Earlier this week, we covered the broadcast issues that the FCC may be facing in 2024.  But the FCC is just one of the many branches of government that regulates the activities of broadcasters.  There are numerous federal agencies, the Courts, Congress, and even state legislatures that all are active in adopting rules, making policies, or issuing decisions that can affect the business of broadcasting and the broader media industry.  What are some of the issues we can expect to see addressed in 2024 by these authorities?

For radio, there are music rights issues galore that will be considered.  Early in the year, the Copyright Royalty Board will be initiating the proceeding to set streaming royalties for webcasters (including broadcasters who stream their programming on the Internet) for 2026-2030.  These proceedings, which occur every five years, are lengthy and include extensive discovery and a trial-like hearing to determine what royalty a “willing buyer and a willing seller” would arrive at for the noninteractive use of sound recordings transmitted through internet-based platforms.  Because of the complexity of the process, the CRB starts the proceeding early in the year before the year in which the current royalty rate expires.  So, as the current rates expire at the end of 2025, parties will need to sign up to participate in the proceeding to determine 2026-2030 rates early this year, even though the proceeding is unlikely to be resolved until late 2025 (unless there is an earlier settlement)(the CRB Notice asking for petitions to participate in the proceeding is expected to be published in the Federal Register tomorrow).  Initial stages of the litigation (including the identification of witnesses, the rate proposals, the evidence supporting those proposals, and the initial discovery) will likely take place this year. Continue Reading Gazing into the Crystal Ball at Legal and Policy Issues for Broadcasters in 2024 – Part II: What to Expect from the Courts and Agencies Other than the FCC

A new year – and our annual opportunity to pull out the crystal ball and look at the legal issues that will be facing broadcasters in the new year.  We’ve already published our 2024 Broadcasters Calendar and, as we noted before the holidays, it highlights the many lowest unit rate windows for the November election.  With a heavily contested election almost upon us, there may be calls on the FCC to modify regulations affecting political broadcasting or for more monitoring of broadcasters’ online public files, which caused so many issues in recent years (see for instance, our posts here and here).  Even if there are no FCC proceedings that deal with the rules for political broadcasting, the election will be watched by all broadcasters, and all Americans, to see the direction in which the country will head for the next four years.  With that election looming, 2024 may be a very active year in regulation as there traditionally is significant post-election turnover at the FCC no matter which party wins.  With that turnover in mind, we may see Commissioners looking to cement their regulatory legacies in the coming year.

Last year, we noted the number of pending issues at the FCC that had not been resolved because of the partisan deadlock on the Commission while the nomination of Gigi Sohn to fill the one vacant seat was stalled in the Senate.  That deadlock was finally overcome by her withdrawal from consideration and the subsequent nomination and confirmation of Anna Gomez, who was sworn in as a Commissioner in late September.  Since then, the FCC has acted on several long-pending priorities, including the adoption of open internet rules and, for broadcasters, last week’s adoption of an Order resolving the 2018 Quadrennial Review of the local broadcast ownership rules (see our summary of that action here). Continue Reading Gazing into the Crystal Ball at Legal and Policy Issues for Broadcasters in 2024 – Part I: What to Expect From the FCC

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

Right now, most broadcasting stations and other media companies are focused on selling political advertising for the primaries for the 2024 elections and subsequent November election that will elect the President, the US Congress, and so many other officer holders in DC and elsewhere in the country.  But broadcasters need to be aware of other elections that can also trigger political obligations – including lowest unit charges.  I was reminded of that today when I saw the FEC’s notice of the dates for the special election to fill the Congressional seat recently opened by the expulsion of George Santos from Congress (the FEC notice setting out the dates for candidates to meet their FEC filing obligations). That special election, on February 13, 2024, triggers all of the FCC’s political obligations for stations serving this Long Island Congressional District.  Once there are legally qualified candidates, equal opportunities, reasonable access, and political file obligations will arise.  Lowest Unit Charges will also be required for all candidates in the race to fill this seat, as we are already in the 60-day window before the February 13 special election.  The Democratic Party has selected their nominee and, according to the state’s notice about this election, other registered political parties have until tomorrow (December 15) to provide their nominations, and independent candidates can file their nominating petitions through December 18. This means that the candidates entitled to rights under FCC rules will be known in a matter of days. 

For Federal elections like this special election, broadcast stations serving the district involved need to offer candidates the full panoply of candidate rights – including reasonable access, lowest unit rates, and equal opportunities (as well as the public file obligations that go along with any advertising associated with an election or the coverage of any issue of public importance). Stations also need to be alert for other elections that take place at odd times.  Some states have municipal or school board elections at times other than the standard November dates that most people think about.   As we have written before, most of the political rules apply to any election for public office that occur at these odd times, including these state and local electoral races as well as to the few Federal elections that take place to fill open Congressional seats.Continue Reading Special Election Dates Announced to Fill George Santos’ Congressional Seat – Remember Special Elections and State and Local Elections Trigger Political Obligations Too

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

  • The AM for Every Vehicle Act was scheduled for a US Senate vote this week through an expedited process

Another state has joined the list of those that require clear disclosure of the use of artificial intelligence (“AI”) in political ads, joining others that have addressed concerns about deep fakes corrupting the political process. Michigan’s Governor Whitmer just signed a bill that adds Michigan to 4 other states (Texas, California, Washington, and Minnesota) that have enacted laws requiring the clear identification of the use of AI in political ads.  As many media companies are struggling with their policies on AI, and as the federal government has not acted to impose limits on the use of AI in political ads (see our posts here and here), it has been up to states to adopt rules that limit these practices.

The Michigan bill, H.B. 5141, applies to “qualified political advertisements” which include any advertising “relating to a candidate for federal, state, or local office in this state, any election to federal, state, or local office in this state, or a ballot question that contains any image, audio, or video that is generated in whole or substantially with the use of artificial intelligence.”  A companion bill, H.B. 5143, defines “artificial intelligence” as “a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments, and that uses machine and human-based inputs to do all of the following: (a) Perceive real and virtual environments. (b) Abstract such perceptions into models through analysis in an automated manner. (c) Use model inference to formulate options for information or action.”Continue Reading Michigan Becomes the Fifth State to Require Disclosure of the Use of AI in Political Ads

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

Even with the holidays upon us, regulation never stops.  There are numerous regulatory dates in December to which broadcasters need to keep in mind.  Furthermore, as the 2024 presidential campaign is already underway, there are political advertising deadlines to watch out for.  Here are some of the upcoming deadlines:

December 1 is the filing deadline for Biennial Ownership Reports by all licensees of commercial and noncommercial full-power TV/AM/FM stations, Class A TV stations, and LPTV stations.  The reports must reflect station ownership as of October 1, 2023 (see our article here on the FCC’s recent reminder about these reports).  The FCC has been pushing for stations to fill these out completely and accurately by the deadline (see this reminder issued by the FCC last week), as the Commission uses these reports to get a snapshot of who owns and controls what broadcast stations, including information about the race and gender of station owners and their other broadcast interests (see our article from 2021 about the importance the FCC attaches to these filings). Continue Reading December Regulatory Dates for Broadcasters – Biennial Ownership Reports, Annual EEO Public File Reports, LPFM Filing Window, LUC Political Windows for 2024 Election, and More

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 until December 27th to comply with a court order requiring the agency to conclude its still-pending

Facebook parent Meta announced this week that it will require labeling on ads using artificial intelligence or other digital tools regarding elections and political and social issues. Earlier this week, we wrote about the issues that AI in political ads pose for media companies and about some of the governmental regulations that are being considered (and the limited rules that have thus far been adopted).  These concerns are prompting all media companies to consider how AI will affect them in the coming election, and Meta’s announcement shows how these considerations are being translated into policy.

The Meta announcement sets out situations where labeling of digitally altered content will be required.  Such disclosure of the digital alteration will be required when digital tools have been used to:

  • Depict a real person as saying or doing something they did not say or do; or
  • Depict a realistic-looking person that does not exist or a realistic-looking event that did not happen, or alter footage of a real event that happened; or
  • Depict a realistic event that allegedly occurred, but that is not a true image, video, or audio recording of the event.

The Meta announcement makes clear that using AI or other digital tools to make inconsequential changes that don’t impact the message of the ad (they give examples of size adjusting, cropping an image, color correction, or image sharpening) will be permitted without disclosure.  But even these changes can trigger disclosure obligations if they are in fact consequential to the message.  In the past, we’ve seen allegations of attack ads using shading or other seemingly minor changes to depict candidates in ways that make them appear more sinister or which otherwise convey some other negative message – presumably the uses that Meta is seeking to prohibit. 

This change will be applicable not just to US elections, but worldwide.  Already, I have seen TV pundits, when asked about the effect that the new policy will have, suggesting that what is really important is what other platforms, including television and cable, do to match this commitment.  So we thought that we would look at the regulatory schemes that, in some ways, limit what traditional electronic media providers can do in censoring political ads.  As detailed below, broadcasters, local cable companies, and direct broadcast satellite television providers are subject to statutory limits under Section 315 of the Communications Act that forbid them from “censoring” the content of candidate advertising.  Section 315 essentially requires that candidate ads (whether from a federal, state, or local candidate) be run as they are delivered to the station – they cannot be rejected based on their content.  The only exception thus far recognized by the FCC has been for ads that have content that violates federal criminal law.  There is thus a real question as to whether a broadcaster or cable company could impose a labeling requirement on candidate ads given their inability to reject a candidate ad based on its content.  Note, however, that the no-censorship requirement only applies to candidate ads, not those purchased by PACs, political parties, and other non-candidate individuals or groups.  So, policies like that adopted by Meta could be considered for these non-candidate ads even by these traditional platforms. Continue Reading Meta to Require Labeling of Digitally Altered Political Ads (Including Those Generated By AI) – Looking at the Rules that Apply to Various Media Platforms Limiting Such Policies on Broadcast and Cable