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Last week, the FCC released a Notice of Proposed Rulemaking that was first announced by the FCC Chairwoman three months ago (see our article here), proposing to require that the use of artificial intelligence in political advertising be disclosed when it airs on broadcast stations, local cable systems, or satellite radio or TV.  This proposal has been controversial, even before the details were released, with many (including the Chair of the Federal Election Commission and some in Congress) questioning whether the FCC had the authority to adopt rules in this area, and also asking whether it would be wise to adopt rules so close to the upcoming election (the Chairwoman had indicated an interest in completing the proceeding so that rules could be in place before November’s election).  The timing of the release of the NPRM seems to rule out any new rules becoming effective before this year’s election (see below), and the NPRM itself asks questions as to whether the FCC’s mandate to regulate in the public interest and other specific statutory delegations of power are sufficient to cover regulation in this area.  So, these fundamental questions are asked, along with many basic questions of how any obligation that would be adopted by the Commission would work. 

The FCC is proposing that broadcasters and the other media it regulates be required to transmit an on-air notice (either immediately before, after, or during a political ad) to identify an ad that was created in whole or in part using AI.  In addition, broadcasters and other media subject to the rule would need to upload a notice to their online public files identifying any political ads that were created using AI.  The NPRM sets forth many questions for public comment – and also raises many practical and policy issues that will need to be considered by the FCC and the industry in evaluating these proposals.Continue Reading The FCC Proposes Requirements for Disclosures About the Use of Artificial Intelligence in Political Ads – Looking at Some of the Many Issues for Broadcasters

Although many, including Congress, may be taking the last of their summer vacations, there are still many dates to which broadcasters should be paying attention this August.  One that most commercial broadcasters should be anticipating is the FCC’s order that will set the amount of their Annual Regulatory Fees, which will be paid sometime in September before the October 1 start of the federal government’s new fiscal year.  As we wrote here, the FCC has proposed to decrease fees for broadcasters from the amounts paid in prior years.  The FCC has also proposed to end its temporary regulatory fee relief measures implemented during the COVID-19 pandemic as well as ending its presumption that silent stations are entitled to fee waivers without providing evidence of financial hardship – which, as we wrote here, broadcasters largely oppose ending because the policies enable struggling broadcasters to avoid costly paperwork and regulatory consequences, helping to avoid loss of service to local communities.  Sometime in August (or possibly in the first days of September), the FCC will make a final determination on the amount of the fees, and then announce the deadlines for payment of the fees. 

August 1 is the deadline for radio and TV station employment units in California, Illinois, North Carolina, South Carolina, and Wisconsin with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ Online Public Inspection Files (OPIFs).  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 five 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 each station’s website, if the station has a website.  Be timely getting these reports into your public file, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).Continue Reading August 2024 Regulatory Dates for Broadcasters– Annual Regulatory Fee Details, EEO Annual Filings, Effective Date of Reinstated FM Non-Duplication Rule, Opening of Window for Class A/ LPTV/ TV Translator Channel Change Applications, and More

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.

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Last week, we wrote about the impact of the FCC’s decision to standardize certifications from program buyers verifying that they are not representatives of foreign governments – and the accompanying decision to expand that requirement to political issue advertising and paid PSAs.  In that article, we noted the August 15 effective date for most…

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’s Media Bureau announced that August 15 is the effective date of the FCC’s expanded foreign government sponsorship identification
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Update, 7/26/2024 – We understand that the FCC has decided that the requirement for verification of the buyers of issues ads and paid PSAs will not go into effect on August 15, as this article stated. Instead, as we report in this article, the new requirement will require approval of the Office of Management and Budget, thus delaying its implementation for some time. As the FCC has not released any document specifically confirming the delay in the implementation of this verification requirement, we suggest that you confirm this understanding with your own counsel.

The FCC this week issued a Public Notice announcing the effective date of certain portions of the FCC Order released in June adopting changes to its requirements that broadcasters obtain certifications from buyers of program time on their stations that the sponsors are not foreign governments or agents of those governments.  As we wrote when the Order was released, the order had some good parts and some that could add additional burdens on broadcasters.  It is the latter that become effective on August 15, with most of the rest awaiting approval for the information collection requirements from the Office of Management and Budget under the Paperwork Reduction Act.

What is the “bad part” that will become effective on August 15?  It is the portion of the Order that requires broadcasters to get certifications not only from the buyers of program time (certifications that have been required since March 2022 – see our article here), but that they also get these certifications from buyers of spot advertising time unless the ad is for a commercial product or service.  That means that broadcasters, when they are selling political issue ads and paid PSAs, will need to go through the same process as they do when they sell blocks of program time.  They will need to get the sponsor of these ads to provide a certification consistent with the  the certification requirements for all leased programming time, to demonstrate that the buyer is not a foreign government or the agent of a foreign government.  As we will be entering the peak of political advertising time just about the time that this Order becomes effective, and as so much money is not spent by candidates but instead by PACs and other non-candidate political organizations, this will immediately impose new information gathering requirements from these political buyers – right in the heat of a campaign. Continue Reading August 15 Is the Effective Date of Requirements for Foreign Government Certifications for Political Issue Advertising and Paid PSAs

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.

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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? 

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 U.S. Supreme Court overturned the longstanding Chevron doctrine, which required Courts to defer to expert regulatory agencies, like the
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The lazy days of summer continue to provide little respite from the regulatory actions of importance to broadcasters.  This month brings quarterly requirements, including most importantly, the obligation to upload Quarterly Issues Programs Lists to a station’s online public file, and a number of comment deadlines in important FCC proceedings, as well as the opening of political windows in this major election year.  So, even if the beach chair is calling, remember to keep an eye on dates that can affect your stations. 

The regulatory date that all full-power broadcasters should have circled on their calendars is July 10, the deadline by which all full-power radio and TV stations (as well as Class A television stations), both commercial and noncommercial, must upload to their online public inspection files their Quarterly Issues/Program lists for the second quarter of 2024.  The lists should identify the issues of importance to the station’s community and the programs that the station aired between April 1 and June 30, 2024 that addressed those issues.  It is important that these be timely uploaded to your public file, as the untimely uploads of these documents probably have resulted in more fines in the last decade than for any other violation of the FCC’s rules.  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.Continue Reading July Regulatory Dates for Broadcasters – Quarterly Issues/Programs Lists, Comment Deadlines in Multiple Proceedings, Political Windows, and More