Here are some of the regulatory developments of significance to broadcasters from this past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The U.S. Supreme Court overturned the longstanding Chevron doctrine, which required Courts to defer to expert regulatory agencies, like the FCC, when interpreting ambiguous statutes, unless the agency acted unreasonably.  If the agency’s interpretation of a law was a plausible one, under Chevron, that interpretation would stand even if a reviewing Court thought that there was a better reading of the law.  The Supreme Court decided that it should be the Courts that interpret statutes and, while the agency’s decision may be instructive, the Court will make the final determination as to what the best interpretation of the statute is, even if it is different than the decision of the agency.  This could lead to more Court decisions overturning agency actions.  Several months ago, when this case was argued before the Supreme Court, we wrote on our Broadcast Law Blog about its possible impact.    
  • The House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing titled: “Radio, Music, and Copyrights: 100 Years of Inequity for Recording Artists.”  The hearing examined whether a sound recording public performance right, similar to the royalty paid to SoundExchange for streaming, should be extended to cover over-the-air broadcasters.  This royalty, to benefit record companies and artists, would be in addition to the royalties already paid to ASCAP, BMI, SESAC, and GMR (benefitting songwriters and publishing companies).  Country music star Randy Travis and Mike Huppe, the CEO of SoundExchange, testified in favor of the American Music Fairness Act of 2023, which would enact such a sound recording performance royalty for over-the-air broadcasters.  Curtis LeGeyt, the CEO of NAB, and a Radio One station manager discussed the Supporting the Local Radio Freedom Act, which would prohibit Congress from imposing such royalties.  A recording of the hearing and copies of the witnesses’ written testimonies can be found here.
  • The FCC’s Media Bureau announced that comments are due July 29 on the FCC’s Notice of Proposed Rulemaking, which proposes extending Online Public Inspection File requirements to top-rated or network affiliated LPTV stations and expanding OPIF requirements to include uploading Local Marketing Agreements, Time Brokerage Agreements, Joint Sales Agreements and, for Class A stations, certifications of continuing Class A eligibility.  The NPRM also proposes other changes to the FCC’s rules governing Class A, LPTV, and TV translator stations, including limits on site moves and obligations to establish a city of license (see our discussions of the NPRM here and here).  Reply comments are due August 26. 
  • The FCC circulated a draft Report and Order which, if adopted at the FCC’s Open Meeting on July 18, would require device manufacturers and Multichannel Video Programming Distributors (MVPDs) to make closed captioning display settings “readily accessible” to individuals who are deaf or hard of hearing.  The requirement would apply to all U.S.-manufactured devices that use a picture screen and are designed to receive or play back video programming simultaneously transmitted with sound (such as televisions, smartphones, tablets, and computers).  MVPDs must comply with the requirement if they provide their customers with covered devices to use their services.  The FCC will determine whether a device is readily accessible using the factors described in a joint proposal filed by the NCTA and a coalition of consumer groups in March: proximity (all settings in one place accessible by button or key); discoverability (the settings can be easily found by the user); previewability (the user can see what the settings will look like on their screen when changing settings); and consistency and persistence (the settings of the device can be used for accessibility to all applications that may be accessed on that device). 
  • The FCC’s Public Safety and Homeland Security Bureau released its Report on the October 4, 2023 Nationwide Emergency Alert Service Test.  The report notes that 96.6% of EAS Participants participated in the 2023 EAS test (an increase from 89.3% in 2021) and that the test had an overall 93.6% retransmission success rate (an increase from 87.1% in 2021).  While there were fewer performance issues reported in the 2023 EAS test than in the 2021 test, the report states that 23% of EAS Participants in the 2023 test used outdated software, leading to a lower success rate among those participants.  To improve the operational readiness of the EAS, the Bureau recommends that the FCC require EAS Participants to timely install software updates and to replace outdated equipment.
  • The FCC’s Wireless Telecommunications Bureau and Media Bureau issued a Public Notice announcing the designation of the Chair of a coordinating committee formed by the Network Pool organization to be the point of contact to coordinate uses of the Broadcast Auxiliary Service for the 2024 Republican National Convention, the 2024 Democratic National Convention, and the 2025 Presidential Inauguration.  Designating the chair of this committee (referred to as “Election Wireless 2025”) as frequency coordinator allows for advance coordination of BAS frequency usage to try to avoid spectrum congestion and interference at those events.  The Bureaus also granted Election Wireless 2025’s waiver request to permit low power auxiliary operators to exceed the maximum power levels when operating at those events to facilitate their coverage.  More information about the appointment and the use of wireless frequencies to cover this event can be found in the Public Notice.    
  • The Media Bureau published in the Federal Register notice of the following proposed changes in the city of license of the listed radio stations: WTOF(AM), Bay Minette, AL to Spanish Fork, AL; WPJL(AM), Raleigh, NC, to Knightdale, NC; KAMZ(FM), Tahoka, TX to Wolfforth, TX; KJAR(FM), Laramie, WY to Elk Mountain, WY; KZJJ(FM), Mesa, WA to West Richland, WA; and WRBO(FM), Como, MS to Germantown, TN.  Comments on these proposals are due by August 23, 2024. 
  • The Media Bureau released two NPRMs proposing changes to the TV and FM Tables of Allotments:
    • The Bureau released an NPRM proposing to amend the FM Table of Allotments to add new Channel 284A at Huntley, Montana, as that community’s first local radio service.  To enable that change, the NPRM also proposes to move the FM station operating on Channel 283C1 at Billings, Montana, to Channel 286A.  Comments and reply comments in response to the NPRM are due August 19 and September 3, respectively. 
    • The Bureau released an NPRM proposing the reallocation of channel 11 at Cape Girardeau, Missouri instead of channel 32.  Channel 32 had been allocated for use by KFVS-FM, which is operating on channel 11.  However, the station was not able to timely construct the new facilities on channel 32, and thus is asking that the allocation of channel 11 be returned to the table of allotments to reflect the station’s continued operation on that channel.
  • The Media Bureau, along with the FCC’s Managing Director, issued an Order to Pay or to Show Cause to a Texas AM station proposing to revoke the station’s license unless, within 60 days, the station pays its delinquent regulatory fees and interest, administrative costs, and penalties or shows that the debt is not owed or should be waived or deferred.  The station currently has an unpaid regulatory fee debt of $3,303.84 for fiscal year 2022.
  • The Media Bureau also took actions against two broadcasters for FCC rule violations:
    • In connection with their license renewal applications, the Bureau entered into a Consent Decree with two Puerto Rico noncommercial TV stations for failing to timely upload the majority of their Quarterly Issues/Programs Lists to their Online Public Inspection Files during their last license term.  The Consent Decree requires that the stations implement a compliance plan to ensure that future OPIF violations do not occur.  A monetary penalty was not imposed due to the stations’ financial difficulties.  The Bureau only renewed the stations’ licenses for two-year terms, instead of the normal eight-year term, due to the extent of their violations.
    • The Bureau proposed a $2,500 fine against a Texas LPTV station for operating for four months with an unauthorized antenna.  The Bureau reduced the proposed fine from the normal amount of $10,000 due to LPTV station’s status as a secondary service. 

On our Broadcast Law Blog, we highlighted upcoming regulatory deadlines for broadcasters in July and early August, including Quarterly Issues Programs lists and other quarterly obligations, numerous rulemaking comments deadlines, and the start of several political lowest unit rate windows.  We also looked at the impact on broadcasters of the FCC’s recent decision on foreign government sponsored programming, which expanded the requirement that broadcasters determine whether those who “lease” program time on their stations are foreign government agents (who have enhanced sponsorship identification requirements), to include buyers of spot time that does not promote a commercial product or service or a political candidate – thus requiring certifications about foreign government connections from issue advertisers and sponsors of paid PSAs.