With the verdict in the first criminal case against former President (and now candidate) Trump having been released, we can envision a whole raft of attack ads likely to be airing before the November elections.  The verdict is likely to also increase political divisions within the country, and potentially fuel many other nasty attack ads to be aired in political races from the top of the ballot to the local races that appear toward its end.  The use of artificial intelligence in such ads raises the prospect of even nastier attack ads, and its use raises a whole host of legal issues beyond defamation worries, though it raises those too (see our article here on defamation concerns about AI generated content, and our recent articles here and here about other potential FCC and state law liability arising from such ads).  Given the potential for a nasty election season getting even nastier, we thought that we would revisit our warning about broadcasters needing to assess the content of attack ads – particularly those from non-candidate groups. 

As we have written before, broadcasters (and local cable companies) are forbidden from editing the message of a candidate or rejecting that ad based on what is says except in extreme circumstances where the ad itself would violate a federal criminal law and possibly if it contains a false EAS alert (see, for instance, our articles here, here and here).  Section 315 of the Communications Act forbids a broadcaster or a local cable operator from censoring a candidate ad.  Because broadcasters cannot censor candidate ads, the Supreme Court has ruled that broadcasters are immune from any liability for the content of those ads.  (Note that this protection applies only to over-the-air broadcasters and local cable companies – the no censorship rule does not apply to cable networks or online distribution – see our articles here and here)  Other protections, such as Section 230, may apply to candidate ads placed on online platforms, but the circumstances in which the ad became part of the program offering need to be considered. 

Continue Reading Trump Verdict Raises Concerns About A Nasty Election Campaign Getting Nastier – Looking at a Broadcaster’s Potential Liability for Attack Ads

Though school is out for many, the FCC does not take a summer recess.  Instead, regulation continues.  In addition to the regular EEO Annual Public Inspection File Report deadline for broadcasters in a number of states, there are several comment deadlines in June on issues that directly impact broadcasters – as well as the FCC’s regular monthly Open Meeting when it will consider a draft Notice of Proposed Rulemaking that, if adopted, would make significant revisions to its rules for Class A, LPTV, and TV translator stations.  And, as this is an election year, there are several political deadlines this June that broadcasters must be aware of. 

June 3 (as the 1st is on a weekend) is the deadline for radio and television station employment units in Arizona, the District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming with five or more full-time employees to upload their Annual EEO Public File Report to their stations’ online public inspection files (OPIFs).  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with five or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of each station’s website, if the station has a website.  Be timely getting these reports into your public file, as even a single late report can lead to FCC fines (see our article here about a recent $26,000 fine for a single late EEO report).

The filing of the Annual EEO Public File Reports for radio and television station employment units with eleven or more full-time employees triggers a Mid-Term EEO Review that analyzes the last two Annual Reports for compliance with FCC requirements.  June 1 is the beginning of the Mid-Term EEO Review for radio station employment units in Michigan and Ohio andfor television station employment units in the District of Columbia, Maryland, Virginia, and West Virginia.  Additionally, radio stations located in those states that are part of station employment units with five or more full-time employees must indicate in their OPIFs, when they post their Annual Report, whether their employment unit has eleven or more full-time employees, using a checkbox now included in the OPIF’s EEO folder.  This allows the FCC to determine which station groups need a Mid-Term Review.  See our articles here and here on Mid-Term EEO Review reporting requirements for radio stations.

Continue Reading June Regulatory Dates for Broadcasters – EEO Public File Reports, Rulemaking Comments, Political Deadlines, and More

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.

  • FCC Chairwoman Rosenworcel announced that she had circulated among the Commissioners for their review and approval a draft Notice of Proposed Rulemaking to require TV and radio stations, as well as cable operators and satellite TV providers, to disclose the use of AI-generated content in political ads.  If approved, the NPRM would request comment on whether to require broadcasters to disclose (both on-air and in their political files) when AI-generated content is used in political advertisements from both candidates and issues advertisers, and on how to define the AI-generated content that would need to be disclosed.  Commissioner Carr issued a statement opposing the NPRM, arguing that the Chairwoman’s proposals “fundamentally alter the rules of the road for political speech just a short time before a national election” (even though, if the NPRM is adopted, given normal rulemaking comment periods and processing timelines, it is unlikely that any proposed rule could be adopted in time for this year’s elections) and questioning whether the FCC has the authority to require the disclosures.  See our Broadcast Law Blog article for a discussion of issues that should be considered if the FCC decides to move forward with this proposal and as Congress also considers regulating AI in political advertising.
  • Congressmen Gus Bilirakis (R-FL) and Frank Pallone, Jr. (D-NJ) announced the introduction of a new House of Representatives version of a bill dealing with AM radio in cars titled “AM Radio For Every Vehicle Act of 2024.”  A “mark-up” session on the revised bill was held on Thursday, May 23, when the bill was discussed by the House Subcommittee on Innovation, Data, and Commerce, approved, and sent to the full House Energy and Commerce Committee for approval (see video of the mark-up session here).  As we discussed here, here, and here, the AM Radio for Every Vehicle Act requires that automobile manufacturers retain AM radio in the car dashboard.  The new House version of the bill more closely matches that approved by the Senate Committee on Commerce, Science, and Transportation in July 2023, and provides for enforcement by the Departments of Justice and Transportation through civil penalties and civil actions – provisions that were not included in an earlier House version of the bill.  Any such bill must be passed by both the full House and Senate and signed by the President to become law. 
  • The House Subcommittee on Communications and Technology held a hearing titled: “Legislative Proposal to Sunset Section 230 of the Communications Decency Act.”  At the hearing, the subcommittee discussed the draft bipartisan proposal of Subcommittee Chair Cathy McMorris Rodgers (R-WA) and Ranking Member Frank Pallone (D-NJ) which, on its face, would sunset Section 230 of the Communications Act, effective as of December 31, 2025.  As we discussed here and here, Section 230 was designed to insulate online platforms from liability for content created by others that is hosted on their sites.  Section 230 immunity has long been considered essential to the success of the Internet, but there have been concerns that the law has had unintended consequences, such as enabling terrorist activity, promoting the exploitation of minors, and allowing discrimination and harassment.  In the Subcommittee’s hearing memo outlining the issues to be discussed, it was made clear that the intent of the “discussion draft” was not to actually repeal Section 230, but to encourage its reform with the input of affected technology companies.  A video of the hearing can be viewed here.
  • Comments were filed this past week on the FCC’s March Notice of Proposed Rulemaking (NPRM) proposing the creation of a new Emergency Alert Service event code for missing and endangered persons.  Commenters generally supported the new EAS event code.  Several Tribal groups (here, here, here, here, and here) expressed their support, noting the high numbers of missing persons cases among indigenous people.  Public safety and public interest commenters (here, here, and here) state that the new code would streamline the dissemination of alerts now delivered through multiple codes, facilitating their consistency and speeding delivery to the public.  NCTA – The Internet and Television Association supports the new event code but suggests that the FCC permit its use on a voluntary basis because EAS participants will require equipment upgrades to use the new code, and also urged the FCC to encourage state, local, and tribal official officials to establish clear guidelines to prevent the new event code’s overuse in nonemergency situations.
  • The FCC dismissed a Nevada FM translator licensee’s request for review of the Media Bureau’s November 2022 decision which denied the licensee’s request for waiver of the FCC’s FM translator siting rule .  That rule requires that an FM translator rebroadcasting an AM station be located within the greater of the AM station’s primary service area or a 25-mile radius of its AM station’s transmitter site.  The Bureau dismissed the waiver request because neither the irregular size and shape of station’s market nor terrain obstructions justified waiver of the siting rule.  The Commission found that the applicant was trying to extend, not fill-in, its service area, and determined that it was in the public interest to apply the rule in a fair and consistent manner by prohibiting FM translator locations outside of the AM station’s service area absent compelling circumstances, and the desire to serve a greater area was not such a circumstance. 
  • The FCC’s Media Bureau proposed a $3,250 fine against a Texas TV translator station that failed to timely file its license application and operated for over three years from an unauthorized site.  In April 2021, due to the collapse of its authorized tower, the translator was forced to relocate to operate pursuant to Special Temporary Authority at a temporary site. The STA expired in December 2021.  The licensee failed to extend the STA and did not file a license application for permanent operations from the temporary site until April 2024 –long after its modification application to make the temporary site permanent was granted in May 2021.  The base fine of $13,000 for the licensee’s failure to timely file the license application and the $10,000 base fine for unauthorized operations were reduced because the licensee’s documented inability to pay the base fines, its history of compliance, and the secondary nature of TV translators.  

We’ve written several times (see for instance our articles here, here, and here) about all of the action in state legislatures to regulate the use of artificial intelligence in political advertising – with approximately 17 states now having adopted laws or rules, most requiring the labeling of “deep fakes” in such ads, and a few banning deep fakes entirely.  Action on the federal level seems to be picking up, with two significant actions in the last week.  This week, FCC Chairwoman Jessica Rosenworcel issued a Press Release announcing that the FCC would be considering the adoption of rules requiring broadcasters and other media to include disclaimers when AI is used in political advertising. Last week, the Senate Committee on Rules and Administration considered three bills addressing similar issues.  These actions, along with a long-pending Federal Election Commission proceeding to consider labeling obligations on federal election ads (see our article here), are the federal government’s attempts to address this issue – though, with the time left before the election, none  of these proposals appear likely to have a significant effect during the current election cycle.

At the FCC, according to the Chairwoman’s Press Release, a draft Notice of Proposed Rulemaking is circulating among the Commissioners for their review.  The proposal is to require broadcasters, local cable companies, and other regulated entities with political broadcasting obligations under FCC rules, to include mandatory disclosures on political ads when AI is used.  The disclosures would be required on the air and in writing in a station’s FCC-hosted online public inspection file.  While the text of the NPRM is not yet public, the Press Release did provide some specifics as to the questions that would be asked in this proceeding.

Continue Reading The FCC and Congress Advance Proposals to Regulate Artificial Intelligence in Political Advertising

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 Justice Department has submitted a proposal to be published in the Federal Register to reclassify marijuana under the Controlled Substances Act, asking for public comment as to whether it should be moved from Schedule I (prohibited drugs with no medical benefits and a high potential for abuse) to Schedule III (drugs with some medical benefit with lower risks)(see DOJ’s Press Release containing links to more DOJ information).  The notice recognizes that, even if the rescheduling occurs, the federal government will still have regulatory authority over marijuana and will need to make determinations as to its proper use by, and distribution to, the public so, as we warned in our recent article on our Broadcast Law Blog, this action does not remove all legal risks from advertising marijuana on broadcast stations where its use has been “legalized” under state law. 
  • The FCC announced its agenda for its regular monthly Open Meeting on June 6 at which it will consider a Notice of Proposed Rulemaking proposing extensive revisions to its Class A TV, LPTV, and TV Translator rules.  Most significantly, the FCC proposes extending Online Public Inspection File (OPIF) recordkeeping requirements to LPTV stations – either those affiliated with a top-four broadcast TV network (ABC, CBS, Fox, or NBC) or, alternatively, to LPTV stations rated among the top-four TV stations in their Designated Market Areas.  OPIF requirements would include LMAs or Joint Sales Agreements and Class A certifications.  The NPRM also proposes to make clear that FCC political broadcasting rules – including political file requirements – apply to LPTV stations.  The NPRM includes several other proposed amendments to technical and operational requirements, including limiting minor changes to moves of no more than 48.3 kilometers from a station’s currently licensed site, requiring stations to specify a community of license within their service contour, requiring LPTVs to operate for a minimum of 14 hours per week, and requiring LPTV stations to file a minor modification application to change their designation to a TV translator (and vice versa – this can currently requires only notice to the FCC).  The FCC also proposes to clarify when a station can request authorization to move to another channel by more clearly defining the circumstances when an LPTV or translator station receives or causes interference justifying such displacement.
  • Comments were due this past week in response to the FCC’s January Notice of Proposed Rulemaking proposing to require TV and radio stations to file reports regarding station operational outages in the FCC’s Network Outage Reporting System (NORS) database and on their operating status during disasters in the FCC’s Disaster Information Reporting System (DIRS) database.  DIRS reporting is currently voluntary for broadcasters, and NORS reporting is not currently required or available to broadcasters.  The National Association of Broadcasters and several broadcasters (see here, here, here, here, and here) argue that the proposed requirements would be unduly burdensome for broadcasters and would distract from their primary obligation to provide critical safety information to the public during disasters.  Instead, DIRS reporting requirements should remain voluntary for broadcasters, or as REC Networks proposes, only extend to reporting on the status of Emergency Alert Service infrastructure.  REC also notes that the reporting obligation could require broadcasters to report minor, transitory outages not currently required to be reported to the FCC.  Other commenters (see here and here) ask for an exemption for small noncommercial stations that lack the resources of larger commercial broadcast stations.  National Public Radio asks that the FCC defer imposing DIRS and NORS reporting obligations on broadcasters until it clarifies how it will use the reported data.
  • The Senate Committee on Rules Administration held a hearing in which in reviewed three bills addressing the effect of artificial intelligence (AI) on elections.  The first bill, the Protect Elections from Deceptive AI Act, prohibits the distribution of deceptive AI-generated audio or visual media relating to federal elections, with exceptions for use in bona fide newscasts by broadcasters and cable and satellite television providers if a disclaimer is used at the time of broadcast.  The second bill, the AI Transparency in Elections Act of 2024, requires the use of disclaimers in political advertisements including any AI-generated media.  The final bill, the Preparing Election Administrators for AI Act, requires the Election Assistance Commission to develop voluntary guidelines to be used by election administrators regarding the use and risks of AI in the upcoming 2024 elections.  All bills were voted out of committee – the first with two Republicans objecting, claiming that the language of these bills was too vague to determine what was prohibited and could violate free speech rights.  These bills will only become law if approved by the full Senate the House of Representatives.
    • Senate Majority Leader Chuck Schumer and Senators Mike Rounds, Martin Heinrich, and Todd Young also released a bipartisan AI Roadmap which summarizes the areas of political consensus on AI issues and identifies where further work is needed on these policy issues.
  • The FCC’s Media Bureau dismissed three LPFM construction permit applications for failure to comply with the LPFM application rules:
    • The Bureau dismissed a Wisconsin LPFM construction permit application as the applicant failed to show that it was qualified to hold an LPFM license.  An applicant must either be a public safety radio service provider (which must be a local government or other non-profit that provides emergency services in its service area) or a local non-profit with its headquarters or the residence of 75% of its board members within required radius of its proposed station’s transmitter site – and the applicant did not show that it met either of these criteria.
    • The Bureau affirmed its dismissal of Arkansas and Texas LPFM construction permit applications for their failures to meet the co-channel, first-adjacent channel, or second-adjacent channel spacing requirements necessary to protect nearby broadcast stations.  The Bureau rejected each applicant’s request to amend its application because the LPFM application procedures clearly state that the Tech Box in the initial application must show compliance with the FCC’s channel spacing requirements – and as neither of these applications did, they were properly dismissed without an opportunity to amend.  With the Texas application, the Bureau also rejected the applicant’s request to amend its application to include a waiver of the co-channel spacing requirements because the FCC cannot grant waivers of its co-channel distance separation requirements. 

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

  • The FCC announced that comments are due June 6 on its April Notice of Proposed Rulemaking, exploring state of the market for independent video programming.  The FCC proposes new rules to prohibit “most favored nation” clauses and considers restrictions on clauses in agreements between independent programmers and multichannel video programming distributors (and broadcast companies) that limit alternative distribution methods.  Reply comments are due July 8.  
  • Reply comments were due this week in response to the FCC’s February Notice of Proposed Rulemaking, in which it proposed the adoption of multilingual alerts for the Emergency Alert Service (EAS) using pre-scripted, pre-translated alert messages in thirteen non-English languages that alert originators can distribute during emergencies to broadcasters, cable providers, and other EAS participants.  While there was some support from commenters for multilingual EAS alerts, many commenters, including the National Association of Broadcasters and REC Networks raised concerns regarding their implementation costs, and technological and logistical issues about their use.  While Asian Americans Advancing Justice and the Japanese American Citizens League supports the proposed multilingual alerts, they express concern regarding the accuracy of new multilingual alert templates. 
  • The FCC submitted its semi-annual report to Congress on U.S.-based foreign-government backed media outlets distributing video programming to MVPDs.  By law, the FCC must update Congress every six months with a list of the U.S.-based media outlets who act as agents for foreign governments that registered with the FCC.  The FCC stated in this year’s report that no such outlets registered in the last six months – which has been the case since mid-2021.
  • The FCC released a Small Entity Compliance Guide regarding program origination by FM boosters.  As we discussed on our Broadcast Law Blog here and here, beginning May 16, a licensed FM station may seek experimental authority for up to a year (which can be renewed) to originate up to 3 minutes of programming per hour on an FM booster station.  The guide, among other things, explains that experimental authority must be requested until the FCC adopts final rules for this service, and reminds broadcasters that these FM boosters must comply with the EAS rules, and may cause interference to their primary station’s signal.
  • The FCC’s Media Bureau rejected requests for two broadcast authorizations:
    • The Bureau ordered an Arizona AM station and its FM translator to cease operations after finding that the stations’ licenses were cancelled automatically as of December 6, 2023 pursuant to Section 312(g) of the Communications Act.  Under Section 312(g), a station’s license will be automatically cancelled if the station that has not operated as authorized for a full year, unless the FCC finds that there are public interest factors warranting the preservation of the license.  Here, the bureau found that the AM was either silent or operating from an unauthorized site when it continued to operate at an STA site even after its STA had expired in December 2022, and also had periods when it was totally silent without FCC authorization.  The translator’s license was cancelled because its authorization was granted in a translator window where that license was permanently tied to this AM station.  The Bureau rejected arguments that the stations’ licenses should be reinstated for reasons including the licensee’s inadvertent failure to request an extension of the STA for its AM station, the stations’ minority ownership and programming for the Hispanic community, and the licensee’s significant health challenges due to COVID.
    • The Bureau affirmed its dismissal of an Oregon LPFM construction permit application for its failure to meet the to meet the co-channel and second-adjacent channel spacing requirements for protecting nearby full-power FM stations.  Because LPFM application procedures clearly state that applications failing to comply with spacing requirements in their initial application would be dismissed without an opportunity to amend, and the technical parameters submitted in the “Tech Box” portion of this application were incorrect (and the Bureau will not look to parameters set out in any attached exhibit), the dismissal of the application was proper.

On our Broadcast Law Blog, we discussed why broadcasters should remain cautious about accepting marijuana advertising despite the Attorney General’s recent recommendation to loosen federal restrictions on marijuana.  New rules have not been adopted and, even if they are, any new federal regulatory regime may still restrict advertising for marijuana “legalized” under state laws. 

In recent weeks, we saw press reports on a recommendation from the Attorney General to loosen federal restrictions on marijuana – reclassifying it by moving it off Schedule I (an illegal controlled substance with no medical uses and a high degree of potential abuse) to Schedule III, where many other drugs, including some requiring a prescription, are listed.  No official announcement about any reclassification action has been released, and even when it is, there are apparently other administrative steps that need to occur before any re-scheduling is final.  So, there are many regulatory hurdles still to come.

While a rescheduling to Schedule III may have an impact on research and marijuana’s medical uses, broadcasters need to continue to take a very cautious approach to marijuana advertising while the details of any possible change are worked out and likely even after any re-scheduling as, even as a Schedule III drug, advertising may still be restricted under federal law.

Continue Reading Don’t Start Counting Marijuana Advertising Dollars Yet – Cautions Despite Possible Changes in Its Federal Classification

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 FTC announced that it will hold a 45-minute webinar on May 14 at 11:00 a.m. ET to provide an overview of its final rule banning noncompete agreements.  As we discussed in our update last week, the FTC banned the use of noncompete provisions in employment agreements (and clauses that act like noncompetes by limiting employee mobility) except in connection with the sale of a business.  The webinar is free and open to the public to provide information about compliance with the new rule.  The FTC requests that participants submit questions ahead of the webinar, by emailing them asknoncompete@ftc.gov.  A link to the webinar will be available on the FTC’s website on the day of the event, and a recording of the webinar will later be made available on the site.  The FTC has also posted a Business and Small Entity Compliance Guide about the new rule.
  • On Capitol Hill, there were a number of actions potentially impacting broadcasters:
    • The House Subcommittee on Innovation, Data, and Commerce held a hearing titled “Draft Legislation to Preserve Americans’ Access to AM Radio.”  At the hearing, the subcommittee considered the proposed AM for Every Vehicle Act, which requires that automobile manufacturers retain AM radio in the car dashboard.  As we recently discussed on our Broadcast Law Blog, while this Act has garnered much support on Capitol Hill, there have been concerns regarding mandates on the car industry to protect the AM technology that some see as outdated.  The hearing included testimonies from witnesses representing radio manufacturers, carmakers, broadcasters, and the Navajo nation.  A recording of the hearing can be found here, a copy of the hearing can be found here, and the witnesses’ written testimony can be found here, here, here, and here.  This week, press reports indicated that there are 250 sponsors of the bill in the House (well more than a majority), and a 60-sponsor supermajority in the Senate– making the bill filibuster-proof.  The bill, however, must be brought to the floor of each chamber for a vote before President Biden can sign it into law.  No dates for such votes have been set. 
    • The Senate Subcommittee on Intellectual Property held a hearing titled “The NO FAKES Act: Protecting Americans from Unauthorized Digital Replicas.”  At the hearing, the subcommittee considered a draft of the Nurture Originals, Foster Art, and Keep Entertainment Safe (“NO FAKES”) Act, which seeks to protect actors, musicians, and other performers’ likenesses from unauthorized replicas that are generated using artificial intelligence.  The hearing featured testimony from record labels, entertainment industry associations, and academia.  Further information on the hearing, including video and testimony, is available here. 
    • The House Subcommittee on Oversight and Investigations announced that it will hold a hearing on May 8 at 10:00 a.m. ET titled “Examining Accusations of Ideological Bias at NPR, a Taxpayer Funded News Entity.”  At the hearing, the subcommittee members will question NPR’s President and CEO, Katherine Maher, regarding concerns over NPR’s lack of diversity in the viewpoints of its staff and in its coverage of issues.  The hearing will be live streamed and available here.
  • When will broadcasters have to file the FCC Form 395B report – classifying their employees into job categories and reporting on their race, ethnicity, and gender?  Activity this week related to the FCC’s February Report and Order (see our article here) voting to reinstate the Form could affect the answer to that question:
    • The FCC announced that the Order will become effective on June 3.  However, compliance will not be required until the Office of Management and Budget (OMB) completes its review of the form to be used for the reports.  The FCC’s Media Bureau will issue a public notice announcing the deadline when the OMB review is complete.  Once that happens, broadcasters would need to file each year by September 30.
    • However, two petitions for reconsideration (see here and here) were filed by Catholic broadcasting groups asking the FCC to revisit its reinstatement of the Form.  The petitioners oppose the FCC’s inclusion of a non-binary option for the Form’s gender identity reporting category arguing, among other things, that this option violates their First Amendment religious freedoms by compelling speech about a gender option in which they do not believe.  One petitioner requests that the FCC suspend broadcasters’ obligation to comply with the gender identity reporting requirement while the matter remains pending.  Instead of asking the FCC to review its own action reinstating the Form, the National Religious Broadcasters (NRB) association and one of its members, American Family Association, filed a petition for review with the US Court of Appeals, seeking to have the Court overturn the FCC’s action (see the NRB Press Release).  Other court appeals may follow. 
  • The FCC’s Media Bureau affirmed its dismissals of three LPFM construction permit applications due to the applicants’ failure to comply with the FCC’s rules governing new LPFM station applications:
    • The Bureau affirmed its dismissal of an Alabama LPFM construction permit application because the proposed coordinates for its transmitter site were such that the applicant was not local as required by the rules (neither its headquarters nor the residence of 75% of its board members were within required radius of its proposed station’s transmitter site – 10 miles in the Top 50 markets, 20 mile outside those markets).  The Bureau rejected the applicant’s request to correct what it claimed was a clerical error in the coordinates, explaining that the qualification requirements must be met based on the information in an applicant’s “Tech Box” portion of its initial application, and the failure to meet those requirements cannot be corrected after the application filing deadline.
    • The Bureau affirmed its dismissals of a Washington and a Pennsylvania LPFM construction permit applications for their failures to meet the minimum distance spacing requirements necessary for protecting nearby FM and LPFM stations, rejecting each applicant’s arguments for reinstatement of their applications because the LPFM application procedures clearly state that initial applications failing to show compliance with the FCC’s channel spacing requirements are to be dismissed without an opportunity to amend.  In the Pennsylvania decision, the Bureau again made clear that it relies on the technical parameters submitted in the “Tech Box” portion of the initial application – not on information set out elsewhere in the application or otherwise “widely known.”
  • The FCC’s Media Bureau released a Notice of Proposed Rulemaking asking for comments on an applicant’s petition for rulemaking proposing the substitution of Channel 285C1 for vacant Channel 235C1 at Canadian, Texas to allow its station KPQP, Panhandle, Texas to move from Channel 291C3 to Channel 235C3.  Comments and reply comments in response to the petition will be due June 24 and July 9, respectively.

On our Broadcast Law Blog, we took a look at the upcoming regulatory deadlines affecting broadcasters in May, including comment deadlines on a number of emergency communications proposals, the effective dates of the FCC’s zonecasting order allowing the origination of limited amounts of programming by FM booters, and the opening of several windows for Lowest Unit Rates required to be charged for ad time bought by political candidates in upcoming elections. 

While May is one of those months that does not have any routine, scheduled FCC filing deadlines, there are still a number of regulatory dates and deadlines for broadcasters that are worthy of note.  As detailed below, this includes comment deadlines in several FCC rulemaking proceedings, a response deadline for broadcasters caught in the first random EEO audit of 2024, and the effective date of the FCC’s order allowing FM boosters to originate limited amounts of programming (when interested parties can file for experimental authority to begin such programming).  As always, remember to keep in touch with your legal and regulatory advisors to make sure that you don’t overlook any other regulatory deadlines we may have missed here or ones that are specific to your station.

May 6 is the deadline for radio and television stations listed in the EEO audit notice released by the FCC’s Enforcement Bureau last month to upload their audit responses to their online public inspection files.  The FCC randomly audits approximately 5% of all broadcast stations each year regarding their EEO compliance.  Audited stations and their station employment units – which are commonly owned stations serving the same area – must provide to the FCC their last two years of EEO Annual Public File Reports and documentation demonstrating that the stations did everything that is required under the FCC’s EEO rules.  See our article here for more detail on EEO audits and how seriously the FCC takes broadcasters’ EEO obligations.

Continue Reading May Regulatory Dates for Broadcasters – EEO Audit Responses, Comment Deadlines on Emergency Broadcasting Matters, Effective Date for Zonecasting with FM Boosters, LUC Windows, and More

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

  • Perhaps the biggest regulatory news of the past week came not from the FCC, but instead from the Federal Trade Commission.  The FTC, in a 570-page order, adopted rules that ban the use of noncompete provisions in employment agreements (and clauses that act like noncompetes to limit employee mobility) in virtually all instances except when the promise of a noncompete is by a seller in connection with their sale of a business. The rules apply to anyone working for a company, including interns and independent contractors. Beginning at page 367 of its order, the FTC rejected arguments that contracts with broadcast on-air talent should be exempt from the ban, suggesting that companies have other ways to protect their investment in employees other than through noncompete agreements.  While applauded by labor and employee-rights organizations, the action has been condemned by many business groups who, in some cases have already challenged the FTC’s authority to adopt such a sweeping decision impacting so many aspects of the economy based solely on the FTC’s authority to prohibit unfair methods of competition.  Unless stayed by the FTC or by a Court, the rule will go into effect 120 days after it is published in the Federal Register. 
  • In a ruling that may impact many “side-car” companies that buy TV stations and enter into agreements with other broadcast companies that cannot own the station because of FCC ownership rules, the FCC’s Media Bureau granted an application proposing the assignment of TV station WADL, Mount Clemens, Michigan to Mission Broadcasting, a company closely related to Nexstar Media, Inc.  However, the grant came with many conditions that may well undermine Mission’s plans for the station.  Objections were filed against the application alleging that Nexstar will have de facto control of WADL or will exercise control of the station’s retransmission consent rights to the detriment of video programming distributors and consumers.  While the Bureau permitted Mission to acquire WADL, it imposed a number of conditions to limit Nexstar’s control, including prohibiting Nexstar from financing WADL’s acquisition (it cannot even provide a loan guarantee), it cannot have an option to acquire WADL in the future, Mission must keep at least 70% of all of WADL’s advertising revenue, and Nexstar cannot provide more than 15% of WADL’s programming (even though the station was going to be a CW affiliate, and CW is owned by Nexstar). 
  • The Media Bureau entered into a Consent Decree with a New York noncommercial educational (NCE) FM station to resolve an investigation into its compliance with the FCC’s underwriting and sponsorship identification rules.  Petitions challenging the station’s license renewal alleged that, during station fundraising activities, its on-air hosts (or their guests) were allowed to promote their own products and services – efforts which entailed repeatedly mentioning the price of the promoted product or service and excessively complimenting or praising the promoted item, with the station getting a portion of the proceeds to fund its operations.  While the objections acknowledged that NCE stations can give away premiums to donors, those premiums are usually pre-purchased by the station at a flat fee, and don’t involve the station in revenue sharing promotions that benefit commercial companies.  This conduct seemingly led to the reference in the Consent Decree that the station impermissibly promoted for-profit products and services in spots that contained comparative and qualitative descriptions, pricing information, calls to action, and other inducements to buy, all prohibited by the NCE rules.  The Decree imposed a short-term license renewal, required payment of a $25,000 civil penalty and a compliance plan to ensure future compliance with FCC rules.   
  • The FCC’s Office of Economics and Analytics issued the FCC’s biannual call for comments on the State of Competition in the Communications Marketplace.  The FCC seeks comments on a list of questions about competition in the video and audio marketplaces, including the impact of digital competitors on radio and TV stations and the role that regulation plays in the competitive landscape.  The FCC uses these comments to prepare a report to Congress on competition issues and sometimes references the reports in proceedings dealing with competition, including FCC proceedings dealing with its ownership rules. Comments are due June 6 and reply comments are due July 8. 
  • The FCC’s Public Safety and Homeland Security Bureau extended the comment deadlines for the FCC’s January Notice of Proposed Rulemaking proposing to require TV and radio stations to file reports regarding station operational outages in the FCC’s Network Outage Reporting System (NORS) database and on their operating status during disasters in the FCC’s Disaster Information Reporting System (DIRS) database. Reporting by broadcasters is now optional, but the FCC asks in this proceeding if that obligation should be mandatory.  Comments and reply comments are now due May 13 and June 12, respectively. 
  • As the result of the FCC’s sweep of the Boston area (and other parts of Massachusetts) for pirate radio activities, the FCC proposed to fine seven Massachusetts pirate radio operators.  The PIRATE Act requires such sweeps in markets with substantial pirate radio activity and authorized fines (recently adjusted for inflation) of up to $119,555 per day and a maximum of $2,391,097.  The pirate radio operators have 30 days to pay either pay their fines or to object to the FCC’s proposed action.  The FCC proposed the following fines against each pirate radio operator: a $120,000 fine for broadcasting on 101.9 FM in Boston, MA, a $20,000 fine for broadcasting on 87.9 FM in Hyannis, MA, a $40,000 fine for broadcasting on 102.1 FM in Brockton, MA, a $40,000 fine for broadcasting on 93.1 FM in Cotuit, MA, a $40,000 fine for broadcasting on 96.5 FM in Brockton, MA (which involved 2 pirate operators), and a $597,775 fine for broadcasting on 89.3 FM in Mattapan, MA and on 105.3 FM in Brockton and Randolph, MA.
  • The FCC’s Media Bureau granted several assignment applications related to Cumulus Media’s debt restructuring, conditioned on the suspension of a foreign investor’s voting rights and involvement in Cumulus’ management until the Bureau completed its review of a this new investor. In 2020, the FCC approved Cumulus’ petition to exceed the 25% limit on foreign investment set out in Section 310(b)(4) of the Communications Act – provided that Cumulus would in the future request specific approval for any new foreign investor proposing to hold more than a 5% voting or equity interest.  In January 2024, a Singaporean investor filed a report with the U.S. Securities and Exchange Commission (SEC) stating that it had interests in Cumulus exceeding the 5% threshold.  Cumulus then filed a petition seeking FCC approval of this new foreign investor, stating that it did not solicit the non-compliant foreign investment and was unaware of it until the SEC report was filed.  Because Cumulus was not responsible for the foreign investment and the current applications were unrelated to the qualifications of this investor, the Bureau waived its normal process of approving all foreign investors first and issued the conditional grant.
  • The Bureau affirmed its dismissal of an Oregon FM station’s license renewal application pursuant to Section 312(g) of the Communications Act, which states that a station’s license will be automatically cancelled if the station that has not operated as authorized for a full year, unless the FCC finds that there are public interest factors warranting the preservation of the license.  Here, the station operated from an unauthorized location for over a year, leading to the cancellation.  The Bureau rejected the licensee’s claim that no authority was necessary as its move of its antenna from one site to another was less than one second different in geographical coordinates, concluding that a move of less than three seconds does not require a construction permit only when it involves a coordinate correction, and even then, the move requires FCC approval in a license application after the move. Neither a construction permit nor a license application was filed by this licensee.  The Bureau also dismissed the station’s argument that it was exempt from requesting authority to move to a new transmission facility as the antenna at the new site was mounted in a tree, and thus did not require construction of a new tower.  The Bureau dismissed the station’s argument as baseless, noting that placing a station’s antenna in a tree required prior FCC authorization just as placement of a station’s antenna on a tower because the FCC needs to know the precise location of any station’s transmission facilities to ensure adequate interference protection to other stations and the safety of air navigation.  Finally, the Bureau rejected the station’s argument that its license should be reinstated since it provided a second, noncommercial service within a Tribal area because the FCC does not recognize such service as providing an exception to Section 312(g). 
  • The Bureau proposed a $3,000 fine against a Class A TV station operated by a well-known Massachusetts noncommercial operator for failing to timely upload one quarterly issues/programs list and six children’s programming reports to its online public inspection file.  These documents were uploaded between one day and over one year late. The operator argued that the late-filed quarterly issues programs list should be excused as it acquired the station only two weeks before the end of the quarter, and it has to wait for program information from the prior owner.  The FCC faulted the licensee for not having timely uploaded information for the portion of the quarter in which it did hold the license. 
  • The Media Bureau took several actions concerning LPFM stations:
    • The Bureau dismissed two Texas LPFM construction permit applications (see here and here) because the applicants failed to demonstrate that they were nonprofit organizations eligible to be LPFM licensees finding that the organizational document provided by each applicant did not demonstrate that it was been filed and accepted by a state as a valid nonprofit organization. 
    • The Bureau affirmed its dismissals of LPFM construction permit applications in Washington and Wisconsin because the applicants failed to meet the co-channel and/or second-adjacent channel spacing requirements for protecting nearby full-power FM stations.  The Bureau rejected each applicant’s arguments for reinstatement of their applications because the LPFM application procedures clearly state that applications failing to comply with the co-channel and/or second-adjacent channel spacing requirements would be dismissed without an opportunity to amend.  In the Washington case, the Bureau noted that applicants relying on staff advice do so at their own risk.  In the Wisconsin decision, the Bureau noted that it relies on the technical parameters submitted in the “Tech Box” portion of the application – not parameters set out in any attached exhibit – and as the information in the applicant’s Tech Box did not show compliance with the spacing requirements, the application must be dismissed. 
  • In a very rare, if not unprecedented action, SGCI Holdings III LLC, the Standard General company that had sought to acquire the TEGNA television stations, and its managing member Soohyung Kim, filed a civil lawsuit against the FCC, Chairwoman Jessica Rosenworcel and Media Bureau Chief Holly Sauer personally, broadcast station owner Byron Allen and his company (an allegedly unsuccessful bidder for the TEGNA stations), and a number of other individuals and groups including parties who argued before the FCC against the approval of the transaction, alleging that they had conspired to cause the FCC to “pocket veto” the transaction by designating it for hearing (see our article here) for discriminatory reasons because Mr. Kim was not the “right type of minority.”  For more details, see press reports about the lawsuit here, here, here, here, and here (note that several have links to the complaint, and that several are subscription sites). 

On our Broadcast Law blog, we discussed the 11 states that had enacted state laws regulating the use of artificial intelligence (or “deep fakes” or “synthetic media”) in political advertising – with some states purporting to ban the use entirely, and most allowing it if it is labeled to disclose to the public that the images or voices that they are experiencing did not actually happen in the way that they are portrayed.  As noted in the article, there are concerns about some states imposing obligations on broadcasters to ensure that AI in political ads is properly labeled when broadcasters have no way to know if AI has in fact been used and, for candidate ads, the broadcaster cannot reject the ad because of the “no censorship provisions” of Section 315 of the Communications Act even if they know AI has been used.  Since we published the article, two additional states (New York and Florida) have enacted AI statutes.