Here are some of the regulatory and legal actions and developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.
- The FCC acted this week on two media modernization items that had been teed up for consideration at its August 6 Open Meeting.
- The day before the meeting, the Commission adopted a Report and Order repealing rules regarding access to TV and FM antenna sites. The rules, as they were written 75 years ago, prohibited the FCC from renewing a TV or FM license if the licensee restricted access by a potential competitor to its antenna site when no other site was available to the competitor. The FCC pointed to the growth of the broadcast industry and number of available independently owned antenna sites as reasons for the repeal. We wrote about the repeal of this rule, here. (Report and Order)
- During the meeting, the FCC repealed the rule prohibiting programming duplication on commonly owned or controlled stations operating in the same area in the same service (AM or FM). Three weeks ago, when the FCC released its draft of the order to be considered at the meeting, and it was written to eliminate the rule only for AM radio. At the meeting, a majority of the Commissioners voted to also eliminate the rule as it applies to FM. It is expected that few FM stations will duplicate programming, as it likely makes less financial sense than for financially challenged AM stations, but the FCC determined that FM stations should have the flexibility to do so. We took a deeper look at the AM radio duplication rule, here. (Report and Order) (News Release)
- In response to a letter from Rep. Xochitl Torres Small (D-NM) requesting that the Commission open an LPFM application filing window, FCC Chairman Ajit Pai indicated that the FCC would open such a window after Media Bureau staff has processed the applications filed in a window for new noncommercial educational FM stations that may open later this year or early next year. This may be the first confirmation of this upcoming noncommercial FM filing window. ( Small Letter) (Chairman Pai Letter)
- The FCC’s Enforcement Bureau upheld its decision to fine a Palmdale, California FM translator station $12,000 for operating at transmitter output power levels that exceeded the levels specified in its license. The decision reiterated that it is the licensee’s responsibility to operate within legal limits and that the FCC need not warn a station about illegal operations before issuing a fine. Translator operators should review the Order and ensure their operations comply with all applicable FCC rules. Read more about this decision in our article here.
- In FCC leadership news, President Trump withdrew FCC Commissioner Mike O’Rielly’s nomination for another five-year term at the Commission. Before the withdrawal, O’Rielly’s nomination had cleared the Senate Commerce Committee and was headed for full Senate consideration when Senate Armed Services Committee Chairman Sen. Jim Inhofe (R-OK) placed a hold on the nomination. Inhofe said he issued the hold over O’Rielly’s vote to approve an FCC Order that some argued could cause interference to GPS operations. However, there has been much press speculation that President Trump withdrew the nomination over O’Rielly’s concerns about the President’s proposals on Section 230 of the Communications Decency Act of 1996, the provision of federal law that gives online platforms broad immunity from what users post on these platforms (see the bullet below). O’Rielly has suggested that any changes in Section 230 need to take care to not infringe on First Amendment free speech rights. Unless his nomination is reinstated, and he receives Senate confirmation, O’Rielly can continue serving only through the end of 2020.
- The FCC is inviting initial public comment on a Petition for Rulemaking submitted to the FCC by the National Telecommunications and Information Administration seeking an FCC interpretation of the protections given by Section 230 of the Communications Decency Act of 1996 to online platforms for the contents of material posted to their platforms by third parties. One of the specific questions asked is the extent to which those platforms can edit the third-party posts and retain their immunity from liability (we wrote about Section 230, its protections, and applicability to broadcasters here and here). This petition is a response to President Trump’s Executive Order on Preventing Online Censorship. The public has until September 2 to submit comments on the rulemaking petition, and 15 days to respond to any comments that are filed. As these are just preliminary comments on the petition for rulemaking, the FCC will likely issue a formal Notice of Proposed Rulemaking before taking further action on the petition. Thus, any substantive action on this issue will almost certainly not come before the November general election. (FCC Public Notice)
- In letters to Reps. Ann McLane Kuster (D-NH) and Chris Stewart (R-UT), FCC Chairman Ajit Pai addressed the representatives’ concerns about increases in the regulatory fees the Commission collects from broadcasters. Pai wrote that he is sympathetic to their concerns, but federal law gives the Commission little leeway to excuse broadcasters from paying these fees. The FCC by law must assess regulatory fees in an amount reasonably expected to equal the amount of money Congress has allocated to the agency, which for 2020 is $339 million. The FCC must collect those fees by September 30. The Chairman noted that the FCC has some flexibility to offer payment plans with a nominal interest rate if a station can demonstrate a financial hardship and inability to pay. The Chairman also reminded the members of Congress that Congress can change the fee requirements and could, among other things, give stations more time to pay. (Letters)
- The Solicitor General, on behalf of the FCC, submitted to the Supreme Court a reply brief encouraging the Court to take up Federal Communications Commission v. Prometheus Radio Project, et al., an appeal of a 2019 decision where the Third Circuit Court of Appeals rejected the FCC’s reforms to its media ownership rules. Over the last few months, the FCC has taken steps to get the Supreme Court to review that decision. The Justices are expected to decide later this year whether to consider the government’s appeal and take the case. Catch up on the history of this proceeding, here. (Reply Brief