The FCC’s Further Notice of Proposed Rulemaking on annual regulatory fees was published in the Federal Register this week, setting the comment date in that proceeding as November 22, with reply comments due December 23. As we wrote when the FCC’s fee decision for 2019 fees was released, this Further Notice is examining a number of issues. For broadcasters, there are two directly relevant issues. First, there is a question as to whether there should be some reduction of the regulatory fees for VHF television stations and, if so, what that reduction should be. The FCC this year moved to basing regulatory fees for a TV station on its estimated population coverage. Some VHF station owners have argued that, because VHF stations are subject to much more interference and have worse building penetration than do UHF stations, their predicted coverage does not accurately reflect their potential audience as it may for UHF stations, and thus the do not receive the same benefits from their license and the associated regulation as does a UHF station. The Further Notice seeks comment on this issue.

The second issue is whether stations involved in the FCC’s incubator program (about which we wrote here) should receive pay lower fees in order to promote the economic success of these stations owned by new broadcast owners. The hope is that this program will encourage broadcast ownership diversity. While organizations advocating for broadcast diversity have supported this idea, the recent 3rd Circuit decision overturning the FCC’s recent ownership rules and remanding them to the FCC for further consideration (see our article here) has put the incubator program on hold for the time being. Nevertheless, interested parties can file on this question and on the issue of a reduction in fees for VHF stations, by the November 22 deadline.

The FCC last week released two decisions (here and here) addressing complaints from public interest groups against several TV stations alleging that the stations had not sufficiently disclosed in their online public files sufficient information about political issue advertising.  These decisions, as detailed below, will end up making life significantly more difficult for broadcasters running ads from non-candidate groups, as they will need to review each issue ad to come up with a list all of the issues of public importance discussed in the ad.  A perhaps unintended result may also be that there will be more disclosure in the public file of the cost of non-candidate political ads supporting or attacking state and local candidates when those ads mention Federal issues – as more and more ads dealing with state elections now do.  Watch as the ramifications of these decisions become clear in the coming months.

Background:  These decisions should not strike regular readers of this blog as particularly new, as these complaints were considered by the FCC’s Media Bureau in early 2017, under the former leadership of the FCC (see our article here).  When the new Republican-controlled Commission took over, the Media Bureau decisions were rescinded, as the new Commission felt that these issues should be considered by the Commissioners rather than at the Bureau level.  The decisions that resulted from this additional review come to much the same result as had the Media Bureau decision, though some of the explanations are more detailed.  In making the decision more detailed, the Commission may have made the acceptance of political ads from non-candidate groups even more troublesome for broadcasters than these ads have been in the past.  What do these rulings provide? Continue Reading FCC Issues “Clarifications” of Political Broadcasting Public File Disclosure Requirements – Significantly More Disclosures to Be Required on Issue Ads

In recent weeks, Facebook has been criticized for adopting a policy of not censoring advertising and other content posted on its platforms by political candidates.  While Facebook apparently will review content whose veracity is challenged when posted by anyone else, it made an exception for posts by political candidates – and has received much heat from many of those candidates, including some who are currently in Congress.  In some cases, these criticisms have suggested that broadcasters have taken a different position and made content-based decisions on candidate ads.  In fact, Congress itself long ago imposed in Section 315(a) of the Communications Act a “no censorship” requirement on broadcasters for ads by federal, state, and local candidates.  Once a candidate is legally qualified and once a station decides to accept advertising for a political race, it cannot reject candidate ads based on their content.  And for Federal candidates, broadcasters must accept those ads once a political campaign has started, under the reasonable access rules that apply only to federal candidates.

In fact, as we wrote here, broadcasters are immune from any legal claims that may arise from the content of over-the-air candidate ads, based on Supreme Court decisions. Since broadcasters cannot censor ads placed by candidates, the Court has ruled, broadcasters cannot be held responsible for the content of those ads.  If a candidate’s ad is defamatory, or if it infringes on someone’s copyright, the aggrieved party has a remedy against the candidate who sponsored the ad, but that party has no remedy against the broadcaster.  (In contrast, when a broadcaster receives an ad from a non-candidate group that is claimed to be false, it can reject the ad based on its content, so it has potential liability if it does not pull the ad once it is aware of its falsity – see our article here for more information about what to do when confronted with issues about the truth of a third-party ad).  This immunity from liability for statements made in candidate ads absolves the broadcaster from having to referee the truth or falsity of political ads which, as is evident in today’s politically fragmented world, may well be perceived differently by different people.  So, even though Facebook is taking the same position in not censoring candidate ads as Congress has required broadcasters to take, should it be held to a different standard?  Continue Reading Facebook Criticized for Not Censoring Candidate Ads – Even Though Congress Requires No Censorship from Broadcasters

Global Music Rights (most commonly known as GMR), the newest of the major performing rights organizations (PROs) licensing public performances of musical compositions, filed a lawsuit against radio operator Entravision Communications earlier this month. The suit alleges that Entravision failed to pay GMR royalties for the public performance of hundreds of compositions written by GMR songwriters. According to the complaint, GMR sent Entravision several letters over the last few years, notifying Entravision that it was playing GMR music and asking that it enter into a license to play that music. When no license was signed or even requested after these multiple requests, the lawsuit was filed.

The suit seeks $150,000 for each copyrighted work that was allegedly infringed – the maximum set out by the Copyright Act for “statutory damages,” i.e. damages that can be collected even without providing evidence of actual harm caused by the alleged copyright infringement. While Courts have discretion to order far lower statutory damages than those being sought here, even the threat of such damages have been enough to put many of the original file-sharing music sites out of business. Of course, in this case, these damages are being sought not from some company that provides unlimited downloads of unlicensed music, but from a publicly traded radio company presumably already paying other performing rights organizations for the use of music. Continue Reading GMR Sues Entravision for Royalty Payments – Looking at the Issues Raised By This New Development in the Music Royalty Wars

The National Association of Broadcasters and APTS (America’s Public Television Stations – the associations of public television stations) have filed a Petition for Rulemaking seeking to expand the area in which licensees can locate distributed transmission system transmitters (also known as single frequency networks), in connection with ATSC 3.0 operations. With the new ATSC 3.0 transmission system soon to be rolled out commercially by some TV stations, multiple transmitters on the same frequency can amplify a station’s signal, rather than causing destructive interference to it. Thus, rather than operating with single big transmitter in the center of a station’s service area, with signal strength decreasing as one moves away from that transmitter, a station could instead construct multiple transmitter sites throughout its service area, providing more uniform coverage and filling in what might otherwise be service gaps within its market in areas blocked by terrain obstructions, or otherwise remote, from the station’s main transmitter site.  NAB and APTS claim that current rules need to be amended to allow stations to best take advantage of the potential for DTS technology.

Under the current rules, TV stations cannot use a distributed transmission site to extend their signals beyond the interference-free contour of the full-power station. Under their proposal, APTS and NAB suggest that these distributed transmission sites could be located anywhere in the market as long as they do not extend the interference contour of the station – for UHF stations, the DTS transmitter’s 36 dBu would not be able to exceed the 36 dBu of the reference station.   The proponents of this idea suggest that it would allow stations to improve service to remote portions of their service areas.

The FCC has put this petition for rulemaking out for public comment. Comments are due by November 12, and reply comments are due by November 27, 2019. This is just a request for preliminary comments as to whether or not the FCC should proceed on this proposal. After receiving comments, the FCC will review them and if they conclude that the proposal has merit and support, the FCC will issue a Notice of Proposed Rulemaking seeking additional comments on a more specific FCC proposal for amending the rules. If you are interested in the NAB/APTS proposal, send in your comments by the November deadline.

On Friday, we wrote about the auction that the FCC is planning for next April for construction permits for 130 new FM stations. As we noted in that article, the FCC will usually announce a freeze on FM applications or proposed allotments that could affect any of those channels. Later Friday, the FCC announced that it was imposing that freeze – effective immediately. That freeze prohibits any application that would limit applications at the reference points of any channel included in the auction. The freeze also prohibits any rulemaking or proposed allotment that would limit applications at those reference points, as well as any change in the channel or reference points for any of the proposed new stations. So, until long-form applications are filed by winning applicants after the auction, at which point the freeze will lift, all FM applications and rulemakings need to protect these 130 channels. Watch for more information about the proposed auction in the coming months.

It has been many years since the FCC conducted an auction of new FM channels, principally due to its preoccupation with the TV incentive auction. But that is about to change as the FCC announced yesterday that it is planning a new FM auction starting on April 28, 2020, and issued a request for comment on the procedures to be used for the auction. The FCC is taking comment on the proposed auction procedures through November 6, with reply comments due by November 20. 130 vacant channels will be available for bid. The list of vacant channels is available here. Channels will be available across the country, with Texas and Wyoming having the most vacant channels in this auction list.

Working backward from the anticipated April 28 start date and using prior auctions as a guide, initial filings for the channels would likely be due early in the new year. “Upfront” payments equal to or greater than the minimum payments for the channels that an applicant ultimately wins in the auction will probably be due a month or so before the start of the auction. To protect the allotments during an auction, the FCC typically imposes a freeze on the filing of FM modification applications. So be on the alert for an announcement of such a freeze. (Addendum, 10/14/2019 – the Freeze was imposed on Friday – see our post here for details). Continue Reading FCC Plans Auction in April for the Rights to Build New FM Stations

A pattern is being established – $15,000 and a short-term, 2-year license renewal seem to have become the standard penalty for stations that are missing all of their Quarterly Issues Programs Lists for a license renewal term.  Yesterday, the FCC’s Media Bureau issued a proposed fine to a Virginia station that had failed to complete any Quarterly Issues Programs lists during its 8-year license renewal term.  The proposed $15,000 fine, and a renewal for only 2 years rather than the normal 8-year term, is the same penalty proposed two weeks ago in another case (which we wrote about here) where a station had similar problems.  These two cases seem to announce that this is the base penalty for stations that simply have not bothered to complete any Quarterly Issues Programs lists.

Yet to be seen is what happens when a broadcaster has completed some but not all of the required public file paperwork.  Last week, the FCC granted many of the license renewal applications from the first round of radio license renewals (for stations in Maryland, Virginia, West Virginia and the District of Columbia).  The granted applications were the ones that had few if any problems.  With the FCC having acted at the two extremes – renewal grants for those with no issues and $15,000 fines and short-term renewals for those with significant issues – the Commission now needs to fill in the holes, deciding what to do with those applicants that fell somewhere between these two extremes.  Watch for decisions from the FCC to see whether penalties are imposed on stations that fall in the middle in coming months. Continue Reading Another $15,000 Fine Proposed for Missing Issues Programs Lists – And a Fine for a Late-Filed Renewal

Yesterday, the FCC extended the deadline for LPTV stations and TV translators to file for reimbursement for their expenses incurred in changing channels because of the repacking of the TV band following the TV incentive auction.  These stations were given an extra month until November 14 to file these requests.  See our articles here and here for more information about the reimbursement program.  It is important to note that FM stations, which also can file for reimbursement of expenses incurred from having to change their facilities co-located on TV towers as a result of the repacking, have not been granted any extension.  FM stations still need to seek reimbursement by October 15, the original filing deadline.  FM stations seeking reimbursement need to be working now to meet next week’s deadline.

We recently wrote about some of the challenges for e-cig advertising based on Federal and state actions to restrict the sale of flavored vaping products. Even though advertising for e-cigarettes is not currently illegal at the Federal level (see our articles here and here that discuss the disclaimer that must accompany those ads and the requirement that ads should not make health claims or target children), there are moves to change that position (including the announcement we wrote about last month of an anticipated ban on flavored vaping products). While changes to those rules have not yet been implemented , a recent set of letters from a Congressional committee to the manufacturers of e-cigs suggests that they stop marketing vaping products (or at least report to the committee whether or not they have stopped such advertising) while various government reviews of health issues associated with vaping and the marketing of vaping products are taking place. Among these reviews is a just-announced proceeding by the Federal Trade Commission to look at the marketing practices of e-cig companies. The detailed questions sent to the e-cig companies indicate that the FTC intends a very thorough review of all aspects of these marketing programs.

These Federal actions have been combined with announcements in many states looking toward significant regulation of the vaping industry. As we wrote last month, Michigan’s governor has announced a ban on the sale of flavored e-cig products. The text of the order implementing that announcement has now been released. Other states are following suit, with a ban in Massachusetts reportedly in place, and actions in Washington State and Ohio being considered. Many municipalities are also looking at similar restrictions. Continue Reading More Challenges for E-Cigs Ads – Congress and FTC Looking at Marketing Practices While States Impose Bans