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.
- On Tuesday, the Communications and Technology Subcommittee of the House Committee on Energy and Commerce held a hearing, “Listen Here: Why Americans Value AM Radio.” The hearing focused on recent legislative proposals to require the inclusion of AM radio in all cars sold in the U.S. Witnesses presented the perspectives of broadcasters, public safety entities, and the auto industry. AM radio (and broadcast radio in general) received strong support from Congressional representatives on the Subcommittee, although a few of the Representatives expressed reluctance to adopt a government mandate to require that cars offer AM radio. The representative of the auto industry would not give a firm commitment that AM radio will continue to be provided in cars, only promising that the industry would look for some way to ensure free emergency alerts would reach the public. For our thoughts on what the hearing said about the future of over-the-air radio in the car, see our Broadcast Law Blog article here.
- The FCC’s Public Safety and Homeland Security Bureau issued a Public Notice changing FCC policies so that State Emergency Communications Committees (SECCs) can more quickly amend their State Emergency Alert System Plans, making it easier for stations to change the source they monitor for EAS alerts. Rule changes include:
- SECCs now can submit to the FCC an updated monitoring assignment in their EAS Plans at any time, instead of limiting changes to the 30 days prior to the SECC’s annual update deadline, which had been the policy before. This will make it largely unnecessary for waivers to implement changes at other times. In fact, the Bureau urged EAS Participants to begin to immediately monitor new EAS sources when they can no longer receive an old source reliably, without waiting for formal approval.
- Any EAS Plan filing – whether an annual updated plan or an amendment outside the regular update cycle – may contain monitoring assignments that EAS Participants are in the process of carrying out but have not yet fully implemented.
- The FCC dismissed an application by Forum Communications seeking approval for it to acquire a Top 4 rated TV station in the Fargo market where it already owned another Top 4 station. The FCC permits such combinations if a public interest showing is made. The application was filed in January 2022. It argued that the public interest would be served as the buyer would provide significantly more local news programming on the station to be acquired, and that the station combination would allow the company to compete more effectively against another Top 4 combination in the market (between a full-power and a low power station) and against digital media which has a significantly larger advertising market share than either TV group. The Commission never acted on the application, and the contractual obligation to close the transaction within eighteen months passed, prompting the seller to exercise its option to terminate the sale. Given the recent termination of the TEGNA deal, it appears that this Commission is reluctant to approve any deal proposing what might be seen as any significant ownership concentration, local or national. Parties contemplating any significant broadcast transaction should carefully consider the meaning of these cases. See this press report for more information about the termination of this deal.
- In two decisions, the FCC addressed mutually exclusive applications from the 2021 window for new noncommercial stations in the reserved portion of the FM band.
- In a Memorandum Opinion and Order, the full Commission selected the winning applicants in ten groups of mutually exclusive applications and tentatively awarded them construction permits for new NCE FM stations. The ten tentative selectees approved by the Commission propose to serve the following communities: Pelham, GA; Hobbs, NM; Gonzales, TX; Charlotte Amalie, VI; Burlington, IA; Paintsville, KY; Narragansett Pier, RI; Wells, MI; Grand Forks, ND; and West Lake, FL. In six of the ten cases, the Commission rescinded an initial tentative selectee and approved a new winner chosen from the remaining applicants in the group of mutually exclusive applications. The facts leading to the Commission’s decisions vary widely from group to group, and thus will not be summarized in detail here. However, in most of the groups, losing applicants were cited for failing to properly document their claim of eligibility for points under the points system criteria used to choose between mutually exclusive applications, or for untimely or inaccurately reporting their other broadcast interests. The Order provides good examples of the Commission’s application of its points system.
- In a separate case, the Media Bureau dismissed the application of the tentative selectee for a new NCE FM station at Key West, FL, and instead approved a mutually exclusive applicant for a new NCE FM station at Stock Island, FL. The application was dismissed because it omitted from its application the name of an individual who was listed in Florida corporate documents as the Vice President of the applicant. Because a corporate officer is deemed to hold an attributable interest in an NCE FM application, the fact that the omitted Vice President had been alleged to have operated an illegal pirate radio station should also have been reported. The investigation into the pirate radio operation was relevant to whether the omitted officer was qualified to be an FCC licensee, as the Bureau, in connection with the investigation of the pirate, directed that information about the investigation be filed with any application in which the omitted officer held an attributable interest if filed within five years of the investigation. The Bureau was not persuaded by the applicant’s claim that the omitted officer never really performed any duties as Vice President and that his name was erroneously included on the corporate documents.
- The FCC’s Enforcement Bureau issued a Notice of Violation to an AM station after an agent in the Bureau’s Portland, OR office heard, on a single occasion, that the station’s on-air station identification failed to identify the station’s community of license. Legal top-of-the-hour station identifications must state the station’s call letters and the station’s city of license, with nothing in between (except, at the option of the station, the frequency of the station). The Notice gave the station twenty days to submit a written statement explaining its violation and any corrective actions that have since been taken. The Bureau reserved the right to pursue further enforcement action against the station after it reviews the station’s explanation, including the possible issuance of fine.