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

  • At the NAB show last week, FCC Chairwoman Jessica Rosenworcel announced a new public-private initiative led by NAB to guide the next steps in the development of NextGen TV.  Per the FCC’s associated press release, “The Future of TV” initiative “will work to identify a roadmap to orderly transition ATSC 1.0 to ATSC 3.0-based services as smoothly as possible for consumers. . . Working groups are expected to focus on addressing backwards compatibility and its impact on consumers; the final conditions needed to complete the national transition to ATSC 3.0; and consideration of the post-transition regulatory landscape.”  Further details about the initiative will be provided in future FCC announcements.
    • In remarks delivered to the NAB Convention, Commissioner Simington suggested that current broadcast regulation was a result of an outmoded picture of the competitive landscape and that, rather than viewing broadcasters as adversaries, regulators should work with broadcast companies to help them overcome some of the current regulatory headwinds to allow them to take advantage of the new technical opportunities.
  • In the continuing battle by Standard General to acquire TEGNA’s television stations (find previous updates on this proceeding on our Broadcast Law Blog noted here), the US Court of Appeals denied the parties request for “mandamus,” a request which had asked for a Court Order telling the FCC to terminate the hearing ordered by its Media Bureau and immediately act on the pending application for approval of the sale.  Thus, the hearing will continue despite Standard General’s claim that, if the deal is not closed in May, its financing commitment will run out. 
  • The FCC’s Enforcement Bureau issued an advisory reminding regulated entities (including broadcasters) of the need to seek and receive Commission approval prior to assignments or transfers of control through mergers, sales or otherwise and prior to other changes in ownership that result in reportable new foreign interest holders or reportable increases in existing foreign ownership interests.  The advisory cautions that failure to comply with these requirements may result in monetary fines, divestiture of ownership, continuing reporting obligations, and/or revocation of the underlying license(s).  As we’ve noted in past articles on our Blog (see, for instance, our articles here and here), when foreign ownership of broadcast stations has been approved by the FCC, changes in that foreign ownership may need FCC approval even when they do not constitute a change in control. 
  • On April 18, 2023, the FCC announced in the Federal Register that the Office of Management and Budget (OMB) approved changes to FCC forms which allow LPTV, TV translator, and Class A stations to operate with a Distributed Transmission System (DTS).  On January 19, 2021, the FCC released an Order creating new DTS rules that permitted DTS signals to spill over beyond a broadcast station’s authorized service area.  The rule changes afforded broadcasters more flexibility in the placement of their DTS transmitters to enhance their signal capabilities (for more details about the new DTS rules, see our Blog article here.)  The rules became effective May 24, 2021, except for LPTV, Class A, and television translator stations where changes to FCC Forms were necessary, and those changes had to be approved by OMB.  With this week’s notice, effective May 18, 2023, LPTV, television translators, and Class A stations may propose DTS operations by filing the appropriate new Schedule of FCC Form 2100. 
  • The FCC adopted a Report and Order in which it updated its Part 74 rules for LPTV and TV translator stations, to reflect the termination of analog operations of LPTV/translator stations as of July 13, 2021.  The rule changes do not materially affect the basic regulatory obligations of LPTV or TV translators now operating with digital facilities. The Report and Order does make changes including updating geographic coordinates in the rules for purposes of protecting land mobile stations; requiring LPTV stations to comply with station identification requirements with some modifications, including an amendment for LPTV/translator alphanumeric call signs to account for exhaustion of all two letter call sign combinations for some channel numbers; retaining the rule related to the LPTV Pilot Project Digital Data Services Act; and requiring a minor modification application for all station relocations not just those over 500 feet. Some rules will become effective 30 days after publication of the Order in the Federal Register, while others requiring new forms or new paperwork will become effective after OMB approval when the FCC publishes notice of that approval in the Federal Register.  
  • The Media Bureau dismissed one of two mutually exclusive applications for a construction permit for a new NCE FM station at Darien, Georgia.  The applications were filed during the November 2021 NCE FM filing window.  In a petition to deny, the surviving applicant contended, with unrefuted documentary evidence, that its competitor was ineligible to hold an NCE FM license because it is neither incorporated in the state of Georgia nor recognized as an unincorporated association under Georgia law.  The Bureau agreed and dismissed the competing applicant’s application.
  • The Media Bureau, in response to a third-party objection, dismissed an application to assign an FM translator license, rescinded the grant of that station’s authorization, and deleted the station’s call sign.  The assignor of the FM translator had initially obtained its authorization by filing, in 2017, a contingent construction permit application for a new FM translator to be used with an AM station that it had just filed to acquire.  The Bureau granted the translator permit application conditioned on common ownership of the FM translator and AM stations.  The Bureau found that notice of the consummation of the assignment of the AM license to the translator applicant had not been filed by the FCC-specified deadline and that the parties had not requested an extension of that deadline.  The Bureau thus found that the applicant had not complied with the terms of its conditional authorization, rescinded its grant of the translator’s authorization, and terminated the translator’s operating authority.
  • As it has over the past several weeks with respect to various television translator licensees that filed their renewal applications late, the Media Bureau proposed to fine a Nevada television translator licensee a total of $7,500 ($1,500 per license) for late-filed renewals.  The Bureau noted that its rules specify a base fine of $3,000 for such violations, but in this case (as in the other recent cases) decided to reduce the fine to $1,500 because translators only provide secondary service and provide important “fill-in” service to areas that otherwise may be unable to receive over-the-air television service. 
  • The Media Bureau entered into a consent decree with CSN International (CSN) to terminate the Bureau’s investigation into CSN’s compliance with Section 1.17 of the Commission’s rules in connection with its acquisition of certain radio station licenses.  Section 1.17 prohibits any person from providing, in any written statement of fact to the FCC, material factual information that is incorrect.  On each of the assignment applications, CSN listed only the members of its governing board’s executive committee and did not disclose the remainder of its governing board.  As it had not reported all the Board members who each has an attributable interest in the licensee, its certifications that all statements made in the applications were complete was false.  As a result, the consent decree requires CSN to pay a fine of $10,000.

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 has requested comments on NAB’s petition asking the Commission to grant a two-year extension of the May 26, 2023 deadline by which broadcasters must comply with Section 79.2(b)(2)(ii) of the Commission’s rules, which requires television broadcasters to provide an aural description of visual, non-textual emergency information, such as radar maps or other graphics, on the station’s SAP channel, i.e., a secondary audio stream.  The FCC has already issued such an extension three times since the initial compliance deadline of May 26, 2015, as the NAB contends that there still is no workable technology that can perform the functions required by the rule (see our Broadcast Law Blog article here from the last extension 5 years ago).  NAB asserts that the waiver will allow it to explore other possibilities to develop a system to provide accurate audio descriptions of pictures and graphics about emergency situations, solutions possibly including those afforded by artificial intelligence (AI)-based systems.  NAB further claims that the impact of the waiver will be mitigated by the fact that critical details of an emergency will usually be provided in accompanying textual crawls, which are already aurally described and accessible. Comments are due April 24, reply comments are due May 1. 
  • As we’ve previously reported, the FCC has issued a Notice of Proposed Rulemaking (NPRM) requesting comment on a variety of proposed rules implementing the Low Power Protection Act (LPPA).  The LPPA provides certain low power television stations in small markets with a “limited window of opportunity” to apply to become Class A television stations with primary status, protecting them from interference from new or improved full-power stations.  The FCC is seeking comment on interpreting the eligibility requirements for stations seeking this status. The FCC this week issued a Public Notice confirming that, by virtue of the NPRM’s publication in the Federal Register, comments and reply comments on the NPRM will be due May 15 and June 13, respectively.
  • The FCC issued an Order on Reconsideration, Report and Order and Memorandum Opinion and Order addressing some of the rules that permit unlicensed wireless devices to operate in TV “white spaces” (i.e., portions of the TV broadcast bands where frequencies are not in use by licensed services or other protected entities).  In the Order on Reconsideration, the FCC upheld its prior decision (see our articles here, here and here) to permit mobile white space devices to operate at 16 watts EIRP and narrowband white space devices to operate in all areas rather than limiting them to “less congested” areas.  In the Report and Order, the FCC (i) permits mobile white space devices to comply with the same hourly interval for rechecking the database of protected users that the Commission recently required for most other white space devices, and (ii) continues to require narrowband white space devices to re-check the white space database once per day rather than once per hour.  The Commission also refused to allow the white space database to use terrain-based models, such as the Longley-Rice Irregular Terrain Model (Longley-Rice) to determine which TV channels are available for white space device operation at a particular location. Instead, the Commission will require that white space databases continue to use only the current model for determining TV channel availability.
  • The FCC’s Enforcement Bureau issued a Revocation Order revoking the license of an FM station in Pennsylvania.  The licensee had pled guilty to five crimes, consisting of one felony (criminal use of a communications facility) and four related misdemeanors, but received probation instead of a prison sentence.  The Media Bureau subsequently initiated a hearing before an FCC Administrative Law Judge (ALJ) to determine whether, based on these crimes, the licensee’s license should be revoked.  The licensee, who chose to represent himself, repeatedly failed to comply with the hearing’s procedural requirements so the Judge found that he had waived his right to a hearing and terminated that hearing.  In this Order, the Enforcement Bureau revoked the licensee’s license finding that the criminal convictions and the licensee’s disregard for the hearing rules supported a finding that the licensee lacked the character qualifications to hold a Commission license.
  • As it has over the past several weeks with respect to various television translator licensees that filed their renewal applications late, the Media Bureau, in two separate decisions, has proposed to fine a Nevada translator licensee a total of $32,000 ($1,500 per license) for late-filed renewals.  The Bureau noted that its rules specify a base fine of $3,000 for such violations, but in this case (as in the other recent cases) decided to reduce the fine to $1,500 because translators only provide secondary service and provide important “fill-in” service to areas that otherwise may be unable to receive over-the-air television service.   For similar reasons, the Bureau also proposed to fine an Oregon LPTV station $1,500 for failing to file a timely license renewal application.
  • The Media Bureau reinstated FM channel 290A at Hardwick, Vermont to the FM Table of Allotments.  This channel had previously been deleted as it received no bids in previous FM auctions, and no one expressed an interest when the FCC asked if the channel should be retained.  However, one company expressed late interest in the Hardwick allotment.  That party subsequently filed a petition for reconsideration of the deletion, repeating its interest in the allotment and primarily citing the COVID pandemic as the reason why it did not participate in competitive bidding for the Hardwick channel and why it failed to file its expression of interest in time.  In this week’s decision, the Bureau accepted the party’s late expression of interest (noting that the proceeding was uncontested, and no prejudice would occur to other parties) and reinstated the Hardwick allotment, which will be available for application in a future FM window.
  • The Media Bureau also allotted FM channel 272A to Dennison, Ohio as its first local service.  The Bureau found that Dennison, population 2,709, qualified as a “community” for allotment purposes (it has, for example, a mayor, city council, fire and police departments, zoning board, finance, public safety, economic development, and human resources committees).  The Bureau rejected objections to the allotment based on claims that the allotment would displace a co-channel LPFM station operating in a neighboring community, notwithstanding the many letters of support filed by the LPFM station’s listeners.  The FCC pointed out that LPFM stations are deemed secondary to “drop-in” FM allotments under Section 5(3) of the Local Community Radio Act of 2010.  The Bureau also noted that “[w]hile we recognize the valuable service being provided by LPFM stations, these facilities are secondary FM services and must protect subsequently authorized full-service primary stations.”  This channel will also be available for application in a future FM window.

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.

  • Since the February 24 hearing designation order (HDO) from the FCC’s Media Bureau referring questions about Standard General Broadcasting’s proposed acquisition of the TEGNA broadcast stations to an Administrative Law Judge (ALJ) for an evidentiary hearing, many of our weekly updates have highlighted the attempts of the parties to have the HDO overturned (see, for instance, our articles here, here and here).  Congressional representatives are now looking into this unusual HDO.  In a joint joint letter to FCC Chairwoman Rosenworcel, Senator Ted Cruz (Ranking Member of the Senate Committee on Commerce, Science and Transportation) and Rep. Cathy McMorris Rodgers (Chair, House Energy and Commerce Committee) asserted that the HDO “violates Commission rules and precedents in several ways,” and asked the Chairwoman to provide, by April 19, responses to fourteen questions concerning the facts surrounding the decision to issue the HDO and the Bureau’s legal theories supporting it.  At the same time, the United States Court of Appeals for the D.C. Circuit dismissed Standard’s direct appeal of the HDO (finding that there was not yet a final FCC action for Standard to appeal) but set for expedited briefing Standard’s request for a writ of mandamus (a Court order forcing the FCC to act on the pending application).  Such requests are rarely granted but, if granted here, might require the FCC to approve the transaction before the current May 22 date that the parties allege is the deadline for the transaction to close.  And, notwithstanding all of this, the hearing designated by the Bureau continues before the ALJ, who has issued an initial case order establishing the date by which parties should submit proposed schedules (April 19) and the date of the initial status conference (April 26). 
  • In Congress, the Journalism Competition and Preservation Act has been reintroduced in Congress (Press Release).  That Bill, if adopted, would allow traditional media outlets, including broadcasters, to jointly negotiate for compensation for the use of their content by Big Tech platforms.  While the Bill passed out of a Senate committee in the last session of Congress, it never came to a vote before the full House or Senate.
  • Late on March 31, Chairwoman Rosenworcel released a letter responding to Senator Grassley’s request that the FCC take action on a long-pending FCC proceeding regulate video streaming services that carry broadcast TV signals as MVPDs subject to FCC rules, such as must carry and retransmission consent (see our Broadcast Law Blog article on the FCC’s 2015 proceeding).  Many televisions station owners have been requesting action by the FCC.  The Chairwoman’s response said that she did not believe that the FCC had jurisdiction to regulate virtual MVPDs, and suggested that Congress would first need to amend the Communications Act to refine the definition of an MVPD before the FCC could consider such regulation.
  • After conducting a “paper” hearing that had been initiated by the Media Bureau, an ALJ issued a decision finding that an AM station’s license had not expired automatically under the provisions of Section 312(g) of the Communications Act which automatically cancels a broadcast station’s license if it had been silent for more than12 consecutive months.  The record was confusing, but the ALJ found that the licensee had demonstrated by a preponderance of the evidence that its station had not been silent for more than 12 consecutive months, even though, in the ALJ’s view, it would have been helpful if the licensee had submitted more written evidence confirming that it had resumed operations at its authorized site in a timely manner.  The ALJ did, however, find that the station merited only a one-year renewal, as the station had been silent for about 80% of the prior license term and been deficient in its recordkeeping. 
  • The Bureau denied two closely-related petitions for reconsideration filed by the permittee of two FM translator stations in Puerto Rico, protesting the Bureau’s refusal to toll the stations’ construction deadlines and the Bureau’s subsequent grant of a third party’s application for facilities for an FM translator on the same channel as one of its translators.  The Bureau found that the petitioner’s request for tolling had not been filed in accordance with the special procedures that applied when the FCC’s headquarters were closed during the pandemic, so the request never was officially on file.  Thus, it was not in the FCC’s database to preclude the third’s filing of the application that conflicted with one of the permits.  The Bureau also rejected the petitioner’s other arguments in support of tolling, including its contention that it qualified for tolling or waiver based on new local land use procedures in Puerto Rico and purported lingering “bureaucratic” delays in issuing local permits following hurricanes and COVID, as no specific showing was made that any delays that might have occurred were outside the control of the permittee.
  • Consistent with the FCC’s policy of relative leniency in resolving first-time paperwork violations of FCC requirements by student-run noncommercial educational stations, the Bureau entered into a consent decree with a Massachusetts FM station that had filed its renewal application three and a half months late,  The decree mandates that the licensee adopt a compliance plan to ensure that no such violations occur in the future and pay a $500 civil penalty to the U.S. Treasury.
  • The Bureau dismissed a petition for reconsideration of its decision to cancel an AM license that had been surrendered by the station’s licensee.  The petitioner was a listener of the station and resident of its community of license and asked the Bureau to reinstate the license so that it could be assigned to someone else.  The Bureau rejected the request as it could not grant the petitioner’s requested relief, as the Bureau has no power to require the licensee to resume broadcasting or to require it to seek out and enter into an agreement with another party to assign the station’s license.
  • This week, on our Broadcast Law Blog, we published an article on the legal issues of using Artificial Intelligence to create synthetic voices of celebrities and using such voices on the air or online.

Note from David Oxenford: Seth Resler of Jacobs Media yesterday wrote on his Connecting the Dots blog about the ease of synthesizing the voice of a celebrity, and the temptation to use that replicated voice in an on-air broadcast.  Last week, in an article on policy issues raised by AI, we mentioned that some states have adopted laws that limit the use of synthesized media in political advertising.  In Seth’s article, he quotes Belinda Scrimenti of my law firm pointing out some of the legal issues that arise from using a synthesized voice even in entertainment programming, and especially in commercials. Belinda has expanded on her thoughts and offers the following observations on the use of synthesized personalities on radio or TV. 

The advent of artificial intelligence poses interesting and often challenging legal issues because the law is still “catching up” with the technology. Consider the impact of new AI platforms that can learn a person’s voice, then speak whatever text you submit to it in that person’s voice. If a user submits 60 seconds of Taylor Swift audio to the AI platform, the platform can use this sample to learn to “speak” as Taylor Swift, and the user can then have “her” say whatever the user wants.

While some states are considering or have adopted some restrictions on impersonation by AI, many existing legal concepts applied with traditional celebrity impersonation claims are already applicable to this kind of synthesized celebrity impersonation. Thus, if the use by a broadcaster of Taylor Swift’s voice (either taped and edited or impersonated by a human) would violate the right of publicity that is already found in the law of most states, the use of her AI voice would also violate these same rights.  

Continue Reading Using AI to Replicate the Voice of a Celebrity – Watch Out for Legal Issues Including Violating the Right of Publicity

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 a Notice of Proposed Rulemaking (“NPRM”) to implement the Low Power Protection Act (“LPPA”), which was signed into law by President Biden on January 5, 2023.  The LPPA directs the FCC to open a limited opportunity window for certain LPTV stations to apply for Class A TV status, giving them primary status that protects against being knocked off the air by a change in operations by a full-power station (or any further repacking of the TV spectrum like that following the incentive auction). Under the LPPA, an LPTV station will be eligible to convert to Class A if (i) between October 7, 2022 and January 5, 2023 (the “Eligibility Period”), the station operated a minimum of 18 hours per day, aired an average of 3 hours per week of locally-produced programming, and was otherwise in compliance with the LPTV rules; (ii) the station causes no interference; and (iii) the station operates in a DMA of 95,000 households or fewer.  The FCC’s proposed rules would impose additional limits on eligibility including excluding LPTV stations which were silent during the Eligibility Period; and proposes to define “locally-produced programming” as that produced within the station’s noise-limited contour or the contiguous contours of commonly owned stations. Interested parties can comment on these questions and other FCC proposals advanced in the NPRM. Comments and reply comments will be due 30 days and 60 days, respectively, after the NPRM is published in the Federal Register.
  • The FCC’s Media Bureau announced that the FCC’s Further Notice of Proposed Rulemaking proposing to extend the FCC’s audio description rules to DMAs below the top 100 has been published in the Federal Register, and therefore comments and reply comments are due April 28 and May 15, 2023, respectively.  Audio description provides narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue, for the benefit of individuals who are blind or visually impaired. The full text of the Further Notice is available here.
  • Action continued this week on the FCC’s Media Bureau’s hearing designation order referring questions about Standard General Broadcasting’s proposed acquisition of the TEGNA broadcast stations to an Administrative Law Judge (ALJ) for an evidentiary hearing.  Two weeks ago, we wrote about the parties to the sale filing an Application for Review, asking the Commission to overturn the Media Bureau’s decision to designate the transaction for hearing.  Because that request has not been granted and the commitment for the acquiror’s financing ends soon, the parties this week asked the US Court of Appeals to immediately intervene to stop the hearing and order the grant of the application. Even though no appeal to the Court is routinely permitted until an FCC action is final, the parties asked that the Bureau’s hearing designation be treated by the Court as if it was a denial of the application, or that the Court take extraordinary action to order FCC action on the application. The Court ordered immediate briefing by the parties; all submitted this past week. The NAB submitted a brief in support of the parties arguing that the bases for the hearing designation were not supported by FCC precedent and would upset marketplace expectations.
  • The FCC’s Media Bureau continued to process late filed license renewals, proposing to impose a $10,500 fine on the licensee of seven Nevada television translator stations that without explanation filed its renewal applications nearly four months late. Ordinarily, the FCC’s rules require a fine of $3,000 per station for such a violation. The Bureau reduced the fine to $1,500 per station in recognition of the fact that translator stations only provide a secondary service, but often provide important “fill-in” service to areas that otherwise may be unable to receive over-the-air television signals. Likewise, the Bureau proposed to impose a $12,000 “late renewal” fine on a second licensee of eight Nevada television translator stations, and proposed to impose a similar $1,500 fine on a low power television station in Alaska.
  • The Media Bureau, jointly with the FCC’s Managing Director, issued an Order to Pay or to Show Cause to an AM station that had not fully paid its annual regulatory fees for 2010, 2012, 2013, 2014, 2016, 2017, 2020 and 2022.  The Order directs the station to either provide the Bureau with evidence of full payment (or, alternatively, a showing as to why payment is inapplicable or should be waived or deferred) in 60 days or risk revocation of its license.
  • The Bureau issued a Report and Order substituting FM channel 288A for vacant channel 237A at South Padre Island, Texas to allow the use of channel 237A by an existing station at Port Isabel, Texas.  The South Padre Island channel will be available for application in a subsequent FM filing window.
  • The Media Bureau rescinded its grant of a construction permit for a new NCE FM station at Golinda, Texas, which it had awarded via its “points system” for selecting among mutually exclusive applicants for NCE FM stations filed in the 2021 window for new NCE stations.  The winning applicant had received its construction permit for its greater technical service by claiming that it would provide second NCE service to 14,178 people but, as pointed out in a challenge filed by a competing applicant, the applicant would actually provide second NCE service to only 1,706 people, not enough to warrant a preference.  As a result, the Bureau rescinded the winning applicant’s grant and returned its application to pending status so that the Bureau can re-compare the applications.
    • The Bureau also upheld the award of a construction permit to an applicant for a new NCE FM station at Weeki Wachee, Florida. 
  • On our Broadcast Law Blog, we highlighted the upcoming regulatory dates and deadlines for broadcasters in April. We also wrote about some of the policy issues for media and music companies that arise from the growth of Artificial Intelligence.

April brings to an end the four-year license renewal cycle that began in 2019 with the filing of renewals by radio stations in the Washington DC area. Our monthly updates, like this one, will thus not be highlighting license renewal dates again until mid-2027.  But there are always other regulatory dates which broadcasters need to note.  There are EEO Public File reports due in April for certain states (as they are every other month), the requirement for all full-power broadcast stations to upload to their public file their Quarterly Issues Programs Lists, and there are a number of rulemaking comment deadlines of interest to broadcasters.  So, let’s look at some of the important regulatory dates for broadcasters in April.   

As April 1 is a Saturday, April 3 is the deadline by which television stations, LPTV stations, TV translators and Class A stations in Delaware and Pennsylvania must file their license renewal applications, bringing to a close the current TV license renewal cycle.  Renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for LPFMs and TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Be sure to read the instructions for the license renewal application and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.  Issues with the public file have repeatedly led to fines imposed on broadcasters during renewal cycles.

Continue Reading April Regulatory Dates for Broadcasters – License Renewals, EEO Reports, Quarterly Issues/Programs Lists, Rulemaking Comments Including FTC Comments on Noncompete Agreements, and More

Artificial intelligence has been the buzzword of the last few months.  Since the public release of ChatGPT, seemingly every tech company has either announced a new AI program or some use for AI that will compete with activities currently performed by real people. While AI poses all sorts of questions for society and issues for almost every industry, applications for the media industry are particularly interesting.  They range from AI creating music, writing scripts, reporting the news, and even playing DJ on Spotify channels.  All these activities raise competitive issues, but there have also begun to be a number of policy issues bubbling to the surface. 

The most obvious policy issue is whether artistic works created by AI are entitled to copyright protection – an issue addressed by recent guidance from the Copyright Office suggesting that a work created solely by a machine is not entitled to protection, but that there may be circumstances where a person is providing sufficient guidance to the artificial intelligence such that the AI is seen as more of a tool for the person’s creativity, and that person can claim to be the creator of the work and receive copyright protection. 

Continue Reading Looking at the Some of the Policy Issues for Media and Music Companies From the Expanding Use of Artificial Intelligence

Every year at about this time, we worry that radio stations may be tempted to run some big April Fools’ Day stunt.  But, with the country seemingly on edge because of natural and human emergencies in the news almost every day, a prank that may seem funny to some could trigger concerns with others.  As we do every year about this time, we need to play our role as attorneys and ruin any fun that you may be planning by repeating our reminder that broadcasters need to be careful with any on-air pranks, jokes or other on-air bits prepared especially for April 1.  Particularly as the day falls on a Saturday this year, and less experienced personnel who may not be as familiar with legal concerns may be manning stations, a warning seems again to be appropriate.  While a little fun is OK, remember that the FCC has a rule against on-air hoaxes, and there can be liability issues with false alerts that are run on a station.  Issues like these can arise at any time, but a broadcaster’s temptation to go over the line is probably highest on April 1.

The FCC’s rule against broadcast hoaxes, Section 73.1217, prevents stations from running any information about a “crime or catastrophe” on the air, if the broadcaster (1) knows the information to be false, (2) it is reasonably foreseeable that the broadcast of the material will cause substantial public harm and (3) public harm is in fact caused.  Public harm is defined as “direct and actual damage to property or to the health or safety of the general public, or diversion of law enforcement or other public health and safety authorities from their duties.”  If you air a program that fits within this definition and causes a public harm, you should expect to be fined by the FCC.

Continue Reading Broadcasters Beware – April Fools Day Can Trigger FCC Concerns

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.

  • FCC Chairwoman Rosenworcel announced a proposal which would require that all pay TV providers prominently display “all in” pricing on bills and in advertising so that consumers know what their monthly charges will be.  The News Release about the proposal states that its aim is to eliminate “the misleading practice” of describing video programming costs, including retransmission consent fees paid to broadcast stations, as a tax, fee, or surcharge rather than as part of the price of the service.  The News Release suggests that these practices make it difficult for a consumer to compare prices among competing video providers and can surprise consumers with unanticipated costs.  The details of the proposal have not been made public but are circulating among the FCC Commissioners for their consideration.
  • In a similar attempt to enforce billing transparency, the Federal Trade Commission (“FTC”) released a Notice of Proposed Rulemaking to amend the FTC’s existing “Negative Option Rule.”  That rule addresses “negative options” used in marketing and sales that come in a variety of forms, which each contain a term or condition that allows a seller to interpret a customer’s silence, or failure to take an affirmative action, as acceptance of an offer to sell and charge for goods or services. Negative option marketing generally falls into four categories: (1) prenotification plans (the only ones currently covered by FTC rules – like “book of the month clubs,” where a product is regularly offered to a consumer and then shipped and charged unless the consumer affirmatively declines the offer), (2) continuity plans (where a product is routinely shipped and charged to a consumer until they say to stop – like bottled water delivery services), (3) automatic renewals (like magazine subscriptions or credit monitoring services where subscriptions automatically renew upon expiration), and (4) free trial marketing where a free or nominal price offer is made which automatically converts to a paid plan with recurring charges after a certain period if not cancelled.  The proposal would amend the existing rule to: (i) expand its scope to cover all negative marketing practices and cover offers made in all media, including Internet, telephone, in-person, and printed material; (ii) require businesses to obtain consumers’ express informed consent before charging them for a good or service they subscribe to; (iii) require businesses to provide a simple cancellation mechanism to immediately halt any recurring charges; and (iv) require businesses to provide an annual reminder to consumers enrolled in negative option plans involving anything other than physical goods.  Comments on the Proposed Rule will be due 60 days after it is published in the Federal Register.
  • The FCC’s Media Bureau proposed to impose a $4,500 fine on the licensee of three Nevada television translator stations that without explanation filed its renewal applications nearly four months late. Ordinarily, the FCC’s rules require a fine of $3,000 per station for such a violation.  The Bureau reduced the fine to $1,500 per station in recognition of the fact that translator stations only provide a secondary service, but also provide important “fill-in” service to areas that otherwise may be unable to receive over-the-air television signals.  For similar reasons, the Bureau proposed to impose a $1,500 fine on a second Nevada television translator licensee (this time for only one station) and a $13,500 fine on a third Nevada television translator licensee (for nine stations) that each filed their renewal applications nearly four months late.
  • The Media Bureau, jointly with the FCC’s Managing Director, issued an Order to Pay or to Show Cause to an FM station that had not fully paid its annual regulatory fees for 2010, 2012, 2013, 2014, 2015, 2016, 2018, 2020, 2021 and 2022. The Order directs the station to either provide the Bureau with evidence of full payment (or, alternatively, a showing as to why payment is inapplicable or should be waived or deferred) in 60 days or risk revocation of its license. While this is an extreme case, it is another reminder that the FCC takes unpaid regulatory fees seriously, and that licensees must ensure that such fees are paid in a timely manner.
  • On our Broadcast Law Blog, we provided more information about the Request for Declaratory Ruling filed by the Florida Broadcasters Association, which we mentioned in last week’s summary of regulatory actions.  This request asks the FCC to conclude that political advertising not sponsored by a candidate’s official campaign committee is not entitled to lowest unit rates during the 45 days before a primary and the 60 days before a general election, even if that advertising claims to be authorized or approved by the candidate. 

In the 45 days before a political primary and the 60 days before a general election, ads by political candidates (federal, state, or local) airing on a broadcast station or inserted by a local cable system into the programming it transmits to the public are entitled to “lowest unit rates” (LUR).  That means that candidates get the best rate offered or sold to a commercial advertiser whose ads are of the same class of time and running in the same daypart or on the same program.  This includes getting the benefit of all volume discounts given to commercial advertisers without having to buy in the volume that the commercial advertiser would need to qualify for the discount.  We have written more about the details of some of the issues with computing lowest unit rate (or “lowest unit charge”) many times before (see, for example, our articles here, here, and here). 

In a request for declaratory ruling filed by the Florida Association of Broadcasters, an interesting question has been posed to the FCC – can other political advertisers who buy time during the LUR period be entitled to these low rates if they are “authorized” by the political candidate?  Normally, such non-candidate political ads (usually referred to as issue ads) are charged much higher rates than those charged to candidates.

Continue Reading Are Issue Ads By Non-Candidate Groups Entitled to Lowest Unit Rates Just Because a Candidate Approves the Ad?  The FCC Is Asked for Its Opinion