Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Principal Editor: David O’Connor
We took last week off for the holidays and today bring you the regulatory developments of interest to broadcasters from the past two weeks, which we discuss below with links to where you can go to find more information as to how these actions may affect your operations.
It’s a new year, and as has been our custom at the beginning of each year, we dust off the crystal ball and take a look at what we think may be some of the significant regulatory and legislative issues that broadcasters will be facing in 2025. This year, there is an extra layer of uncertainty given a new administration, both in the White House and at the FCC. Already, it appears that a new administration will bring new priorities – some barely on the radar in past years – to the top of the list of the issues that broadcasters will need to be carefully monitoring.
One of those issues has been a possible FCC review of the meaning of the “public interest” standard under which all broadcasters are governed. As we wrote when President-Elect Trump announced his pick for the new FCC Chair starting on Inauguration Day, Chair-Designate Brendan Carr has indicated that this public interest proceeding will be a high priority. In his opinion, broadcasters, or perhaps more specifically the news media, have suffered from an erosion of trust, and it has been his expressed opinion that a reexamination of the public interest standard might help to restore public trust. We noted in our article upon his selection that this is not the first time that there has been a re-examination of that standard. It has traditionally been difficult to precisely define what the standard means. In the coming days, we will be writing more about this issue. But suffice it to say that we are hopeful that any new examination does not lead to more paperwork obligations for broadcasters, as seemingly occurred whenever any broadcast issue was addressed by the current administration. As we note below, there are several paperwork burdens that we think may disappear in the new administration, so we are not expecting more paper – but we will all need to be carefully watching what develops from any re-examination of the public interest standard.Continue Reading Looking Into the Crystal Ball – What Legal and Policy Issues are Ahead for Broadcasters in 2025?
President-elect Trump this week selected sitting FCC Commissioner Brendan Carr to be the new Chairman of the FCC starting on Inauguration Day, January 20. As a sitting Commissioner, Carr can become permanent Chair immediately – no Senate confirmation is necessary. Current FCC Chair Jessica Rosenworcel announced that, as is traditional, she will not only step down from her position as Chair on January 20 and will also leave the Commission on that date – leaving one empty seat on the FCC to be filled by the new President (to permanently fill that vacancy, Senate confirmation is needed). Until that third Republican seat is filled, Chairman Carr will be operating with a Commission split 2-2 on party lines, suggesting that initially any major Commission actions will need to be ones that are bipartisan. However, when Commissioner Carr becomes Chair, he can appoint the heads of the Bureaus and Divisions at the FCC that do most of the routine processing of applications and issuing most of the day-to-day interpretations of policy. As Carr has been at the FCC since 2012 and has served as a Commissioner since 2017, one would assume that he already has in mind people to fill these positions – and thus his team should be able to hit the ground running. What policies should broadcasters and those in the broader media world be looking for from a Carr administration at the FCC?
Immediately after the election, we wrote this article about several of the specific FCC issues where we anticipated that a Republican administration would move forward with policies different than those that have been pursued by the current administration. Since his nomination, we have seen nothing that would suggest that the issues that we highlighted earlier in the month will not be on the Carr agenda. In our last article, we noted that the FCC could be expected to take a different tact on the reinstatement of FCC Form 395-B, the EEO form that would require broadcasters to break down their employees by employment position and report on the gender, race, and ethnicity of the employees in each employment category. In one of his first tweets on X after his nomination was announced, Carr said that the FCC would no longer be prioritizing “DEI” (Diversity, Equity, and Inclusion) efforts – seemingly confirming, among other things, that a reversal of the action on the Form 395-B could be in the works (which could easily be done, as there are pending Petitions for Reconsideration of the reinstatement along with pending appeals in the courts).Continue Reading Brendan Carr to Become Next FCC Chair – What is Next for Regulation Affecting Broadcasters?
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.
With the election over, broadcasters and their Washington representatives are now trying to decipher what the next administration will have in store at the FCC and other government agencies that regulate the media. Already, the DC press is speculating about who will assume what positions in the government agencies that make these decisions. While those speculations will go on for weeks, we thought that we would look at some of the issues pending before the FCC affecting broadcasters that could be affected by a change in administration.
There are two issues presently before the courts where the current Republican Commissioners dissented from the decisions which led to the current appeals. The FCC’s December 2023 ownership decision (see our summary here) is being appealed by both radio and television interests, arguing that the FCC did not properly relax the existing ownership rules in light of competition from digital media, as required by Congress when it established the requirement for Quadrennial Reviews to review the impact of competition and assess whether existing radio and TV ownership rules remain “necessary” in the public interest. While briefs have already been filed in that case, it will be interesting to see how the new administration deals with the issues raised, as both sitting Republican Commissioners dissented, saying that the FCC should have considered digital competition in substantially relaxing those rules (see Carr dissent here and Simington Dissent here). Even if the change in administration does not change the Commission’s position in court, the 2022 Quadrennial Review has already been started (see our article here), so a new administration already has an open proceeding to revisit those rules.Continue Reading How FCC Regulation of Broadcasters May Change in a New Administration – Looking at the Pending Issues
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.
Last week, as we noted in our monthly look ahead at the regulatory dates of importance to broadcasters in August, the reinstatement of the rule prohibiting the duplication of programming on FM stations went into effect. The FCC Order reinstating the rule is interesting both for its substance, and for the parties pushing for that reinstatement – principally representatives of the music industry. As we note below, even though the rule is now back in effect, the NAB has asked for reconsideration of that action.
First, let’s look at what the rule provides. The reinstated rule prohibits any commonly owned or operated (e.g., through a time brokerage agreement) commercial FM station from duplicating more than 25% of its weekly programming on another FM station if there is overlap of the 3.16 mv/m (70 dbu) contours of the two stations, and that area of overlap constitutes 50% of the 3.16 mv/m predicted coverage area of either of the overlapping stations. Program duplication is not limited to simultaneous transmission of the same programming – the rule by its terms defines “duplication” to include the broadcast of the same programming any time within a 24-hour period. Continue Reading FM Programming Nonduplication Rule Goes Back into Effect – A Win for the Music Industry While the NAB Objects
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.
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.
Last week, the U.S. Supreme Court overturned the longstanding Chevron doctrine, which required courts to defer to expert regulatory agencies, like the FCC, when interpreting ambiguous statutes, unless the agency acted unreasonably. Since the decision, we have seen all sorts of TV pundits predicting the end of “the administrative state” (presumably meaning the end of the many rules passed by administrative agencies like the FCC). In the broadcast space, we’ve heard many suggest that this might mean that the broadcast ownership rules (most recently upheld by the FCC in their December decision on the 2018 Quadrennial Review) would soon be a thing of the past. As we wrote several months ago, when this case was argued before the Supreme Court, we think that many of these predictions are overblown. While certainly last week’s decision gives challengers to agency decisions more ammunition to use in bringing such challenges, and likely will cause the federal courts to be flooded with more challenges generally, the decision will not end the authority of administrative agencies to adopt rules affecting businesses, nor will it bring about any immediate change in rules adopted by the FCC on complex issues affecting broadcasters, like the local radio and television ownership rules.
First, we need to look at what the Chevron doctrine was all about. Chevron did not deal with the power of agencies themselves to make rules, but instead it dealt with the relatively narrow question of the standards that courts should use in evaluating challenges to those rules. Under Chevron, if an agency’s rules relied on an interpretation of arguably ambiguous Congressional legislation, the courts would defer to the agency’s interpretation of the law if that interpretation was a plausible one. In other words, under Chevron, the agency’s interpretation of the law would stand if there was a reasonable argument that the law meant what the agency said that it did, even if a reviewing court thought that there was a better reading of the law. So, the doctrine dealt only with issues that arose when there were arguably ambiguous statutes being interpreted by an agency like the FCC.Continue Reading Supreme Court Rejects the Chevron Doctrine – What Does it Mean for Broadcasters Regulated By the FCC?
