The FCC yesterday released a Public Notice making clear that lowest unit rates (or lowest unit charges) end on Election Day.  Some broadcasters had asked the question, fearful that there would be political advertising bought after Election Day to take positions on issues about counting the vote and other legal matters that could arise in a contested election and, if that advertising was bought by the campaign committees of those standing for election today, lowest unit rates would still be in effect.  But the FCC made clear that Section 315 of the Communications Act, which requires that these rates be afforded to candidates, means what it says – that these rates apply only in the 60 days before a general election (and the 45 days before a political primary).  In a 1978 decision, the FCC stated that selling political ads on Election Day itself was discretionary by the station (they did not need to sell ads on Election Day – in fact, at least in the past, some states actually prohibited those ads), but if they did, they needed to sell at LUC.  In effect, that added a 61st day to the LUC period.  But, as yesterday’s Public Notice makes clear, the low rates do not extend beyond Election Day itself.

Other questions have arisen as to whether any of the other political rules (e.g., reasonable access, no censorship, equal opportunities) extend beyond Election Day.  While the Public Notice is silent on those questions, it would seem that, consistent with the precedent, they would not.   In one old case, the FCC held that equal opportunities for a person running for the Republican nomination for president ended after the party’s convention has already taken place, seemingly showing that the candidacy ends when the terminal event in an election has taken place.  Similarly, the FCC stated in a public notice in the 1970s that reasonable access clearly applied in the LUC windows before an election (and that other access before those windows would be judged on a case-by-case basis).  The ruling on LUC applying to Election Day seemed to recognize that Election Day sales were discretionary (“where licensees sell time to candidates on election day, the lowest unit charge would be applicable on that day”).  If reasonable access does not apply to Election Day, it would make no sense to apply it after that day is over.  None of these cases suggest that any access would apply after the election.  That would seem to make sense as all of these rules were adopted so that candidates can persuade voters to vote for them.  After an election, any advertising pitches would not be made to persuade voters to vote, but instead would be asking that legislatures, judges or other government agencies act in a particular manner – more typical of an issue ad.  An issue ad on a federal issue does have public file obligations (as yesterday’s Public Notice makes clear – and see our articles here and here on those requirements).  Obviously, while the precedent seems to lead to one conclusion, these questions have not been addressed squarely by the FCC, and we will wait for tonight’s election results to see if any of them become relevant to tomorrow’s reality.

Last week we wrote about the October 30 effective date of new FCC rule changes on the public notice requirements for certain broadcast applications, including applications for the assignment of license or transfer of control of a station and applications for renewal of license.  On Friday, the FCC’s Media Bureau released a Public Notice clarifying certain aspects of the new rule.  First, the Public Notice makes clear that applicants who already have applications pending should use the public notice rules that were in effect on the date of the acceptance for filing of their applications (generally just a few days after the application’s filing).  For instance, radio stations who timely filed renewal of license applications on October 1 (those in Iowa and Missouri), and TV stations who filed for renewal that same date (those in Florida, Puerto Rico and the Virgin Islands), will continue with post-filing announcements under the schedule that was in place prior to the effective date of the new rules.  Applications filed on December 1 will use the new rules requiring post-filing announcements in the 30 days after the acceptance of the renewal applications rather than those spaced out over 3 months.

As all commercial stations need to “include a conspicuous link or tab labeled ‘FCC Applications’ on the station website or an applicant-affiliated website to the extent that such a website exists,” and at that link either include the text of the public notice that is running on the air or a statement that no such applications are pending, the Media Bureau provided guidance as to when that link needs to be added to the station’s website.  The FCC said that stations should “act expeditiously” to add such a link to their site and, if they are planning to file any application needing public notice, they must include that link now.  Note that noncommercial stations do not need this permanent link on their websites unless their stations are off the air because of school recesses or holidays or for other reasons when the public notice announcements would otherwise be broadcast, in which case they do need to provide this online public notice.  Commercial stations will need both the online public notice and notice though over-the-air broadcasts.  So commercial stations should be adding that permanent link to an applications page as soon as they can.  In addition to our article you can read the entire FCC order on these new public notice requirements, adopted earlier this year, here.

It has been a busy week for regulatory actions affecting broadcasters.  Here are some of the significant developments of the last week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC held a virtual Open Meeting on Tuesday, voting to approve an order authorizing voluntary all-digital AM transmission, an order expanding requirements for audio description of video programming to 40 more television markets over the next four years, and an order allowing the expanded use of higher-powered TV white spaces devices. The Commissioners also approved a Further Notice of Proposed Rulemaking to examine whether to modify its rules to permit the use of terrain-based models to determine available TV channels for the operation of white space devices.  We took a closer look at these three items when the drafts were released. (All-Digital AM order) (Audio Description order) (White Spaces order and Further Notice)
  • Rule changes designed to standardize the text and scheduling of local public notices about the filing of certain broadcast applications (including license renewals and applications to sell a station) became effective October 30. In our article here, we highlighted many of the rule changes, including the new requirement that commercial stations include a permanent “FCC Applications” link on their station’s website homepage whether or not they have any applications pending at the FCC.  Stations will want to review the Report and Order for all of the rule changes and the FCC’s Public Notice released on Friday outlining the new obligations and the transition to the new public notice process.
  • The FCC announced the lifting of the freeze that has been in place since 2004 on most applications that would expand a TV station’s protected contour and on channel change petitions. The freeze had been imposed first to provide a stable TV database so that the FCC could plan for the DTV transition, and then extended to facilitate the broadcast incentive auction and subsequent repacking of the TV band.  When the freeze is lifted, parties will be able to file petitions for rulemaking for DTV channel changes and new DTV allotments, requests for changes to communities of license, and modifications to increase a full-power TV or Class A station’s service area.  The freeze will be lifted 15 days after this week’s Public Notice is published in the Federal Register.  (Broadcast Law Blog) (Public Notice)
  • The FCC released a Notice of Proposed Rulemaking advancing rules requiring the on-air identification of the sponsor of broadcast programming that is funded by a foreign government or an entity controlled by a foreign government, whether a broadcaster is paid to air that programming or where the programming produced by the foreign entity is provided to the station for free. (Notice of Proposed Rulemaking)
  • A Notice of Proposed Rulemaking proposing to allow FM stations to use their boosters to originate limited amounts of programming different from their primary stations could be coming soon. A statement by Commissioner Geoffrey Starks says that Chairman Pai has circulated a draft among Commissioners.  For his part, Starks approves of the plan and points to benefits gained by minority-owned stations and small businesses having the ability to geotarget news, weather, advertising, and emergency alerts to diverse communities.  (Starks Statement)  Earlier this year, when the FCC asked for initial comments, we wrote here and here about this “zonecasting service” proposed by GeoBroadcast Solutions.
  • A Florida low power FM station is facing a $25,000 fine for failing to operate within its licensed power limits, for transmitting from an antenna type other than the type specified on the station’s license, for transmitting from a site different than its licensed site, and for failing to produce evidence that the station had installed EAS equipment. This is another good reminder to be sure your station is operating in accordance with its license and all FCC rules and regulations.  (Notice of Apparent Liability for Forfeiture)
  • The FCC released the agenda and drafts of the items the Commissioners will consider at their November 18 Open Meeting. There are no pure broadcast items, though some broadcasters may be interested in a proposal to change the procedures for filing program carriage complaints by cable programmers against a multichannel video programming distributor (MVPD).  The proposals would clarify the time limits for the filing of such actions and adopt processes to speed their resolution (Draft Report and Order)
  • On Thursday, Makan Delrahim, the head of the Department of Justice’s Antitrust Division, at a virtual event sponsored by Competition Policy International, said that he hoped that the Division would issue a report on its review of the ASCAP and BMI consent decrees before the end of his term, which could be this year. From some of his prior statements, it had been feared that the Division was looking to end the decrees.  From his statements this week, it appears that any changes suggested will be much more modest given the continued reliance of broadcasters and other music users on the existence of these decrees for the operation of their businesses.  (Video of Delrahim’s comments – discussion of the consent decrees beginning at about 10:50 into the video).

A freeze on technical improvements by full-power TV stations is about to come to an end after more than 15 years. Television stations have been unable to improve their coverage areas by a freeze first instituted in 2004 to allow the FCC to deal with a stable database of television stations during the transition to digital operations.  After that, the freeze was soon reinstated to facilitate the incentive auction and subsequent repacking of the TV band into less spectrum so that TV channels above 37 could be auctioned for use for new wireless communications technologies.  The FCC’s Media Bureau yesterday issued a Public Notice announcing that it will finally lift the filing freeze – that thaw to be effective 15 days after the Public Notice is published in the Federal Register.

Specifically, the Bureau will lift the restrictions on the following types of applications:

  • Petitions for rulemaking to change channels in the DTV Table of Allotments (where a station moves from one channel to another) or petitions to swap channels between two existing stations.
  • Petitions for rulemaking for new DTV allotments which could give broadcasters the opportunity to apply for new TV stations.
  • Petitions for rulemaking to change communities of license.
  • Modification applications that increase a full power or Class A station’s service area beyond an area that is already served.

Continue Reading FCC to Lift Freeze on TV Station Technical Improvement Applications

In May, the FCC voted to change its requirements for public notices of broadcast applications (see our post here) – standardizing the messages that must be conveyed to the public and eliminating the need for newspaper publication in those instances where it was still required.  The new rules also require that each commercial station include a link on its website to another webpage where public notice of pending applications is provided, and that link needs to be maintained whether or not a commercial station has any applications requiring public notice pending.  That decision will become effective tomorrow (October 30) based on its publication in the Federal Register today.  So we thought that we would revisit the summary we provided of the changes in the notice rules.

When a broadcaster files certain types of applications with the FCC, the public must be informed.  In May, the FCC issued its Order changing the rules regarding the public notice that must be given – consolidating what was a confusing process with different language and timing for notice about different types of applications into one providing standardized disclosures and scheduling for all public notices.  The decision (which is effective tomorrow) eliminates obligations for the newspaper publication that was required for some public notices.  It also requires the inclusion of a permanent “FCC Applications” link on the homepage of each commercial station’s website, whether or not they have any applications pending (noncommercial stations only need to include a link when they have applications pending and their stations are not operational and cannot broadcast the required notice).  Let’s look at some of the other changes that are now effective. Continue Reading Changes to FCC Public Notice Requirements Effective October 30 – New Link Required on Commercial Station Websites

November is one of those few months with no routine FCC filing obligations (no renewals, reports, fees or other regularly scheduled deadlines.  While that might seem to suggest that you can take time that you normally devote to regulatory actions to begin your holiday preparations even in this most unusual year, there are still many issues to consider, and you can also use this month to plan for complying with deadlines that fall in December.

While there are no significant comment dates on broadcast matters yet set in November, look for dates to be set in the FCC’s proceeding to determine whether there should be a limit on the number of applications that one party can file in the upcoming window for the filing of applications for new noncommercial, reserved band FM stations.  See our article here on the FCC’s request for comments in this proceeding. Continue Reading November Regulatory Dates for Broadcasters: Rulemaking Comments, Hearings on Diversity and a New Commissioner, an FCC Open Meeting and More

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

  • The FCC’s International Bureau released a Public Notice on its review of the requests for “lump sum reimbursement requests” for stations that have C Band earth stations that will be affected by the repacking of the band for wireless uses. The Public Notice contains a list of all applications for lump sum reimbursement and the status of each applicant’s request.  While most applications are listed as “approved,” for applicants with identified issues with their requests, the Public Notice says that failure to resolve the issues by October 28 may result in dismissal of the lumps sum reimbursement requests, though applicants would still be eligible for the normal reimbursement process. (Public Notice)(List of requests for lump sum reimbursement)
  • A window to submit applications for new noncommercial educational FM stations will open in 2021. This week, the Commission asked for comments on its tentative conclusion to limit parties to submitting ten applications during the window, which was the same limit imposed in 2007 during the last noncommercial reserved-band window.  The Commission reasons for the proposed limit include that it will prevent mass filings by speculators, avoid some instances where applications are mutually exclusive, and allow for quicker processing of applications by FCC staff.  Interested parties should start preparing their comments, as those comments will be due 15 days after the Public Notice is published in the Federal Register.  Reply comments will be due 10 days after the comment deadline date.  (Broadcast Law Blog) (Public Notice)
  • After voting in August to eliminate the radio program duplication rule for AM and FM stations, the rule change became effective October 22. The rule had prohibited radio stations in the same service (AM or FM) that have over 50% overlap of their principal community contours (the 70 dBu contour for FM stations and the 5 mV/m contour for AM stations) from duplicating more than 25 per cent of the total hours in their average programming week.  We covered the rule repeal on the blog in August, and posted a short note on this week’s abolition of the rule.  (Federal Register)
  • FCC General Counsel Thomas M. Johnson, Jr. published a blog post laying out the legal reasoning behind why the FCC has the authority to interpret and clarify Section 230, the section of the Communications Act that gives online platforms immunity from liability for what third-party users post on those platforms. Johnson points to language of the statute and to Supreme Court cases that held that the Commission has authority to interpret the Communications Act unless the Act specifically says that authority rests elsewhere.  As Section 230 is part of the Communications Act and makes no mention of removing the FCC’s authority to interpret it, Johnson argues that the FCC is free to interpret the section’s language, just as it does for other parts of the Communications Act.  We noted in our blog post from June that there are plenty of debates over whether the FCC has the power to interpret Section 230 and Johnson’s 2,600+-word blog post appears to be an attempt to anticipate those arguments.  Watch for a Notice of Proposed Rulemaking on Section 230 soon.
  • On the blog this week, we posted our thoughts on how broadcasters can re-think their EEO programs and compliance efforts to tailor them to the pandemic reality we live in. Depending on where your station is in your two-year EEO reporting period, your station might need to get creative to satisfy the non-vacancy specific outreach efforts (the “menu options”) required by the rules.  We note in the post that, unlike other areas where the FCC has issued waivers or otherwise shown leniency about compliance, EEO is still a priority for the Commission and, in fact, random audits have continued throughout the pandemic.  (Broadcast Law Blog)
  • We looked at the Broadcast Diversity in Leadership Act, introduced last month in the House of Representatives by former radio broadcaster and current Member of Congress, Greg Walden (R-Ore). The bill seeks to put into law much of what the FCC has tried to do with its incubator program, fostering ownership by minorities and other new entrants.  The FCC’s program was blocked by the Third Circuit Court of Appeals decision on the broadcast ownership rules that is now before the Supreme Court for review.  With so few days left this year on the legislative calendar and Congressman Walden’s retirement at the end of the year, it will fall to another Member of Congress to run with this effort in the next congressional session.  (Broadcast Law Blog)

Looking ahead to next week, the FCC will hold an Open Meeting on Tuesday, October 27.  Broadcasters will be watching three items: A Report and Order that would expand audio description requirements to more markets, a Report and Order that would authorize all-digital AM transmission, and a Report and Order that would allow expanded use of higher-powered unlicensed devices in the TV white spaces (industry reporting indicates we could see a Further Notice of Proposed Rulemaking that incorporates changes sought by Microsoft).  We took a closer look at these three items when the drafts were released.  The meeting will again be conducted virtually and can be viewed here.

There were several reports in the broadcast trade press today about an article in the Hill newsletter from retiring Congressman Greg Walden about his proposals to increase diversity in broadcast ownership.  Congressman Walden, a former broadcaster, seeks in his Broadcast Diversity in Leadership Act to foster minority ownership and ownership by new entrants by establishing in legislation an incubator program similar to the one adopted by the FCC in 2018, but put on hold by the Third Circuit Court of Appeals in their decision on broadcast ownership (which is now before the Supreme Court – see our post here).  While, given the short time before the end of the Congressional session, the Congressman’s bill stands little chance of passing both houses of Congress and being adopted before the end of the year, the bill is worth reviewing as it has the support of both the NAB and minority-advocacy organizations, so it could well resurface in a new Congress.

The bill adopts much of the framework of the FCC’s incubator program (which we outlined in our article here).  Under the proposed legislation, an existing broadcaster could work with an aspiring broadcaster to help that new entrant purchase and operate a broadcast station. The bill asks the FCC to adopt rules outlining the support that could be provided to the new entrant, including training, financing and access to resources of the established broadcaster. The established broadcaster could even hold a non-controlling equity interest in the emerging broadcaster, as long as the new entrant retains control.  In exchange for providing the services or financing, if the incubation is determined to be successful after a two-year period, the existing broadcaster would be allowed to acquire one station in a similarly sized market that exceeded the current cap on broadcast ownership allowed by Section 73.3555 of the Commission’s rules.  So, if the existing broadcaster operates in a market where one party can only own 6 stations, it could acquire a seventh. Continue Reading Congressman Walden Urges Adoption of Broadcast Diversity in Leadership Act – An Incubator Program to Assist New Entrants to Broadcast Ownership

In the last few weeks, we have received several inquiries from broadcasters about the FCC’s enforcement of its requirements that broadcasters conduct non-vacancy specific outreach efforts to educate their communities about broadcast employment opportunities and to train their staff to assume greater responsibility at stations and otherwise assist them in their career development (not to train them for their current positions, but to prepare them to assume a position with more responsibilities as their careers advance).  Stations are required to undertake a variety of activities to educate the public about broadcast employment opportunities (and the experience and skills that will be helpful to obtain these broadcast positions) and to train their employees to advance in their careers beyond their current positions.  These outreach efforts must be undertaken even when stations don’t have job openings.  The FCC has a whole list of “menu options” to meet these obligations (see them listed in the EEO training presentation that I did last year for a state broadcast association, available here).  While these menu options were designed for a “normal” work environment, many can be adapted to today’s world where so much business and education is being done virtually.

When asked if these rules are still in effect, I have been telling broadcasters that the FCC has not said that these obligations are suspended during the pandemic.  In fact, the FCC has been conducting EEO audits throughout the course of the pandemic (see our article here, for instance), so it appears that enforcement of the EEO rules continues unabated.  While I expect that the FCC will be somewhat flexible in assessing compliance in these present circumstances, stations can accomplish many of the activities listed in the menu options even in the pandemic.  In a webinar that I conducted recently for many of the states with upcoming radio license renewal deadlines, and in another webinar for a public broadcasters group in a midwestern state, I discussed some of those opportunities. Continue Reading Looking at FCC Non-Vacancy Specific EEO Outreach Efforts – the “Menu Options” – in a Pandemic World

The FCC’s abolition of the rule that prohibited same-service radio stations serving the same area from substantially duplicating their programming becomes effective today, as the FCC order repealing the rule was published in the Federal Register.  The rule had prohibited radio stations in the same service (AM or FM) that have over 50% overlap of their principal community contours (the 70 dBu for FM stations and the 5 mV/m contour for AM stations) from duplicating more than 25 per cent of the total hours in their average programming week. In August, the FCC voted to abolish that rule (see our article here), and that decision is now effective so stations, especially those suffering from the economic pinch of the pandemic, have more options for programming their stations.