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Here are some of the FCC regulatory and legal actions of the last week—and a congressional action in the week ahead—of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC on June 9 held an Open Meeting where it unanimously adopted a Declaratory Ruling and Notice of Proposed Rulemaking regarding Broadcast Internet services. The Commission defines Broadcast Internet broadly as IP-based services delivered over broadcast TV spectrum.  The Declaratory Ruling clarifies that the lease by a party of ATSC 3.0 spectrum on multiple local TV stations for Broadcast Internet services does not count as an attributable interest under the current TV ownership rules as would an LMA or similar programming agreement on multiple stations.  The Notice of Proposed Rulemaking seeks comment on how industry foresees using Broadcast Internet services and what FCC rule change could encourage innovation and use of these services.  Comments and reply comments on the Commission’s proposals will be due 30 days and 45 days, respectively, after publication in the Federal Register.  (News Release) (Declaratory Ruling and Notice of Proposed Rulemaking) (Broadcast Law Blog)
  • Thirty-five radio stations received the news last week that they were randomly selected by the Enforcement Bureau for an audit of their compliance with the Equal Employment Opportunity rules. These periodic audits are good reminders to broadcasters that the Enforcement Bureau sees EEO compliance as a priority and that the Bureau can sanction stations for non-compliance.  Even if your station was not selected to be audited, you can still use the publicly-released audit letter as a checklist to make sure your station is complying with all applicable EEO rules.  The FCC audits about 5% of stations each year, so your time may come soon.  (Public Notice) (Broadcast Law Blog)
  • New technical rules for low power FM stations and the relation between reserved-band noncommercial FM stations and TV channel 6 were published last week in the Federal Register, setting the effective date for many of the new rules. New rules, including permission for LPFM stations to use boosters and the waiver process for NCE stations seeking a change in facilities near a Channel 6 TV station, become effective July 13.  Other new rules, including the broadening of the definition “minor change” and the expansion of the permissible use of directional antennas by LPFMs, require additional government action and likely will not be effective for several months.  (Federal Register) (Broadcast Law Blog)

Continue Reading This Week at the FCC for Broadcasters: June 6, 2020 to June 12, 2020

The question about what to do with the protections offered by Section 230 of the Communications Decency Act took another turn this week, when Joe Biden suggested that online platforms needed to take responsibility for the content posted on them and correct misinformation in those ads.  That position is seemingly the opposite of the President’s Executive Order about which we wrote here and here, which seemingly suggests that no censorship should be applied against political speech on these platforms – or certainly no censorship against certain kinds of speech that is not applied against speech from all other parties on that platform.  Facebook almost immediately posted this response, defending its position not to censor candidate’s speech and analogizing it to the position that television and radio broadcasters are forced by Congress to take – where by law they are not allowed to refuse to run a political ad from a candidate because of its content and they are shielded from liability because of their inability to censor these candidate ads.  Facebook took the position that, if Congress wants to regulate political speech, it should pass laws to do so, but that Facebook would not itself be a censor.  That position reminded us of an article that we wrote back in January when there were calls to make Facebook stop running political ads comparing the regulatory schemes that apply to political ads on different platforms.  Given its new relevance in light of the sudden prominence of the debate over Section 230, we thought that we would rerun our earlier article.  Here it is – and we note how we seemingly anticipated the current debate in our last paragraph:

[In January], the New York Times ran an article seemingly critical of Facebook for not rejecting ads  from political candidates that contained false statements of fact.  We have already written that this policy of Facebook matches the policy that Congress has imposed on broadcast stations and local cable franchisees who sell time to political candidates – they cannot refuse an ad from a candidate’s authorized campaign committee based on its content – even if it is false or even defamatory (see our posts here and here for more on the FCC’s “no censorship” rule that applies to broadcasting and local cable systems).  As this Times article again raises this issue, we thought that we should again provide a brief recap of the rules that apply to broadcast and local cable political ad sales, and contrast these rules to those that currently apply to online advertising.
Continue Reading Facebook Defends Not Censoring Political Ads – Looking at the Differences In Regulation of Political Speech on Different Communications Platforms

In April, the FCC modified a number of its rules regarding LPFM stations, and also modified its processing policies as to considerations of interference between Channel 6 TV stations and noncommercial FM stations operating on the reserved band (the low end of the FM dial).  We wrote about those changes here and here. …

The FCC at its open meeting this week adopted the Declaratory Ruling and Notice of Proposed Rulemaking that we wrote about here when the draft order was released.  The Declaratory Ruling makes clear that the leasing of television spectrum for datacasting uses does not trigger FCC multiple ownership issues (in other words, one entity can…

Here are some of the FCC regulatory and legal actions of the last week of significance to broadcasters — with a quick look at the week ahead— with links to where you can go to find more information as to how these actions may affect your operations.

  • As protests and civil unrest over George Floyd’s killing roiled cities across the country, FCC Chairman Ajit Pai commended local broadcasters for their coverage of the events and their willingness to put themselves at personal risk to share these stories with America (News Release). Commissioner Starks called for more diversity in media ownership (News Release). We explained the minority tax certificate on our blog here.  The tax certificate has historically been one of the most effective means of promoting diversity in broadcast ownership.
  • The FCC issued a Public Notice setting out proposed lump sum payments for reimbursement of the costs for the relocation of authorized C-Band satellite earth stations following the repurposing of some of that band for 5-G wireless uses. The notice is scheduled to be published in the Federal Register on Monday, setting a June 15 comment deadline on the proposed payments.
  • The Media Bureau reminded LPTV and TV translator stations operating on channels 38, 44, 45 and 46 that they must cease operations no later than 11:59 pm local time on July 13, 2020. The July 13, 2020 date for cessation of operations is a hard deadline, tied to the end of the post-Incentive Auction transition period.  (Public Notice)
  • The Media Bureau opened a settlement window running through July 31 for applicants for new or modified LPTV stations or TV translators, originally filed in 2009, that had filed for new channels or new technical facilities because use of their old channels was preempted by the incentive auction repack.  Where more than one applicant applied for the same new channel in the same area, those applicants can file to make engineering changes to their applications (including, if no other solutions are possible, changing channels yet again) or to reach other settlements (including channel sharing) to resolve their conflicts by the July 31 deadline.  (Public Notice)(see our summary of both LPTV items on the Broadcast Law Blog).
  • The FCC released a list of 515 open proceedings from across its bureaus that it plans to close due to dormancy. A proceeding makes the proposed closure list when it requires no more action, no more action is planned, or no filings in the docket have been made for several years.  Interested parties can review the list and submit comments urging the Commission to either keep open or close permanently items that appear on the list.  (Public Notice)
  • The Media Bureau issued a decision reviewing Section 312(g) of the Communications Act which automatically cancels a station’s license if it has been silent for 12 months, absent special circumstances. The decision is particularly useful in explaining the special circumstances that can justify the preservation of a license, and the way that the FCC assesses the period that a station was silent.  (Letter)
  • Two Notices of Apparent Liability that came out of the Commission this week serve as good reminders during this license renewal cycle that you do, in fact, have to file an application to renew your license.
    • In one case, a Virginia AM station was hit with a $7,000 fine for failing to file for license renewal and then operating the station after its FCC authorization had expired. In the end, the Commission levied the fine, but also found that the station’s license should be renewed for a “short-term” two-year license term instead of the typical eight-year term.  (Notice of Apparent Liability)
    • In a second case, a Florida low power FM failed file an application for license renewal on January 27, 2020 that was due on or before October 1, 2019, without providing an explanation for the late filing. The Commission levied a $1,500 fine against the station and will consider the license renewal application at a later time.  (Notice of Apparently Liability)

Continue Reading This Week at the FCC for Broadcasters: May 30, 2020 to June 5, 2020

An intense national conversation on racial justice and equity has been thrust upon the country by the events of the last week.  While our focus here on this blog is narrow, it is certainly worth looking at some of the issues that are within our broadcast world that are relevant to this conversation.  In recent days, for instance, FCC Commissioner Geoffrey Starks promoted more diversity in broadcast ownership, and an article in Radio Ink by the President of the National Association of Black Owned Broadcasters called for a revival of the minority tax certificate – a program ended decades ago over concerns about its cost to the government.  The tax certificate offers perhaps the most meaningful route to the goals sought by the Commissioner and is worth examination as, since its abolition so many years ago, its revival has been discussed so many times that it has become almost a cliché, with many not really understanding what it did and why it was effective.

The minority tax certificate was a program designed to provide broadcasters with an economic incentive to sell their stations to minority owners.  Rather than directly subsidizing the potential owners, the certificate instead gave a tax break to sellers that incentivized them to sell to the minority-owned business even if there were multiple bidders for their properties.  If the seller sold to a minority-owned business, the seller could take the proceeds from the sale and roll those proceeds over into a new media property without recognizing the taxable gain from the sale.  Unlike the typical like-kind exchange where the roll-over into a new property has to proceed within a few months of the sale, the tax certificate treated the sale as an involuntary sale (like the sale of a property because of a government’s exercise of eminent domain) under Section 1033 of the tax code, giving the seller several years to roll the proceeds over into a new purchase.  At that point, the new property would have the same tax basis as the old – meaning that no gain would be recognized until the sale of the new property.  This spurred many sales to minority companies by broadcasters looking not to get out of the business, but instead looking to realign their holdings or to move up into larger markets.  Several hundred radio and TV stations were purchased under this program in the last 20 years of the program’s existence.  Why was this seemingly successful program abandoned?
Continue Reading Understanding the Minority Tax Certificate and its Potential for Promoting Diversity in Broadcast Ownership

LPTV and TV translator licensees and applicants saw two notices from the FCC yesterday dealing with fall-out from the FCC’s incentive auction and the subsequent repacking of TV stations into a smaller part of the broadcast spectrum.  The first notice announced a settlement window that runs through July 31 for applicants for new or modified LPTV stations or translators that had filed for new channels or new technical facilities because use of their old channels were preempted by the repacking – either because those channels were no longer part of the TV band or because the channels were to be used by some full-power station that was itself repacked.  These applications have been pending since an LPTV/TV translator filing window in 2009, and were allowed to amend their applications to address issues caused by the repacking earlier this year.  As, in some cases, more than one applicant applied for the same new channel in the same area, those applicants whose displacement applications ended up being mutually exclusive can file to make engineering changes to their applications (including, if no other solutions are possible, changing channels yet again) or to reach other settlements (including channel sharing) to resolve their conflicts.  So if your displacement application was on the list of mutually exclusive applications, look to see if you can resolve your issues and file for the necessary FCC approvals by the July 31 deadline.

In addition, LPTV stations and TV translators using channels 38, 44, 45 and 46 were reminded by the FCC in another Public Notice that they need to vacate these channels by July 13.  The FCC notes that this is a hard deadline that cannot be waived – so stations operating on these channels must either move to a new channel (getting FCC approval for such a move if they have not already received such approval) or cease operations (and ask for authority to remain silent until they have been able to move to another channel) by the July 31 deadline so that the spectrum is freed up as part of its being repurposed for wireless uses.
Continue Reading LPTV and TV Translators – Settlement Window for Mutually Exclusive Applications and Reminder on Deadline for Vacating Certain Channels

Here are some of the regulatory and legal actions of the last week—and some obligations for the week ahead—of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The comment cycle was set in the FCC’s annual regulatory fee proceeding. On or before June 12, the Commission wants to hear from interested parties about the fees that it proposes to impose on the companies that it regulates – including broadcasters.  The FCC proposes to complete the implementation of its change to computing fees for television stations based on population served rather than on the market in which they operate, a move it began last year (see our Broadcast Law Blog article here on the FCC decision last year to initiate the change in the way TV fees are allocated).  The FCC also asks for ideas about how the Commission can extend fee relief to stations suffering COVID-19-related financial hardship.  Reply comments are due on or before June 29.  (Notice of Proposed Rulemaking)
  • FCC Chairman Ajit Pai and Chris Krebs, director of the U.S. Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency, wrote to the nation’s governors asking them to, among other things, declare radio and TV broadcasters as essential to COVID-19 response efforts and to afford broadcasters all appropriate resources and access. (News Release)
  • In a good reminder to broadcasters that transactions involving the sale or transfer of control of a broadcast station must be authorized in advance by the FCC, the Media Bureau entered into a consent decree with two companies that sold an FM station and FM translator without getting approval from the Commission. The parties mistakenly believed filing license renewal applications that reflected the assignment was sufficient approval.  The consent decree includes an $8,000 penalty.  (Consent Decree).  See this article on past cases where the FCC has warned that even transactions among related companies that change the legal form of ownership of a broadcast station without changing the ultimate control need prior FCC approval.
  • The Commission granted approval to Cumulus Media, Inc. to exceed the Commission’s twenty-five percent foreign ownership threshold. The Commission will allow Cumulus to have up to 100 percent aggregate foreign investment in the company, although additional approvals will be needed if any previously unnamed foreign entity acquires 5% or more of the company or if any foreign entity desires to acquire control.  (Declaratory Ruling).  This decision shows the process that the FCC must go through to approve foreign ownership above the 25% threshold and the analysis needed to issue such approvals.  See our articles here and here about the evolving FCC policy in this area.
  • President Trump signed an executive order that seeks to, among other things, address online censorship and rollback certain protections afforded to online platforms, which include social media sites like Twitter, Facebook, Instagram, and YouTube, but which also protect any site that hosts content created by users – which could include the Internet platforms of many broadcasters. Under federal law, Section 230 of the Communications Decency Act, these online platforms generally enjoy legal immunity for what users post on their platforms.  The President directed the Department of Commerce to ask the FCC to open a rulemaking to review this immunity and asked the FTC to review whether platforms were adhering to their terms of use when commenting on or limiting third-party content.  Other government entities, including state attorneys general and the Department of Justice, were also asked to review online platforms.  For his part, FCC Chairman Ajit Pai said “This debate is an important one. The Federal Communications Commission will carefully review any petition for rulemaking filed by the Department of Commerce.”  (Executive Order).  Watch for an article on the Broadcast Law Blog this coming week on implications of this order for broadcasters and other media companies.
  • Anyone looking to hand deliver documents to the FCC needs to learn a new address, and it is not, as you might expect, the address of the FCC’s future headquarters. Deliveries by hand must now be brought to 9050 Junction Drive, Annapolis Junction, MD 20701.  The address change is to enhance security screening and is part of winding down operations at the current 12th Street headquarters.  (Order)

Continue Reading This Week at the FCC for Broadcasters: May 23, 2020 to May 29, 2020

With many people now entering their third month of complying with stay-at-home orders and social distancing and summer being right around the corner, it would be easy for broadcasters to look past their regulatory obligations to focus on the day when they can ramp up operations and profits.  As you can read below, however, June is a busy month with important obligations for many stations.

June brings the start of summer and the start of the license renewal cycle for television stations.  By June 1, full-power TV, Class A TV, TV translator, and LPTV stations in DC, Maryland, Virginia, and West Virginia and full-power AM and FM stations and LPFM and FM translators in Michigan and Ohio must file their license renewal applications. Those stations should already be close to completing their renewal applications, looking to file them on or before the June 1 deadline.  See our article here on the FCC’s announcement of the newly-revised procedures for filing TV license renewal applications.  On June 1 and again on June 16, stations filing renewals need to broadcast their post-filing announcements informing their audiences of the filing of the renewal application.
Continue Reading June 2020 Regulatory Dates for Broadcasters: License Renewals, EEO Reports, Broadcast Internet Consideration, and Comments on Significant Viewing, DTS, White Spaces, Regulatory Fees, and Video Description

Here are some of the FCC regulatory and legal actions of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC released the agenda for its June 9 Open Meeting announcing that it will consider an

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