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.

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.

When you have been representing broadcasters in Washington for as long as I have, you see cycles in regulation of the industry.  I was reminded of how long the FCC has been on a deregulatory cycle in reading today’s Washington Post obituary of former Democratic FCC Chair Charlie Ferris, who headed the FCC many decades ago when I interned there and when I later started to work in private practice representing broadcasters.  One line in the Post article in particular stood out – where Ferris was said to have “argued that unless regulations were ‘improving the market,’ they ‘were nothing but a nuisance.’”  Since the administration of Chairman Ferris, the FCC has generally moved forward to implement that philosophy of eliminating unnecessary regulation, with only occasional consideration given to the reinstatement of certain regulations (efforts that were often unsuccessful).  With the spate of recent rulings from the FCC, one questions whether the direction that Chairman Ferris pointed the FCC is now being slowed or reversed at a time when the market may well be crying out for an increase in the speed of that deregulation.

The obituary itself quoted one media observer as suggesting that the deregulatory direction in which Ferris took the FCC might not have been entirely successful, based on a persistent lack of minority ownership of broadcast properties, and “’a shortage of local, professional, accountable reporting’ in many communities.”  But are those failings ones that are attributable to the deregulatory trends of the FCC, or greater marketplace forces that have strained not just broadcasting but all traditional media?  In reading the media headlines in the last few weeks, one can’t help but conclude that the latter is more likely the cause, and that another quote from Chairman Ferris cited in the article has never been more appropriate, as he warned broadcasters: “If you cannot compete with new technologies, you will be overcome by them.”  As we’ve argued in this blog before (see for instance our article here reflecting on the warnings of another former Chairman, Ajit Pai), given the slew of new technologies available to consumers, imposing new rules on a broadcast industry flooded with new competition for audience and revenues simply does not make sense.Continue Reading Just Because the FCC Can Regulate Broadcasting, Should It? 

On February 22, the FCC released an Order reinstating the requirement for radio and television broadcasters, commercial and noncommercial, to annually file an FCC Form 395-B.  All station employment groups with 5 or more full-time employees would need to classify all station employees, both full-time and part-time, by race or ethnicity and gender, as well as by the type of job they perform at the station (see the most current version of the form here).  The form, which will be amended to allow employees to be classified as “non-binary” as well as male and female, will likely need approval of the Office of Management and Budget under the Paperwork Reduction Act before broadcasters will be required to comply.  The Form would be filed by September 30 of each year after the effective date, reporting on the employment profile of the station in a pay period in July, August, or September (the same pay period to be used each year).

The Form is not new, though its use has been on hold for over 20 years.  A version of this form had been used by the FCC in the 1980s and 1990s, but its use was put on hold in 1998 as the result of court decisions finding unconstitutional the FCC’s use of this information to impose additional regulatory burdens on broadcasters whose employment profile did not reflect the demographics of its service area.  The court’s concern was that these additional regulatory actions forced broadcasters to make hiring decisions based on race or gender, a form of prohibited discrimination. Continue Reading Reinstating FCC Form 395-B Reporting on the Race and Gender of Broadcast Employees – What the Action Means for Broadcasters

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 FCC adopted an Order that will reinstate FCC Form 395-B, which requires broadcasters to annually report their employees’ race

Here are some of the regulatory developments of significance to broadcasters from this week, with links to where you can go to find more information as to how these actions may affect 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 released its agenda for its Open Meeting scheduled for February 15.  The FCC will consider two items of

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 Biden signed a Continuing Resolution passed by Congress averting a federal government shutdown that was to begin on January

The full Commission this week issued an Order fining Cumulus Media $26,000 for its failure to upload one EEO Annual Public File Report to its online public inspection file until about 9 months after the due date.  The unanimous decision of the five Commissioners generally upheld an EEO Notice of Apparent Liability, issued unanimously by all four FCC Commissioners about two years ago, where the Commission had proposed a $32,000 fine on the company for its failure to timely upload the annual EEO report for a cluster of five co-owned stations in a Georgia market (and the fact that a link to that report on each stations’ website was also missing for that period).  The principal change in this week’s decision was to reduce the fine that had been proposed by $6,000, reflecting the amount that the Notice of Apparent Liability had assessed for the licensee’s failure to self-assess its EEO program. Broadcasters are required to regularly assess the effectiveness of their EEO program.  The proposed fine was imposed on the theory that, if the licensee had been regularly assessing its program, it would have noted that the required report had not made it to the online public file and fixed that problem.  This week’s decision reaffirms that reasoning but reduces the fine by the amount allocated to the failure to self-assess the program, finding that Cumulus may not have had notice that reviewing public file uploads was part of the obligation to self-assess.

It is very important to note that this decision did not cite any failure by the licensee to recruit widely when it had open positions, nor any failure of the group to conduct the required EEO non-vacancy specific outreach (these obligations described in our posts here and here).  The alleged violations cited in the decision were simply tied to the failure to upload the annual report.  In fact, Cumulus stated that the report was prepared on time, but was not uploaded to the public file because of an administrative oversight due to staff turnover.  While the base fine for this violation totaled less than $10,000, the proposed fine was increased because Cumulus was found to have previous FCC rule violations for EEO and sponsorship identification matters.  Both Cumulus and the NAB argued that this amount was excessive for a single instance of a paperwork shortcoming – the FCC rejecting that reasoning, finding that the upload was a critical part of the broadcaster’s EEO obligations as it gives the public a way to monitor the performance of the licensee. Continue Reading FCC Imposes $26,000 Fine on Broadcaster for One EEO Annual Public File Report that was Uploaded Late

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’s January 12 report listing the items on circulation (those orders or rulemaking proposals that have been drafted and