With much of everyone’s focus on the outcome of the November 5 general election, broadcasters can’t forget the regulatory dates and deadlines in November and early December.  While the dates and deadlines in November are lighter than in many other months, many routine deadlines do fall in early December, and even the upcoming month does have dates worthy of note. 

The one broadly applicable deadline for AM stations that does fall early in the upcoming month is November 3, when Daylight Savings Time ends.  AM daytime-only radio stations, Am stations with different daytime and nighttime patterns, and those operating with pre-sunrise and/or post-sunset authority should check their sign-on and sign-off times on their current FCC authorizations to ensure continued compliance with the FCC’s rules.  Broadcasters need to note that all times listed in FCC licenses are stated in standard time, not daylight savings time even if it is in effect.

For television stations, there is a deadline later in the month. November 26 is the deadline for television stations to provide an aural description of visual but non-textual emergency information, such as maps or other graphic displays, conveyed outside of station newscasts.  This would include maps showing severe weather and other graphic depictions of emergency information during non-news programming.  Since 2013, stations must make textual information about emergency conditions that occur during non-newscast video programming (such as textual crawls about emergency conditions) audibly accessible to individuals who are blind or visually impaired through having the textual information presented aurally on the station’s SAP channel – the secondary audio channel.  The 2013 rules required that visual maps and other non-textual information also be described on SAP channels but, as we discussed in articles here, here, and here, the FCC has extended this deadline numerous times because of the unavailability of workable technology that can automatically perform the functions required by the rule.  By the November 26 deadline, stations will either need to provide aural information about non-textual emergency information that runs outside of a newscast, or avoid airing such graphical alerts during non-news programming, or hope that there are new requests for FCC relief before the looming deadline.

Continue Reading November 2024 Regulatory Dates for Broadcasters: AM Stations Need to Adjust to the End of Daylight Savings Time, Deadline for Aural Description of Visual Emergency Alerts for TV, Final Rules for FM Zonecasting, 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 National Association of Broadcasters denounced recent threats to revoke broadcast station licenses for political reasons, stating: “The threat from any politician to revoke a broadcast license simply because they disagree with the station’s content undermines [the] basic freedom . . . enshrined in the First Amendment.”  The NAB’s statement follows former President Trump’s letter this week to CBS threatening legal action against the network for its apparent preferential editing of the 60 Minutes’ interview on October 7 with Kamala Harris, and the release of a court affidavit this week indicating that Florida Governor Mark DeSantis was behind the Florida Department of Health’s letter threatening broadcast stations with criminal prosecution for running political ads supporting an amendment to the Florida Constitution to protect abortion rights – efforts that a Florida federal court blocked for violating the First Amendment (see our discussions here and here).  The Florida Department of Health subsequently stated in a court filing that it had no immediate intention to prosecute stations running the ad, but would do so if harm results in the future from airing the ad. 
  • A letter request was sent by a number of public interest groups to FCC Chairwoman Rosenworcel asking that she have the FCC declare that political advertising paid for primarily by political parties, but “authorized” by a legally qualified candidate, not be entitled to lowest unit rates – claiming that only ads purchased by candidates’ official campaign committees should be entitled to such rates.  We see little chance that the FCC will act on this request in the near term as the FCC staff, in recent years, has informally advised broadcasters that ads paid for by non-candidate groups but authorized by a candidate, if permitted by state or federal law, be treated as a candidate ad entitled to LUR.  For more background on this issue, see our article here about a request filed in 2022 to change the informal policy, a request that was withdrawn before it was acted on by the FCC. 
  • Chairwoman Rosenworcel responded to a letter from Congresswoman Rodgers, Chair of the House Committee on Energy and Commerce, requesting that the FCC explain why it waived its foreign ownership rules in approving the Audacy transaction (see our discussion here).  The Chairwoman responded that the FCC did not deviate from its regular procedures and acted consistent with agency precedent in approving the transaction, as the FCC did not need to approve any foreign interests above the 25% benchmark set by Section 310(d) of the Communications Act because those interests were in the form of warrants conveying no voting or economic interest in Audacy until they were exercised by the holders following FCC approval.  The response noted that this same FCC approval process, allowing Audacy’s emergence from bankruptcy, had been used in many other prior bankruptcies, including those of Cumulus, iHeart, Liberman Television, and Alpha Media, so its application here was not a new or novel action as some critics had claimed.  
  • The Media Bureau announced that November 20 is the effective date for some rules adopted by the FCC in its September Report and Order permitting digital FM radio stations to operate at different power levels on their upper and lower digital sidebands.  The new rules taking effect on that date include the FCC’s new definition for asymmetric sideband operations.  Most of the rules adopted in the Order, however, including the new digital FM operation notification procedures needed to allow stations to initiate the newly authorized operations without prior FCC approval, still require the Office of Management and Budget’s approval before they will become effective.  
  • The FCC released a Notice of Inquiry seeking comment on whether it should review and strengthen its existing customer service standards for cable providers and whether it should establish similar standards for direct broadcast satellite (DBS), voice, and broadband service providers based their low customer satisfaction ratings.  For example, the FCC seeks comment on whether providers should: (1) provide a simple method for customers to cancel services; (2) obtain explicit customer consent for automatic service renewals (see our discussion here of the FTC’s announcement last week of the related “Click to Cancel Rule”); or (3) be permitted to use AI technologies as an alternative to live service representatives.  Of interest to broadcasters, the FCC also seeks comment on whether providers should offer credits to affected customers for service interruptions, including those arising from failed retransmission consent negotiations with broadcast stations.  Comments are due November 22, and reply comments are due December 9.
    • Also, the FCC’s Media Bureau reminded cable operators and DBS providers that they must begin specifying the “all-in” price for video programming in promotional materials and on subscribers’ bills by December 19.  The FCC adopted the “all-in” rule in an April Report and Order, requiring that video programming charges be stated as “all-in” price as a single line item, including charges for broadcast retransmission consent, regional sports, and other programming.  Small cable operators (those with $47 million or less in annual receipts), however, have until March 19, 2025 to comply with the rule. 
  • The Media Bureau dismissed nine LPFM construction permit applications because the applicants were commonly owned by the same corporate entity in violation of the FCC’s prohibition on a party holding interest in more than one LPFM station.  The Bureau found that each applicant’s Articles of Incorporation gave the same corporate entity the power to appoint each applicant’s directors, which gave that entity impermissible common control over each applicant. 

On our Broadcast Law Blog, we discussed the FCC’s announcement last week regarding the second round of 2024 EEO audit responses for 150 targeted stations.  Responses to the audit are to be uploaded to a selected station’s online public file by December 2 (or January 16 for targeted stations located in states impacted by Hurricanes Helene and Milton).  Our article noted the importance for all broadcasters of reviewing their compliance with the FCC’s EEO rules – even if they are not being audited this cycle, as they could be selected for review when the next audit is conducted, likely in early 2025.

On Friday, the FCC released another EEO audit notice for 2024.  The FCC’s Public Notice, audit letter, and the list of the 150 radio and TV stations selected for audit is available here.  Those stations, and the station employment units (commonly owned or controlled stations serving the same area sharing at least one employee) with which they are associated, must provide to the FCC (by uploading the information to their online public inspection file) their last two years of EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules.  The response to this audit is due to be uploaded to the public file of affected stations by December 2, 2024. Additional time to respond, to January 16, 2025, was given to stations in Florida, Georgia, North Carolina, South Carolina, Tennessee and Virginia impacted by the disruption caused by Hurricanes Helene and Milton.  The audit notice says that stations audited in 2022 or 2023, or whose license renewals were filed after October 1, 2022, can ask the FCC for further instructions, possibly exempting them from the audit because of the recent FCC review of their EEO performance. 

With the release of this audit, and last year’s $25,000 fine proposed for some Kansas radio stations that had not fully met their EEO obligations (see our article here), it is important to review your EEO compliance even if your stations are not subject to this audit.  The FCC has promised to randomly audit approximately 5% of all broadcast stations each year. As the response (and the audit letter itself) must be uploaded to the public file, it can be reviewed not only by the FCC, but also by anyone else with an internet connection anywhere, at any time.  The Kansas fine, plus a recent $26,000 fine imposed on Cumulus Media for a late upload of a single EEO Annual Public File Report (see our article here), and the FCC’s recent decision to bring back EEO Form 395 reporting on the race and gender of all station employees (see our article here), shows how seriously the FCC takes EEO obligations.

Continue Reading FCC Announces Second EEO Audit of 2024 – 150 Radio and TV Stations Targeted

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’s Enforcement Bureau released its second EEO audit notice for 2024.  Audited stations and their station employment units (commonly owned stations serving the same area) must provide to the FCC their last two years of EEO Annual Public File Reports and other documentation showing that the stations complied with the FCC’s EEO rules.  Audited stations have until December 2 to upload the required information to their Online Public Inspection Files, although stations in Florida, Georgia, North Carolina, South Carolina, Tennessee, and Virginia impacted by Hurricanes Helene or Milton may take additional time until January 16 to do so.  See our article here for more detail on EEO audits and the FCC’s concerns about broadcasters’ EEO obligations.
  • In a case that shows the seriousness with which the FCC views the use of EAS tones where there is no emergency, the FCC proposed a $146,976 fine against ESPN for transmitting false Emergency Alert System tones during a promotional segment for the start of the 2023-2024 NBA season.  The Bureau found that ESPN aired a simulated, two second EAS tone during the NBA promotional segment which aired six times in October 2023 on the ESPN and ESPN 2 cable channels.  The Bureau upwardly adjusted the base forfeiture amount of $48,000 ($8,000 per violation) to $146,976 based on several factors including ESPN’s sizeable nationwide audience reach, ESPN’s history of airing false EAS tones, the fact that ESPN aired the simulated EAS tones for its economic gain, and because airing simulated EAS tones desensitizes the public to the potential importance of warning tones.  The Bureau also noted that ESPN’s production team was aware that it was airing simulated EAS tones, and that the network did not inform the FCC that it did so until it responded to the FCC’s inquiry.
  • A Florida federal court barred the Florida state government from taking any further actions, including criminal prosecution, against broadcast stations running political advertisements supporting a proposed amendment to the Florida Constitution to protect abortion rights.  As we discussed in last week’s update, the Florida Department of Health sent a cease and desist letter to stations running those political ads threatening stations with criminal prosecution for airing allegedly false information regarding the availability of medical treatment in Florida for pregnancy complications.  The Court found that the state could not indirectly censor the ads through threats of criminal prosecution because the ads were political speech protected by the First Amendment.
  • Reply comments were due in response to the FCC’s July Notice of Proposed Rulemaking proposing that broadcasters and cable operators disclose, both on the air and in their Online Public Inspection Files, the use of AI-generated content in political advertisements.  We discussed this proceeding here, and noted some of the initial comments filed last month here.  In their reply comments, several broadcasters (see here, here, here, and here), broadcast TV networks (ABC, NBC, CBS, and Fox), and industry groups (see here and here) restated their objections to the FCC’s proposal including the disproportionate burden broadcasters and cable providers would bear under the proposed rule, the FCC’s lack of authority to regulate AI use in political ads, and the First Amendment issues raised by the proposed rule.  Even supporters of the FCC’s proposal (see here and here) urge a narrowing of the FCC’s proposed definition of the “deep fakes” which require disclosure, but they disagree with most of the other challenges to the proposal.
  • The FTC adopted a new “Click to Cancel Rule,” which amends its existing “Negative Option Rule” by requiring sellers to allow consumers to easily cancel their enrollments in subscriptions and services with “negative options.”  As we discussed here, “negative options” are used in marketing and sales in a variety of forms (such as automatic subscription renewals) where a seller of a product or service interprets a customer’s silence, or failure to take an affirmative action, as acceptance of an offer to sell and charge for those products, or to continue to provide those products beyond an initial purchase.  The amended rule prohibits sellers from: (1) misrepresenting the terms and conditions of goods or services with a negative option; (2) failing to clearly disclose material terms for goods or services with a negative option before charging a consumer; (3) failing to obtain a consumer’s consent to the negative option before charging the consumer; and (4) failing to provide consumers with an easy way to cancel the product or service.  The new rule applies to the use of negative options in any media, including, electronic communications, telephone, print, and in-person transactions, and sellers can face civil penalties for violating the new rule.  The FTC released a fact sheet and blog post summarizing the new requirements.  The rule will become effective 180 days after its publication in the Federal Register, but some provisions (such as the new misrepresentation provision) will become effective 60 days after its publication.
  • The FCC published in the Federal Register a notice announcing that November 18 is the effective date of its February Report and Order permitting the use of a new type of wireless microphone system called “Wireless Multi-Channel Audio System” (WMAS) on a licensed basis in frequency bands where wireless microphones already are currently authorized, including the TV bands (VHF and UHF).  The FCC’s goal in permitting WMAS is to enhance the spectral efficiency of wireless microphone use without altering the spectrum rights or expectations of existing users, including broadcast licensees.
  • The FCC released a Public Notice announcing the tentative selectees from 93 groups of mutually exclusive LPFM construction permit applications (applications that cannot all be granted under the FCC’s technical rules) which were filed during the December 2023 LPFM filing window.  The FCC evaluated the LPFM applications using a points system and the tentative selectee of each mutually exclusive (MX) group (listed in bold here) was either a single applicant with the highest point total or multiple applicants tied for the highest point total from each MX group.  The Public Notice states that: (1) petitions to deny against the tentative selectee selections are due November 15; (2) tentative selectees tied under the point system analysis have until December 15 to submit voluntary time-sharing proposals before the FCC will impose involuntary time-sharing arrangements on such applicants; and (3) MX applicants will also have until December 15 to file major technical amendments to their applications to resolve their mutual exclusivities.  The Notice provides guidance on filing voluntary time-share proposals and major technical amendments, and identifies the full power FM stations and FM translators affected by the LPFM applicants’ second-adjacent channel waiver requests (here).
  • The Bureau granted three noncommercial FM station construction permit applications filed by the same applicant over an objection claiming that the applicant failed to disclose that two of its directors held attributable interests in multiple LPFM stations, which was prohibited by the FCC’s LPFM ownership limits.  The Bureau found that since the directors resigned from their positions in the LPFM stations before the applications were filed, those interests did not need to be disclosed in the applications as attributable. 
  • The Bureau proposed a $20,000 fine against a Hawaii TV station for failing to timely upload to its OPIF the majority of its Quarterly Issues/Programs Lists from its most recent license period.  The Bureau found that the station uploaded 10 lists more than 1 year late, 11 lists between 1 month and 1 year late, and 2 lists between 1 day and 1 month late. Given the extent of the station’s violations, the Bureau upwardly adjusted its proposed fine from the base amount of $10,000. 
  • The Bureau also granted a petition to modify the FM Table of Allotments by allotting Channel 284A at Huntley, Montana, as the community’s first local service.  The Bureau also modified the license of KYSX, Billings, Montana to operate on Channel 286A in lieu of Channel 283C1 to accommodate the new Huntley allotment.  The Huntley channel will be available for application during a future FM filing window which, as noted below, may not occur for some time.

On our Broadcast Law Blog, we noted the Media Bureau’s announcement last week of the opening of a filing window on December 4 for new noncommercial TV stations in Alabama, Alaska, California, Idaho, Iowa, New Mexico, Oregon, Texas, and Virginia, and discussed why there have been no recent windows for new commercial stations.  The FCC’s Congressional authority to conduct auctions expired over a year ago, meaning that the FCC currently cannot auction any spectrum for any commercial AM, FM, TV, and translator stations.  No such windows are likely until the Congressional impasse over a renewal of auction authority is resolved. 

The FCC last week released a Public Notice announcing the opening of a filing window for parties interested in building new noncommercial TV stations at 12 communities in the following states: Alabama, Alaska, California, Idaho, Iowa, New Mexico, Oregon, Texas, and Virginia.  Applications by nonprofit educational organizations can be filed in a window opening on December 4 and ending at 6 PM Eastern Time on December 11.  The Public Notice describes the filing procedures and eligibility requirements, and sets out how, if there are multiple applicants for any channel, the applications will be evaluated under the FCC’s “points system” for choosing between competing noncommercial applicants. 

Seeing this filing window raised questions among some broadcasters as to when there will be filing windows for other services, particularly ones where commercial stations can apply.  There has not been a window for filing for new FM stations since 2021 (see our article here noting that many channels in the auction immediately after the pandemic went unsold and could be re-auctioned in the future).  The last filing window for new commercial TV channels opened in 2022.  No filing window for new LPTV stations or TV translators has occurred since 2009, largely because applications were on hold during the TV incentive auction and repacking of the TV band (see our article here – but note that there is currently an opportunity for major channel changes by LPTV and translator stations, but not for new stations).  There has been no window for new AM stations in well over 20 years (except for special windows to allow applicants for channels where station licenses had been surrendered to the FCC).  And no window for new FM translators has been open since 2003 (see our article here about the final resolution of applications from that window – 15 years later), except for the special windows for translators to be used with AM stations, and the last of those windows closed in 2017 (see our article here).  Why have there been no commercial filing windows for so long?

Continue Reading FCC Opens Window for Filing for 12 New Noncommercial TV Stations While Other Commercial Filing Windows on Hold

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’s Media Bureau released a Public Notice announcing the opening of a filing window for construction permits for new noncommercial TV stations in certain locations in Alabama, Alaska, California, Idaho, Iowa, New Mexico, Oregon, Texas, and Virginia.  The filing window will open at 12:01 a.m. EST on December 4, 2024, and close at 6:00 p.m. EST on December 11, 2024.  To accommodate the filing window, the Bureau also imposed a filing freeze on October for petitions seeking changes in the Table of TV Allotments to add new reserved noncommercial educational channels, and a freeze beginning at 12:01 a.m. EST on December 3, 2024 on all full power TV station channel change petitions and all full power and Class A TV station minor and major modification applications.  The filing freezes will continue until the filing window’s closing.  The Notice also describes the application filing procedures and eligibility requirements, and sets out how, if there are multiple applicants for any channel, the applications will be evaluated under the FCC’s “points system” analysis for choosing between competing noncommercial applicants. 
  • The FCC released its quarterly public notice, Broadcast Station Totals, itemizing the number of stations currently operating in each broadcast service.  The release shows that, compared to the same release from a year ago, there are 52 fewer AM stations and 52 fewer commercial FM stations, but 114 more noncommercial FM stations.  There were also 14 more commercial UHF TV stations, but 7 fewer commercial TV VHF stations; and 2 more noncommercial UHF TV stations, but 3 fewer noncommercial VHF TV stations.
  • FCC Chairwoman Rosenworcel released a statement regarding a cease and desist letter sent by the Florida Department of Health to broadcast stations that aired a political advertisement supporting the proposed amendment to the Florida Constitution to protect abortion rights, which is on the Florida ballot in next month’s general election (see the letter here along with the ad sponsor’s response).  The cease and desist letter stated that, despite the stations’ First Amendment protections, the stations could face criminal actions for airing what the State perceived to be false information in the ad regarding the availability of medical treatment in Florida for pregnancy complications.  The FCC Chairwoman stated that: “Threats against broadcast stations for airing content that conflicts with the government’s views are dangerous and undermine the fundamental principle of free speech.”
    • The FCC Chairwoman also responded to former President Trump’s repeated calls to revoke broadcast station licenses for political reasons by stating that: “The FCC does not and will not revoke licenses for broadcast stations simply because a political candidate disagrees with or dislikes content or coverage.”
  • The Media Bureau entered into a Consent Decree with a Michigan noncommercial FM station to resolve an investigation into whether the station violated the FCC’s rules prohibiting noncommercial stations from broadcasting promotional materials on behalf of a for-profit entity.  The station had entered into a Programming Agreement by which a for-profit programmer provided programming to the station in exchange for retaining all revenues derived from the programming, including listener contributions and underwriting support.  The Bureau concluded that the agreement impermissibly solicited listener contributions and other revenue for the benefit of a for-profit entity.  The Consent Decree requires that the station enter into a compliance plan to ensure that future FCC rule violations do not occur.
  • The Copyright Royalty Board announced proposed rates and terms for the payment of sound recording performance royalties by nonprofit webcasters not affiliated with NPR or CPB that are operated by colleges and other educational institutions.  These webcasters will pay SoundExchange a yearly fee starting at $800 in 2026, increasing by $50 each year up to $1000 in 2030.  For that fee, these webcasters can stream up to 160,000 aggregate tuning hours (ATH) of music each month.  This is up from the $700 per year these educational webcasters pay in 2024 and the $750 they will pay for 2025 (though these fees cover only 159,140 ATH per month).  Under the proposal, if these webcasters have monthly listening of less than 80,000 ATH, for an additional payment of $100, they can be exempt from all obligations to report to SoundExchange the songs that they played.  Comments and objections to these proposed rates can be filed through November 12.  The CRB is currently conducting a proceeding to determine webcasting royalty rates for 2026 through 2030 – and in 2025 will hold a hearing and issue a decision to set these rates for all other webcasters who do not reach a settlement with SoundExchange.

On our Broadcast Law Blog, we discussed how broadcasters, in the last weeks before the November election, should evaluate political attack ads – particularly those from non-candidate groups – for liability concerns due to the risk of defamation claims against broadcasters, and how the use of artificial intelligence increases the threat of such claims.

With less than a month to go before the November election, we can expect more and more attack ads, some of which may lead to cease and desist letters from the candidate being attacked.  These letters can raise the risk of defamation claims against broadcasters and cable companies when the ads are not bought by candidates.  The use of artificial intelligence in such ads raises the prospect of even nastier attack ads, and its use raises a whole host of legal issues beyond defamation worries, though it raises those too (see our article here on defamation concerns about AI generated content, and our articles here, here and here about other potential FCC and state law liability arising from such ads – note that since our last article on state AI laws, there are now over 20 states with AI laws I place).  Given the potential for a nasty election season getting even nastier, we thought that we would revisit our warning about broadcasters needing to assess the content of attack ads – particularly those from non-candidate groups. 

As we have written before, Section 315 of the Communications Act forbids broadcasters (and local cable companies) from editing the message of a candidate or rejecting that ad based on what is says except in extreme circumstances where the ad itself would violate a federal criminal law and possibly if it contains a false EAS alert (see, for instance, our articles here, here and here).  Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads.  (Note that this protection applies only to over-the-air broadcasters and local cable companies – the no censorship rule does not apply to cable networks or online distribution – see our articles here and here)  Other protections, such as Section 230, may apply to candidate ads placed on online platforms, but the circumstances in which the ad became part of the program offering need to be considered. 

Continue Reading Broadcasters Should Evaluate Attack Ads for Liability Concerns in the Final Weeks Before the November Election

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’s Public Safety and Homeland Security Bureau announced that the deadline for EAS Participants to file their annual Emergency Alert System Test Reporting System (ETRS) Form One is extended to October 18 in order to reduce burdens on EAS Participants that are recovering from the damage caused by Hurricane Helene.  The form requires all EAS Participants, including broadcasters, to provide information regarding their EAS equipment and monitoring assignments along with other relevant data.  While a nationwide EAS test is not scheduled for this year, the FCC still requires all EAS Participants to annually update their EAS information by filing an ETRS Form One, now due by October 18.
  • The FCC granted Audacy’s assignment applications approving its reorganization to allow its emergence from bankruptcy.  The applications were opposed by conservative groups due to George Soros’ proposed involvement in the reorganized company, who these groups fear will use Audacy’s broadcast stations to suppress conservative viewpoints.  Republican Commissioners Simington and Carr issued dissenting statements claiming that the applications were subject to preferential treatment by postponing FCC approval of certain investments by foreign entities, even though the entities with foreign interests will have special warrants with no equity or voting interests until that subsequent approval is obtained.  FCC Chairwoman Rosenworcel responded that Audacy’s bankruptcy reorganization is using the same process that the FCC approved in multiple prior cases, including the emergence from bankruptcy of broadcasting companies Cumulus, iHeart, and Alpha. 
  • As we discussed in last week’s update, the FCC announced that it took actions against several pirate radio broadcasters operating in the Miami and New York metro areas.  The FCC has now released the full text of these decisions (described below).  The decisions note a dissent from Commissioner Simington, presumably based on his statement in a recent case dealing with violations of the children’s television rules (which we noted in a weekly update last month) where he stated that he would dissent from all decisions imposing fines until the FCC examined if it still had the authority to issue such fines following a recent Supreme Court case that held that, in some instances, administrative agencies could not issue fines as those being fined had a right to a jury trial.
    • The FCC also issued Forfeiture Orders affirming its proposed fines against three other pirate radio operators as follows: a $120,000 fine against a Miami, Florida operator, a $358,665 fine against another Miami, Florida operator, and another $358,665 fine against a Miami-Dade County, Florida operator.  These pirate radio operators now have 30 days to pay the fines, or the FCC may refer the cases to the U.S. Department of Justice.  The FCC itself cannot sue to collect fines or take actions against individuals who ignore the penalties.  Instead, it must rely on the DOJ to enforce the penalties in Court.
    • The FCC separately issued a Notice of Illegal Pirate Radio Broadcasting against a Miami, Florida 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 Media Bureau resolved several other cases where broadcasters were found to have violated FCC rules:
    • The Bureau proposed a $16,000 fine against the licensee of an Oregon AM station for two unauthorized transfers of control.  The Bureau found that the licensee failed to seek FCC consent before transferring its LLC membership interests to an employee for “sweat equity” earned by providing bookkeeping and administrative services.  The Bureau looked at the Purchase Agreement which called for a transfer upon full performance of the services (which had happened), plus a filing with the State of Oregon stating that the employee was now the sole owner, and found that these documents indicated that the transfer had taken place despite the parties’ subsequent amendment of their agreement to state that prior FCC consent was required for the transfer of the membership interests.  The Bureau also found that, based on their public representations in social media, on the stations’ website, and in the local press, the buyer then included her sisters in the control of the station before obtaining FCC consent for their ownership interests. 
    • The Bureau entered into a Consent Decree with a California LPFM station to resolve an investigation of several FCC rule violations including an unauthorized transfer of control, a failure of certain Board members of the station to resign from the Board of another LPFM station before commencing operations, and failure to broadcast post-filing notifications for its license renewal application.  The Consent Decree requires that the station pay a $9,000 civil penalty and enter into a compliance plan to ensure that future FCC rule violations do not occur.
    • The Bureau entered into a Consent Decree with a Tennessee Class A TV station to conclude its investigation of the station’s failure to comply with its Online Public Inspection File requirements (including its failure to upload 32 issues programs lists, 15 certifications of compliance with the commercial limits in children’s programming, and four children’s television programming reports), and its certification in its license renewal application, despite all of these missing documents, that it had complied with the public file rules.  The Consent Decree allows the grant of both the station’s license renewal and an application for the sale of the station to an unrelated party, if the licensee pays a $53,000 fine within 15 days of closing of the sale. 
    • The Bureau entered into a Consent Decree with a Virginia LPFM station to resolve the Bureau’s investigation of the station’s failure to comply with the FCC’s underwriting rules, based on allegations that the Station impermissibly promoted for-profit underwriters’ products or services and aired spots that contained comparative and qualitative descriptions, pricing information, calls to action, and inducements to buy products or services.  The decision also carefully reviewed a “co-op” arrangement that the station had with other local LPFM stations for sharing facilities, and another agreement where those stations employed a common agent to sell their underwriting, but found that, as these arrangements did not affect control over the programming, personnel, or finances of the station, they did not violate the rules.  The Consent Decree requires that the station pay a $1,000 fine and enter into a compliance plan to ensure that future FCC underwriting rule violations do not occur, and the station’s license renewal was granted for a “short-term,” only two years, so that the effectiveness of the compliance plan could be reviewed. 

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 released a Report and Order permitting digital FM radio stations to operate at different power levels on their upper and lower digital sidebands and clarifying that. To initiate such service, a notification of digital FM operations must be made using the FCC Form 335-FM.  The Commission has postponed any decision on higher power levels for digital FM while more testing is done with the aviation industry to ensure that there is no interference to aviation communications which uses frequencies just above the FM band.  The FCC made one change from the draft version of the Order that the FCC made available a few weeks ago – expanding the requirement that prior authorization from the FCC for different sideband power levels would be needed from digital FM stations operating on frequencies 107.1 to 107.9 MHz, rather than simply 107.9 as initially proposed, again while further studies are done with the aviation industry.  The new Form 335-FM notification procedures require the Office of Management and Budget’s approval before becoming effective.   
  • The FCC took actions against several pirate radio broadcasters operating in Miami and the New York City area.  While the fines are significant in and of themselves, the decisions (the full texts of which have not yet been released), are also notable as reportedly Commissioner Simington dissented, questioning the authority of the FCC to impose fines for violations of its rules without a jury trial, based on a Supreme Court decision issued earlier this year.  What we know about the fines is set out below:
    • The FCC issued fines totaling $837,330 for three Miami pirate radio operators.  In January, the FCC proposed two $358,665 fines against two of these pirate radio operators for three days of violations and a $120,000 fine against the third pirate radio operator (we noted the proposals for these fine earlier this year in one of our weekly update here).  The pirate radio operators now have 30 days to pay the fines, or the FCC may refer the cases to the U.S. Department of Justice.  The FCC itself cannot sue to collect fines or take actions against individuals who ignore the penalties.  Instead, it must rely on the DOJ to enforce the penalties in Court.
    • The FCC also announced proposed fines totaling $1 million for three New York City area pirate radio operators as follows:  a $920,000 fine against an Irvington/Maplewood, New Jersey operator, a $40,000 fine against a Bronx, New York operator, and a $40,000 fine against a Spring Valley, New York operator. 
  • The Media Bureau issued a complicated decision enforcing its rural radio policy (see our article here raising questions about the continuing benefits of that policy) to stop two stations from moving from Caliente, Nevada to communities that would serve the St. George, Utah urbanized area.  In one case, the FCC had already granted permission for one successful applicant for a Caliente construction permit for a new FM station to move to Dammeron Valley, Utah in the St George urbanized area, and a subsequent channel change. When the permit holder sought another city of license change, the Bureau determined that allowing the move had been an error and issued an order to show cause to the permit holder asking for reasons why his permit should not be relocated to Caliente. The Bureau also dismissed a noncommercial FM station’s community of license change application to move from Caliente to Dammeron Valley as it would remove Caliente’s second local service, which the decision said was preferred (even though Caliente has a population of less than 1000 people) over a move into the St. George urbanized area which already has 25 other services.
  • The FCC’s Media Bureau and Office of Managing Director issued an Order to Pay or Show Cause to a New Jersey AM station proposing to revoke the station’s license unless, within 60 days, the station pays its delinquent regulatory fees and interest, administrative costs, and penalties, or shows that the debts are not owed or should be waived or deferred.  The station has an unpaid regulatory fee debt totaling $32,367.36 for fiscal years 2010, 2011, 2012, 2014, 2015, 2016, 2017, 2018, 2019, 2021, 2022, and 2023. 

On our Broadcast Law Blog, we took a look at the upcoming regulatory dates for broadcasters in October, which are all in effect following President Biden’s signing on Friday of the extension of federal funding through mid-December (setting up another federal funding fight in Congress later this year).

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