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 US Court of Appeals for the District of Columbia Circuit held an oral argument on the appeals of three parties seeking review of the Copyright Royalty Board’s decision setting the royalties for webcasting to be paid to SoundExchange for the period 2021-2025 (see our Broadcast Law Blog article for a summary of the Board’s decision being appealed). The NAB argued that the rates for broadcasters who simulcast their programming on the Internet should be substantially lower than the rates for other webcasters. The NRB’s Noncommercial Music Licensing Committee argued that the rates for noncommercial religious webcasters should be lower, mirroring the rates paid by nonprofit webcasters affiliated with NPR and the Corporation for Public Broadcasting. SoundExchange argued that the rates should actually be higher than those set by the CRB. The Court’s three-judge panel vigorously questioned the premises advanced by the attorneys for each of the parties (a recording of the argument is available here). A decision from the Court addressing the issues will likely not be released for several months.
- The Federal Trade Commission held a public forum on its proposal to ban noncompete clauses in employment agreements. The forum included many speakers supporting the proposed ban, and a few suggesting that the proposed across-the-board ban be limited. The FTC notice of the forum is here, and a recording of the session is available here. Written comments on the FTC proposal can be filed through March 20.
- The FCC upheld its Media Bureau’s determination that the licenses of an AM station and associated FM translator station in South Lake Tahoe had expired automatically when the stations did not operate for over a year. Section 312(g) of the Communications Act states that a broadcast license will automatically expire when a station is silent for more than a year, unless the FCC finds that “equity and fairness” requires that the license be extended. In this case, the licensee, without advising the FCC, stopped operating both stations from its licensed site sometime in December 2018 when its landlord seized all equipment at the transmitter site for unpaid rent. There was no evidence that either station operated in 2019. It was not until 2021 that the licensee asked for special temporary authority (STA) to operate both stations from a new site. In that STA, it failed to disclose that the stations had been silent for a consecutive 12-month period. While the Bureau granted the STA, once it learned of pending complaints about the station’s operations and the information gathered by the Enforcement Bureau about the complaints, it advised the licensee that the stations’ licenses had expired automatically as a matter of law pursuant to section 312(g). The licensee sought review raising several arguments including that the owner was suffering from Parkinson’s disease and thus had problems addressing the issues, that the pandemic made resumption of operation difficult, and that the licensee would transfer the station to its engineer, who was a minority. The FCC rejected these and other arguments, finding that the illness of the owner was not an excuse (he should have delegated operational issues to someone else), there was no showing that pandemic issues specifically caused any of the station’s financial issues in 2019, and that the proposed sale did not excuse the problems of the current licensee. The FCC found that there was nothing outside the control of the licensee that caused the period of extended silence so there was no reason to grant any relief by exercising its discretion under Section 312(g)’s “equity and fairness” exception.
- The Media Bureau entered into a consent decree with an FM station to resolve its admitted failure to timely upload records to its online public inspection file. The Bureau did not impose a fine, but the licensee agreed, among other things, to implement a comprehensive compliance plan to ensure future compliance with its online public inspection file obligations and, one year after entering into the consent decree, submit a compliance report to the Bureau’s Audio Division.
- The FCC issued a Public Notice announcing the agenda for the February 23 meeting of its Communications Equity and Diversity Council (CEDC). The agenda includes, among other things, a report on the activities of one of its working groups to provide recommendations for reducing entry barriers and encouraging diverse ownership and management of media, digital, communications services and next-generation technology properties, and to encourage start-ups advancing viewpoint diversity by a broad range of voices. The CEDC meeting will be held virtually, beginning at 10:00 a.m. ET, and will be available to the public for viewing at http://www.fcc.gov/live.