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David Oxenford represents broadcasting and digital media companies in connection with regulatory, transactional and intellectual property issues. He has represented broadcasters and webcasters before the Federal Communications Commission, the Copyright Royalty Board, courts and other government agencies for over 30 years.

Back in January, we reminded broadcasters that state and local elections, even those held in “off-years” like 2021, still fall within the FCC’s political broadcasting rules.  Virtually all FCC rules, with the exception of reasonable access, apply to candidates for the local school board or town council just as they do for candidates for President – i.e., once you decide to accept an ad for a local candidate, then equal opportunities, lowest unit rates and online public file obligations all apply (see our article here for more information).  But in that article, we did not focus on political issue ads, which also raise their own FCC obligations, particularly with respect to the public file and sponsorship identification.

Unlike candidate ads, or ads dealing with federal issues, ads from non-candidate groups dealing with state and local elections and issues generally do not require price and schedule information to be uploaded to the online political file (unless those ads also mention a federal issue).  However, those ads do require that the public file contain an identification of the sponsor of the ad (address, phone number and contact person should be provided), plus a list of the ad sponsor’s executive officers or the members of its Board of Directors or similar governing board.  Under the FCC’s guidance from 2019 (see our article here), the FCC thinks that most of these organizations will have more than one governing board member, so if you are provided with the name of only one officer or board member, you are required to reach out to the sponsor or their representative and ask if there are others who should be listed.
Continue Reading Reminder: Issue Ads Require Public File Disclosures Even Outside Political Windows

Here are some of the regulatory developments from 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 National Association of Broadcasters this week announced that its CEO, Gordon Smith, will be stepping down at the end

The Commission’s staff this week issued a Public Notice reminding broadcasters that  the reimbursement program for those broadcasters displaced by the repacking of the television band after the incentive auction is coming to an end.  The FCC reminded broadcasters eligible for reimbursement (including certain FM stations and LPTV licensees – see our article here ) that deadlines to submit invoices for reimbursement will start in six months.  By those deadlines, all remaining invoices for reimbursement from the TV Broadcaster Relocation Fund must be submitted to qualify for reimbursement.

While different deadlines apply to different categories of broadcasters eligible for reimbursement, the Commission “strongly encouraged” all broadcasters to submit all remaining invoices and initiate close-out procedures as early as possible.  The FCC notes in the Public Notice that payments up to the total amount of each entity’s allocation are available upon processing of documents reflecting reasonably incurred costs.  However, the FCC will not be able to make a final allocation up to the full amount of costs incurred until all or virtually all invoices for incurred costs are submitted, or at such time as the FCC can reasonably extrapolate that the total amounts available in the Relocation Fund will be sufficient to meet all of the costs that have to be covered under that program.
Continue Reading Closing Out the Incentive Auction and TV Repack – FCC Reminds Broadcasters of End Dates for Submitting Invoices for Repacking Expenses

The broadcast trade press is full today with the news that NAB CEO Gordon Smith will be stepping back from that position at the end of the year, to be replaced by current COO (and former head of Government Relations) Curtis LeGeyt.  As many will remember, Smith took over the organization over a decade ago during a turbulent time for the industry.  At the time, TV stations faced increasing calls for other uses of the broadcast spectrum, and radio stations faced a possible performance royalty on their over-the-air broadcasts of sound recordings.  Since then, through all sorts of issues, there has been a general consensus in the industry that its leadership was in capable hands and meeting the issues as they arose.

But many issues remain for broadcasters – some of them ones that have never gone away completely.  The sound recording performance royalty for over-the-air broadcasting remains an issue, as do other music licensing issues calling for changes to the way that songwriters and composers are compensated, generally calling for higher payments or different compensation systems (see our articles here on the GMR controversy and here on the review of music industry antitrust consent decrees).  TV stations, while having gone through the incentive auction giving up significant parts of the TV broadcast spectrum, still face demands by wireless operators and others hungry for more spectrum to provide the many in-demand services necessary to meet the need for faster mobile services (see our articles here on C-Band redeployment and here on requests for a set aside of TV spectrum for unlicensed wireless users).  But competition from digital services may well be the biggest current issue facing broadcasters.
Continue Reading With a Change at the Top at the NAB as CEO Gordon Smith Plans His Departure – What are the Regulatory Issues That are Facing Broadcasters?

At the end of last week, the FCC released several orders clarifying the rules for upcoming windows where construction permits for new FM channels will be made available to parties interested in starting new radio stations, and a few AM construction permits will also be auctioned off.  The Public Notice released on Thursday for commercial operators set the important filing dates and procedural rules for the July auction of 136 FM permits, as well as 4 AM permits in the St. Louis area that are available after an AM licensee whose license was challenged at renewal time surrendered the licenses for these AM stations (see the list of available channels here).  The FCC also issued a Public Notice setting a freeze on changes to other FM stations during the initial filing window, to stabilize the FCC’s database for parties interested in these new FM channels.  Also on Thursday, the FCC issued a draft order on the number of applications for which applicants will be able to apply in an upcoming reserved-band FM (channels below 92 on the FM band) filing window for noncommercial educational stations (NCE stations).

First, let’s look at the noncommercial draft order that is expected to be adopted at the FCC’s regular monthly Open Meeting on April 22 unless changes are made between now and then.  That order, about which we wrote here, asked whether the FCC should adopt a limit of 10 applications in the upcoming window for new noncommercial FMs or for major changes in existing stations.  While there were parties that requested that the limit be higher (particularly in rural areas where the likely demand will not be as great), and other parties expressed a belief that the limit should be lower (particularly as there will be few open channels in larger markets), the draft order suggests that the FCC will stick with the limit of 10 applications.  The FCC’s intent in adopting an application cap is to reduce processing backlogs and limit the number of situations where applicants will file applications that are mutually exclusive (i.e. where both cannot be granted without creating prohibited interference), while still allowing applicants to provide new noncommercial services throughout the country.  According to the draft order, the 10-application limit used in previous NCE windows still makes sense as a happy medium between the competing desires for expanded or narrower limits.
Continue Reading FCC Clarifies Upcoming Windows for Construction Permits for New Commercial and Noncommercial FM Stations (and a Few AMs Too)

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

  • The Supreme Court this week announced its decision in Federal Communications Commission v. Prometheus Radio Project, the broadcast ownership

The United States Supreme Court yesterday released its decision upholding the FCC’s 2017 changes to its ownership rules in the FCC v Prometheus Radio Project case (see our summary here).  Those rules had been put on hold in 2019 by a decision by the Third Circuit Court of Appeals which held that the FCC had to develop a more detailed record on the impact of rule changes on minority ownership before making any such changes (see our summary of that decision here).  The Supreme Court did not issue a sweeping decision evaluating the competitive landscape for the broadcast industry, nor was it expected to.  Instead, the Court decision was a narrow legal one, looking at whether the decision of the FCC was entitled to traditional judicial deference to expert administrative agencies.

The Supreme Court was reviewing the legal question of whether the FCC’s 2017 review of diversity was adequately justified.  In 2017, the FCC determined that that no substantial impact on diversity was proven by any party who filed comments in the media ownership proceeding and, to the extent that there was an impact, the benefits of making broadcast companies stronger competitors in today’s media marketplace outweighed that impact.  The Third Circuit would have had the FCC conduct a sweeping historical analysis of the impact of past instances where the ownership rules were relaxed to see the impact on minority ownership so that the FCC could judge the likely impact of new changes to the rules.  The Supreme Court found that the FCC had no obligation to conduct its own studies into that issue and, based on the evidence before the FCC, its decision to relax the rules was not an arbitrary one.  Thus, it was entitled to the deference given to decisions of expert regulatory agencies (see our article here on the deference given to administrative agency decisions).  In essence, this was a narrow decision based on principles of administrative law to which all nine Justices, liberal and conservative, could agree.
Continue Reading Supreme Court Reinstates 2017 FCC Changes to Broadcast Ownership Rules Including the End to Newspaper-Broadcast Cross-Ownership Ban – But Radio Changes Yet to Come

Noncommercial radio stations ignoring their FCC public file obligations should be expecting to enter into consent decrees at license renewal time obligating them to take formal steps to monitor compliance and submit information to the FCC on any issues that arise.  In the last few weeks, we have seen at least four such decrees announced by the FCC (e.g. here, here, and here) imposing such obligations in exchange for the grant of pending renewal applications.  In each consent decree, the FCC notes the hardships imposed by the pandemic, presumably suggesting that, had these been more ordinary times, the licensees would have faced steeper penalties.

The consent decrees themselves resemble the consent decrees entered into between the FCC and commercial broadcasters who have not adequately maintained the documents required to be in the political file that is part of each commercial station’s public inspection file (see our articles here and here).  The four recent consent decrees with the noncommercial broadcasters require that they take the following actions:

  • They must appoint a Compliance Officer – a senior manager who will report to the “Chief Executive Officer” or equivalent of the licensee. The Compliance Officer is responsible for making sure that the licensee observes all public file obligations and all terms of the consent decree.
  • Within 30 days, the licensee must adopt a Compliance Plan that includes:
    • A written Compliance Manual explaining all requirements of the public file rules and is distributed to all employees who deal with any aspect of the rules.
    • A training program must be conducted for all employees on their obligations under the public file rules.
  • A year after the effective date of the Consent Decree, the licensee must submit a Compliance Report to the FCC certifying its compliance with the rules and how it complied.
  • If in any instance, the licensee does not comply with the rules, it must report any instance of noncompliance to the FCC within 10 days of its discovery.

As we noted here in the case of a commercial broadcaster who did not comply with the terms of a consent decree, noncompliance can bring big penalties.
Continue Reading Noncommercial Stations – Don’t Forget Your Public File Obligations – The FCC is Watching!

The Copyright Office this week granted a request from the Copyright Royalty Board for more time to decide on the royalties to be paid to SoundExchange for the public performance of sound recordings by webcasters, including broadcasters who simulcast their programming on the Internet.  As we wrote in July, the CRB decision on

Earlier this month, the FCC proposed changes to its Emergency Alert System (EAS) rules and initiated an inquiry as to whether EAS should be expanded to require streaming services to carry local emergency alerts (see our article here on those proposals).  These proposals have now been published in the Federal Register, starting the public