This week, I spent some time at the Podcast Movement Annual Convention, this year held in the DC area.  While the convention is always a good time to catch up with industry friends and to spot new trends (AI was, of course, a topic that was discussed on several panels as it is at virtually every media conference these days), it was also a reminder that with all that has been going on at the FCC and with other regulations, we have not written much about podcasting in the recent past.  Previously, we have covered many issues related to the use of music in podcasts (see, for instance, our articles here, here, and here).  We’ve written about other legal issues that need to be considered in connection with podcasting including getting releases from guests, making sure that ownership of the podcast is clear (an issue potentially of more importance if the Federal Trade Commission’s ban on noncompete agreements in employment contracts goes into effect, as it could result in more changes in employment of employees working on podcasts, though the effective date of any noncompete ban is questionable based on a court action this week that throws out that ban – a decision likely to be appealed), and other issues that I covered in the slides from a presentation presented at the Podcast Movement conference several years ago that remain relevant.   Today, I thought that I would revisit another topic from my prior coverage of podcast legal issues, one that was given new urgency by another recent FTC ruling – sponsorship identification. 

Broadcasters are familiar with the FCC requirements for the identification of those who provide something of value to a station in exchange for any on-air content.  Fines can be issued (and big payments under consent decrees have resulted see, for instance, the cases we noted here and here) from broadcasters who do not follow the FCC’s sponsorship identification rules.  But broadcasters are not as familiar with the fact that the FTC also has rules about sponsorship identification requirements that go beyond the FCC’s obligations, looking at questions including the truthfulness of endorsements and testimonials for products and services.  FTC enforcement can be as severe, if not more severe, than that of the FCC (see, for instance, the FTC’s fines we wrote about two years ago on Google and a broadcaster for having DJs talk about their use of Pixel phones that they had not in fact used).  The FTC last week expanded on its policies by adopting a final rule prohibiting the purchase and sale of fake reviews and testimonials concerning products and services, and allowing the agency to seek civil penalties against knowing violators.  Among other things, the new rule prohibits activities including the buying or selling of fake consumer reviews or testimonials, buying positive or negative consumer reviews, using certain insiders to create consumer reviews or testimonials without clearly disclosing their relationships, creating a company-controlled review website that falsely purports to provide independent reviews, using certain review suppression practices, and selling or purchasing fake indicators of social media influence.  We plan to write more about this FTC decision in the near future, but it is important to note that these FTC policies apply with equal force to podcasters and any other online communications medium.

Continue Reading Podcasters and Broadcasters – Disclose Those Sponsors! 

Here are some of the regulatory developments of significance to broadcasters from this 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 oppositions are due August 27 in response to the National Association of Broadcasters’ petition for reconsideration of the FCC’s June decision to reinstate the rule prohibiting programming duplication by commonly owned or operated commercial FM stations serving the same area.  The NAB argues that the FCC had no basis for reinstating the rule and it failed to seek public comment to determine if there were any real public interest issues that developed during the four years that the rule was not in effect.  See last week’s article on our Broadcast Law Blog for more on the nonduplication rule and the issues raised by the NAB’s petition.  Replies to oppositions to the petition are due September 6.
  • The FTC announced a final rule prohibiting the purchase and sale of fake reviews and testimonials concerning products and services, and allowing the agency to seek civil penalties against knowing violators.  Among other things, the rule prohibits activities including the selling or purchasing of fake consumer reviews or testimonials, buying positive or negative consumer reviews, certain insiders creating consumer reviews or testimonials without clearly disclosing their relationships, creating a company-controlled review website that falsely purports to provide independent reviews, certain review suppression practices, and selling or purchasing fake indicators of social media influence. The FTC also stated that the FTC Act prohibits any deceptive or unfair practice involving reviews or testimonials that are not covered by the rule.  In discussing the prohibited acts, the FTC specifically noted the penalties it imposed in 2022 on Google and a large broadcaster when Google paid the broadcaster to have its radio DJs promote their use of the Pixel 4 phones when they had not in fact used those phones (see our article on that case for more details).
  • There was activity in both the FCC and the Federal Election Commission proceedings about requirements for labeling the use of Artificial Intelligence in political advertising.
    • A group of 40 public interest groups signed on to a letter urging the FCC to adopt the rules it proposed that would require broadcasters and other FCC regulated entities to include disclosures, both on the air and in their public files, of political ads using AI. The letter (available here on the website of one group, but not yet included in the FCC docket file for this proceeding) suggests that the rule be applied to mandate disclosures in both candidate and issue advertising, but the letter includes no analysis of the Communications Act ban on broadcasters censoring a candidate ad.  See our Broadcast Law Blog article for a discussion of this and other issues arising from the FCC proposal.
    • The FEC meeting scheduled for August 15 was cancelled.  At that meeting, the FEC was scheduled to consider a Notification of Disposition circulated by the Republican Commissioners proposing to reject a Petition asking that the FEC start a rulemaking to consider restrictions on the use of AI in political ads.  A new FEC meeting is now scheduled for August 29, at which time the Republican proposal may be discussed.  See our Blog article summarizing the impact of this proposed Notification. 
  • The FCC announced that its July Report and Order requiring that device manufacturers and Multichannel Video Programming Distributors make closed captioning display settings “readily accessible” to individuals who are deaf or hard of hearing will be effective September 16.  We noted some of the findings as to what is readily accessible in our weekly summary when the FCC’s Order was first adopted.  The requirement applies to all U.S.-manufactured devices using a picture screen that are designed to receive or play back video programming simultaneously with sound (such as televisions, smartphones, tablets, and computers).  MVPDs that provide their customers with covered devices to use their services must comply with the requirement.  MVPDs, however, are not required to comply with the new rules until the later of August 17, 2026 (two years after the Order’s publication) or after the Office and Management Budget finishes its review of the new rules.
  • The FCC’s Media Bureau, along with the FCC’s Managing Director, issued an Order to Pay or to Shaw Cause to an AM and an FM station in Mississippi proposing to revoke the stations’ licenses unless, within 60 days, the stations pay their delinquent regulatory fees and interest, administrative costs, and penalties, or to show that the debts are not owed or should be waived or deferred.  The FM station has an unpaid regulatory fee debt totaling $9,062.22 for fiscal years 2013 through 2020, 2022, and 2023.  The AM station has an unpaid regulatory fee debt totaling $9,825.07 for those fiscal years.
  • The Media Bureau fined a Tennessee FM translator $4,875 for filing its license renewal application almost four years late and engaging in unauthorized operations after its license had expired.  In July, the Bureau proposed a $6,500 fine against the translator, but reduced the fine to $4,875 due to its licensee’s long history of compliance with FCC rules.
  • The Media Bureau also acted on three LPFM construction permit applications:
    • The Bureau granted a Michigan LPFM construction permit application over allegations that the proposed LPFM station failed to protect a proposed FM translator station and that the applicant failed to meet the LPFM localism requirement because neither its headquarters nor 75% of its board members’ residences were within required radius of its proposed LPFM station’s transmitter site.  The Bureau found that protecting the proposed translator was not required because LPFM applicants’ obligation to protect proposed stations only extends to applications filed prior to the release of the LPFM filing window procedures Public Notice on July 31, 2023.  The Bureau also found that there was no credible evidence that the applicant’s headquarters and its board members’ residences were not local.
    • The Bureau dismissed a Louisiana LPFM construction permit application for its applicant’s failure to meet the LPFM localism requirement because its headquarters was roughly 148 miles from its LPFM station’s proposed transmitter site, and therefore beyond the 20-mile radius limit to qualify as local. 
    • The Bureau dismissed a Texas LPFM construction permit application because its applicant failed to provide evidence of its eligibility to be an LPFM licensee as a nonprofit educational institution or organization under Texas law. 

On our Broadcast Law Blog, we discussed the obligation of EAS Participants, including broadcasters, to file their EAS Test Reporting System (ETRS) Form One by October 4, 2024, even though there is no nationwide EAS Test scheduled for this year.

With a number of upcoming regulatory deadlines approaching, including regulatory fees that will likely be announced in the next two weeks with a payment deadline before October 1, we thought that this would be a good time to remind broadcasters of EAS filing obligation that they may have missed as there has not been the widespread publicity that comes with the announcement of a Nationwide EAS test.  While there is apparently no plan to conduct a Nationwide Test this year, broadcasters still must file their EAS Test Reporting System (ETRS) Form One by October 4, 2024.  Filing instructions were provided in the Public Notice issued by the FCC earlier this month (see also our articles here, here and here about past deadlines for filing of the form).  All EAS Participants with limited exceptions are required to register and file in ETRS – including Low Power FM stations (LPFM), Class D non-commercial educational FM stations, and stations that are silent pursuant to a grant of Special Temporary Authority.  The only broadcast exemptions are LPTV stations that operate as television broadcast translator stations, FM broadcast booster stations and FM translator stations that entirely rebroadcast the programming of other local FM broadcast stations, and analog and digital broadcast stations that operate as satellites or repeaters of a “hub” station (or common studio or control point if there is no hub station) and rebroadcast 100 percent of the programming of the hub station (the hub station itself of course having an obligation to file the form). 

This form provides basic information about EAS participants to the FCC. The form requests contact persons at a station, the model of EAS equipment used, and monitoring assignments under the legacy EAS system. In effect, it registers all EAS users in the ETRS system so that they can file reports (using ETRS Forms Two and Three) about the performance of Nationwide EAS tests that are periodically conducted.  For prior filers, much of the information can be pre-filled from prior Form One submissions.  While there is no Nationwide Test scheduled, the FCC still requires this information to track EAS performance of all EAS participants, and the rules require that the form be submitted each year.  We have previously expressed concern about the FCC taking enforcement actions against broadcasters who don’t submit this required form.  So, we are reminding you to file – and carefully read the Public Notice and the form to make sure that all necessary information is properly uploaded by the October 4 deadline.

The agenda for the Federal Election Commission’s August 15 Open Meeting was released last week, and it contains a proposed Notification of Disposition of the FEC’s review of a July 2023 petition for rulemaking filed by the advocacy group Public Citizen seeking to initiate a proceeding to address the use of Artificial Intelligence in campaign communications.  The FEC asked for public comment on that petition last August (see our article here).  The draft Notification and accompanying memorandum circulated by the three Republican members of the FEC proposes to deny the request to initiate such a proceeding.  As the FEC has equal representation of Democrats and Republicans, even if all of the Democrats disagree with the position advocated in the Notification, it would appear that the proposal would still be on hold for the foreseeable future as there would not be a majority of Commissioners necessary to move it forward.

The Public Citizen petition asked that the FEC “clarify that the [Federal Election Campaign Act’s prohibitions] against ‘fraudulent misrepresentation’ (52 U.S.C. § 30124) applies to deliberately deceptive AI-produced content in campaign communications.”  The draft Notification finds that the FEC lacks the statutory authority to initiate the proceeding – that the fraudulent misrepresentation language applies to a misrepresentation of a sponsor of a campaign ad, not to misleading messages in the ads themselves.  The Notice also contends that the FEC is “ill-positioned to take on the issue of AI regulation and does not have the technical expertise required to design appropriately tailored rules for AI-generated advertising.”  The draft notice suggests that, before any action is taken by the FEC, Congress must first authorize it.   

Continue Reading FEC Appears Ready to Take a Pass on Regulating AI in Political Ads

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

  • The FCC’s Public Safety and Homeland Security Bureau announced that October 4 is the deadline for EAS Participants to file their annual Emergency Alert System Test Reporting System (ETRS) Form One – which requires EAS Participants, including broadcasters, to provide information regarding their EAS equipment and monitoring assignments along with other relevant data.  While there is no nationwide EAS test scheduled for this year, the FCC requires all EAS Participants to annually update their EAS information in the ETRS database by filing an ETRS Form One.
  • In other EAS news, the FCC adopted a Report and Order establishing a new Emergency Alert Service event code for persons over the age of 17 who are missing or abducted from states, territories, or tribal communities (known as Ashanti Alerts).  To allow time for implementing the Ashanti Alerts, the new event code will not become effective until twelve months after the Order’s publication in the Federal Register. 
  • The National Association of Broadcasters filed pleadings with the FCC asking for reconsideration of the reinstatement of the FM nonduplication rule and asking for more time to comment on the FCC’s proposed AI disclosure requirement for political advertising:
    • The NAB filed a petition for reconsideration of the FCC’s June decision to reinstate the rule prohibiting the duplication of programming on commercial FM stations serving the same area.  The reinstatement the was the result of a petition filed by music industry groups and an LPFM advocacy group asking for reconsideration of a 2020 FCC decision that had abolished the rule.  The rule prohibits commonly owned or operated commercial FM stations with overlapping 70 dbu service contours from duplicating more than 25% of their programming.  The NAB argues that the FCC had no basis for reinstating the rule and failed to seek public comment to determine if, in the 4 years when the rule was not in effect, any real public interest issues developed from its absence.  See the article on our Broadcast Law Blog on the specific requirements of the rule, the issues raised by the NAB’s petition for reconsideration, and the music industry’s recent activity seeking more broadcast regulation, possibly as a reaction to broadcast radio not paying a performance royalty for the broadcast of sound recordings.
    • The NAB, along with the Motion Picture Association, filed a request to extend the comment and reply deadlines for the FCC’s Notice of Proposed Rulemaking proposing that broadcasters and cable operators be required to disclose, both on the air and in their Online Public Inspection Files, the use of AI-generated content in political advertisements.  The NAB and MPA seek to delay the NPRM’s comment and reply comment deadlines to October 4 (currently September 4) and November 4 (currently September 19) to ensure that the public has sufficient time to provide a meaningful response to the proposals, noting that there is no need for the FCC to rush the proceeding as new rules cannot be effective in time for the November election.
      • Also on the topic of AI in political advertising, the Federal Election Commission’s Republican Commissioners circulated a draft decision that will be considered at the agency’s next Open Meeting on August 15, proposing to reject a petition for rulemaking to initiate a rulemaking proceeding on the use of AI in campaign communications due to their belief that the FEC lacked authority to make rules about such uses.  We will have more on the FEC’s decision on our Broadcast Law Blog on Monday.
  • The FCC’s Office of Communications Business Opportunities announced the FCC’s plan to review rules adopted in 2013 to determine whether such rules should be amended, repealed, or continued without change.  Under the Regulatory Flexibility Act, the FCC is required to review all rules after they have been in effect 10 years to determine if they are still necessary.  The Public Notice lists the rules subject to review, which includes several rules applicable to broadcast stations, including rules on LPFM allocations, interference to AM stations from other Commission licensees operating near an AM tower, and mandating accessibility to emergency information.  Comments in the proceeding will be due 60 days after the notice’s publication in the Federal Register.
  • The FCC’s Enforcement Bureau proposed a $14,000 fine against a group of radio stations for allegedly failing to conduct a nationwide contest as advertised.  Specifically, the Bureau found that the stations failed to select and notify 50 out of the 297 contest’s winners on a timely basis as promised by the contest rules.
  • The FCC reversed the Media Bureau’s dismissal of a modification application for an LPFM station and grant of mutually exclusive FM translator modification application.  The Bureau had dismissed the modification application of a St. Louis Park, Minnesota LPFM and granted the mutually exclusive modification of a Plymouth, Minnesota FM translator station because the St. Louis Park station failed to protect a short-spaced LPFM station in St. Paul, Minnesota, finding that the LPFM had filed its application prematurely, hours before St. Paul station’s license was to expire instead of after its expiration, and that its proposed facilities created impermissible short-spacing to the Plymouth translator.  The FCC found that the Bureau’s dismissal of the St. Louis Park application conflicted with agency policy against dismissing an application for technical defects (the failure to protect the St. Paul station) if the defect is eliminated before a staff decision on the application (here, the St. Paul station’s license expiration).  Consistent with agency policy, the FCC also found that the St. Louis Park station could file an amendment to resolve its Plymouth translator short-spacing issue – which the applicant now has 30 days to do.
  • The Media Bureau granted TBS and TNT’s request for a three-year waiver of the audio description rules which require the top five cable networks to air 87.5 hours of audio described programming per quarter.  In one of our weekly summaries earlier this summer, we noted that the networks claimed that their inability to count “repeats” of described programming kept them from meeting the requirements of the rule, even though they transmitted far more than the minimum amounts of such programming. The Bureau granted the request with certain conditions for each cable network, including that TBS and TNT must air a minimum amount of audio-described programming per quarter and must describe all newly produced, non-live programming aired between 6:00 a.m. and midnight. 
  • The Media Bureau also released a Report and Order substituting Channel 285C1 for vacant Channel 235C1 at Canadian, Texas to allow an FM station in Panhandle, Texas to move from Channel 291C3 to Channel 235C3.  The Bureau found that granting the channel substitution was in the public interest because it will enable the FM station to enhance service to its community of license and the surrounding areas.  In the future, the Bureau will announce the opening of a filing window for construction permit applications for a new station on vacant Channel 285C1 at Canadian. 
  • The Media Bureau denied a request to reinstate an Arizona AM station’s license that expired pursuant to Section 312(g) of the Communications Act, but agreed to reinstate its FM translator.  The Bureau previously ordered the station and its translator to cease operations after finding that their licenses were cancelled automatically pursuant to Section 312(g) because the AM station operated for more than one year from a site without authorization after its Special Temporary Authority had expired, and the FM translator could only rebroadcast the AM station due to a condition on its license.  The Bureau rejected the station’s argument that the cancellation of its license was an excessive penalty for its failure to request an STA extension, finding that FCC precedent supported that decision.  The Bureau did, however, agree to reinstate the translator’s license if it rebroadcast another primary station because the FCC has misinterpreted the condition on its license, and the translator was not permanently tied to the AM station.  The translator now has 60 days to notify the FCC that it has a new primary station. 
  • The Media Bureau also entered into a Consent Decree and proposed a fine for two broadcast stations’ failure to comply with their Online Public Inspection File requirements:
    • The Bureau entered into a Consent Decree with a Texas FM station to resolve its investigation of the station’s purported failure to comply with its OPIF requirements.  The FCC’s release does not specify the station’s OPIF violations, but its renewal application indicated that Quarterly Issues Programs lists had not been timely filed.  The Consent Decree requires that the station implement a compliance plan to ensure future violations do not occur, without having to pay a civil penalty which often accompanies such a Consent Decree.
    • The Bureau also imposed a $6,000 fine on a Florida TV station for its late upload of seven Quarterly Issues/Programs Lists to its OPIF during its last license period.  The Bureau originally imposed a fine of $9,000 against the station for its late upload of ten Issues/Programs Lists but reduced the fine to $6,000 after the station showed that only seven Issues/Programs Lists were uploaded late.

On our Broadcast Law Blog, we discussed how the FCC’s recent Declaratory Ruling approving the acquisition by a company owned by a Canadian citizen of 100% of the ownership interest in a company that owns an AM radio station in Seattle illustrates the approval process for foreign ownership in US broadcast stations and the FCC’s openness to such foreign investment.  

Last week, as we noted in our monthly look ahead at the regulatory dates of importance to broadcasters in August, the reinstatement of the rule prohibiting the duplication of programming on FM stations went into effect.  The FCC Order reinstating the rule is interesting both for its substance, and for the parties pushing for that reinstatement – principally representatives of the music industry.  As we note below, even though the rule is now back in effect, the NAB has asked for reconsideration of that action.

First, let’s look at what the rule provides.  The reinstated rule prohibits any commonly owned or operated (e.g., through a time brokerage agreement) commercial FM station from duplicating more than 25% of its weekly programming on another FM station if there is overlap of the 3.16 mv/m (70 dbu) contours of the two stations, and that area of overlap constitutes 50% of the 3.16 mv/m predicted coverage area of either of the overlapping stations.  Program duplication is not limited to simultaneous transmission of the same programming – the rule by its terms defines “duplication” to include the broadcast of the same programming any time within a 24-hour period. 

Continue Reading FM Programming Nonduplication Rule Goes Back into Effect – A Win for the Music Industry While the NAB Objects

The FCC last week issued a Declaratory Ruling approving the acquisition by a company owned by a Canadian citizen of 100% of the ownership interest in a company that owns an AM radio stations in Seattle.  Until about a decade ago, a 25% limit in the parent company of an FCC broadcast licensee would have been the limit allowed by the FCC under Section imposed on foreign ownership of a US broadcast station by Section 310(b)(4) of the Communications Act.  Section 310(b) limits non-US citizens from holding more than 20% of a broadcast licensee, and foreign owners cannot hold more than 25% of a parent company “if the Commission finds that the public interest will be served by the refusal or revocation of such license.” About a decade ago, as we wrote here, the FCC decided to permit, on a case by case basis, greater foreign ownership of US broadcast station owners. This has resulted in past cases where 100% foreign ownership of US broadcast stations have been permitted (see our articles here and here) and even many large US broadcast companies have been permitted to have foreign ownership in excess of the 25% allowed by Section 310(b)(4).  The processing of these applications is, of course, not as straightforward as the normal acquisition of a station by US citizens.

Any foreign owner seeking to acquire a substantial stake in a US broadcast station must be reviewed by various Executive Branch agencies to ensure that there are no perceived security risks raised by the proposed acquisition. The FCC has to do its own review as well.  The approval process for the first acquisition by a foreign owner often takes a full year or more (the deal approved last week was filed with the FCC almost exactly a year ago), so don’t expect to complete an acquisition by a foreign owner on the same timeline as that for the completion of a deal by US citizens.  But, once a foreign owner is approved by the FCC, as long as the ownership of that acquiring company stays the same, it can in most cases acquire additional US stations without going through this extended review process. 

Continue Reading FCC Allows 100% Ownership of US Radio Station by Canadian Owner – Once Again Demonstrating Openness to Foreign Investment in the US Broadcast Industry

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

  • Through a Federal Register publication, the FCC announced comment dates on its Notice of Proposed Rulemaking proposing that broadcasters and cable operators be required to disclose, both on the air and in their online public inspection files, the use of AI-generated content in political advertisements.  Comments will be by due September 4 and reply comments will be due by September 19.  The Office of FCC Chairwoman Rosenworcel also released a Fact Sheet that seemed to have been issued to address criticism about the proposals advanced in the NPRM.  The Fact Sheet contends, among other things, that the disclosure requirement was proposed because the majority of Americans are concerned about misleading AI-generated content.  The Fact Sheet also notes that the FCC did not propose banning the use of AI-generated content in political advertisements, only requiring that it be labeled.  As for the proposal’s impact on the upcoming November election, the Fact Sheet says that the FCC has not adopted a timeline for issuing final rules in the proceeding, as the NPRM is only seeking public feedback on its proposals before enacting any new rules.  See our article on our Broadcast Law Blog discussing some of the issues that should be addressed in public comments on how the FCC’s proposed AI disclosure requirement will impact broadcasters, and on the likely timing of the proceeding. 
  • The FCC released a Public Notice announcing that Class A, LPTV, and TV translator stations may begin preparing channel change applications in the FCC’s LMS database.  These applications cannot be filed until August 20 when the current filing freeze on major change applications for such stations will end (see the FCC Public Notice announcing the lifting of the freeze for details on the processing of channel change applications).  The FCC also reminded TV stations that the 2020 U.S. Census Bureau data has been incorporated into its TVStudy software as of August 1, and all TV applications filed on or after August 1 – including these channel change applications – must be based on the updated data. 
  • The FCC announced that comments and reply comments are due September 3 and September 16, respectively, in response to last month’s Further Notice of Proposed Rulemaking proposing to exempt video programmers from the closed captioning registration and certification requirements if they provide programming to public, educational, and governmental access channels (PEG channels) or to nonbroadcast networks for distribution by a cable operator or other MVPD if the PEG channels or the network are exempt from or have certified compliance with, the captioning rules.
  • The FCC imposed a $2,316,034 fine against a pirate radio broadcaster operating in the Bronx, New York, which was the maximum penalty permitted under the 2020 PIRATE Act before being adjusted for inflation this past January (see our discussion here).  The FCC found that the individual operated the pirate station for at least 98 days (based upon FCC monitoring and information on the pirate’s website), and evidence indicated that the pirate had actually been operating since 2018.  The FCC issued a Notice of Proposed Liability proposing this fine in 2023, and the pirate did not contest it.  Now, the pirate radio operator has 30 days to pay the fine or the FCC may refer the case to the U.S. Department of Justice.  The FCC itself cannot sue to collect fines or take actions against individuals who ignore the penalties issued in cases like this.  Instead, it must rely on the DOJ to enforce the penalties in Court.
  • Comments were due July 29 in response to the FCC’s June NPRM proposing to extend Online Public Inspection File obligations to certain LPTV stations and to make other changes to its FCC rules, including proposal imposing limits on LPTV station site moves and requiring community of license designations (see our discussions of the NPRM here and here).  Comments were received from many parties addressing many issues.  These include comments from the  National Association of Broadcasters, the LPTV Broadcasters Association, the National Religious Broadcasters, and other commenters (see here, here, here, and here) opposing expanding OPIF requirements to LPTV stations, arguing that there is no evidence that the OPIF encourages public participation in FCC broadcast proceedings and that imposing the obligation on LPTV stations would create unnecessary burdens.  The Advanced Television Broadcasting Alliance and Gray Media state that only top-4 network-affiliated LPTV stations should be subject to the OPIF requirements.  The LPTVBA, the NRB, and other commenters (see here and here) state that the proposed 30-mile limit on site moves by LPTV stations is too restrictive, and also argue that there was no evidence supporting the need for LPTV minimum operating requirements.  The NAB states that LPTV stations licensed to educational institutions should not have to operate on weekends.  The NAB along with Gray Media supported requiring LPTV and TV translator stations to specify a community of license within the station’s service contour to avoid viewer confusion.  The LPTVBA agrees, but states that stations should not have to serve a community for twelve months before changing to a new community of license, as proposed by the NPRM. 
  • The FCC’s Media Bureau issued a Declaratory Ruling allowing BAAZ Broadcasting Corporation to exceed the 25% limit on foreign investment established in section 310(b)(4) of the Communications Act.  BAAZ, a Seattle AM station licensee, received approval for a foreign investor to hold up to 100% equity and/or voting interests in the company that is proposed to be the new parent of BAAZ.  The Declaratory Ruling was necessary because the sole shareholder of BAAZ’s new parent company is a Canadian citizen.  We wrote more about the FCC’s process of approving foreign ownership of US broadcast stations on our blog here and here.  As in this case, these applications require approval from many government agencies, and the review can take time (this application having been submitted in almost a year ago, on August 17, 2023).
  • The Media Bureau also released an NPRM proposing the substitution of Channel 11, at Lubbock, Texas for Channel 35, and the substitution of Channel 35, at Lubbock, Texas for Channel 36.  Two Lubbock TV stations propose to “swap” their channels to allow the station operating on Channel 35 to replace its failing equipment with that of the other station operating on Channel 11.  The stations also note that this swap would not result in a loss of service to viewers. 
  • The Media Bureau dealt with fines for two groups of LPTV and TV translator stations for filing their license renewal applications late.  The Bureau proposed a $3000 fine against the licensee of a California and an Oregon LPTV station ($1,500 per station) for filing their renewal applications over one month late; a fine reduced from the $6,000 base amount ($3,000 per station) due to LPTV stations’ secondary service status.  The Bureau also cancelled a $6,000 fine imposed on four Colorado TV translator stations for filing the stations’ renewal applications over one month late after their licensee submitted financial documentation demonstrating an inability to pay.
  • The Media Bureau affirmed its dismissal of 105 LPFM construction permit applications based on the applicant failure to demonstrate its eligibility to operate an LPFM station.  The applicant planned a public safety radio service, which is allowed under LPFM rules if operated by state or local governments or “non-governmental entities” that have public safety jurisdiction in an area.  The FCC had dismissed these applications as the applicant did not have any jurisdiction over public safety matters and had not requested a waiver of the FCC rules to permit its applications to be granted despite not meeting the letter of the rules.  In its reinstatement request, it asked to now be allowed to request that waiver arguing that it was not informed of the waiver requirement during discussions with FCC staff prior to filing the applications, and also arguing that it had informal authority from several agencies with jurisdiction over public safety matters to provide this service.  The Bureau rejected the applicant’s request for several reasons including that any waiver request must be contained in an initial LPFM application, the FCC staff in fact had not provided the guidance that was claimed by the applicant (and, even if it had, applicants cannot legally rely on such informal staff advice), and the rules were clear that the applicant needed actual authority over public safety matters to qualify as an LPFM licensee.

On our Broadcast Law Blog, we highlighted the regulatory dates and deadlines for broadcasters in August and early September.

Last week, the FCC released a Notice of Proposed Rulemaking that was first announced by the FCC Chairwoman three months ago (see our article here), proposing to require that the use of artificial intelligence in political advertising be disclosed when it airs on broadcast stations, local cable systems, or satellite radio or TV.  This proposal has been controversial, even before the details were released, with many (including the Chair of the Federal Election Commission and some in Congress) questioning whether the FCC had the authority to adopt rules in this area, and also asking whether it would be wise to adopt rules so close to the upcoming election (the Chairwoman had indicated an interest in completing the proceeding so that rules could be in place before November’s election).  The timing of the release of the NPRM seems to rule out any new rules becoming effective before this year’s election (see below), and the NPRM itself asks questions as to whether the FCC’s mandate to regulate in the public interest and other specific statutory delegations of power are sufficient to cover regulation in this area.  So, these fundamental questions are asked, along with many basic questions of how any obligation that would be adopted by the Commission would work. 

The FCC is proposing that broadcasters and the other media it regulates be required to transmit an on-air notice (either immediately before, after, or during a political ad) to identify an ad that was created in whole or in part using AI.  In addition, broadcasters and other media subject to the rule would need to upload a notice to their online public files identifying any political ads that were created using AI.  The NPRM sets forth many questions for public comment – and also raises many practical and policy issues that will need to be considered by the FCC and the industry in evaluating these proposals.

Continue Reading The FCC Proposes Requirements for Disclosures About the Use of Artificial Intelligence in Political Ads – Looking at Some of the Many Issues for Broadcasters

Although many, including Congress, may be taking the last of their summer vacations, there are still many dates to which broadcasters should be paying attention this August.  One that most commercial broadcasters should be anticipating is the FCC’s order that will set the amount of their Annual Regulatory Fees, which will be paid sometime in September before the October 1 start of the federal government’s new fiscal year.  As we wrote here, the FCC has proposed to decrease fees for broadcasters from the amounts paid in prior years.  The FCC has also proposed to end its temporary regulatory fee relief measures implemented during the COVID-19 pandemic as well as ending its presumption that silent stations are entitled to fee waivers without providing evidence of financial hardship – which, as we wrote here, broadcasters largely oppose ending because the policies enable struggling broadcasters to avoid costly paperwork and regulatory consequences, helping to avoid loss of service to local communities.  Sometime in August (or possibly in the first days of September), the FCC will make a final determination on the amount of the fees, and then announce the deadlines for payment of the fees. 

August 1 is the deadline for radio and TV station employment units in California, Illinois, North Carolina, South Carolina, and Wisconsin with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ Online Public Inspection Files (OPIFs).  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.  Be timely getting these reports into your public file, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).

Continue Reading August 2024 Regulatory Dates for Broadcasters– Annual Regulatory Fee Details, EEO Annual Filings, Effective Date of Reinstated FM Non-Duplication Rule, Opening of Window for Class A/ LPTV/ TV Translator Channel Change Applications, and More