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 National Religious Broadcasters, American Family Association, and the Texas Association of Broadcasters jointly requested that the FCC stay the Form 395-B reporting requirement while the U.S. Court of Appeals reviews their petition for review of the FCC’s February Report and Order that reinstated the report.  As we wrote on our Broadcast Law Blog, the reinstated form will require broadcasters to annually report their employees’ race, ethnicity, and gender, while classifying the employees by job categories.  The petitioners ask that the FCC, during the appeal, put on hold any announcement of when broadcasters must begin filing the Form 395-B – which otherwise could be due as early as September 30, 2024, as the reinstated rule requires the report to be annually filed by the end of September.  The petitioners argue that the report is unconstitutional because it unlawfully pressures broadcasters to engage in race- and sex-conscious employment practices, and that there is evidence that third parties intend to use the Form 395-B data to pressure broadcasters to make such employment decisions.  As we discussed last month here, the National Association of Broadcasters filed a petition for reconsideration with the FCC of the Form 395-B’s reinstatement on similar constitutional grounds, and cited concerns raised by broadcasters that the expansion of the report’s gender categories could lead to harassment of station employees identifying as non-binary. 
  • A US District Court in Texas (in one of several cases challenging the FTC’s Non-Compete Rule) granted a preliminary injunction staying the September 4, 2024 effective date of the non-compete ban, but the stay applies only to the parties appearing before the Court. The Court expressly declined to grant a nationwide injunction saying such relief was not necessary yet necessary.  In granting the preliminary injunction, the Court determined, among other things, that those attacking the rule are “substantially likely to prevail on the merits of their challenge to the FTC’s Non-Compete Rule under the Administrative Procedure Act” and the public interest favors issuance of a preliminary injunction.  While this order is preliminary, the Court intends to rule on the merits of this action on or before August 30, 2024.
  • FCC Chairwoman Rosenworcel announced the circulation of draft final rules for vote by the FCC’s commissioners that, if adopted, would require Emergency Alert System participants, such as broadcasters and cable providers, to notify the FCC of EAS equipment defects within 24 hours of discovery.  EAS participants would also be required to implement contingency plans for delivering EAS alerts in the event of equipment malfunctions, and that they adopt and regularly update cybersecurity security measures to secure their systems to protect EAS from hackers and other online intruders. 
  • The FCC released its quarterly public notice, Broadcast Station Totals, itemizing the number of stations currently operating in each broadcast service.  The release shows that, compared to the same release from a year ago, there are 50 fewer AM stations and 55 fewer commercial FM stations, but 120 more noncommercial FM stations.  There were 7 more commercial UHF TV stations, 2 more commercial TV VHF stations, and 3 more noncommercial UHF TV stations, but 4 fewer noncommercial VHF TV stations.
  • The FCC’s Media Bureau announced that commercial FM stations must comply with the reinstated radio duplication rule beginning August 2.  As we discussed here, last month, the FCC released a Reconsideration Order reinstating its radio non-duplication rule for commercial FM stations, which prohibits commonly owned or operated stations with overlapping service contours from duplicating more than 25% of their programming.  AM stations are not subject to the reinstated radio duplication rule.  The FCC is providing FM stations currently duplicating programming until February 3, 2025, to comply or to request a waiver to continue duplicating programming (which will be granted only in rare cases).  To prevent stations from taking advantage of the grace period, the FCC encourages stations to file waiver requests by October 31.
  • The Media Bureau, along with the FCC’s Managing Director, issued an Order to Pay or to Show Cause to two Alabama FM stations 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.  One station currently has an unpaid regulatory fee debt totaling $6,378.06 for fiscal years 2020, 2021, 2022, and 2023.  The other station has an unpaid regulatory fee debt totaling $5,586.37 for those fiscal years.
  • The Media Bureau denied a Kentucky AM station’s request to reinstate its license, which the Bureau cancelled in August 2020 for the station’s failure to file its most recent license renewal application due in April 2020.  The Bureau, however, subsequently reinstated its 2012 renewal application without explanation.  The station argued that reinstating its 2012 renewal application also required the reinstatement of its license, which would then allow it to file its most recent renewal application that was due in 2020.  The Bureau rejected the station’s arguments, finding that its erroneous reinstatement of the station’s 2012 license renewal application did not otherwise “toll” the station’s license beyond the normal eight-year term – meaning that the station’s license expired in August 2020 due to its failure to file its 2020 renewal application. 
  • The US Patent and Trademark Office announced that it will be holding a roundtable on August 5, both in person and virtual, to assess the impact of Artificial Intelligence on the rights of individuals to their “name, image, voice, likeness, or other indicia of identity,” what the PTO refers to as “Name Image and Likeness” or “NIL.” Information gathered will be used to determine if the PTO should seek new rules to protect NIL rights.  The Federal Register notice announcing this roundtable includes a list of questions to be addressed, including an identification of issues that have arisen, a discussion of state laws governing NIL, questions of whether new federal laws are needed and, if so, what those laws should provide.  Parties interested in registering to speak at the roundtable should register with the PTO.  More information is on a PTO webpage about the proceeding.

On our Broadcast Law Blog, we discussed the impact on broadcasters of the Supreme Court’s rejection of the Chevron Doctrine last week.  The doctrine had required courts to generally defer to expert regulatory agencies, like the FCC, when interpreting ambiguous statutes.  By abolishing the policy, those appealing agency decisions will have new arguments to raise.  Our article discusses how the review of agency decisions may change.

Last week, the U.S. Supreme Court overturned the longstanding Chevron doctrine, which required courts to defer to expert regulatory agencies, like the FCC, when interpreting ambiguous statutes, unless the agency acted unreasonably.  Since the decision, we have seen all sorts of TV pundits predicting the end of “the administrative state” (presumably meaning the end of the many rules passed by administrative agencies like the FCC).  In the broadcast space, we’ve heard many suggest that this might mean that the broadcast ownership rules (most recently upheld by the FCC in their December decision on the 2018 Quadrennial Review) would soon be a thing of the past.  As we wrote several months ago, when this case was argued before the Supreme Court, we think that many of these predictions are overblown.  While certainly last week’s decision gives challengers to agency decisions more ammunition to use in bringing such challenges, and likely will cause the federal courts to be flooded with more challenges generally, the decision will not end the authority of administrative agencies to adopt rules affecting businesses, nor will it bring about any immediate change in rules adopted by the FCC on complex issues affecting broadcasters, like the local radio and television ownership rules. 

First, we need to look at what the Chevron doctrine was all about.  Chevron did not deal with the power of agencies themselves to make rules, but instead it dealt with the relatively narrow question of the standards that courts should use in evaluating challenges to those rules.  Under Chevron, if an agency’s rules relied on an interpretation of arguably ambiguous Congressional legislation, the courts would defer to the agency’s interpretation of the law if that interpretation was a plausible one.  In other words, under Chevron, the agency’s interpretation of the law would stand if there was a reasonable argument that the law meant what the agency said that it did, even if a reviewing court thought that there was a better reading of the law.  So, the doctrine dealt only with issues that arose when there were arguably ambiguous statutes being interpreted by an agency like the FCC.

Continue Reading Supreme Court Rejects the Chevron Doctrine – What Does it Mean for Broadcasters Regulated By the FCC? 

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 U.S. Supreme Court overturned the longstanding Chevron doctrine, which required Courts to defer to expert regulatory agencies, like the FCC, when interpreting ambiguous statutes, unless the agency acted unreasonably.  If the agency’s interpretation of a law was a plausible one, under Chevron, that interpretation would stand even if a reviewing Court thought that there was a better reading of the law.  The Supreme Court decided that it should be the Courts that interpret statutes and, while the agency’s decision may be instructive, the Court will make the final determination as to what the best interpretation of the statute is, even if it is different than the decision of the agency.  This could lead to more Court decisions overturning agency actions.  Several months ago, when this case was argued before the Supreme Court, we wrote on our Broadcast Law Blog about its possible impact.    
  • The House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing titled: “Radio, Music, and Copyrights: 100 Years of Inequity for Recording Artists.”  The hearing examined whether a sound recording public performance right, similar to the royalty paid to SoundExchange for streaming, should be extended to cover over-the-air broadcasters.  This royalty, to benefit record companies and artists, would be in addition to the royalties already paid to ASCAP, BMI, SESAC, and GMR (benefitting songwriters and publishing companies).  Country music star Randy Travis and Mike Huppe, the CEO of SoundExchange, testified in favor of the American Music Fairness Act of 2023, which would enact such a sound recording performance royalty for over-the-air broadcasters.  Curtis LeGeyt, the CEO of NAB, and a Radio One station manager discussed the Supporting the Local Radio Freedom Act, which would prohibit Congress from imposing such royalties.  A recording of the hearing and copies of the witnesses’ written testimonies can be found here.
  • The FCC’s Media Bureau announced that comments are due July 29 on the FCC’s Notice of Proposed Rulemaking, which proposes extending Online Public Inspection File requirements to top-rated or network affiliated LPTV stations and expanding OPIF requirements to include uploading Local Marketing Agreements, Time Brokerage Agreements, Joint Sales Agreements and, for Class A stations, certifications of continuing Class A eligibility.  The NPRM also proposes other changes to the FCC’s rules governing Class A, LPTV, and TV translator stations, including limits on site moves and obligations to establish a city of license (see our discussions of the NPRM here and here).  Reply comments are due August 26. 
  • The FCC circulated a draft Report and Order which, if adopted at the FCC’s Open Meeting on July 18, would require device manufacturers and Multichannel Video Programming Distributors (MVPDs) to make closed captioning display settings “readily accessible” to individuals who are deaf or hard of hearing.  The requirement would apply to all U.S.-manufactured devices that use a picture screen and are designed to receive or play back video programming simultaneously transmitted with sound (such as televisions, smartphones, tablets, and computers).  MVPDs must comply with the requirement if they provide their customers with covered devices to use their services.  The FCC will determine whether a device is readily accessible using the factors described in a joint proposal filed by the NCTA and a coalition of consumer groups in March: proximity (all settings in one place accessible by button or key); discoverability (the settings can be easily found by the user); previewability (the user can see what the settings will look like on their screen when changing settings); and consistency and persistence (the settings of the device can be used for accessibility to all applications that may be accessed on that device). 
  • The FCC’s Public Safety and Homeland Security Bureau released its Report on the October 4, 2023 Nationwide Emergency Alert Service Test.  The report notes that 96.6% of EAS Participants participated in the 2023 EAS test (an increase from 89.3% in 2021) and that the test had an overall 93.6% retransmission success rate (an increase from 87.1% in 2021).  While there were fewer performance issues reported in the 2023 EAS test than in the 2021 test, the report states that 23% of EAS Participants in the 2023 test used outdated software, leading to a lower success rate among those participants.  To improve the operational readiness of the EAS, the Bureau recommends that the FCC require EAS Participants to timely install software updates and to replace outdated equipment.
  • The FCC’s Wireless Telecommunications Bureau and Media Bureau issued a Public Notice announcing the designation of the Chair of a coordinating committee formed by the Network Pool organization to be the point of contact to coordinate uses of the Broadcast Auxiliary Service for the 2024 Republican National Convention, the 2024 Democratic National Convention, and the 2025 Presidential Inauguration.  Designating the chair of this committee (referred to as “Election Wireless 2025”) as frequency coordinator allows for advance coordination of BAS frequency usage to try to avoid spectrum congestion and interference at those events.  The Bureaus also granted Election Wireless 2025’s waiver request to permit low power auxiliary operators to exceed the maximum power levels when operating at those events to facilitate their coverage.  More information about the appointment and the use of wireless frequencies to cover this event can be found in the Public Notice.    
  • The Media Bureau published in the Federal Register notice of the following proposed changes in the city of license of the listed radio stations: WTOF(AM), Bay Minette, AL to Spanish Fork, AL; WPJL(AM), Raleigh, NC, to Knightdale, NC; KAMZ(FM), Tahoka, TX to Wolfforth, TX; KJAR(FM), Laramie, WY to Elk Mountain, WY; KZJJ(FM), Mesa, WA to West Richland, WA; and WRBO(FM), Como, MS to Germantown, TN.  Comments on these proposals are due by August 23, 2024. 
  • The Media Bureau released two NPRMs proposing changes to the TV and FM Tables of Allotments:
    • The Bureau released an NPRM proposing to amend the FM Table of Allotments to add new Channel 284A at Huntley, Montana, as that community’s first local radio service.  To enable that change, the NPRM also proposes to move the FM station operating on Channel 283C1 at Billings, Montana, to Channel 286A.  Comments and reply comments in response to the NPRM are due August 19 and September 3, respectively. 
    • The Bureau released an NPRM proposing the reallocation of channel 11 at Cape Girardeau, Missouri instead of channel 32.  Channel 32 had been allocated for use by KFVS-FM, which is operating on channel 11.  However, the station was not able to timely construct the new facilities on channel 32, and thus is asking that the allocation of channel 11 be returned to the table of allotments to reflect the station’s continued operation on that channel.
  • The Media Bureau, along with the FCC’s Managing Director, issued an Order to Pay or to Show Cause to a Texas AM station proposing to revoke the station’s license unless, within 60 days, the station pays its delinquent regulatory fees and interest, administrative costs, and penalties or shows that the debt is not owed or should be waived or deferred.  The station currently has an unpaid regulatory fee debt of $3,303.84 for fiscal year 2022.
  • The Media Bureau also took actions against two broadcasters for FCC rule violations:
    • In connection with their license renewal applications, the Bureau entered into a Consent Decree with two Puerto Rico noncommercial TV stations for failing to timely upload the majority of their Quarterly Issues/Programs Lists to their Online Public Inspection Files during their last license term.  The Consent Decree requires that the stations implement a compliance plan to ensure that future OPIF violations do not occur.  A monetary penalty was not imposed due to the stations’ financial difficulties.  The Bureau only renewed the stations’ licenses for two-year terms, instead of the normal eight-year term, due to the extent of their violations.
    • The Bureau proposed a $2,500 fine against a Texas LPTV station for operating for four months with an unauthorized antenna.  The Bureau reduced the proposed fine from the normal amount of $10,000 due to LPTV station’s status as a secondary service. 

On our Broadcast Law Blog, we highlighted upcoming regulatory deadlines for broadcasters in July and early August, including Quarterly Issues Programs lists and other quarterly obligations, numerous rulemaking comments deadlines, and the start of several political lowest unit rate windows.  We also looked at the impact on broadcasters of the FCC’s recent decision on foreign government sponsored programming, which expanded the requirement that broadcasters determine whether those who “lease” program time on their stations are foreign government agents (who have enhanced sponsorship identification requirements), to include buyers of spot time that does not promote a commercial product or service or a political candidate – thus requiring certifications about foreign government connections from issue advertisers and sponsors of paid PSAs. 

The lazy days of summer continue to provide little respite from the regulatory actions of importance to broadcasters.  This month brings quarterly requirements, including most importantly, the obligation to upload Quarterly Issues Programs Lists to a station’s online public file, and a number of comment deadlines in important FCC proceedings, as well as the opening of political windows in this major election year.  So, even if the beach chair is calling, remember to keep an eye on dates that can affect your stations. 

The regulatory date that all full-power broadcasters should have circled on their calendars is July 10, the deadline by which all full-power radio and TV stations (as well as Class A television stations), both commercial and noncommercial, must upload to their online public inspection files their Quarterly Issues/Program lists for the second quarter of 2024.  The lists should identify the issues of importance to the station’s community and the programs that the station aired between April 1 and June 30, 2024 that addressed those issues.  It is important that these be timely uploaded to your public file, as the untimely uploads of these documents probably have resulted in more fines in the last decade than for any other violation of the FCC’s rules.  As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its community.  See our article here for more on the importance of the Quarterly Issues/Programs list obligation.

Continue Reading July Regulatory Dates for Broadcasters – Quarterly Issues/Programs Lists, Comment Deadlines in Multiple Proceedings, Political Windows, and More

Last week, the FCC released its long-expected decision on foreign government sponsored programming.  As you will recall, in 2022, the FCC adopted rules that required enhanced sponsorship identifications when program time bought (or, in the FCC’s words, “leased”) on broadcast stations was sponsored by a foreign government or an agent of a foreign government.  In addition, it required broadcasters to verify whether program buyers were agents of foreign governments, both by getting certifications from program buyers as to whether they represented foreign governments and by checking a Department of Justice database (compiled under the Foreign Agents Registration Act) to see if the buyer was registered as a foreign agent (see our articles here and here).  When a court threw out the requirement that broadcasters check those databases (see our article here), the FCC responded with a Second Notice of Proposed Rulemaking proposing that, instead of the FARA research, broadcasters needed to obtain a 13-paragraph certification as to whether any program buyer was a foreign government entity, and to include in the public file all such certifications, regardless of the response (as opposed to the existing requirement only obligating the broadcaster to put certifications in the public file when they indicated that the buyer was in fact an agent of a foreign government) (see our articles here and here on that proposal).  In the order released last week, the FCC decided not to require that enhanced certification (or the requirement to put negative responses into the public file), but instead came up with an unexpected addition to the requirement – that certifications must be obtained not just from buyers of program time, but also from buyers of advertising spot time, if the advertisers are not promoting commercial products and services. 

The order simplifies the certification requirement from the detailed multi-page certification in complex legalese that had been proposed in the Second Notice.  Instead, the FCC offers a relatively short certification (contained in Appendix D of the order) for program buyers to sign, with two basic questions – whether any foreign government entity ( a foreign government, a foreign political party, or an agent of one of those groups) is the purchaser of the programming; and whether the purchaser or any producer of the programming is being paid by a foreign government entity.  In the vast majority of cases, we expect that the answer to both questions will be “no.”  In the event that a programmer or program producer is an agent of a foreign government, then an additional question applies, requiring that the programmer provide the licensee appropriate sponsorship identification information for the enhanced on-air sponsorship identifications and for the required public file disclosure obligations.  Even using this FCC form questionnaire is not necessary, if the licensee can obtain that information using different words.  So, in at least some instances, broadcasters may be able to continue to use their existing certification language. Consult your attorney to see if the language you are using will comply with what the FCC will require when this order becomes effective. 

Continue Reading FCC Releases Decision on Broadcaster’s Obligations to Identify Foreign Government Sponsored Programming – There is Some Good News, and Some Bad News Affecting Issue 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 Media Bureau asked for comments on a petition for rulemaking proposing the creation of a new class of FM stations – Class A10.  These stations would operate with a power of up to 10,000 watts at no more than 100 meters height above average terrain.  Authorizing this new class of stations would require amending the minimum distance separation requirements for various classes of FM stations.  This petition asks that the Class A10 rulemaking supersede the pending proposal for a new FM Class C4 (see our article here regarding that 2018 proposal).  Unlike the Class C4 proposal, the proposed Class A10 stations would be available nationwide (the Class C4 would have been permitted only in certain parts of the country).  Comments on the petition are due July 22, and reply comments are due August 21.  This is a preliminary step to determine if the FCC should consider this proposal.  If the FCC decides to do so, additional public comment would be required following the issuance of a Notice of Proposed Rulemaking. 
  • The Bureau granted the assignment of several TV and LPTV stations located in the Cheyenne-Scottsbluff, WY-NE DMA from Gray Television to Marquee Broadcasting West.  One of the stations involved, KGWN, has two top-four broadcast TV network affiliations (CBS and NBC).  The review of this case focused on an application of the FCC’s December decision in the 2018 Quadrennial Review holding that one owner of a TV station affiliated with a Top 4 network cannot acquire the network affiliation of a second station in the market and put it on a digital subchannel (see our article here).  The Commission in this case states that any sale of a station that already has two Top 4 network affiliations also requires FCC approval to ensure that continued dual-network operation is in the public interest.  The FCC found that it was in the public interest for KGWN to maintain both its CBS and NBC network affiliations under Marquee’s ownership due to the market’s small size and large geographic area which make operations of a standalone top-four network affiliated TV station difficult, requiring a broadcaster to have multiple facilities to cover the market’s dispersed population centers.  The FCC also noted that the market’s ABC and Fox affiliated stations are operated as satellites of out-of-market stations, and the declaration of a media broker that said that no independent operator would be interested in starting an affiliated station in this small market.  The FCC concluded that the acquisition of KGWN’s two network affiliations would preserve local news service and network-affiliated programming in the market. 
  • The Bureau also seeks comment on a petition for waiver of the FCC’s audio description rules filed by TBS and TNT.  The cable networks request a three-year waiver of the FCC’s audio description rules which requires the top 5 cable networks to air 87.5 hours of audio described programming per quarter, with no program allowed to be counted more than twice (“the repeat rule”), no matter how often the program is aired in the quarter.  The networks claim that, because of their large amount of live or near live programming (which is not audio described) and many repeat programs, it is extremely difficult, if not impossible, for these networks to comply with the “repeat rule.”  To justify the waiver, the networks promise extensive description of repeated programming, which would result in TBS offering at least 1,000 hours of described programming per quarter and TNT providing 2,500 hours of described programming per year.  It would also quickly add descriptions to other newly produced, non-live programming aired between 6:00 a.m. and midnight ET during the waiver period and include audio described programming on a commonly owned smaller network not otherwise subject to the requirements.  Comments on the petition are due June 28, and reply comments are due July 5. 
  • The Commission’s staff took the following actions concerning LPFM stations:
    • The Enforcement Bureau denied a Florida LPFM station’s request for reconsideration of a $25,000 fine imposed by the Bureau in 2022 for the station’s unauthorized operations, failure to cooperate with FCC field agents, and failure to maintain Emergency Alert Service equipment.  The station sought cancellation of the fine due to an inability to pay, which it supported by providing a declaration of its president, a list of non-cash assets, and copies of bank statements.  The Bureau rejected the request because the FCC requires financial statements or tax returns to justify a conclusion that the licensee has an inability to pay a proposed fine, and because the station again failed to cooperate with FCC field agents during an April 2024 inspection. 
    • The Media Bureau affirmed its dismissal of a Florida LPFM construction permit application for failure to adequately support a waiver of the second-adjacent channel spacing requirements necessary to protect nearby broadcast stations.  Continuing the hardline approach we have noted in many recent weekly updates, the Bureau rejected the applicant’s claim that its singleton status warranted allowing it to amend to provide the required technical showing, again holding that the initial application filed during any LPFM window must provide all of the technical information needed to justify a waiver or the application will be dismissed with no opportunity to amend. 

On our Broadcast Law Blog, we discussed how the Media Bureau’s admonishment of three TV stations (actions noted in our update last week) for failing to include non-discrimination clauses in their advertising sales agreements serves as a warning to broadcasters.  Over a decade ago, the FCC adopted these rules to stop “no urban, no Spanish” advertising dictates.  These cases noted that, in the future, fines will be imposed for such violations, showing that the FCC still takes the rule seriously. 

As we wrote in Sunday’s weekly summary of broadcast actions, last week was a very active one at the FCC.  The FCC released the texts of rulemaking proposals on annual regulatory fees and on new regulatory proposals for LPTV and TV translator stations.  The Commission also released orders reinstating rules prohibiting FM stations serving the same area from duplicating programming and rules imposing new verification requirements on broadcasters to assure that program time (and issue ads) that they sell are not purchased by representatives of foreign governments without enhanced public disclosures.  We plan to write more about these actions in the coming days.  Today, we will focus on a less publicized set of actions taken last week that remind broadcasters of a decade-old requirement to which not much attention has been paid since its adoption – the requirement that broadcasters not discriminate in the sale of advertising time and include in sales contracts statements informing their ad buyers of their polices against such discrimination.

The Media Bureau’s actions reminding broadcasters of the policy against advertising discrimination came in three orders released last week.  The  Bureau, in acting on pending television license renewal applications, admonished a Louisiana TV station, a South Carolina Class A TV station, and a North Carolina Class A station for their failures to include non-discrimination clauses in their advertising sales agreements.  In their renewal applications, none of the applicants was able to respond to a required certification attesting that “its advertising sales agreements do not discriminate on the basis of race or ethnicity and that all such agreements held by the licensee contain non-discrimination clauses.”  Either no explanation was given for not being able to certify or an exhibit was provided stating that the station had not routinely included this certification in their sales agreements.  While no monetary fines were imposed in connection with these warning letters, as no evidence of actual discrimination was shown, the Bureau warned that future failures to include non-discrimination clauses in such agreements could result in fines, and in the case of the Class A stations, a downgrade to LPTV status. With three such decisions in one week, it appears that the Bureau was sending a message to the industry to pay attention to this requirement.

This obligation was adopted in 2011 reflecting concerns about “no urban, no Spanish” dictates in advertising orders for general market products and services.  These dictates came from advertisers who did not want their products pitched to minority audiences, making stations serving such audiences harder to operate when portions of major advertising budgets were not available to them.  Prior to the adoption of the requirement, we wrote about a car advertiser who included such a dictate in a request for an advertising buy, an action that caused an uproar in the broadcast advertising world and perhaps led to the FCC’s adoption of the requirement.  When the Enforcement Bureau of the FCC in 2011 issued an Enforcement Advisory, answering questions about the new requirement, then-Chairman Genachowski issued an accompanying News Release, stating that the Commission “will vigorously enforce its rules against discrimination in advertising sales contracts.”  See our article here where we wrote about these actions at the time of these FCC releases.  Yet, until the actions this past week, there has been very little enforcement of the requirement. 

The policy requires that stations have language in their sales contracts requiring that the buyer of advertising time certify that they were not buying the advertising time with a discriminatory intent The 2011 Enforcement Advisory also highlighted that stations that use advertising rep firms or other sales agents must make sure that these agents have nondiscrimination clauses in their own contracts used to sell advertising time on the station. 

This policy initially raised several questions from broadcasters, with many asking what they should do if they have no advertising contracts.  At the time, many broadcasters, especially in dealing with regular customers, booked advertising through emails or phone calls – not formal contracts.  The lack of formal sales contracts has likely increased since that time as more and more programmatic sales platforms have been introduced into the ad buying process, so that there is not the formal advertising contract exchange between real people.  The FCC did not specifically address how stations with no advertising contracts should meet their obligations, but the industry seems to have settled on a practice of including the nondiscrimination clause in the exchanges that form the contract – e.g. the emails confirming the schedule, the rate cards offering the spots for sale, or other communications between the station and the advertiser.  

We have also suggested that written contracts are a good idea when feasible, as these contracts can cover other issues that are important to broadcasters, e.g. indemnifications from advertisers that they have the rights to all the music and other creative content used in their ads, statements that the broadcaster reserves the right to preempt ads if they don’t like the content or if the broadcaster needs to run some programming of greater local importance, that advertising sold to one party should not be re-sold to anyone else, that the broadcaster is not liable for any consequential damages if an ad does not run for technical or other reasons, and similar issues.  These clauses are sometimes included in terms and conditions for advertising purchases or in other documents provided to advertisers or their agents – and any such disclosures should include the non-discrimination certifications.

What should the certification say?  Again, the FCC does not suggest any specific text.  The Commission seems to suggest that the contract certification should cover the fact that the broadcaster is not discriminating in the sale of time – when it probably is more accurate that, to insure that the advertising is not being purchased pursuant to a “no Urban, no Spanish” dictate, it should be the advertiser who is certifying that their motivation in buying time is not a discriminatory one.   We would expect that advertisers will have learned from that experience, and it will now be rare that advertisers will be so blatant about such an intention.  To discover such intent, broadcasters need to get a certification from the advertiser as to their intention.  In articles at the time, we suggested language which expresses the intent of both the advertiser and the station, but each station should carefully consider any language they adopt, and discuss it with their counsel.  As last week’s decisions make clear, it is important that stations routinely use such language in their sales materials.

The Enforcement Bureau Advisory also makes clear that broadcasters, in addition to simply making the required certification and including the required clause in their contracts, must also police advertising to make sure that it is not purchased for discriminatory purposes.  So, if some general market advertiser approaches a station with a request for an advertising schedule that seems to discriminate, the broadcaster needs to investigate if in fact there is a discriminatory intent, and reject such advertising if it in fact discriminates.  Broadcasters cannot turn a blind eye to potential discrimination in the purchase of advertising by their clients. 

The current FCC has placed an emphasis on diversity and inclusion, assessing virtually every rule that it proposes or adopts to determine its impact on these important goals.  With last week’s actions, it appears to be making clear that it is also ready to enforce one of its policies directly addressing these goals.  Since it has been so long since this advertising nondiscrimination requirement was adopted, and as there has been little publicity about this requirement since its adoption (other than the certification in renewal applications), it is important to remember the obligation so that, come your next renewal, you will not be in the situation faced by these three stations cited by the Commission last week.  

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 released a Second Notice of Proposed Rulemaking asking for comments on the 2024 FCC annual regulatory fees, which will be paid in September by broadcasters and other FCC-regulated entities.  Regulatory fees reimburse the government for the FCC’s operating costs and are allocated based on how many FCC staff employees work on industry-specific matters.  As the result of reallocating employee costs across regulated industries, the FCC proposes reducing TV station fees by approximately 15.4% from last year and also proposes reductions in radio fees.  The FCC seeks comments on the fees and a number of other issues, including whether to end its presumption that silent stations are entitled to fee waivers without providing evidence of financial hardship, proposing that, beginning in 2025, such stations will be required to document their inability to pay.  Comments on the proposed fees are due July 15, and reply comments are due July 29.  Expect a final decision on the fees around Labor Day so that the fees can be paid before the October 1 start of the government’s new fiscal year.
  • The FCC released a Report and Order expanding on the requirement that broadcasters determine whether those who “lease” program time on their stations are foreign government agents and, if so, imposing enhanced sponsorship identification requirements.  The FCC gives broadcasters two options to show that they checked whether a lessee’s programming is sponsored by a “foreign governmental entity”: (1) the station and the lessee must both execute written certifications using standardized language, the lessee certifying that they are not acting on behalf of a foreign government and the licensee certifying that they explained this FCC requirement to the lessee; or (2) the station must ask the lessee to provide screenshots of the search results for the lessee’s name in the Department of Justice’s Foreign Agent Registration Act database and the FCC’s most recent U.S.-based foreign media outlet report.  The FCC also reaffirmed that this requirement does not apply to commercial spots or political candidate advertisements, but the verifications are required for sponsors of issue ads and paid PSAs.  The FCC also determined that there will be no exemptions from these requirements for religious or locally produced programming.  We expect to write more on this Order on our Broadcast Law Blog in the coming week. 
  • The FCC released the full text of its NPRM proposing changes to its Class A, LPTV, and TV translator rules that, as we noted in our update last week, was adopted at the FCC regular monthly open meeting the week before last.  The NPRM proposes extending Online Public Inspection File requirements to top-rated or network affiliated LPTV stations and expanding OPIF requirements to include uploading Local Marketing Agreements, Time Brokerage Agreements, Joint Sales Agreements and, for Class A stations, certifications of continuing Class A eligibility.  At National Association of Broadcasters’ request, the FCC seeks comment on whether the OPIF is serving its intended purpose of informing the public about broadcast station operations.  The NPRM also proposes a limit on site changes for these stations but, at LPTV Broadcasters Association’s request, the FCC seeks comment on alternatives to the proposed 48.3 km limit on such moves. 
  • The FCC released a Reconsideration Order reinstating its radio non-duplication rule for commercial FM stations, granting a reconsideration request from music industry groups and a group associated with LPFM interests.  The rule, which the FCC repealed in August 2020, prohibited commonly owned or operated same service (AM and FM) stations with overlapping service contours from duplicating more than 25% of their programming (see our summary of the 2020 decision here).  The reinstated rule will only prohibit FM stations with overlapping contours from duplicating their programming, effective 30 days after the Order’s publication in the Federal Register.  FM stations currently duplicating programming, however, will have six months from the effective date to comply or to request a waiver to continue duplicating programming (which will be granted only in rare cases).  To prevent stations from taking advantage of the grace period, the FCC encourages stations to file waiver requests within 90 days after the effective date.
  • It was also a busy week for the FCC’s Media Bureau, which took the following enforcement actions:
    • The Bureau proposed a $20,000 fine against a Wyoming TV station because it failed to timely file 23 of its Children’s Commercial Limits Certifications to its OPIF, which were filed between one month and over seven years late.  Due to the extent of the violations, the Bureau upwardly adjusted the proposed fine from the $10,000 established base amount for such a fine.
    • The Bureau admonished a Louisiana TV station, a South Carolina Class A TV station, and a North Carolina Class A station for their failures to include non-discrimination clauses in their advertising sales agreements.  The Bureau warned the stations that future failures to include non-discrimination clauses in such agreements could result in fines, and in the case of the Class A stations, downgrade to LPTV status. For more on the requirement to have this language in sales materials, see our article here.
    • The Bureau entered into a Consent Decree with an AM and a FM station in Louisiana because the stations failed to timely file any quarterly Issues/Programs Lists during their previous license period.  The Consent Decree requires the stations to implement a compliance plan to ensure that future OPIF violations do not occur.
  • The Bureau released two NPRMs proposing changes to the TV Table of Allotments as requested by petitioner TV stations.  The first NPRM proposes the substitution of channel 23 for channel 7 at Boise, Idaho due to the poor reception on VHF channel 7.  The second NPRM proposes to undo the substitution of channel 27 for channel 12 at Augusta, Georgia due to petitioner’s inability to timely construct its channel 27 facilities.
  • The Bureau also acted on several applications for new LPFM stations:
    • It dismissed two Texas LPFM construction permit applications (here and here) for failure to demonstrate reasonable assurance of site availability.  One applicant lacked reasonable assurance of transmitter site availability because it did not communicate with the actual tower site owner and listed the incorrect owner on the application.  The other applicant not only failed to communicate with the actual tower site owner, but a court injunction barred the use of the proposed site.
    • The Bureau affirmed its dismissal of an Alabama LPFM construction permit application for failure to meet the co-channel spacing requirements necessary to protect nearby broadcast stations, rejecting the applicant’s request to amend its application because the LPFM application procedures clearly state that the Tech Box in the initial application must comply with the FCC’s channel spacing requirements, and as it did not, the application was properly dismissed without an opportunity to amend.

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 adopted a Notice of Proposed Rulemaking proposing extensive revisions to its Class A TV, LPTV, and TV translator rules.  As we discussed here, the draft NPRM released several weeks ago proposed extending Online Public Inspection File requirements to certain top-rated or network affiliated LPTV stations, and expanding Class A station OPIF requirements to include uploading LMAs, Joint Sales Agreements, and Class A certifications (LPTVs would also upload LMAs and JSAs).  The draft NPRM also included other proposals, including limiting station site moves to 48.3 kilometers and requiring stations to specify a community of license within their service contour.  The FCC has not yet released the final version of the NPRM, but its proposals may have changed since the draft was released due to recent lobbying by broadcasters.  Perhaps most interesting was the National Association Broadcasters’ argument that the OPIF requirements should not be applied to LPTV as the FCC-mandated public file does not serve its intended purpose of informing the public about broadcast station operations, as the public rarely accesses that file.  The LPTV Broadcasters Association challenged any strict application of the 48.3 km limit on station moves and the Advanced Television Broadcasting Alliance suggested that a designated community of license was unnecessary for LPTV stations. We will report next week if any of these issues was addressed in the final version of the NPRM. 
  • The FCC’s weekly list of the items on circulation (those orders or rulemaking proposals that have been drafted and are currently circulating among the Commissioners for review and a vote) removed an order resolving a petition for reconsideration of the FCC’s 2020 decision eliminating the prohibition on radio stations in the same service (AM or FM) that serve the same area duplicating programming (see our Broadcast Law Blog article here, summarizing the 2020 decision).  Some public interest groups asked for reconsideration of the decision as applied to FM stations in the same area duplicating programming. The removal of the draft order from the list likely means that it has been voted on by the Commissioners and will be released soon – possibly in the next few days. 
  • The NAB filed a petition for reconsideration of the FCC’s February Report and Order reinstating the requirement for broadcasters to annually file the FCC Form 395-B, a form that has been on hiatus for over 20 years.  As we discussed in an article on our Blog, here, the form requires broadcasters to annually report their employees’ race or ethnicity and their gender, while classifying the employees by job categories.  The NAB urged the FCC to reverse its decision to make the Form 395-B data publicly available, arguing that doing so violates the First and Fifth Amendments by pressuring broadcasters to engage in preferential hiring practices.  The NAB also cites concerns recently raised by broadcasters that the expansion of the report’s gender categories could lead to harassment of station employees identifying as non-binary. The NAB’s petition joins that of two groups of Catholic broadcasters who sought reconsideration of the reinstatement of the form, and the appeals filed by the National Religious Broadcasters Association and one of its members and by the Texas Association of Broadcasters seeking Court review of the FCC’s order.   
  • Press Communications, LLC and REC Networks filed petitions for reconsideration of the FCC’s April decision permitting FM stations to “zonecast” or “geo-target” by airing a limited amount of original programming (e.g., commercials or news) on their FM boosters.  Press Communications urged the FCC to prohibit zonecasting in “embedded markets” (such as the Northern New Jersey market, “embedded” in the New York City market) because underfunded, lower-powered Class A FM stations in these suburban markets cannot compete with better-funded, higher-powered Class B FM stations from the larger parent market that will be allowed to us use multiple FM boosters to geo-target advertisers in the embedded markets.  Press Communications also argues that the FCC relied on faulty engineering studies in concluding that the interference risks of zonecasting were minimal.  REC Networks argues that the FCC failed to consider potential co-channel interference to unrelated FM broadcast stations and proposes that all FM booster station applications (whether or not they propose zonecasting) include a showing that no interference will occur.  Comments on the petitions are due June 19.
  • Federal Election Commission Chairman Sean Cooksey sent a letter to FCC Chairwoman Rosenworcel arguing that the FCC lacks legal authority to require broadcasters and cable and satellite TV operators to disclose the use of AI-generated content in political ads (as proposed by the Chairwoman last month – see our article here).  The FEC Chairman argues that FCC action could create conflicts with any rules that the FEC might adopt addressing the issue, which would require litigation to resolve, and expressed concerns that imposing the new rules in the limited time before the November election would “create confusion and disarray among political campaigns” and “chill broadcasters from carrying many political ads.”  In the press conference following the FCC’s open meeting this past week, Commissioner Carr reiterated these concerns, while Chairwoman Rosenworcel defended the proposal (which is not yet public) and her belief that it is important to have these rules implemented before the election.
  • In routine actions at the FCC’s Media Bureau, it approved a proposed amendment to the FM Table of Allotments and dismissed two LPFM construction permit applications:
    • The Bureau amended the FM Table of Allotments by downgrading vacant Channel 245B at Mattoon, Illinois to Channel 241B1 to resolve a spacing conflict with a nearby FM station (the vacant allotment arose from the cancellation of a station license).  The Bureau concluded that Channel 241B1 would resolve the spacing issue and comply with the FCC’s minimum distance separation requirements.  The FCC will in the future announce the opening of a filing window for construction permit applications for the new allotment.
    • The Bureau denied applications for new LPFM applications in Arizona and Texas because the applicants failed to show that they were qualified to hold an LPFM license.  LPFM stations must be non-profits or government organizations, and neither applicant provided any evidence that they were organized as non-profits, and the records in their states did not reflect any nonprofit registration for either organization.  Nor could either applicant show it was a public safety radio service provider (which must be a local government or other non-profit that provides emergency services in its service area).

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

  • The FCC’s Media Bureau announced the opening of two filing windows for Class A TV, LPTV, and TV translator stations:
    • The Bureau released a Public Notice announcing that, beginning August 20, Class A TV, LPTV, and TV translator stations may file applications to change their existing channels.  No other “major modification” applications (such as transmitter site location changes of more than 30 miles) and no applications for new stations will be accepted.  Channel change applications will be accepted on a first-come, first-served basis, with any applications filed on the same day being deemed “mutual exclusive” if they cannot all granted consistent with the FCC’s interference rules.  Mutually exclusive applicants will have a later opportunity to settle or file a technical amendment to their applications to resolve their conflicts.  More information on the filing and processing of these applications is in the Public Notice.
    • The Bureau also released a Public Notice announcing that eligible LPTV stations may file to convert to Class A status now through May 30, 2025.  In December 2023, following the passage by Congress of the Low Power Protection Act, the FCC released a Report and Order that gave LPTV stations located in small television markets – DMAs ranked 178 (Elmira-Corning, NY) through 210 (Glendive, MT) – a limited opportunity to apply for Class A status.  Class A status protects these stations from interference by new or improved full-power stations, and from changes to the television band (such as those that occurred from the TV incentive auction when parts of the allotted television spectrum was reclaimed by the FCC to be auctioned to wireless operators).  To be eligible for Class A status, LPTV stations must have, between October 7, 2022 and January 5, 2023, been on the air at least 18 hours per day, broadcast an average of at least 3 hours of local programming per week, and otherwise complied with the FCC’s LPTV rules. Additional information about the filing requirements and procedures is in the Public Notice. 
  • The FCC’s weekly list of the items on circulation (those orders or rulemaking proposals that have been drafted and are currently circulating among the Commissioners for review and a vote) removed an order resolving a pending proceeding that would require that broadcasters receive enhanced certifications from all buyers of programming time on their stations demonstrating that the programmers are not representatives of foreign governments.  The removal of the draft order from the list likely means that it has been voted on by the Commissioners and will be released soon – possibly in the next few days.  For more information about the possible new obligations that would be imposed on broadcasters, see this article on our Broadcast Law Blog.
    • The list also noted the addition of a Report and Order for consideration by the Commissioners to adopt the FCC’s regulatory fees for FY2024.  Orders like this are normally adopted by August so that regulatory fees can be paid before the October 1 start of the federal government’s next fiscal year.  That item also appears to include a Report and Order acting upon the FCC’s March Notice of Proposed Rulemaking, which proposed changes to how the FCC calculates its annual regulatory fees for earth stations.
  • The FCC’s Public Safety and Homeland Security Bureau announced that it will conduct a voluntary Disaster Information Reporting System exercise from June 10 to 12 for communications providers and broadcasters.  The Bureau’s Public Notice contains information on how to register and participate in the DIRS exercise.  As we discussed in our weekly updates here and here, the FCC proposed in a January Notice of Proposed Rulemaking to require TV and radio stations to report their operating status during disasters in the FCC’s DIRS database.  The exercise will provide broadcasters the opportunity to practice the use of the DIRS database should the FCC adopt the proposed mandatory reporting requirement. 
  • The FCC made two announcements concerning its TVStudy software, which is used by broadcasters to conduct TV station coverage and interference analysis for allotment petitions and modification applications.  The Media Bureau announced that the 2020 U.S. Census Data must be used in applications filed on or after August 1, 2024.  The Office of Engineering and Technology also announced the release of an updated version of the TVStudy software.  A full list of the changes can be found here.
  • The Media Bureau affirmed its grant of a new Iowa noncommercial FM station construction permit, rejecting an objection arguing that the applicant’s antenna location was not available as it was in use by a station owned by the company that filed the objection. The Bureau found that, because the applicant relied in good faith on a statement by the tower owner’s representative that the applicant could install its antenna at the originally proposed height, it had reasonable assurance of site availability when it filed its application, and determined that the applicant would be allowed it to amend its application to specify an antenna height at an available lower location on the tower. 

On our Broadcast Law Blog, we highlighted upcoming regulatory deadlines for broadcasters for June and early July.  We also reminded broadcasters of actions that they should take when they get an objection to the content of a political attack ad to avoid potential liability – a reminder we thought appropriate as we anticipate that, particularly given this past week’s verdict in the Trump trial, we may well see some nasty political ads this election season.