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 Order and Notice of Proposed Rulemaking (“NPRM”) proposing changes to the digital audio broadcasting rules to facilitate greater digital FM radio coverage was published in the Federal Register this week, setting the date for comments. Comment are due by September 21, 2023 with reply comments due by October 6 (FCC Public Notice). The NPRM tentatively concludes that there is merit to two petitions for rulemaking filed by NAB and other parties (available here and here), asking the FCC to permit increased FM digital effective radiated power beyond the existing levels and to allow a digital FM station to operate with asymmetric power on the digital sidebands (for more details about these petitions, see our article here). The FCC seeks comment on a number of specific questions including when a station can seek higher digital power without submitting a contour analysis or otherwise seeking Commission prior approval; whether stations planning asymmetrical side bands need to give notice to adjacent channel stations; whether there is a risk of interference to lower powered FM stations, secondary stations (LPFMs and translators), and even broadband operators who suggest possible interference to equipment that they operate on FM channels; and whether any potential interference calls for limits on the proposed rule changes.
- The FCC’s Audio Division of its Media Bureau proposed a $20,000 fine for unauthorized operations and false certifications in connection with a license application for changes in the facilities of an FM translator. The translator had been authorized to rebroadcast an LPFM station, but received a construction permit to increase power and change its primary station to rebroadcast an AM station. As the permit was about to expire, the licensee filed a covering license application certifying that the new facilities had been constructed in accordance with its construction permit. In fact, the translator continued to rebroadcast the LPFM station for at least 6 months after the grant of the license for the new facilities. As the translator was not rebroadcasting the station specified in the license application, the Division found its operations to be unauthorized and the certification in the license application that it was operating in accordance with the construction permit to be false, warranting the fine.
- In another interesting aspect of this decision, the Division rejected claims that the licensee, a nonprofit organization governed by its Board, had undergone an unauthorized transfer of control because its Board members were different from those at the time it received its initial license, with no FCC approval having been sought. The decision noted the FCC’s policy that gradual changes in a non-profit organization’s governing Board do not constitute a transfer of control. Thus, as the Board changes in this case were gradual, no FCC approval was required even though the current Board was completely different from that which had initially been approved by the FCC.
- The FCC’s Video Division issued three forfeiture orders (here, here and here) issuing fines to licensees of TV translators for filing late license renewals. These decisions reduced the fines of $1500 per station that had been initially issued to these licensees (and were issued to other stations in similar situations in the recent past), to $99 per station, based on showings by the licensee that the higher fines would have caused the licensee substantial financial hardship. Financial hardship showings must include tax returns or other detailed records showing the revenues of a licensee. When the proposed fines exceed a percentage of the licensee’s revenue that has in prior cases been found to be excessive (generally, fines in excess of 8% of revenue have been found excessive, while those below 5% are not), the FCC will consider reducing them, as they did in the cases decided this week.
- In the continuing efforts of television broadcasters to convert their VHF stations to the UHF frequencies seen as more advantageous for digital broadcasting, the FCC asked for public comment on proposals for TV stations in Winnemucca, Nevada and Idaho Falls, Idaho to make such changes.
With the Labor Day holiday next week, unless the FCC is very active, we will not publish this update next weekend. If we do not, we will include any actions taken this coming week in our next weekly update on September 10. In the interim, watch for an announcement of the deadlines for the payment of Annual Regulatory Fees (we expect to cover any announcement on our Broadcast Law Blog). We recently noted on our blog that the FCC earlier this month released its Report and Order setting the amount of the annual regulatory fees that broadcasters must pay, but the Commission has not yet followed up on that Order by issuing a Public Notice setting the dates for payment, which must be made before the federal government’s October 1 start of the new fiscal year.