The FCC last week issued a Declaratory Ruling approving the acquisition by a company owned by a Canadian citizen of 100% of the ownership interest in a company that owns an AM radio stations in Seattle.  Until about a decade ago, a 25% limit in the parent company of an FCC broadcast licensee would have been the limit allowed by the FCC under Section imposed on foreign ownership of a US broadcast station by Section 310(b)(4) of the Communications Act.  Section 310(b) limits non-US citizens from holding more than 20% of a broadcast licensee, and foreign owners cannot hold more than 25% of a parent company “if the Commission finds that the public interest will be served by the refusal or revocation of such license.” About a decade ago, as we wrote here, the FCC decided to permit, on a case by case basis, greater foreign ownership of US broadcast station owners. This has resulted in past cases where 100% foreign ownership of US broadcast stations have been permitted (see our articles here and here) and even many large US broadcast companies have been permitted to have foreign ownership in excess of the 25% allowed by Section 310(b)(4).  The processing of these applications is, of course, not as straightforward as the normal acquisition of a station by US citizens.

Any foreign owner seeking to acquire a substantial stake in a US broadcast station must be reviewed by various Executive Branch agencies to ensure that there are no perceived security risks raised by the proposed acquisition. The FCC has to do its own review as well.  The approval process for the first acquisition by a foreign owner often takes a full year or more (the deal approved last week was filed with the FCC almost exactly a year ago), so don’t expect to complete an acquisition by a foreign owner on the same timeline as that for the completion of a deal by US citizens.  But, once a foreign owner is approved by the FCC, as long as the ownership of that acquiring company stays the same, it can in most cases acquire additional US stations without going through this extended review process. 

Continue Reading FCC Allows 100% Ownership of US Radio Station by Canadian Owner – Once Again Demonstrating Openness to Foreign Investment in the US Broadcast Industry

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.

  • Through a Federal Register publication, the FCC announced comment dates on its Notice of Proposed Rulemaking proposing that broadcasters and cable operators be required to disclose, both on the air and in their online public inspection files, the use of AI-generated content in political advertisements.  Comments will be by due September 4 and reply comments will be due by September 19.  The Office of FCC Chairwoman Rosenworcel also released a Fact Sheet that seemed to have been issued to address criticism about the proposals advanced in the NPRM.  The Fact Sheet contends, among other things, that the disclosure requirement was proposed because the majority of Americans are concerned about misleading AI-generated content.  The Fact Sheet also notes that the FCC did not propose banning the use of AI-generated content in political advertisements, only requiring that it be labeled.  As for the proposal’s impact on the upcoming November election, the Fact Sheet says that the FCC has not adopted a timeline for issuing final rules in the proceeding, as the NPRM is only seeking public feedback on its proposals before enacting any new rules.  See our article on our Broadcast Law Blog discussing some of the issues that should be addressed in public comments on how the FCC’s proposed AI disclosure requirement will impact broadcasters, and on the likely timing of the proceeding. 
  • The FCC released a Public Notice announcing that Class A, LPTV, and TV translator stations may begin preparing channel change applications in the FCC’s LMS database.  These applications cannot be filed until August 20 when the current filing freeze on major change applications for such stations will end (see the FCC Public Notice announcing the lifting of the freeze for details on the processing of channel change applications).  The FCC also reminded TV stations that the 2020 U.S. Census Bureau data has been incorporated into its TVStudy software as of August 1, and all TV applications filed on or after August 1 – including these channel change applications – must be based on the updated data. 
  • The FCC announced that comments and reply comments are due September 3 and September 16, respectively, in response to last month’s Further Notice of Proposed Rulemaking proposing to exempt video programmers from the closed captioning registration and certification requirements if they provide programming to public, educational, and governmental access channels (PEG channels) or to nonbroadcast networks for distribution by a cable operator or other MVPD if the PEG channels or the network are exempt from or have certified compliance with, the captioning rules.
  • The FCC imposed a $2,316,034 fine against a pirate radio broadcaster operating in the Bronx, New York, which was the maximum penalty permitted under the 2020 PIRATE Act before being adjusted for inflation this past January (see our discussion here).  The FCC found that the individual operated the pirate station for at least 98 days (based upon FCC monitoring and information on the pirate’s website), and evidence indicated that the pirate had actually been operating since 2018.  The FCC issued a Notice of Proposed Liability proposing this fine in 2023, and the pirate did not contest it.  Now, the pirate radio operator has 30 days to pay the fine or the FCC may refer the case to the U.S. Department of Justice.  The FCC itself cannot sue to collect fines or take actions against individuals who ignore the penalties issued in cases like this.  Instead, it must rely on the DOJ to enforce the penalties in Court.
  • Comments were due July 29 in response to the FCC’s June NPRM proposing to extend Online Public Inspection File obligations to certain LPTV stations and to make other changes to its FCC rules, including proposal imposing limits on LPTV station site moves and requiring community of license designations (see our discussions of the NPRM here and here).  Comments were received from many parties addressing many issues.  These include comments from the  National Association of Broadcasters, the LPTV Broadcasters Association, the National Religious Broadcasters, and other commenters (see here, here, here, and here) opposing expanding OPIF requirements to LPTV stations, arguing that there is no evidence that the OPIF encourages public participation in FCC broadcast proceedings and that imposing the obligation on LPTV stations would create unnecessary burdens.  The Advanced Television Broadcasting Alliance and Gray Media state that only top-4 network-affiliated LPTV stations should be subject to the OPIF requirements.  The LPTVBA, the NRB, and other commenters (see here and here) state that the proposed 30-mile limit on site moves by LPTV stations is too restrictive, and also argue that there was no evidence supporting the need for LPTV minimum operating requirements.  The NAB states that LPTV stations licensed to educational institutions should not have to operate on weekends.  The NAB along with Gray Media supported requiring LPTV and TV translator stations to specify a community of license within the station’s service contour to avoid viewer confusion.  The LPTVBA agrees, but states that stations should not have to serve a community for twelve months before changing to a new community of license, as proposed by the NPRM. 
  • The FCC’s Media Bureau issued a Declaratory Ruling allowing BAAZ Broadcasting Corporation to exceed the 25% limit on foreign investment established in section 310(b)(4) of the Communications Act.  BAAZ, a Seattle AM station licensee, received approval for a foreign investor to hold up to 100% equity and/or voting interests in the company that is proposed to be the new parent of BAAZ.  The Declaratory Ruling was necessary because the sole shareholder of BAAZ’s new parent company is a Canadian citizen.  We wrote more about the FCC’s process of approving foreign ownership of US broadcast stations on our blog here and here.  As in this case, these applications require approval from many government agencies, and the review can take time (this application having been submitted in almost a year ago, on August 17, 2023).
  • The Media Bureau also released an NPRM proposing the substitution of Channel 11, at Lubbock, Texas for Channel 35, and the substitution of Channel 35, at Lubbock, Texas for Channel 36.  Two Lubbock TV stations propose to “swap” their channels to allow the station operating on Channel 35 to replace its failing equipment with that of the other station operating on Channel 11.  The stations also note that this swap would not result in a loss of service to viewers. 
  • The Media Bureau dealt with fines for two groups of LPTV and TV translator stations for filing their license renewal applications late.  The Bureau proposed a $3000 fine against the licensee of a California and an Oregon LPTV station ($1,500 per station) for filing their renewal applications over one month late; a fine reduced from the $6,000 base amount ($3,000 per station) due to LPTV stations’ secondary service status.  The Bureau also cancelled a $6,000 fine imposed on four Colorado TV translator stations for filing the stations’ renewal applications over one month late after their licensee submitted financial documentation demonstrating an inability to pay.
  • The Media Bureau affirmed its dismissal of 105 LPFM construction permit applications based on the applicant failure to demonstrate its eligibility to operate an LPFM station.  The applicant planned a public safety radio service, which is allowed under LPFM rules if operated by state or local governments or “non-governmental entities” that have public safety jurisdiction in an area.  The FCC had dismissed these applications as the applicant did not have any jurisdiction over public safety matters and had not requested a waiver of the FCC rules to permit its applications to be granted despite not meeting the letter of the rules.  In its reinstatement request, it asked to now be allowed to request that waiver arguing that it was not informed of the waiver requirement during discussions with FCC staff prior to filing the applications, and also arguing that it had informal authority from several agencies with jurisdiction over public safety matters to provide this service.  The Bureau rejected the applicant’s request for several reasons including that any waiver request must be contained in an initial LPFM application, the FCC staff in fact had not provided the guidance that was claimed by the applicant (and, even if it had, applicants cannot legally rely on such informal staff advice), and the rules were clear that the applicant needed actual authority over public safety matters to qualify as an LPFM licensee.

On our Broadcast Law Blog, we highlighted the regulatory dates and deadlines for broadcasters in August and early September.

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.

  • The FCC released a Notice of Proposed Rulemaking proposing that broadcasters and cable operators make on-air disclosures regarding the use of AI-generated content in political advertisements, and upload notices to their Online Public Inspection Files regarding such disclosures.  Comments and reply comments on the NPRM will be due 30 and 45 days, respectively, after the NPRM’s publication in the Federal Register.  Since the NPRM’s comment cycle will run through at least September, it is unlikely that any new disclosure requirement or new OPIF reporting obligation will be effective before the November election. We plan to provide more details about this NPRM on our Broadcast Law Blog this coming week. 
  • Contrary to earlier reports, the August 15 effective date for broadcasters’ expanded foreign government sponsorship certifications apparently does not apply to issue ads and paid PSAs.  As we discussed here, in a June Second Report and Order, the FCC expanded broadcasters’ existing obligations to verify whether lessees of program time are foreign governments or their agents (who have enhanced sponsorship identification requirements) to include an additional verification requirement for sponsors of issue ads and paid PSAs (but not sponsors of ads promoting a commercial product or service or ads from a political candidate or their authorized campaign committee).  It now appears that the FCC considers the rule’s expansion to issue ads and paid PSAs to require approval from the Office of Management and Budget before becoming effective.  OMB approval will take at least several months, so it appears that stations do not need to implement this verification obligation just as we are entering into the heart of election season.  For more information on the delay in the implementation of this requirement, see our article posted Friday on our Broadcast Law Blog.
  • A US District Court in Pennsylvania issued an order refusing to stay the effect of the FTC adoption of a rule banning non-compete agreements for all employees in the United States.  The Court found that the FTC’s order was not likely to be overturned after the Court’s final review, a decision contrary to that reached by a US District Court in Texas (in one of several cases challenging the FTC’s Non-Compete Rule) which did grant a preliminary injunction to the parties appearing before that Court.  The Texas Court promised to decide on whether to institute a wider ban by the end of August, before the September 4 effective date of the FTC rule.  Expect further litigation to reconcile these conflicting decisions.
  • The FCC’s Enforcement Bureau issued a Notice of Illegal Pirate Radio Broadcasting to an Oregon landowner for allegedly allowing a pirate to broadcast from its property.  The Bureau warned the landowner that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowner continues to permit pirate radio broadcasting from its property after receiving this notice. 
  • The FCC’s Media Bureau granted the substitution of UHF channel 33 for VHF channel 13 at Jacksonville, Florida.  The Bureau also found that the change would not result in the loss of the NBC service provided by this station as NBC service is provided in the loss area created by the channel change (which proposes a reduction in the number of viewers in the station’s service area) by other stations affiliated with the network.  This permission to change from a VHF to UHF channel serves as another example of the FCC’s recognition of the superiority of UHF channels for the transmission of digital TV signals.
  • The Media Bureau proposed two $6,500 fines against Tennessee and Mississippi FM translator operators for failing to timely file their license renewal applications and operating without authorization after their licenses had expired.  The Tennessee translator’s renewal was filed in February 2024 – almost four years after its April 1, 2020 deadline, and after its license expired on August 1, 2020.  The Mississippi translator’s renewal was filed in April 2024 – over four years after its February 3, 2020 deadline, and after its licensed expired on June 1, 2020.  The Bureau reduced the proposed fines from the $13,000 base fine due to the secondary nature of FM translators. 
  • The Bureau also took two actions dealing with potential dismissals of applications for construction permits for new LPFM stations:
    • The Bureau reinstated an Iowa LPFM construction permit application, which the Bureau dismissed in January 2024 for failing to meet the minimum distance separation requirements necessary to protect a nearby co-channel vacant allotment.  The applicant requested reinstatement of its application and an opportunity to amend, arguing that the FCC’s LPFM application rules do not prohibit curative amendments for failing comply with the minimum distance separation requirements for vacant allotments.  The Bureau agreed, finding that the prohibition on curative amendment applied only to spacing issues to applications and facilities existing as of July 31, 2023 (the date of the LPFM filing window procedures Public Notice). 
    • The Bureau granted another Iowa LPFM construction permit application over an objection claiming that the application should be dismissed because its signatory did not have authority to sign the application (as an officer) and failed to include a pledge to divest a commonly owned LPFM station.  The Bureau rejected the objector’s arguments, finding that the divestiture pledge was included in the technical exhibit to the application (as opposed to a separate exhibit) and although the application did not identify the signatory as an officer of the applicant, the Iowa Secretary of State’s website showed that the signatory was a director of the applicant at the time the application was filed, and prior FCC precedent allows a director of a non-profit applicant to sign on its behalf. 

On our Broadcast Law Blog, we provided guidance for broadcasters on accepting advertising or conducting promotions that directly or indirectly allude to the 2024 Paris Olympics – including a discussion of the enhanced legal protections that the U.S. Olympic and Paralympic Committee has from trademark infringement.

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 of these rule changes, and stated that the expansion of the verification requirement to issue ads and paid PSAs would be effective on that date.  We have now learned this expansion may not be effective on August 15.  From many informal communications, we have been told that the Commission considers the expansion of this rule to issue ads and paid PSAs to be a new paperwork requirement that, before it can become effective, will be subject to review by the Office of Management and Budget under the Paperwork Reduction Act, a review that has not yet been initiated. This OMB approval process will take at least several months, so it appears that stations need not be worried about implementing the verification obligation just as we are entering into the heart of election season.

We note that this information is the result of informal communications and has not yet appeared in any FCC documentation, as the FCC’s transmittal to the OMB of the recent order for review, where it would be noted, has not yet occurred.  NAB today reported this interpretation in one of its publications – but we urge all readers to confirm this interpretation with their own counsel, as these questions of what is and what is not subject to OMB review can be very subjective and confusing.  But, from what we have been told, the August 15 effective date does not appear to apply to the verification requirement for issue ads and paid PSAs, making paperwork for the upcoming election somewhat easier. 

We also note that the FCC released its Notice of Proposed Rulemaking on the use of AI in political ads yesterday, with comment dates that will run through at least September, making it unlikely that any requirement for labeling or new public file obligations that may arise from any action in that proceeding will be effective before the election.  We will provide more details on that Notice in an article early next week.  Broadcasters thus can concentrate on their existing political broadcasting obligations during the upcoming election, and hopefully will not need to implement anything new as the ads flow in. 

Earlier this year, we posted updated guidelines about engaging in or accepting advertising or promotions that directly or indirectly allude to the Super Bowl without a license from the NFL or the Final Four Tournament without a license from the NCAA.  See here, here and here.  Now, it is time to think about these issues in the context of the 2024 Paris Olympics!

The guidance from our prior blog posts addressed the following subjects, and offered warnings about conducting any of these activities when tied to any trademarked phrase referring to events like the Super Bowl or March Madness:

  • Advertising that refers to the event or other associated trademarks;
  • Advertising that uses non-trademarked terms that will be understood by the public to refer to the event;
  • Conducting or sponsoring events and parties for viewing the event;
  • Sweepstakes or giveaways that use the name of the event as part of its name or offer prizes that include game tickets;
  • Offering “special” coverage relating to the event, accompanied by advertising;
  • Congratulatory advertising; and
  • Whether disclaimers will provide a defense to a claim.

The concepts advanced in those discussions apply equally to the Olympics, but the US Olympic & Paralympic Committee (USOPC), formerly the United States Olympic Committee (USOC), has a unique weapon in its arsenal, so there are additional considerations of which you should take note.

Ted Stevens Olympic and Amateur Sports Act

In addition to having trademark rights based on registration and use of its marks, the USOPC is the beneficiary of a special federal statute, the Ted Stevens Olympic and Amateur Sports Act, which grants it the exclusive right to use various words and logos commercially or in connection with an athletic event, performance or competition.  These marks include “United States Olympic Committee,” “Olympic,” “Olympiad,” “Pan American,” “Cities Altius Forties,” “Paralympic,” “Paralympic” and the symbol of the International Olympic Committee – the five interlocking, blue, yellow, black, green and red rings (shown below).

As a result, unlike other trademark owners, to make a claim against a third party’s use of a mark, the USOPC does not need to assert that the use of the mark is likely to create consumer confusion, dilute the distinctiveness of the USOPC’s marks or tarnish the USOPC’s marks.  If any of the marks are used, even in a context far removed from the events beginning in Paris this weeknd, liability can be found.  Only if the mark being used is similar, but not identical, to an Olympic insignia, must the USOPC show a likelihood of confusion.

Continue Reading Ring! Ring! Ring! Ring! Ring!   It’s the Olympics Calling!

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 rules.  In a June Second Report and Order, the FCC expanded broadcasters’ existing obligations to verify whether lessees of program time on their stations are foreign governments or their agents (who have enhanced sponsorship identification requirements).  The Commission expanded the obligation to include, starting on August 15, an additional verification requirement for issue advertisers and paid PSA sponsors (but not sponsors of ads promoting a commercial product or service or ads from a political candidate or their authorized campaign committee).  Under other new rules that will be effective at a later date, broadcasters make this verification either by: (a) the station and the lessee signing an FCC-approved certification form or (b) the lessee providing the station with screenshots of the search results for the lessee’s name in the Department of Justice’s Foreign Agent Registration Act database and the FCC’s most recent U.S.-based foreign media outlet report.  Until the new verification requirements are effective, stations need to obtain certifications that the buyer of these ads are not foreign governments or their agents, just as they do for buyers of program time.   This week on our Broadcast Law Blog, we discussed the impact of the new foreign sponsorship identification rules will on broadcasters, and note that challenges to the expansion of the obligations to cover spot time may be filed before the August 15 effective date, so be on the alert for developments.
  • The FCC announced that it will vote at its August 7 Open Meeting on a draft Report and Order which, if adopted, would establish a new Emergency Alert Service event code for messages to the public about persons who are missing or abducted from states, territories, or tribal communities (known as Ashanti Alerts).  The draft order states that the Ashanti Alerts apply to missing and endangered persons over the age of 17 who are outside of the scope of AMBER alerts (missing and endangered persons 17 years of age and younger) and Silver Alerts (missing and endangered senior citizens with Alzheimer’s disease, dementia, or other mental disabilities).  If adopted, EAS alert originators and participants, including broadcasters, will have 12 months from the effective date of the adopted rules to implement the new EAS alert code. 
  • The FCC took two actions concerning closed captioning of video programming:
    • The FCC released a Report and Order requiring that device manufacturers and Multichannel Video Programming Distributors 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 are designed to receive or play 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.  The FCC will determine whether a device is readily accessible using the following factors: proximity (all settings in one place, accessible by button or key); discoverability (the settings can be easily found by the user); previewability (the user can see what the settings will look like on their screen when changing settings); and consistency and persistence (the settings can be used for all accessible applications on the device).  The only major change from the draft order (which we discussed here) was to exempt preinstalled apps from the new requirement.  The readily accessible requirement will not become effective until the later of either approval by the Office of Management and Budget or 2 years after publication of the Order in the Federal Register. 
    • The FCC also released a Further Notice of Proposed Rulemaking proposing to exempt certain video programming providers from its closed captioning registration and certification requirements.  Specifically, the FCC proposed exempting video programmers from the closed captioning registration and certification requirements if they provide programming to public, educational, and governmental access channels (PEG channels) or to nonbroadcast networks for distribution by a cable operator or other MVPD if the PEG channels or the network are exempt from, or have certified compliance with. the captioning rules.    
  • Briefs were filed last Monday in the US Court of Appeals for the Eighth Circuit, seeking review of the FCC’s December decision in the 2018 Quadrennial Review to retain the current local ownership rules for radio and television and the rule precluding any party from having an attributable interest in more than one of the Top 4 TV networks.  The NAB and other broadcasters challenged the December decision, arguing that the Quadrennial Review process required deregulation of local ownership if there was new competition in the radio or television marketplace – and there assuredly has been much new competition since the rules were adopted in 1996, so that deregulation is warranted.  A group of radio operators intervened to detail in a separate brief the impact of digital competition on radio, and TV network affiliates filed a separate brief detailing the impact on the television industry.  The FCC will respond to these arguments in a brief due in September, the challengers can reply in briefs due in October, and the Court will likely decide the challenge very late this year or in 2025.
  • Comments were due July 15 in response to the FCC’s June NPRM regarding the 2024 annual FCC regulatory fees in which it sought comment on a number of fee-related issues, including whether 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.  The National Association of Broadcasters urged the FCC to maintain these policies as they enable struggling broadcasters to avoid costly collections processes and regulatory consequences while preventing loss of service to local communities.  The State Broadcasters Associations also oppose ending these relief measures and, along with the NAB, urge the FCC to expand its regulatory fee payor base to include regulated entities that benefit from the FCC’s work but do not pay these fees (such as equipment manufacturers that must obtain FCC certifications to sell and operate equipment in the United States).  Other entities regulated by the Commission have taken issue with the proposed allocation of this year’s fees (a proposed allocation which would reduce broadcasters’ fees from the amount paid last year).  Watch for a final resolution on the payment of these fees by the end of next month, so that the fees can be paid in September before the end of the government’s current fiscal year.
  • The Media Bureau entered into a Consent Decree with the licensee of two Colorado radio stations requiring payment of a $3,400 fine to resolve the Bureau’s review of an unauthorized transfer of control.  The Bureau found that the licensee failed to seek FCC consent before transferring 50% of its membership interests in the licensee’s LLC to a third party because the sales agreement stated that the buyer became a member when the agreement was executed, instead of after obtaining FCC consent through grant of a transfer application. 

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.

  • The FCC’s weekly list of items on circulation (those orders or rulemaking proposals that have been drafted and are currently circulating among the Commissioners for review and vote) removed a Notice of Proposed Rulemaking on AI-generated content in political advertising.  As we discussed here, FCC Chairwoman Rosenworcel proposed in May to require broadcasters and cable and satellite TV operators to include disclosures identifying the use of AI-generated content in political ads.  This item has been controversial, as the Chair of the Federal Election Commission, FCC Commissioner Carr, and others have argued that the FCC does not have jurisdiction to require such labeling.  The removal of the draft NPRM from the list likely means that it has been voted on by the Commissioners and will be released soon – possibly in the next few days.
  • The Media Bureau announced that certain daytime-only AM stations may again request pre-sunrise and post-sunset authorizations – requests which have been suspended since 2007 due to issues in calculating local sunrise and sunset times after the expansion of daylight savings time.  The FCC’s rules allow certain daytime-only AM stations to operate during the two hours immediately preceding sunrise and the two hours following sunset.  Now that the calculation issues have been resolved, eligible AM stations may submit a request to the FCC to operate with pre-sunrise and post-sunset authority, providing information on the technical means that allow them to achieve the required power levels.  AM stations may commence such operations following receipt of their approved operating parameters from the FCC. 
  • Reply comments were due July 8 in two FCC proceedings:
    • Reply comments were due in response to the FCC’s biannual call for comments on the State of Competition in the Communications Marketplace, which the FCC uses to prepare a report to Congress on competition issues and which is sometimes referenced in proceedings concerning FCC ownership rules.  The ABC, CBS, FBC, and NBC Affiliates Associations urge the FCC to loosen its TV ownership rules (including the prohibition on the ownership of more than one top-4 TV station in the same market) due to TV station competition from digital platforms and to modernize its retransmission consent rules to address competition from virtual Multichannel Video Programming Distributors.  The National Association Broadcasters and a radio broadcaster similarly urge the FCC to loosen its radio ownership rules due to competition from digital audio platforms.  The NAB also urges the FCC to reject MVPDs’ claims of inflated broadcaster retransmission consent fees (see here and here).  The NAB further urges the FCC to ignore the music industry’s complaints (see here and here) that broadcasters have an unfair competitive advantage over other audio providers because broadcasters do not pay certain music royalty fees. 
    • Reply comments were also due in response to the FCC’s April NPRM proposing new rules to prohibit “most favored nation” clauses and clauses that limit alternative distribution methods in agreements between independent programmers and MVPDs (and broadcast companies).  Public Knowledge and independent programmers (see here, here, here, and here) state that these bans would promote wider distribution of independent programming, whereas MVPDs (see here and here) contend that these bans would reduce consumer access to independent programming.  The NAB states that retransmission consent negotiations do not hinder MVPDs from carrying independent programming and urges the FCC to refresh the record on the regulatory status of virtual MVPDs’ (online video providers that distribute multiple channels of programming) since otherwise any ban adopted in this proceeding would only extend to traditional MVPDs (cable and satellite providers).
  • The FCC’s Enforcement Bureau issued thirteen Notices of Illegal Pirate Radio Broadcasting to landowners in New Jersey and New York for allegedly allowing pirates to broadcast from their properties.  The Bureau warned the landowners that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowners continued to permit any pirate radio broadcasting from their properties.  The Notices can be viewed here, here, here, here, here, here, here, here, here, here, here, here, and here.
  • The Media Bureau entered into Consent Decrees with two Oregon noncommercial TV stations and with eight Mississippi noncommercial TV stations for failing to timely upload many of their Quarterly Issues/Programs Lists to their OPIFs during their last license terms.  The Consent Decrees require that the Oregon stations pay a $16,500 fine and that the Mississippi stations pay a $5,625 fine.  The stations must also implement compliance plans to prevent future OPIF violations.  These fines again show the importance that the FCC attaches to Quarterly Issues/Programs Lists – see our article here for more information on the importance of the timely upload of these lists. 
  • The Media Bureau dismissed a Florida LPFM construction permit application because the applicant failed to meet the FCC’s LPFM licensee eligibility requirements as a “local” entity by either having its headquarters or 75% of its board members residing within ten miles of its proposed LPFM transmitter site.  After a challenge, the applicant attempted to amend its application with a new headquarters address within the ten-mile limit, which the Bureau rejected because that information was not in the applicant’s original application.  FCC procedures in processing LPFM applications require applicants to show their qualifications at the time of the filing of their applications, or those applications will be dismissed with no opportunity to correct any omission.