Early this year, we provided our look into the crystal ball to see what was on the FCC’s agenda for broadcasters in the coming year. Yesterday, the FCC published in the Federal Register its own list – its Semiannual Regulatory Agenda – listing an inventory of the matters at the FCC awaiting Commission action. The list includes not just broadcast actions, but also those from other parts of the agency. It does not provide any timetable for any resolution of the matters – it just notes the currently open rulemaking proceedings at the FCC. The list is interesting reading, particularly as it includes proceedings that were initiated long ago that many of us forget are still pending. What is on the list? Here is a look at some of the items on the list for the FCC’s Media Bureau:
- EEO Policy: The FCC notes not only the proceeding to bring back the Form 395B that reports on the race, gender, and ethnicity of each broadcast employee (see our article here), and the initiative from the Pai administration asking how EEO enforcement can be made more effective (see our article here). It also notes that still pending is the 2004 Third Notice of Proposed Rulemaking that requested comment as to whether the FCC rules requiring the wide dissemination of information about job openings at broadcast stations should be extended to include part-time positions (an update of the record in that proceeding was requested in 2021).
- LPTV Transition to Digital – Still open is the resolution of issues dealing with Channel 6 LPTV stations that want to continue to provide FM service by retaining an analog audio channel even after they have converted to digital operations – referred to by the FCC as FM6 operations, and by the industry as Franken FMs (see our article here).
- ATSC 3.0 – Still pending on the ATSC 3.0 transition to the Next Generation of TV transmission are issues including reconsideration of changes to the distributed transmission system (DTS) rules (see our article here on the adoption of the DTS rules), the question of when to sunset the requirement that one channel of programming of any station that converts to the new system be left behind in the current ATSC 1.0 transmission system to provide a “lighthouse signal” for consumers who have not yet converted to the new system (by leaving that programming on the digital subchannel of a local station that has not yet converted to the NextGen system), and questions about the liability for programming broadcast on those lighthouse signals (see our article here).
- Broadcast Ownership Rules – The FCC has not concluded its Quadrennial Review of the broadcast ownership rules that it began in late 2018, and has already started the 2022 review despite not having finished the prior one (see our article here). Issues include review of the local radio ownership rules and the rule preventing one entity from owning two TV networks, as well as questions about whether rules should be adopted to promote diversity including procurement requirements or other means to promote minority participation in the broadcast media.
- Program Duplication – Reconsideration petitions are pending on the FCC’s 2020 decision eliminating the rules that had prohibited the duplication of programming on same-service radio stations serving the same area (see our article here).
- Foreign Government Sponsored Programming – The FCC is still considering reconsideration requests on the rules that require the identification of programming sponsored by foreign governments or their agents, and the disclosure obligations that attach to the broadcaster’s obligations to ask program buyers if they are representatives of foreign governments (see our articles here and here).
- FM Boosters (“Zonecasting”) – The proposal to allow limited origination of programming by FM translators to allow different ads or news breaks to be transmitted on boosters serving different parts of an FM station’s service area – the controversial proposal by GeoBroadcast Solutions to permit “zonecasting” by boosters (see our article here).
- Regulatory Fees – Questions of whether the FCC’s system for allocating its costs to those that it regulates should be changed to lessen the burden of regulatory fees on broadcast stations.
These are among the issues that the FCC lists as pending that specifically affect broadcasters. But there are also pending issues listed in this report that are not under the authority of the Media Bureau, but are instead being considered by other parts of the FCC. These include review of rules for accessibility (including captioning issues), EAS reform, changes to the C-Band and satellite rules, rules that govern the ability of unlicensed wireless operators to use TV “white spaces,” and other proceedings. It is also important to note that many decisions affecting broadcasters are not made through the rulemaking process (the only proceedings listed in the FCC’s just released agenda), but instead by day-to-day decisions interpreting the rules already on the books by the Media or Enforcement Bureaus. It is evident that, despite the lack of a full Commission, there are plenty of issues on the table for FCC consideration that could change the rules that govern broadcast operations. Stay alert for changes!