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 released its agenda for its Open Meeting scheduled for February 15. The FCC will consider two items of interest to broadcasters:
- For years, the FCC has been exploring how to provide multilingual EAS alerts on broadcast stations (see our Broadcast Law Blog articles here, here, and here on the FCC’s past rejection of attempts to mandate that broadcasters originate such alerts). At its upcoming meeting, the FCC will consider a draft Notice of Proposed Rulemaking (NPRM) proposing that public safety and other groups that originate alerts would be provided pre-scripted, pre-translated alert messages in thirteen non-English languages that the originators can distribute during emergencies to TV and radio broadcasters, cable service providers, and other EAS participants. Among the questions asked in the NPRM is whether a station receiving these pre-scripted alerts in multiple languages would have to broadcast the alert only in the language of its programming, or whether it would have additional obligations to broadcast alerts in other languages common in its service area.
- The FCC will also consider a draft Report and Order that, if adopted, would permit a new type of wireless microphone system called “Wireless Multi-Channel Audio System” (WMAS). The new rules permit the use of WMAS on a licensed basis in frequency bands where wireless microphones already are currently authorized, including the TV bands (VHF and UHF). The FCC stated that its goal was to enhance the spectral efficiency of wireless microphone use and noted that it did not intend to alter the existing spectrum rights or expectations of existing users, including broadcast licensees.
- The FCC adopted a Notice of Proposed Rulemaking, in which it proposes to require TV and radio stations to file reports with the FCC regarding station operational outages in the FCC’s Network Outage Reporting System (NORS) database and on their operating status during disasters in the FCC’s Disaster Information Reporting System (DIRS) database. DIRS reporting is currently voluntary for broadcasters. The FCC’s Public Safety and Homeland Security Bureau also issued a Public Notice announcing that it will be conducting a DIRS voluntary exercise on February 6 through February 8 to ensure that communications providers, including broadcasters, can access and file reports in the DIRS system. The Bureau’s Public Notice contains information on how to register and participate in the DIRS exercise.
- The FCC announced that February 26 will be the deadline for filing comments in response to the FCC’s Notice of Proposed Rulemaking (NPRM) adopted last month (see our articles here and here) which proposes to require multichannel video programming distributors to report lapses in their carriage of TV stations when retransmission consent negotiations fail, i.e., “blackouts.” Reply comments will be due March 26.
- The FCC took several actions related to pirate radio:
- The FCC submitted its annual report to Congress on its enforcement of the PIRATE Act, which enables the FCC to issue fines up to $2,391,097 against pirate radio operators (see our article on the adoption of the Act). The report notes some of the substantial fines issued against pirate radio operators, as well as the issuance of 44 warning notices sent to property owners and managers of sites hosting pirate radio activities (some of which we discussed here, here, and here). It also noted that the FCC started a pirate radio database in January 2023 (now updated with all publicly released enforcement activity through December 2023), it has expanded its staff dedicated to enforcing the PIRATE Act, and it will be buying additional equipment over the next two years to better investigate pirate radio activities.
- The FCC also proposed to fine five Florida-based pirate radio operators a total of $3.5 million, actions which were the result of the FCC’s first sweep of the Miami area for pirate radio activities under the PIRATE Act. Under the PIRATE Act, the FCC can fine pirate radio operators up to $119,555 per day and a maximum of $2,391,097 as recently adjusted for inflation (see here and here regarding our discussion of the FCC’s recent adjustments of fines for inflation). In one decision released this week, the FCC proposed a $2,391,097 fine – the maximum penalty allowable under the Act – against a pirate radio operator for operating illegally on 22 specific days in 2023 when the FCC was monitoring its operations, a fine that was multiplied by the pirate’s 12 year history of illegal operations, which included multiple prior FCC actions including seizures of broadcast equipment. The FCC also proposed $358,665 fines – the maximum penalty for three days of violations – against three additional pirate radio operators and a $120,000 fine against the fifth pirate radio operator. The decisions proposing these fines are available here, here, here, and here.
- The House Subcommittee on Communications and Technology announced that it will hold a hearing on January 31 at 10:30 AM EST titled “TV Timeout: Understanding Sports Media Rights.” The focus of the hearing is on how streaming services have disrupted the media marketplace. The hearing can be viewed live here.
- The FCC’s Media Bureau entered into a Consent Decree with the licensee of a group of Nebraska FM stations requiring an $8,000 penalty to resolve the Bureau’s review of three unauthorized transfers of control. The Bureau found that the stations’ licensee failed to seek FCC consent prior to the transfer of the voting stock of its controlling shareholder to successive trusts three times between 2017 and 2019. This is one of several recent cases that show that changes in estate planning by station owners can trigger FCC requirements for prior approval of changes in control of an FCC licensee, and the penalties that can result when such approvals are not obtained (see, for instance, the cases we noted here, here, here, here, and here).
- In a Memorandum Opinion and Order, the full Commission selected the winning applicants in six groups of mutually exclusive applications filed during the November 2021 filing window new for noncommercial educational (NCE) stations – selecting winning applicants proposing to serve the following communities: Gallup, New Mexico; Weeki Wachee, Florida; Burlington, Iowa; Central Gardens, Texas; Key West, Florida; and Grand Forks, North Dakota. The facts leading to the Commission’s decisions are based on detailed factual analysis and vary widely from group to group, and thus each will not be summarized here. But, in many cases, 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 for new noncommercial stations, or for untimely or inaccurately reporting their other broadcast interests. The Order provides good examples of the Commission’s application of the points system (see our articles here and here for more information on how the point system works).
- The Commission published in the Federal Register a list of proposed community of license changes, allowing the public to comment on these changes (as required by the rules for all radio city of license changes). Comments are due by March 22, 2024. The proposed changes are: KKIS(FM), from Jacksonville, TX to Maydelle, TX; KUNY(FM), from Paragonah, UT to Enoch, UT; KYML(FM), from Mount Laguna, CA to San Diego Country Estates, CA; WCQS(FM), from Asheville, NC to Mars Hill, NC; and WYQS(FM), from Mars Hill, NC to Asheville, NC.
- The Bureau issued a Report and Order allotting TV channel 31 to Shawano, Wisconsin, allowing the permittee of an unbuilt TV station at Wittenberg, Wisconsin to change its city of license to Shawano. The Bureau agreed that providing Shawano (a community nine times larger than Wittenberg) with its first local TV service is the type of “rare circumstance” which justifies a waiver of the general prohibition on the removal of a community’s sole first local service. The Bureau also found that the public interest would not be adversely affected by the change in city of license because the station had not yet been constructed, and thus no Wittenberg viewers rely on any existing service from the station.
As we discussed on our Blog this week, the Copyright Royal Board corrected the deadline for interested parties to file petitions to participate its new proceeding to set webcasting royalty rates for 2026 through 2030. The new filing deadline is now February 5, not February 6 as originally stated. We also discussed SoundExchange’s announced audits of five broadcast companies to assess their compliance with their statutory music licenses, noting SoundExchange’s ability to audit any licensee operating under the licenses for which it collects royalties.
We also discussed on the Blog the FCC’s Notice of Proposed Rulemaking released last week aimed at giving incentives to broadcasters to air more local journalism and local programming by prioritizing the processing of certain applications filed by stations that feature local programming. We look at the FCC’s question posed in the NPRM as to whether the abolition of the main studio rule in 2017 achieved what the FCC alleges was its goal of fostering the creation of more local content, and the Republican Commissioners’ dissents based on their belief that the NPRM was laying the groundwork for reinstating the main studio rule.