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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.

  • President-elect Donald Trump announced that FCC Commissioner Brendan Carr will serve as the next FCC Chairman when Trump takes office on January 20, and FCC Chairwoman Rosenworcel announced that she will be departing the FCC that same day.  Chairwoman Rosenworcel and Commissioners Gomez, Starks, and Simington issued statements congratulating Carr.  Commissioner Gomez also issued a statement thanking Chairwoman Rosenworcel for her leadership.  See our article on our Broadcast Law Blog for a discussion on what Carr’s regulatory priorities may mean for broadcasters.
  • The FCC released an Order adopting permanent rules permitting broadcasters to originate programming on FM boosters for up to three minutes per hour for news, advertising, or other content different than that on the primary station (see our article providing more details about this permitted service, written in April when the FCC initially approved this use of  the “geocasting” or “zonecasting” technology).  When the newly adopted rules become effective, initiating such service on an authorized booster will not require FCC prior approval.  Instead, broadcasters only need to notify the FCC, using a form to be developed by the FCC’s Media Bureau, of their intention to begin program origination on an authorized booster 15 days before that operation begins.  The Order also adds rules formalizing other restrictions that were adopted in the FCC’s April order – including capping the number of originating boosters that a single FM or LPFM station can operate at 25 and extending the FCC’s political advertising and political file requirements to originating boosters.  Many of these new rules require the Office of Management and Budget’s approval before becoming effective, so watch for a future announcement of their effective date. 
  • The National Association of Broadcasters requested an 18-month extension of the November 26 deadline to comply with the FCC’s rule requiring TV stations to provide an aural description of non-textual emergency information, such as maps or other graphic displays, conveyed outside of station newscasts.  The extension is requested to permit the FCC to consider NAB’s proposal to amend the rules.  As we discussed, here, here, and here, and here, the FCC has extended this deadline numerous times since its 2013 adoption because of the unavailability of technology needed for stations to comply.  The NAB now requests a rule change allowing broadcasters to meet the FCC’s requirements if they provide “textual crawls that provide emergency information duplicative or equivalent to the information conveyed by the visual image.” Otherwise, NAB argues, many stations will cease airing visual images regarding emergencies if the rule takes effect later this week.  See our article on our Blog for more on the NAB’s petition.
  • The FCC released a draft Notice of Proposed Rulemaking proposing to update several TV and radio rules.  Many of the proposed changes deal with minor changes to rules for processing applications or they clarify or update the language of ambiguous rules.  Some of the more notable proposals include: (1) allowing AM stations seeking to improve their facilities at their current transmitter sites to request power increases of less than 20% (to eliminate burdens on FCC staff, current rules require do not allow a power increase of less than 20% to be considered by the Commission); (2) allowing directors or designated employees to sign FCC applications – not just officers; and (3) allowing STAs for technical or equipment problems to be granted for 180 days, rather than the 90 days currently permitted by the rules.  The FCC will vote on the draft NPRM at its December 11 Open Meeting.
  • The FCC’s Media Bureau reminded broadcasters that its audio description rules will take effect on January 1, 2025 for TV stations affiliated with the Top 4 Networks (i.e., ABC, CBS, Fox, and NBC) operating in Nielsen Designated Market Areas (DMAs) 101 through 110: (101) Tri-Cities, TN-VA; (102) Reno, NV; (103) Greenville-New Bern-Washington, NC; (104) Davenport-Rock Island-Moline, IA-IL; (105) Tallahassee-Thomasville, FL-GA; (106) Lincoln & Hastings-Kearney, NE; (107) Evansville, IN; (108) Ft. Wayne, IN; (109) Johnstown-Altoona-State College, PA; and (110) Augusta-Aiken, GA-SC.  In 2023, the FCC expanded its audio description requirements to Top 4 Network-affilated TV stations operating in DMAs 101 through 210 beginning with DMAs 91-100 on January 1, 2024, and ending with DMAs 201-210 on January 1, 2035 (see our discussion here).  Audio description provides narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue, for the benefit of individuals who are blind or visually impaired.
  • The Media Bureau also entered into a Consent Decree with an Indiana TV station for failing to timely file its license application for its digital replacement translator (DRT) and operating its DRT without FCC authorization for more than four years after it had completed construction of the DRT, including for 18 months after its DRT’s construction permit had expired.  DRTs allow TV stations to continue providing service to viewers that have lost service following a digital transition.  As with the construction of most broadcast facilities, an application for license must be filed when construction of new facilities authorized in a DRT construction permit are completed.  The Consent Decree requires that the station pay a $8,500 penalty and enter into a compliance plan to ensure that future violations do not occur.

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 adopted a decision resolving the FCC’s long-pending proceeding on whether to authorize FM “zonecasting” or “geo-targeting,” permitting FM booster stations to originate programming on a limited basis.  Zonecasting enables broadcasters to air advertisements, news, or other content focused on small geographic areas by originating programming on an FM booster different than that which is aired on its primary station.  As we discussed here, many broadcasters were opposed to zonecasting because of the potential for interference and a negative impact on broadcast localism.  The FCC nevertheless approved its use for up to three minutes per hour on up to 25 boosters for any station.  While the FCC decided that it would adopt processing and service rules for zonecasting in a later order, FM broadcasters will be allowed to originate programming on boosters under experimental authority until the final rules are adopted. 
  • The FCC affirmed the Enforcement Bureau’s decision to revoke a Pennsylvania FM station’s license because of its owner’s felony conviction for secretly taking nude photos of a woman, impersonating her on online dating sites, deleting evidence when the police investigated, and failing to present any evidence on his own behalf or to respond to discovery and other pleadings before an FCC Administrative Law Judge (ALJ) who had been tasked by the FCC to hold a hearing to determine if his conviction meant that he did not have the character qualifications to hold an FCC license.  After the hearing was terminated because he presented no exculpatory evidence and did not otherwise defend himself, the FCC’s Enforcement Bureau issued an order revoking his license.  This week’s decision resolved the appeal of the revocation order.  The Commission concluded that it was too late to introduce evidence first raised during that appeal about his station’s meritorious programming, his illness, and his reputation in the community, as that evidence should have been presented to the ALJ.  The decision also found that the felonious misconduct was recent, premeditated, and the destruction of the evidence was akin to fraudulent misrepresentation to a government entity, all of which showed that the licensee’s misconduct was sufficiently egregious to prevent him from holding an FCC license. 
  • 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 45 fewer AM stations and 18 fewer commercial FM stations, but 101 more noncommercial FM stations.  There were 5 more commercial UHF TV stations and 2 more commercial VHF TV stations; and 3 more noncommercial UHF TV stations, with 3 fewer noncommercial VHF TV stations. 
  • The FCC’s Media Bureau issued two decisions concerning TV must-carry rights:
    • The Bureau concluded that an Alabama commercial TV station was entitled to mandatory carriage by DISH in the Columbus-Opelika DMA.  Under the Satellite Home Viewer Improvement Act of 1999 (SHVIA), satellite TV providers must carry, upon demand, a TV station in its local market.  In implementing SHVIA, the FCC found that while a station’s local market for satellite carriage purposes is generally its Nielsen-defined designated market area (DMA), it may also include its community of license’s DMA if it differs from its Nielsen-assigned DMA.  In this case, the station was licensed to Opelika in Lee County, Alabama – which is in the Columbus-Opelika DMA.  The station has a distributed transmission system providing service to the Atlanta DMA, and Nielsen assigns the station to that DMA.  DISH recognized the station’s mandatory carriage rights only in the Atlanta DMA and in Lee County, while the station asserted rights to carriage throughout the Columbus DMA.  The Bureau concluded that the station was entitled to carriage throughout both DMAs because Nielsen assigned the station to the Atlanta DMA and its city of license is within the Columbus-Opelika DMA. 
    • The Bureau affirmed its previous denial of a Fort Bragg, California TV station’s market modification petition to add Santa Rosa, California to its market.  Market modification allows a commercial TV station to add communities to its DMA for FCC purposes – expanding the scope of its must-carry rights – if the station can show that the addition of other communities would promote the local service goals of the must-carry rules.  Fort Bragg is in the San Francisco-Oakland-San Jose, CA DMA, and the station petitioned to add Santa Rosa to that DMA.  There are five factors weighed by the Bureau in deciding such a case, and the Bureau’s initial decision balanced the following determinations to decide that carriage was not warranted: (1) the station’s historic carriage by other cable operators in Santa Rosa only slightly weighed in favor of market modification as it was carried on only one system in the community for an extended period and that its DISH and DirectTV coverage is not as important a factor as cable carriage; (2) the station’s local service did not favor carriage as its service contour did not reach Santa Rosa (and translator coverage cannot be used to support such a request), its city of license is far from Santa Rosa, and the local programming it offered was insufficient to overcome the distance and lack of coverage; (3) while carriage of the station would facilitate Santa Rosa consumers’ access to in-state programming, the Bureau did not see sufficient evidence to consider this a substantial plus in this case; (4) the station was not uniquely qualified to serve Santa Rosa due to the large number of other stations already carried there by cable operators; and (5) the station failed to show that there was sufficient evidence showing that the station had significant viewing in Santa Rosa.  This week’s decision denied reconsideration of the prior decision, finding that the station merely reiterated arguments already made, failing to show any legal error in the earlier analysis. 
  • The FCC’s Media Bureau issued an order upholding a proposed $9,500 fine to a Texas LPTV station that failed to file its license application as required by FCC rules for about 5 months after it completed construction of new facilities, and also operated at reduced power for three months without seeking an STA authorization.  The station requested reduction of the fine to $3,000 because its violations were unintentional and claimed that the fine was excessive because the Bureau was “targeting” the station due to a previous FCC violation.  The Bureau affirmed its proposed fine because the Bureau’s consideration of the station’s past violations is consistent with longstanding FCC policy, and that the station’s inadvertence does not excuse a violation of the rules – a fine already reduced when proposed in December due to the LPTV station’s secondary status. 
  • The FCC’s Media Bureau granted two new LPFM station construction permits over objections filed by other LPFM licensees:
    • The Bureau granted an Indiana LPFM construction permit application over an objection claiming that the application should be denied because the applicant failed to disclose that one of its principals, an Indiana pastor, had interests in a pirate radio station that operated from his church.  Those who operated pirate radio stations in the past cannot hold an LPFM license.  The objection was based on a Notice of Unauthorized Operations issued to the pastor by the Enforcement Bureau’s Chicago Field Office following its investigation of the pirate station.  The applicant responded to the objection by stating that the pastor turned off the pirate station at the FCC agents’ request, that he was not operating the station (it was instead operated by a church visitor) and, that, while he may have been gullible by allowing the operation at his church prior to receiving the Notice, he had not been found to have actually operated to the station.  This week’s decision concluded that there was no evidence that the pastor was involved in the pirate station’s operations and thus there was no reason to deny the application.
    • The Bureau granted a Pennsylvania LPFM construction permit application over a claim that the application should be denied because the applicant’s technical consultant – who the applicant originally listed as an attributable interest holder – was associated with two other Pennsylvania LPFM stations.  After the objection, the applicant amended its application to remove its technical consultant.  The Bureau found that the technical consultant’s provision of technical services to multiple LPFM stations did not show that the consultant held attributable interests in those stations, and thus there was no reason to deny the application.    

The new year brings a series of noteworthy regulatory deadlines for broadcasters in January.  As always, broadcasters should consult with their own attorneys and advisors to make sure that they are aware of and ready to act on any other deadlines that are not listed below.

Congress still has not passed budget bills for the fiscal year that started on October 1, and some of the “continuing resolutions” to fund the federal government at last year’s levels run out on January 19, with the FCC’s budget set to expire on February 2.  Thus, at least a partial government shutdown may well occur if Congress fails to act this month.  As we previously discussed here and here, if a government shutdown does occur, some government agencies may have to cease all but critical functions if they do not have any residual funds to continue operations.  If no funding is approved, the FCC will announce how any shutdown will affect it, including whether it has any residual funds to keep operating beyond any general funding deadline.  Watch Congressional actions and any FCC announcements to see how any deadlines that apply to your station will be affected by the funding deadline.

With those concerns in mind, let’s look at some of the specific dates and deadlines for broadcasters in January.  Beginning January 1, television stations affiliated with the Top 4 Networks and operating in Nielsen Designated Market Areas (DMAs) 91 through 100 will be added to the list of markets that are subject to the FCC’s audio description rules.  The DMAs where the rules become effective on January 1 are:  El Paso (Las Cruces), Paducah-Cape Girardeau-Harrisburg, Cedar Rapids-Waterloo-Iowa City & Dubuque, Burlington-Plattsburgh, Baton Rouge, Jackson, MS, Fort-Smith-Fayetteville-Springdale-Rogers, Boise, South Bend-Elkhart, and Myrtle Beach-Florence – in addition to Chattanooga and Charleston, SC, which were previously in DMAs 92 and 91, respectively, but are now in DMAs 84 and 88.  We reported here on the FCC’s recent reminder that these new markets will be subject to the audio description requirements as of January 1.  TV stations associated with the Top 4 networks in these markets are required to provide audio description for 50 hours of programming per calendar quarter, either during prime time or in children’s programming, and 37.5 additional hours of audio description per calendar quarter between 6 a.m. and 11:59 p.m. local time, on each programming stream that carries one of the top four commercial television broadcast networks (ABC, CBS, FOX and NBC). 

Continue Reading January Regulatory Dates for Broadcasters – Expansion of Audio Description Requirements, Music Royalty Cost of Living Increases, Quarterly Issues/Programs Lists, Childrens Television Programming Reporting, Political Windows, and More

Though school is out for many, the FCC does not take a summer recess.  Instead, regulation continues.  While the pace of new FCC regulatory issues for broadcasters has slowed, perhaps pending the confirmation of a new Commissioner and the return of the FCC to full strength, there are still regulatory matters in June worth watching.  Some are routine, others look more to the future – but all are worth watching just the same. 

One of the routine regulatory deadlines comes on June 1, as it is the deadline for Radio and Television Station Employment Units in Arizona, District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming with 5 or more full-time employees to upload to their online public inspection file their Annual EEO Public File Report. A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with 5 or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of a station’s website, if it has a website. 

Continue Reading June Regulatory Dates for Broadcasters – EEO, Rulemaking Comments, AM Congressional Hearings, and More

The new year brings a series of regulatory deadlines in January and a February 1 license renewal deadline that broadcasters should take note of.  As in 2022, the FCC will remain vigilant in making sure that its deadlines are met, so the following items should not be overlooked or left until the last minute.

The one deadline applicable to almost all broadcasters is the January 10 deadline by which full power and Class A television stations and commercial and noncommercial full-power AM and FM radio stations must upload to their online public inspection files their Quarterly Issues Program lists for the fourth quarter of 2022.  The lists should identify the issues of importance to the station’s community and the programs that the station aired in October, November and December that addressed those issues.  As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its community.  See our article here for more on the importance of the Quarterly Issues Programs list obligation.

January 10 is also the deadline by which noncommercial educational stations must upload to their public inspection files documentation of their on-air fundraising benefitting third parties from October 1, 2022 through December 31, 2022.  More specifically, this obligation applies to noncommercial educational stations not affiliated with NPR or PBS that conducted third-party on-air fundraising that interrupted their normal programming.  For more information about this requirement, see our article here.  January 10 is also the date by which Class A television stations should upload documentation of their continuing eligibility for Class A status based on their operations from October 1 through December 31, 2022. 

Beginning January 1, television stations affiliated with the Top 4 Networks and operating in Nielsen DMAs 81 through 90 will be subject to the FCC’s audio description rules (those DMAs are Madison, WI; Waco-Temple-Bryan, TX; Harlingen-Weslaco-Brownsville-McAllen, TX; Paducah, KY-Cape Girardeau-Harrisburg, MO; Colorado Springs-Pueblo, CO; Shreveport, LA; Syracuse, NY; Champaign and Springfield-Decatur, IL; Savannah, GA; and Cedar Springs-Waterloo-Iowa City and Dubuque, IA).  Audio description makes video programming more accessible to individuals who are blind or visually impaired through “[t]he insertion of audio narrated descriptions of a television program’s key visual elements into natural pauses between the program’s dialogue.” Top 4 stations are required to provide audio description for 50 hours per calendar quarter, either during prime time or on children’s programming, and 37.5 additional hours of audio description per calendar quarter between 6 a.m. and 11:59 p.m. local time, on each programming stream on which they carry one of the top four commercial television broadcast networks. We previously reported here on the FCC’s reminder that these new markets are now subject to the audio description requirements.  

Perhaps the most important obligations this month for all commercial television stations are those dealing with Children’s Television.  Each year all commercial full-power and Class A television stations must prepare and file their annual Children’s Television Programming Report (Form 2100, Schedule H – formerly Form 398).  This Programming Report shows the programming broadcast by a station to meet its obligations to provide educational and informational programming addressing the needs of children.  For more details, see our article here on the FCC’s requirements for this programming (and the articles here and here about the FCC’s amendment to those requirements).  Schedule H must be filed at the FCC by January 30.  In addition, by January 30, each full-power and Class A TV station should upload to its online public file records documenting compliance in the prior year with the limits on the number of commercial minutes that stations can allow in children’s programming.

January dates to consider also include a number of rulemaking comment deadlines.  The FCC has extended the comment and reply comment deadlines for its Second Notice of Proposed Rulemaking on proposals to enhance the FCC’s requirements that each broadcaster verify that any program time sold to third parties (or any pre-produced programming received for free) does not come from a “foreign government entity,” i.e., a foreign government or one of its agents.  As we wrote previously, the Second Notice seeks comment on proposals to adopt an enhanced and standardized certification that all buyers of program time on any broadcast station.  Various disclosure obligations apply if the programming does in fact come from a foreign government entity.  The Second Notice also proposes that the certifications, whether or not they indicate that the program buyer is a foreign government entity, be included in a station’s online public file, and also proposes to confirm that advertising material two minutes or less in length, is not “program time” subject to the rule.  Comments are now due on January 9, and reply comments are now due on January 24. 

The reply comment deadline for the FCC’s Notice of Inquiry on how to optimize use of the 12.7-13.25 GHz band (which is already used by broadcasters for auxiliary purposes) and on whether the band is suitable for mobile broadband or other expanded use.  Reply comments are now due on January 10. 

Reply comments are due by January 23 on the FCC’s Notice of Proposed Rulemaking on proposals for, among other things, strengthening the operational readiness of Emergency Alert System (“EAS”) equipment, and requiring EAS Participants to report compromises of their EAS equipment, communications systems, and services to the FCC.  This proceeding would require broadcasters to adopt security programs to insure that EAS systems are not compromised by those who might want to abuse the EAS system, and for broadcasters to yearly certify to the FCC that they have adopted such security programs.  For more details about this proceeding, see our article here.

Lastly, broadcasters who are streaming their audio on the Internet or through digital apps need to remember that the recently announced cost of living increases in the statutory royalties to be paid in 2023 to SoundExchange are effective on January 1.  For more details about the increases recently announced by the Copyright Royalty Board, see our article here.  Although payments are not due for January streaming until 45 days after the end of the month, most webcasters do need to pay their minimum annual fees by January 31 (now $1000 per programming channel) for commercial and noncommercial streams not affiliated with a school or NPR/CPB.  Also by January 31, noncommercial educational webcasters affiliated with a school or college but not covered by deals with NPR and CPB may need to make elections about recordkeeping requirements that will apply to their stations.

Looking ahead to February, February 1 is the deadline for license renewal applications for television stations (full power, Class A, LPTV and TV translators) licensed to communities in New York and New Jersey.  Renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for LPFMs and TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Note that your Broadcast EEO Program Report must include two years of Annual EEO Public File Reports for FCC review, unless your employment unit employs fewer than five full-time employees.  Be sure to read the instructions for the license renewal application and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.  Issues with the public file have already led to fines imposed on TV broadcasters during this renewal cycle.

February 1 is also the deadline by which radio and television station employment units with five or more full-time employees licensed to communities in Arkansas, Kansas, Louisiana, Mississippi, Nebraska, New Jersey, New York and Oklahoma must upload Annual EEO Public File Reports to station online public inspection files.  This annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of a station’s website, if it has a website.

As always, this list of dates is not exhaustive and comment/reply comment deadlines can change.  Always review these dates with your legal and technical advisors, and note other dates not listed here that may be relevant to your operations. 

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 has sent an e-mail, apparently to all broadcasters, regarding the cybersecurity of broadcast stations that use the DASDEC EAS encoder/decoder device sold by Digital Alert Systems (formerly Monroe Electronics), using software prior to version 4.1. The email states that the Cybersecurity and Infrastructure Security Agency issued an advisory expressing concern that there is a vulnerability in the code used by the system that can be used by remote attackers.  The e-mail recommends that stations using this equipment make sure that they have downloaded the latest updates containing a patch to the vulnerability, and adopt good “cyber hygiene,” including the steps set forth in the FCC’s August 5 Public Notice on that subject, which include updating passwords, using firewalls and isolating equipment that may be subject to attack.
  • On Wednesday, the House Judiciary Committee held a “mark-up session” for the American Music Fairness Act, which proposes to impose a sound recording performance royalty on over-the-air broadcasting. This bill proposes a royalty paid to SoundExchange by over-the-air radio to benefit the recording artist and copyright holder (usually the record company), in addition to the royalties already paid to composers and publishing companies through ASCAP, BMI, SESAC and GMR.  The Committee approved the bill, passing it on to the full House of Representatives for consideration.  The full House and the Senate would have to approve it, and have it and signed by the President, before it became law.  With the current session of Congress coming to a close at the end of the month, if not approved this month, the proposed legislation would need to start over in the new Congress in January.  Thus, unless the bill is tacked on to some must-pass legislation in this “lame duck” session of Congress, this week’s action by the Committee is likely a marker for action in the new year. We wrote more about the bill and its impact this week on our Broadcast Law Blog
  • The FCC has published in the Federal Register the Report and Order (R&O) that updates the FCC’s rules to identify Nielsen’s monthly Local TV Station Information Report as the new publication for determining a television station’s designated market area for satellite and cable carriage purposes.  As a result, the R&O and associated rule changes will be effective January 6, 2023.  For more details, see our articles here and here.
  • As we’ve previously reported, the Federal Election Commission (“FEC”) has adopted new disclaimer requirements for internet-based political advertising, including detailing the required identification of the ad sponsor.   When it adopted its new rules, the FEC rejected a broader proposal that would have included not just communications where the owner of the digital platform was paid for the inclusion of the ad, but also political communications where the platform itself may not have been paid, but where the sponsor of the communication paid others to promote or otherwise broaden the dissemination of the communication.  Instead, the FEC issued a Supplemental Notice of Proposed Rulemaking seeking public comment as to whether disclaimers should be required for such promoted communications. The Supplemental Notice was published in the Federal Register on December 9, meaning that public comments are due by January 9, 2023. The Supplemental Notice asks about the impact of such a rule, and whether the FEC’s proposed rules for sponsorship disclaimers for promoted communications appropriately covered the issues. These rules are important to influencers and other social media users who are paid to promote political messages.
  • The FCC’s Media Bureau has entered into a Consent Decree due to the operation of a station by the deceased licensee’s daughter (the licensee’s beneficiary) for nine years after the death of the licensee, without anyone seeking any FCC approval for her assumption of control. The estate and the daughter were required to pay a $7,000 fine and adopt a mandatory plan to ensure compliance with the FCC rules that had been violated. The FCC rules require that the FCC be notified of a licensee’s death within ten days, and to seek approval for an involuntarily transfer control of the station’s license to the estate within 30 days. Once the estate has been probated, another application to transfer control to the beneficiary is also required. None of those applications were filed for nine years in this case. In addition, the parties admitted that they had not timely uploaded records to the station’s online public inspection file, and were further found to have violated the FCC’s ownership report rule, apparently for failing to file a biennial ownership report by December 1 in all odd-numbered years.  The case is a reminder that upon the death or incapacity of a licensee or a controlling owner of a licensee, the FCC needs to be notified and approve those who subsequently control the station (similar rules apply where a licensee goes into bankruptcy).
  • On our Broadcast Law Blog this week, we wrote more about the meaning and implications for local advertising of the FTC decision we noted in last week’s regulatory update, fining Google and iHeart Radio for running ads by local announcers touting their use of a new Google phone, which they in fact had not used. In our article, we noted that all media companies need to make sure that any ad using endorsements or testimonials is fully accurate and meets FTC guidelines to avoid penalties for deceptive advertising.

 

In a very busy week, 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 Federal Trade Commission and seven state Attorneys General announced a settlement with Google LLC and iHeart Media, Inc. over allegations that iHeart radio stations aired thousands of deceptive endorsements for Google Pixel 4 phones by radio personalities who had never used the phone.  The FTC’s complaint alleges that in 2019, Google hired iHeart and 11 other radio broadcast companies to have their on-air personalities record and broadcast endorsements of the Pixel 4 phone, but did not provide the on-air personalities with the phone that they were endorsing.  Google provided scripts for the on-air personalities to record, which included lines such as “It’s my favorite phone camera out there” and “I’ve been taking studio-like photos of everything,” despite these DJs never having used the phone.  The deceptive endorsements aired over 28,000 times across ten major markets from October 2019 to March 2020.  As part of the settlement, subject to approval by the courts, Google will pay approximately $9 million and iHeart will pay approximately $400,000 to the states that were part of the agreement.  The settlement also imposes substantial paperwork and administrative burdens by requiring both companies to submit annual compliance reports for a period of years (10 years in the case of iHeart), and create and retain financial and other records (in the case of iHeart, the records must be created for a period of ten years and retained for five years).
    • This case is a reminder that stations must ensure that their on-air talent have at least some familiarity with any product they endorse, particularly where on-air scripts suggest that they have actually used the product.  Stations should not assume that talent know the relevant rules – they more likely will just read whatever is handed to them without understanding the potential legal risk for the station, which, as demonstrated in this case, could be significant.

Continue Reading This Week in Regulation for Broadcasters: November 26 to December 2 , 2022

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.

  • On November 17, the FCC’s Second Notice of Proposed Rulemaking (“Second NPRM”) on foreign government sponsored programming was published in the Federal Register.  The Second NPRM seeks comment on proposals to enhance the FCC’s requirements that each broadcaster verify whether any program time that it sells to third parties (or any pre-produced programming that it receives for free) does not come from a “foreign government entity,” i.e., a foreign government or one of its agents.  The Federal Register publication sets the comment dates for the Second NPRM – with initial comments due December 19, 2022, and reply comments due by January 3, 2023.  In the Second NPRM, the FCC proposes, among other things, that a licensee certify that it has informed any buyer of program time of the foreign sponsorship identification rules and obtained, or sought to obtain, a certification from the program buyer stating, with standardized language proposed by the FCC, whether the buyer is or is not a “foreign governmental entity.” The FCC also proposes to require that all of those certifications be included in a station’s online public inspection file.  For further background on this proceeding and its implications for broadcasters, see our articles here and here.
  • At the November 17 regular monthly open meeting of the FCC, the Commissioners unanimously adopted a Report and Order to update its rules to identify Nielsen’s monthly Local TV Station Information Report (“Local TV Report”) as the new publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes, in place of the Nielsen Annual Station Index and Household Estimates currently referenced in the rules.  Also, in response to concerns raised by Commissioner Simington, the Commission committed to monitoring the broadcast audience measurement market.  It encouraged stakeholders to keep the FCC apprised of changes in that market.  For further background about this proceeding, see our article here.
  • The FCC’s Media Bureau announced that the FCC’s new FM broadcast directional antenna verification rules went into effect on November 10, 2022.  These new rules allow for FM and LPFM directional antenna pattern proofing by computer modeling performed by the directional antenna’s manufacturer.  Under the old rules, an FM or LPFM directional antenna’s performance measured relative field pattern had to be verified using either a full-scale mockup or a scale model on a test range or in an anechoic chamber.  The rule change brings the FM rules in line with those for AM and DTV directional antennas.
  • In a speech at the National Association of Farm Broadcasters, Commissioner Simington proposed that the FCC renew its efforts to help AM radio. Among his proposals were a revamping of FCC regulatory fees to ease the burden on broadcasters, encouragement of auto manufacturers to retain or include AM in new cars, and FCC study of AM receiver standards.  He also suggested that the FCC once again look at the potential for activating FM chips in mobile devices.  Watch to see if these ideas proceed at the FCC.
  •  In two recent speeches to Washington groups, including one delivered last week to the Media Institute, Commissioner Geoffrey Starks talked about the opportunities presented by ATSC 3.0, NextGen TV.  In both speeches he cautioned that, while the technology offers many benefits, there are concerns that its capabilities to interact with internet technologies could impinge on consumer privacy.  He suggested that the FCC should review whether privacy rules need to be adopted to govern the use of any consumer information gathered through this new technology.
  • Last week, Sen. Ed Markey (D-MA) and Rep. Anna Eshoo (D-CA) introduced the Communications, Video, and Technology Accessibility Act of 2022 (“CVTAA”)(a press release summarizes the goals).  Among the proposals in the legislation is the extension of closed captioning obligations and the requirement for audio description of video programming to online video providers.  The legislation would also require the FCC to review the rules it has on the quality of closed captioning. While it is late in the legislative session and this proposal is unlikely to advance before the end of this Congress, look for these concepts to reemerge in the new session of Congress that begins in January.

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 issued a Forfeiture Order imposing a penalty of $518,283 against Gray Television, Inc., for violating the FCC’s prohibition against owning two top-four television stations (KYES-TV and KTUU-TV, both in Anchorage, Alaska) in the same Nielsen Designated Market Area (DMA). This Order follows a Notice of Apparent Liability for Forfeiture (NAL) released on July 7, 2021, in which the FCC found that Gray acquired the CBS network affiliation from KTVA(TV) (another station in Anchorage), which resulted in Gray’s ownership and operation of two of the top-four stations in the Anchorage DMA.  For more background on this case, see our article on the NAL here. After considering Gray’s response to the NAL, the FCC elected not to cancel, withdraw, or reduce the penalty proposed.  This case is notable for its interpretation of the note to the FCC’s ownership rule prohibiting a Top 4 television station owner from acquiring a network affiliation and moving it to a commonly owned station that results in that station also becoming a Top 4 station in the market.  The Commission also decided that each day of the combined operation of the two stations constituted a separate violation of the rule.  That meant that the $8000 base fine for a violation of the FCC’s ownership rules would be multiplied by the days that the combination remained in place, resulting in the large fine which represents the maximum fine for a continuing violation of the FCC’s rules.
  • The FCC issued the final text of its Notice of Inquiry and Order that explores opportunities to open the 12.7-13.25 GHz (12.7 GHz) band for next-generation wireless services and extends the freeze on new or modified applications for existing users of the band.  As we’ve previously reported, the Notice of Inquiry and Order was approved at the FCC’s October 27 open meeting.  Licensed services in the 12.7 GHz band include satellite communications and mobile TV pickup operations.  Comments and reply comments on the Notice of Inquiry will be due November 28, 2022 and December 27, 2022, respectively.
  • The FCC’s Media Bureau issued an Order under which it entered into a Consent Decree with the licensee of an AM station and its FM translator to resolve various FCC rule violations.  The licensee acknowledged that it had (1) operated the AM station at reduced daytime power without FCC authorization, (2) failed to maintain station logs for the AM station, and (3) originated programming on its FM translator while the AM station was silent. Pursuant to the Consent Decree, the licensee agreed to implement a comprehensive compliance plan to ensure future compliance and to make an $8,000 payment to the United States Treasury.
  • The Media Bureau also issued an order that reduced by nearly $10,000 a fine it had previously proposed against the licensee of two low power television stations that had failed to timely file “license to cover” applications and engaged in unauthorized operation of the stations after their construction permits had expired.  Applications for a “license to cover” are required to be filed by any broadcaster when they complete construction of new technical facilities authorized by a construction permit.  The license application tells the FCC that construction has been completed and provides information about the specific facilities constructed, showing that they were constructed as authorized by the permit.  Claiming financial hardship and submitting its 2019, 2020 and 2021 tax returns in support, the licensee asked the Bureau to reduce or cancel the proposed fine of $13,000.  The Bureau noted that in cases involving financial hardship, fines usually average about five percent but have not exceeded eight percent of the violator’s gross revenues.  Here, the Bureau found that the initially proposed fine exceeded eight percent of the licensee’s gross revenue as averaged over the last three years, but the licensee had not operated at a significant financial loss during that period.   The Bureau thus elected not to cancel the fine entirely, but it did reduce it to $3,400.
  • On our Broadcast Law Blog, we posted an article highlighting some of the important regulatory dates for broadcasters in November and early December.  We also published an article reminding stations to take seriously requests to cease and desist airing political attack ads in the days before an election, and another article about the $24 million dollar penalty imposed by a Washington State court on the parent of Facebook for its violation of the state’s political advertising disclosure rules.