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 a Notice of Apparent Liability proposing to fine licensees of over 100 television stations for exceeding the limits on commercialization in programming directed to children of ages 12 or under. The FCC found that these stations aired “program length commercials” by running ads for Hot Wheels toys during a Hot Wheels program, which under FCC precedent makes the entire program into a commercial. Fines ranged from $20,000 for single station licensees up to $2,652,000 to Sinclair Broadcasting for running these commercials on 83 stations. The licensees have 30 days to pay the proposed fines or to file a written statement either disputing the fine or seeking a reduction in the proposed amount.
- The FCC issued an Order that denied a request for review of a Media Bureau decision rejecting an objection to the grant of a construction permit for a new FM translator to rebroadcast an AM station. The objection argued that the FCC’s windows that authorized new FM translators for AM stations violated the Local Community Radio Act of 2010 (LCRA) by awarding construction permits for new FM translators without considering their effect on the potential for new LPFM stations. The Commission upheld the Bureau’s conclusion that the LCRA did not require that each new translator application be required to demonstrate that it did not preclude LPFM opportunities. Instead, efforts by the FCC to limit translator applications, and a prior LPFM window, provided adequate LPFM opportunities. Similar objections have been rejected by the FCC in the past (see our Broadcast Law Blog article on this issue).
- The FCC’s request for comment on the methodology that it uses to allocate its employees to determine regulatory fees was published in the Federal Register, setting the dates for the comments. This proceeding is important as the allocation of FCC employees determines the regulatory fees paid by each industry regulated by the FCC. The fees are set to reimburse the government for the costs FCC operations, allocated by the percentage of FCC employees whose time is spent regulating a particular industry. The proceeding raises issues as to how FCC’s employees who perform functions that are not industry specific should be allocated to specific fee payers, including broadcasters. Comments are due October 26, with reply comments due November 25, 2022.
- The Commission issued a Public Notice announcing the dates for comments and replies on the FCC’s proposals for updating its rules for LPTV and TV translators. These comments are on the FCC’s Order and Sixth Notice of Proposed Rulemaking (on which we previously reported) to delete or revise analog rules for LPTV and television translator stations that no longer have any practical effect or that are otherwise obsolete or irrelevant after the transition of these stations to digital operation. Comments are due on October 24, and reply comments are due November 7, 2022.
- The FCC’s Video Division issued a Forfeiture Order reducing a proposed fine on an LPTV station licensee that had constructed its station and commenced operations without filing until after its construction permit for the station had already expired an application for license to inform the FCC of the completion of construction. The Division agreed to reduce the proposed fine from $6500 to $1300 based on the licensee’s ability to pay. The Division looked at precedent as to when fines are excessive, stating that fines should not exceed 8% of a licensee’s gross revenue and should normally not exceed approximately 5% of revenues, or lower when a licensee is losing money. The $1300 fine was about 5% of the licensee’s revenue.
- The Commission issued a Public Notice imposing a 180-day freeze on applications in the 12.7-13.25 GHz band. This includes applications for new earth stations and applications for new stations or modifications to fixed or mobile BAS (broadcast auxiliary) stations to operate in the 12.7 GHz band. The freeze was imposed while the Commission considers changes in the band to make more effective uses of this spectrum. There are limited exceptions to the freeze, including one for changes to broadcast auxiliary stations that can be shown to have no effect on reimbursement costs for any future user of any cleared spectrum.
- In response to Hurricane Fiona and its impact on Puerto Rico, the FCC issued a Public Notice extending to September 30 the due date for Puerto Rico stations to file their 2022 regulatory fees. All other stations still must pay their fees by September 28, 2022. Another Public Notice gives Puerto Rico stations until November 14 to upload their Quarterly Issues Programs Lists for the third quarter of 2022 to their online public inspection file (for all other stations, those reports should be uploaded by October 11 as the normal October 10 deadline is a Sunday).
- The Senate Judiciary Committee passed the Journalism Competition and Preservation Act designed to allow news creators, including broadcasters, to negotiate jointly without antitrust concerns with big Tech Platforms over the rates and terms by which those platforms use the news creators’ content. A summary of the bill that was passed is available on Senator Klobuchar’s website. To become law, the bill still must be passed by the full Senate and the House of Representatives before the current session of Congress ends in January.