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

  • On October 17, Sen. Brian Schatz (D-HI), Sen. Marsha Blackburn (R-TN), and Rep. Anna Eshoo (D-CA) introduced the Identifying Propaganda on Our Airwaves (IPA) Act, which would essentially undo the recent D.C. Circuit decision in National Association of Broadcasters v. FCC, which rejected the requirement that broadcast licensees independently check two federal databases to verify whether an airtime lessee is a “foreign governmental entity” (see our Broadcast Law Blog article on the Court’s decision here).   Specifically, the IPA Act would amend Section 317(c) of the Communications Act to provide the FCC with authority to require radio station licensees to consult “any additional source of information the Commission designates that may enable the licensee to verify whether the matter broadcast by the radio station was paid for or furnished by a foreign governmental entity.”   FCC Chairwoman Rosenworcel and Commissioner Starks both issued statements in support of the IPA,
  • The FCC’s Media Bureau issued a Notice of Proposed Rulemaking seeking comment on a proposed allotment of a new FM channel, 272A, to Dennison, Ohio as that community’s first local radio service.  Comments are due December 8 and reply comments are due December 23.  If adopted, the channel would be available in a future FM auction for those interested in the construction of a new FM station to serve Dennison.
  • In addition, the Media Bureau granted an AM station a short-term renewal of two years and proposed to issue the station a $20,000 fine for operating at variance with its authorized parameters.  Specifically, the Bureau found that in 1993 the station obtained Special Temporary Authority (STA) to decrease nighttime power from 5 kW (directional) to 1 kW (non-directional).  The station filed for and received multiple extensions of its STA, but, after it received its last extension in 1996, the Bureau warned that the station must either return to its licensed operation or file an FCC 301 application to modify its facilities.  The station nonetheless continued to operate at reduced nighttime power (which it had been doing for its entire license term) and never filed an FCC Form 301, nor did it seek a further extension of its STA until September 7, 2022.
    •  In a similar vein, the Bureau issued a two-year renewal to a daytime-only AM station and proposed to impose an $11,000 fine on a station, citing violations including the station (1) failing to obtain FCC authorization to remain silent for four months, (2) operating at variance from its authorized parameters since September 22, 2022 when an STA for reduced-power operations expired without being extended, and (3) failing to file its license renewal application by, as required, February 17, 2021 following a prior short-term renewal for inconsistent operations of the station in the prior license term.  The Bureau did, however, choose not to fine the station for its unauthorized operation after its license expired, citing mitigating factors that may have led the station to become confused as to its renewal deadline as the current licensee acquired the station after the imposition of the short-term renewal and was not notified by the FCC of the need to file that early renewal.  These two cases remind licensees to keep the FCC informed in changes in station operation and to seek approval when that operation does not conform to what is authorized by the station’s FCC license.
  • The FCC issued notices to several landowners (here and here) that there appeared to be illegal “pirate” radio operations going on from their properties, and warned that if these operations did not immediately cease, the FCC could fine the operator or the landowner as much as $2,149,551 (the inflation adjusted maximum fine authorized by the 2020 Pirate Act, which also authorized fines against landowners as well as pirate operators, legislation we wrote about here).

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

  • A judge in King County, Washington, released his decision finding that Facebook parent Meta intentionally violated the Washington State requirements for public access to documents concerning the sale of advertising to state political candidates.  We wrote about the Washington State rules and this case on our Broadcast Law Blog, here.  The state’s Attorney General has announced that he will seek the maximum penalty of $24.6 million for the 822 violations found by the judge.
  • The FCC’s Enforcement Bureau issued a Notice of Violation to an FM station after FCC field agents discovered that the station was operating three miles from its authorized transmitter site.  If your station needs to make technical changes to its operations, be sure to seek FCC permission for those changes, which is required in most cases before they are implemented.
  • The Media Bureau proposed to assess a fine of $1,500 each on two low power FM (LPFM) stations (see decisions here and here)  that failed to file their license renewal applications on time.  In each case, the station’s license renewal applications were filed four months late without explanation, but before its license expiration date.  The Bureau reached its conclusion notwithstanding its finding that neither violation was so “serious” as to warrant the denial of the renewal applications.
  • The FCC’s Media Bureau issued a one-year license renewal to an AM station for its failure to consistently remain on the air and its failure to timely place documents in its online public inspection file.  The station was also required to adopt a compliance plan to address the public file violation.  As to the station’s failure to stay on the air, the Bureau found that the station was assigned to the current licensee on November 16, 2019, and its license term ended on August 1, 2021. The Station was silent at the time its license was assigned, having gone silent on January 20, 2019, until January 6, 2020, and then again from November 11, 2021, to July 30, 2022 (i.e., for over 8% of its license term under the current licensee and 30% of its extended term while the renewal application was pending, warranting the short-term renewal).

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

  • On October 6, the FCC released a Second Notice of Proposed Rulemaking (Second Notice) proposing to strengthen the process for identifying foreign governmental entities that sponsor or “lease” broadcast programming.  The Second Notice was released in the wake of the D.C. Circuit’s July 2022 ruling in National Association of Broadcasters v. FCC, which rejected the requirement that broadcast licensees independently check two federal databases to verify whether an airtime lessee is a “foreign governmental entity” (see our Broadcast Law Blog article on the Court’s decision here).  While the Court decision did not change broadcasters’ obligation to obtain certifications from all buyers of program time that they are not foreign government representatives and have not been paid by foreign governments to produce the program (see our article here), the Second Notice proposes standardized language for such certifications.  It also provides interested parties an additional opportunity to comment on a long-pending petition for clarification on what constitutes leased program time, asking whether the FCC should establish a presumption that any broadcast matter that is two minutes or less in length, absent any other indicia, should be considered “advertising” that is exempt from the application of the foreign sponsorship identification rules. Comments and reply comments on the Second Notice will be due 30 and 45 days, respectively, following its publication in the Federal Register.
  • Global Music Rights (GMR) has sued three radio groups for not paying royalties for the public performance of songs written by songwriters who are now represented by GMR (see our article on the GMR lawsuit here).  GMR is a performing rights organization (a “PRO”) representing songwriters including Bruce Springsteen, Bruno Mars, Drake, Pharrell Williams, John Lennon, and The Eagles (with a full list of their songwriters available on their website here).  As these songwriters are no longer represented by ASCAP, BMI or SESAC, for a broadcaster to publicly perform any of these songwriters’ music, they generally either need a license from GMR or they need to directly license the music from the songwriters or their agents. The lawsuits seek $150,000 for each copyrighted work that was allegedly infringed – the maximum set out by the Copyright Act for “statutory damages,” i.e., damages that can be collected even without providing evidence of actual harm caused by the alleged copyright infringement. Commercial radio stations that play GMR music and have not entered into an agreement with GMR following the settlement earlier this year of its litigation with the Radio Music License Committee should enter into a license or consult with their attorneys to see if there is any way to otherwise receive permission to use GMR music.
  • On October 6, the FCC released a draft Notice of Proposed Rulemaking that, if adopted, would propose a number of steps designed to strengthen the security of the Emergency Alert System (“EAS”) and Wireless Emergency Alerts (“WEA”).  The draft NPRM is slated for consideration at the FCC’s October 27, 2022 regular monthly open meeting.  In general, the draft NPRM seeks comment on ways to strengthen the operational readiness of EAS and WEA, including, among other things, requiring EAS Participants (including broadcasters) to report to the Commission incidents of unauthorized access of its EAS equipment within 72 hours of when it knew or should have known that the incident occurred, and requiring EAS Participants to submit an annual cybersecurity certification that demonstrates how the participant identifies the cyber risks that it faces, the controls it uses to mitigate those risks, and how it ensures that these controls are applied effectively.  If the NPRM is adopted, comments and reply comments would be due 30 days and 60 days, respectively, after the NPRM is published in the Federal Register.
  • Also on October 6, the FCC released a draft Notice of Inquiry and Order that seeks information on the current use of the 12.7-13.25 GHz band (“12.7 GHz band”). Licensed services in the 12.7 GHz band include satellite communications and mobile TV pickup operations.  The draft Notice of Inquiry seeks information on how the FCC could encourage more efficient and intensive use of the band, and whether the band is suitable for mobile broadband or other expanded use.  The draft Order would extend the temporary freeze on applications in the 12.7 GHz band (see our reference to that freeze here).  If adopted at the FCC’s October 27 Open Meeting, comments and reply comments will be due 30 days and 60 days, respectively, after publication in the Federal Register.
  • The FCC’s Media Bureau (“Bureau”) issued a Notice of Apparent Liability for Forfeiture (“NAL”) proposing a fine of $13,000 against the licensee of two low power television stations, finding that the licensee apparently violated section 74.788 of the FCC’s Rules by filing its “license to cover” applications informing the FCC that it had completed construction of new facilities for the stations when that construction was completed, and for violating section 301 of the Communications Act by engaging in unauthorized operation.  Construction was apparently completed in 2018 but no license application was filed until 2022, a year after the construction permit for the new facilities expired. The Bureau was not persuaded to reduce or eliminate the fine by the licensee’s contention that it was not represented by counsel when it failed to timely file its license applications. It also found that imposition of a proposed fine is consistent with other recent FCC cases that have similar underlying facts (see, for instance, the cases we have noted in weekly updates here and here).
  • Due to damage associated with Hurricane Ian that was caused to broadcasters in South Carolina and Florida, the Media Bureau extended from October 11 to December 12, 2022 the deadline by which the impacted stations in those states must place their Quarterly Issues Programs Lists with material covering the previous calendar quarter in their public inspection file.  All other full-power stations should remember to upload Quarterly Issues Programs Lists to their public files by October 11.  Similarly, for Florida stations, the deadline to place their EEO public file report in their public inspection file is extended to December 12, 2022.

Global Music Rights (GMR) has sued three radio groups for allegedly playing GMR catalog songs but not paying the associated public performance royalties to GMR.  As we have written many times, GMR is a performing rights organization (a “PRO”) representing what they term in the complaints filed against these companies “an elite roster of just over 100 songwriters.” The complaints specifically note that the songwriters include Bruce Springsteen, Bruno Mars, Drake, Pharrell Williams, John Lennon, and The Eagles.  The full list of songwriters and songs represented by GMR is available on their website here.  As these songwriters are no longer represented by ASCAP, BMI or SESAC, for a company to publicly perform any of these songwriters’ music, they either need a license from GMR or they need to directly license the music from the songwriters or their agents (or fit into one of the limited exemptions that we wrote about here, exceptions that would typically not cover commercial radio broadcasting).

The lawsuits seek $150,000 for each copyrighted work that was allegedly infringed – the maximum set out by the Copyright Act for “statutory damages,” i.e., damages that can be collected even without providing evidence of actual harm caused by the alleged copyright infringement. The allegations against one of the companies suggest that the company played over 100 GMR compositions more than 20,000 times without obtaining a license.  While courts have discretion to order far lower statutory damages than those being sought here, even the threat of such damages has been enough to put many of the original file-sharing music sites out of business. Of course, in this case, these damages are being sought not from some company that provides unauthorized, unlimited downloads of copyrighted music, but from radio companies that presumably are already paying other performing rights organizations for the use of music. Continue Reading Lawsuits Filed Against Three Radio Companies Alleging That They are Playing Global Music Rights Songwriters Without a License – Background for the GMR Claims  

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

  • At its September 29 regular monthly open meeting, the FCC adopted a Notice of Proposed Rulemaking (NPRM) proposing to update the FCC’s technical rules for full power TV and Class A TV stations. The FCC determined that a review and update of these rules is necessary due to the digital transition, the incentive auction repack, current technology, and changes in Commission practices.  The NPRM seeks comment on, among other things, whether to eliminate rules that relate to analog operating requirements, and to similarly eliminate language in rules to remove references to digital television or DTV service (as all TV service is now digital); whether to delete outdated rules that are no longer valid given changes in other Commission-adopted policy, such as the elimination of references to the comparative hearing process to award and renew broadcast licenses which was eliminated by Congressional and FCC action over 25 years ago; and whether to make other updates to the Commission’s rules.  Comments and reply comments will be due 60 days and 75 days, respectively, after the NPRM is published in the Federal Register.
  • Also at its September 29 open meeting, the FCC adopted a Report and Order updating its Emergency Alert System, aiming to make alerts delivered over television and radio more informative and easier to understand by the public, particularly people with disabilities. The updated rules require broadcasters, cable systems, and other Emergency Alert System participants to transmit the Internet-based version of alerts when available, rather than transmitting the legacy version of alerts which often contain less information or information of lower quality.  The updated rules will also replace the technical jargon that accompanies certain alerts, including test messages, with plain language terms so that the visual and audio messages are clearer to the public.  The new rules will go into effect 30 days after the Report and Order is published in the Federal Register and provide a transition period for EAS participants to implement some of the required technical changes.
  • The FCC announced a virtual event, the “Video Programming Accessibility Forum – Emergency Information,” to be held on October 6, 2022, from 1:00 pm to 3:00 pm ET.  The forum will focus on accessibility issues surrounding emergency information in video programming, as well as advancements that may occur in the future.  The Forum will include two panels that will feature speakers representing television companies and consumer groups.  The agenda for the Forum is available here.
  • The Media Bureau issued a Memorandum Opinion and Order granting the request of an Iowa television station to determine that a Minneapolis television station was no longer “significantly viewed” in a television market that included counties in southern Minnesota and northern Iowa.  This order provided a good example of the issues that must be addressed in any petition to change the designation of a station as being significantly viewed.  That designation can be important as significantly viewed stations are not subject to the network nonduplication and syndicated exclusivity rules, meaning that cable systems in a market carrying the significantly viewed station might be duplicating the programming that is also carried by an in-market station.

Our Broadcast Law Blog last week published its monthly look ahead at the regulatory dates of importance to broadcasters coming up in October.  Also on the Blog, we published an article highlighting some of the state regulations that govern political advertising on digital and online platforms and another article looking in more detail at the significant proposed fines issued in the previous week to TV stations for running prohibited “program length commercials” in programming directed to children 12 and under.

With regulatory fees due today, September 30, 2022 (extended from September 28 because of the effects of Hurricane Ian and some other technical issues with fee payment by this FCC Public Notice, with the date for waiver requests similarly extended by this Public Notice), it is time to look ahead to October and some of the regulatory dates and deadlines that broadcasters have coming in the month ahead.

October starts with the TV license renewal deadlines for Television, Class A, LPTV, and TV Translator Stations in Alaska, American Samoa, Guam, Hawaii, N. Marianas Islands, Oregon and Washington State.  The deadline for filing is October 3 as the 1st of the month falls on a Saturday, thus extending the deadline to the next business day.  As we have previously advised,  renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for LPFMs and TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Note that your Broadcast EEO Program Report must include two years of Annual EEO Public File Reports for FCC review, unless your employment unit employs fewer than five full-time employees.  Be sure to read the instructions for the license renewal application and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.  Issues with the public file have already led to fines imposed on TV broadcasters during this renewal cycle. Continue Reading October Regulatory Dates for Broadcasters – Renewals and EEO Obligations, Quarterly Issues Programs Lists, Rulemaking Comments and More

In a recent state court decision, a King County judge in Washington State concluded that Facebook violated state political disclosure rules by not publicly providing information about the sale of political ads relating to state elections and ballot issues, as required by state law.  While there does not yet appear to be a written decision in the case, according to trade press the judge’s ruling rejected motions by Facebook parent Meta to have the law declared unconstitutional and to have penalties asserted by the State attorney general thrown out (see attorney general’s statement here).  We have written much on this blog about FCC regulations relating to political advertising and have noted how those rules do not apply to online platforms.  This case is but one example of how state laws are filling in some of the gaps in the regulation of political advertising.

As we wrote several years ago, the Federal Election Commission has only general rules requiring that paid online political advertising for federal offices have some identification of the sponsors of the advertising.  The FEC in 2018 started a rulemaking proceeding to determine if the “stand by your ad” certifications required in most federal broadcast and cable candidate advertising (the requirement which obligates the federal candidate to say “I’m X and I approved this message”) should carry over into the online world.  That proceeding has never been resolved – likely held up both because of the difficulty of resolving sensitive political issues at the FEC, and because of the inherent difficulty of adopting one-size-fits-all disclosure obligations for online media, where ads can range from TV-style videos to short tweets and textual messages to images displayed in virtual reality worlds.  Carrying over broadcast-style regulation to these diverse platforms is a tricky fit. Continue Reading As More Political Advertising Moves Online, State Laws Provide the Regulatory Framework for Disclosures and Recordkeeping

We kicked off our summary of last week’s regulatory actions for broadcasters with the news of several millions of dollars in fines imposed on over 100 television stations for apparent “program-length commercials” in children’s programming.  Last week’s Notice of Apparent Liability, a unanimous decision by all four FCC Commissioners, stemmed from a Hot Wheels Super Ultimate Garage ad that was aired a total of 11 times during a Team Hot Wheels TV program which ran 8 times during November and December of 2018.  The same programming was provided by Sinclair Broadcast Group to both commonly owned stations and stations owned by other companies.  Two years ago, the same program was the subject of a $20,000 fine on a station in Baltimore, apparently when the issue was first discovered and reported to the FCC (see our article about that fine here).  Given the number of stations on which the proposed fines were imposed last week, and the number of issues discussed in the Notice, we thought that we should give the Notice a more extensive look.

First, it is worth discussing the FCC’s concerns with what they term “program-length commercials.”  The Commission has, for almost 30 years, had a policy against “program-length commercials” – programs that feature characters who are also featured in a commercial that runs during the program.  The FCC has been concerned that children may not perceive the difference between a program and a commercial that runs in that program if both feature the same characters.  The entire program can be perceived as a commercial for the product.  If the whole program is perceived as promoting the product, then the program would exceed the commercial limits in children’s programming as set by Congress and incorporated in Section 73.670 of the rules – 10.5 minutes per hour on weekends and 12 minutes per hour on weekdays. Continue Reading A Closer Look at Multi-Million Dollar Proposed Fines for Program-Length Commercials in Children’s Television

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

  • The FCC’s Media Bureau issued a Notice of Apparent Liability proposing to fine licensees of over 100 television stations for exceeding the limits on commercialization in programming directed to children of ages 12 or under.  The FCC found that these stations aired “program length commercials” by running ads for Hot Wheels toys during a Hot Wheels program, which under FCC precedent makes the entire program into a commercial. Fines ranged from $20,000 for single station licensees up to $2,652,000 to Sinclair Broadcasting for running these commercials on 83 stations.  The licensees have 30 days to pay the proposed fines or to file a written statement either disputing the fine or seeking a reduction in the proposed amount.
  • The FCC issued an Order that denied a request for review of a Media Bureau decision rejecting an objection to the grant of a construction permit for a new FM translator to rebroadcast an AM station.  The objection argued that the FCC’s windows that authorized new FM translators for AM stations violated the Local Community Radio Act of 2010 (LCRA) by awarding construction permits for new FM translators without considering their effect on the potential for new LPFM stations. The Commission upheld the Bureau’s conclusion that the LCRA did not require that each new translator application be required to demonstrate that it did not preclude LPFM opportunities.  Instead, efforts by the FCC to limit translator applications, and a prior LPFM window, provided adequate LPFM opportunities.  Similar objections have been rejected by the FCC in the past (see our Broadcast Law Blog article on this issue).
  • The FCC’s request for comment on the methodology that it uses to allocate its employees to determine regulatory fees was published in the Federal Register, setting the dates for the comments. This proceeding is important as the allocation of FCC employees determines the regulatory fees paid by each industry regulated by the FCC.  The fees are set to reimburse the government for the costs FCC operations, allocated by the percentage of FCC employees whose time is spent regulating a particular industry.  The proceeding raises issues as to how FCC’s employees who perform functions that are not industry specific should be allocated to specific fee payers, including broadcasters.  Comments are due October 26, with reply comments due November 25, 2022.
  • The Commission issued a Public Notice announcing the dates for comments and replies on the FCC’s proposals for updating its rules for LPTV and TV translators.  These comments are on the FCC’s Order and Sixth Notice of Proposed Rulemaking (on which we previously reported) to delete or revise analog rules for LPTV and television translator stations that no longer have any practical effect or that are otherwise obsolete or irrelevant after the transition of these stations to digital operation.  Comments are due on October 24, and reply comments are due November 7, 2022.
  • The FCC’s Video Division issued a Forfeiture Order reducing a proposed fine on an LPTV station licensee that had constructed its station and commenced operations without filing until after its construction permit for the station had already expired an application for license to inform the FCC of the completion of construction.  The Division agreed to reduce the proposed fine from $6500 to $1300 based on the licensee’s ability to pay. The Division looked at precedent as to when fines are excessive, stating that fines should not exceed 8% of a licensee’s gross revenue and should normally not exceed approximately 5% of revenues, or lower when a licensee is losing money.  The $1300 fine was about 5% of the licensee’s revenue.
  • The Commission issued a Public Notice imposing a 180-day freeze on applications in the 12.7-13.25 GHz band.  This includes applications for new earth stations and applications for new stations or modifications to fixed or mobile BAS (broadcast auxiliary) stations to operate in the 12.7 GHz band.  The freeze was imposed while the Commission considers changes in the band to make more effective uses of this spectrum. There are limited exceptions to the freeze, including one for changes to broadcast auxiliary stations that can be shown to have no effect on reimbursement costs for any future user of any cleared spectrum.
  • In response to Hurricane Fiona and its impact on Puerto Rico, the FCC issued a Public Notice extending to September 30 the due date for Puerto Rico stations to file their 2022 regulatory fees.  All other stations still must pay their fees by September 28, 2022.  Another Public Notice gives Puerto Rico stations until November 14 to upload their Quarterly Issues Programs Lists for the third quarter of 2022 to their online public inspection file (for all other stations, those reports should be uploaded by October 11 as the normal October 10 deadline is a Sunday).
  • The Senate Judiciary Committee passed the Journalism Competition and Preservation Act designed to allow news creators, including broadcasters, to negotiate jointly without antitrust concerns with big Tech Platforms over the rates and terms by which those platforms use the news creators’ content.  A summary of the bill that was passed is available on Senator Klobuchar’s website.  To become law, the bill still must be passed by the full Senate and the House of Representatives before the current session of Congress ends in January.

 

As we wrote in several of our recent weekly summaries of regulatory issues for broadcasters, the FCC released a Public Notice the week before last announcing that regulatory fees must be submitted by 11:59 PM Eastern Time on September 28. This public notice set the deadline for the payment of fees established in the FCC’s Report and Order released just before Labor Day, which resolved objections to the higher fees that had been proposed for broadcasters by reducing those proposed fees somewhat (while still raising broadcaster’s fees on average about 8% over fees paid in prior years).  Since the Public Notice setting the fee payment deadline, the FCC has been busy issuing numerous notices, providing guides, and launching web pages with information about the fees and the procedures for paying those fees.

A notice that should be reviewed by all broadcasters owing fees is one issued on Friday when the FCC released another Public Notice setting the specifics for payment of the fees.  This notice details the payment process and requires that all payments be made through the FCC’s CORES database.  The notice also states that payments can only be made by credit cards, VISA or Mastercard debit cards, ACH transfers or wire transfers.  No cash or checks will be accepted. Continue Reading More on FCC Regulatory Fees Due on September 28 – Public Notices on Payment Procedures, Deadlines, Amounts, and Waivers