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.
- Chairwoman Rosenworcel announced that the FCC, at its open meeting on July 20, intends to allow 13 “Franken FM” or “FM6 stations” (i.e., LPTV stations operating on TV channel 6 with an analog audio service that can be received on FM radios at 87.7 MHz) to continue to provide their existing analog radio service as an “ancillary or supplementary service.” LPTV operators had asked the FCC to permit this continued operation after these stations’ digital conversion as the service requires that an analog audio signal be embedded in the digital Channel 6 LPTV station transmissions. The FCC’s tentative decision will grandfather these 13 operations, allow these stations to increase facilities on a non-interference basis, and allow them to be sold; while imposing some FM-like service obligations on the audio services (including public file requirements that ordinarily do not apply to LPTV stations). If adopted, the item also precludes future FM6 operators, declines to allow FM operations on Channel 6 in parts of the country where it is not now used for television, and postpones any decision on relaxing interference standards between TV channel 6 and NCE FM stations on the low end of the FM band until further study is done. For more details on the issues that were addressed in this proceeding, see our Broadcast Law Blog article here.
- The Commission recently issued a Public Notice announcing that it is taking comments on a Petition for Rulemaking filed by REC Networks in which REC proposes rules to govern a possible future FM translator filing window. Among REC’s proposals are a limit on the number of applications permitted by any one applicant and limits on the sale of any construction permit that is granted in any new filing window. Comments on the REC Petition are due on July 26, 2023 and will give the FCC the opportunity to decide whether to further advance these proposals through a formal rulemaking process.
- The FCC has published its All-In Pricing for Cable and Satellite Television Service Notice of Proposed Rulemaking (NPRM) in the Federal Register, setting comment dates. Comments are due July 31, and replies are due August 29. The NPRM proposes to require cable operators and direct broadcast satellite (DBS) providers to specify the “all-in” price for video service in their promotional materials and on subscribers’ bills. Cable operators and DBS providers could supplement the aggregate price with an itemized explanation of the elements that compose that single price, but the single aggregate price would have to be made clear.
- The Federal Trade Commission released updated Guides Concerning the Use of Endorsements and Testimonials in Advertising (“Endorsement Guides” or “Guides”). The Endorsement Guides advise businesses on what practices may be unfair or deceptive in violation of the FTC Act. The updated Guides enhance the disclosure requirements for promoting goods online, including in social media, requiring disclosures whenever anyone is paid to promote a product or receives anything of value (including a free use of the product) for their promotion. The new FTC policies also cover any attempt to distort consumer reviews of a product; clarify the existing obligations that disclosures of the promotion of a product be “clear and conspicuous;” better explain the potential liability of advertisers, endorsers, and intermediaries; and highlight that child-directed advertising is of special concern. The policies specifically address endorsements made by broadcaster’s on-air employees. The FTC also released an updated frequently asked questions document, FTC’s Endorsement Guides: What People are Asking.
- Senator Maria Cantwell, Chair of the Senate Commerce, Science and Transportation Committee, sent a letter to the FCC Chairwoman, urging her to update the record on whether video streaming services that carry broadcast TV signals are MVPDs subject to FCC rules, such as must carry and retransmission consent. This letter adds to the pressure that some broadcasters have already put on the FCC to consider whether the FCC should regulate these “virtual MVPDs.” Only two months ago, Chairwoman Rosenworcel said in a letter to Senator Grassley that she did not believe that the FCC had jurisdiction to review this issue (see our reference to that letter in a previous weekly update here).
- The Republican Attorneys General from 16 states sent a letter to the trade associations representing electric car manufacturers asking that AM radio be preserved in their members’ cars because of the importance of AM to the dissemination of public safety information. This effort ties into other actions aimed at preserving AM in cars (see our blog article on federal legislative efforts, here).
- The Copyright Royalty Board’s released its decision approving the royalties to be paid by noncommercial broadcasters to ASCAP, BMI, SESAC, and GMR for the public performance of musical works licensed by these organizations. These rates are applicable from January 1, 2023 through the end of 2027. There are different rates set out in the decision for NPR/CPB affiliates, for stations affiliated with colleges and other educational institutions, and for other noncommercial broadcasters, including religious noncommercial operators. We wrote about these rates when they were first proposed, here.
- The FCC’s Media Bureau proposed to fine an FM translator station $7,500 due to the station’s unauthorized substitution of antenna different than what the Bureau had previously approved. Section 74.1251(b)(2) of the FCC’s Rules requires FM translator licensees to request and receive authority prior to making any changes to their antenna system. The licensee here conceded that it had substituted an antenna different in manufacturer, size, and weight than the one specified in its license application approved by the Bureau. The station stated that it substituted a lighter antenna for a heavier one so it could mount the antenna on the tower without constructing additional bracing. In a separate decision, the Bureau found that the unauthorized substitution violated the FCC’s rules, rejecting the station’s argument no prior authority was needed to substitute an antenna capable of achieving the same directional pattern and mounted in accordance with manufacturer instructions. The combined base fine in the FCC’s rules for the station’s rule violations (i.e., one for failing to file for consent to use the substitute antenna and the other for operating with that antenna without FCC consent) is $13,000. The Bureau, however, reduced the fine to $7,500, citing the fact that the station, a translator, only provides only a secondary service.
- The Media Bureau and the FCC’s Office of Managing Director jointly issued an Order to Pay or Show Cause to a South Carolina AM station, directing it to pay overdue regulatory fees or risk revocation of its license. The FCC’s records indicated that the station currently has unpaid regulatory fee debt of $1,309.54 for FY 2010; $1,355.22 for FY 2012; $1,361.69 for FY 2013; $1,314.33 for FY 2014; $1,280.78 for FY 2015; $188.24 for FY 2016; and $1,394.42 for FY 2022. The Order gives the station sixty (60) calendar days to file documented evidence that full payment of all outstanding regulatory fee debt has been made, or show cause why the payment is inapplicable or should be waived or deferred. The Order warns the station that failure to do either in a timely manner may result in revocation of the station’s license.
For a look ahead at regulatory dates of importance to broadcasters in July and early August, see our article here.