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

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

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

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 Notice of Proposed Rulemaking proposing that broadcasters and cable operators make on-air disclosures regarding the use of AI-generated content in political advertisements, and upload notices to their Online Public Inspection Files regarding such disclosures.  Comments and reply comments on the NPRM will be due 30 and 45 days, respectively, after the NPRM’s publication in the Federal Register.  Since the NPRM’s comment cycle will run through at least September, it is unlikely that any new disclosure requirement or new OPIF reporting obligation will be effective before the November election. We plan to provide more details about this NPRM on our Broadcast Law Blog this coming week. 
  • Contrary to earlier reports, the August 15 effective date for broadcasters’ expanded foreign government sponsorship certifications apparently does not apply to issue ads and paid PSAs.  As we discussed here, in a June Second Report and Order, the FCC expanded broadcasters’ existing obligations to verify whether lessees of program time are foreign governments or their agents (who have enhanced sponsorship identification requirements) to include an additional verification requirement for sponsors of issue ads and paid PSAs (but not sponsors of ads promoting a commercial product or service or ads from a political candidate or their authorized campaign committee).  It now appears that the FCC considers the rule’s expansion to issue ads and paid PSAs to require approval from the Office of Management and Budget before becoming effective.  OMB approval will take at least several months, so it appears that stations do not need to implement this verification obligation just as we are entering into the heart of election season.  For more information on the delay in the implementation of this requirement, see our article posted Friday on our Broadcast Law Blog.
  • A US District Court in Pennsylvania issued an order refusing to stay the effect of the FTC adoption of a rule banning non-compete agreements for all employees in the United States.  The Court found that the FTC’s order was not likely to be overturned after the Court’s final review, a decision contrary to that reached by a US District Court in Texas (in one of several cases challenging the FTC’s Non-Compete Rule) which did grant a preliminary injunction to the parties appearing before that Court.  The Texas Court promised to decide on whether to institute a wider ban by the end of August, before the September 4 effective date of the FTC rule.  Expect further litigation to reconcile these conflicting decisions.
  • The FCC’s Enforcement Bureau issued a Notice of Illegal Pirate Radio Broadcasting to an Oregon landowner for allegedly allowing a pirate to broadcast from its property.  The Bureau warned the landowner that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowner continues to permit pirate radio broadcasting from its property after receiving this notice. 
  • The FCC’s Media Bureau granted the substitution of UHF channel 33 for VHF channel 13 at Jacksonville, Florida.  The Bureau also found that the change would not result in the loss of the NBC service provided by this station as NBC service is provided in the loss area created by the channel change (which proposes a reduction in the number of viewers in the station’s service area) by other stations affiliated with the network.  This permission to change from a VHF to UHF channel serves as another example of the FCC’s recognition of the superiority of UHF channels for the transmission of digital TV signals.
  • The Media Bureau proposed two $6,500 fines against Tennessee and Mississippi FM translator operators for failing to timely file their license renewal applications and operating without authorization after their licenses had expired.  The Tennessee translator’s renewal was filed in February 2024 – almost four years after its April 1, 2020 deadline, and after its license expired on August 1, 2020.  The Mississippi translator’s renewal was filed in April 2024 – over four years after its February 3, 2020 deadline, and after its licensed expired on June 1, 2020.  The Bureau reduced the proposed fines from the $13,000 base fine due to the secondary nature of FM translators. 
  • The Bureau also took two actions dealing with potential dismissals of applications for construction permits for new LPFM stations:
    • The Bureau reinstated an Iowa LPFM construction permit application, which the Bureau dismissed in January 2024 for failing to meet the minimum distance separation requirements necessary to protect a nearby co-channel vacant allotment.  The applicant requested reinstatement of its application and an opportunity to amend, arguing that the FCC’s LPFM application rules do not prohibit curative amendments for failing comply with the minimum distance separation requirements for vacant allotments.  The Bureau agreed, finding that the prohibition on curative amendment applied only to spacing issues to applications and facilities existing as of July 31, 2023 (the date of the LPFM filing window procedures Public Notice). 
    • The Bureau granted another Iowa LPFM construction permit application over an objection claiming that the application should be dismissed because its signatory did not have authority to sign the application (as an officer) and failed to include a pledge to divest a commonly owned LPFM station.  The Bureau rejected the objector’s arguments, finding that the divestiture pledge was included in the technical exhibit to the application (as opposed to a separate exhibit) and although the application did not identify the signatory as an officer of the applicant, the Iowa Secretary of State’s website showed that the signatory was a director of the applicant at the time the application was filed, and prior FCC precedent allows a director of a non-profit applicant to sign on its behalf. 

On our Broadcast Law Blog, we provided guidance for broadcasters on accepting advertising or conducting promotions that directly or indirectly allude to the 2024 Paris Olympics – including a discussion of the enhanced legal protections that the U.S. Olympic and Paralympic Committee has from trademark infringement.

Last week, we wrote about the impact of the FCC’s decision to standardize certifications from program buyers verifying that they are not representatives of foreign governments – and the accompanying decision to expand that requirement to political issue advertising and paid PSAs.  In that article, we noted the August 15 effective date for most of these rule changes, and stated that the expansion of the verification requirement to issue ads and paid PSAs would be effective on that date.  We have now learned this expansion may not be effective on August 15.  From many informal communications, we have been told that the Commission considers the expansion of this rule to issue ads and paid PSAs to be a new paperwork requirement that, before it can become effective, will be subject to review by the Office of Management and Budget under the Paperwork Reduction Act, a review that has not yet been initiated. This OMB approval process will take at least several months, so it appears that stations need not be worried about implementing the verification obligation just as we are entering into the heart of election season.

We note that this information is the result of informal communications and has not yet appeared in any FCC documentation, as the FCC’s transmittal to the OMB of the recent order for review, where it would be noted, has not yet occurred.  NAB today reported this interpretation in one of its publications – but we urge all readers to confirm this interpretation with their own counsel, as these questions of what is and what is not subject to OMB review can be very subjective and confusing.  But, from what we have been told, the August 15 effective date does not appear to apply to the verification requirement for issue ads and paid PSAs, making paperwork for the upcoming election somewhat easier. 

We also note that the FCC released its Notice of Proposed Rulemaking on the use of AI in political ads yesterday, with comment dates that will run through at least September, making it unlikely that any requirement for labeling or new public file obligations that may arise from any action in that proceeding will be effective before the election.  We will provide more details on that Notice in an article early next week.  Broadcasters thus can concentrate on their existing political broadcasting obligations during the upcoming election, and hopefully will not need to implement anything new as the ads flow in. 

Earlier this year, we posted updated guidelines about engaging in or accepting advertising or promotions that directly or indirectly allude to the Super Bowl without a license from the NFL or the Final Four Tournament without a license from the NCAA.  See here, here and here.  Now, it is time to think about these issues in the context of the 2024 Paris Olympics!

The guidance from our prior blog posts addressed the following subjects, and offered warnings about conducting any of these activities when tied to any trademarked phrase referring to events like the Super Bowl or March Madness:

  • Advertising that refers to the event or other associated trademarks;
  • Advertising that uses non-trademarked terms that will be understood by the public to refer to the event;
  • Conducting or sponsoring events and parties for viewing the event;
  • Sweepstakes or giveaways that use the name of the event as part of its name or offer prizes that include game tickets;
  • Offering “special” coverage relating to the event, accompanied by advertising;
  • Congratulatory advertising; and
  • Whether disclaimers will provide a defense to a claim.

The concepts advanced in those discussions apply equally to the Olympics, but the US Olympic & Paralympic Committee (USOPC), formerly the United States Olympic Committee (USOC), has a unique weapon in its arsenal, so there are additional considerations of which you should take note.

Ted Stevens Olympic and Amateur Sports Act

In addition to having trademark rights based on registration and use of its marks, the USOPC is the beneficiary of a special federal statute, the Ted Stevens Olympic and Amateur Sports Act, which grants it the exclusive right to use various words and logos commercially or in connection with an athletic event, performance or competition.  These marks include “United States Olympic Committee,” “Olympic,” “Olympiad,” “Pan American,” “Cities Altius Forties,” “Paralympic,” “Paralympic” and the symbol of the International Olympic Committee – the five interlocking, blue, yellow, black, green and red rings (shown below).

As a result, unlike other trademark owners, to make a claim against a third party’s use of a mark, the USOPC does not need to assert that the use of the mark is likely to create consumer confusion, dilute the distinctiveness of the USOPC’s marks or tarnish the USOPC’s marks.  If any of the marks are used, even in a context far removed from the events beginning in Paris this weeknd, liability can be found.  Only if the mark being used is similar, but not identical, to an Olympic insignia, must the USOPC show a likelihood of confusion.

Continue Reading Ring! Ring! Ring! Ring! Ring!   It’s the Olympics Calling!

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 announced that August 15 is the effective date of the FCC’s expanded foreign government sponsorship identification rules.  In a June Second Report and Order, the FCC expanded broadcasters’ existing obligations to verify whether lessees of program time on their stations are foreign governments or their agents (who have enhanced sponsorship identification requirements).  The Commission expanded the obligation to include, starting on August 15, an additional verification requirement for issue advertisers and paid PSA sponsors (but not sponsors of ads promoting a commercial product or service or ads from a political candidate or their authorized campaign committee).  Under other new rules that will be effective at a later date, broadcasters make this verification either by: (a) the station and the lessee signing an FCC-approved certification form or (b) the lessee providing the station with 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.  Until the new verification requirements are effective, stations need to obtain certifications that the buyer of these ads are not foreign governments or their agents, just as they do for buyers of program time.   This week on our Broadcast Law Blog, we discussed the impact of the new foreign sponsorship identification rules will on broadcasters, and note that challenges to the expansion of the obligations to cover spot time may be filed before the August 15 effective date, so be on the alert for developments.
  • The FCC announced that it will vote at its August 7 Open Meeting on a draft Report and Order which, if adopted, would establish a new Emergency Alert Service event code for messages to the public about persons who are missing or abducted from states, territories, or tribal communities (known as Ashanti Alerts).  The draft order states that the Ashanti Alerts apply to missing and endangered persons over the age of 17 who are outside of the scope of AMBER alerts (missing and endangered persons 17 years of age and younger) and Silver Alerts (missing and endangered senior citizens with Alzheimer’s disease, dementia, or other mental disabilities).  If adopted, EAS alert originators and participants, including broadcasters, will have 12 months from the effective date of the adopted rules to implement the new EAS alert code. 
  • The FCC took two actions concerning closed captioning of video programming:
    • The FCC released a Report and Order requiring that device manufacturers and Multichannel Video Programming Distributors make closed captioning display settings “readily accessible” to individuals who are deaf or hard of hearing.  The requirement applies to all U.S.-manufactured devices using a picture screen that are designed to receive or play back video programming simultaneously with sound (such as televisions, smartphones, tablets, and computers).  MVPDs 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 following factors: 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 can be used for all accessible applications on the device).  The only major change from the draft order (which we discussed here) was to exempt preinstalled apps from the new requirement.  The readily accessible requirement will not become effective until the later of either approval by the Office of Management and Budget or 2 years after publication of the Order in the Federal Register. 
    • The FCC also released a Further Notice of Proposed Rulemaking proposing to exempt certain video programming providers from its closed captioning registration and certification requirements.  Specifically, the FCC proposed exempting video programmers from the closed captioning registration and certification requirements if they provide programming to public, educational, and governmental access channels (PEG channels) or to nonbroadcast networks for distribution by a cable operator or other MVPD if the PEG channels or the network are exempt from, or have certified compliance with. the captioning rules.    
  • Briefs were filed last Monday in the US Court of Appeals for the Eighth Circuit, seeking review of the FCC’s December decision in the 2018 Quadrennial Review to retain the current local ownership rules for radio and television and the rule precluding any party from having an attributable interest in more than one of the Top 4 TV networks.  The NAB and other broadcasters challenged the December decision, arguing that the Quadrennial Review process required deregulation of local ownership if there was new competition in the radio or television marketplace – and there assuredly has been much new competition since the rules were adopted in 1996, so that deregulation is warranted.  A group of radio operators intervened to detail in a separate brief the impact of digital competition on radio, and TV network affiliates filed a separate brief detailing the impact on the television industry.  The FCC will respond to these arguments in a brief due in September, the challengers can reply in briefs due in October, and the Court will likely decide the challenge very late this year or in 2025.
  • Comments were due July 15 in response to the FCC’s June NPRM regarding the 2024 annual FCC regulatory fees in which it sought comment on a number of fee-related issues, including whether to end its temporary regulatory fee relief measures implemented during the COVID-19 pandemic as well as ending its presumption that silent stations are entitled to fee waivers without providing evidence of financial hardship.  The National Association of Broadcasters urged the FCC to maintain these policies as they enable struggling broadcasters to avoid costly collections processes and regulatory consequences while preventing loss of service to local communities.  The State Broadcasters Associations also oppose ending these relief measures and, along with the NAB, urge the FCC to expand its regulatory fee payor base to include regulated entities that benefit from the FCC’s work but do not pay these fees (such as equipment manufacturers that must obtain FCC certifications to sell and operate equipment in the United States).  Other entities regulated by the Commission have taken issue with the proposed allocation of this year’s fees (a proposed allocation which would reduce broadcasters’ fees from the amount paid last year).  Watch for a final resolution on the payment of these fees by the end of next month, so that the fees can be paid in September before the end of the government’s current fiscal year.
  • The Media Bureau entered into a Consent Decree with the licensee of two Colorado radio stations requiring payment of a $3,400 fine to resolve the Bureau’s review of an unauthorized transfer of control.  The Bureau found that the licensee failed to seek FCC consent before transferring 50% of its membership interests in the licensee’s LLC to a third party because the sales agreement stated that the buyer became a member when the agreement was executed, instead of after obtaining FCC consent through grant of a transfer application. 

Update, 7/26/2024 – We understand that the FCC has decided that the requirement for verification of the buyers of issues ads and paid PSAs will not go into effect on August 15, as this article stated. Instead, as we report in this article, the new requirement will require approval of the Office of Management and Budget, thus delaying its implementation for some time. As the FCC has not released any document specifically confirming the delay in the implementation of this verification requirement, we suggest that you confirm this understanding with your own counsel.

The FCC this week issued a Public Notice announcing the effective date of certain portions of the FCC Order released in June adopting changes to its requirements that broadcasters obtain certifications from buyers of program time on their stations that the sponsors are not foreign governments or agents of those governments.  As we wrote when the Order was released, the order had some good parts and some that could add additional burdens on broadcasters.  It is the latter that become effective on August 15, with most of the rest awaiting approval for the information collection requirements from the Office of Management and Budget under the Paperwork Reduction Act.

What is the “bad part” that will become effective on August 15?  It is the portion of the Order that requires broadcasters to get certifications not only from the buyers of program time (certifications that have been required since March 2022 – see our article here), but that they also get these certifications from buyers of spot advertising time unless the ad is for a commercial product or service.  That means that broadcasters, when they are selling political issue ads and paid PSAs, will need to go through the same process as they do when they sell blocks of program time.  They will need to get the sponsor of these ads to provide a certification consistent with the  the certification requirements for all leased programming time, to demonstrate that the buyer is not a foreign government or the agent of a foreign government.  As we will be entering the peak of political advertising time just about the time that this Order becomes effective, and as so much money is not spent by candidates but instead by PACs and other non-candidate political organizations, this will immediately impose new information gathering requirements from these political buyers – right in the heat of a campaign. 

Continue Reading August 15 Is the Effective Date of Requirements for Foreign Government Certifications for Political Issue Advertising and Paid PSAs

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 weekly list of items on circulation (those orders or rulemaking proposals that have been drafted and are currently circulating among the Commissioners for review and vote) removed a Notice of Proposed Rulemaking on AI-generated content in political advertising.  As we discussed here, FCC Chairwoman Rosenworcel proposed in May to require broadcasters and cable and satellite TV operators to include disclosures identifying the use of AI-generated content in political ads.  This item has been controversial, as the Chair of the Federal Election Commission, FCC Commissioner Carr, and others have argued that the FCC does not have jurisdiction to require such labeling.  The removal of the draft NPRM 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 Media Bureau announced that certain daytime-only AM stations may again request pre-sunrise and post-sunset authorizations – requests which have been suspended since 2007 due to issues in calculating local sunrise and sunset times after the expansion of daylight savings time.  The FCC’s rules allow certain daytime-only AM stations to operate during the two hours immediately preceding sunrise and the two hours following sunset.  Now that the calculation issues have been resolved, eligible AM stations may submit a request to the FCC to operate with pre-sunrise and post-sunset authority, providing information on the technical means that allow them to achieve the required power levels.  AM stations may commence such operations following receipt of their approved operating parameters from the FCC. 
  • Reply comments were due July 8 in two FCC proceedings:
    • Reply comments were due in response to the FCC’s biannual call for comments on the State of Competition in the Communications Marketplace, which the FCC uses to prepare a report to Congress on competition issues and which is sometimes referenced in proceedings concerning FCC ownership rules.  The ABC, CBS, FBC, and NBC Affiliates Associations urge the FCC to loosen its TV ownership rules (including the prohibition on the ownership of more than one top-4 TV station in the same market) due to TV station competition from digital platforms and to modernize its retransmission consent rules to address competition from virtual Multichannel Video Programming Distributors.  The National Association Broadcasters and a radio broadcaster similarly urge the FCC to loosen its radio ownership rules due to competition from digital audio platforms.  The NAB also urges the FCC to reject MVPDs’ claims of inflated broadcaster retransmission consent fees (see here and here).  The NAB further urges the FCC to ignore the music industry’s complaints (see here and here) that broadcasters have an unfair competitive advantage over other audio providers because broadcasters do not pay certain music royalty fees. 
    • Reply comments were also due in response to the FCC’s April NPRM proposing new rules to prohibit “most favored nation” clauses and clauses that limit alternative distribution methods in agreements between independent programmers and MVPDs (and broadcast companies).  Public Knowledge and independent programmers (see here, here, here, and here) state that these bans would promote wider distribution of independent programming, whereas MVPDs (see here and here) contend that these bans would reduce consumer access to independent programming.  The NAB states that retransmission consent negotiations do not hinder MVPDs from carrying independent programming and urges the FCC to refresh the record on the regulatory status of virtual MVPDs’ (online video providers that distribute multiple channels of programming) since otherwise any ban adopted in this proceeding would only extend to traditional MVPDs (cable and satellite providers).
  • The FCC’s Enforcement Bureau issued thirteen Notices of Illegal Pirate Radio Broadcasting to landowners in New Jersey and New York for allegedly allowing pirates to broadcast from their properties.  The Bureau warned the landowners that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowners continued to permit any pirate radio broadcasting from their properties.  The Notices can be viewed here, here, here, here, here, here, here, here, here, here, here, here, and here.
  • The Media Bureau entered into Consent Decrees with two Oregon noncommercial TV stations and with eight Mississippi noncommercial TV stations for failing to timely upload many of their Quarterly Issues/Programs Lists to their OPIFs during their last license terms.  The Consent Decrees require that the Oregon stations pay a $16,500 fine and that the Mississippi stations pay a $5,625 fine.  The stations must also implement compliance plans to prevent future OPIF violations.  These fines again show the importance that the FCC attaches to Quarterly Issues/Programs Lists – see our article here for more information on the importance of the timely upload of these lists. 
  • The Media Bureau dismissed a Florida LPFM construction permit application because the applicant failed to meet the FCC’s LPFM licensee eligibility requirements as a “local” entity by either having its headquarters or 75% of its board members residing within ten miles of its proposed LPFM transmitter site.  After a challenge, the applicant attempted to amend its application with a new headquarters address within the ten-mile limit, which the Bureau rejected because that information was not in the applicant’s original application.  FCC procedures in processing LPFM applications require applicants to show their qualifications at the time of the filing of their applications, or those applications will be dismissed with no opportunity to correct any omission. 

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.