October is, on paper, another busy month of regulatory deadlines for broadcasters.  But there is again the looming possibility of a federal government shutdown beginning October 1 if Congress fails to fund the government for the coming year (or pass a “continuing resolution” to allow government agencies to function at their current levels).  While as of today there are reports of a plan to extend funding through December, until a continuing resolution is passed, the threat remains.  If a shutdown does occur, the FCC, the FTC, and the Copyright Office may have to pause their operations which may result in some of the regulatory deadlines discussed below being delayed.  However, in some cases agencies have leftover funding to keep them functioning for a few extra days.  Stay tuned to see if any of the dates below have to be rescheduled. [Update – 9/26/2024, 9:00 AM – a continuing resolution extending government funding through December 20 was passed late yesterday by both the House and the Senate averting, for now, the shutdown about which we were concerned. Thus, the deadlines listed below are in effect as scheduled]

Assuming this recurring issue is resolved, let’s look at some of the October dates and deadlines, starting with the routine dates of importance to broadcasters. October 1 is the deadline for radio and television station employment units in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Missouri, Northern Mariana Islands, Oregon, Puerto Rico, the U.S. Virgin Islands, and Washington with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ Online Public Inspection Files.  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 station’s OPIF, 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 October 2024 Regulatory Dates for Broadcasters – Quarterly Issues Programs Lists, Annual EEO Public File Reports, ETRS Form One, Comment Deadlines, 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.

  • The FCC announced that it has corrected its CORES database which had overstated the regulatory fees to be paid by many radio stations.  As we discussed on our Broadcast Law Blog here, this announcement lifts the FCC request from late last week asking radio stations to wait to pay their regulatory fees while the problem was being fixed.  With the resolution of the problem, regulatory fees remain due September 26. The FCC said that it will contact those broadcasters who paid an incorrect fee amount before the issue was discovered to “reconcile” the improper payments.
    • The FCC also released two Fact Sheets regarding regulatory fees.  The first Fact Sheet identifies general regulatory fee exemptions, including for nonprofit entities designated under Section 501 of the Internal Revenue Code, noncommercial educational FM and TV stations, and broadcast licensees whose total fee obligations are “de minimis,” meaning that they total $1,000 or less. The second Fact Sheet provides guidance on regulatory fee payments by entities regulated by the FCC’s Space Bureau, including for earth stations, noting that fees are due only for earth stations with transmit-only or transmit/receive antennas and not for earth stations with receive-only antennas. 
  • The House Committee on Energy and Commerce approved the House version of the AM Radio for Every Vehicle Act with a vote of 45-2.  As we discussed here, here, and here, the bill requires that automobile manufacturers keep AM radio in the car dashboard.  The bill, which closely matches the bill approved by the Senate last year, can now advance to the House floor for a vote.  Reconciled versions of this bill (ones with identical language) must be approved by the full House and full Senate before Congress adjourns at the end of the year.  The bill enjoys broad bipartisan support in both chambers, so it is possible that it will be passed alone or be made part of other legislation that will be approved before year’s end.
  • Numerous questions have been raised in recent weeks about the FCC being used to punish broadcasters for political reasons. At a House Oversight Committee hearing this week, FCC Commissioner Carr responded to Democratic lawmaker’s questions regarding his position on former President Trump’s call to revoke ABC’s FCC licenses for its handling of the presidential debate.  Carr stated that all decisions of his decisions at the FCC were consistent with federal law and the First Amendment.  FCC Chairwoman Rosenworcel also responded to Senators Markey and Wyden’s inquiry on the subject by stating that the FCC would not use its licensing authority to retaliate against a broadcaster over the content of its coverage.  Last week, FCC Commissioner Simington also responded to the Senate inquiry, stating that he was committed to making broadcast license determinations fairly and objectively in a manner consistent with the First Amendment, and suggesting that this same policy be applied to a Fox television station with a long-pending renewal application whose processing has been delayed by objections about the actions of Fox News’ cable operations. 
  • The FEC declined to adopt specific rules regulating the use of Artificial Intelligence in political advertising.  Instead, the FEC adopted a “technology neutral” case-by-case approach where it will look to see if the use of AI in any political ads violates the FEC’s existing rules prohibiting fraudulent misrepresentations by one federal candidate or committee of the speech or writing of another candidate or committee.  As we discussed here, there has been much debate at the FEC regarding whether the agency has the authority to regulate AI use in political ads, and this bipartisan decision represents an apparent compromise on the issue.
    • Comments were due September 19 in response to the FCC’s July Notice of Proposed Rulemaking proposing that broadcasters and cable operators be required to disclose AI use in political ads both on the air and in their Online Public Inspection Files.  Several broadcasters (see here, here, here, and here) and media industry groups (see here, here, here, and here) object to the FCC’s proposal for reasons including the disproportionate burden broadcasters and cable providers would bear, while leaving undisturbed a much larger concern, AI-generated deepfakes on social media.  These commenters also argue that the FCC lacks authority to regulate AI use in political ads and its proposals raise First Amendment issues.  In contrast, several public interest groups (see here, here, here, and here) support the FCC’s proposal, noting that deepfakes in political ads are a threat to the democratic electoral process, and urge the FCC to expand its proposals to include “cheapfakes” (false and misleading content not created using generative AI).
  • The FCC released a Small Entity Compliance Guide summarizing its new closed captioning accessibility rules for video programming, which it adopted in a July Report and Order.  As we discussed here and here, the new rules require device manufacturers and Multichannel Video Programming Distributors to make closed captioning display settings “readily accessible” to individuals who are deaf or hard of hearing.  The requirement applies to all U.S.-manufactured devices using a picture screen that receives or plays back video programming simultaneously with sound (such as televisions, smartphones, tablets, and computers).  MVPDs must comply with the requirement if they provide their customers with covered devices to use their services.  While the Order became effective on September 16, MVPDs do not have to comply with the new requirements until the later of August 17, 2026 (two years after the Order’s publication) or after the Office and Management Budget finishes its review of the new rules.

On our Broadcast Law Blog, we discussed how the recent use of the rural radio policy by the FCC’s Media Bureau to block a move of a silent AM radio station to a new city of license raises the question of whether prohibiting radio station moves from rural to urban areas remains in the public interest given other programming options now available in rural markets. 

Our recent posts have been obsessed with the FCC’s regulatory fees and the issues with the CORES fee filing system miscomputing the fees for many radio stations (an issue that seemingly has now been resolved so that payments can be made by the September 26 deadline).  In doing so, we have minimized our coverage of some of the other interesting decisions and regulatory activity from the FCC and other agencies that affect broadcasters.  One of those actions involved the proposal of a now-silent AM station to move from the small Alabama community of  Bay Minette, Alabama to another small Alabama community, Spanish Fork.  The Commission issued a letter saying that they could not grant the application as the proposal would move the station from a rural area to a community within an urbanized area – the Fairhope-Daphne urbanized area.  The FCC found that this move would violate the FCC’s rural radio policy unless a showing could be made that there were public interest reasons to rebut the application of the policy in this case.  The letter gave the applicant 30 days to attempt to rebut the presumption against the move.   

The rural radio policy was adopted more than a decade ago to, in theory, preserve program diversity in rural areas by restricting the move of radio stations into more urbanized areas through community of license changes.  The policy restricts rural stations from changing their city of license to a location from which the station could place a principal city contour over 50% of any urbanized area (see our articles here and here for more details on this policy).  As the proposed move in the Alabama case would allow the AM to cover more than 50% of the Fairhope-Daphne urbanized area with its proposed new 2 mv/m contour, the change would be prohibited unless a special showing can be made overcoming the presumption against such moves, even though the move would allow the AM station to cover over 250,000 more people than it currently does.  The Commission notes that it also disfavors removing a second local service (a service licensed to a particular community) from a community of over 7,500 people.  As Bay Minette has over 7,500 people, and the town has only one other existing radio station, the move of the AM station would also run afoul of this policy.  These presumptions are very difficult, if not impossible, to overcome absent some showing that the FCC’s technical analysis is incorrect. 

Continue Reading FCC Applies Rural Radio Policy to Block Move of Silent AM Station to New City of License – Do We Still Need a Rural Radio Policy? 

The FCC yesterday released a Public Notice announcing that its CORES system, through which regulatory fees are submitted, has been updated and the incorrect regulatory fee amounts for radio stations have been corrected.  As we wrote last week, the FCC asked that radio broadcasters suspend their fee filings when it became apparent that many radio fees had been miscomputed and CORES reported those fees to be much higher than they were supposed to be.  The Public Notice says that problems that caused the misstated fees have been corrected, and that radio operators can now submit their fees. 

The Public Notice says that fees are still due by September 26 at 11:59 PM EDT.  No extension of time appears to have been granted.  The Public Notice also says that the FCC will “reconcile” with radio broadcasters who paid an incorrect amount before the issue with CORES was discovered -seemingly indicating that refunds will be provided to those who paid more than was due.  The FCC says that they will be reaching out to those broadcasters who paid incorrect amounts before the CORES problem was discovered. 

Continue Reading FCC Announces Filing of Radio Regulatory Fees is Back On – Due Date Still September 26

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.

  • The FCC announced that annual regulatory fees must be paid through its CORES database by 11:59 p.m., Eastern Time, on September 26.  The FCC also issued a Public Notice explaining the procedures for making payments, including limits on credit card payments.  For broadcasters, the FCC’s Media Bureau released a Fact Sheet explaining what is owed by commercial broadcasters.  The FCC released another Fact Sheet explaining the procedures for seeking a waiver or deferral of the fees.  Paying regulatory fees late can bring substantial penalties (25% penalty plus interest), so broadcasters should immediately review these documents and begin to prepare their fees so that they can be timely submitted.  However, incorrect FCC calculations caused many stations’ fees to be stated in the FCC CORES system through which the fees are to be submitted, often stating the fees as being substantially higher than they were supposed to be (fees were to have decreased for most radio stations from the amounts paid last year).  The FCC is determining how to correct its CORES fee filing system. In the meantime, the FCC has posted a notification in the CORES database instructing AM and FM broadcasters not to make any fee payments until it has resolved the issue – which it expects to occur early next week.    See our Broadcast Law Blog articles here and here regarding broadcasters’ regulatory fee obligations, including our discussion of the glitches resulting in the FCC databases providing incorrect information about how much radio stations owe. 
  • The FEC announced that, at its next meeting on September 19, it will vote on a Notification of Disposition circulated by four FEC Commissioners proposing that the FEC not open a rulemaking proceeding to adopt specific rules regulating the use of AI in political ads.  Instead, the draft Notification would adopt a policy of deciding on a case-by-case basis whether any AI use in political ads violates the FEC’s existing rules prohibiting fraudulent misrepresentations by one federal candidate or committee of the speech or writing of another candidate or committee.  As we discuss in our article here, there has been much debate at the FEC regarding whether the agency has the authority to regulate AI use in political ads, and this item appears to represent a compromise on the issue among a majority of the FEC Commissioners.
  • The NAB and the Society of Broadcast Engineers released a self-inspection checklist for AM stations.  This follows the NAB and SBE’s release of self-inspection checklists for FM and TV stations, which were announced at the NAB Show in April.  As the FCC discontinued preparing self-inspection guides in 2010, these new checklists provide broadcast stations a comprehensive outline for reviewing their compliance with the FCC’s rules.  NAB members can access the checklists here, and SBE members can access the checklists here. 
  • The FCC announced that October 11 is the deadline for all “U.S.-based foreign media outlets” to register with the FCC.  These outlets are companies which are backed by a foreign government or political party that provide video programming to MVPDs.  These entities must notify the FCC of their ownership structure and their relationship with the foreign government or political party, including whether the outlet receives funding from that government or political party.  The FCC is required to report to Congress every six months on the operations of U.S.-based foreign media outlets,  The FCC will submit its next report by November 9.  
  • A Field Office of the FCC’s Enforcement Bureau issued a Notice of Violation against a Pennsylvania LPFM station after FCC agents found that the station was operating from an unauthorized site, over 5 miles from its licensed site, and almost a mile from a site authorized in a construction permit.  The station now has 20 days to respond to the Notice by detailing the steps it will take to correct the violation and prevent its recurrence.  The FCC will decide what action to take against the licensee after the response is filed. 
  • The Media Bureau took several actions against broadcasters for violations of FCC rules:
    • The Bureau entered into a Consent Decree with a group Missouri, Illinois, and Virginia radio stations to conclude its investigation of unauthorized transfers of control resulting from several changes in the stations’ corporate ownership occurring since 2009, including the buy-out of certain shareholders, the transfer of ownership interests between shareholders, and the conversion of certain companies owning shares from LLCs to corporations .  The Consent Decree requires that the stations pay a $15,000 penalty and enter into a compliance plan to ensure that similar violations do not occur in the future.
    • The Bureau fined an Idaho TV translator $1,000 for the late filing of a license application informing the Commission that it had completed construction of facilities authorized by a construction permit granting a change in channels.  The license application was filed over two years after the construction was complete (such applications are due upon the completion of construction).  The fine also cited the station’s operation without FCC authorization after the construction permit expired. The Bureau reinstated the translator’s construction permit and accepted its license application, finding that the loss of the translator would deprive viewers in the rural area it serves of access to programming of the translator’s network affiliated primary station.
    • The Bureau entered into Consent Decrees with a Wyoming AM station and an Idaho FM station for failing to comply with their Online Public Inspection File obligations, requiring the stations to enter into compliance plans to prevent future OPIF violations.

As we noted on our Blog earlier this week, there were reported problems with the system for filing annual regulatory fees.  Fee amounts in the FCC’s CORES system, where the fee payments are made, were not corresponding in some cases to the FCC’s look-up system for checking what a station’s regulatory fees were supposed to be.  In addition, many radio stations were reporting substantial increases in their fees, when those fees were supposed to be decreasing.  We had initially attributed the increase in fees to a change in the census data used, but it appears that this benign excuse was not accurate – instead the problem appears to have been with the FCC’s CORES database itself where the contours of many stations were computed incorrectly.  This improper calculation resulted, in most cases, adding more population to a station’s predicted service area and pushing the station into a higher fee tier with greater fees.  The FCC now appears to have admitted the issue – and it has asked broadcasters to hold off on paying their fees until the filing system is corrected.

It may be that Friday the Thirteenth was really bad luck for the FCC, as the Commission recently posted the following note in its CORES filing system:

NOTICE: The FCC is continuing to do its due diligence to reevaluate the population count information for AM and FM broadcasters for FY 2024 regulatory fees.  We expect to have this situation resolved early next week.  In the meantime, we request that AM and FM broadcasters do not make any payments in CORES.  Thank you for your patience.      

We expect that the FCC will be making every effort to quickly resolve this issue so that the fees can still be paid this month before the October 1 start of the new fiscal year.  And, thus far, the FCC has not extended the September 26 filing deadline for the fee payment.  Stay alert for more information from the FCC about the correction of this problem so that you can pay your fees quickly once the issues are resolved. 

Also be sure to check carefully all other information in the FCC filing system.  We are told that, in some cases, FM translators were listed as full-power stations, and that stations were listed as being exempt from fees that really were not.  There may well be other issues that arise as well.  Look carefully at your fees, make sure that all of your stations are included before you make your payment, and question anything that does not look right. 

After postponing consideration of a proposal (which we wrote about here) from the Republican Commissioners at the Federal Election Commission to reject calls for a rulemaking to look at whether to require that there be labeling of political ads generated by artificial intelligence that falsely depicts a candidate, the AI item is back on the FEC’s agenda for its September 19 meeting.  This time, there is a big difference.  On the agenda for consideration is not only the proposal from the Republican Commissioners to reject the proposed rulemaking out of hand until Congress provides more guidance on the subject, but also a proposal that appears to have the backing of the three Democrats and at least one of the Commissioners who had also signed on to the Republican proposal.  That apparent compromise proposal, while also rejecting the proposal to open a new rulemaking on the subject, would decide that, under existing FEC rules and legislative authority, there would be instances where the use of AI to depict a candidate could already be prohibited, and thus complaints about the use of AI in political ads should be evaluated on a case-by-case basis under the FEC’s current policies. 

This new draft decision looks at the FEC’s current laws and rules that prohibit a candidate or their agent from purporting to speak, write, or act for another candidate or political party on a matter that is damaging to the other candidate or party.  Those rules also  prohibit any person from falsely representing that they are speaking, writing, or acting on behalf of a federal candidate or a political party for the purpose of soliciting contributions.  This compromise proposal looks at these current prohibitions and notes that they do not specify the technology that could be used to falsely speak or act on behalf of another candidate or party – and thus the use of AI in a way that would violate these existing rules could already be sanctioned by the agency.  Thus, this proposal concludes, no additional proceeding would be needed – instead cases would be decided based on their facts as they arise.

As explained in this new proposal:

[I]t does not matter whether a regulated person uses any particular form of technology, including AI, in order to “fraudulently misrepresent himself or any committee or organization under his control as speaking or writing or otherwise acting for or on behalf” of another “candidate or political party or employee or agent” or to engage in the “[f]raudulent solicitation of funds” by “misrepresent[ing] the person as speaking, writing, or otherwise acting for or on behalf of any candidate or political party or employee or agent thereof for the purpose of soliciting contributions or donations.” 52 U.S.C. 30124(a)-(b).  The legal question is whether the actor fraudulently holds himself or herself out as “acting for or on behalf of any other candidate or political party or employee or agent thereof.” Id. This fraud may be accomplished using AI-assisted media, forged signatures, physically altered documents or media, false statements, or any other means. The statute, and the Commission’s implementing regulation, is technology neutral. 

We’ll be watching as this proposal plays out at the FEC meeting next week, and we will be looking for indications as to how any decision might affect the use of AI in ads during this hotly contested election season. 

Update – 9/13/2024 – We are hearing that fee increases being reported by many radio stations may not have resulted, as we speculate below, on the use of new census data, but instead from incorrect FCC calculations. If your fees went up unexpectedly, you may want to investigate further to see if the population covered by your station was properly computed.

Further Update – 9/13/2024, 5:30 PM EDT – The FCC has acknowledged issues with its computation of fees for radio stations. As we note in a new article that we just posted, the FCC has asked that broadcasters wait to submit their fees until the issue has been resolved. The FCC has not yet extended the due date for the fees, and we expect that the FCC will work quickly to update their CORES fee filing system to correct the fee amounts.

As we noted this past weekend in our weekly update of regulatory actions, the FCC last Friday released its Order setting the regulatory fees due from broadcasters and other FCC regulated entities – fees that the FCC is required to collect each year the start of the federal government’s new fiscal year which begins in October.  This week, the FCC released a series of public notices detailing filing procedures.  First was a Public Notice setting the deadline for payment of the fees as 11:59 PM Eastern Time on September 26.  That Notice also stated that fees must be paid through the FCC’s CORES database, which is now open for such payments. That initial Notice promised a series of other public notices which followed, each addressing particular aspects of the fee filing process.  However, even with all the notices about procedures, there already have been issues reported and questions about some of the payments and processes.

The follow-up public notices included a Fact Sheet – “What You Owe” – from the Media Bureau setting out specific fee filing procedures for broadcasters.  That Fact Sheet, in addition to reiterating the requirement that fees be paid through the CORES system, notes that there is also a Media Services webpage from which broadcasters can view their fee obligations and get other information about the fee filing process.  It has been reported that this webpage has, in some cases, been providing information different than that contained in the CORES system – including different information about the amounts of the fees that are owed for specific stations.  We understand that the FCC is looking at these discrepancies and have been told that the CORES data should be the correct information.  But if this issue comes up for one of your stations, we suggest an inquiry to confirm which payment amount is correct.

Continue Reading FCC Regulatory Fees Due September 26  – FCC CORES Database Available for Payment, Some Filing Glitches Reported

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

  • The FCC released its Second Report and Order setting the annual regulatory fees that broadcasters must pay for 2024.  As the result of reallocating employee costs across regulated industries, the FCC reduced TV station fees by approximately 15.4% from last year, and it reduced fees for radio stations by a lesser amount.  The FCC also decided to end its presumption that silent stations are entitled to fee waivers without providing evidence of financial hardship and, beginning in 2025, all broadcasters will be required to submit financial documentation to demonstrate financial hardship regardless of their operating status.  We expect that the FCC will issue a Public Notice announcing the dates for the payment window early next week and that the Media Bureau will release a fee filing guide for the broadcast services. 
  • The FCC announced that broadcasters do not need to file the FCC Form 395-B by September 30 this year.  The form, which the FCC reinstated in a February Report and Order, requires broadcasters to annually classify their employees by job categories and in each category report their employees’ race, ethnicity, and gender.  The FCC explained the delay by saying that the Media Bureau had yet to release its Public Notice detailing the form’s filing procedures.  It did not provide a new filing deadline, but noted that broadcasters will have “ample time” to collect the information reported in the form before any new deadline.  See our discussion on our Broadcast Law Blog for more on the FCC’s delay in implementing this reporting requirement.
  • The FCC imposed fines on the licensees of over 100 TV stations for exceeding the limits on commercialization in programming directed to children ages 12 or under.  The FCC found that these stations aired “program length commercials” by running ads for Hot Wheels toys during a Hot Wheels program, which under FCC precedent makes the entire program into a commercial.  The fines ranged from $20,000 for single station licensees up to $2,652,000 for multiple station licensees – for a total of $3,334,000 in fines.  FCC Commissioners Simington and Carr issued dissenting statements arguing that the FCC’s authority to issue fines was unclear following the U.S. Supreme Court’s recent reversal of an SEC imposed fine which the Court found violated the Seventh Amendment’s right to a jury trial.  The FCC majority determined that the Supreme Court case was not applicable, as the case only required a jury trial where an administrative agency’s fine was imposed as a penalty for activity that would give rise to penalties under common law – in the SEC case the penalty was imposed for fraud.  The FCC majority noted that the fines here were for violations of specific FCC rules with no common law analog and, moreover, before any FCC penalty must be paid, the broadcaster has a right to a trial in federal court to determine if the fine was warranted.  Commissioner Simington nonetheless stated that he will object to future monetary fines until the FCC conducts a proceeding to determine how the Supreme Court decision affects its authority to issue such fines.   
  • The FCC released a draft Report and Order on FM digital subchannels to be considered at its September 26 regular monthly open meeting. If adopted, the Order would allow digital FM radio stations to operate at different power levels on their upper and lower digital sidebands, establish higher maximum digital sideband power levels for many stations, and clarify that digital FM operation notifications must be made using the FCC Form 335-FM. 
  • The FCC announced that September 8, 2025 is the effective date of the FCC’s August Report and Order creating a new Emergency Alert Service event code for persons over the age of 17 who are missing or abducted from states, territories, or tribal communities (known as Ashanti Alerts).  The FCC set this effective date to provide EAS Participants with enough time to update their EAS systems to include the code.
  • The FCC announced that its submitted its new foreign-government sponsorship identification rules to the OMB for review under the Paperwork Reduction Act.  As we discussed here, in a June Second Report and Order, the FCC adopted standardized procedures to verify whether buyers of broadcast program time are representatives of foreign governments, and determined that the verification requirement applied not just to buyers of program time, but also to buyers of spot time that did not promote commercial products or services – making issue ads and paid PSAs subject to the verification requirements.  The OMB must review the new verification requirements before they become effective, and there are other legal challenges to the expansion of the obligation to these noncommercial spots.  Comments in response to the OMB’s review for the new requirements are due October 4.
  • The DEA announced that it will hold a hearing on December 2 on its proposal made in its May Notice of Proposed Rulemaking to reclassify of marijuana under the Controlled Substances Act from Schedule I (prohibited drugs with no medical benefits and a high potential for abuse) to Schedule III (drugs with some medical benefit with lower risks).  Anyone interested in participating in the hearing must provide notice by September 30.  As we discussed on our Blog here, rescheduling does not remove all legal risks from advertising marijuana on broadcast stations in states where its use has been “legalized” as Schedule III drugs still need federal government approval before they can be marketed to the public, and restrictions on their marketing can be imposed. 
  • The Federal Election Commission pushed to a later meeting the consideration of its disposition of a request asking the FEC to start a proceeding to limit the use of Artificial Intelligence in political advertising.  The disposition, written by Republican Commissioners and proposing to reject the call to start a proceeding until Congress provided more guidance (see our blog article here), had been on the agenda for the FEC’s August 29 meeting.
  • The Media Bureau announced the pleading deadlines for Paramount’s transfer applications proposing the company’s merger with Skydance Media, LLC, which will result in billionaire Larry Ellison holding a controlling stake in the company.  Paramount holds licenses, through various direct and indirect subsidiaries, for 28 TV stations, in addition to a Class A TV and two LPTV stations.  Petitions to deny the applications are due October 7, oppositions to any petitions to deny filed are due October 22, and replies to any oppositions filed are due November 1.
  • The Media Bureau requested that an Alabama AM station amend its application to change its community of license from Bay Minette, Alabama, to Spanish Fork, Alabama, to demonstrate how the change was in the public interest since it resulted in the station moving from a smaller, rural community with only two radio stations to a larger, urbanized area with numerous radio stations – which conflicted with the FCC’s policy disfavoring such moves.  See our discussion here regarding the difficulty in moving a radio station from a rural to an urban area due to the FCC’s presumption that such moves are not in the public interest.
  • The Media Bureau also granted two proposed changes to the TV Table of Allotments requested by petitioner TV stations.  The first Order reverses the substitution of channel 27 for channel 12 at Augusta, Georgia due to petitioner’s inability to timely construct its channel 27 facilities.  The second Order grants the substitution of channel 23 for channel 7 at Boise, Idaho due to the poor reception on VHF channel 7.
  • The Media Bureau also took several actions against broadcasters for violations of FCC rules:
    • The Bureau entered into a Consent Decree with the licensee of a group of Arkansas and Missouri radio stations requiring payment of an $8,000 fine to resolve the Bureau’s investigation of the licensee’s failure to seek prior FCC consent to the transfer of the licensee’s stock held by two successive trusts in 2020 and 2021 and to changes in the trustee of the second trust.  The Bureau noted that the licensee did not file transfer applications reflecting these changes until April 2024. 
    • The Bureau entered into a Consent Decree with an Iowa FM station for failing to comply with its Online Public Inspection File requirements during its last license period, requiring the station to implement a compliance plan to prevent future OPIF violations.
    • The Bureau proposed a $3,000 fine against a Texas FM station for filing its license renewal application almost four months late, noting that the station provided no explanation for the delay in its application.
    • The Bureau proposed an $1,000 fine against a Nevada TV translator for filing its license application over two years after its displacement construction permit had expired.  The Bureau, however, granted the translator’s request to reinstate its construction permit because it was filed due to the translator’s involuntary displacement from its original channel, and absent reinstatement, the translator’s community of license would be deprived of a Reno full power TV station’s programming rebroadcast by the translator.

On our Broadcast Law Blog, we highlighted the regulatory dates of importance to broadcasters in September.  We also looked at legal issues that broadcasters using AI to develop programming should be considering.  Finally, with the opening on September 6 of the political window for lowest unit rates for the November general election, we reviewed many of the issues faced by broadcasters in determining these rates for candidate advertising.

The lowest unit rate window for the November 5 general election opens today, September 6.  With that date in mind, we thought that it was a good idea to review the basic FCC rules and policies affecting those charges. In this election, with the Presidency and control in both houses of Congress at stake as well as many state offices, advertising on broadcast stations, particularly those in some battleground states, is already in great demand by both candidates and issue advertisers.  Your station needs to be ready to comply with the FCC’s political advertising rules and the rates that apply to each of these groups. Lowest unit charges (or “Lowest Unit Rates”) guarantee that, in the 45 days before a primary and the 60 days before a general election, legally qualified candidates get the lowest rate for a spot that is then running on the station within any class of advertising time running in any particular daypart. Candidates also get the benefit of all volume discounts without having to buy in volume – i.e., the candidate gets the same rate for buying one spot as your most favored advertiser gets for buying hundreds of spots of the same class. But there are many other aspects to the lowest unit rates, and stations need to be sure that they get these rules right.

It is a common misperception that a station has one lowest unit rate, when in fact almost every station will have several, if not dozens, of lowest unit rates – one lowest unit rate for each class of time in each daypart. Even at the smallest radio station, there are probably several different classes and dayparts for advertising spots. For instance, there may be different rates for spots running in morning drive than for spots that run in the middle of the night. Each time period for which the station charges a differing rate is a class of time that has its own lowest unit rate. On television stations, there are often classes based not only on daypart, but on the individual program. Similarly, if a station sells different rotations, each rotation that offers substantially different benefits to an advertiser will be its own class of time with its own lowest unit rates (e.g. a 6 AM to Noon rotation is a different class than a 6 AM to 6 PM rotation, and both are a different class from a 24-hour rotator – and each can have its own lowest unit rate). So, in the same time period (e.g. morning drive on a radio station), there may be spots running in that period that have multiple lowest unit rates (e.g.  spots may end up running in that period that were sold just for morning drive, as well as cheaper spots that were sold as part of a 6 AM to 6 PM rotation that just happened to fall within the morning drive period).  Candidates can buy into any of those classes of time, and they take the same chances as does a commercial advertiser as to where their spots will land (e.g. if a candidate buys a 6 AM to 6 PM rotator, and that rotator ends up in morning drive, another candidate may buy that same rotator the next week and end up at 4 PM. That second candidate can only guarantee that they will end up in morning drive by buying a spot guaranteed to run in that time period).

Continue Reading Window for Lowest Unit Rates for Candidate Advertising for the November Election Opens Today, September 6 – Are You Ready?