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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 issued a Forfeiture Order imposing a penalty of $518,283 against Gray Television, Inc., for violating the FCC’s prohibition against owning two top-four television stations (KYES-TV and KTUU-TV, both in Anchorage, Alaska) in the same Nielsen Designated Market Area (DMA). This Order follows a Notice of Apparent Liability for Forfeiture (NAL) released on July 7, 2021, in which the FCC found that Gray acquired the CBS network affiliation from KTVA(TV) (another station in Anchorage), which resulted in Gray’s ownership and operation of two of the top-four stations in the Anchorage DMA.  For more background on this case, see our article on the NAL here. After considering Gray’s response to the NAL, the FCC elected not to cancel, withdraw, or reduce the penalty proposed.  This case is notable for its interpretation of the note to the FCC’s ownership rule prohibiting a Top 4 television station owner from acquiring a network affiliation and moving it to a commonly owned station that results in that station also becoming a Top 4 station in the market.  The Commission also decided that each day of the combined operation of the two stations constituted a separate violation of the rule.  That meant that the $8000 base fine for a violation of the FCC’s ownership rules would be multiplied by the days that the combination remained in place, resulting in the large fine which represents the maximum fine for a continuing violation of the FCC’s rules.
  • The FCC issued the final text of its Notice of Inquiry and Order that explores opportunities to open the 12.7-13.25 GHz (12.7 GHz) band for next-generation wireless services and extends the freeze on new or modified applications for existing users of the band.  As we’ve previously reported, the Notice of Inquiry and Order was approved at the FCC’s October 27 open meeting.  Licensed services in the 12.7 GHz band include satellite communications and mobile TV pickup operations.  Comments and reply comments on the Notice of Inquiry will be due November 28, 2022 and December 27, 2022, respectively.
  • The FCC’s Media Bureau issued an Order under which it entered into a Consent Decree with the licensee of an AM station and its FM translator to resolve various FCC rule violations.  The licensee acknowledged that it had (1) operated the AM station at reduced daytime power without FCC authorization, (2) failed to maintain station logs for the AM station, and (3) originated programming on its FM translator while the AM station was silent. Pursuant to the Consent Decree, the licensee agreed to implement a comprehensive compliance plan to ensure future compliance and to make an $8,000 payment to the United States Treasury.
  • The Media Bureau also issued an order that reduced by nearly $10,000 a fine it had previously proposed against the licensee of two low power television stations that had failed to timely file “license to cover” applications and engaged in unauthorized operation of the stations after their construction permits had expired.  Applications for a “license to cover” are required to be filed by any broadcaster when they complete construction of new technical facilities authorized by a construction permit.  The license application tells the FCC that construction has been completed and provides information about the specific facilities constructed, showing that they were constructed as authorized by the permit.  Claiming financial hardship and submitting its 2019, 2020 and 2021 tax returns in support, the licensee asked the Bureau to reduce or cancel the proposed fine of $13,000.  The Bureau noted that in cases involving financial hardship, fines usually average about five percent but have not exceeded eight percent of the violator’s gross revenues.  Here, the Bureau found that the initially proposed fine exceeded eight percent of the licensee’s gross revenue as averaged over the last three years, but the licensee had not operated at a significant financial loss during that period.   The Bureau thus elected not to cancel the fine entirely, but it did reduce it to $3,400.
  • On our Broadcast Law Blog, we posted an article highlighting some of the important regulatory dates for broadcasters in November and early December.  We also published an article reminding stations to take seriously requests to cease and desist airing political attack ads in the days before an election, and another article about the $24 million dollar penalty imposed by a Washington State court on the parent of Facebook for its violation of the state’s political advertising disclosure rules.

 

November lacks the usual set of deadlines for routine FCC filings, but there are nevertheless a number of regulatory dates that warrant attention.  And come the first of December, those regular filing deadlines return to the calendar.

November brings comment deadlines in at least two FCC proceedings relevant to broadcasters.  On November 7, reply comments are due with respect to the FCC’s Order and Sixth Notice of Proposed Rulemaking (on which we previously reported) to delete or revise analog rules for Low Power TV and TV translator stations that the FCC believes no longer have any practical effect or that are otherwise obsolete or irrelevant after the transition of these stations to digital operation.  November 25 is the deadline for reply comments in the FCC’s request for comment on the methodology that it uses to allocate its employees to determine annual regulatory fees (see article here).  Broadcasters have felt that their fees have increased more than their fair share – but other regulated services likely complain about their share of the fees as well.  Because the FCC allocates the fee obligation based on the number of its employees who spend time on regulatory duties regarding a particular regulated industry, this proceeding looking to allocate how employees are allotted is very important.

Another rulemaking proceeding will likely be concluded in November.  The FCC last week announced that the agenda for its November 17 regular monthly open meeting will include consideration of a Report and Order (a draft of which was released last week) that would update the FCC’s rules to identify a new publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes.  Current FCC rules direct commercial TV stations to use Nielsen’s Annual Station Index and Household Estimates to determine their DMA, and stations rely on these determinations when they seek carriage on cable and satellite systems.  Nielsen, however, has replaced the Annual Station Index and Household Estimates with a monthly Local TV Station Information Report (“Local TV Report”).  The Order, if adopted as drafted, would (i) revise the FCC’s rules to eliminate references to the Annual Station Index and Household Estimates and instead direct broadcasters to the Local TV Report – specifically, the October Local TV Report published two years prior to each triennial carriage election; and (ii) conclude that the Local TV Report should be used to define “local market” in other statutory provisions and rules relating to carriage (e.g., retransmission consent, distant signals, significantly viewed, and field strength contour).  For further background regarding this proceeding, see our article here. Continue Reading November Regulatory Dates for Broadcasters – Rulemaking Comments, Political Obligations, Daylight Savings Time 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.

  • On October 26, NAB and Xperi Inc. jointly filed a Petition for Rulemaking asking the FCC to amend its rules governing in-band/on-channel (“IBOC”) digital audio broadcasting (Xperi is the parent of IBOC technology developer iBiquity).  More specifically, NAB and Xperi request that the FCC (i) adopt an updated formula to determine FM power levels for stations seeking to exceed the currently authorized FM digital Effective Radiated Power (ERP) of -14 dBc; and (ii) commence a rulemaking proceeding on this issue and the one raised in a pending 2019 petition to permit digital FM radio stations to utilize asymmetric sideband power levels without the need for separate or experimental authorization.  NAB and Xperi contend that the FCC’s current approach is problematic because it assumes symmetric rather than asymmetric digital sidebands, which eliminates a path for stations to increase power on at least one sideband to improve digital coverage.  In addition, NAB and Xperi argue that the existing formula is too restrictive, because it overstates the level of protection analog stations need.  NAB and Xperi assert that  blanket authorization of asymmetric sidebands and the adoption of a more market-based formula for assessing digital interference risk will encourage greater station adoption of the technology.  The FCC has yet to announce comment dates for the NAB/Xperi petition.
  • The Commission issued a Memorandum Opinion and Order resolving 32 groups of mutually exclusive applicants for new Noncommercial Educational (NCE) FM stations.  These applications were filed in the 2021 window for the filing of applications for new NCE stations in the FM reserved band.  This week’s decision goes through an analysis of the point system that the FCC uses to determine the preferred applicant among applications in the same geographic area that cannot all be granted without causing each other destructive interference.  The point system analysis looks at factors including the proposed coverage of the applicants, whether an applicant is local and how long it has been established, whether it is part of a statewide network, and whether the applicant has other broadcast interests.  The decision announces tentative winners in each of these groups, whose applications will now be subject to “petitions to deny” and other objections before the award of their construction permit is finalized.
  • At its October 27 regular monthly open meeting, the FCC adopted without substantive edits, its draft Notice of Proposed Rulemaking (“NPRM”) in which, as we’ve previously reported, it proposes a number of steps designed to strengthen the security of the Emergency Alert System (“EAS”) by requiring reporting to the FCC of breaches of any station’s EAS system and the adoption and yearly reporting to the FCC of security protocols to prevent unauthorized breaches.  A copy of the “as adopted” NPRM is available here.  Comments and reply comments will be due 30 days and 60 days, respectively, after the item’s publication in the Federal Register.
  • At the same open meeting, the FCC also adopted a Notice of Inquiry and Order that explores opportunities to open the 12.7-13.25 GHz (12.7 GHz) band for next-generation wireless services and extends the freeze for new or modified applications for existing users of the band.  Licensed services in the 12.7 GHz band include satellite communications and mobile TV pickup operations. Although the as-adopted item has yet to be released, a press release noting its approval can be found here, and the draft version circulated prior to the meeting can be found here (also see our article here).
  • The FCC announced that the agenda for its November 17 open meeting will include consideration of a draft Report and Order (“Draft R&O”) that, if adopted, would update the FCC’s rules to identify a new publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes.  Current FCC rules direct commercial TV stations to use Nielsen’s Annual Station Index and Household Estimates to determine their DMA, and stations rely on these determinations when they seek carriage on cable and satellite systems.  Nielsen, however, has replaced the Annual Station Index and Household Estimates with a monthly Local TV Station Information Report (“Local TV Report”).  The draft R&O, if adopted, would (i) revise the FCC’s rules to eliminate references to the Annual Station Index and Household Estimates and instead direct broadcasters to the Local TV Report – specifically, the October Local TV Report published two years prior to each triennial carriage election; and (ii) conclude that the Local TV Report should be used to define “local market” in other statutory provisions and rules relating to carriage (e.g., retransmission consent, distant signals, significantly viewed, and field strength contour).  For further background regarding this proceeding, see our article here.
  • The FCC’s Media Bureau issued an Order under which it entered into a Consent Decree to resolve a student-run noncommercial FM station’s filing of its license renewal application two months late, and the station’s failure to place any issues and programs lists in its online public inspection file.  The station demonstrated that its violations were first-time paperwork violations which fell within an FCC policy of affording student-run stations with this kind of violation an opportunity to negotiate a consent decree in which the station agrees to a compliance plan and makes a voluntary contribution to the United States Treasury rather than suffering a more substantial penalty.  Under the Consent Decree, the station agreed to, among other things, make a civil penalty payment to the United States Treasury in the amount of $500 and implement a comprehensive compliance plan to ensure future compliance with its online public inspection file obligations and timely filing of renewal applications (for a similar Consent Decree between the Bureau and a second student-run NCE station, go here).

This summary of regulatory news for broadcasters comes from the attorneys at Wilkinson Barker Knauer, LLP in Washington, DC. (https://www.wbklaw.com/).

 

As summer begins to wind down, just like the rest of the world, the FCC and other government agencies seem to pick up speed on long delayed actions.  Broadcasters can anticipate increased regulatory activity in the coming months.  For September, there are a few dates to which all broadcasters should pay attention, and a few that will be of relevance to a more limited group.  As always, pay attention to these dates, and be prepared to address any other important deadlines that we may have overlooked, or which are unique to your station.

All commercial broadcasters will need to pay attention to actions which will likely come in rapid fire in the next two weeks, setting the deadlines for payment of the Annual Regulatory Fees that must be paid before the October 1 start of the next fiscal year for the FCC.  Look for an Order very soon deciding on the final amounts for those fees.  That Order will be quickly followed by a Public Notice setting the payment dates and procedures.  Then watch for fact sheets from each of the Bureaus at the FCC.  The Media Bureau fact sheet will cover the fees to be paid by broadcasters.  Be ready to pay those fees by the announced September deadline, as the failure to pay on time brings steep penalties. Continue Reading September Regulatory Dates for Broadcasters:  Reg Fees, Foreign Government Program Certifications, Final Chance to Claim Reimbursement for Repacking Expenses, Comments on ATSC 3.0 and FTC Advertising Inquiry, 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.

  • A bill was introduced in the US Senate proposing to prohibit any FCC or criminal action against a broadcaster who ran ads for a cannabis business legal in the state in which the station is licensed. We wrote, on our Broadcast Law Blog, about the three different legislative efforts now underway to lift any prohibitions on broadcasters running these ads from businesses in states where marijuana has been legalized.
  • Federal Register publication of the FCC’s Notice of Proposed Rulemaking to modify the Nielsen reports that are specified in the FCC’s rules to determine what a station’s local market is for cable and satellite carriage purposes occurred this week. As the Nielsen report currently specified in the rules is being phased out, another Nielsen report is proposed to be substituted in these rules.  Comments are due on this proposal on August 29, with reply comments due by September 26.  FCC Public Notice of these filing dates was published this week.
  • The FCC’s Video Division issued a Memorandum Opinion and Order and Notice of Apparent Liability to an LPTV station in Reno, Nevada for failing to file a license application following the completion of the construction of new facilities and for operating without authorization. The station claimed to have started operating in digital in 2016 on its old analog channel, even though it had a construction permit to operate on another channel.  In 2021, it modified its construction permit for retroactive approval to make its “flash-cut” to digital on its existing channel, but then failed to file a covering license for those digital operations until a 2022 inquiry from the FCC staff as to the status of the station. A fine of $6500 is proposed.  We noted a similar case two weeks ago.  It appears that the Commission is contacting LPTV stations that have not shown that they are operating in digital to see if their licenses are still valid.  The FCC is apparently discovering stations that converted before last year’s deadline for the digital conversion but did not, after completing the conversion, file the required paperwork seeking a license.  With very limited exceptions, all broadcast stations need to get FCC approval before making changes to their transmission facilities, and then file an application for a license to cover after they complete construction demonstrating to the FCC that construction was completed as authorized.
  • In a Second Order on Reconsideration, the FCC upheld a decision allowing the holder of a construction permit for a new FM station to change city of license from a community in the Longview, Washington Urbanized Area (UA) to one outside that UA. This case discussed the UA Service Presumption (UASP), which is a part of the FCC’s Rural Radio policy.  The UASP considers a station licensed to any city in an urbanized area, or one that can provide city-grade service from any fully spaced transmitter site to 50% of the urbanized area, to be licensed to the urbanized area unless a showing can be made rebutting the presumption.  The presumption would be rebutted by a showing that the community really is independent of the UA and has its own needs for a broadcast radio service. The presumption is important in applying the criteria of Section 307(b) which seeks to make a preferential distribution of broadcast services among the states and communities by giving a preference to proposals for a first local service to a community.  A community considered to be in a UA gets no preference because the application of the UASP means that all other stations in the UA are deemed to serve that community.  A station outside the UA (except when the community is an extremely small “quiet village”) gets a preference if there are no other stations licensed to that community (see our article here for more information about this preference and how the UASP affects it). In this case, the applicant moving out of the UA could do so without removing the only broadcast service to its community because, applying the UASP, the other stations in the Longwood market were deemed to meet the needs of the community.  The challenger objecting to this move argued that the initial community was independent from the rest of the Longwood UA and had its own local needs for a broadcast service that should be met by the station’s continued service to that initial community.  The FCC found that the challenger’s pleadings did not rebut the application of the UASP by providing enough evidence of the independence of the initial community from the rest of the UA, so moving the station to a new community without a local service and located outside the UA was a preferred arrangement of allotments.  The FCC provided a detailed analysis of the factors that can go into rebutting the UASP and the evidentiary burdens that proponents and challengers to such a showing must provide. The case is worth reading if you are contemplating a city of license change.
  • The Federal Trade Commission published in the Federal Register its request for comments on its revised guide to The Use of Endorsements and Testimonials in Advertising. Any media company creating commercials using celebrities or experts designed to promote commercial goods and services should be familiar with the guide and should review the FTC’s proposed changes.  Comments on the proposed changes are due by September 26.
  • On Friday, we published our monthly article highlighting regulatory dates and deadlines for the coming month. August Regulatory Dates for Broadcasters is now available.
  • With the final political primaries occurring in August and early September, and as advertising is already heating up for the November election, we published an article on the Political File requirements for federal and state “issue” ads, i.e., those ads not bought by candidates or their authorized campaign committees. The article talks about the more detailed public file obligations required for a federal issue than for ads about state and local issues.

 

With the end of summer upon us, we begin to look forward to the regulatory issues that will face broadcasters as we barrel toward the end of the year.  One date on many broadcaster’s minds is the date by which the annual regulatory fees will be due to be paid.  While the payment date is almost certainly going to be sometime in September, look for an FCC decision on the amount of those fees at some point in late August.  As we wrote in last week’s summary of regulatory actions (and in many before), the amount that broadcasters will pay remains a matter of dispute, so watch for the resolution of that dispute by September, as fees must be paid before the October 1 start of the FCC’s next fiscal year.

But many other dates of importance to broadcasters will occur well before the resolution of the regulatory fee issue.  August 1 is the deadline for full power television, Class A television, LPTV, and TV translator license renewal applications for stations in California.  As we have previously advised,  renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for LPFMs and TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Note that your Broadcast EEO Program Report must include two years of Annual EEO Public File Reports for FCC review, unless your employment unit employs fewer than five full-time employees.  Be sure to read the instructions for the license renewal application and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.  Issues with the public file have already led to fines imposed on TV broadcasters during this renewal cycle. Continue Reading August Regulatory Dates for Broadcasters:  Regulatory Fees, EEO Reports, Many Rulemaking Comment Dates, 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 US Court of Appeals this week determined that the FCC’s requirement that broadcasters confirm by searching DOJ and FCC databases that all buyers of program time on their stations are not representatives of foreign governments was beyond the power of the FCC as authorized by Congress. The Court decision will become effective if no appeals are filed.  The ruling does not change the obligation of broadcasters to have all buyers of program time certify in writing that they are not foreign governments, agents of foreign governments, or funded by foreign governments, and that no one in the production chain for any paid programming is a foreign government or its representative (or, if there are foreign governments behind the programming supplied to the station, the station must make appropriate on-air and public file disclosures).  Instead, the decision will simply remove the requirement that broadcasters verify the programmer’s certifications by reviewing the DOJ’s Foreign Agent Registration Act database and an FCC database listing foreign government funded video programmers.  For more on this decision, see the article in our Broadcast Law Blog, here.
  • This week, the FCC unanimously adopted an Order and Sixth Notice of Proposed Rulemaking (on which we previously reported) to delete or revise analog rules for LPTV and television translator stations that no longer have any practical effect or that are otherwise obsolete or irrelevant after the transition of these stations to digital operation. Comments and reply comments on the Sixth Notice of Proposed Rulemaking will be due 30 and 45 days, respectively from publication of the document in the Federal Register
  • At its July 14 Open Meeting, the FCC unanimously adopted a Notice of Proposed Rulemaking (also previously reported) seeking comment on whether to update its rules to identify a new Nielsen publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes. Nielsen has notified the FCC that it will no longer publish its Station Index Directory, which has historically been used in combination with the Nielsen Station Index and United States Television Household Estimates to determine a station’s DMA for carriage purposes.  In his separate statement on the Notice of Proposed Rulemaking, Commissioner Simington, citing Nielsen’s current unaccredited status, expressed concerns about the FCC’s reliance on Nielsen data and Nielsen’s inclusion in nearly two dozen FCC rules, and called on the FCC to open a notice of inquiry on this topic.  Comments and reply comments on the Notice of Proposed Rulemaking will be due 30 and 60 days, respectively, from the date the document is published in the Federal Register.
  • Forty-nine state broadcaster associations, “represent[ing] nearly the entire universe of radio stations in every state and territory in the United States,” this week submitted a joint letter to the FCC to voice their “strong opposition” to GeoBroadcast Solutions’ (GBS) proposal that would permit GBS to deploy its proprietary ZoneCasting technology in the marketplace. Among other things, the associations state that “GBS’s approach would only undermine, rather than serve, listeners and local broadcasters, raising serious concerns about this new technology’s effect on local radio’s important public safety function and ability to provide the free, local news, information, and entertainment on which Americans rely.” The associations also highlighted the potential impact of ZoneCasting on public safety, listeners and the economics of the radio industry.
  • The FCC’s Audio Division of the Media Bureau released an Order adopting a consent decree with an Oklahoma AM station, in which the station was granted a short-term renewal of one year instead of a full term renewal for eight years.  The Bureau found that the station had been silent for four periods during its license term (including the period when its renewal application was pending), three of which were almost 12 months in length.  The Bureau was not persuaded to grant a full-term renewal by the fact that the station had sought FCC authorization for its periods of silence.  The station also disclosed that it had failed to comply with the FCC’s online public inspection file requirements.  In addition to the short-term renewal, the consent decree requires the station to implement a compliance plan to ensure future compliance with the online public inspection file requirements.  For another consent decree issued to resolve online public inspection file violations (but without issuing a short-term renewal, go here).
  • The FCC’ Video Division issued a Memorandum Opinion and Order and Notice Of Apparent Liability For Forfeiture proposing a $6500 fine on an LPTV station that had completed construction of its digital facilities in 2017 but did not file a license to cover that construction permit until late 2021 after the station’s digital construction permit expired and the FCC issued a notice cancelling the station license for not having met the July 2021 deadline for the commencement of LPTV digital operations. As the licensee was able to prove the prior construction of the station, the FCC reinstated the license but proposed the fine for late filing of the license application and operating without authority for the periods of its digital operation before the license application was filed.  This decision serves as a reminder that broadcasters who construct new facilities pursuant to a construction permit must file a license application upon the completion of construction notifying the FCC of the actual facilities constructed and verifying that the construction was accomplished according to the requirements of the permit.
  • The FCC’s Enforcement Bureau issued a Notice of Violation to an LPFM station in Florida for failure to allow FCC representatives to inspect the station. In this case, FCC agents from a Field Office were not allowed by employees of the station to inspect its operation, and the owner of the station allegedly, after being called, also refused to permit the inspection.  As noted in the Notice of Violation, the FCC rules require that all stations be available for inspection by FCC agents during all hours of operation.
  • This week, we published on our Broadcast Law Blog an article about two new performing rights organizations that are seeking royalties for the public performance of comedy recordings. ASCAP, BMI, SESAC and GMR do not typically cover the performance of the “literary work” underlying a recorded comedy routine, so these new PROs are seeking royalties for these performances.  Also on the Broadcast Law Blog was an article reminding stations that they need to register in the new CORES2 FCC database, and to use the FCC’s LMS database for all call sign change requests (or requests for call signs for new stations) as the independent call sign database is no longer in use.

And a reminder for next week, July 18, 2022 is the reply comment deadline for the FCC’s Notice of Proposed Rulemaking on the FCC’s proposed regulatory fees for fiscal year 2022.  In initial comments, the NAB argued that the FCC’s methodology for imposing the fees on broadcasters was inexplicable as it raised fees on broadcasters by 13% while the FCC budget which the fees are to reimburse only increased by 2.1%.   The state broadcast associations jointly filed comments expressing many of the same concerns.  The fees that the FCC is proposing for television and radio stations are set forth in Appendix C and Appendix G of the Notice of Proposed Rulemaking.

The lazy days of summer continue to provide little respite from the regulatory actions of importance to broadcasters.  The good news is that there are no license renewal or EEO  deadlines during the month of July.  Nonetheless, there will be a number of July deadlines that require attention.

On July 1, comments are due on the FCC’s Office of Economics and Analytics annual call for comments on the State of Competition in the Communications Marketplace (see the Public Notice calling for these comments). The comments are used to prepare a report to Congress on communications competition issues and are sometimes referenced by the FCC itself in proceedings dealing with competition issues.  The FCC seeks comments on a list of questions about competition in both the Video and Audio marketplaces, including the impact of digital competitors on traditional providers and the role that regulation plays in the competitive landscape.  Reply comments are due August 1.

July 5 and July 18 are the comment and reply comment deadlines, respectively, for the FCC’s Notice of Proposed Rulemaking on the FCC’s proposed regulatory fees for fiscal year 2022.  The fees that the FCC is proposing for television (full power and otherwise) and radio stations are set forth in Appendix C and Appendix G of the document.  The FCC is proposing an increase of approximately 13% for radio broadcasters.  Among other things, the FCC proposes to continue to assess fees for full-power broadcast television stations based on the population covered by a full-service broadcast television station’s contour, and it seeks comment on its mechanism for calculating the regulatory fee based on the this population-based methodology.  These fees will be set by the end of August or very early September, to be paid before the October 1 start of the government’s new fiscal year. Continue Reading July Regulatory Dates for Broadcasters:  Quarterly Issues/Programs Lists and Other Public File Obligations, Lowest Unit Charge Periods, License Renewal, Copyright Filings and More

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

  • The FCC has released a draft Notice of Proposed Rulemaking that, if adopted at the FCC’s July 14, 2022 regular monthly open meeting, would seek comment on whether to update its rules to identify a new publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes. Current FCC rules direct commercial TV stations to use Nielsen’s annual Station Index Directory and Household Estimates to determine their DMA, and stations rely on these determinations when they seek carriage on cable and satellite systems.  The proposed rule changes would remove references to the now defunct annual Station Index and Household Estimates and instead direct broadcasters to Nielsen’s Local TV Report.
  • The FCC released a Third Further Notice of Proposed Rulemaking in which it seeks comment on the state of the Next Generation Television, or ATSC 3.0, transition and on the scheduled sunsets of two rules adopted in 2017. First, the FCC seeks comment on the progress of broadcasters’ voluntary, market-driven deployment of ATSC 3.0 service and the current state of the ATSC 3.0 marketplace. The first rule on which the FCC seeks comment is the scheduled 2023 sunset of the requirement that a Next Gen TV station’s ATSC 1.0 simulcast primary video programming stream be “substantially similar” to its 3.0 primary programming stream. The FCC also seeks comment on the scheduled 2023 sunset of the requirement that a Next Gen TV station comply with the current ATSC A/322 technical standard.  Additionally, the FCC seeks comments on whether the technology for ATSC 3.0 has been made available on fair terms by the patent holders for that required technology.  Comments and reply comments will be due 30 and 60 days, respectively, after publication of the Third Further Notice of Proposed Rulemaking in the Federal Register.
  • In an Order released on June 22, 2022, the FCC restores clarifying language that was inadvertently eliminated almost 40 years ago from section 73.3527 of the FCC’s rules. The clarification relates to applicants, permittees, or licensees whose existing or prospective facilities are Class D FM stations or other educational stations that are wholly “instructional” in their programming.  Class D stations are noncommercial stations that operate with 10 watts on commercial channels.  Instructional stations are those used by schools wholly for student instruction or teacher training. This clarification makes clear that Class D and Instructional stations are exempt from the obligation to complete Quarterly Issues Programs Lists.
  • The FCC has released a draft Order and Sixth Notice of Proposed Rulemaking, which, if adopted at the FCC’s July 14, 2022 open meeting, would update the FCC’s rules to reflect the recent termination of analog operations by LPTV and television translator stations. The Order would (i) delete or revise rules that no longer have any practical effect given the completion of the LPTV/translator digital transition, or that are otherwise obsolete or irrelevant, and (ii) make certain ministerial changes, for example, to delete analog rules that were found in Part 74, and to add definitions and other information previously adopted in prior rulemaking proceedings. The Sixth Notice of Proposed Rulemaking would seek comment on updates to rules which reflect the digital transition, current technology, and/or Commission practices.
  • In a Memorandum Opinion and Order, the FCC’s Media Bureau entered into a Consent Decree, which included a $1500 monetary penalty, with a licensee who admitted that it had transferred control of its station to a time broker during the course of a time brokerage agreement. The licensee admitted in FCC filings that there were times when it was unfamiliar with the programming and operations of the station.  FCC rules require that a licensee maintain ultimate control of all aspects of a station’s operations, even if another entity is providing programming and sales services.
  • The FCC announced the winners of the auction of construction permits for 18 new full-power television stations. The highest winning bid was just over $6.4 million for a new station at Grand Forks, ND. Winning bids of over $4 million were received for construction permits authorizing new stations at Freeport, IL; Alexandria, MN; and Flagstaff, AZ.  The full list of winning bids is available here, and the FCC public notice setting out the post-auction proceedings that are required before permits are issued is available here.

In January, the FCC adopted new rules for Distributed Transmission Systems (DTS) for TV broadcasters (the FCC’s order is available here).  Last week, the rules were published in the Federal Register, setting the effective dates of these new rules as May 24, 2021 (except as they apply to Class A TV, LPTV and TV translators, where new rules are subject to further review by the Office of Management and Budget under the Paperwork Reduction Act before they become effective).  The FCC yesterday released a Public Notice confirming that effective date.  The new rules for DTS will allow over-the-air TV broadcasters to provide stronger, more uniform coverage throughout their service areas, rather than having coverage strongest near to a station’s transmitter site and decreasing as the distance to the viewer increases (or as terrain obstacles intervene).

DTS, also referred to as Single Frequency Networks, allow TV stations to, instead of having one large transmitter in the center of its market area, use multiple transmitters throughout the service area to provide more consistent coverage throughout the market.  The new ATSC 3.0, Next Gen television transmission standard that is being rolled out throughout the country was designed for this kind of operation. This transmission model is more akin to the operation of cellular telephone networks than to the old broadcast model.  ATSC 3.0 uses a transmission system in which multiple signals on the same channel that are receivable at the same location reinforce each other.  Older broadcast transmission systems face issues when trying to operate multiple transmitters on the same channel, as these transmitters can cause destructive interference in areas where their coverage overlaps, making coverage worse, not better  (see, for instance, the concerns about the proposals for the use of “zonecasting” for FM stations, where arguments have been raised that multiple FM same-channel boosters rebroadcasting a primary FM station will create pockets of interference within a station’s market – see our references to such comments in articles here, here, and here).  The new DTS rules allow TV broadcasters to take advantage of the new ATSC 3.0 transmission characteristics to provide uniform, strong signals throughout a station’s market, without the destructive interference. Continue Reading Effective Date Set for New Rules on TV Distributed Transmission Systems (Single Frequency Networks) – An Assist in the Roll-Out of Next Gen TV