On the surface, September appears to have few scheduled regulatory filing dates and deadlines.  But it is period in which many broadcasters will be busy with deadlines that occur in early October and into the rest of the Fall.  TV stations should be finishing their decision-making on must-carry/retransmission consent elections, which need to be in their public files by October 2 (as the 1st is a holiday).  In preparation for the early November filing window for new LPFM stations (see our article here), potential applicants should be determining if a station can technically “fit” in their area without prohibited shortspacings to other stations; if one can be located in their area, they need to locate a transmitter site; and they need to take all the steps other steps needed to be ready to file their application in the early November window.  One of the first regulatory dates of note in September is the freeze on FM translator modification applications that goes into effect on September 1 in anticipation of the LPFM window.  The freeze will be in effect at least through the end of the LPFM filing window on November 8. 

September will also bring the date for the filing of annual regulatory fees by commercial stations.  We recently noted that the FCC earlier this month released its Report and Order setting the amount of the annual regulatory fees that broadcasters must pay, but the Commission has not yet followed up on that Order by issuing a Public Notice setting the dates for payment.  As these payments must be made before the federal government’s October 1 start of the new fiscal year, we expect that Public Notice any day.  We also expect that, as in the past, the FCC’s Media Bureau will release a fee filing guide for the broadcast services.  Licensees should continue to monitor this item closely so that they are ready to pay those fees in a window that will open in September, as the failure to timely pay regulatory fees will result in substantial penalties.

Continue Reading September Regulatory Dates for Broadcasters – Regulatory Fees, HD Radio Power Increase Comments, EAS Filings, and Preparation for Many October Deadlines  

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 Order and Notice of Proposed Rulemaking (“NPRM”) proposing changes to the digital audio broadcasting rules to facilitate greater digital FM radio coverage was published in the Federal Register this week, setting the date for comments.  Comment are due by September 21, 2023 with reply comments due by October 6 (FCC Public Notice).  The NPRM tentatively concludes that there is merit to two petitions for rulemaking filed by NAB and other parties (available here and here), asking the FCC to permit increased FM digital effective radiated power beyond the existing levels and to allow a digital FM station to operate with asymmetric power on the digital sidebands (for more details about these petitions, see our article here).  The FCC seeks comment on a number of specific questions including when a station can seek higher digital power without submitting a contour analysis or otherwise seeking Commission prior approval; whether stations planning asymmetrical side bands need to give notice to adjacent channel stations; whether there is a risk of interference to lower powered FM stations, secondary stations (LPFMs and translators), and even broadband operators who suggest possible interference to equipment that they operate on FM channels; and whether any potential interference calls for limits on the proposed rule changes. 
  • The FCC’s Audio Division of its Media Bureau proposed a $20,000 fine for unauthorized operations and false certifications in connection with a license application for changes in the facilities of an FM translator.  The translator had been authorized to rebroadcast an LPFM station, but received a construction permit to increase power and change its primary station to rebroadcast an AM station.  As the permit was about to expire, the licensee filed a covering license application certifying that the new facilities had been constructed in accordance with its construction permit.  In fact, the translator continued to rebroadcast the LPFM station for at least 6 months after the grant of the license for the new facilities.  As the translator was not rebroadcasting the station specified in the license application, the Division found its operations to be unauthorized and the certification in the license application that it was operating in accordance with the construction permit to be false, warranting the fine.
    • In another interesting aspect of this decision, the Division rejected claims that the licensee, a nonprofit organization governed by its Board, had undergone an unauthorized transfer of control because its Board members were different from those at the time it received its initial license, with no FCC approval having been sought.  The decision noted the FCC’s policy that gradual changes in a non-profit organization’s governing Board do not constitute a transfer of control.  Thus, as the Board changes in this case were gradual, no FCC approval was required even though the current Board was completely different from that which had initially been approved by the FCC.    
  • The FCC’s Video Division issued three forfeiture orders (here, here and here) issuing fines to licensees of TV translators for filing late license renewals.  These decisions reduced the fines of $1500 per station that had been initially issued to these licensees (and were issued to other stations in similar situations in the recent past), to $99 per station, based on showings by the licensee that the higher fines would have caused the licensee substantial financial hardship.  Financial hardship showings must include tax returns or other detailed records showing the revenues of a licensee.  When the proposed fines exceed a percentage of the licensee’s revenue that has in prior cases been found to be excessive (generally, fines in excess of 8% of revenue have been found excessive, while those below 5% are not), the FCC will consider reducing them, as they did in the cases decided this week. 
  • In the continuing efforts of television broadcasters to convert their VHF stations to the UHF frequencies seen as more advantageous for digital broadcasting, the FCC asked for public comment on proposals for TV stations in Winnemucca, Nevada and Idaho Falls, Idaho to make such changes.   

With the Labor Day holiday next week, unless the FCC is very active, we will not publish this update next weekend.  If we do not, we will include any actions taken this coming week in our next weekly update on September 10.  In the interim, watch for an announcement of the deadlines for the payment of Annual Regulatory Fees (we expect to cover any announcement on our Broadcast Law Blog).  We recently noted on our blog that the FCC earlier this month released its Report and Order setting the amount of the annual regulatory fees that broadcasters must pay, but the Commission has not yet followed up on that Order by issuing a Public Notice setting the dates for payment, which must be made before the federal government’s October 1 start of the new fiscal year.

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.

  • In the last two license renewal cycles, more fines have been issued for full-power stations violating the requirement that they quarterly add to their public inspection files a list of the most important issues facing their communities and the programming that they aired in that quarter to address these issues.  This week, the Media Bureau proposed another such fine, proposing to fine a Florida full power television station $9,000 for allegedly failing to timely upload 10 quarterly issues/programs lists to its online public inspection file during the last renewal cycle.  The station offered no explanation for that failure.  See our Broadcast Law Blog article here for more on the importance of the Quarterly Issues/Programs list obligation.
  • For TV translators and LPTV stations, another frequent source of fines has been the late filing of renewal applications. This week, the Bureau proposed to fine a licensee of four television translator stations in Oklahoma $6,000 for failing to timely file renewal applications for those stations.
  • In the last few years, it has become more common to see broadcasters surrendering licenses for stations that they no longer feel that they can operate.  In some cases, other broadcasters have noted the surrenders and expressed interest in acquiring the surrendered license. In a decision released this week, the Media Bureau made clear that any such request needs to come quickly and include the licensee who surrendered the license.  In this week’s decision, the Bureau dismissed an “emergency petition” filed by Albuquerque Board of Education (ABE), requesting that the FCC reinstate the cancelled licenses of an AM station and an FM translator licensed to Los Alamos, New Mexico, and permit ABE to operate those stations.  As the request was filed more than 30 days after the FCC’s public notice of the cancellation of the license, the Bureau determined that it was untimely (as requests to reconsider an FCC action must occur within 30 days of public notice), also noting that ABE had no apparent relationship to the prior licensee (even though it had submitted a statement from the former licensee that she did not reimpose the reinstatement, the licensee did not itself request reinstatement or file any sort of application to transfer the station to ABE).
  • For the second week in a row, the Media Bureau asked for comment on a proposal for a broadcast licensee to be owned by foreign citizens.  This week, the Bureau issued an amended declaratory ruling from Hemisphere Media Group, Inc. (HMTV), the controlling parent of the proposed transferee of various television licensees, to exceed the 25% foreign ownership benchmarks in section 310(b)(4) of the Communications Act of 1934.  The ruling approved foreign ownership up to 100% of HMTV’s equity and voting interests in the aggregate, and ownership interests by certain identified foreign owners.  As we noted in our Broadcast Law Blog articles here and here, the FCC will approve foreign ownership of up to 100% of broadcast licensee after reviewing the individuals or companies involved to ensure that the proposed owners do not pose any threat to national security or otherwise threaten the public interest.
  • The National Association of Broadcasters (NAB) is seeking to compel the FCC, through a petition for a “writ of mandamus” filed with the US Court of Appeals, to conclude the agency’s still pending 2018 Quadrennial Regulatory Review of its broadcast ownership rules; a review that, among other things, is looking at whether the local radio ownership rules and the rule prohibiting common control of two of the Top 4 TV networks are still in the public interest.  This week, the NAB filed its Reply to the FCC’s Opposition to the NAB’s petition.  The FCC argued that, while Congress requires the FCC to begin a Quadrennial Review every four years, it does not require that the review be completed within any set time.  The NAB’s reply contend that such a position would mean that the statutory mandate for a review of the ownership rules every four years would be meaningless if the review never had to be finished.  The NAB also submitted the FCC cannot claim that further delay is justified by the complexities of the 2018 review or political “contentiousness” among the FCC’s Commissioners concerning the scope of the 2018 review.  We expect the Court to rule on NAB’s Petition in the coming weeks.
  • The FCC’s Office of Communications Business Opportunities issued a Public Notice announcing its upcoming review of rules the FCC adopted in calendar years 2007–2012 that have or will have a significant economic impact on a substantial number of small entities. Section 610 of the Regulatory Flexibility Act (RFA), 5 U.S.C. § 610, requires the FCC to determine whether such rules should be continued without change, amended, or rescinded to minimize any significant economic impact on a substantial number of small entities. The Appendix lists the rules the Commission will review during the next 12 months.  The Appendix includes a brief description of each rule, and its policy and legal basis (those that specifically apply to broadcasters begin on page 32 of the Appendix).  Comments on the Public Notice will be due 60 days after it is published in the Federal Register.  This is an ongoing process that rarely results in changes in the rules, but it does allow the public to bring rules that need change to the FCC’s attention.
  • The FCC’s Media Bureau issued an Order to Pay or to Show Cause against an Alabama FM station, initiating a proceeding to revoke the station’s license unless, within 60 days, it pays delinquent regulatory fees and associated interest, administrative costs, and penalties. owed to the Federal Communications Commission (Commission). According to the Order, the FCC’s records indicate that the station currently has unpaid regulatory fee debt of $1,372.94 for FY 2021 and $1,478.34 for FY 2022. 
  • The Media Bureau requested comment on proposals to allocate new noncommercial TV channels to three communities, proposing to allot (1) reserved noncommercial educational (NCE) channel *3 to Tulare, California as the community’s first local television service; (2)   reserved NCE channel *4 to Alamogordo, New Mexico as the community’s first local television service; and (3) reserved noncommercial educational (NCE) channel *2 to Colusa, California as the community’s first local television service.  In all three cases (available here, here and here) comments and reply comments are due 30 and 45 days, respectively, after the proposal is published in the Federal Register.
  • On our Broadcast Law Blog this week, we published articles on the FEC request for comments on the use of Artificial Intelligence in political advertising (here) and on the RMLC’s request to consolidate the ASCAP and BMI rate setting proceedings and whether this could be a first step to consolidated all rate-setting for music royalties (here). 

In recent weeks, some of the radio trade magazines have been carrying coverage of the litigation between the Radio Music License Committee (RMLC) and ASCAP and BMI over the rates that will be paid by commercial radio broadcasters for the public performance of musical compositions that are licensed through these Performing Rights Organizations (PROs).   Negotiations over royalty rates are not new nor is the occasional litigation over those royalties However, because of changes in the law governing these processes, the arguments raised this year  are different and raise important new questions about what could be the first steps toward an entirely different, and perhaps fairer, process for resolving the royalties that broadcasters (and others) pay for the use of music.

What is different, and what are the arguments being made?  RMLC is arguing that the US District Court that oversees the antitrust consent decrees that govern ASCAP and BMI should consolidate the proceedings to determine the rates that broadcasters will pay, rather than considering those rates in separate proceedings.  If parties cannot agree with ASCAP and BMI as to the rates to be charged for the use of music for a particular purpose, a judge from the US District Court in the Southern District of New York conducts a proceeding as a “rate court” to determine a reasonable royalty rate, much as the Copyright Royalty Board does in establishing SoundExchange royalties for the digital public performance of sound recordings.  Because both the ASCAP and BMI agreements with the commercial radio industry have expired, proceedings are underway to determine the rates that radio will pay to these organizations. 

Continue Reading RMLC Requests Consolidation of ASCAP and BMI Proceeding on Radio Music Royalties – A Step Toward a Unified Process for Resolving All Music Royalty Issues? 

The Federal Election Commission last week voted to open for public comment the question of whether to start a rulemaking proceeding to declare that “deepfakes” or other AI technology used to generate false images of a candidate doing or saying something, without a disclosure that the image, audio or video, was generated by artificial intelligence and portrays fictitious statements and actions, violates the FEC’s rules.  The FEC rule that is allegedly being violated is one that prohibits a candidate or committee from fraudulently misrepresentating that they are “speaking or writing or otherwise acting for or on behalf of any other candidate or political party or employee or agent thereof on a matter which is damaging to such other candidate or political party or employee or agent thereof.”  In other words, the FEC rule prohibits one candidate or committee from falsely issuing statements in the name of an opposing candidate or committee.  The FEC approved the Draft Notice of Availability to initiate the request for public comment on a second rulemaking petition filed by the group Public Citizen, asking for this policy to be adopted.  This Notice of Availability was published in the Federal Register today, initiating the comment period.  The deadline for comments is October 16, 2023.  This is just a preliminary request for comments as to the merits of the Public Citizen petition, and whether the FEC should move forward with a more formal proceeding.

As we wrote in an article a few weeks ago, the FEC had a very similar Notice of Availability before it last month and took no action, after apparently expressing concerns that the FEC does not have statutory authority to regulate deliberately deceptive AI-produced content in campaign ads.  Apparently Public Citizen’s second petition adequately addressed that concern.  The Notice published in the Federal Register today at least starts the process, although it may be some time before any formal rules are adopted.  As we noted in our article, a few states have already taken action to require disclosures about AI content used in political ads, particularly those in state and local elections.  Thus far, there is no similar federal requirement. 

Continue Reading FEC Asks for Public Comment on Petition for Rulemaking on the Use of Artificial Intelligence in Political Ads

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 its Report and Order setting the annual regulatory fees that broadcasters must pay for 2023. The Order confirmed the FCC’s preliminary conclusion from its May Notice of Proposed Rulemaking to reallocate the costs of some of its employees who did not perform services that affected broadcasting away from broadcast services, thus substantially lowering broadcast regulatory fees for 2023.  TV stations will pay approximately 12% less than last year.  Radio fees will also decrease.  Radio stations with the smallest service areas will see the biggest decreases, as the FCC added a new lower tier of fees for the radio stations covering the fewest people (those serving fewer than 10,000 people).  We summarized the FCC’s preliminary conclusions in the Notice of Proposed Rulemaking in our Broadcast Law Blog article, here.  We expect that, in the next few days, the FCC will issue a Public Notice announcing the dates for the payment window.  We also expect that, as in the past, the Media Bureau will release a fee filing guide for the broadcast services.
  • The Federal Election Commission voted to open for public comment the question of whether to start a rulemaking proceeding to declare that “deepfakes” or other AI technology used to generate false images of a candidate doing or saying something, without being labeled as not being true images of the candidate, violate the FEC’s rules against fraudulently issuing a statement on behalf of a candidate or committee.  The FEC approved the Draft Notice of Availability to initiate the request for public comment on a rulemaking petition asking for this policy to be adopted.  Comment dates will be announced in a future Federal Register notice.    
  • In separate decisions (available here and here), the FCC’s Media Bureau found that a licensee of two FM stations in Florida had failed to satisfy the FCC’s criteria for changing the stations’ communities of license from small communities within urbanized areas to the central city in their urbanized area.  While the stations’ current communities had no other services licensed to them, in prior cases, the FCC had approved intra-urbanized area city of license changes, finding that all stations in the urbanized area really served the entire urbanized area so a move from one community in the area to another was inconsequential (see our article here).  Here, the FCC distinguished those past cases, finding them different because there was improvement in population coverage from technical changes included in the proposals that had been approved, while the applicants here proposed no change in their technical facilities.  Thus, the Media Bureau concluded that without such a public service benefit, these city of license changes, even though they were within an urbanized area, would not be a preferred arrangement of FM allotments, and asked the applicants for more information on any benefits that would accrue from the proposed changes. 
  • The FCC’s Media Bureau entered into a Consent Decree with an Oklahoma FM station to resolve the station’s failure to seek FCC authorization to remain silent for more than 30 days.  The station had been silent for nearly twelve months, but failed to timely notify the FCC that it had discontinued operations and did not timely seek special temporary authority to remain silent.  The station also conceded that it had failed to timely upload material to its online public inspection file.  The station agreed to pay a civil penalty of $5,000 to the US Treasury and implement a compliance plan to guard against future violations of its public file obligations.
  • The Media Bureau issued two decisions resolving mutually exclusive applications in its 2021 reserved band NCE FM filing window.
    • In one, it reaffirmed its selection of the tentative selectee for a construction permit for a new NCE FM station at Grand Forks, North Dakota, and its rejection of a competing applicant for that facility.  The Bureau found that the competing applicant had failed to claim points under the NCE comparative criteria at the time it filed its application, as required for any such claims to be credited.  The Bureau also found that the winning applicant had properly certified that there was no contour overlap between its proposed facility and its other stations, even though one exhibit in its application with a sentence that contradicted that claim, finding that the contradictory statement should be ignored as it was a scrivener’s error that was itself contradicted not only by the certification but by other maps and statements in the application.  Thus, the applicant was entitled to points under the diversity of ownership criterion and to be preferred over the applicant whose points claims came after the time for making such claims had passed.
    • In another case, the Bureau rescinded its selection of the tentative selectee for a construction permit for a new NCE FM station at West Lake, Florida and instead selected a competing applicant for the same facility at Cross City, Florida, who had petitioned the FCC to deny the West Lake application.  The Bureau found that the competing applicant was not entitled to the preference with which it had previously been credited for providing a first NCE service to a greater portion of its coverage area than competing applicants because it had failed to account for an FM station at Live Oak, Florida that was operating on commercial channel that had actually been reserved for NCE operation (in an NCE 307(b) coverage analysis, a preference is given to an applicant providing greater first NCE coverage it an area. In determining whether there is other NCE service in the area, only reserved-noncommercial stations are counted as providing such service).  The Live Oak station, even though it was operating on a commercial frequency, was operating on a channel that had been specifically reserved by the FCC for noncommercial use, and thus should have been counted in the analysis of other NCE stations in the service area of the applicant).
  • In separate decisions (available here, here, here, here, and here), the Bureau proposed to impose fines ranging from $1,500 to $3,000 on licensees of low power television stations and television translators in California, Michigan, Montana and Oregon for failing to timely file their license renewal applications.
  • The FCC issued a Public Notice seeking public comment on a petition for declaratory ruling filed by the licensee of three El Paso, TX radio stations, asking the FCC to find that it would serve the public interest to allow the licensee to accept foreign investment in excess of the 25% benchmarks set forth in section 310(b)(4) of the Communications Act by permitting a Mexican citizen to hold 100% of the equity and voting interests in the licensee’s controlling U.S. parent company. 
  • The Bureau issued a Hearing Designation Order to commence a hearing before an Administrative Law Judge to determine whether Antonio Cesar Guel, the former president and 100% direct owner of Hispanic Christian Community Network, Inc. (HCCN), the prior licensee of a total of seven low power television stations in five different states, misrepresented material facts and orchestrated an illusory transaction to transfer the stations to his niece.  The Order states that the record developed thus far “raises substantial and material questions” as to whether Guel’s niece really controls the stations or whether HCCN and/or Guel actually exercise control over the stations, and whether HCCN, Guel, and Guel’s niece engaged in misrepresentation and/or lack of candor before the FCC.  The Order ultimately seeks to determine (a) whether the licenses of the stations should be revoked; (b) whether the applications for renewal of the licenses of the stations should be granted, dismissed or denied; and/or (c) whether a fine should be assessed against Guel’s niece.

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.

  • FEMA and the FCC announced that this year’s Nationwide EAS Test is scheduled for October 4, 2023 (with a back-up date of October 11 in case there is a real or threatened emergency event around October 4).  FEMA will transmit the nationwide test of the EAS at 2:20 pm EDT on October 4, 2023, using the Integrated Public Alert and Warning System (IPAWS), the Internet-delivered warning system that has been required for broadcasters for about a dozen years. The test will be disseminated in English and Spanish as a Common Alerting Protocol (CAP) message using the Nationwide Test of the Emergency Alert System (NPT) code.  FEMA issued a Release announcing the test.  The FCC issued a much more extensive Public Notice which includes a list of recommended steps that broadcasters should take to prepare for the test.  The FCC Public Notice also reminds broadcasters that, by September 15, 2023, they should review and update, if necessary, their Form One information in ETRS.   Form One should have been filed by all broadcasters by February 28, 2023 (with some limited exemptions for translators and satellite stations) to provide the FCC with basic identifying information about the broadcaster and its EAS equipment.  The FCC Public Notice provides more details on ETRS filings, including the Form Two and Form Three filings due after the test to report on its results.  For more information, see our Broadcast Law Blog article here.
  • The FCC adopted its Order and Notice of Proposed Rulemaking (“NPRM”) proposing changes to the digital audio broadcasting rules to facilitate greater digital FM radio coverage.  The NPRM was issued in response to two petitions for rulemaking filed jointly by NAB and other parties (available here and here), asking the FCC to permit increased FM digital effective radiated power beyond the existing levels and to allow a digital FM station to operate with asymmetric power on the digital sidebands (for more details about these petitions, see our article here).  The FCC has tentatively concluded that both proposals have merit, and thus seeks comment on a number of specific questions including when a station can seek higher digital power without submitting a contour analysis or otherwise seeking Commission prior approval; whether stations planning asymmetrical side bands need to give notice to adjacent channel stations; whether there is a risk of interference to lower powered FM stations, secondary stations (LPFMs and translators), and even broadband operators who suggest possible interference to equipment that they operate on FM channels; and whether any potential interference calls for limits on the proposed rule changes.  Comments and reply comments on the NPRM will be due 30 days and 45 days, respectively, after the item is published in the Federal Register. 
  • The FCC’s Media Bureau announced the rules for the application filing window for new LPFM stations that is to open on November 1, 2023.  These rules will govern the processing and preparation of the applications.  Importantly, the Bureau also stated in the same announcement that, beginning September 1, 2023, it will impose a freeze on the filing of applications for changes in the facilities of FM translators and existing LPFM stations.  The freeze is meant to provide a stable database so that applicants in the LPFM window can accurately determine where there are available channels, and where there are stations or applications that need to be protected from interference.  The freeze will remain in effect at least until the end of the LPFM window on November 8, 2023. See our blog article here for more information.
  • The Media Bureau issued an Order and Notice of Apparent Liability for Forfeiture proposing to fine a Louisiana FM translator licensee $12,500 for purportedly failing to file the form required to obtain consent to change antennas, constructing and operating with an unauthorized antenna for approximately two months, and falsely certifying to construction as authorized.  The station had commenced operations with an antenna that had not been authorized by its construction permit and filed a license application certifying that the station had been built with the technical specifications in that permit. The Bureau was not persuaded to excuse the conduct by the licensee’s explanation that its originally authorized directional antenna arrived damaged, and, believing the repairs would not take long, it commenced operation with an unauthorized omnidirectional antenna at the same site at substantially lower power, not recognizing the legal significance of substituting the antenna even for a relatively brief period of time.
  • The Federal Election Commission announced its agenda for its August 10, 2023 meeting where it will consider whether to ask for public comment on a proposal to require the labeling of political ads that use Artificial Intelligence.  For more information, see its staff’s proposal on the matter.  We recently wrote on our blog about regulation of the use of Artificial Intelligence in political advertising.
  • On our blog this week, we provided more details of the Court of Appeals decision rejecting appeals of the Copyright Royalty Board’s 2021 decision setting webcasting royalty rates for 2021-2025.  We also posted our look at the regulatory dates of importance to broadcasters in August and early September.  

FEMA and the FCC announced that this year’s Nationwide EAS Test is scheduled for October 4, 2023 (with a back-up date of October 11 in case there is a real or threatened event that occurs around October 4).  FEMA will transmit the nationwide test of the EAS at 2:20 pm EDT on October 4, 2023 using the Integrated Public Alert and Warning System (IPAWS), the Internet-delivered warning system that has been required for broadcasters for about a dozen years. The test will be disseminated in English and Spanish as a Common Alerting Protocol (CAP) message using the Nationwide Test of the Emergency Alert System (NPT) code.  FEMA issued a Release announcing the test.  The FCC issued a much more extensive Public Notice which includes a list of recommended steps that broadcasters should take to prepare for the alert, and a reminder for broadcasters to be sure that their information in the EAS Test Reporting System (ETRS) is accurate and up-to-date. 

While the steps recommended by the FCC to prepare for the test are all somewhat obvious, they should still be reviewed by broadcasters to make sure that they have not overlooked anything that can enhance their preparation for the test.  Among the recommendations from the FCC are that the broadcaster review their role in their state’s EAS plan, and make sure that their equipment and software has been updated to the most current versions. The FCC also suggests making sure the EAS clock on station EAS equipment is synchronized with the official time used by the National Institute of Standards and Technology which is used by the IPAWS system.  Having an accessible EAS Official Handbook and reviewing the handbook for instructions on the operation of the EAS system is also on the FCC’s list.

Continue Reading Nationwide EAS Test Set for October 4 – Start Your Preparations Now

The FCC’s Media Bureau this week issued a Public Notice announcing the rules for filing applications for new Low Power FM stations during a filing window that will open on November 1 and close on November 8, 2023 at 6 PM EST.  As part of that announcement of the rules for the preparation and processing of applications to be submitted in the filing window, the Media Bureau stated that a freeze on the filing of applications for changes in the facilities of FM translators and existing LPFM stations would go into effect on September 1, 2023.  Thus, if you are planning any technical changes to any FM translator, or any change in an existing LPFM, file before midnight EST on August 31, 2023 to avoid processing delays.  The freeze will be in effect at least until the end of the LPFM filing window on November 8, 2023. 

The freeze is meant to provide a stable database so that applicants in the LPFM window can accurately determine where there are available channels, and where there are stations or applications that need to be protected from interference.  The Public Notice emphasizes that LPFM applications must protect all existing FM stations, all FM translators and LPFMs, and all translator and LPFM applications filed and accepted by the FCC by the end of August before the freeze goes into effect.

Continue Reading Looking at the Rules for the November Window for Filing for New LPFM Stations – and the September 1 Freeze on Changes in Existing FM Translator and LPFM Facilities

The US Court of Appeals for the DC Circuit issued a decision last week rejecting all of the appeals of the decision by the Copyright Royalty Board (“CRB”) setting the rates that noninteractive webcasters pay to SoundExchange for the digital public performance of sound recordings in the period 2021-2025 (see our article here on the 2021 CRB decision).  As detailed below, the Court rejected appeals from three parties, two that argued that the rates were set too high for specific classes of webcasters, and one from SoundExchange itself which argued that the rates should have been even higher.

As a reminder, the CRB rates apply to all companies who provide a non-interactive, internet-delivered steam of programming which includes recorded music or other audio content, including broadcasters who simulcast their over-the-air programming on the internet.  Congress established the process of setting rates through hearings by the CRB so that noninteractive webcasters would have access to all recorded and publicly released audio recordings without having to individually negotiate with each copyright holder (see our article here about the CRB’s responsibilities).  Services pay these “statutory royalties” to SoundExchange, observe certain requirements that limit how often particular recordings are played so as to not make the services a substitute for buying recordings or listening to them through on-demand services (which pay higher royalties negotiated directly with the copyright holder), and report to SoundExchange what they play.  SoundExchange collects the royalties and uses the reports of what the services played to distribute the royalties they collect.  One-half of the royalties collected go to the performers on the sound recording, and one-half to the copyright holders of the recording, usually the record labels that own the copyrights for sound recordings.

Continue Reading Court Rejects Appeals of Copyright Royalty Board Decision on 2021-2025 Webcasting Royalties