Here are some of the regulatory 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, at the last of its monthly open meetings of 2020, voted to adopt new rules for Broadcast Internet (datacasting) services. The FCC clarified its rules for the annual ancillary and supplementary fees of 5% of a TV broadcaster’s revenue for leasing their spectrum to third parties.  The lessee’s revenue will not be included as part of the revenue subject to the fee unless the broadcaster and lessee are affiliated.  The Commission also decided to reduce the fees to 2.5% of the revenue from any noncommercial educational Broadcast Internet services that are provided by a noncommercial licensee.  Finally, the Commission retained its requirement that TV broadcasters who offer Broadcast Internet services offer at least one, free, over-the-air standard definition video signal.  (Report and Order)
  • At the same meeting, the FCC also voted to require electronic payment of fees for activities administered by the Media Bureau. Noting infrequency of payments by check and the cost savings of eliminating processing those payments, the Commission will phase out its lockbox used to accept manual payments and will instead require payment of Media Bureau fees by credit card or electronic wire transfer.  This rule change takes effect 30 days after it is published in the Federal Register, though the lockbox will remain open for 90 days past that effective date.  (Order)
  • The FCC terminated its proceeding that asked if a TV channel in each market should be set aside for use by unlicensed wireless devices and wireless microphones. Microsoft and others argued for a vacant channel in each market, saying that the certainty of available spectrum would spur innovation and development of wireless devices.  Television broadcasters argued against the proposal, saying that losing another channel in the UHF band would harm broadcasters’ ability to deliver new services and roll out NextGen TV (ATSC 3.0).  The Commission acknowledged that due to the reduction of channels after the incentive auction and because of other actions it has taken over the last few years making spectrum available for unlicensed wireless uses, setting aside a vacant channel in every market was not necessary.  See our post, here.  (Report and Order)
  • The Senate voted this week to confirm Nathan Simington as the newest FCC Commissioner. Simington takes Commissioner Michael O’Rielly’s spot.  When Chairman Ajit Pai leaves the agency on Inauguration Day, the FCC will stand at two Democrats and two Republicans, depriving President Biden of a majority at the agency until a new Democratic Commissioner is confirmed, potentially delaying action on controversial matters that the a Chairman may want to pursue.  See our post on Commissioner Simington, here.
  • Two actions this week by the FCC give examples of the circumstances under which construction permit extensions will be granted or denied.
    • The Audio Division dismissed a petition filed by a California AM permittee that sought to have its construction permit deadline extended. After extensions in the construction deadline due to COVID-19 issues, the permittee asked the FCC to further pause the deadline due to continuing COVID issues and the poor air quality from wildfires that the permittee claimed interfered with construction.  The FCC found that the station had not submitted any proof of any construction progress, and it could not tie that lack of progress to any of the causes that it cited.  The Commission noted that COVID did not justify additional extensions as the State of California considers broadcast services and construction essential critical infrastructure not subject to COVID restrictions.  As the permittee could not show that there were extraordinary circumstances that prevented all construction progress, the FCC found that the construction permit has expired.  (Letter)
    • The FCC dismissed a petition by a Florida noncommercial permittee that asked for its construction permit to be reinstated after several extensions had been granted and passed without the station being constructed. Since 2015, the permittee received construction extensions based on hurricanes and the elimination of the main studio rule.  The permittee asked for a further extension to review new construction plans.  The FCC denied that further extension as the permittee, despite requests from the FCC to tie the potential change in construction plans to hurricane-caused delays, never did so.  As the permittee could not show that it had been making real efforts to construct the station or that its efforts were delayed by extraordinary circumstances, the FCC refused to reinstate the permit.  (Order on Reconsideration)
  • The House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement Act (MORE Act), which would decriminalize marijuana at the federal level. To become law, the bill would also have to pass the Senate and be signed by the President before the end of the current Congressional session in early January—which appears unlikely.  Thus, broadcast stations should continue to think twice about running any marijuana advertising on the air.  We wrote about the MORE Act, here.