The FCC’s 2024 decision to reinstate Form 395-B, after its use had been paused for over 20 years, was invalidated this week by a decision of the US Court of Appeals for the Fifth Circuit.  In yet another instance of courts limiting the authority of administrative agencies, the Fifth Circuit judges found that the FCC has no statutory authority to require the filing and public posting of the form requiring broadcasters to report on the race and gender of all of their employees.  In reaching this decision, the Court made clear that the FCC’s authority to regulate “in the public interest” is not an authority that is unlimited, but instead is one that must be grounded in specific duties that the FCC has been given by Congress in the Communications Act.  The Commission cannot impose obligations on broadcasters under the public interest standard simply because a majority of the Commissioners believe that new rules would somehow make broadcast service better – they can only act in areas that Congress specifically said that they can act.  That aspect of the Court’s decision may have a significant impact in assessing the validity of current and future obligations imposed by the FCC on broadcasters.

The FCC’s decision to reinstate the Form 395-B was very controversial.  In the late 1990s and early 2000s, the FCC’s EEO policies were twice struck down by the courts as unconstitutional as they forced hiring based on racial or gender.  The Form 395-B provided the information used by the FCC to make the decisions that the courts found to be discriminatory.  Given the form’s direct relationship with the FCC actions that had been found unconstitutional, after these court decisions, the FCC suspended the use of the form. 

Continue Reading Court Finds FCC Has No Authority to Require EEO Form 395-B – And Narrows Scope of the Public Interest Standard

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 extended the deadline for TV broadcasters to comply with the audible crawl rule’s until the earlier of May 27, 2026 or until the FCC rules on the National Association of Broadcasters’ petition for rulemaking proposing that broadcast stations be permitted to comply by providing “textual crawls that provide emergency information duplicative or equivalent to the information conveyed by the visual image” (see our previous coverage here, here, and here).  The audible crawl rule requires all commercial and noncommercial full-power TV, Class A TV, LPTV, and TV translator stations to use the station’s secondary audio channel to provide aural descriptions of visual but non-textual emergency information (e.g., weather radar images) broadcast during non-news programming.  This requirement has been consistently delayed since the FCC adopted it in 2013, most recently through May 27, 2025 (see our note here), because no technology yet exists to automatically convert this graphic information into speech.  The Bureau noted that any harm caused by extending the compliance deadline was minimal because the graphic information is generally duplicative of textual information that stations already describe aurally.  The FCC urged broadcasters to make any emergency information accessible to all while the revision of the rule is being considered. 
  • FCC Commissioner Simington appeared in two media interviews this week discussing various FCC matters including the future of broadcast regulation:
    • Simington posted a cable news interview on X in which he stated that there are “too many people regulating broadcast media and micromanaging it to a degree where there’s almost not even predictability over whether a deal will go through or whether a practice will be allowed,” and expressed his support for calls to “DOGE the FCC.”  This follows an article published last week by Simington and his Chief of Staff, Gavin Wax, advocating for DOGE-style reform of the FCC, which we noted here.
    • Simington also appeared on a British podcast in which he discussed various matters regarding broadcast regulation.  On FCC regulation of news distortion, Simington stated that while the FCC should not be “a ministry of truth,” it should step in during limited but important circumstances, such as such the deliberate misrepresentation of a newsworthy event, citing the Center for American Rights’ news distortion complaint against CBS.  On reverse retransmission consent fees, Simington stated that the government must take a serious look into whether they serve the public interest because the fees force broadcasters to choose between disaffiliating and losing access to network programming or staying affiliated and absorbing financial losses that force cuts to their newsrooms (earlier this month we noted Simington’s proposal to cap such fees). 
  • Related to the news distortion complaint against CBS, Senators Markey (D-MA) and Lujan (D-NM) sent FCC Chairman Carr a letter urging him to ensure that the Paramount-Skydance merger is approved through an affirmative vote by the full Commission, as opposed to delegating the matter to the Media Bureau for consideration, given the high-profile nature of the deal and because of the need for transparency because Paramount is considering settling what the letter terms its “frivolous” litigation with President Trump.  The Senators state that the transaction is unique among mergers reviewed by the Commission given the unrelated lawsuit by President Trump against CBS for its supposed deceptive editing of the interview with then-Vice President Harris which, as we noted here, here, and here, is the basis of the news distortion complaint pending with the FCC. As we noted here, here, here, here, here, and here, the Paramount-Skydance transfer applications propose that David Ellison acquire a controlling stake in the company and become its Chairman and CEO.
    • Democratic FCC Commissioner Anna Gomez continued her “First Amendment Tour” with a speech to the DC-based Media Institute, expressing concerns that the FCC licensing process is being used for political purposes, alluding to fallout from the CBS investigation in her examples of instances where she thinks that the FCC is stepping on First Amendment freedoms.   
  • The Enforcement Bureau has recently issued several Notices of Violation against tower owners warning them of observed violations of the FCC’s tower rules.  These NOVs were issued after the Bureau’s field agents conducted investigations of the tower sites prompted by complaints about tower lighting outages.  The Bureau issued an NOV against a New York tower owner for failing to comply with the FCC’s rules governing tower lighting and painting, the requirements to notify the FCC regarding tower ownership changes, and the tower lighting observation and outage reporting requirements.  The Bureau also issued an NOV against a California tower owner for failing to provide the FCC with its updated contact information, failing to extend its Notices to Airmen (NOTAM) with the FAA concerning its tower lighting outage (a NOTAM is to be submitted by a tower owner to the FAA when there are tower lighting outages to warn pilots of the potential hazard), and failing to repair that outage.  Last month, the Bureau issued an NOV against another New York tower owner for failing to notify the FCC regarding its acquisition of the tower.  The tower owners must now explain to the Bureau how it will correct their FCC rule violations and prevent future violations from occurring.  These NOVs should put all tower owners on notice that the Bureau is actively investigating tower lighting outage complaints, which can result in the Bureau finding additional FCC rule violations and potentially issuing fines for those violations.  See our Broadcast Law Blog articles here, here, and here for more information about rule violations that led to FCC fines for failing to update the required Antenna Structure Registrations (FCC records of who owns a tower), for not keeping accurate records of the monitoring of tower lights, and for not reporting tower lighting outages. 
  • The FCC’s Enforcement Bureau entered into a Consent Decree with a Floria pirate broadcaster to resolve its investigation of his illegal operations.  In January 2024, the Bureau proposed a $358,665 fine against the individual for its pirate broadcasting.  Due to the individual’s demonstrated inability to pay the fine and because he ceased pirate broadcasting, the fine was reduced by the Consent Decree to a $11,000 civil penalty, but the individual must pay a further penalty of $347,665 if he engages or assists anyone else in pirate broadcasting during the Consent Decree’s 20-year term.
  • Also on pirate radio, the Enforcement Bureau issued a Notice of Illegal Pirate Radio Broadcasting to a Bronx, New York landowner for allegedly allowing a pirate to broadcast from its property.  The Bureau warned the landowner that the FCC may issue a fine of up to $2,453,218 under the PIRATE Radio Act if the landowner continues to permit pirate radio broadcasting from its property after receiving this notice.
  • The Media Bureau granted a Massachusetts LPFM construction permit application over an objection alleging that the applicant did not provide acceptable evidence of its established community presence (meaning that the applicant existed as a nonprofit educational organization for at least two years and was either physically headquartered or 75% of its board members resided within 10 miles of its proposed station’s transmitter site) to qualify for points under the FCC’s point system analysis.  The Bureau found that the applicant’s submission of documentation showing that it was incorporated in Massachusetts and a list of board members’ addresses was acceptable evidence of its established community presence. 

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.

  • FCC Commissioner Simington and his Chief of Staff, Gavin Wax, published an article advocating for DOGE-style reform of the FCC.  Their article proposes several reforms of the FCC, including streamlining the FCC’s Media Bureau – noting that much of its resources are dedicated to broadcasters, who “continue[] to contract in relevance.” The article suggests that the Media Bureau has exceeded its legal authority by increasingly becoming involved in content regulation and competition policy yet, nevertheless, they reiterate their call for the Media Bureau to investigate reverse retransmission agreements between broadcast stations and networks (we discussed that proposal in our weekly summary last week, here) and broadcaster carriage negotiations with virtual Multichannel Video Programming Distributors.  Simington and Wax also suggest that manual application processing by the Bureau staff be replaced by automated workflows to reduce staffing needs. 
  • A group of 22 Republican Senators, led by Senator Jerry Moran (Kansas) sent a letter to FCC Chairman Carr urging the Commission to move swiftly to modernize the broadcast ownership rules so that broadcasters can better compete against digital media services offered by the big tech companies that now vie for audience, content, and advertising.  The letter suggests that a relaxation of the rules is needed so that broadcasters can survive in the digital age and continue offering the local services that local communities need.  A copy of Moran’s press release and the text of the letter are available on his website here. 
  • Comments were filed responding to the National Association of Broadcasters’ petition for rulemaking asking for a hard deadline for full-power TV stations to complete the transition to the new ATSC 3.0 transmission standard.  As we discussed here, the NAB proposes that the transition occur in two phases: TV stations in the top 55 markets would transition by February 2028; and TV stations in remaining markets would transition by February 2030.  Comments were mixed in their position on the NAB’s petition.  Among the comments filed were those from broadcasters (see here, here, here, and here) and other commenters (see here, here, and here) stating that setting a hard transition deadline is necessary for a smooth and effective transition and urging the FCC to end broadcasters’ obligation to simulcast in ATSC 1.0 and 3.0 because doing so is preventing broadcasters from deploying ATSC 3.0’s full benefits.  Public interest groups and other commenters (see here, here, and here) state that the ATSC 3.0 transition should remain voluntary for broadcasters because a mandatory transition would impose significant and unjustifiable burdens on consumers who would have to absorb new equipment costs, navigate technical complexities, and potentially lose access to free over-the-air television.  If the NAB’s petition is granted, Public Knowledge and other commenters urge the FCC to impose rigorous regulatory oversight of broadcasters to protect consumer privacy and to prevent anticompetitive conduct, which they claim will result from ATSC 3.0 operations due to the standard’s dependance on internet connectivity and data encryption.  Multichannel Video Programmer Distributors (see here and here) urge the FCC to deny the NAB’s petition due to the costs and burdens that the transition would impose on cable and satellite providers without creating any benefits for their subscribers.  The MVPDs also claim that the must carry and retransmission consent rules should not be extended to ATSC 3.0 signals because they are now unconstitutional due to changes in the video marketplace. 
    • At the same time, a consumer interest group submitted a letter to the Senate Commerce Committee urging it to intervene at the FCC to oppose the NAB’s ATSC 3.0 transition petition because mandating ATSC 3.0 tuners in all new television sets would force Americans to pay for a product which consumers have not yet demanded in the free market. They suggest that the ATSC 3.0 transition be voluntary and driven by consumer demand and market forces.
  • The Senate Commerce Committee held a hearing titled “Field of Streams: The New Channel Guide for Sports Fans” which examined changes in how Americans watch live professional sports on television, including how traditional over-the-air broadcasts are increasingly supplemented or replaced by streaming platforms.  The hearing featured testimony from Kenny Gersh, Executive Vice President of Media and Business Development, MLB, William Koeing, President of Global Content and Media Distribution, NBA, David Proper, Senior Executive Vice President of Media and International Strategy, NHL, and John Bergmayer, Legal Director, Public Knowledge.  A recording of the hearing can be found here.
  • The FCC’s Enforcement Bureau issued two Notices  of Illegal Pirate Radio Broadcasting against landowners in New York City and Springfield Gardens, New York for allegedly allowing pirates to broadcast from their properties.  The Bureau warned the landowners that the FCC may issue fines of up to $2,453,218 under the PIRATE Radio Act if the FCC determines that the landowners continue to permit pirate radio broadcasting from their properties after receiving this notice.
  • The Media Bureau entered into a Consent Decree with a New York AM station to resolve its investigation resulting from an objection claiming that the station did not comply with its Online Public Inspection File requirements.  The Bureau found that the station failed to timely upload Issues/Programs lists between Q2 2022 and Q4 2024 and its renewal post-filing notification certification, but that it did not violate its political file requirements as it did not receive any political advertising requests during the period investigated. The Consent Decree requires the station to enter into a compliance plan to ensure future compliance with its OPIF requirements. 

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.

  • President Trump signed an Executive Order purporting to end federal subsidies for NPR and PBS provided through the Corporation for Public Broadcasting (CPB).  The EO states that government funding of news media is outdated, unnecessary, and corrosive to journalistic independence, claiming that CPB failed to abide by impartiality principles in subsidizing NPR and PBS as neither network presents a fair, accurate, or unbiased portrayal of current events.  Separately, President Trump removed three of the five CPB board members.  CPB sued Trump in response, pointing to federal law and a U.S. Supreme Court ruling to contend that the President does not have such removal power.
  • FCC Commissioner Simington and his new Chief of Staff, Gavin Wax, published an article proposing that the FCC cap at 30% the amount that any national TV network can receive from reverse retransmission fees (the revenue from cable and satellite television retransmission consent fees paid to affiliated local TV stations that the stations then pay to their broadcast networks).  The article claims that a cap on payments to the networks would provide more financial support for local programming provided by the affiliates instead of benefitting what Simington and Wax perceive as the biased and political messages provided by corporate media outlets owning the broadcast networks.
  • The FCC released a Notice of Proposed Rulemaking proposing updates to its foreign ownership rules under Section 310(b) of the Communications Act of 1934 applicable to many FCC licensees, including broadcasters.  Section 310(b) prohibits foreign entities, individuals, and governments from holding ownership interests of more than 20% in an FCC licensee and ownership interests of more than 25% in a U.S. entity that directly or indirectly controls an FCC licensee.  FCC licensees, however, can ask the FCC to approve foreign ownership interests above the 25% threshold.  We wrote more about the draft NPRM here. 
  • Both the U.S. House of Representatives and the FCC initiated actions to require public disclosure by FCC-regulated entities, including broadcasters, that are owned or controlled by foreign adversaries:
    • The House passed the Foreign Adversary Transparency Act, which directs the FCC to publish a list of FCC-regulated entities, including broadcasters, that are owned or controlled by foreign adversaries.  The bill requires the FCC to post the list on its website within 120 days of the bill’s enactment for certain telecommunications providers and within 1 year after the FCC adopts rules implementing the bill for all other FCC-regulated entities, including broadcasters.  The bill also requires the FCC to annually update the list.  The bill must pass in the Senate and then be signed by President Trump before becoming law.
    • The FCC released a draft NPRM that, if adopted at its next Open Meeting on May 22, would propose requiring certain FCC-regulated entities and auction applicants, including all broadcast licensees and permittees, to file a certification stating if they are owned or controlled by a foreign adversary, which the FCC proposes to mean the Peoples’ Republic of China, Cuba, Iran, North Korea, Russia, and Venezuela.  Entities certifying yes would then need to disclose all foreign adversary ownership interests of 5% or greater and the nature of the foreign adversary’s control.  They would also need to report changes in such interests within 30 days.  The FCC proposes to revoke FCC authorizations for entities filing false or incomplete certifications or for failing to file certifications when required.  For broadcasters, the FCC seeks comment on whether to use the broadcast ownership rules’ attribution criteria for determining a foreign adversary’s attribution to a broadcaster, and whether to make any changes to the existing foreign sponsorship identification rules to require disclosures for programming provided by foreign adversaries. 
  • At the press conference after the FCC’s Open Meeting, FCC Chairman Carr stated that the FCC’s review of the Center for American Rights’ news distortion complaint against a CBS-owned TV station (see our discussion here, here, and here) remains ongoing.  Carr also stated that the broadcast networks were potentially using network affiliation agreements to exercise too much control over local broadcasters, which could lead to ownership attribution issues.    
  • The FCC’s Media Bureau issued a Public Notice seeking comment on HC2 Broadcasting Holdings, Inc.’s petition for rulemaking proposing to allow LPTV stations to operate on a voluntary basis using the 5G transmission standard as an alternative to the ATSC 1.0 and 3.0 transmission standards.  This proposal to allow LPTV stations to use the 5G standard would not apply to LPTV stations with must-carry status to avoid imposing new burdens on cable systems by forcing such systems to adapt their technology to allow carriage of 5G stations.  Comments and reply comments responding to HC2’s petition are due June 2 and July 1, respectively. 
  • Reply comments were filed in the FCC’s “Delete, Delete, Delete” proceeding in which the FCC sought to identify rules, including those applicable to broadcasters, for modification or deletion (see our discussion here).  Copies of the over 150 reply comments filed can be found here.  The National Association of Broadcasters and many broadcasters (including here, here, here, here, and here) urge the FCC to repeal its local radio and television ownership rules to ensure the broadcast industry’s viability.  The NCTA – The Internet & Television Association asserts that the FCC must maintain the broadcast ownership rules to protect competition and consumers.  The National Association of Black Owned Broadcasters argues that repealing the ownership rules would reduce opportunities for minority broadcast ownership.  Several broadcasters (including here and here) urge the FCC to repeal many other rules because they are unnecessary and burdensome for stations to comply with including the children’s television programming rules, the OPIF requirements, the EEO rules, and the twelve-month continuous operating condition imposed on broadcast station licenses.  Other broadcasters (including here and here) ask the FCC to resist calls to repeal its must carry and retransmission consent rules which they argue are needed to keep MVPDs’ market power in check.  Free Press and Public Knowledge filed to remind the FCC that any substantive rule change must undergo separate notice and comment proceedings under the Administrative Procedure Act before taking place. 
  • The FCC’s Enforcement Bureau issued three Notices of Illegal Pirate Radio Broadcasting against landowners in Boston, Massachusetts, Worcester, Massachusetts, and Brooklyn, New York for allegedly allowing pirates to broadcast from their properties.  The Bureau warned the landowners that the FCC may issue fines of up to $2,453,218 under the PIRATE Radio Act if the FCC determines that the landowners continue to permit pirate radio broadcasting from their properties after receiving these notices.
  • The FCC’s Media Bureau and Office of Managing Director issued an Order to Pay or to Show Cause against a Kentucky 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 $9,261.41 for fiscal years 2013, 2014, 2015, 2016, 2022, and 2023.
  • The Media Bureau entered into three Consent Decrees with TV stations located in Rancho Palos Verdes, Twentynine Palms, and Ventura, California for failing to timely upload documents to their Online Public Inspection Files.  The Bureau found that the Twentynine Palms station uploaded 31 Issues/Program lists and 23 commercial limits certifications late, the Ventura station uploaded 26 Issues/Program lists and 21 commercial limits certifications late, and the Rancho Palos Verdes station uploaded 27 Issues/Programs lists and 20 commercial limits certifications late.  The Bureau also found that the Rancho Palos Verdes station failed to timely file its license application, which was filed more than three years after commencing operations and nine months after its construction permit expired.  The Consent Decrees require each station to enter into a compliance plan to prevent future FCC rule violations and to pay civil penalties in the amounts of $42,500 for the Rancho Palos Verdes station and $32,500 each for the Twentynine Palms and the Ventura stations.
  • The Media Bureau granted the requests of three TV stations located in Kansas, Kentucky, and Louisiana to remain on their existing channels because they cannot complete construction of new facilities on different channels to which they were authorized to move by the deadlines for that construction.  The Bureau granted the following updates to the TV Table of Allotments to reflect the stations’ continued operation of their existing channels: substituting Channel 12 for Channel 28 at Wichita, Kansas; substituting Channel 8 for Channel 24 at Monroe, Louisiana; and substituting Channel 12 for Channel 20 at Hazard, Kentucky. 

On our Broadcast Law Blog, we highlighted upcoming regulatory dates and deadlines in May affecting broadcasters, including the effective date of increased application fees, comments in proceedings on EAS and the ATSC 3.0 transition, and the start of lowest unit rate windows for a number of elections, including those for primaries for NY City mayor and Virginia’s governor and many of its state legislators.  We also published an article looking at possible changes to the FCC’s local broadcast ownership rules for radio and TV and when and how those changes might take place.

In many of the comments filed by broadcasters and their representatives in the FCC’s “Delete, Delete, Delete” docket, high on the list of rules suggested for deletion were the local broadcast ownership restrictions.  Changes in these rules were also a subject high on the discussion list in Las Vegas at the recent NAB Convention.  With all of the interest in changes to these rules, we thought that we should spend a little time looking at the possible routes by which FCC action on changes to the ownership rules could occur.

First, it should be noted that the local ownership rules are different from the national cap on television ownership which, as we recently wrote, the NAB has asked the FCC to abolish.  A review of the 39% national audience cap was started in the Pai administration at the FCC (see our article here), and the NAB is seeking to revive and resolve that proceeding, arguing that national caps are no longer necessary given the competition from so many other national video services that are unrestrained by any ownership limitations.

Continue Reading Local Broadcast Ownership Rules – How Could Ownership Deregulation Play Out? 

While May is one of those months that does not have any routine, scheduled FCC filing deadlines, there are still a number of regulatory dates and deadlines that are worthy of note for broadcasters.  As detailed below, this includes comment deadlines in several FCC rulemaking proceedings, the effective date of the FCC’s application fee increases (including fees for broadcast station applications), the deadline for LPTV to Class A conversion applications, and the tentative deadline for TV stations to begin complying with the FCC’s audible crawl rule if it is not extended again.  As always, remember to keep in touch with your legal and regulatory advisors to make sure that you don’t overlook any other regulatory deadlines we may have missed here or ones that are specific to your station.

One May date with potential broad interest is May 23 – the effective date of the FCC’s January Order increasing its application fees by an average of more than 17%, including those for broadcast station applications, to reflect changes in the Consumer Price Index.  We previously provided more details on our Broadcast Law Blog on the increases and suggested that, where possible (e.g., in connection with internal company reorganizations or for planned technical changes), broadcasters file applications as soon as possible to beat the implementation of these increased fees.

Continue Reading May 2025 Regulatory Dates for Broadcasters – Comment Deadlines on ATSC 3.0 and EAS, Application Fee Increases, Audible Crawl Rule, Political File Windows, and More

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

  • The FCC announced that May 23 is the effective date of its January Order increasing its application fees, including those for broadcast station applications, by an average of more than 17% to reflect changes in the Consumer Price Index.  When the Order was issued, as we noted here, then FCC Chairman-designate Carr issued a concurring statement highlighting that the fee increases would unduly burden FCC-regulated entities, but reluctantly voted to approve the increases as the FCC is statutorily required to adjust its fees to reflect inflation.  When the revised fees were announced, we provided more details on the specific increases in fees for various broadcast applications on our Broadcast Law Blog.
  • The National Association of Broadcasters filed comments with the Office of Management and Budget arguing that the OMB should not approve the expansion adopted in June 2024 of the FCC’s foreign sponsorship identification rules, expanding the requirement that broadcasters determine whether those who “lease” program time are foreign government agents to cover buyers of advertising spot time that is not for a commercial product or service (e.g., paid PSAs and issue ads, see the discussion on our Blog here).  The expanded rules require OMB approval before they can take effect.  The NAB contends that the expanded rules are unlawful, exceed the FCC’s statutory authority, violate broadcasters’ First Amendment rights, and conflict with the Trump Administration’s deregulation policies.  The NAB also contends that the FCC significantly underestimates the burdens that the new rules will place on thousands of broadcast stations and their advertisers and sponsors.  As we discussed here, the NAB is separately challenging this expansion of the rules in court. 
  • Gray Television filed a petition for rehearing of the U.S. Court of Appeals for the 11th Circuit’s Opinion vacating the FCC’s $518,283 fine against Gray for violating the FCC’s Top-4 Prohibition but agreeing that Gray violated the rule (see our discussion here).  The Prohibition restricts TV station licensees from acquiring the network affiliation or license of another in-market TV station when the licensee would hold two of the Top-4 rated TV stations in a Designated Market Area as a result of the transaction.  Gray requests that the full 11th Circuit vacate the decision for reasons including that the FCC lacked statutory authority to enforce the Top-4 Prohibition and because the FCC’s fine violated Gray’s right to a jury trial under the Seventh Amendment following the Supreme Court’s recent decision in SEC v. Jarkesy and the Fifth Circuit’s decision in AT&T v. FCC, which, as we discussed in our weekly summary last week, undermines the FCC’s authority to issue fines.  
  • The Center for American Rights filed a news distortion complaint with the FCC against ABC, CBS, and NBC for their recent news reports regarding a Maryland man who is a permanent U.S. resident that a federal court found was wrongly deported to El Salvador by the Trump Administration.  CAR claims that the broadcast networks intentionally distorted key facts regarding the circumstances of the individual’s deportation, including failing to state that he was an illegal alien and not a permanent U.S. resident, and that an immigration judge found him to be a member of the MS-13 gang.  CAR cites some of FCC Chairman Carr’s statements on X in its complaint, including Carr’s statements in February regarding the lack of public trust in legacy media and Carr’s statement last week regarding Comcast’s coverage of this particular issue.
  • FCC Commissioner Gomez announced that she will participate in a nationwide series of speaking engagements and listening sessions focused on protecting the First Amendment’s rights and freedoms.  The events will also provide Gomez with a forum for engaging stakeholders and the public in a discussion on how the FCC is being weaponized to attack freedom of speech in the media sector – including its recent investigations of broadcasters for their newsroom editorial decisions – instead of focusing on the agency’s core mission of connecting the public, protecting consumers, and supporting competition.  The events will be open to the public and livestreamed where possible. 
  • The FCC announced in the Federal Register that comments are due June 20 addressing the following proposals of radio stations to change their community of license: WQVD(AM), from Orange-Athol, Massachusetts, to Paxton, Massachusetts; WXRS(AM), from Wainsboro, Georgia, to Henderson, Georgia; KAZK(FM), from Willcox, Arizona, to Catalina, Arizona; KCRQ(FM), from Junction, Texas, to Cherry Spring, Texas; KRXD(FM), from McNary, Arizona, to Wagon Wheel, Arizona; WQBG(FM), from Elizabethville, Pennsylvania, to Carroll Township, Pennsylvania; and WQKX(FM), from Sunbury, Pennsylvania, to Elizabethville, Pennsylvania.
  • The FCC’s Media Bureau announced that May 23 is the deadline for eligible applicants to file construction permit applications for the FM Channel 260C0 Tribal Allotment at Ethete, Wyoming, which is on the Wind River Reservation.  The filing window is open only to the Tribal entity that requested the channel and other eligible Tribes or Tribal entities who demonstrate their eligibility to file for the Tribal Allotment. 
  • The Enforcement Bureau issued Notices of Violation against two Florida LPFM stations operated by the same licensee (here and here) after field inspections revealed that the stations were operating at power levels more than eight and nine times the levels authorized by their licenses.  The stations must now explain to the Bureau how they will correct the rule violation and prevent future violations from occurring.
  • The FCC’s Enforcement Bureau issued a Notice of Illegal Pirate Radio Broadcasting against a Hartford, Connecticut 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 $2,453,218 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 granted a TV station’s proposal to substitute UHF channel 15 for VHF channel 11 at Price, Utah.  The Bureau found that the proposed substitution complied with the FCC’s technical rules and that no viewers would lose service due to the channel change because the station had not commenced operations on its existing channel.  The Bureau also agreed that the substitution would allow the station to avoid the known viewer reception issues on its currently authorized VHF channel. 
  • The Media Bureau granted two mutually exclusive construction permit applications for new Texas LPFM stations on a time-sharing basis after denying a third mutually exclusive construction permit application due to its applicant’s failure to respond to a petition to deny filed against the application.  Since the Bureau found that the remaining applicants qualified for the same number of points under the points system analysis used to evaluate mutually exclusive LPFM applications, the Bureau ordered the applicants to submit a time-sharing proposal or it would impose one on the stations. 

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 US Court of Appeals for the Fifth Circuit issued a decision that raises significant questions about the FCC’s ability to fine entities that it regulates for violations of its rules.  The Court’s decision overturned a $57 million FCC-imposed fine on AT&T for not adequately protecting the location data of some of its mobile phone users, finding that the imposition of the fine violated the company’s 7th Amendment rights to a jury trial.  The Court cited the Supreme Court’s Jarkesy decision from last year, holding that administrative agencies cannot issue fines that are analogous to penalties at common law without affording the right to a jury trial to those accused of the violation.  The Fifth Circuit’s decision focused on the fine on AT&T being a monetary penalty paid to the US Treasury and that it was not associated with any reimbursement to injured parties, and it determined that AT&T’s alleged failure to safeguard customer data was analogous to a negligence action where a defendant is entitled to a jury trial.  Commissioner Simington has been consistently dissenting from decisions where the FCC imposes fines on regulated entities, including broadcasters, since the Jarkesy decision was issued (see his statement here calling on the FCC to review its authority to issue fines, which we noted in our Broadcast Law Blog’s look at issues that might be addressed by this new administration at the FCC), and this case magnifies those concerns.  Look for future court cases or FCC actions to further define the FCC’s ability to issue fines in light of this decision. 
  • Comments were due last week in the FCC’s “Delete, Delete, Delete” proceeding in which the FCC sought to identify FCC rules, including those applicable to broadcasters, that are worthy of modification or deletion (see our discussion here).  Copies of the nearly 900 comments filed can be found here.  Commenters called on the FCC to eliminate most of its ownership rules, including the national television ownership cap, the local television ownership rule, and the radio ownership rule.  There were also calls to eliminate online public file requirements, biennial ownership report requirements, and the FCC’s equal employment opportunities rules.  Commenters also recommended eliminating or reforming children’s television programming requirements and the news distortion policy.  Several commenters made suggestions regarding repeal or reform of technical rules, including rules impacting everything from ATSC 3.0 to FM translators.  MVPD interests called for elimination or reform of TV carriage-related rules including non-duplication and syndicated exclusivity rules and must carry requirements.  Watch for further developments as the FCC processes these comments. 
  • The FCC’s Enforcement Bureau issued a Notice of Violation against a Puerto Rico AM station licensed to operate with a two-tower directional array that was found to be transmitting from a single tower without requesting Special Temporary Authority to operate at variance from its license.  The station must now explain to the Bureau how it will correct the rule violations and prevent future violations from occurring.
  • The FCC’s Media Bureau entered into a Consent Decree with the licensee of a group of Nevada TV translator stations due to its filing of the translators’ license renewal application over four months late and over one month after their licenses had expired, and for operating the translators without authorization after their licenses had expired.  The Consent Decree requires that the licensee enter into a compliance plan to ensure that future FCC rule violations do not occur.
  • President Trump stated this week (see here and here) that CBS should lose its broadcast station licenses for 60 Minutes’ alleged false and defamatory coverage of Trump during the 2020 and 2024 presidential elections as well as its recent coverage of the President’s policies concerning Greenland.  Trump also stated that he hoped that FCC Chairman Carr would impose the maximum fines and penalties on CBS stations for 60 Minutes’ news coverage. 
  • Chairman Carr stated this week that Comcast was ignoring its public interest obligations by misleading the public by implying in recent news reports regarding a Maryland man, who is a permanent U.S. resident that a federal court found was wrongly deported to El Salvador by the Trump Administration, was “merely a law abiding U.S. citizen.”  Instead, Carr implied that Comcast was engaging in news distortion by, in his view, failing to inform its viewers that the man was a member of the MS-13 gang and failing to disclose that he was denied bond by a federal immigration court for failing to show why he did not pose a danger to the public. 
  • During a visit to a Philadelphia NPR and PBS affiliate, FCC Commissioner Gomez stated that the FCC’s recent investigations into public broadcasters (see our discussion here) “threaten to create a new kind of news desert—one where communities can’t access the local critical information they need.”  Instead, Gomez stated that the FCC “must prioritize protecting and expanding the public’s access to timely, accurate news, free from political interference.”  Gomez visit to the Philadelphia public broadcaster is, according the FCC press release issued in connection with the trip, part of a series of such visits by the Commissioner to engage with local broadcasters to better understand the current media landscape and to draw attention to how the FCC’s recent investigations of PBS and NPR affiliates can disrupt their distribution of local news and emergency information that is vital to such stations’ public interest obligations. 

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 NAB and SoundExchange filed with the Copyright Royalty Board a proposed settlement of the pending litigation over the 2026-2030 royalty rates to be paid to performers and copyright holders (usually the record companies) for the public performance of sound recordings.  Broadcasters pay these royalties to SoundExchange for streaming music online, including through mobile apps and to smart speakers.  The current rate is $0.0025 per Performance (a performance is every time one listener hears a song – so, for example, if a station has 10 listeners during an hour and they each hear 10 songs, that is 100 Performances).  The settlement’s proposed rates for 2026 to 2030 are as follows: 2026 – $0.0028 per Performance; 2027 – $0.0029 per Performance; 2028 – $0.0030 per Performance; 2029 – $0.0031 per Performance; and 2030 – $0.0032 per Performance.  For more on this settlement, see our Broadcast Law Blog article here. 
  • The FCC’s Media Bureau granted an assignment application permitting a broadcaster to acquire two of the top-4 ranked TV stations in the Eureka, CA Designated Market Area (DMA).  The FCC’s ownership rules allow a single entity to own two of the top-4 ranked TV stations in the same market only if they can show that the public interest would be advanced by such a combination. In the last administration, these combinations were rarely approved – and, when approved, the review process tended to be long.  Here, the Bureau granted this application in about 90 days, finding that the continuation of the combination of the Eureka market’s NBC and CBS affiliates (a full power TV and LPTV station, respectively) was in the public interest.  Both stations provide local news each weekday, and the failure to allow the combination to continue might lead to a reduction in local news if the stations were forced to be separately owned.  The Bureau also found that the DMA’s small population and large geographic area made it costly for a broadcaster to serve the entire market, and a prospective broadcaster would need to invest significant amounts of capital on which a return would be unlikely to build out the LPTV station to operate on a standalone basis without the full-power TV station’s resources to assist its operations. 
  • The FCC’s Media Bureau issued a Public Notice seeking comment on the National Association of Broadcasters’ petition for rulemaking asking for a hard deadline for full-power TV stations to complete the transition to the new ATSC 3.0 transmission standard.  The NAB proposes that the transition occur in two phases.  TV stations in the top 55 markets would be required to transition by February 2028; and TV stations in remaining markets would have a transition deadline of February 2030.  The NAB asks for several rule changes to assist with the transition, including requiring that new TV sets sold after February 2028 be ATSC 3.0-compatible, and updating the MVPD carriage rules to reflect the proposed transition deadlines.  The NAB also proposes that the FCC eliminate the “substantially similar” requirement (requiring that stations’ ATSC 3.0 principal broadcast stream replicate their ATSC 1.0 broadcast) earlier than the current July 17, 2027 sunset date.  In the Notice, the Bureau also seeks comment on the NAB-led Future of Television Initiative Report, released in January, detailing the findings of a process initiated by the NAB and FCC to bring together stakeholders from across the TV industry (including consumer advocates) to make recommendations for the successful deployment of the ATSC 3.0 standard (see our discussion here).  Comments and reply comments responding to the NAB’s petition and its report are due May 7 and June 6, respectively. 
  • The FCC released a draft Notice of Proposed Rulemaking proposing updates to its foreign ownership rules that are applicable to many FCC licensees, including broadcasters.  Section 310(b) of the Communications Act prohibits foreign entities, individuals, and governments from holding ownership interests of more than 20% in an FCC licensee, but it allows foreign ownership interests of more than 25% in a U.S. entity that directly or indirectly controls an FCC licensee where such ownership will not harm the public interest.  In the NPRM, the FCC proposes to codify and streamline its review procedures for applications proposing greater than 25% foreign ownership of a parent company.  The FCC seeks comment on several issues specific to broadcasters including whether it should pause or continue processing station applications while a Section 310(b) petition remains pending, and how it should determine foreign ownership levels of noncommercial and LPFM stations given their unique structures. 
  • The Senate Committee on Commerce, Science, & Transportation held a confirmation hearing on Olivia Trusty’s nomination as the fifth FCC Commissioner, filling the vacancy left when former FCC Chairwoman Rosenworcel resigned in January.  A wide range of FCC-related issues were discussed at the hearing.  In answers to senator’s questions, Trusty stated that the FCC should promote policies allowing broadcasters to better compete against technology companies for advertising and audience, while increasing the availability of local news.  Trusty also affirmed her support for the First Amendment and agreed that the FCC should not conduct investigations for political purposes.  A recording of the hearing can be found here.
  • The U.S. Court of Appeals for the D.C. Circuit heard oral argument in the NAB’s appeal of the FCC’s June 2024 Foreign Sponsorship Identification Report and Order which expanded the requirement that broadcasters determine whether those who “lease” program time on their stations are foreign government agents.  The 2024 decision expanded the requirement that broadcasters obtain certifications that buyers are not agents of foreign governments to include not just buyers of “leased” programs, but also buyers of spots not for commercial products or sponsored by political candidates (see our discussion here).  This would expand the requirement to include buyers of issue ads and paid PSAs.  The NAB argued that the Order violated the Administrative Procedure Act by not providing notice of the proposed expansion of the rule’s coverage, exceeded the FCC’s statutory authority, and violated the First Amendment.  Most of the judges’ questions were devoted to examining whether the FCC had provided adequate notice of its rule changes and the legal force of the FCC’s revised interpretation of “lease.”  A recording of the oral argument can be found here.
  • President Trump issued two presidential actions furthering his deregulatory agenda and efforts to exert control over independent agencies, such as the FCC.  Trump issued a memorandum requiring federal agencies to quickly repeal regulations inconsistent with recent Supreme Court decisions (such as its decision overturning the Chevron doctrine, which, as we discussed here, had required courts to defer to expert regulatory agencies like the FCC when interpreting ambiguous statutes), or that are otherwise unlawful.  The memorandum directs agencies to do so “immediately” without using the typical process of first requiring notice to and comment from the public.  Trump also issued an Executive Order directing agencies to identify anticompetitive regulations creating monopolies or setting barriers to the entry of new competitors and provide a list of the regulations that should be repealed or modified to the FTC Chairman and the Attorney General by June 18.
  • The Media Bureau granted a TV station’s proposed community of license change from Silver City, New Mexico, to Truth or Consequences, New Mexico, and the amendment of the TV Table of Allotments to reflect this change.  The Bureau found that granting the station’s proposed community of license change was in the public interest because the change would add a first local service to Truth or Consequences, would provide a first service to over 10,000 people that currently reside in areas without any full power TV service, and would not deprive Silver City of its sole local service. 
  • The Media Bureau acted on four new LPFM construction permit applications:
    • The Bureau dismissed three new Arizona LPFM construction permit applications filed by the same applicant because it failed to demonstrate its eligibility to be an LPFM licensee as a public safety radio service provider (which must be a local government or other nonprofit providing emergency services in its service area) and provided insufficient grounds for waiving the FCC’s rule prohibiting LPFM licensees from also holding interests in commercial broadcast stations.  The applicant sought a waiver to continue holding its commercial LPTV stations based on its status as a Tribal organization and its intent to provide noncommercial public safety radio service with the LPFM stations.  The Bureau rejected the applicant’s request, finding that it was a for-profit entity, ineligible to hold an LPFM license, and its ownership of for-profit LPTV stations violated the cross-ownership limitations – noting that the FCC did not intend for the LPFM service to be an adjunct to co-owned commercial media services.
    • The Bureau granted a new Colorado LPFM construction permit application over an objection claiming that the application violated the FCC’s LPFM minimum distance separation requirements with respect to a nearby first-adjacent FM translator.  The Bureau rejected the objector’s claims, finding that the proposed LPFM station complied with the FCC’s minimum spacing requirements – requirements that were recently clarified in another FCC decision.

On our Broadcast Law Blog, we provided more information on the NAB’s request submitted the week before last asking the FCC to quickly repeal the 39% cap on national ownership of television stations.

As we have noted, a proceeding before the Copyright Royalty Board to set the rates to be paid to SoundExchange for the public performance of music by a non-interactive commercial webcasting service for 2026-2030 started last year, and is scheduled to be completed by the end of 2025.  SoundExchange and one of the major webcasting parties remaining in the case, the NAB, this week filed with the Copyright Royalty Board a proposed settlement of the current litigation over the royalty rates to be paid to performers and copyright holders (usually the record companies).  These are the royalties that commercial broadcasters pay to SoundExchange for streaming music online, including through mobile apps and to smart speakers.  The current rate is $.0025 per Performance (a performance is every time a song is heard by one listener – so, for example, if a station has 10 listeners during an hour and they each hear 10 songs, that is 100 Performances).  And, under the settlement, the rates will be going up, effective January 1, 2026.

The rates proposed in the settlement are as follows:

2026: $0.0028 per Performance;

2027: $0.0029 per Performance;

2028: $0.0030 per Performance;

2029: $0.0031 per Performance; and

2030: $0.0032 per Performance

The CRB case is currently set to go to trial on April 28, a week’s extension having just been granted, perhaps because of this week’s resignation of the Chief Judge of the CRB and the appointment of an interim judge (that announcement is on the CRB’s homepage).  The NAB had been advocating for substantially lower rates for broadcast simulcasts given their total lack of interactivity.  The argument is that simulcast streams, which simply rebroadcast the programming of a commercial broadcast station and are not influenced by “likes” or a user’s favorite songs or artists, should be charged less than those offered by services that allow some degree of user customization, tailoring the stream provided to the user based on their preferences, while still remaining a noninteractive service (see our articles here and here on the difference between noninteractive streams that pay SoundExchange at the rates set by the CRB and those offered by interactive services that must negotiate agreements with the record companies to play their songs).  See our article here on the Court decision upholding the 2021-2025 royalties which rejected a similar argument by the NAB. By settling, it appears that the NAB opted for certainty in establishing rates modestly higher in each of the next five years rather than incurring the substantial cost of litigating over what the rates should be and the uncertainty that comes with any litigation – as SoundExchange was asking for rates substantially higher than those set out in the settlement. 

Continue Reading Settlement Between NAB and SoundExchange on Webcasting Royalty Rates for 2026-2030 – Rates are Going Up for Broadcast Simulcasts