Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
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.
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In the last few weeks, a Democratic Senator and a Republican FCC Commissioner have both expressed support for the future of AM radio. This is not a new topic, being the subject of speculation for at least the last 20 years as FM listening caught up to and surpassed the older service’s audience. But, when considering worldwide trends, a real question arises as to whether this inquiry is too narrow, and whether the FCC should not be taking more steps to insure the continuation of a free, local broadcast service.
In the last decade, the FCC has considered and, in many cases adopted, various proposals to revitalize the AM service – including providing FM translators for AM stations (see our articles here and here) and permitting all-digital AM operations (see our article here). Other proposals, including one for across-the-board power increases for AM stations (see our article here) and another to lessen the interference protection enjoyed by high powered “clear channel” AMs, which would allow lower power local AM stations to increase nighttime power (see our article here), have not been adopted. What new issues are being raised by these recent expressions of support from DC regulators?
Continue Reading Washington Worries About AM Radio – Senator Markey and Commissioner Simington Weigh in on the Future of the Service While Overseas There are Thoughts of Ending Broadcasting Altogether
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.
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Continue Reading This Week in Regulation for Broadcasters: November 26 to December 2 , 2022
For the last few years at this time of the year, we’ve departed from our usual coverage of legal and policy issues to talk about something else – broadcasters giving back. With Giving Tuesday upon us, we wanted to urge our readers to consider ways to give back to our industry. I guess it is now a tradition, so we’ll do it again this year and suggest some of the many ways we can express our thanks to the industry in which we work. Broadcasters have long been known for their service to their communities, service benefitting individuals and groups across the country. While broadcasters are always giving back to their communities and should be celebrated for that, those of us who make our living in some aspect of the industry should recognize that there are plenty of ways for us to give back as well – both to those associated with the industry who have fallen on hard times, and to those who need assistance in obtaining education and training to enter the media industry we so appreciate.
During the last two years when normal routines have been upended, those of us who have remained healthy and employed are truly blessed. We should all be thankful for jobs, friends, and good fortune. But we should also ourselves give back where possible. In the broadcast industry itself, there are many groups doing good work.
One that bears mention is the Broadcasters Foundation of America, which provides relief to broadcasters and former broadcasters who have, for one reason or another, fallen on hard times – whether that be for health reasons or because of some other disaster that has affected their lives. The Foundation deserves your consideration. More about the Foundation and its service, and ways to contribute, can be found at their website, here.…
Continue Reading Giving Tuesday – How We Can Give Back to the Broadcast Industry
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.
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In a decision this week on the sale of radio stations by Univision Radio to Latino Media Network, the Audio Division of the FCC’s Media Bureau discussed the FCC’s longstanding prohibition on the seller of a broadcast station retaining a “reversionary interest” in the station it is selling. In this case, FCC staff found that the intent of the buyer to enter into a Local Marketing Agreement by which the seller would program some of the stations after closing was not a reversionary interest, because the buyer was free to make programming decision for the stations as long as it retained ultimate control over that programming and station operations. Had the LMA been a condition of the sale, or had it served as partial consideration for the sale, the FCC suggested that it would have violated the prohibition against revisionary interests. But as the seller did not make the LMA a condition of the sale, the post-closing decision to enter into an LMA was a programming decision under the control of the buyer and thus was not deemed to be a prohibited reversionary interest. No matter what the holding of this case, a more fundamental question arises – what is a reversionary interest and why is it prohibited?
In reviewing our blog when writing this article, we noted that in the almost 17 years we have been publishing, we don’t seem to have ever referred specifically to the question of reversionary or retained interests in a broadcast station. It is an issue that does not come up often, but it is related to another issue that we have written about before – the prohibition on a lender taking a security interest in a broadcast license (see, for instance, our two part article on security interests in broadcast licenses, here and here). The prohibition on the right of reversion or retained interest in a broadcast license is set out in Section 73.1150 of the FCC rules, which states:
(a) In transferring a broadcast station, the licensee may retain no right of reversion of the license, no right to reassignment of the license in the future, and may not reserve the right to use the facilities of the station for any period whatsoever.
(b) No license, renewal of license, assignment of license or transfer of control of a corporate licensee will be granted or authorized if there is a contract, arrangement or understanding, express or implied, pursuant to which, as consideration or partial consideration for the assignment or transfer, such rights, as stated in paragraph (a) of this section, are retained.
The prohibition against the right of reversion, and the prohibition against a lender taking a security interest directly in a license, were both adopted by the FCC to implement Communications Act requirements that state that a broadcast license does not convey an ownership interest in the spectrum being used, but instead only confers on the license holder a right to use the spectrum that does not extend “beyond the terms, conditions, and periods of the license.” In adopting the prohibitions against a reversionary interest, and the prohibitions on taking a security interest in a license, the FCC believed that these interests would imply an ownership interest in the license akin to the ownership interest that one might hold in other forms of property that can be subject to leases, mortgages, and other security interests. Thus, the restrictions were imposed over half a century ago. But, since being implemented, the FCC has from time to time questioned whether these restrictions really were necessary.
Continue Reading FCC Decision Discusses Prohibition on Retaining Reversionary Interests in Broadcast Licenses After Sale – What Is a Reversionary Interest and Why Is It Prohibited?
There is but a week to go before the mid-term elections, and political ads blanket the airwaves across the country. From discussions that I have had with many attorneys, broadcasters and other campaign observers, the ads this year have been particularly aggressive. Some publications have even suggested that, in the waning days of the campaign, the ads may become even worse as desperate campaigns look for some last-minute claim that could turn the tide in an election. In this rush to election day, broadcasters need to be on the alert for allegations that an attack ad from a non-candidate group is false or defamatory, because in certain instances, the ad could result in a claim against the broadcaster.
As we have written before, broadcasters (and local cable companies) are forbidden from censoring the message of a candidate (see, for instance, our articles here and here). Section 315 of the Communications Act forbids a broadcaster or a local cable operator from censoring a candidate ad. Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads. (Note that this protection applies only to broadcasters and local cable companies – the no censorship rule does not apply to online distribution – see our articles here and here – so other considerations need to be considered when dealing with online political ads). But some have taken that to mean that broadcasters have no fear of liability for any political ad. As I explained in a recent interview with a Detroit television station, that is not true – broadcasters do theoretically have the potential for liability if they run an ad from a non-candidate group either knowing that ad to be false, or by continuing to run a false ad after being put on notice that the ad was false and ignoring that notice (see also this article about this distinction between candidate and non-candidate ads, and how the media’s coverage of campaigns can overlook these distinctions). In 2020, President Trump’s campaign brought a lawsuit against a Wisconsin television station alleging that a PAC ad run on the station was false and defamatory (see our articles here and here on that suit). In this election cycle, there are press reports of a lawsuit by Senate candidate Evan McMullin against a political party’s campaign committee and three local TV station owners for running an ad that had allegedly edited remarks by McMullin to make it seem like he said all Republicans were racist (see articles here and here). Even Roy Moore, the defeated Senate candidate from several years ago in Alabama, successfully pursued a defamation suit against the sponsor of an ad that Moore claimed falsely accused him of improper conduct (this decision was not against a broadcaster, but instead against the ad’s sponsor, see report here).…
November lacks the usual set of deadlines for routine FCC filings, but there are nevertheless a number of regulatory dates that warrant attention. And come the first of December, those regular filing deadlines return to the calendar.
November brings comment deadlines in at least two FCC proceedings relevant to broadcasters. On November 7, reply comments are due with respect to the FCC’s Order and Sixth Notice of Proposed Rulemaking (on which we previously reported) to delete or revise analog rules for Low Power TV and TV translator stations that the FCC believes no longer have any practical effect or that are otherwise obsolete or irrelevant after the transition of these stations to digital operation. November 25 is the deadline for reply comments in the FCC’s request for comment on the methodology that it uses to allocate its employees to determine annual regulatory fees (see article here). Broadcasters have felt that their fees have increased more than their fair share – but other regulated services likely complain about their share of the fees as well. Because the FCC allocates the fee obligation based on the number of its employees who spend time on regulatory duties regarding a particular regulated industry, this proceeding looking to allocate how employees are allotted is very important.
Another rulemaking proceeding will likely be concluded in November. The FCC last week announced that the agenda for its November 17 regular monthly open meeting will include consideration of a Report and Order (a draft of which was released last week) that would update the FCC’s rules to identify a new publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes. Current FCC rules direct commercial TV stations to use Nielsen’s Annual Station Index and Household Estimates to determine their DMA, and stations rely on these determinations when they seek carriage on cable and satellite systems. Nielsen, however, has replaced the Annual Station Index and Household Estimates with a monthly Local TV Station Information Report (“Local TV Report”). The Order, if adopted as drafted, would (i) revise the FCC’s rules to eliminate references to the Annual Station Index and Household Estimates and instead direct broadcasters to the Local TV Report – specifically, the October Local TV Report published two years prior to each triennial carriage election; and (ii) conclude that the Local TV Report should be used to define “local market” in other statutory provisions and rules relating to carriage (e.g., retransmission consent, distant signals, significantly viewed, and field strength contour). For further background regarding this proceeding, see our article here. …
Continue Reading November Regulatory Dates for Broadcasters – Rulemaking Comments, Political Obligations, Daylight Savings Time 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.
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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.
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