August may be a light month for regulatory dates, as everyone enjoys the end of the summer with many, including Congress, taking the last of their summer vacations.  But there are still dates to which broadcasters should be paying attention.  One that most commercial broadcasters should be anticipating is the order that will set the amount of their Annual Regulatory Fees, to be paid sometime in September before the October 1 start of the federal government’s new fiscal year.  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 the payment of the fees.  As we wrote here, the FCC has proposed to decrease fees for broadcasters from the amounts paid in prior years, but there have been some comments filed in opposition to that proposal. An Order concerning regulatory fees is currently on circulation among FCC Commissioners, so watch for the FCC decision making a final determination on those fees.

August has other routine regulatory deadlines.   August 1 is the deadline for Radio and Television Station Employment Units in California, Illinois, North Carolina, South Carolina, and Wisconsin with 5 or more full-time employees to upload to their online public inspection file their Annual EEO Public File Report. 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 5 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. 

Continue Reading August Regulatory Dates for Broadcasters:  Reg Fee Order, EEO filings, HD Power Increase Proposal, and More

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

  • On July 28, the United States Court of Appeals for the District of Columbia Circuit issued an opinion rejecting appeals of the Copyright Royalty Board’s (“CRB”) decision that set the 2021-2025 royalty rates that non-interactive webcasters must pay to SoundExchange for the digital public performance of sound recordings (see our Broadcast Law Blog article here for more on the CRB’s 2021 decision). These rates apply to all companies that provide a non-interactive internet-delivered stream of programming that includes recorded music, including broadcast simulcasters. There were three appeals before the Court.  NAB argued that broadcast simulcasters should pay a lower royalty rate than webcasters who provide a custom radio service allowing some control over the music that they hear.  As the simulcast listener cannot influence what songs they will be hearing (because the broadcaster is making those decisions), the NAB argued, simulcasters are not as much of a substitution for users buying music or using on demand services that pay higher royalties as are custom radio services where the user can influence, though not guarantee, the songs that they will hear. NRB-NMLC (the National Religious Broadcasters Noncommercial Music Licensing Committee) argued that their rates should have been lower as the CRB should have used the rates set for NPR as a benchmark to set rates for other noncommercial broadcasters, including noncommercial religious broadcasters. SoundExchange argued that the rates should have been even higher than those set by the CRB.  The Court found that none of these arguments merited reversal of the CRB’s decision, noting the high deference courts must give to decisions of an expert agency, particularly on technical issues like those explored by the CRB in this case.  Even though these appeals were pending, the rates went into effect in 2021 following the 2021 CRB decision.  Thus, this Court decision will not change the royalties that webcasters should already be paying.  Watch our Broadcast Law Blog for more details on this decision early next week.
  • Congress is currently considering the Communications, Video, and Technology Accessibility Act (CVTA) that would expand the FCC’s authority to require accessible video programming both on television and online.  The existing law (i.e., the 21st Century Communications and Video Accessibility Act) defines what programming must have closed captioning and audio description (providing an audio track that describes the visual action in a television program) and sets out requirements for making communications equipment accessible.  On July 25, Sen. Ed Markey and Rep. Barbara Eshoo introduced a revised version of the CTVA that substantially changes the prior version (see Senator Markey’s statement here citing the need to adopt new legislation to cover all platforms, including online platforms and video conferencing services).  If adopted, the CVTA as revised would, among other things, do the following:
    • Narrow the scope of closed captioning and audio description obligations on Internet Protocol-delivered (i.e., online) video to only English and Spanish-language video programming. 
    • Add obligations to ensure that closed captioning and audio description data remain with the video programming, and is provided in common formats, so that it is accessible wherever the content is viewed.
    • Add obligations for all devices that receive or play back video programming to include user interfaces that are accessible to individuals with vision, mobility, and speech disabilities (instructions and prompts on how to operate the device cannot be accessible only through text or other visual means).
    • For platforms that allow for the posting of user-generated content, the platform must provide technology for users to caption and do audio descriptions of their programming.  The platforms should also prompt users to add closed captioning and audio description to the content that they upload.
    • The audio description rules would be revised to include, to the extent practicable, requirements for audio description to convey, in the same language as the audio, the content of open subtitles if the subtitles convey information relevant to the program that is not conveyed in the audio of the program (presumably meant to require audio description to read subtitles if, for instance, those subtitles translated the audio of a foreign language used in isolated segments of a program where the audio is otherwise in English or Spanish).

These changes would be made to a bill that includes many additional new requirements for captioning and audio description of broadcast and online video.  If adopted by Congress and signed into law, the legislation requires the formation of a committee to recommend specific timetables and rules for implementation of these obligations.  The Committee will report to the FCC within a year of the adoption of the legislation, so that the FCC can adopt final rules implementing the legislation. 

  • The U.S. Senate Committee on Commerce, Science and Transportation approved the AM For Every Vehicle Act, passing it on to the full Senate for a vote (see statement of Senator Cruz, the Ranking Republican member of the Committee, applauding the Committee’s action).  As we wrote when the legislation was first introduced, if adopted, the Act would require that the National Highway Traffic Safety Administration conduct a rulemaking proceeding, to be completed within one year, to mandate that AM be included in all cars sold in the US as a standard feature, without any additional cost to new car buyers.  In addition, until the effective date of the new rule, the seller of any car without an AM radio would have to provide “clear and conspicuous labeling” to inform any buyer that the car does not have an AM radio.  The bill would also require the Government Accountability Office to study whether there was any other available technology to replicate the reach and effectiveness of AM in delivering emergency alerts to the public.  In a statement released on July 27, FCC Commissioner Geoffrey Starks “applaud[ed] Congress for its bipartisan action to ensure the continued reception of AM signals in all vehicles.”  Before becoming effective, not only is full Senate approval required, but House approval is also necessary (the bill has not yet been approved by the relevant House committee).  There currently is no timetable as to when the bill will be considered by the full Senate or by the House. 

Last week, at its regular monthly open meeting, the FCC resolved an issue that has been pending for years – what to do about Low Power TV stations operating on Channel 6 that use their audio to provide a radio service that can be heard on most radios at 87.7 -below the 88.1 official start of the FM dial, but still accessible on most FM radios.  The Report and Order dealing with this issue also resolved, at least for the time being, two other issues related to TV channel 6.  First, the FCC rejected a proposal to use channel 6 spectrum for FM radio in areas of the country where the spectrum is not being used for TV purposes.  The other issue that was resolved, at least temporarily, was a proposal to modify or abandon the protections that noncommercial educational (NCE) stations operating in the reserved NCE band (between 88.1 and 91.9 on the FM dial) must provide to nearby TV stations operating on channel 6.  While LPTVs providing FM service may have received the most attention in the trade press since the adoption of the order, those other two issues may actually have broader significance, and received less attention, so it is worth looking at all of the issues resolved by the FCC’s order. 

The Franken FMs, or “FM6” stations as the FCC referred to them, have been in existence for well over a decade (see, for instance, our articles here and here).  The “Franken FM” moniker was adopted seemingly because the service provided by these stations was stitched together from the use of LPTV stations that were in many markets all but dead economically, to provide a radio service that, in some cases, was quite vibrant.  Until 2021, the service from these stations was just a byproduct of analog TV’s use of an audio transmission standard compatible with FM radio on TV channel 6 spectrum, which is immediately adjacent to the bottom of the FM band.  In other parts of the world, FM extends below 88.1 so most FM receivers can be tuned to 87.7, the frequency on which these LPTV stations send their audio signals.  But when the July 2021 deadline came for LPTV stations to go fully digital, the analog FM audio was no longer part of their transmissions, so these stations had to come up with a hybrid system that transmitted their video signals (and the audio accompanying that video programming) in a digital format, but allowed the audio FM signals to also be transmitted in an analog format that FM radios could still receive.  The FCC allowed a limited number of stations to provide this hybrid service in conjunction with their conversion to ATSC 3.0 TV transmissions after their digital conversion, but until the recent order, only on a special temporary authority (STA) basis with a number of restrictions.  The recent order makes these station’s operations permanent, and lifts many of the restrictions.

Continue Reading TV Channel 6 – FCC Resolves Franken FM and Broader Questions of FM Use, But Issues About Interference from Reserved Band FM Stations Remain

The FCC last week released a Public Notice reminding TV stations and other video programming providers, including cable and satellite television providers, of their obligation to make emergency information accessible for all viewers.  With a few tweaks, the reminder is very similar to what the FCC has issued in past years.  This year, the reminder added smoke from Canadian wildfires as a possible emergency about which stations might be distributing important safety information, joining a list that was only two years ago updated to include pandemics.  The FCC notice is to remind video providers of their obligations to make emergency information accessible to all of their audience, even those with visual or auditory disabilities. 

The FCC notice, in addition to wildfires and pandemics, provides examples of the kinds of emergencies that the rules are intended to cover – including “tornadoes, hurricanes, floods, tidal waves, earthquakes, icing conditions, heavy snows, widespread fires, discharge of toxic gases, widespread power failures, industrial explosions, civil disorders, school closings and changes in school bus schedules resulting from such conditions, and warnings and watches of impending changes in weather.”  The Commission considers the “critical details” about such emergencies to include “specific details regarding the areas that will be affected by the emergency, evacuation orders, detailed descriptions of areas to be evacuated, specific evacuation routes, approved shelters or the way to take shelter in one’s home, instructions on how to secure personal property, road closures, and how to obtain relief assistance.”

Continue Reading FCC Reminder About Conveying Emergency Information in an Accessible Manner to All TV Audience Members

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.

  • Around this time of year, the FCC typically issues a Public Notice reminding TV broadcasters, cable operators, satellite television services, and other distributors of video programming of their obligations to make emergency information accessible to persons with disabilities.  This year’s Public Notice was released this week, and it is essentially identical to last year’s Public Notice (which we summarized on our Broadcast Law Blog), although it updates the list of examples of potential emergency information to include Canadian wildfires.  Included in the Public Notice were reminders that video providers have an obligation to run on a secondary audio channel an audio version of any textual alert message broadcast outside of news programming (see our articles here, here, here and here for more on this obligation), and that TV broadcasters who give actionable information aurally (e.g., “take cover now if you are in Anytown”) during the course of a broadcast about an immediate emergency must also provide that information in a visual form (e.g., crawls or even on whiteboards) so that persons with hearing difficulties can see that information (see our article here for more information).  Review the Public Notice for more information about the obligations of TV stations to make accessible the emergency information that they convey. 
  • The Commission’s Media Bureau issued a Public Notice reminding broadcast licensees of the importance of filing their biennial ownership reports on FCC Form 323 or 323-E, as required by the Commission’s rules.  Licensees of commercial and non-commercial full power television, Class A television, low power television, AM radio, and FM radio stations must file biennial ownership reports with the Commission in odd-numbered years.  Reports are due to be filed this year between October 2 and December 1, containing ownership information that is current as of October 1.  The Commission takes this filing seriously, and the Bureau has urged licensees to begin preparing their reports sooner than later.  We recently published a blog article discussing what licensees need to be aware of when preparing these reports, and the amount of work involved.
  • At its regular monthly open meeting on July 20, the Commission adopted a Report and Order permitting a limited group of 14 “TV6” LPTV stations to continue providing analog FM radio service on 87.7 MHz even though they have converted to digital operations for their video programming (the full text of the Report and Order is available here).  These LPTV stations have been able to continue to serve their analog radio audience during the course of this proceeding only through temporary authority granted by the Commission, following the July 2021 LPTV digital transition.  This Order formalized the continuation of the FM6 service.  The Report and Order also refused to adopt a proposal that would have allowed new FM radio stations to be licensed on channel 6 across the United States in locations where the channels are not being used to provide television programming, and postponed for a future proceeding any changes to the rules designed to prevent interference by reserved band educational FM stations to TV 6 operations (rules which some operators of noncommercial radio stations allege are no longer needed to protect digital channel 6 TV stations).
  • The Commission has confirmed via Public Notice that its Third Report and Order and Fourth Further Notice of Proposed Rulemaking in its Next Generation TV (“ATSC 3.0”) docket has been published in the Federal Register.  The Third Report and Order adopted rules clarifying the legal responsibility of simulcast and non-simulcast multicast streams where one licensee hosts the programming of another to make programming available in both the old and new transmission standards.  The order also extended the sunset dates until July 17, 2027 for the Commission’s “substantially similar” requirement (requiring that the primary video stream of a station that has converted to ATSC 3.0 be also broadcast on a multicast stream of a station still operating in the old standard) and the requirement for Next Gen TV stations to comply with the A/322 technical standard (Next Generation proponents wanting the ability to update the standard in the future without FCC approval but, for now, agreeing to this extension as there are no immediate plans for an update). The Fourth Further Notice sought comment on whether rules were needed to assure the availability of ATSC 3.0 Standard Essential Patents. The Federal Register publication sets comments and reply comments deadlines on the Fourth Further Notice as September 15 and October 16, 2023, respectively. Also, the rules adopted in the Third Report and Order go into effect on August 16, 2023, except for rules that adopt new paperwork requirements including changes to application forms, which will go into effect after approval of the Office of Management and Budget following a required Paperwork Reduction Act review required for all changes in any agency-imposed paperwork requirements. 
  • In Congress, the House Judiciary Committee approved the PRESS Act, designed to prevent federal authorities from subpoenaing information or testimony from journalists about documents gathered in preparing their stories and the sources on which they relied, except in cases involving terrorism or imminent violent acts.  This bill next needs to be considered by the full House of Representatives and the Senate (and signed by the President) before it becomes law.
  • On the enforcement front, the FCC’s Media Bureau issued an Order directing the licensee of a New Mexico LPTV station to pay a $1,500 fine for filing its license renewal application six weeks late. The Bureau likewise proposed to fine a Montana LPTV licensee $1,500, again for failing to file a timely license renewal application.  The Bureau also entered into a Consent Decree with a Florida AM licensee for not uploading material to its online public inspection file in a timely manner (the licensee agreed to adopt a compliance plan but suffered no financial penalty).  The Bureau entered into a similar Consent Decree with a North Carolina FM licensee for filing its license renewal application three and a half months late and failing to upload any issues/programs lists to its online public inspection file, and also imposed a $500 fine, a fine lower than usual as the station is a student-run noncommercial station.
  • The Media Bureau issued a Report and Order substituting UHF channel 20 for VHF channel 10 in the Table of TV Allotments at Elko, Nevada, and proposed to substitute channel 21 for channel 7 at Knoxville, Tennessee, both changes designed to provide the improved digital service that is provided by stations operating on UHF channels (channels 14 and above). 
  • The Commission’s Enforcement Bureau announced that it has issued nine warnings to  landowners and property managers in the Miami area for apparently allowing pirate radio operations on their properties. The FCC may issue a fine exceeding $2 million if it determines that a landowner continues to permit any individual or entity to engage in pirate radio broadcasting from any property that they own or manage.  The text of each warning is available here.  These large fines were made possible by the PIRATE Act, which also mandated increased FCC vigilance to police unauthorized radio operations. 
  • With ads already running for the 2024 elections, we published an article on our Broadcast Law Blog on the implications for media companies of political ads generated by artificial intelligence. 

Stories about “deepfakes,” “synthetic media,” and other forms of artificial intelligence being used in political campaigns, including in advertising messages, have abounded in recent weeks.  There were stories about a superPAC running attack ads against Donald Trump where Trump’s voice was allegedly synthesized to read one of his tweets condemning the Iowa governor for not supporting him in his Presidential campaign.  Similar ads have been run attacking other political figures, prompting calls from some for federal regulation of the use of AI-generated content in political ads.  The Federal Election Commission last month discussed a Petition for Rulemaking filed by the public interest group Public Citizen asking for a rulemaking on the regulation of these ads.  While the FEC staff drafted a “Notification of Availability” to tell the public that the petition was filed and to ask for comments on whether the FEC should start a formal rulemaking on the subject, according to an FEC press release, no action was taken on that Notification.  A bill has also been introduced in both the Senate and the House of Representatives to require that there be disclaimers on all political ads using images or video generated by artificial intelligence revealing that they were artificially generated (see press release here).

These federal efforts to require labeling of political ads using AI have yet to result in any such regulation, but a few states have stepped into the void and adopted their own requirements.   Washington State recently passed legislation requiring the labeling of AI-generated content in political ads.  Some states, including Texas and California, already provide penalties for deepfakes that do not contain a clear public disclosure when used in political ads within a certain period before an election (Texas, within 30 days and California within 60 days).

Continue Reading Artificial Intelligence in Political Ads – Legal Issues in Synthetic Media and Deepfakes in Campaign Advertising – Concerns for Broadcasters and Other Media Companies

While there are certainly policy issues throughout the media industry, it is often the small, routine issues that trip up broadcasters.  In the last week, there have been two public notices worth noting – one announcing the final transition of broadcast applications to the LMS database, and a second reminding broadcasters that Biennial Ownership Reports will be due by December 1 of this year. 

The LMS system has, unfortunately, had its share of troubles (see, for instance, our article here), but the FCC nevertheless released a Public Notice announcing that, effective  July 26, another set of broadcast applications will be moving to LMS – completing the transition of all applications for broadcast stations to LMS (with the exception of broadcast auxiliaries like Studio Transmitter links, which will continue to be processed by the FCC’s Wireless Bureau on Wireless Bureau forms, and not by the Media Bureau, which processes all other broadcast applications).  The new applications and other filings that are to be done through LMS primarily deal with AM applications, a big category of applications that had, in recent months, been done outside of any electronic filing system.  In addition, construction permits for LPFMs will be filed in LMS (which, obviously, is important for the upcoming November filing window),  as will certain required notifications which had previously  been done through emails.  So, starting July 26, 2023, you must file the following applications and notifications through LMS:

  • Application for Construction Permit for AM Broadcast Station
  • Application for AM Broadcast Station License
  • Application for Direct Measurement of AM Broadcast Station
  • AM Engineering Special Temporary Authorization (STA)
  • Extension of AM Engineering STA
  • Application for Construction Permit for New Class D Noncommercial Educational FM Broadcast Station
  • Application for Construction Permit for New Low Power FM Station
  • Equipment Test Authority Notification
  • Program Test Authority Notification
  • Restoration of Licensed Operation

In addition, this week the FCC issued another Public Notice, reminding broadcasters of the need to file Biennial Ownership Reports by December 1 of this year.  The Ownership Reports detail a company’s ownership and control as of October 1, 2023 (and can be filed any time after that date through December 1).  These Form 323 reports (323-E for non-commercial stations) are also filed in LMS.  Licensees of commercial and non-commercial full power television, Class A television, low power television, AM radio, and FM radio stations must all file these Ownership Reports by the December 1 deadline.  Note that these reports not only detail ownership and control of broadcast stations, but also report on the race and gender of station owners, and their other broadcast interests (see our article from 2021 about the importance the FCC attaches to these filings).  The LMS system was designed to track attributable owners through all of their broadcast holdings. Thus, each individual and entity who has an interest in your station needs to obtain its own FCC Registration Number (FRN).  The FRN is used in the reports of all stations in which that individual or entity has any interest.  Additional reports also need to be filed for each entity that has an attributable interest in any licensee.  The process of preparing these reports for entities with interests in an licensee and of obtaining  FRNs for all attributable entities and individuals can take time (e.g., you need the social security number for all individuals with interest in commercial licensees and the EIN for all entities – see this article for special rules for certain board members of noncommercial licensees), so you should start  to gather this information early. 

Pay attention to these FCC procedural matters, as it is often the little things that can cause the most problems for broadcasters. 

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 Senate Commerce, Science, and Technology Committee this week approved the nomination of Anna Gomez to fill the current vacancy on the FCC.  The Committee also approved the renominations of current Commissioners Starks and Carr.  These nominations now move to the full Senate for consideration.  If approved by the Senate, the appointments would be effective.  Timing on the consideration of the nominations by the full Senate is currently unclear.  We wrote on our Broadcast Law Blog about some of the issues that the Commission might consider if it has a full five members for the first time during the Biden Administration.
  • The Media Bureau released a Public Notice announcing that, commencing on July 26, 2023, all of the remaining broadcast applications not yet available in the FCC’s LMS database would be transitioning to that database. Thus, for the first time, the following applications should be filed in LMS starting on July 26:
    • Application for Construction Permit for AM Broadcast Station
    • Application for AM Broadcast Station License
    • Application for Direct Measurement of AM Broadcast Station
    • AM Engineering Special Temporary Authorization (STA)
    • Extension of AM Engineering STA
    • Application for Construction Permit for New Class D Noncommercial Educational FM Broadcast Station
    • Application for Construction Permit for New Low Power FM Station
    • Equipment Test Authority Notification
    • Program Test Authority Notification
    • Restoration of Licensed Operation
  • The Commission announced its tentative agenda for its August 3, 2023 regular monthly meeting.  Among the items to be considered at the meeting will be a Notice of Proposed Rulemaking looking to increase the power of the digital signals transmitted by FM radio stations, and to consider other changes in the rules for these “HD Radio” digital operations, including possibly simplifying the process for FM stations to have asymmetric side band power levels.  See the draft of the Proposed Rulemaking to be considered at the August meeting, here, and our blog article on the proposals by the NAB and Xperi for these changes when they were advanced late last year, here.  
  • FCC Chairwoman Rosenworcel issued a Press Release announcing that she has circulated for review by the other Commissioners, a Notice of Proposed Rulemaking to initiate an FCC review of the video programming marketplace. Comments would be sought on the obstacles faced by independent programmers seeking carriage by multichannel video programming distributors and on online platforms, how this impacts consumers, and whether there are actions the Commission could take to alleviate such obstacles. The FCC regularly assesses the state of competition in the Media Marketplace for its required annual report to Congress, and has been asking about the impact of online video providers in those annual reviews for over a decade (see our article here).  How this review will differ from those annual studies will be clearer when details of this proposal are available, once the Commissioners vote on the commencement of this proceeding. 
  • The FCC Media Bureau entered into a Consent Decree with the licensee an AM/FM/FM translator combination in New York state because of a transfer of control of the stations without FCC approval.  The licensee agreed to pay a penalty of $8,000 for its failure to seek FCC approval for the transfer of the controlling shareholder’s stock in the licensee to a trust which he controlled, and then appointing a new trustee to administer that trust soon after the trust was formed, all without FCC approval.  The majority shareholder died two months later, and thereafter the company sought FCC approval for the final disposition of the stock to the shareholder’s beneficiaries.  The fine was imposed because both the transfer of the stock to the trust and the subsequent appointment of a new trustee required prior FCC approval.  This case reminds broadcasters to check with counsel about the need for FCC approval for any transfer of a majority of the stock of a broadcast company, even when that transfer is to a trust for estate planning purposes. 
  • The Media Bureau issued a Notice of Apparent Liability proposing to fine the licensee of two digital television translator stations in the state of Colorado a total of $3,000 ($1,500 per station) for filing the stations’ license renewal application over a month late.  The FCC normally requires a base fine of $3,000 per station in this situation, but the Bureau reduced the fine “because, as television translators, the Stations are providing a secondary service” and an “important ‘fill-in’ service to areas that otherwise may be unable to receive over-the-air television signals.”

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 Senate Commerce, Science, and Technology Committee this week scheduled an executive session for July 12 to consider the nomination of Anna Gomez to fill the current vacancy on the FCC.  The Committee will at the same time consider the renominations of current Commissioners Starks and Carr.  If approved by the Committee, the nominations will move forward for consideration by the full Senate, though when any final Senate approval will occur is unclear at this time.  We wrote on our Broadcast Law Blog about some of the issues that the Commission might consider if it has a full five members for the first time during the Biden Administration.
  • One of the issues that will likely be considered by a full Commission is the 2018 Quadrennial Review of the broadcast ownership rules.  Among other issues, the 2018 Review is to review the current local radio ownership restrictions.  As we explained in December, the 2018 Review was to have been resolved by the end of 2022 but, instead, the FCC started the 2022 Review without having resolved the prior one.  In April, as we noted here, the NAB filed a Petition for Mandamus, asking the US Court of Appeals to order the FCC to resolve the 2018 proceeding.  On Friday, the Court ordered the FCC to respond to the NAB Petition, giving the FCC 30 days to respond. 
  • The FCC’s Enforcement Bureau entered into a Consent Decree with the operator of a Low Power FM station in Arizona, resolving issues about this noncommercial station running commercials for its sponsors.  LPFM stations, like other noncommercial stations, are limited to “underwriting announcements” for those who donate to the station – announcements that simply identify the sponsor and its business without any “calls to action,” qualitative claims, price information, or similar statements that would promote the sponsor or its business.  For more information on the FCC’s underwriting rules, see our article here.  The Consent Decree required a $20,000 payment to the government, and imposed requirements that the licensee adopt a compliance plan to avoid future issues, report on any future violations of the rules, and file with the FCC yearly reports on its underwriting for the next three years.  If the licensee violates the underwriting rules in that period, it will owe an additional “suspended penalty” of $41,500, suggesting that the fine would have been significantly higher had the Consent Decree not been negotiated. 
  • The FCC’s Media Bureau proposed the allocation of new FM channels at three Hawaii communities: Koloa, Puhi, and Lihue.  Comments on these proposals are due August 20, 2023, with reply comments due September 12.  If allocated, these channels will be available for application in a future FM filing window.
  • The Media Bureau also approved the change in channels of TV stations in Coos Bay, Oregon and Kalispell, Montana, changing the authorizations of existing stations from VHF channels to ones in the UHF band, channels that are preferred for digital broadcasting.
  • The Senate Judiciary Committee has scheduled a hearing for July 12, 2023 to consider copyright issues posed by the use of Artificial Intelligence.  We wrote about some of those issues in articles on our blog, here and 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.

  • Chairwoman Rosenworcel announced that the FCC, at its open meeting on July 20, intends to allow 13 “Franken FM” or “FM6 stations” (i.e., LPTV stations operating on TV channel 6 with an analog audio service that can be received on FM radios at 87.7 MHz) to continue to provide their existing analog radio service as an “ancillary or supplementary service.”  LPTV operators had asked the FCC to permit this continued operation after these stations’ digital conversion as the service requires that an analog audio signal be embedded in the digital Channel 6 LPTV station transmissions.  The FCC’s tentative decision will grandfather these 13 operations, allow these stations to increase facilities on a non-interference basis, and allow them to be sold; while imposing some FM-like service obligations on the audio services (including public file requirements that ordinarily do not apply to LPTV stations).  If adopted, the item also precludes future FM6 operators, declines to allow FM operations on Channel 6 in parts of the country where it is not now used for television, and postpones any decision on relaxing interference standards between TV channel 6 and NCE FM stations on the low end of the FM band until further study is done.  For more details on the issues that were addressed in this proceeding, see our Broadcast Law Blog article here.
  • The Commission recently issued a Public Notice announcing that it is taking comments on a Petition for Rulemaking filed by REC Networks in which REC proposes rules to govern a possible future FM translator filing window.  Among REC’s proposals are a limit on the number of applications permitted by any one applicant and limits on the sale of any construction permit that is granted in any new filing window.  Comments on the REC Petition are due on July 26, 2023 and will give the FCC the opportunity to decide whether to further advance these proposals through a formal rulemaking process. 
  • The FCC has published its All-In Pricing for Cable and Satellite Television Service Notice of Proposed Rulemaking (NPRM) in the Federal Register, setting comment dates.  Comments are due July 31, and replies are due August 29.  The NPRM proposes to require cable operators and direct broadcast satellite (DBS) providers to specify the “all-in” price for video service in their promotional materials and on subscribers’ bills.  Cable operators and DBS providers could supplement the aggregate price with an itemized explanation of the elements that compose that single price, but the single aggregate price would have to be made clear.
  • The Federal Trade Commission released updated Guides Concerning the Use of Endorsements and Testimonials in Advertising (“Endorsement Guides” or “Guides”).  The Endorsement Guides advise businesses on what practices may be unfair or deceptive in violation of the FTC Act.  The updated Guides enhance the disclosure requirements for promoting goods online, including in social media, requiring disclosures whenever anyone is paid to promote a product or receives anything of value (including a free use of the product) for their promotion.  The new FTC policies also cover any attempt to distort consumer reviews of a product; clarify the existing obligations that disclosures of the promotion of a product be “clear and conspicuous;” better explain the potential liability of advertisers, endorsers, and intermediaries; and highlight that child-directed advertising is of special concern.  The policies specifically address endorsements made by broadcaster’s on-air employees.  The FTC also released an updated frequently asked questions document,  FTC’s Endorsement Guides: What People are Asking. 
  • Senator Maria Cantwell, Chair of the Senate Commerce, Science and Transportation Committee, sent a letter to the FCC Chairwoman, urging her to update the record on whether video streaming services that carry broadcast TV signals are MVPDs subject to FCC rules, such as must carry and retransmission consent.  This letter adds to the pressure that some broadcasters have already put on the FCC to consider whether the FCC should regulate these “virtual MVPDs.” Only two months ago, Chairwoman Rosenworcel said in a letter to Senator Grassley that  she did not believe that the FCC had jurisdiction to review this issue (see our reference to that letter in a previous weekly update here). 
  • The Republican Attorneys General from 16 states sent a letter to the trade associations representing electric car manufacturers asking that AM radio be preserved in their members’ cars because of the importance of AM to the dissemination of public safety information.  This effort ties into other actions aimed at preserving AM in cars (see our blog article on federal legislative efforts, here).  
  • The Copyright Royalty Board’s released its decision approving the royalties to be paid by noncommercial broadcasters to ASCAP, BMI, SESAC, and GMR for the public performance of musical works licensed by these organizations.  These rates are applicable from January 1, 2023 through the end of 2027.  There are different rates set out in the decision for NPR/CPB affiliates, for stations affiliated with colleges and other educational institutions, and for other noncommercial broadcasters, including religious noncommercial operators.  We wrote about these rates when they were first proposed, here. 
  • The FCC’s Media Bureau proposed to fine an FM translator station $7,500 due to the station’s unauthorized substitution of antenna different than what the Bureau had previously approved.  Section 74.1251(b)(2) of the FCC’s Rules requires FM translator licensees to request and receive authority prior to making any changes to their antenna system.  The licensee here conceded that it had substituted an antenna different in manufacturer, size, and weight than the one specified in its license application approved by the Bureau.  The station stated that it substituted a lighter antenna for a heavier one so it could mount the antenna on the tower without constructing additional bracing.  In a separate decision, the Bureau found that the unauthorized substitution violated the FCC’s rules, rejecting the station’s argument no prior authority was needed to substitute an antenna capable of achieving the same directional pattern and mounted in accordance with manufacturer instructions.  The combined base fine in the FCC’s rules for the station’s rule violations (i.e., one for failing to file for consent to use the substitute antenna and the other for operating with that antenna without FCC consent) is $13,000.  The Bureau, however, reduced the fine to $7,500, citing the fact that the station, a translator, only provides only a secondary service.
  • The Media Bureau and the FCC’s Office of Managing Director jointly issued an Order to Pay or Show Cause to a South Carolina AM station, directing it to pay overdue regulatory fees or risk revocation of its license.  The FCC’s records indicated that the station currently has unpaid regulatory fee debt of $1,309.54 for FY 2010; $1,355.22 for FY 2012; $1,361.69 for FY 2013; $1,314.33 for FY 2014; $1,280.78 for FY 2015; $188.24 for FY 2016; and $1,394.42 for FY 2022.  The Order gives the station sixty (60) calendar days to file documented evidence that full payment of all outstanding regulatory fee debt has been made, or show cause why the payment is inapplicable or should be waived or deferred.  The Order warns the station that failure to do either in a timely manner may result in revocation of the station’s license.

For a look ahead at regulatory dates of importance to broadcasters in July and early August, see our article here.