This Week in Regulation for Broadcasters: July 1, 2024 to July 5, 2024

By David Oxenford & Keenan Adamchak on July 7, 2024

Posted in AM Radio, Artificial Intelligence, Digital Television, EEO Compliance/Diversity, Emergency Communications, FCC Fees, FCC Fines, FM Radio, General FCC, Intellectual Property, License Renewal, Noncommercial Broadcasting, Programming Regulations, Public Interest Obligations/Localism, Television, Trademark

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 National Religious Broadcasters, American Family Association, and the Texas Association of Broadcasters jointly requested that the FCC stay the Form 395-B reporting requirement while the U.S. Court of Appeals reviews their petition for review of the FCC’s February Report and Order that reinstated the report. As we wrote on our Broadcast Law Blog, the reinstated form will require broadcasters to annually report their employees’ race, ethnicity, and gender, while classifying the employees by job categories. The petitioners ask that the FCC, during the appeal, put on hold any announcement of when broadcasters must begin filing the Form 395-B – which otherwise could be due as early as September 30, 2024, as the reinstated rule requires the report to be annually filed by the end of September. The petitioners argue that the report is unconstitutional because it unlawfully pressures broadcasters to engage in race- and sex-conscious employment practices, and that there is evidence that third parties intend to use the Form 395-B data to pressure broadcasters to make such employment decisions. As we discussed last month here, the National Association of Broadcasters filed a petition for reconsideration with the FCC of the Form 395-B’s reinstatement on similar constitutional grounds, and cited concerns raised by broadcasters that the expansion of the report’s gender categories could lead to harassment of station employees identifying as non-binary.
A US District Court in Texas (in one of several cases challenging the FTC’s Non-Compete Rule) granted a preliminary injunction staying the September 4, 2024 effective date of the non-compete ban, but the stay applies only to the parties appearing before the Court. The Court expressly declined to grant a nationwide injunction saying such relief was not necessary yet necessary. In granting the preliminary injunction, the Court determined, among other things, that those attacking the rule are “substantially likely to prevail on the merits of their challenge to the FTC’s Non-Compete Rule under the Administrative Procedure Act” and the public interest favors issuance of a preliminary injunction. While this order is preliminary, the Court intends to rule on the merits of this action on or before August 30, 2024.
FCC Chairwoman Rosenworcel announced the circulation of draft final rules for vote by the FCC’s commissioners that, if adopted, would require Emergency Alert System participants, such as broadcasters and cable providers, to notify the FCC of EAS equipment defects within 24 hours of discovery. EAS participants would also be required to implement contingency plans for delivering EAS alerts in the event of equipment malfunctions, and that they adopt and regularly update cybersecurity security measures to secure their systems to protect EAS from hackers and other online intruders.
The FCC released its quarterly public notice, Broadcast Station Totals, itemizing the number of stations currently operating in each broadcast service. The release shows that, compared to the same release from a year ago, there are 50 fewer AM stations and 55 fewer commercial FM stations, but 120 more noncommercial FM stations. There were 7 more commercial UHF TV stations, 2 more commercial TV VHF stations, and 3 more noncommercial UHF TV stations, but 4 fewer noncommercial VHF TV stations.
The FCC’s Media Bureau announced that commercial FM stations must comply with the reinstated radio duplication rule beginning August 2. As we discussed here, last month, the FCC released a Reconsideration Order reinstating its radio non-duplication rule for commercial FM stations, which prohibits commonly owned or operated stations with overlapping service contours from duplicating more than 25% of their programming. AM stations are not subject to the reinstated radio duplication rule. The FCC is providing FM stations currently duplicating programming until February 3, 2025, to comply or to request a waiver to continue duplicating programming (which will be granted only in rare cases). To prevent stations from taking advantage of the grace period, the FCC encourages stations to file waiver requests by October 31.
The Media Bureau, along with the FCC’s Managing Director, issued an Order to Pay or to Show Cause to two Alabama FM stations proposing to revoke the stations’ licenses unless, within 60 days, the stations pay their delinquent regulatory fees and interest, administrative costs, and penalties, or to show that the debts are not owed or should be waived or deferred. One station currently has an unpaid regulatory fee debt totaling $6,378.06 for fiscal years 2020, 2021, 2022, and 2023. The other station has an unpaid regulatory fee debt totaling $5,586.37 for those fiscal years.
The Media Bureau denied a Kentucky AM station’s request to reinstate its license, which the Bureau cancelled in August 2020 for the station’s failure to file its most recent license renewal application due in April 2020. The Bureau, however, subsequently reinstated its 2012 renewal application without explanation. The station argued that reinstating its 2012 renewal application also required the reinstatement of its license, which would then allow it to file its most recent renewal application that was due in 2020. The Bureau rejected the station’s arguments, finding that its erroneous reinstatement of the station’s 2012 license renewal application did not otherwise “toll” the station’s license beyond the normal eight-year term – meaning that the station’s license expired in August 2020 due to its failure to file its 2020 renewal application.
The US Patent and Trademark Office announced that it will be holding a roundtable on August 5, both in person and virtual, to assess the impact of Artificial Intelligence on the rights of individuals to their “name, image, voice, likeness, or other indicia of identity,” what the PTO refers to as “Name Image and Likeness” or “NIL.” Information gathered will be used to determine if the PTO should seek new rules to protect NIL rights. The Federal Register notice announcing this roundtable includes a list of questions to be addressed, including an identification of issues that have arisen, a discussion of state laws governing NIL, questions of whether new federal laws are needed and, if so, what those laws should provide. Parties interested in registering to speak at the roundtable should register with the PTO. More information is on a PTO webpage about the proceeding.

On our Broadcast Law Blog, we discussed the impact on broadcasters of the Supreme Court’s rejection of the Chevron Doctrine last week. The doctrine had required courts to generally defer to expert regulatory agencies, like the FCC, when interpreting ambiguous statutes. By abolishing the policy, those appealing agency decisions will have new arguments to raise. Our article discusses how the review of agency decisions may change.