July is relatively light on broadcast regulatory dates, but the Quarterly Issues/Programs List deadline on July 10 is one that applies to all full-power broadcasters and Class A TV stations.  As set forth below, there are a few other dates worth noting this coming month – with more to come in August.

July 10 is the deadline by which all full-power television, full-power radio and Class A television stations must upload to their online public inspection files their Quarterly Issues/Program Lists for the second quarter of 2023.  The lists should identify the issues of importance to the station’s community and the programs that the station aired in April, May and June that addressed those issues.  As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its community.  See our article here for more on the importance of the Quarterly Issues/Programs list obligation.

July 10 is also the deadline by which noncommercial educational stations must upload to their public inspection files documentation of any on-air fundraising benefitting third parties that interrupted their normal programming from April 1 through June 30, 2023.  This obligation applies to noncommercial educational stations not affiliated with NPR or PBS that conducted such third-party on-air fundraising.  For more information about this requirement, see our article here.  Also on July 10, Class A television stations should upload to their online public file documentation of their continuing eligibility for Class A status during the period from April 1 through June 30, 2023.

Chairwoman Rosenworcel announced that the FCC, at its open meeting on July 20, intends to announce its decision resolving whether it will continue to allow “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 provide their existing analog radio service by authorizing it as an “ancillary or supplementary service.”  LPTV operators had asked the FCC to bless the post-conversion operation of an analog audio signal embedded in the digital Channel 6 LPTV station transmissions so that these FM broadcasts can continue, which the FCC has tentatively decided to do with respect to 13 LPTV stations that had provided such service in the past.  For more details on this item, see our blog article here

July 31 is the deadline by which commercial television stations with locally-produced programming whose signals were carried as distant signals by at least one cable or satellite system in 2022 may file royalty claims for compensation with the Copyright Office in Washington, DC.  Cable and satellite systems are obligated to pay these royalties pursuant to their compulsory copyright license to carry distant TV signals on their systems. Stations that do not file claims by the July 31 deadline will not be able to collect royalties for distant carriage of their signals during 2022.  The filing process consists of two-steps: (1) if you did not do so last year, you must register through the Copyright Royalty Boards’s eCRB system and then (2) file your claim electronically through eCRB by July 31, 2023.  

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 applications by any one applicant and limits on the sale of any construction permits that are 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).  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 would be able to complement the aggregate line item with an itemized explanation of the elements that compose that single line item. 

Looking forward to early August, 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 a station’s website, if it has a website. 

For those radio employment units in North Carolina and South Carolina, the Annual EEO Public File Report brings a new requirement, as this is the mid-point of those stations’ renewal term.  As we wrote here, this means that the FCC will conduct its EEO Mid-Term Review of those radio employment units with 11 or more full-time employees.  When radio stations in these states upload their Annual EEO Public File Reports, they must also check a new checkbox in the Settings section of the FCC-hosted public inspection file stating whether or not they have 11 or more full-time employees in their employment unit, so the FCC knows which clusters to review as part of the Mid-Term Review.  All other radio groups will need to complete this step as well prior to their Mid-Term Review.

As always, this list of dates is not exhaustive.  Note, too, that deadlines can change.  Always review these dates with your legal and technical advisors, and note other dates not listed here that may be relevant to your operations. 

Continue Reading July Regulatory Dates for Broadcasters – Quarterly Issues/Programs Lists, Franken FMs, Copyright Distant Signal Copyright Claims, 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.

  • The FCC released late on Friday a Third Report and Order and Fourth Further Notice of Proposed Rulemaking resolving many regulatory issues related to the ATSC 3.0 “Next Gen” television conversion.  Among the issues addressed were the following:
    • The FCC generally adopted the proposals it advanced in 2021 in its Next Gen Multicast TV Further Notice of Proposed Rulemaking dealing with the responsibility for programming on “lighthouse” signals – multicast streams of programming from a station that has converted to ATSC 3.0 that are aired on a “host” station still broadcasting in the current ATSC 1.0 transmission system so that viewers who do not yet have TV sets capable of receiving the new transmission standard can continue to receive their favorite TV programming (for more background on this issue, see our blog article here). Among other things, the modified rules clarify that the originating station (and not the host station) is responsible for regulatory compliance for the multicast lighthouse stream being aired on the host station, and they give the Commission clear enforcement authority over the originating station in the event of a rule violation on the hosted multicast programming stream.  
    • In addition, the FCC extended through July 17, 2027 the rule that required that the lighthouse signal be “substantially similar” to the primary video stream of the ATSC 3.0 signal.  That rule had been set to expire this year, but the FCC believed that viewers needed more time to be guaranteed that they can watch the same programming they watch today whether or not they have a TV that can receive the new ATSC 3.0 signal.
    • It also retained the current A/322 standard for new ATSC 3.0 transmissions. That standard was also supposed to expire this year, but as no party is ready to adopt a new standard, it was retained with the FCC believing that it “remains essential at this time for protecting both innovators and investors in the 3.0 space, allowing stakeholders to develop and purchase equipment with confidence.”  Developers of ATSC 3.0 want to be able to update the standard without FCC approval in the future (the same flexibility that other tech companies, including mobile phone operators, have) but, until July 17, 2027, the current standard will remain in place.
    • The FCC also asked for additional comments on whether it needs to regulate essential patents requiring that patent holders commit to licensing them on reasonable and non-discriminatory terms.  Commenting parties are asked to address a variety of matters to as to whether these essential patents need to be regulated; how the FCC proposal could promote or inhibit advances in diversity, equity, inclusion, and accessibility; and whether the FCC has authority to regulate in these areas.
  • The Media Bureau announced a filing window for applications for construction permits for new low power FM stations. The filing window will open at 12:01 am EDT on Wednesday, November 1, 2023, and close at 6:00 pm EST on November 8, 2023. The window is available for LPFM proposals in the entire FM band (channels 201-300). This will be the first LPFM filing window since 2013, and thus the Bureau encourages potential applicants to begin familiarizing themselves with the application process, including updated forms. The Bureau will provide detailed information about filing procedures by public notice in advance of the filing window.
  • The Senate Commerce Committee held a hearing on the nomination of Anna Gomez to fill the current vacancy on the FCC.  The hearing also addressed the renominations of current Commissioners Starks and Carr.  Questions on broadcast matters included whether the FCC had properly handled the now terminated proposed acquisition of TEGNA by Standard General.  The agenda and a recording of the hearing are available on the Committee’s website, here.  The Chair of the Judiciary Committee suggested that the Gomez nomination could be approved in July, though Republican Senators reserved judgment.  We wrote about some of the issues that a full FCC might consider, here. 
  • The Communications and Technology Subcommittee of the House Committee on Energy and Commerce held an oversight hearing on FCC matters, asking the current FCC Commissioners questions about a variety of issues.  On broadcast matters, the Chairwoman said that she did not currently have any plans to revisit Media Modernization matters that eliminated a number of broadcast rules during the administration of past FCC Chairman Pai.  The Chairwoman also said that she could not comment on the recently ended Standard General TEGNA acquisition as there were still pending contested issues in that proceeding. Opening statements and other materials related to the June 21 hearing are available on the Subcommittee website here.
  • The FCC released a Notice of Proposed Rulemaking in which it proposes to require cable operators and direct broadcast satellite providers to specify the “all-in” price for video service in their promotional materials and on subscribers’ bills.  Comments and reply comments will be due 30 days and 60 days, respectively, after publication of the Notice in the Federal Register.  Concurrent with the release President Biden issued a statement praising the action noting that it is “only the latest action taken by my Administration to crack down on junk fees in order to increase transparency and bring down costs for hard working Americans.”   The Federal Trade Commission also is looking at “junk fees” in a separate proceeding.
  • The Media Bureau entered into a Consent Decree with the licensee of an FM station in Hawaii to resolve two unauthorized transfers of control of the station’s license.  The licensee was comprised of four 25% stockholders.  In 2017, the estate of one the stockholders transferred its 25% interest to one of the licensee’s other 25% stockholders, thus giving that stockholder negative control (50%) of licensee, without seeking the FCC’s prior consent as required.  Subsequently, in 2020, the two remaining 25% stockholders executed a stock transfer agreement whereby the first stockholder agreed to transfer all of his stock to the second stockholder and give him negative control, also done without required FCC consent.  The Consent Decree directs the licensee to pay a $10,000 civil penalty to the U.S. Treasury.
  • The Media Bureau also proposed to fine the licensee of three digital television translator stations in the state of Washington a total of $4,500 ($1,500 per station) for filing the stations’ license renewal application over two months late.  The FCC normally requires a base fine of $3,000 per station in this situation, but the Bureau reduced the fine “because, as digital 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.”  In separate decisions, the Bureau proposed to issue the same fine to a second licensee of three digital television translator stations (again in the state of Washington) and to a digital television translator licensee in Oregon for filing untimely renewals.
  • The Media Bureau denied an Oregon FM licensee’s request for reconsideration of the dismissal of its license renewal application.  The licensee had Special Temporary Authority (STA) to operate at a transmitter site that expired on December 1, 2018, but apparently continued to operate at the STA site well after the expiration date of the STA. The Bureau held that held that the station’s license had expired pursuant to section 312(g) of the Communications Act because the licensee was not operating with authorized facilities at an authorized location for more than 12 months.  On reconsideration, the Bureau rejected all of the licensee’s arguments for renewing its license, finding that the result was consistent with the FCC’s prior decisions that a station operating for more than a year from an unauthorized site, even one that had once been authorized by an expired STA, still triggered the Section 312(g) cancellation of a license not operating for more than a year.
  • The Media Bureau dismissed a Florida LPFM station’s request that the Bureau reconsider, on grounds of harmful interference, its grant of the license application of an FM translator station.  The Bureau dismissed the LPFM station’s request on procedural grounds, finding that the station had failed to participate during earlier stages of the proceeding as required under the FCC’s rules.  In a related but separate decision, the Bureau proposed to fine the same LPFM station $2,500 for operating with facilities at variance with its license.  The station’s license required operation with a single bay antenna, but the station had been operating with a two-bay antenna for its entire license term.  The Bureau was not persuaded by the station’s explanation that it had mistakenly specified a single bay antenna on its license application.

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 Tuesday, the Communications and Technology Subcommittee of the House Committee on Energy and Commerce held a hearing, “Listen Here: Why Americans Value AM Radio.” The hearing focused on recent legislative proposals to require the inclusion of AM radio in all cars sold in the U.S.  Witnesses presented the perspectives of broadcasters, public safety entities, and the auto industry.  AM radio (and broadcast radio in general) received strong support from Congressional representatives on the Subcommittee, although a few of the Representatives expressed reluctance to adopt a government mandate to require that cars offer AM radio.  The representative of the auto industry would not give a firm commitment that AM radio will continue to be provided in cars, only promising that the industry would look for some way to ensure free emergency alerts would reach the public. For our thoughts on what the hearing said about the future of over-the-air radio in the car, see our Broadcast Law Blog article here.
  • The FCC’s Public Safety and Homeland Security Bureau issued a Public Notice changing FCC policies so that State Emergency Communications Committees (SECCs) can more quickly amend their State Emergency Alert System Plans, making it easier for stations to change the source they monitor for EAS alerts.  Rule changes include:
    • SECCs now can submit to the FCC an updated monitoring assignment in their EAS Plans at any time, instead of limiting changes to the 30 days prior to the SECC’s annual update deadline, which had been the policy before.  This will make it largely unnecessary for waivers to implement changes at other times.  In fact, the Bureau urged EAS Participants to begin to immediately monitor new EAS sources when they can no longer receive an old source reliably, without waiting for formal approval.
    • Any EAS Plan filing – whether an annual updated plan or an amendment outside the regular update cycle – may contain monitoring assignments that EAS Participants are in the process of carrying out but have not yet fully implemented. 
  • The FCC dismissed an application by Forum Communications seeking approval for it to acquire a Top 4 rated TV station in the Fargo market where it already owned another Top 4 station.  The FCC permits such combinations if a public interest showing is made. The application was filed in January 2022.  It argued that the public interest would be served as the buyer would provide significantly more local news programming on the station to be acquired, and that the station combination would allow the company to compete more effectively against another Top 4 combination in the market (between a full-power and a low power station) and against digital media which has a significantly larger advertising market share than either TV group. The Commission never acted on the application, and the contractual obligation to close the transaction within eighteen months passed, prompting the seller to exercise its option to terminate the sale.  Given the recent termination of the TEGNA deal, it appears that this Commission is reluctant to approve any deal proposing what might be seen as any significant ownership concentration, local or national.  Parties contemplating any significant broadcast transaction should carefully consider the meaning of these cases.  See this press report for more information about the termination of this deal.
  • In two decisions, the FCC addressed mutually exclusive applications from the 2021 window for new noncommercial stations in the reserved portion of the FM band.
    • In a Memorandum Opinion and Order, the full Commission selected the winning applicants in ten groups of mutually exclusive applications and tentatively awarded them construction permits for new NCE FM stations.  The ten tentative selectees approved by the Commission propose to serve the following communities: Pelham, GA; Hobbs, NM; Gonzales, TX; Charlotte Amalie, VI; Burlington, IA; Paintsville, KY; Narragansett Pier, RI; Wells, MI; Grand Forks, ND; and West Lake, FL.  In six of the ten cases, the Commission rescinded an initial tentative selectee and approved a new winner chosen from the remaining applicants in the group of mutually exclusive applications.  The facts leading to the Commission’s decisions vary widely from group to group, and thus will not be summarized in detail here.  However, in most of the groups, losing applicants were cited for failing to properly document their claim of eligibility for points under the points system criteria used to choose between mutually exclusive applications, or for untimely or inaccurately reporting their other broadcast interests.  The Order provides good examples of the Commission’s application of its points system.
    • In a separate case, the Media Bureau dismissed the application of the tentative selectee for a new NCE FM station at Key West, FL, and instead approved a mutually exclusive applicant for a new NCE FM station at Stock Island, FL.  The application was dismissed because it omitted from its application the name of an individual who was listed in Florida corporate documents as the Vice President of the applicant.  Because a corporate officer is deemed to hold an attributable interest in an NCE FM application, the fact that the omitted Vice President had been alleged to have operated an illegal pirate radio station should also have been reported.  The investigation into the pirate radio operation was relevant to whether the omitted officer was qualified to be an FCC licensee, as the Bureau, in connection with the investigation of the pirate, directed that information about the investigation be filed with any application in which the omitted officer held an attributable interest if filed within five years of the investigation. The Bureau was not persuaded by the applicant’s claim that the omitted officer never really performed any duties as Vice President and that his name was erroneously included on the corporate documents.
  • The FCC’s Enforcement Bureau issued a Notice of Violation to an AM station after an agent in the Bureau’s Portland, OR office heard, on a single occasion, that the station’s on-air station identification failed to identify the station’s community of license.  Legal top-of-the-hour station identifications must state the station’s call letters and the station’s city of license, with nothing in between (except, at the option of the station, the frequency of the station).  The Notice gave the station twenty days to submit a written statement explaining its violation and any corrective actions that have since been taken.  The Bureau reserved the right to pursue further enforcement action against the station after it reviews the station’s explanation, including the possible issuance of fine.

AM radio (and broadcast radio in general) received strong support from Congressional representatives during this week’s hearing before the House Committee on Energy and Commerce’s Communications and Technology subcommittee. Significant time was spent on recognizing AM radio’s important role  in the emergency communications network, both in delivering emergency alerts from the EAS system and in conveying additional information of importance to the public through news and public affairs programming (see the initial statement of J Chapman, a broadcaster based in Indiana who testified on behalf of the AM industry, and the statement of an official of the New Jersey State Police, who talked about the importance of AM in providing emergency information).  Virtually all the representatives urged car companies to retain AM in cars.  Despite this widespread support, some of the legislators expressed reluctance to adopt a legal mandate to require AM in cars, particularly representatives who have philosophical reservations about the government mandating business decisions.  That position was of course highlighted by the testimony of the representative of the automotive industry.  In the day’s discussion of these questions, some clues to the future of entertainment in the car may have emerged.

AM and public safety advocates at the hearing argued that AM radio needed to be protected.  They emphasized that AM provides the backbone of the emergency alert system due to the ability of high-powered AM stations to cover vast distances unimpeded by terrain obstacles. Even the sole representative of the automobile industry on the panel agreed that, at this point, over the air radio provides the best and most reliable source of free emergency alerts. The additional contextual information provided by news/talk AM stations was also emphasized, as stations can go beyond simply delivering a government issued emergency alert by providing in its programming the details and relevant context in any emergency.  While not central to the discussion, especially in the later parts of the hearing, there was also talk of the importance of providing a free audio service to the public for more than just emergency programming, particularly a service that often programs to underserved groups.  Protecting the investment of radio operators was also mentioned, as removing AM from cars would vastly decrease the potential audience for most of these stations. The desire to continue providing service to the public from AM stations was the broadcaster’s vision of the future of entertainment options in the car.

Continue Reading The Congressional Hearing on AM Radio – A Look at the Future of Audio Entertainment in the Car?

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 House Energy and Commerce Committee, through its Communications and Technology Subcommittee, announced that its hearing on the AM For Every Vehicle Act will be held June 6, at 10:00 AM EST.  A list of witnesses and an outline of the issues is set out in a pre-hearing memo released by the Committee staff.   The hearing will address the important emergency information provided by AM radio and will be live streamed online at https://energycommerce.house.gov/.  See this article on our Broadcast Law Blog for more information about the pending legislation to mandate AM radio be included in every car sold in the US. 
  • The long-running battle by Standard General to acquire TEGNA’s television stations appears to have ended, as the Administrative Law Judge presiding over the hearing ordered by the FCC’s Media Bureau has now issued an Order terminating the hearing.  The Judge found the hearing to be moot because, as we noted last week, TEGNA announced that the deal had ended with the expiration of Standard General’s financing commitment, and TEGNA was dismissing the FCC application for approval of the sale (find previous updates on this proceeding, and the issues set for hearing, on our Blog here and here).  The Media Bureau presumably will now dismiss all the associated applications, bringing the entire matter to a close.  It remains to be seen whether the Office of Inspector General will take up calls from Republican leaders in Congress to investigate the FCC’s handling of this case.  But, even if such an investigation happens, it will not provide a process for changing the outcome.  
  • On the political broadcasting front, Rep. Yvette Clark (D-NY) introduced H.R. 3044, the REAL Political Advertisements Act, which would require political ads to include a disclosure if generative AI was used to generate any image or video footage in the ad.  The bill currently has no co-sponsors.  A companion Senate Bill, S. 1596, was introduced by Sen. Amy Klobuchar (D-MN) and is co-sponsored by Sen. Cory Booker (D-NJ) and Sen. Michael Bennet (D-CO).
  • In two orders, the Media Bureau has proposed to fine the licensee of an AM/FM combination in Clinton, Iowa, a total of $19,000 for violations of the FCC’s rules.  The order on the AM station proposed a fine of $11,000 because the station allegedly (1) failed to upload (timely or otherwise) all required materials to the station’s online public inspection file, and failed to include a link to the station’s public file on the station’s website (as required by the FCC rules); (2) incorrectly certified in its license renewal application that its public file contained the public file documentation required by the FCC’s rules; and (3) engaged in unauthorized operation of the station by operating at less than 90% of its authorized power for more than 30 consecutive days without asking for special temporary authority to do so, as required by FCC rules.  The proposed FM fine was $8,000 for similar public file and renewal application certification violations.
  • The Media Bureau imposed a $750 fine on an LPTV station for failing to timely file its application for a license to cover its digital operation, and thereby engaging in unauthorized operation for over two years.  As we have noted on our Blog, including in recent weekly summaries, once a station is constructed pursuant to a construction permit, the permittee must file a “license to cover” informing the FCC of the details of the completed construction (see our articles here, here, here, and here). The Bureau had originally proposed to fine the station $6,500 but, upon reviewing the station’s financial information, determined that this amount would be an excessive percentage of the station’s gross revenue and thus reduced the fine to $750, notwithstanding the station’s “pattern of failing to fully reply to the [Bureau’s] inquiries.”
  • Demonstrating that no landowner is immune from FCC prosecution if a pirate radio station operates from their property, the FCC this past week sent a letter to the New Mexico State Land Office and the operators of New Mexico’s Spaceport America (from which Virgin Galactic launched people into space in 2021) that they could be liable for a much as $2,316,034 if they do not, within 10 days, provide evidence to the FCC that no unauthorized radio operations were continuing from their site.  It was alleged that unauthorized operations were conducted on two FM frequencies from the site.
  • On our Broadcast Law Blog, we published our look ahead at the regulatory dates of importance to broadcasters in June and early July.

Though school is out for many, the FCC does not take a summer recess.  Instead, regulation continues.  While the pace of new FCC regulatory issues for broadcasters has slowed, perhaps pending the confirmation of a new Commissioner and the return of the FCC to full strength, there are still regulatory matters in June worth watching.  Some are routine, others look more to the future – but all are worth watching just the same. 

One of the routine regulatory deadlines comes on June 1, as it is the deadline for Radio and Television Station Employment Units in Arizona, District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming 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 a station’s website, if it has a website. 

Continue Reading June Regulatory Dates for Broadcasters – EEO, Rulemaking Comments, AM Congressional Hearings, 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.

  • The Biden Administration nominated Anna Gomez to be an FCC Commissioner.  She will fill the open seat to which Gigi Sohn had been nominated until she asked that her nomination be withdrawn after a prolonged debate over her confirmation.  Gomez is experienced in government circles, having worked at NTIA (a Department of Commerce agency dealing with spectrum and other communications matters) and recently at the State Department preparing for international meetings on telecommunications issues.  She has also a history in private law practice. The President also renominated Commissioners Starks and Carr with the intent that Congress consider all three nominations simultaneously and vote on them as a package. If all are confirmed, the FCC would, for the first time under the Biden Administration, be at full strength with a 3-2 Democratic majority.  For a more detailed analysis of the issues that a full Commission could consider, see our Broadcast Law Blog article here.
  • We previously reported that the FCC had sought comment on NAB’s petition for an extension of the existing waiver of the requirement that television broadcasters aurally describe visual but non-textual emergency information, such as maps or other graphic displays. That requirement, from Section 79.2(b)(2)(ii) of the Commission’s rules, requires that emergency information provided visually during non-newscast video programming be made audibly accessible to individuals who are blind or visually impaired through the use of a secondary audio stream.  Compliance with the rule has been waived as there is no technology to automate the audio description of this visual emergency information.  The FCC’s Media Bureau this week issued a Memorandum Opinion and Order extending the waiver by 18 months (less than the two years NAB had requested), subject to the condition that NAB file quarterly reports that include information about the efforts to find a solution to implement the requirements and the steps that the NAB and broadcast industry are taking to assist those that are blind or visually impaired to have access to emergency information while new technologies are being developed.    
  • In our last weekly update, we reported that the AM For Every Vehicle Act was introduced in both the US Senate and the House of Representatives, proposing to mandate that carmakers include AM radio as a standard feature in all cars sold in the United States (for more details on this proposed legislation, see this article on our Blog).  Since then, in a bipartisan statement issued on May 23, the leadership of the House Energy and Commerce Committee (specifically Cathy McMorris Rodgers (R-WA), Frank Pallone, Jr. (D-NJ), Bob Latta (R-OH) and  Doris Matsui (D-CA)) announced plans to hold a Committee hearing in early June “on the importance of AM radio installation in new cars.”  It appears that the hearing will focus at least in part on gathering evidence demonstrating the value of the news, weather and other critical services that AM radio provides.
    • Seemingly in response to the legislative interest in AM, Ford Motors reversed its prior plans and announced that AM radio will be included in all 2024 Ford and Lincoln vehicles, and that it will offer a software update that will restore AM broadcast capability for owners of Ford’s vehicles that presently have no such capability.
  • It appears that Standard General’s battle to acquire TEGNA’s television stations may be coming to an end (find previous updates on this proceeding on our Blog  here and here).  As we’ve previously reported, the FCC designated the associated FCC applications for hearing before an Administrative Law Judge (ALJ) to determine whether the sale would impose noncompetitive retransmission rates on consumers and injure the viewing public by reducing news service.  On May 24, Standard General filed a Status Report in which it acknowledged that the merger agreement underlying the applications was terminated on May 22, the date on which the transaction’s financing expired.  Nonetheless, Standard General continues to argue that the designation for hearing was improper and states that it “remains prepared to vindicate its rights as necessary, including through participation in the hearing and attendant discovery process.”  But it appears that Standard General is now fighting the battle alone: on May 25, TEGNA and CMG Media Corporation, which was to exchange some stations with Standard General as part of the transaction, filed their own status reports in which they each stated that they will no longer participate in the hearing and intend to withdraw their underlying applications.  These filings make it likely that the hearing will be terminated as moot as there will no longer be any FCC applications to consider.
  • The Media Bureau granted three unopposed market modification petitions filed by a television station in Bridgeport, CT, which is in the New York DMA.  In so doing, the Bureau restored communities to the station’s market, thus restoring the station’s must carry rights in those communities (rights that had been lost in prior market modification cases).  The Bureau noted that the station commenced broadcasting from a second Distributed Transmission System (DTS) facility at the Empire State Building, thereby enabling the station’s signal to reach the communities at issue.  The Bureau found that the station’s expanded signal coverage, along with evidence as to shopping and labor patterns in the communities that showed that the station’s programming was relevant to their residents, entitled the station to credit under the FCC’s “localism” criterion in market modification cases.  In addition, the Bureau found that that the station’s arguments were reinforced by the station’s history of cable and satellite carriage in areas in or adjacent to the communities.
  • The FCC’s Media Bureau denied applications for two new full-power noncommercial FM stations at St. Louis Park, Minnesota, and dismissed both applications.  Both applications were filed during the FCC’s November 2021 filing window for new NCE stations.  The applicant contended that its applications represented a possible solution to its long-standing need to relocate its existing LPFM station that suffered from interference from other full-power stations. But neither application met the FCC’s spacing requirements to other existing FM stations.  The Bureau found that the applicant had not demonstrated in either application that its proposed site was the least short-spaced available, or that a waiver was necessary to provide service to an underserved community or that the proposed antenna could not be directionalized to avoid contour overlap.  In addition, the Bureau found that the applicant’s desire to improve its technical facilities was not a unique or compelling circumstance that would justify waiver of its spacing rules.
  • A list of pending applications by radio broadcasters seeking city of license changes was published in the Federal Register, setting a July 24, 2023 public comment deadline.  Changes include proposals to move stations in the following communities: Decatur, AL, to Mooresville, AL; Daytona Beach, FL, to Port Orange, FL; Apopka, FL, to Fairview Shores, FL; Richmond, VA, to Ashland, VA; Cimarron, NM, to Maxwell, NM; Lamesa, TX, to Tarzan, TX; Batavia, NY, to Kendall, NY; Oxford, AL, to Ohatchee, AL; Wheatland, WY, to Laramie, WY; and Hattiesburg, MS, to Marrero, LA.

This week brought the news that the Biden administration has nominated Anna Gomez for the open Democratic FCC seat that Gigi Sohn was to fill until she asked that her nomination be withdrawn in March, after a prolonged debate over her confirmation.  Gomez is experienced in government circles, having worked at NTIA (a Department of Commerce agency dealing with federal spectrum use and other communications matters) and recently at the State Department preparing for international meetings about communications issues.  She also has a history in private law firm practice.  Together with her nomination, the President renominated Commissioners Starks and Carr.  Starks’s term has already expired but he continues to serve under the allowable one year carry-over.  Carr’s term will expire at the end of this year. If all three nominees are confirmed at some point this year, the FCC would, for the first time in the Biden administration, be at full strength.  What issues would a full FCC be able to tackle?

In January, we looked ahead at some of the regulatory issues that are unresolved for broadcasters, and many remain on the table.  So let’s look at those issues again.  Perhaps the most significant issue is the resolution of the 2018 Quadrennial Review to assess the current local broadcast ownership rules and determine if they are still in the public interest.  As we wrote in December, the FCC has already started the 2022 review, as required by Congress, even though it has not resolved the issues raised in the 2018 review.  This has brought a rebuke from the NAB, which has sought a “mandamus” from the US Court of Appeals – mandamus being an order from the court telling the FCC to fulfill its statutory obligation to complete the Quadrennial Review that should have been done by the end of 2022.  Even if such an order is granted, the court will not tell the FCC how or what to decide, but only to decide the issues.  So a new FCC would have to review the open issues.  What are those issues?

For the radio industry, they include the potential relaxation of the local radio ownership rules.  As we have written, some broadcasters and the NAB have pushed the FCC to recognize that the radio industry has significantly changed since the ownership limits were adopted in the Telecommunications Act of 1996, and local radio operators need a bigger platform from which to compete with the new digital companies that compete for audience and advertising in local markets.  Other companies have been reluctant to endorse changes to the ownership rules – but even many of them recognize that relief from the ownership limits on AM stations would be appropriate.  Those positions were echoed in the comments filed in the newly started 2022 Quadrennial Review filed back in March. 

The Quadrennial Review also looks at the dual network rule that currently forbids the common ownership of two of the Top 4 TV networks.  Also under consideration is the potential for the combination of two of the Top 4 television stations in any local market.  Common ownership of such stations is only permitted now through what is essentially a waiver process.  The FCC has asked if there are specific criteria that could be adopted to evaluate those requests (e.g., a combination of the 3rd and 4th stations would be allowed if their market share did not exceed a specific percentage of the market – or the share of the higher rated stations in the market) so that applicants would have more certainty about whether a proposed combination would be allowed.  These issues are all fully briefed and argued to the FCC and are just awaiting an FCC decision. 

While not directly part of the Quadrennial Review process, the question of the national cap on television ownership could be a subject that a new FCC could review.  Television companies are limited from having an attributable interest in television stations reaching more than 39% of national television households.  There are several television companies that have exceeded that threshold by relying on the “UHF Discount” that counts UHF stations as reaching only half the households in their markets, a legacy from the days of analog television broadcasting, when VHF stations (those operating on Channels 13 and below) were the preferred means of transmission.  Once the conversion to digital occurred, the tables were reversed, as UHF channels are generally acknowledged to have superior transmission capabilities, an advantage that continues in the new ATSC 3.0 “Next Gen TV” transmission standard. 

Recognizing that reversal, the last Democratic Commission abolished the UHF discount (see our article here) only for that action to be reversed by the Pai administration (see our article here).  The Commission under Republican Chairman Pai questioned whether the FCC had the authority to repeal the UHF discount, as that discount had been in place when Congress enacted the 39% cap.  That administration also started a proceeding to review the national ownership cap for television companies, asking if the FCC could amend that cap on its own (or whether it needs authority from Congress) and, if the FCC has such authority, what the limits on national ownership should be.  That proceeding has never been resolved, and this new Commission has not yet been faced with a large acquisition that would for the first time put any company over the limit that would exist but for the UHF discount.  The recent TEGNA case, controversial for other reasons, did not raise this issue.  With a full Commission, this issue may well be considered. 

Also on the horizon for TV regulation are several open proceedings to look at the transition to ATSC 3.0.  One that particularly seems ripe for decision is the Further Notice of Proposed Rulemaking seeking comment on the interplay between multicast channels and the ASTC 3.0 conversion – particularly in the context of the legal responsibility for “lighthouse” ATSC 1.0 programming streams left behind on the digital multicast stream of a host station by a station that has converted to the new transmission standard.  The Pai Commission proposed to make clear that the legal responsibility for the lighthouse signal would be the responsibility of the programmer, not the host station (see our article here from an earlier stage in the proceeding discussing the issue).  While that seems like a commonsense standard, issues about cable carriage and multiple multicast streams have clouded the proceeding, and it has yet to be resolved.  Also pending is a proceeding to determine when to terminate the requirement for the duplication of programming of the primary broadcast stream on both the Next Gen and lighthouse legacy digital streams. 

Also pending is the final resolution as to whether the “Franken FMs” or “FM6 stations” – LPTV stations operating on TV channel 6 with an analog audio service that can be received on FM radios at 87.7, will be allowed to continue to operate (see our article here).

EEO issues for both radio and TV also could be considered by a full-strength FCC.  The FCC has requested comments on bringing back the annual EEO Form 395, reporting on the race and ethnicity of broadcast employees (see our article here).  A rulemaking initiated by the last Commission looking at broader reform of the EEO rules is also still outstanding and could be given further consideration (see our article here). 

Political broadcasting is always an issue.  The requirement for quicker disclosure of advertising orders placed by political candidates and issue advertisers has been brought to the foreground by the hundreds of consent decrees signed by broadcasters across the country in past two years (see our articles here and here).  Disclosure requirements about the funding of political advertising backers has also been considered in previous administrations – and could make a return in this one (see our articles here and here). Watch for other clarifications of the political broadcasting rules that could come this year in the relative lull between election years.

For radio, there are various technical proposals that are still on the table for possible consideration.  Proposals for a Class C4 FM service (here) and the limited origination of programming on FM boosters through “zonecasting” (here) are pending and could be given further consideration.  The C4 proposal is only at the Notice of Inquiry stage, so any final rules, before being adopted, would have to be put out for public comment in a Notice of Proposed Rulemaking. In contrast, the zonecasting proposal has already been the subject of a Notice of Proposed Rulemaking.  The FCC’s zonecasting proposals have been vigorously contested, opposed by many prominent broadcast companies while aggressively supported by the company that developed the system.  This proceeding could be considered by the Commission this year.  Proposals for increased power for HD subchannels for FM radio are also on the table for possible action later this year.

Enhanced public file obligations have also been proposed to obligate broadcasters to use a standard certification form for buyers of program time on a station to assess whether those buyers are acting as agents of a foreign government, with the FCC proposing that these certifications be added to the public file whether or not the programmer says that they have any connection to the foreign government (see our article here).  The FCC is also considering requiring broadcasters to certify regularly as to the steps they are taking to secure their EAS systems from hacking and other online breaches (see our articles here and here). 

These are just some of the issues that could be considered by a full-strength FCC.  As we’ve seen in the past, new issues that we have not even considered could pop up at any time.  Watch in the next few months as Congress holds hearings on the new nominations to see what other issues are raised in these confirmation proceedings.  Some have speculated that the confirmation process could be completed early this summer but, as we’ve seen with that process already during this administration, there can always be surprises, and the process can change over time.  So keep watching! 

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 May 17, the AM For Every Vehicle Act was introduced in both the US Senate and the House of Representatives, proposing to mandate that carmakers include AM radio, as a standard feature, in all cars sold in the United States.  The mandate would take effect after rules are issued by National Highway Traffic Safety Administration, which would be required within one year of the bill’s passage. For more details on this proposed legislation, see this article on our Broadcast Law Blog.
  • The FCC released a Report and Order and Notice of Proposed Rulemaking regarding the 2023 FCC annual regulatory fees to be paid in September by broadcasters and other FCC-regulated entities.  Regulatory fees reimburse the government for the cost of operating the FCC and are allocated based on how many FCC staff employees work on matters relating to a particular industry.  The FCC tentatively concluded that certain employees whose costs had in the past been included in broadcasting’s allocation do not in fact have any role in regulating broadcasting – so their costs have been reallocated to other regulated industries.  That reallocation has resulted in a proposed decrease in the 2023 fees to be paid by broadcasters.  For example, the FCC proposes to reduce the per population fee used to set the amount TV stations owe by approximately 11.5% from last year. The FCC also included a more graduated schedule for radio fees, further reducing fees on some of the smallest radio stations.  For more on the fee proposal, see our recent article on our Blog.  Comments on the proposed fees will be due June 14, 2023, with reply comments due June 29, 2023.  Expect a final decision on the fees around Labor Day so that the fees can be paid before the October 1 start of the government’s new fiscal year. 
  • The FCC’s Media Bureau released a Public Notice announcing that it was repealing the COVID-related guidance released in March 2020 that allowed broadcasters and local cable operators to offer free advertising time to advertisers and other local businesses without those spots being considered in calculating the Lowest Unit Charge accorded to candidates in “political windows,” 45 days before a primary and 60 days before a general election.  During the early days of the COVID emergency, broadcasters used free advertising schedules, not directly tied to any advertising contract, to fill gaps in their advertising schedules and to promote businesses who were still operating.  With the pandemic emergency now declared over by the federal government, the FCC believes that this specific accommodation can come to an end.  For more information on this decision, see our article here.
  • The FCC reinstated the license of an FM translator in Vermont, overturning a decision of the Audio Division of the FCC’s Media Bureau which had canceled the license under Section 312(g) of the Communications Act.  That section requires automatic termination of a broadcast license if a station is silent for more than 12 consecutive months.  The decision was significant in that it accepted the licensee’s sworn statements attesting to the station’s operation within the one-year period as adequate evidence that the station had been operating within one year of going silent, even without documentary evidence of electric bills, logs, recordings, and similar items that the Audio Division’s decision had indicated was necessary.  The Commission also concluded that the translator’s operation at an apparent variance from its authorized facilities, but at its authorized transmitter site, would not subject it to automatic license cancellation under Section 312(g), distinguishing past cases where licenses were cancelled when stations resumed operations from an unauthorized transmitter site.  The Commission did direct the Bureau to consider appropriate enforcement action (e.g., a possible fine) for the licensee’s failure to seek authorization to operate at variance from its licensed facilities
  • The FCC continues its enforcement actions against pirate radio operations, with the FCC’s San Francisco Office issuing a Notice of Illegal Pirate Radio Broadcasting about an unlicensed FM broadcast station in the vicinity of Wasilla, Alaska.  The FCC notified the owner of the property from which the pirate was operating that the FCC could issue a fine of up to $2,149,155 if the pirate radio broadcasting continued.  The FCC gave the property owner 10 days to respond that they are no longer permitting pirate radio broadcasting on their property, and to identify the individual(s) who were engaging in the unauthorized broadcasting. 
  • The FCC’s Media Bureau and Office of Managing Director issued an Order to Pay or Show Cause why an FM station license should not be cancelled for failure to pay its 2013, 2014, and 2015 regulatory fees.  Consistent with the FCC’s prior practice, the Order gives the licensee 60 days to either submit evidence that all debts have been paid or show cause why the payment should be waived or deferred, or its license will be revoked.
  • This week, the Supreme Court issued opinions on two subjects of interest to media companies. 
    • In two cases (here and here), it avoided addressing the scope of Section 230 of the Communications Decency Act, which protects online platforms from legal liability for content created by others and posted to their sites.  These two cases, seeking to hold Twitter and YouTube liable for postings by terrorist organizations, were thought to have the potential to limit the insulating effect of Section 230.  As we’ve noted on our blog (see, for instance, our articles here and here), some have called for a narrower interpretation of the liability shield afforded by Section 230.  In these decisions, the Court instead found that the claims could be rejected on other grounds, avoiding the Section 230 issue.
    • In a major copyright decision, the Court found that Andy Warhol’s prints of the late musician Prince infringed on the copyright of the photographer whose picture was the basis of the prints. The Court found that the Warhol prints were not meant as commentary or criticism of the original photograph and were not “transformative” as they were used for a commercial purpose to illustrate a magazine article about Prince in the same way that the original photograph was used.  Thus, the prints were found not to constitute “fair use.”  Look for more on this decision on our Broadcast Law Blog later this week.