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 Senate voted 53-45 to confirm Olivia Trusty as an FCC Commissioner on a largely party-line vote.  As a result of Trusty’s confirmation, the FCC now has a quorum and a Republican majority, and it may well soon move on some broadcast deregulatory proposals, including ownership rule changes.  Senator Cantwell (D-WA), the Ranking Democratic member on the Senate Commerce Committee, expressed the concerns of many Democrats, by sending Senate Majority Leader Thune (R-SD) a letter expressing her frustration with the Senate’s failure to follow the normal practice of pairing Republican and Democratic FCC Commissioner confirmations, as there remain two additional vacant seats on the FCC.   She expressed her concern that, as President Trump has not been nominating Democrats for seats that are reserved for the minority party on the governing boards of federal government agencies, there could be further moves made to operate the FCC on a strictly partisan basis.
• The FCC’s Media Bureau released a Public Notice seeking to refresh the record in the National Television Multiple Ownership Rule proceeding.  In December 2017, the FCC released a Notice of Proposed Rulemaking seeking comment on whether to retain, modify, or eliminate its national television ownership cap, which prohibits entities from owning or controlling broadcast TV stations that, in the aggregate, reach more than 39% of the TV households nationwide.  The NPRM also sought comment on the “UHF discount”- a 50% discount for UHF stations in calculating compliance with the 39% cap.  The Bureau seeks comment on a number of issues including marketplace changes impacting the national cap; whether changes in that national cap would affect broadcaster’s ability to negotiate for programming in competition with the digital streaming companies; developments in the relationship between national broadcast networks and their local affiliate TV station groups that impact the cap; and whether the FCC’s prior conclusion that a national cap preserves a market balance between the networks and local affiliates remains valid.  The Bureau further asks that, if the FCC retained the cap, whether common ownership of stations that are unaffiliated with major national broadcast networks (i.e., ABC, CBS, NBC, or FOX) should be excluded and whether the UHF discount should be retained. 
• The FCC announced that comments and reply comments are due July 21 and August 19, respectively, on the Notice of Proposed Rulemaking proposing to require certain FCC-regulated entities and auction applicants, including all broadcast licensees and permittees, to file a certification stating if they are owned or controlled by a foreign adversary.  As we noted here and here, the FCC proposes to define foreign adversaries as the Peoples’ Republic of China, Cuba, Iran, North Korea, Russia, and Venezuela.  Entities certifying yes would need to disclose all ownership interests of 5% or more held by a foreign adversary (including interests held by their citizens or companies organized under their laws).  The FCC also proposes to revoke FCC authorizations for entities filing false or incomplete certifications or for failing to file certifications when required.  For broadcasters, the FCC seeks comments on whether to use the broadcast ownership rules’ attribution criteria to determine a foreign adversary’s attribution to a broadcaster, and whether to make any changes to the existing foreign sponsorship identification rules to require additional disclosures when programming is provided by foreign adversaries.

• The FCC’s Administrative Law Judge ruled that an owner of a group of LPTV stations lacked the qualifications necessary to be an FCC licensee because he falsely certified to the FCC that he was a U.S. citizen and he transferred his interests in the stations to his niece, a minor, likely to shield the assets from a civil judgment in a lawsuit, while still maintaining actual control.  In 2010, he purportedly assigned his interests in broadcast licenses to his niece, but a consummation notice was not filed until 2014.  In investigating the late-filed notice, the Media Bureau found that the former owner retained an unlawful reversionary interest in the stations because he agreed with his niece not to file the notice until final payment was made for the stations, and continued controlling the stations’ programming, finances, and operations.  The Bureau also discovered that he misrepresented to the FCC that he was a U.S. citizen on numerous occasions.  After a hearing, the ALJ found him unqualified, and fining him $188,491 and barring him from owning or controlling any broadcast station in the future.  The decision also required any broadcaster who uses the former owner’s broadcast consulting services to disclose that fact in all FCC filings.
• The Media Bureau announced that iHeartMedia filed a petition for declaratory ruling seeking FCC approval of several new foreign individuals and entities associated with Global Media & Entertainment Investments Ltd. (GMEI), an existing foreign investor in iHeart.  Section 310(b) of the Communications Act prohibits foreign entities, individuals, and governments from holding ownership interests of more than 20% in an FCC licensee and ownership interests of more than 25% in a U.S. entity that directly or indirectly controls an FCC licensee.  FCC licensees, however, can petition the FCC to approve certain foreign ownership interests above those thresholds.  The FCC previously approved direct and indirect foreign ownership of up to 100% in iHeart, as well as approving GMEI’s interests.  iHeart’s petition states that GMEI now wishes to transfer some or all of its existing iHeart interests to a related corporate entity and to expand the number of individuals associated with its iHeart interests. 
• The Media Bureau granted an application for a new Wyoming FM station, which was filed in conjunction with the applicant’s request for a new FM Channel 260C0 Tribal Allotment at Ethete, Wyoming, located on the Wind River Indian Reservation (which we noted here and here).  The applicant requested a waiver of the FCC requirement that a station using a tribal allotment either have at least 50% of its service contour over Tribal Lands or that its proposed facilities serve at least 2,000 persons with at least 50% of the total population on Tribal Lands.  The applicant stated that this requirement was difficult to meet because of the large size of the reservation and the station transmitter site’s location at the edge of the reservation.  The Bureau granted the applicant’s waiver request, finding that the station fell short of the service area requirement by less than 3% while still serving 20,000 residents of the reservation – over 85% of the reservation’s total population. 

On our Broadcast Law Blog, we discussed broadcasters’ obligations under the FCC’s modified broadcast foreign sponsorship identification rules, which became effective June 10 (even though some of the compliance obligations under the new rule will not be enforced until December 8).  These rules require that broadcasters get certifications from all buyers of program time certifying that the buyers are not representatives of foreign governments.  The modified rules extended this requirement to verify that buyers of spot advertising do not represent foreign governments where their spots are not for commercial products or services.  Thus, spots including issue ads and paid PSAs would be covered by the verification requirement.