration of its March Public Notice purporting to remind broadcasters about their lowest unit charge (LUC) obligations for political ads – a Public Notice that had for the first time extended the LUC obligation to joint fundraising committees and ad buys by political parties that are coordinated with the party’s federal candidates.  The challenge to the Public Notice was brought by TVB, a television station advertising trade association.  The Petition for Reconsideration raised many of the questions that we wrote about in our Broadcast Law Blog article here, including whether the ruling that the ads from these non-candidate organizations had to be given reasonable access and “no censorship” treatment, and asking how the Public Notice could claim to “remind” broadcasters about obligations that had never been stated by the FCC without seeking any public input on these new requirements.  This week’s Order claimed that the March Public Notice did not create or change any FCC rules, and thus it was not the proper subject of a Petition for Reconsideration.  The Bureau claimed that the Notice merely summarized longstanding FCC interpretations as to who is eligible for LUC rates for political advertisements, even though the Order could cite no instance in which the FCC had issued any order or decision requiring LUC for coordinated political party buys or for joint fundraising committees.  The Order nevertheless claimed that extending LUC to coordinated party buys was a matter of past Commission informal advice that should have been appealed when it was initially given (even though many broadcasters may not have been aware of that advice since it was never written in any public document released by the FCC) and that, under FEC rules, joint fundraising committees are “authorized committees” and therefore entitled to LUC so that TVB is not arguing with an FCC rule but instead an FEC one which the FEC, not the FCC, would have to address (ignoring TVB arguments that the provisions of Section 315 of the Communications Act which set out who is entitled to LUC do not in fact say that “authorized committees” are entitled, extending that right only to candidates themselves – the statute talks about “authorized committees” only in other contexts).
  • On Friday, August 7, the 4th Circuit Court of Appeals held an oral argument on the challenge to the Media Bureau’s March Public Notice brought by several Democratic federal candidates. Those candidates argue that the Communications Act and the FEC rules do not support the interpretations advanced by the Bureau in the Public Notice when the notice extends LUC to joint fundraising committees and coordinated political party ads.  Two of the three judges on the panel asked many skeptical questions of FCC counsel who tried to argue that the Democratic challenge was not procedurally or substantively justified (we noted the arguments made in the FCC’s brief in this case here).  From the argument, it appears that the Court will rule on this challenge very soon – before the September 4 start of the Lowest Unit Charge window for the November election. 
  • The Media Bureau announced that it has created a docket for public comment on DIRECTV’s applications for review of the Bureau’s grants of the assignment of TV stations from Gray Media to Scripps, Allen Media to Gray Media, and SagamoreHill and Block Communications to Gray Media.  As we noted here, here, and here, the Bureau previously dismissed DIRECTV’s petitions to deny against the assignment applications.  DIRECTV alleged that the applicants failed to show that the sales were in the public interest and argued that they were not in the public interest because they would lead to higher retransmission consent fees. The Media Bureau had dismissed these arguments finding that a special public interest showing was not required for applications complying with the Local TV Ownership Rule’s two-station limit, and that DIRECTV’s arguments about the transactions’ harms were speculative.  Setting up a special docket for public comment is unusual in that no docket has been established in other similar cases. 
  • The FCC’s Enforcement Bureau issued four Notices of Violation against 3 Texas FM translator stations and an LPFM station for failing to operate in the manner represented to the FCC.  The Bureau found that, after inspecting and monitoring the 3 translator stations, the translators were not rebroadcasting their designated primary station (see Notices here, here, and here).  The Bureau, in an inspection of the LPFM’s transmitter site, found that the LPFM station was operating at 475% of its authorized power (see the Notice here).  The stations must now explain to the Bureau how they will correct the apparent rule violations and prevent future violations from occurring. 

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

  • President Trump has nominated Danielle Thumann Severs for one of the vacant seats on the FCC.  Thumann currently works as Senior Counsel to FCC Chair Brendan Carr.  Earlier in her legal career, in addition to other positions at the FCC, she worked for Crown Castle tower company and Wilkinson Barker Knauer law firm in Washington.  She has been nominated to fill the vacant Republican seat on the FCC. The nomination must be approved by the Senate and, as no one has been nominated for the vacant Democratic seat, there is some speculation that Senate Democrats will try to hold up her confirmation until such a nomination is made.
  • At its regular monthly Open Meeting, the FCC adopted a Report and Order eliminating the 39% national TV ownership cap.  The FCC has not yet released the adopted order, but as we noted here, the draft Report and Order stated that the FCC will instead do a case-by-case review of any proposed TV combination exceeding the current cap to see if it is in the public interest by weighing factors including the transaction’s potential benefits (e.g., increased local programing and innovation) and its potential harms (e.g., decreased local programming, increased retransmission consent fees, and loss of communications workers).  The FCC stated in the draft order that repealing the cap would allow TV broadcasters to better fulfill their public interest obligations, including by increasing investment in local programming and by providing leverage (through greater audience reach) in the local broadcasters’ negotiations with the national networks.  Although Congress set the cap, the draft order found that the FCC could repeal the cap due to its broad authority to adopt, modify, or eliminate its broadcast ownership rules and to act in the public interest, and Congress did not eliminate this authority when it set the cap.  See our Broadcast Law Blog article here for more on the issues surrounding this action.
    • Chairman Carr issued a statement that said that this action was important to preserve localism.  He noted that the FCC had waited too long to abolish the rule limiting broadcast and newspaper cross-ownership until “the damage from agency inaction was all but complete.” He did not want local broadcast TV to go the way of the newspaper by limiting broadcasters’ business options.  He said that restrictions on ownership by local TV companies made no sense when national broadcast and cable programmers and digital media services, which compete with broadcasters, can all reach 100% of the country.  And he said that the FCC’s authority to change the cap was clear – citing a Court decision and stating that “[a]n unbroken line of FCC Chairs going back more than a dozen years all agreed that the FCC has the authority to modify the cap.”
    • FCC Commissioner Gomez released a statement opposing the action.  Gomez said that the decision “is unlawful on its face” because “only Congress can change” the cap, noting that others including former FCC Commissioner O’Rielly, former House Majority Leader DeLay (R-TX) (who negotiated the 39% compromise), and Senator Cruz (R-TX) agree with her position or are skeptical of the FCC’s authority.  As a matter of policy, Gomez stated that “eliminating the cap does not free local broadcasters from economic pressure, it just changes who is doing the squeezing . . . from Big Tech” to “Big Media,” which “does nothing to protect the communities this cap was designed to serve.” 
  • At the Unidosus Annual Conference, Commissioner Gomez accepted an award for her efforts to protect freedom of speech.  In her speech, Gomez said that “when I joined the FCC, I . . . did not expect that defending the First Amendment would become one of the central fights of my career,” and that “for almost two years I have watched this administration wage a deliberate campaign of censorship and control against broadcasters and journalists.”  Gomez noted that her position on the Commission might end soon, but that she had “spent my time pushing companies, broadcasters, and public officials to find their courage, and I’m happy to say it is starting to work”—noting that broadcasters are now pushing back and “refusing to let the government decide who counts as a real journalist and what counts as real news.”
  • The FCC announced that it had returned to the US Treasury roughly $881 million in unused funds from the TV Broadcaster Relocation Fund—marking a significant milestone in the conclusion of the Broadcast Incentive Auction, which repurposed 84 MHz of low-band TV broadcast spectrum for commercial and unlicensed wireless use.  FCC Chairman Carr stated that “in support of the Trump Administration’s efforts to seek out government waste, we took a hard look at money sitting in our agency with an eye to limiting government spending and reducing wasteful programs,” and that the FCC “found the time was ripe to ‘clean house’ and ensure money does not sit languishing at the agency level when it can be given back to the U.S. Treasury for the financial benefits of the Nation.”  These funds were not used in reimbursing broadcasters and others for their costs incurred in the TV Repack after the Incentive Auction.  The last chance to claim reimbursement from these funds was in 2022 (see our note here). 
  • The Media Bureau entered into a Consent Decree with a Wisconsin AM and FM translator station licensee to resolve its investigation into the licensee’s purported unauthorized transfer of control.  The Bureau found that the licensee’s former owner transferred his entire ownership in the licensee to his daughter one year before filing a transfer of control application seeking FCC approval to do so.  The Consent Decree requires that the licensee pay a $8,000 voluntary contribution to the U.S. Treasury.
  • The FCC’s Media Bureau released a Declaratory Ruling granting Connoisseur Media’s petition to exceed the foreign ownership limits of Section 310(b) of the Communications Act. Connoisseur sought approval to permit up to 100% aggregate indirect foreign ownership interests, and specific approval for two Cayman Islands entities and a citizen of the United Kingdom to hold indirect ownership interests greater than 5%.  The Bureau found that granting the petition was in the public interest because doing so afforded Connoisseur greater access to capital and enabled it to compete better in the marketplace by providing it with additional resources to invest in local content and new digital capabilities.  The Bureau imposed routine conditions that accompany such waivers, requiring Connoisseur to monitor its foreign equity and voting interests, to obtain FCC approval for any new foreign investors holding 5% or more (or 10% for certain investors) and for any foreign individual or entity holding a controlling interest, and to promptly disclose any noncompliance with the FCC’s foreign ownership rules.

On our Broadcast Law Blog, we published an article on the September deadline for the filing of applications to participate in the FCC’s February auction of construction permits to build new FM stations in over 130 communities around the country.  The article also discusses other deadlines and procedures set for that auction. 

In May, the FCC announced that it would be conducting an auction in February 2027 for construction permits to build over 130 new FM stations in various locations around the country (see our article here). Last week, the FCC issued a Public Notice that provided the remaining details about the auction, including a September filing window for “short-form” applications to participate in the auction, the December 3 deadline for submitting “upfront payments,” and a detailed discussion of the rules for participating in the auction.  An attachment to that Public Notice provides the final list of available channels and their minimum bids.  In addition, the FCC issued a second Public Notice that announced that there will be a filing freeze on minor change applications for any FM station during the short-form filing window to avoid possible conflicts between sites specified by auction applicants and those specified in the minor change application of previously authorized FM stations.

In connection with the auction, the FCC will also hold tutorials and a mock auction to ensure that bidders know the process for filing applications and for participating in the auction.  Even if you have participated in FM auctions in the past, you may want to monitor these tutorials and mock auctions because the auction procedures have changed, as discussed below.

The dates and deadlines for the auction are as follows:

  • Auction Application Tutorial Available (via Internet) (August 21, 2026)
  • Short-Form Application (FCC Form 175) Filing Window Opens (September 14, 2026, 12:00 p.m. ET)
  • Short-Form Application (FCC Form 175) Filing Deadline (September 30, 2026, 6:00 p.m. ET)
  • Upfront Payments (via wire transfer) (December 3, 2026, 6:00 p.m. ET)
  • Bidding Tutorial Available (via Internet) (January 6, 2027)
  • Mock Auction (January 29, 2027)
  • Auction Bidding Begins (February 2, 2027)

The short-form applications are the first step in participating in the auction.  Anyone who wants to participate in the auction must file one of these applications in the window set out above – with the deadline being September 30 at 6 p.m. Eastern Time. As with any other FCC filing, do not wait until the last minute to file, as the FCC’s electronic filing system has been known to have slowdowns and glitches, and not getting the short-form application on file by the deadline is fatal to any hopes of participating in the auction.

Continue Reading Applications to Participate in February Auction for 132 New FM Stations Due by September 30 – FCC Releases Auction Rules and Procedures

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

  • The FCC’s Order adopted in June that requires broadcasters to quickly adopt new security practices to protect their EAS systems was published in the Federal Register, setting September 29 as the deadline for implementation of these new requirements.  The requirements that must be implemented by September 29 include having strong passwords for access to any part of a broadcaster’s program chain that is connected to the internet, implementing the latest security updates to all programming hardware and software, and putting all access to broadcaster’s program chain behind a firewall.  See our Broadcast Law Blog article here for more on these requirements.
    • Also published in the Federal Register was the Further Notice of Proposed Rulemaking that was part of the June Order.  The FCC seeks comments on proposals including whether to require authentication of all EAS alerts before transmission, taking other steps to make EAS alerts more accurately targeted, and whether software-based EAS encoders/decoders should be allowed in addition to the current hardware devices.  Comments are due by August 31 and reply comments by September 29.
  • The deadlines for the submission of applications and minimum opening bid amounts for Auction 114, an auction of 132 construction permits for new FM stations, were announced in a Public Notice from the FCC’s Office of Economics and Analysis (OEA). The auction, as we wrote here, was announced in May and bidding is scheduled to begin on February 2, 2027.  Parties interested in participating in the auction must file their “short-form” construction permit applications on FCC Form 175, in which they must specify which of the 132 vacant FM allotments (see list here) they intend to bid, between 12:00 p.m. ET on September 14, 2026 and 6:00 p.m. ET on September 30, 2026.  These applications can also specify specific coordinates for tower sites an applicant plans to use for any channel on which they plan to bid to protect that site from future applications by other FM stations.  Auction participants must make their “upfront payments” by 6:00 p.m. ET on December 3, 2026.  Upfront payments are refundable deposits to establish an applicant’s eligibility to participate in the auction and must be in an amount sufficient to cover the minimum bids for all of the channels which the bidder ends up winning in the auction.  The Public Notice provides more details on bidding procedures for the auction.
    • To facilitate Auction 114, the FCC’s Media Bureau released a Public Notice announcing that a filing freeze on all FM commercial and noncommercial minor change applications will open on September 14, 2026 and will close on September 30, 2026.  The Bureau explained that temporary freeze is designed to avoid conflicts between the any minor change application and auction proposals, thus promoting certainty and speed in the auction process.  The Bureau also stated that any FM minor change applications filed before the filing freeze begins must protect the reference coordinates of each of the vacant allotments being auctioned in Auction 114.
  • In an interview, Chairman Carr reportedly stated that the FCC is investigating certain changes in TV network affiliations in various markets around the country to see if these affiliation changes are in the public interest.  In some recent cases, the new home of a major network affiliation is on a digital subchannel. Carr indicated that he was concerned that some of these changes could weaken affiliates bargaining positions with national TV networks.  As we have noted before, the Media Bureau under this Chairman has noted its concerns about the relationship between networks and their affiliates and asked for public comment, including asking whether too much network power weakens the local service of TV stations, contrary to the public interest.
    • In another extensive interview with Politico, he explained in depth how he sees his actions against broadcasters related to the content that they broadcast as being consistent with the public interest mandate of the Commission and with the First Amendment.  He also answers questions about the extent to which the President has directed some of the actions of the FCC.  He concludes by saying of his regulatory approach “…what we’ve been trying to do is you take a little bit of dereg, a little bit of reg, you put it together, and we make telecom great again.”
  • FCC Commissioner Gomez released a statement following the closing of the public comment period on the Disney/ABC’s TV station license renewal applications, which the FCC ordered to be filed early (see our notes here and here).  Gomez noted the great number of comments filed in support of Disney, and stated that these commenters showed that “they believe in the value of their local news, they trust those who cover their communities, and they understand that the FCC has no business deciding who is a journalist and what counts as real news,” while “a small number of partisan voices tried to hijack this process into a referendum on a network they dislike.”  Gomez further stated that “the FCC has no authority to police the ideological balance of the airwaves, and no matter what this Commission does next, the record now makes clear that this was never a genuine search for the public interest.”
  • The FCC released a Small Entity Compliance Guide regarding compliance with the revised Class A, LPTV, and TV translator station rules that the FCC adopted in its December Report and Order (see our note here).  The revised rules include updating displacement and channel sharing application procedures; establishing a maximum relocation distance for all minor modification applications of 49.1 kilometers from a station’s current antenna reference coordinates; formalizing procedures for communities of license changes (also requiring a station’s protected contour to overlap a boundary of its community of license and requiring that stations file for a rule-compliant community of license within 6 months of the new rule’s effective date); requiring stations to use call signs matching their service designation (“-LD” for LPTV, “-CD” for Class A, and “-D” for TV translators) but grandfathering existing call signs for only LPTV and Class A stations; requiring all LPTV stations to broadcast an operational video programming signal (test patterns and still pictures with unrelated audio are insufficient); and formalizing procedures for changing a station’s classification from LPTV to TV translator (or vice versa).  We noted here that some of these rule changes took effect July 9 (while some others still require the Office of Management and Budget’s approval before taking effect), and also noted the Media Bureau announcement that stations with call signs that are not grandfathered (including all TV translators not using the “-D” service designation) have until July 9, 2027 to change their call sign to a rule-compliant one.
  • The Media Bureau released a Notice of Proposed Rulemaking proposing to substitute VHF Channel 10 at Elko, Nevada for UHF Channel 20 as the Elko TV station asking for the change is already operating on Channel 10, had asked for the change to Channel 20, but could not complete that construction.  As the Bureau found that Channel 10 continues to meet all FCC technical requirements, it proposes that the change be adopted.
  • The Media Bureau affirmed its previous dismissal of a new Florida LPFM station construction permit application for the applicant’s failure to timely file a technical amendment to its application to resolve its mutual exclusivity (applications that cannot all be granted under the FCC’s technical rules) with other new LPFM construction permit applications filed during the 2023 LPFM filing window.  The Bureau dismissed the petition because the requested channel change to resolve the mutual exclusivity was not filed within the required timeframe for filing such amendments and the petitioner provided no grounds to show the Bureau’s dismissal was unjustified under the rules. 
  • The Media Bureau and Office of Managing Director issued an Order to Pay or to Show Cause against a Mississippi AM station proposing to revoke the station’s license unless, within 60 days, the station pays its delinquent regulatory fees and interest, administrative costs, and penalties, or shows that the debts are not owed or should be waived or deferred.  The station has an unpaid regulatory fee debt totaling $16,956.45 for fiscal years 2019, 2020, 2021, 2022, 2024, and 2025.

On our Broadcast Law Blog, in addition to the article on the effective date of the required new security obligations for broadcasters’ program chains, we took a look at August regulatory dates and deadlines affecting broadcasters, including the deadline for EEO annual public file reports for broadcasters in several states, the expected elimination of the 39% national TV ownership cap, a possible court decision as to whether the Media Bureau’s decision to extend LUC to coordinated party and joint fundraising committee political ads was correct, and the likely setting of the final amounts and payment deadlines for annual regulatory fees.

In early July, we wrote about the FCC’s decision to require that all broadcasters take measures to secure their EAS operations – and in the process secure their entire program chain – to make sure that malicious actors can’t hack into their systems and send false alerts.  The FCC today published in the Federal Register the order making those changes, which will require broadcasters to meet these security requirements in 60 days – by September 29.

By that date, the FCC requires that broadcasters have strong passwords for any part of their program chain that is connected to the internet, that they have the latest security updates installed in all hardware and software, and that they put all access to their program chain behind a firewall.  We wrote about the FCC’s decision and what is required back in early July and, now that the deadline for compliance is set, we reprint below much of that article to remind broadcasters of the details of what they need to do by the September 29 deadline:

At its regular monthly open meeting [in June], the FCC adopted an Order meant to enhance the security of the Emergency Alerting System.  Citing past hacks of the system that have resulted in false EAS alerts being transmitted to the public by broadcast stations, the FCC proposed in 2022 that broadcasters adopt a comprehensive cybersecurity plan with an annual filing requirement detailing how risks were managed and controlled (see our article here).  The Order adopted this week did not go that far, but it did adopt a mandatory three-point plan to secure not only EAS equipment at a station, but also to secure the entire program chain to ensure that bad actors can’t access station programming to insert false emergency information or other malicious content. 

While the first two requirements of the mandated plan should be relatively simple for broadcasters to quickly implement, the third may require some outside help – and the FCC has given broadcasters only a short time to implement this requirement.  The Order requires implementation within 60 days of the date that the Order is published in the Federal Register (see the just-released FCC Erratum correcting the Order to reiterate that the effective date will be 60 days after Federal Register publication).  As Federal Register publication should come soon, the Order requires quick action by broadcasters.  Let’s look at the new obligations.

Continue Reading New Security Obligations for Broadcasters Required by September 29 – Strong Passwords, Updated Software and Hardware, and Firewalls to Protect All Parts of the Program Chain

Although many, including Congress, take the last of their summer vacations in August, there are still many dates to which broadcasters should be paying attention this month.  One deadline that most commercial broadcasters should be anticipating is the FCC’s Order that will set the amount of their Annual Regulatory Fees.  Payment of those fees will be due sometime in September before the October 1 start of the federal government’s new fiscal year.  These announcements usually come in late August or in the first few days of September.  So be on the lookout for that announcement.

Noncommercial broadcasters who were anticipating a filing window for new noncommercial educational FM translators in the reserved band (88.1-91.9 MHz) in August, when it was originally scheduled to be held, should instead look later in the year, as the filing window has been moved from August to November (see our discussion here).  Applications can be drafted for the November window beginning August 3, but they cannot be filed until the window opens.

Continue Reading August 2026 Regulatory Dates for Broadcasters – Annual EEO Public File Reports, Political Windows, and more

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.

  • At its regular monthly Open Meeting, the FCC adopted a Report and Order, Order of Proposed Modification, and Order on Reconsideration which reconfigures the Upper C-band (3.7-4.2 GHz) for terrestrial wireless use.  This will make available spectrum in a portion of the band (3.98-4.14 GHz) to be auctioned to wireless users, with another portion of the band acting as a guard band (4.14-4.16 GHz).  The Order requires clearing of incumbent operators from the band, including earth stations that recently relocated from the lower C-band such as those used by broadcasters who receive satellite-delivered programming.  The Order establishes a deadline of June 30, 2031 for relocation of all incumbent operators from the band (with operators in some larger markets needing to clear the band by December 30, 2030).  As with the previous lower C-band transition, the Order states that incumbent operators will be reimbursed for certain relocation costs. 
  • The FCC also released a Report and Order and Further Notice of Proposed Rulemaking which makes significant changes to its space and earth station rules.  For earth stations, the changes adopted in the Report and Order include extending license terms to 20 years; allowing earth stations to be licensed on a nationwide, non-site basis; permitting conditional grants for earth stations while frequency coordination remains ongoing under certain circumstances; and standardizing and streamlining earth station application procedures and processing.  In the FNPRM, the FCC seeks comments on several issues including whether to retain rules for receive-only earth stations, possible revisions to certain earth station technical rules and definitions, and further refinements to the nationwide, non-site earth station license rules.  Comments and reply comments are due 30 and 60 days, respectively, after the item’s publication in the Federal Register. 
  • The FCC filed its brief opposing the Court challenge by several Democratic candidates to the FCC Media Bureau’s Public Notice that extended Lowest Unit Rates to joint fundraising committees and federal political parties where their ads are coordinated and authorized by federal candidates.  The FCC argued that, procedurally, the challengers could not raise these arguments because they did not have “standing” to challenge the Public Notice as they were not harmed by the notice (as they could themselves take advantage of the ruling by using joint fundraising committees or coordinating with their parties – that only broadcasters are really harmed by the lower rates, and they are not involved in the appeal) and because the Public Notice can’t yet be appealed to the courts as it is not a final action of the full Commission which has not yet ruled on the challenges brought by the candidates.  Substantively, the FCC argued that FEC rules say that joint fundraising committees are in fact “authorized committees” of the candidate and thus they should get LUR, and that the FCC has routinely advised broadcasters in the past that coordinated buys with political parties get LUR, the only difference is that, in light of a recent Supreme Court decision, there is more money available to the parties, and that should not change the policy that has been in place for many years.  See our note here on the FCC Public Notice and our Broadcast Law Blog article here on the pending litigation.  The Court is to hear oral arguments in this case on August 7 in hopes of resolving the issues before the LUR period for the November election opens in early September.   
  • The National Association of Broadcasters announced that NextGen TV is now available in the top 25 TV markets following the launch of ATSC 3.0 service by 5 TV stations in the Cleveland, OH market this week.  The NAB stated that “NextGen TV is more than a technology upgrade,” and “is a pathway to a stronger, more resilient local broadcasting system that enhances public safety, supports local journalism and ensures communities have access to trusted, free, over-the-air service when it matters most.”  The NAB also stated that “NextGen TV helps ensure local broadcasters can continue serving every community, free and over the air, including enhancing access to marquee live sports and other major local events that bring communities together.”
  • The FCC’s Media Bureau granted a Lexington, Kentucky TV station’s assignment application, resulting in the assignee owning two TV stations in that market.  DIRECTV filed a petition to deny against the application, alleging that the applicants failed to show that the assignment was in the public interest and arguing that the assignment would lead to higher retransmission consent fees.  Citing its recent approvals of TV station assignment applications where DIRECTV raised similar arguments (see our notes here, here, here, here, and here), the Bureau again found that a special public interest showing was not required for applications complying with the Local TV Ownership Rule’s two-station limit, and that DIRECTV’s additional arguments about the transactions’ harms were speculative.

On our Broadcast Law Blog, we posted an article that discussed the debate about the FCC’s proposed plan to raise the 39% national TV ownership cap.  We also, in light of a recent lawsuit against a radio broadcaster for using copyrighted photos on its Facebook page without consent of the copyright holder, posted an article that discussed how using photos on social media sites without permission can cause legal issues for broadcasters. 

This week, there was a report in the broadcast trade press about a lawsuit filed against a North Dakota radio station for allegedly posting on its Facebook page a copyrighted photograph of a well-known rock musician– without getting permission from the professional photographer who took that picture and owned the copyright.  This was not a situation where some listener posted a picture on the station’s site, but allegedly one where the radio station posted on its own Facebook page the photo to illustrate a post on that site.  We have written many times about how litigious photographers can be about the unauthorized use of their photos online (see, for instance, our stories here,  and here).  And we have also written (for instance, here) about how the unauthorized use of copyrighted photos and videos even on the social media sites of broadcasters and other businesses can raise many of these same issues.  But, as it has been a couple of years since we last posted on the topic, it seemed to be worthwhile to highlight these concerns once again. 

The unauthorized use of photos in social media posts, including tweets on X and posts on Facebook, can really be an issue for all sorts of businesses.  Even the Donald Trump campaign was reportedly sued during his first run for President for his son’s tweet of a photograph of a bowl of Skittles, which he used to compare Syrian refugees to the candy treats. As we have written before (see our posts here and here ), just because someone posts a picture on the Internet, even on a social media or photo sharing site, does not give others the right to exploit that photo, especially on a digital site of a commercial business.  Posting on a social media site may give the social media site owner the right to exploit posted content consistent with their terms of use, but the person who created the content does not give up their underlying copyright in any creative work to third parties.  Just because you can easily right-click an image to make a copy of it does not always give you the right to use that image for your own commercial purposes.  The Skittles suit represents an instance of a photographer using copyright law to enforce these rights, apparently as he did not agree with the political sentiment expressed by the tweet in which the photo was used.  But not too long ago, there was significant publicity about a lawsuit, now reportedly settled, about a New Jersey newspaper suing a cable news network because one of its personalities used a well-known 9-11 photo from the paper as the profile picture on that personality’s Facebook page – without first securing permission. 

But isn’t that what these social media sites are for – sharing content?

Continue Reading Using Photos on Social Media Sites Without Permission Can Cause Legal Headaches

Last week, the FCC released a draft Report and Order which, if adopted at its August regular monthly open meeting, will repeal the 39% cap that currently limits the nationwide reach of local television station owners.  That cap prohibits one owner from having interests in TV stations reaching more than 39% of the nation’s TV households.  Computation of the 39% reach assumes that any TV station in a Nielsen TV market reaches all of the TV households in that market.  However, it also includes a 50% discount for UHF stations, a relic of a previous era when VHF stations (those on channels 2 through 13) dominated and UHF stations were considered disadvantaged and thus worthy of being counted as only half the audience reach (a dynamic that is considered to have been reversed in the digital broadcasting world).  Yet, as we wrote here, that UHF discount is still in place.

The Commission’s proposal is to eliminate the cap, but to conduct a case-by-case review of any proposed acquisition that would take an owner above 39% (while still using the 50% UHF discount).  In reading the draft Order, it appears that the FCC would be starting from a presumption that the nationwide reach of a particular broadcaster is not a public interest problem – unless someone shows that it is.  The draft Order states that there are many other video entertainment delivery competitors with nationwide reach – including the TV networks, cable networks and, more importantly in today’s world, all of the streaming companies.  According to the FCC, just being able to deliver programming on a nationwide basis does not raise issues for consumers, as a consumer has the choice of many different national programming providers.  Issues may be more likely to arise on the local level if access to local news and information is limited.  However, those questions of local ownership are not being considered in this proceeding, which is looking only at the limits on the ability of one owner to own stations that have a greater nationwide reach than currently allowed.  Local ownership limits are being considered in the Quadrennial Review proceeding, likely to be resolved later this year.

Continue Reading FCC Plans to Raise the 39% National TV Ownership Cap – What are the Proposals and What are the Issues?