A new year – and our annual opportunity to pull out the crystal ball and look at the legal issues that will be facing broadcasters in the new year.  We’ve already published our 2024 Broadcasters Calendar and, as we noted before the holidays, it highlights the many lowest unit rate windows for the November election.  With a heavily contested election almost upon us, there may be calls on the FCC to modify regulations affecting political broadcasting or for more monitoring of broadcasters’ online public files, which caused so many issues in recent years (see for instance, our posts here and here).  Even if there are no FCC proceedings that deal with the rules for political broadcasting, the election will be watched by all broadcasters, and all Americans, to see the direction in which the country will head for the next four years.  With that election looming, 2024 may be a very active year in regulation as there traditionally is significant post-election turnover at the FCC no matter which party wins.  With that turnover in mind, we may see Commissioners looking to cement their regulatory legacies in the coming year.

Last year, we noted the number of pending issues at the FCC that had not been resolved because of the partisan deadlock on the Commission while the nomination of Gigi Sohn to fill the one vacant seat was stalled in the Senate.  That deadlock was finally overcome by her withdrawal from consideration and the subsequent nomination and confirmation of Anna Gomez, who was sworn in as a Commissioner in late September.  Since then, the FCC has acted on several long-pending priorities, including the adoption of open internet rules and, for broadcasters, last week’s adoption of an Order resolving the 2018 Quadrennial Review of the local broadcast ownership rules (see our summary of that action here). 

Continue Reading Gazing into the Crystal Ball at Legal and Policy Issues for Broadcasters in 2024 – Part I: What to Expect From the FCC

While we normally publish a weekly summary of regulatory actions relevant to broadcasters, the weekend before last we said that we would take the holiday weeks off – and return with a summary on January 7 of all that occurred over the break – unless there was news in the interim.  Well, there has been news, including the resolution of the FCC’s long-delayed 2018 Quadrennial Review of the broadcast ownership rules.  In addition, the FCC issued a Notice of Proposed Rulemaking proposing to require the reporting by Multichannel Video Programming Distributors such as cable and direct broadcast satellite services concerning any blackouts of TV stations due to a failure of retransmission consent negotiations.  In addition, while not yet adopted, the FCC announced that an item is circulating among the Commissioners for their consideration concerning a proposal to revive the FCC Form 395-B, which required broadcasters to report the race, gender, and ethnicity of all broadcast employees, before the FCC suspended the form more than 20 years ago.

The most significant of these actions is the resolution of the 2018 Quadrennial Review of the local broadcast ownership rules.  As we have noted on this blog many times in recent weeks, the FCC had until December 27 to comply with a court order requiring the agency to conclude the 2018 Review. That Review should have been completed by the end of last year when, instead, the FCC asked initial questions for a new 2022 Quadrennial Review (see our article here).  Following a request for “mandamus” by the NAB, the US Court of Appeals for the District of Columbia ordered the FCC to resolve the 2018 proceeding (see our article for more on the Court order).  The FCC released its decision one day before the deadline, addressing the three major issues in the proceeding and making little significant change in the existing rules for radio and television, with one exception noted below. 

First, the decision addressed the local radio ownership rules, and declined to make any substantial change in those rules.  As we have noted before (see, for instance, our articles here and here), the NAB and many radio broadcasters had argued for a significant relaxation of these rules, or their revocation, given the massive changes in the audio marketplace and in the marketplace for local advertising sales (from which radio receives most of its revenue).  In the 27 years since the current rules were adopted, digital media has substantially eroded radio’s share of audience and advertisers, and trends show that the erosion continues.  Yet the FCC decided that radio was its own unique marketplace, and that it would not serve the public interest for that market to become further concentrated.  The only change of note made by the FCC was that it made permanent the “interim contour method” of determining which stations competed in areas where there are no Arbitron markets.  As that interim methodology has been in place for decades, the decision results in no real change in the radio ownership rules.

For TV, the FCC reached much the same conclusion, finding that broadcast TV is its own market, and again concluding that no significant changes should be adopted.  The FCC’s principal focus was on situations where two of the top 4 TV stations in a market propose to combine.  Such combinations are allowed under the current rules upon a showing that the combination will serve the public interest.  But, as was evident in the case we noted here, those decisions as to whether a particular combination is in the public interest can take the FCC a long time to make, and they are filled with uncertainty.  It was hoped that the FCC would announce rules outlining specific cases where combinations of two of the top 4 stations would be allowed – but the FCC left the decision to be made on an ad hoc basis.  The Commission did, however, announce revisions to how it will determine which stations are in the top 4 in any market.

The other substantive change was to adopt a clarification of the rules to prohibit any agreement or series of agreements that allowed one top 4 station to acquire the programming of another top 4 station and move that programming to an LPTV station or a multicast stream.  FCC policy already prohibits such transactions if the programming is moved to a full-power station owned by the acquiring party.  Now, the Commission has made clear that the programming also cannot be moved to a commonly owned LPTV or multicast stream.  Note that the FCC stated that this does not prohibit a network from itself deciding to move an affiliation to an LPTV or multicast stream – but it prohibits transactions to buy that programming from another in-market station. 

The final rule under consideration was the dual network rule – prohibiting the common ownership of two of the Top 4 TV networks.  In 2018, a potential change to that rule did not seem to be particularly significant as none of the networks appeared to be interested in combining.  In fact, according to this week’s order, none of the networks filed comments in 2018 supporting a rule change.  However, 3 of the 4 networks did support a change in supplemental comments filed in 2021.  That change may not be surprising as there have been rumors in the past year of the potential interest in a sale of at least two of those networks – thus the rule now takes on greater significance.  Yet the FCC left this rule in place without change, finding that the networks still had uniquely large audiences and unique programming that should not be allowed to be concentrated in fewer hands.

Both of the Republican Commissioners issued stinging dissents to these actions, arguing that the majority was blind to the clear changes in the marketplace brought about by digital media.  In coming days, there will no doubt be industry reaction to these decisions as well.  This is not the last article that you will see on this blog about these issues.

This was not the only action of note by the FCC.  A pre-Christmas action was the adoption of a Notice of Proposed Rulemaking seeking public comment on a proposal to require MVPDs to report to the FCC whenever a broadcast television station is removed from their system for more than 24 hours due to a failure in retransmission consent negotiations.  The MVPD would also have to report on the number of subscribers losing access to the television station.  Another report would be filed when the blackout is resolved.  The FCC does not propose any other changes in its rules regarding the negotiations themselves – the proposal is simply for reports to be filed when blackouts occur.

A last significant action worth noting is that the FCC’s report on the items “on circulation” (those orders or rulemaking proposals that have been drafted and are circulated among the Commissioners for review and a vote) as of the end of last week included an Order and Further Notice of Proposed Rulemaking in the docket proposing to bring back the FCC’s Form 395-B.  That report detailed the gender, race, ethnicity, and job function of all station employees. Its use was suspended over 20 years ago when a court suggested that its use was discriminatory because the FCC was penalizing stations that did not meet specific racial or gender quotas in their workforce.  The question of how to collect that information without using it for enforcement purposes has delayed any reinstatement of the filing obligation.  Two weeks ago, Commissioner Starks and 27 members of Congress called (see here, here, and here) for the FCC to reinstate the requirement for broadcasters to provide broadcast workforce diversity data collection through the filing of the From 395-B.  Starks asserted that the FCC was statutorily obligated to collect such information to ensure that broadcasters provide programming that is responsive to the needs and interests of their communities of license through the employment of a diverse workforce. Over two years ago, the FCC asked for comments on bringing back that form (see our article here) and apparently there is now an order looking to do so.   We will be watching for more information as it becomes available.

Regulation never takes a holiday.  Look for more on these actions in the coming weeks. 

2024 is almost upon us.  At this time of year, everyone seems to be making a list of the best (or worst) events of 2023, or predictions for what the new year will bring. After the first of the year, we will dust off our crystal ball and look at some of the legal and policy issues that may be addressed in the new year. Today we will look at the dates that are already set for 2024.  We offer for your review our Broadcaster’s Regulatory Calendar for 2024.  While this calendar should not be viewed as an exhaustive list of every regulatory date that your station will face, it highlights many of the most important dates for broadcasters in the coming year – including dates for EEO Public Inspection File Reports, Quarterly Issues Programs lists, children’s television requirements, annual fee obligations and much more.

2024 may well be the biggest election ever, with the Presidential election, and hotly contested races to fill all the seats in the US House of Representatives (and to decide control of that institution) as well as a third of the seats in the US Senate, where control may also be at stake.  Couple these with many state level races and even some ballot issues, election spending is certain to be at or near its highest level ever.  We’ve taken extra time this year to highlight the lowest unit charge periods for the primaries and general election (based on information available to us when this calendar was prepared) – including even some municipal elections that are occurring on cycles different than those applicable to the federal races. We just last week wrote about how the political broadcasting rules apply to state and local elections as well as federal ones, and even special elections to fill vacant political seats.  In today’s hyper-partisan atmosphere, we may well see broadcast and cable advertising for political races where such advertising has never before been placed, thus our extra attention to these races.  Be sure to confirm all these election dates with counsel and local election authorities, as these dates can change.  Note, too, that there can be additional local and special elections which are not included here. All stations should be getting ready to meet these obligations.

Follow our blog where we post a weekly summary of the prior week’s regulatory actions relevant to broadcasters (see last week’s summary, here) and, just prior to the start of each month, a look ahead at the regulatory dates in the coming month (see our look at January dates, here).  On our blog, we also highlight other regulatory and policy issues that media companies should be following.  Read other newsletters and trade publications and consult your own attorney to stay on top of all the regulatory obligations that apply to your stations.  We hope that this 2024 Broadcaster’s Regulatory Calendar will give you a good start on spotting some of the important dates that may be ahead for your operations in the coming year.

The new year brings a series of noteworthy regulatory deadlines for broadcasters in January.  As always, broadcasters should consult with their own attorneys and advisors to make sure that they are aware of and ready to act on any other deadlines that are not listed below.

Congress still has not passed budget bills for the fiscal year that started on October 1, and some of the “continuing resolutions” to fund the federal government at last year’s levels run out on January 19, with the FCC’s budget set to expire on February 2.  Thus, at least a partial government shutdown may well occur if Congress fails to act this month.  As we previously discussed here and here, if a government shutdown does occur, some government agencies may have to cease all but critical functions if they do not have any residual funds to continue operations.  If no funding is approved, the FCC will announce how any shutdown will affect it, including whether it has any residual funds to keep operating beyond any general funding deadline.  Watch Congressional actions and any FCC announcements to see how any deadlines that apply to your station will be affected by the funding deadline.

With those concerns in mind, let’s look at some of the specific dates and deadlines for broadcasters in January.  Beginning January 1, television stations affiliated with the Top 4 Networks and operating in Nielsen Designated Market Areas (DMAs) 91 through 100 will be added to the list of markets that are subject to the FCC’s audio description rules.  The DMAs where the rules become effective on January 1 are:  El Paso (Las Cruces), Paducah-Cape Girardeau-Harrisburg, Cedar Rapids-Waterloo-Iowa City & Dubuque, Burlington-Plattsburgh, Baton Rouge, Jackson, MS, Fort-Smith-Fayetteville-Springdale-Rogers, Boise, South Bend-Elkhart, and Myrtle Beach-Florence – in addition to Chattanooga and Charleston, SC, which were previously in DMAs 92 and 91, respectively, but are now in DMAs 84 and 88.  We reported here on the FCC’s recent reminder that these new markets will be subject to the audio description requirements as of January 1.  TV stations associated with the Top 4 networks in these markets are required to provide audio description for 50 hours of programming per calendar quarter, either during prime time or in children’s programming, and 37.5 additional hours of audio description per calendar quarter between 6 a.m. and 11:59 p.m. local time, on each programming stream that carries one of the top four commercial television broadcast networks (ABC, CBS, FOX and NBC). 

Continue Reading January Regulatory Dates for Broadcasters – Expansion of Audio Description Requirements, Music Royalty Cost of Living Increases, Quarterly Issues/Programs Lists, Childrens Television Programming Reporting, Political Windows, and More

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

  • The FCC adopted a Report and Order establishing rules implementing the January 2023 Low Power Protection Act, which provides LPTV stations in very small television markets a limited window of opportunity to apply for status as a Class A television station.  Class A status gives these stations protection from being displaced by new or modified full-power stations and also protects their spectrum rights in any future repacking of the broadcast band like that which occurred after the recent incentive auction. Eligibility for this filing window is limited to LPTV stations located in Designated Market Areas ranked 178 (Elmira-Corning, New York) through 210 (Glendive, Montana).  We previously discussed the draft order here, which has not substantively changed in its adopted form. 
  • The FCC adopted a Notice of Proposed Rulemaking which proposes to eliminate video service “junk fee” practices by cable and direct broadcast satellite (DBS) service providers.  The NPRM proposes, among other things, customer service protections that prohibit cable operators and DBS service providers from imposing a fee for the early termination of a cable or DBS video service contract. We previously wrote about the draft NPRM here, which has not substantively changed in its adopted form.  In the adopted NPRM, however, the FCC is now requesting more detailed comment on how cable and DBS service providers currently impose junk fees on customers.
  • After the LPFM filing window closed at 12:00 pm on Friday, December 15 (which, as we discussed on our Broadcast Law Blog, the FCC’s Media Bureau extended until that date due to perceived issues with the FCC’s electronic filing system), the Bureau issued a Public Notice announcing a temporary freeze on the filing of any amendments to new LPFM applications filed during the window.  The freeze will continue until 6:00 pm EST on January 31, 2024, to give the Bureau time to identify any mutually exclusive applications (conflicting applications which cannot all be granted consistent with the FCC’s technical rules) filed during the window.  The Public Notice also noted that it will set out the procedures for resolving mutual exclusivity among LPFM applications in a future public notice.  When the Bureau extended the application filing window, it also extended the freeze on LPFM and FM translator minor modification applications until December 18 at 12:01 am EST.
  • FCC Commissioner Starks and 27 members of Congress called (see here, here, and here) for the FCC to reinstate broadcast workforce diversity data collection by requiring broadcasters to again file the Annual Employment Report (FCC Form 395-B).  That report detailed the gender, race, ethnicity, and job function of all station employees.  Starks asserted that the FCC was statutorily obligated to collect such information to ensure that broadcasters provide programming that is responsive to the needs and interests of their communities of license through the employment of a diverse workforce.  As we discussed earlier this year here, Form 395-B was suspended over 20 years ago when a court suggested that its use was discriminatory because the FCC was penalizing stations that did not meet specific racial or gender quotas in their workforce.  The question of how to collect that information without using it for enforcement purposes has delayed any reinstatement of the filing obligation.
  • The FCC’s Enforcement Bureau continued its use of the PIRATE Radio Act, which allows greater penalties on those involved in unauthorized radio operations (see our article on the adoption of the Act), by issuing three Notices of Illegal Pirate Radio Broadcasting to two landowners in New York City and a landowner in Puerto Rico for apparently allowing illegal broadcasting from their properties.  The Bureau warned each landowner that the FCC may issue fines of up to $2,316,034 if the FCC determines that the landowner continues to permit any individual or entity to engage in pirate radio broadcasting from their property.  The notices can be found here, here, and here.
  • The FCC has until December 27th to comply with a court order requiring the agency to conclude its still-pending 2018 quadrennial review of its local broadcast ownership rules (see our blog article for more on the Court order and on the issues under consideration in that proceeding, including a review of the local radio ownership limits, the restrictions on combinations of two of the Top 4 TV stations in any market, and the dual network rule forbidding common ownership of two of the Top 4 TV networks).  With that deadline rapidly approaching, lobbying at the FCC on how the FCC should conclude the proceeding continued during the past week.  The NAB again urged (see here and here) the FCC to reject the pay TV industry’s proposal to expand the rule against owning two of the Top 4 stations in a market to apply to multicast channels and LPTV stations – noting that the FCC is statutorily obligated in its quadrennial review either to eliminate the Top-4 rule or to make it less, not more, restrictive.  Similarly, Fox, Paramount, and Disney noted that expanding the rule would harm smaller markets by endangering the availability of free, over-the-air network programming and depriving viewers in such markets of diverse programming.  Gray also echoed these concerns by pointing out that expanding the rule would only exacerbate the problem of news deserts outside the top fifty media markets.
  • The FCC’s Public Safety and Homeland Security Bureau granted (see here and here) two extension requests of the December 12, 2023 deadline for compliance with the new Emergency Alert System (EAS) rules requiring that, when a station receives an EAS alert over-the-air, it wait at least 10 seconds to see if that alert arrives by the internet-delivered IPAWS system, and if it does, broadcast that internet-delivered alert that uses the Common Alerting Protocol (see our discussion on this obligation, here).  The requests were filed by an Alaska cable operator and a group of CBS-affiliated TV stations, which all requested an extension of the deadline because they needed new EAS hardware to comply with the requirements, and delivery of that equipment was delayed due to supply chain issues.  The Bureau granted the cable operator an extension of time until March 11, 2024, and the TV stations until January 10, 2024, to comply with the new EAS rules.  The Bureau’s decisions follow its recent grants to other broadcasters of extensions to comply with the new EAS rules due to unique issues in meeting the December 12 deadline (decisions we noted in prior updates here and here).
  • The FCC’s Media Bureau entered into a Consent Decree with a New York noncommercial FM station to resolve issues arising from the Bureau’s review of the station’s license renewal application.  The Bureau imposed a $500 penalty and required a compliance plan to protect against future violations.  The penalty was imposed because the station filed its license renewal application two months late.
  • The House Energy & Commerce Committee held a hearing on governmental regulation of AI.  The hearing included witnesses from the Department of Energy, Department of Health and Human Services, and Department of Commerce who were questioned about the federal government’s role in addressing the use of AI in the marketplace.  A recording of the hearing can be found here, a summary of the hearing’s scope can be found here, and the witnesses’ written testimonies can be found here, here, and here.

On our Broadcast Law Blog this week, we reminded broadcasters that special elections and state and local elections trigger political obligations for broadcasters – including lowest unit charges, equal opportunities, public file requirements and, for federal candidates, reasonable access.

With the upcoming holidays, we do not plan to publish this weekly update for the next two weeks.  Watch for our next summary of regulatory actions relevant to broadcasters on January 7, 2024.  We will write about any significant regulatory actions on our Broadcast Law Blog in the interim.  Also watch our Blog this coming week for a look ahead at January regulatory dates for broadcasters and for and for our calendar of regulatory deadlines for all of 2024.

Right now, most broadcasting stations and other media companies are focused on selling political advertising for the primaries for the 2024 elections and subsequent November election that will elect the President, the US Congress, and so many other officer holders in DC and elsewhere in the country.  But broadcasters need to be aware of other elections that can also trigger political obligations – including lowest unit charges.  I was reminded of that today when I saw the FEC’s notice of the dates for the special election to fill the Congressional seat recently opened by the expulsion of George Santos from Congress (the FEC notice setting out the dates for candidates to meet their FEC filing obligations). That special election, on February 13, 2024, triggers all of the FCC’s political obligations for stations serving this Long Island Congressional District.  Once there are legally qualified candidates, equal opportunities, reasonable access, and political file obligations will arise.  Lowest Unit Charges will also be required for all candidates in the race to fill this seat, as we are already in the 60-day window before the February 13 special election.  The Democratic Party has selected their nominee and, according to the state’s notice about this election, other registered political parties have until tomorrow (December 15) to provide their nominations, and independent candidates can file their nominating petitions through December 18. This means that the candidates entitled to rights under FCC rules will be known in a matter of days. 

For Federal elections like this special election, broadcast stations serving the district involved need to offer candidates the full panoply of candidate rights – including reasonable access, lowest unit rates, and equal opportunities (as well as the public file obligations that go along with any advertising associated with an election or the coverage of any issue of public importance). Stations also need to be alert for other elections that take place at odd times.  Some states have municipal or school board elections at times other than the standard November dates that most people think about.   As we have written before, most of the political rules apply to any election for public office that occur at these odd times, including these state and local electoral races as well as to the few Federal elections that take place to fill open Congressional seats.

Continue Reading Special Election Dates Announced to Fill George Santos’ Congressional Seat – Remember Special Elections and State and Local Elections Trigger Political Obligations Too

The FCC yesterday released a Public Notice extending for two days the now-open window for the filing of applications for new LPFM stations – applicants now have until 12:00 PM Eastern Time on December 15, 2023 to file their applications.  See our articles here, here, and here for more information on the LPFM filing window.  The very short extension was granted due to perceived issues with the FCC’s LMS filing system which delayed the submission of some applications.  The FCC also extended the current freeze on the filing of any applications for minor changes in any FM translator until 12:01 AM Eastern Time on December 18, 2023 (to preserve stability in the FCC database for the filing of the LPFM applications).  Nonprofit companies seeking to provide a noncommercial radio service local to the community they serve now have a few extra days in which to submit an application – but they should not delay given the issues that can arise in the filing of any FCC application.

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

  • The AM for Every Vehicle Act was scheduled for a US Senate vote this week through an expedited process seeking unanimous consent.  However, Senator Rand Paul of Kentucky refused to consent so, for now, the bill has not moved forward.  As we wrote here, the bill, if adopted, would require that the National Highway Traffic Safety Administration adopt rules within a year to require that free AM radio be provided in every new car and, until those rules are effective, car dealers must provide written notice to any new car buyer if their new car does not have a radio capable of receiving AM.    
  • The FCC’s Wireless Telecommunications Bureau adopted two deadlines for the final submission of reimbursement claims by earth station operators, including broadcasters, whose earth stations were affected by the C-band transition clearing parts of the band for use by wireless operators. The deadlines are, as follows:
    • February 5, 2024 – Submission deadline for all reimbursement claims for costs incurred and paid by claimants as of December 31, 2023, including all lump sum election claims by incumbent earth station operations.
    • July 1, 2024 – Submission deadline for costs incurred and paid by claimants after December 31, 2023, which must be submitted on a rolling basis within 30 days of being incurred.  If there are costs that will be incurred after July 1 (which the Bureau expects will be rare), to be considered for reimbursement, the claimant must submit the claims by the July 1 deadline with the best supporting documentation and information available at that time. 
  • FCC’s Media Bureau proposed a $13,000 fine against the licensee of a Texas Class A TV station for failure to timely file a license application and operating without authorization after its construction permit had expired.  The licensee stated that while the station was timely constructed, it inadvertently failed to timely file a license application.  As the applicant showed that the station was constructed timely, the license application was granted. The Bureau nevertheless imposed the fine because the station operated without authorization for over three and a half years and the station’s licensee should have been aware of the filing requirements since it is the licensee of over 100 television and radio stations. 
  • The FCC’s Media Bureau entered into Consent Decrees with two AM stations to resolve investigations of the stations’ FCC rule violations:
    • The Bureau entered into a Consent Decree with a Pennsylvania AM station to resolve issues arising from the Bureau’s review of the station’s license renewal application.  The Bureau imposed a $3,000 penalty and required a compliance plan to protect against future violations.  The penalty was imposed as the licensee did not timely file its renewal application (filing it over three months late) and did not place any issues/programs lists in its online public inspection file during the previous license period. 
    • The Bureau entered into a Consent Decree with an Oregon AM station’s licensee requiring a $5,000 penalty to resolve issues arising from the Bureau’s investigation involving the unauthorized transfer of control of the licensee.  The Bureau found that, following the death of the licensee’s majority shareholder, the licensee filed an involuntary transfer of control application (Form 316) reflecting the transfer of the majority shareholder’s stock to his estate.  However, before distributing the stock from the estate to the beneficiaries, it failed to file a transfer of control application (Form 315) seeking approval for the ultimate ownership and control of the station.  This is one of several recent cases that show that death of a controlling owner (or even estate planning by the owners of a station) can trigger FCC requirements for approval of changes in control of an FCC license, and penalties can result when such approvals are not obtained (see, for instance, the cases we noted here, here, and here). 
  • The FCC’s Public Safety and Homeland Security Bureau partially granted a request filed by a group of Mississippi noncommercial TV stations for an extension of the FCC’s requirement that broadcasters prioritize the Internet-based Common Alerting Protocol (CAP)-formatted version of an Emergency Alert Service message when it receives both a legacy version and a CAP-formatted version of the same alert.  As we discussed here and here, all EAS Participants must comply with the CAP prioritization requirement by December 12, 2023 – except for EAS Participants using Sage manufactured EAS equipment, which have until March 11, 2024 to comply with the new requirement.  The Mississippi TV stations claimed that their EAS equipment is not capable of CAP prioritization, and they are currently awaiting federal funding to upgrade to equipment that can meet the new requirement.  The Bureau concluded that there was good cause to provide the TV stations with an extension until April 30, 2024.  Although the licensee requested more time, the April 30 deadline was adopted based on the licensee’s estimates that their new EAS equipment would be deployed and operational by that time. 
  • The FCC has until December 27th to comply with a court order requiring the agency to conclude its still-pending 2018 quadrennial review of its local broadcast ownership rules (see our blog article for more on the Court order and on the issues under consideration in that proceeding, including a review of the local radio ownership limits, the restrictions on combinations of two of the Top 4 TV stations in any market, and the dual network rule forbidding common ownership of two of the Top 4 TV networks).  With that deadline in sight, lobbying at the FCC on how the FCC should conclude the proceeding continued during the past week.  Pay TV industry representatives NCTA and the American Television Alliance urged the FCC to expand the rule against owning two of the Top 4 stations in a market to apply to multicast channels and LPTV stations – claiming that preserving the existing duopoly rule “loophole” would only lead to higher prices for consumers.  These parties contend that broadcasters’ claims regarding the need to consolidate to preserve local news were unfounded.  In contrast, the NAB, TV network representatives, and TV broadcasters (here, here, here, here, here, here, and here) urged the FCC to reject the pay TV industry’s arguments – arguing that the pay TV industry’s data that duopolies do not contribute to more local news is unreliable and their proposals to expand the duopoly rules to multicast channels and LPTV stations are motivated by a desire to weaken TV stations’ bargaining power in retransmission negotiations.  Broadcast interests also say that expanding the prohibition would significantly harm broadcasters and viewers, especially in smaller markets, who need such services to receive a full complement of network programming.  Finally, a group of radio broadcasters continued to urge (see last week’s discussion of previous filing here) the FCC to eliminate the local radio ownership rules given the dramatic change in marketplace competition since the ownership rules were adopted, noting that local stations need greater scale to compete with digital media for advertisers and listeners.
  • Senator Schumer concluded the final Senate Forums on Artificial Intelligence by stating that, while there is a bipartisan consensus on the harms of AI, efforts to craft legislation designed to protect Americans from such harms will remain ongoing in 2024 (see his statements here, here, here, and here). Regulation on a state level continues.  As we discussed on our Broadcast Law Blog this week, Michigan became the fifth state to require disclosure of the use of AI in political advertisements, joining other states that have addressed concerns about deep fakes corrupting the political process. 
  • The FCC’s Media Bureau issued a Report and Order allocating noncommercial educational channel 4 to Jacksonville, Oregon as the community’s first local television service and its first noncommercial television service.  The Bureau will release a public notice in the future announcing when it will begin accepting new noncommercial television station applications for the new allotment. 
  • The LPFM filing window opened on December 8, and will close on December 13 at 6:00 pm EST.  As we wrote here, here, and here, eligible entities may apply for a new LPFM station in the filing window.  Additionally, the current freeze on FM translator modifications will end with the closing of the filing window on December 13.

Another state has joined the list of those that require clear disclosure of the use of artificial intelligence (“AI”) in political ads, joining others that have addressed concerns about deep fakes corrupting the political process. Michigan’s Governor Whitmer just signed a bill that adds Michigan to 4 other states (Texas, California, Washington, and Minnesota) that have enacted laws requiring the clear identification of the use of AI in political ads.  As many media companies are struggling with their policies on AI, and as the federal government has not acted to impose limits on the use of AI in political ads (see our posts here and here), it has been up to states to adopt rules that limit these practices.

The Michigan bill, H.B. 5141, applies to “qualified political advertisements” which include any advertising “relating to a candidate for federal, state, or local office in this state, any election to federal, state, or local office in this state, or a ballot question that contains any image, audio, or video that is generated in whole or substantially with the use of artificial intelligence.”  A companion bill, H.B. 5143, defines “artificial intelligence” as “a machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments, and that uses machine and human-based inputs to do all of the following: (a) Perceive real and virtual environments. (b) Abstract such perceptions into models through analysis in an automated manner. (c) Use model inference to formulate options for information or action.”

Continue Reading Michigan Becomes the Fifth State to Require Disclosure of the Use of AI in Political Ads

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

  • The FCC’s Public Safety and Homeland Security Bureau partially granted NAB and REC Networks’ waiver request (discussed in our last update here) of the December 12, 2023 deadline for compliance with the FCC’s new Emergency Alert Service (EAS) rules – which require that, when a station receives an over-the-air EAS alert, it must wait at least 10 seconds to determine if a CAP alert has been sent through the IPAWS system and, if it has, the station should rebroadcast that internet-delivered CAP alert rather than the one received over the air.  We wrote more about that requirement on our Broadcast Law Blog, here.  The Bureau extended the compliance deadline until March 11, 2024 for EAS Participants using Sage EAS equipment, as Sage is only now delivering an update to its equipment to allow for this default-to-CAP requirement to be implemented.  The Bureau, however, declined to extend the compliance deadline for all EAS Participants.  Thus, EAS Participants that do not use Sage EAS equipment must still comply with the December 12, 2023 deadline. 
  • The FCC’s Media Bureau reminded TV broadcasters that the FCC’s audio description rules will apply to DMAs 91 through 100 as of January 1, 2024.  As we previously discussed here, the FCC expanded the FCC’s audio description requirements to commercial broadcast television stations affiliated with one of the top four television broadcast networks (i.e., ABC, CBS, Fox, and NBC) in Designated Market Areas 101-210.  Currently, the FCC’s audio description requirements apply only to the top 90 DMAs.  As a result of the FCC’s Order, the audio description requirements will now expand to 10 additional DMAs each year – with the expansion to DMA 91-100 effective as of January 1, 2024, and then DMAs 101-110 on January 1, 2025, and ending with DMAs 201-210 on January 1, 2035.  Audio description provides narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue, for the benefit of individuals who are blind or visually impaired. 
  • The Copyright Royalty Board published in the Federal Register two notices of cost-of-living increases in the fees paid by broadcasters for the use of music in their operations.  The first notice announces that, for webcasters, including broadcasters who stream their programming on the Internet or deliver it through mobile apps, the SoundExchange royalty fees will increase to $.0025 per performance (up from $.0024 in 2023) for performances delivered on or after January 1, 2024.  The second notice announces that noncommercial radio stations affiliated with high schools or colleges but not affiliated with NPR or CPB will pay yearly royalties of $194 to both SESAC and GMR (up from the $188 paid in 2023) for licenses to perform musical compositions licensed by these organizations on these school’s over-the-air stations.  We wrote more about these royalty increases on our blog, here. 
  • Also in the music royalty world, just before Thanksgiving, BMI announced that the company was being sold to an investment fund.  BMI was founded by broadcasters over 80 years ago to moderate music licensing fees by providing a competitor to ASCAP.  Until 2023, it operated as a non-profit entity. BMI collects royalties for songwriters and their publishing companies when their music is performed in public (including by broadcasters, online companies, retailers, bars and restaurants, and other venues that play music outside the home or other circles of close family and friends).  BMI is currently engaged in litigation with the Radio Music License Committee over how much commercial radio stations should pay for the use of BMI-licensed music.  How private ownership by an investment fund will affect this litigation and future royalties, and whether changes to the antitrust consent decree under which BMI operates will be sought (see our blog article on recent consideration given to changes in the consent decree), are all unknowns raised by this sale. 
  • The FCC circulated drafts of two items of interest to broadcasters that it will consider at its next open meeting on December 13:
    • A Notice of Proposed Rulemaking, which proposes to eliminate video service “junk fee practices” by cable and direct broadcast satellite (DBS) service providers.  As we wrote here, the FCC previously proposed “all-in-pricing” for cable and satellite services.  The FCC now proposes additional customer service protections that prohibit cable operators and DBS service providers from imposing a fee for the early termination of a cable or DBS video service contract; and requiring cable and DBS service providers to provide subscribers with a prorated credit or rebate for the remaining days in a billing cycle after service cancellation.  
    • A Report and Order which, if adopted, will create rules implementing the January 2023 Low Power Protection Act (LPPA) – which provides LPTV stations in very small television markets with a limited window of opportunity to apply for status as Class A television stations.  Class A status gives a station protection from being bumped off its frequency by new full-power TV facilities.  The status also protects a station in the event of a future contraction of the TV band as recently occurred with the repacking that followed the 2017 TV “incentive auction.”  As we noted here, in March 2023, the FCC released a Notice of Proposed Rulemaking to implement the LPPA.  The FCC’s Order largely adopts the proposals in the NPRM – except that stations converting to Class A status will not lose their status if the Designated Market Area where they operate subsequently grows beyond the limit of 95,000 households that applies to stations eligible to apply for this upgraded status. 
  • The FCC has until December 27th to comply with a court order requiring the agency to conclude its still-pending 2018 quadrennial review of its local broadcast ownership rules (see our blog article for more on the Court order and on the issues under consideration in that proceeding, including a review of the local radio ownership limits, the restrictions on combinations of two of the Top 4 TV stations in any market, and the dual network rule forbidding common ownership of two of the Top 4 TV networks).  With that deadline in sight, lobbying at the FCC on how the FCC should conclude the proceeding has continued during the past two weeks.  A small broadcaster suggested that the FCC should keep the overall radio ownership caps in place, but eliminate limits on the number of AM vs. number of FM radio stations a single owner could hold in a market.  Another group of broadcasters urged the FCC to eliminate the local radio ownership rules given the dramatic change in marketplace competition since the ownership rules were adopted, noting that local stations need greater scale to compete with digital media for advertisers and listeners.  Those comments suggested that radio’s share of local advertising and audience has been cut in half in the last 12 years, while the shares of digital media companies, unconstrained by local ownership restrictions and offering no local service, have exploded.  A group of TV broadcasters noted their concerns (here and here) with pay TV advocates seeking to treat LPTV stations and multicast streams as full power stations for purposes of the TV Duopoly rule (which restricts the ownership of two TV stations in the same market), noting that many small markets cannot support four full-power television stations and therefore continuing to permit dual or multiple affiliation agreements by a single broadcaster is the only way that such markets will receive a full complement of television network programming.  Finally, the NCTA urged the FCC to retain the prohibition on combinations of Top 4 TV stations arguing that these rules prevent broadcasters from exercising undue leverage during retransmission consent negotiations. 
  • The FCC’s Enforcement Bureau issued nine Notices of Illegal Pirate Radio Broadcasting to landowners in the Boston area for apparently allowing illegal broadcasting from their properties.  The Bureau warned the landowner that the FCC may issue fines of up to $2,316,034 under the PIRATE Radio Act if the FCC determines that the landowner continues to permit any individual or entity to engage in pirate radio broadcasting from their property.  The nine notices can be found here, here, here, here, here, here, here, here, and here.
  • The FTC took action to expand its authority to investigate the use of artificial intelligence to engage in fraud, deception, infringements on privacy, and other unfair practices by streamlining its staff’s ability to issue civil investigative demands (CIDs) – an investigative tool much like a subpoena – in investigations relating to AI.  The FTC issues CIDs to obtain documents, information, and testimony that advance FTC consumer protection and competition investigations. 
  • The FTC also announced that it issued warning letters to two trade associations and 12 social media influencers alleging that the influencers were receiving payments or other consideration for Instagram and TikTok posts promoting sugar and other sweeteners without providing adequate notice of the payments and the sponsors in those posts.  The letters ask that the recipients contact the FTC to explain how the FTC’s concerns would be addressed and warned of $50,120 fines that could be imposed for each violation.  These actions reflect the FTC’s policy requiring disclosure to the public when endorsements and testimonials for products and services, even those on social media, are sponsored.  See our articles here and here on these policies.
  • The FCC’s Media Bureau and Managing Director revoked a Texas AM station’s license for failure to pay delinquent FCC regulatory fees.  The station failed to timely pay all of its regulatory fees for FYs 2012, 2015, 2016, 2017, 2018, 2019, 2020, and 2021; and it did not respond to an Order to Pay or Show Cause (which we wrote about here) providing either evidence that the fees were fully paid or an explanation why the fees should be waived or deferred.  The station still must pay the delinquent regulatory fees even though the station’s license was revoked.  While this is an extreme case, it is a reminder that the FCC takes unpaid regulatory fees seriously, and that licensees must ensure that such fees are timely paid.
  • The FCC’s Media Bureau denied an informal objection filed against a new noncommercial FM station application.  The objection claimed that the application should be denied because it did not comply with the FCC’s technical rules governing such applications – even after the application was refiled at FCC staff’s direction with amended technical parameters following its dismissal for being technically defective.  The Bureau instead granted the application – finding that the applicant was permitted to amend its amended application to resolve minor deficiencies in that amended application.
  • The FCC’s Media Bureau released a Notice of Proposed Rulemaking asking for comments on a TV station’s petition for rulemaking that proposes the substitution of Channel 29 for Channel 2 at Greenville, South Carolina.  The petitioner is proposing the channel substitution due to the station’s poor reception on VHF Channel 2 by viewers, another reflection of the superiority of UHF channels for the transmission of digital television signals.
  • Based on complaints, the FCC’s Enforcement Bureau issued Notices of Violation against two Texas FM translator stations for operating with antennas and at heights not approved by the FCC.  The stations have 20 days to respond to the notices detailing how the violations occurred and how they will remedy these violations.  Copies of the notices are available here and here.

On our Broadcast Law Blog, we wrote an article setting out many of the most significant regulatory dates for broadcasters in the month of December – see that summary here.