This week, the FCC released two Notices of Apparent Liability proposing to impose big fines on two pirate radio operators.  Using the enforcement tools – particularly the higher fines – authorized by the PIRATE Act passed by Congress in 2020, the FCC proposed a to impose a fine of $2,316,034 on one alleged operator of a pirate radio station in the New York City area, and a fine of $80,000 fine on another operator of a pirate station in Oregon.  We’ve written in the past about the FCC sending warning letters to landowners and pirate radio operators threatening big fines if they don’t cease operations (or, for landowners, if they don’t force their tenants to cease illegal operations).  But, as noted in the FCC’s Press Release, this is the first time since the adoption of the PIRATE Act that the FCC has gone beyond the warning phase to issue these notices of multimillion dollar “forfeitures” (fines) on pirate operators and, in the New York case, use the full force permitted by the law to levy the multimillion dollar fine.  Theoretically, the alleged pirates could respond to the Notices and contest the fines, but the FCC’s decisions seem adamant that these operators should be paying a substantial penalty.  It is probably no coincidence that these Notices were issued a little over a month after the FCC sent its annual report to Congress on its activities under the PIRATE Act, promising increased efforts to combat pirate radio in the new year. 

The New York pirate appears particularly brazen, prompting the largest fine yet levied against a pirate radio operator.  According to the Notice of Apparent Liability, two individuals have operated a pirate radio station in the New York borough of Queens for over a decade.  In 2013, the FCC’s Enforcement Bureau issued three Notices of Unauthorized Operation to the operators, warning them that their operations were illegal and needed to stop.  In 2014, agents personally confronted one of the operators who admitted ownership of the equipment, and again told him to stop operating.  When operations continued, a proposed fine of $20,000 was issued in 2015, but never paid or contested.   In 2016, as operations had continued, Federal Marshalls seized the station’s equipment.  Yet the pirate came back and continued operations – even using a website and social media to promote programs hosted by the two individuals named in this week’s Notice.  The FCC emphasized that the repeated, ongoing nature of the violation even after multiple warnings and prior government action prompted its substantial fine.  The PIRATE statute limits fines to $2,316,034 – otherwise, the FCC would have proposed a fine ten times larger, given the nature of the violation and the pirate’s apparent disregard of the FCC’s prior attempts to enforce the law.

Continue Reading Two Million Dollar Fine for Pirate Radio – Don’t Cross the Commission Again After You’ve Been Caught Once, Especially as More Enforcement Appears to be on the Way

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.

  • As widely reported, Gigi Sohn has asked President Biden to withdraw her nomination to become the third Democratic FCC Commissioner (her statement to the Washington Post about her withdrawal is available here).  Had it been successful, Sohn’s nomination would have eliminated the 2-2 deadlock between Republicans and Democrats that has existed at the FCC for over two years.  Sohn’s withdrawal came shortly before Sen. Joe Manchin of West Virginia became the first Democrat to formally oppose her confirmation.  As of the date of publication of this article, the White House had not provided any updates regarding potential replacement nominees.  For a further discussion of Sohn’s withdrawal and its implications for broadcast regulation, see the article on our Broadcast Law Blog, here.
  • As we reported in our weekly update the week before last, the FCC’s Media Bureau issued a hearing designation order referring to an Administrative Law Judge for an evidentiary hearing questions about the proposed acquisition of the TEGNA broadcast stations by Standard General Broadcasting.  This week brings news that the parties have filed a Motion asking that the Judge certify this designation to the FCC Commissioners for a determination as to whether the case really should have been designated for hearing.  For more details on this matter and the legal issues associated with it, see our Blog article here.
  • The FCC issued an Order temporarily staying the March 6, 2023 sunset of the requirement that television station’s that convert to the new ATSC 3.0 transmission standard must maintain their primary broadcast streams in accord with the ATSC A/322 standard, which defines the waveforms that ATSC 3.0 signals must take.  In June 2022, the FCC issued a Third Further Notice of Proposed Rulemaking (Third FNPRM) seeking comment on, among other things, whether to retain the requirement that broadcasters comply with the ATSC A/322 standard and, if so, for how long.  The Order leaves the requirement in place indefinitely (thus maintaining the status quo) until the Third FNPRM is resolved.  In support, the Order notes that virtually all who commented on the Third FNPRM supported at least a temporary extension of the requirement; that it is unclear whether any consumer receive equipment could display 3.0 signals that are noncompliant with A/322; and that there is no information in the record indicating that any party would be harmed by the grant of an interim stay.
  • The FCC issued its Application Fee Filing Guide for its Media Bureau.  The Guide, which provides fee amounts and instructions for paying those fees, covers applications filed by, among others, commercial television stations, commercial AM and FM stations, TV translators and LPTV stations, FM translator stations, Class A television stations, and FM booster stations.  The FCC’s Managing Director subsequently issued an Erratum correcting the fees for certain types of AM applications.
  • The FCC’s Public Safety and Homeland Security Bureau issued a Public Notice encouraging broadcasters who did not file their Form One in the EAS Test Reporting System (ETRS) by the February 28, 2023 deadline to do so now. The Public Notice also provided information about FCC assistance that is available for applicants who have not yet filed this Form One which provides basic information about EAS participants and the EAS equipment that they use.  As we noted in an article on our Blog, the FCC has made clear that this filing is mandatory for virtually all broadcast stations and suggested that there may be consequences for those who have not filed.  This form is the first of three used to report on the results of Nationwide EAS tests – one of which is expected to be conducted later this year.  If your station has not filed the ETRS Form One yet, you should do so immediately. 
  • The FCC’s International Bureau released a Public Notice and a list of the C-Band earth stations that it has found to be “incumbent earth stations” entitled to reimbursement as part of the repurposing of part of this spectrum for wireless uses.  As set out in the Notice, all earth stations continuing to operate in the C-Band are required to register with the International Bureau’s filing system, and any earth stations that are deactivated must also be reported.  If you have C-Band earth stations, review this notice for more details. 
  • With the NCAA Basketball Tournaments for both men and women set to start this coming week, we published on our Broadcast Law Blog a two-part article (here and here) about the NCAA’s trademarks, how it protects those marks, and the legal issues that can arise in broadcast advertising and promotions tied to the tournaments. 
  • Via its “points system” for selecting among mutually exclusive applicants for NCE FM stations filed in the 2021 window for new NCE stations, the Bureau awarded a construction permit to an applicant for a new station at Baker City, Oregon.  The Bureau did so notwithstanding an informal objection by a third party alleging that the winning application should have been dismissed because its proposed directional antenna radiation pattern varied more than 2 dB per 10 degrees of azimuth in violation of section 73.316(b)(2) of the FCC’s rules.  The winning applicant subsequently amended its application to bring its antenna pattern into compliance with the rules.  The Bureau ruled that the antenna pattern was a curable defect and thus the winning applicant’s amendment was permissible, thus mooting the third party’s objection.  The Bureau also found that the winning applicant remained the winner on points even though its amendment resulted in reduced coverage that rendered it ineligible for a point under the “best technical proposal.”
  • The Bureau proposed to substitute Channel 287A for vacant Channel 280A at Peach Springs, Arizona to accommodate a proposed upgrade of an existing FM station from channel 280A to channel 280C2  at Fort Mohave, Arizona.  Channel 280A at Peach Springs became vacant due to the Bureau’s cancellation of the license of the station that previously occupied that channel.
  • The Bureau entered into a consent decree with a student-run NCE FM station that filed its license renewal application nearly four months late.  Consistent with the FCC’s policy for treating first-time violations of FCC “paperwork” rules by student-run NCE radio stations more leniently than violations by other stations, the licensee agreed to implement a compliance plan to prevent future untimely renewals, and make a civil penalty payment to the United States Treasury in the amount of $500.

Yesterday, I wrote about the history of the NCAA’s assembling of the rights to an array of trademarks associated with this month’s basketball tournament.  Today, I will provide some examples of the activities that can bring unwanted NCAA attention to your advertisements or broadcasting of advertising, as well as one more issue that should be considered when considering whether to accept advertising.

Activities that May Result in a Demand Letter from the NCAA

The NCAA acknowledges that media entities can sell advertising that accompanies the entity’s coverage of the NCAA championships.  However, similar to my discussion last  year on the use of Super Bowl trademarks (see here) and my 2018 discussion on the use of Olympics trademarks (see here), unless authorized by the NCAA, any of the following activities may result in a cease and desist demand:

  • accepting advertising that refers to the NCAA, the NCAA Basketball Tournament, March Madness, The Big Dance, Final Four, Elite Eight or any other NCAA trademark or logo (The NCAA has posted a list of its trademarks here.)
    • Example:  An ad from a retailer with the headline, “Buy A New Big Screen TV in Time to Watch March Madness.”
    • Presumably, to avoid this issue, some advertisers have used “It’s Tournament Time!”
  • local programming that uses any NCAA trademark as part of its name
    • Example:  A locally produced program previewing the tournament called “The Big Dance:  Pick a Winning Bracket.”
  • selling the right to sponsor the overall coverage by a broadcaster, website or print publication of the tournament
    • Example:  During the sports segment of the local news, introducing the section of the report on tournament developments as “March Madness, brought to you by [name of advertiser].”
  • sweepstakes or giveaways that include any NCAA trademark in its name (see here)
    • Example: “The Final Four Giveaway.”
  • sweepstakes or giveaways that offer tickets to a tournament game as a prize
    • Example:  even if the sweepstakes name is not a problem, offering game tickets as a prize will raise an objection by the NCAA due to language on the tickets prohibiting their use for such purposes.
  • events or parties that use any NCAA trademark to attract guests
    • Example:  a radio station sponsors a happy hour where fans can watch a tournament game, with any NCAA marks that are prominently placed on signage.
  • advertising that wishes or congratulates a team, or its coach or players, on success in the tournament
    • Example:  “[Advertiser name] wishes [Name of Coach] and the 2022 [Name of Team] success in the NCAA tournament!”

There is one more common pitfall that is unique to the NCAA Basketball:  tournament brackets used in office pools where participants predict the winners of each game in advance of the tournament.  The NCAA’s position (see here) is that the unauthorized placement of advertising within an NCAA bracket and corporate sponsorship of a tournament bracket is misleading and constitutes an infringement of its intellectual property rights.  Accordingly, it says that any advertising should be outside of the bracket space and should clearly indicate that the advertiser or its goods or services are not sponsored by, approved by or otherwise associated with the NCAA or its championship tournament.

It should be noted that the NCAA also imposes strict rules about the authorized uses of its trademarks.  The NCAA’s Advertising and Promotional Guidelines for authorized use of its marks are posted online (see here).

Again, importantly, none of these restrictions prevents media companies from using any of the marks in providing customary news coverage of or commentary on the tournament.  Just be sure that they are just used to identify the tournament and its stages, and don’t in any way imply that there is an association between the station itself or any sponsor or advertiser who does not have the rights to claim such association and the NCAA.

A Surprising History of “March Madness” (For Those Who May Like Sports Trivia)

The NCAA may not have been the first to license the use of “March Madness.”  Beginning in the early 1990’s, the IHSA licensed it for use by other state high school basketball tournaments and by corporations.

Moreover, the NCAA did not originate the use of “March Madness” to promote its collegiate basketball tournament.  Rather, a CBS broadcaster is credited with first using “March Madness” in 1982 to describe the tournament.  As CBS was licensed by the NCAA to air the tournament, the NCAA apparently claims that as its date of first use.

Finally, the NCAA was not the first to register “March Madness” as a trademark.  That honor went to a company called Intersport, Inc., which used the mark for sports programs it produced and registered the mark in 1989.

So, how did the NCAA get to claim ownership of the March Madness® trademark?  The short answer is through litigation and negotiations over a period of many years.  Although it has also been able to obtain federal registrations for Final Four® and Elite Eight,® it was late to the gate and Sweet Sixteen® and Sweet 16® are registered to the Kentucky High School Athletic Association (KHSAA).  (The NCAA, however, has the KHSAA’s consent to register NCAA Sweet Sixteen® and NCAA Sweet 16®.)

The Final Score

Having invested so much in its trademarks, the NCAA takes policing its trademark rights very seriously.  Even so, although the NCAA may call “foul!” and send a cease-and-desist letter over the types of activities discussed above, some claims may not be a slam-dunk as there can be arguments to be made on both sides of these issues.

If you are deciding whether or not to pass on accepting advertising incorporating an NCAA trademark or logo or using an NCAA trademark or logo other than in the context of reporting on the tournament, or if you are not certain whether the NCAA (or anyone else) owns a particular word or phrase as a trademark, you should seek an assist.  An experienced trademark attorney can help you make an informed decision about whether you can successfully post a defense against any such charge and assess possible risks.

One Last Advertising Issue:  Endorsements by Individual Student-Athletes

After many years of litigation, in July 2021, the NCAA suspended its policy prohibiting college athletes from profiting from their names, images and likenesses (“NIL”) (or their right of publicity) without losing their eligibility.  However, there is no national set of rules as to what is permissible.  Rather, the right of publicity is governed by state law.  Moreover, colleges and universities still have the right establish some rules or standards.  For example, although student-athletes can now get paid to endorse a commercial product, they are not automatically entitled to use any NCAA or school trademarks.  Thus, a college basketball player may not be authorized to wear their uniform in advertising unless the school has granted permission.  Can the player wear a uniform with the school colors, but no names or logos?  Can the player endorse an alcoholic product?  Answers will vary state by state and school by school, so it will be extremely important to check with experienced counsel before running any advertising that involves college players.

With Selection Sunday this weekend, the 2023 NCAA Collegiate Basketball Tournament is about to begin.  As faithful readers of this blog know, broadcasters, publishers and other businesses need to be wary about potential claims arising from their use of terms and logos associated with the tournament.

NCAA Trademarks

The NCAA owns the well-known marks March Madness®, The Big Dance®, Final Four®, Women’s Final Four®, Elite Eight,® and The Road to the Final Four® (with and without the word “The”), each of which is a federally registered trademark. The NCAA does not own “Sweet Sixteen” – someone else does – but it does have federal registrations for NCAA Sweet Sixteen® and NCAA Sweet 16®.

The NCAA also has federal registrations for some lesser-known marks, including March Mayhem®, March Is On®,Midnight Madness®, Selection Sunday®, 68 Teams, One Dream®, And Then There Were Four® and NCAA Fast Break®. (It also has a registration for SPRING MADNESS®in connectionwith its soccer tournaments.)

Some of these marks are used to promote the basketball tournament or the coverage of the tournament, while others are used on merchandise, such as t-shirts.  The NCAA also uses (or licenses) variations on these marks without seeking registration, but it can claim common law rights in those marks, such as March Madness Live, March Madness Music Festival and Final Four Fan Fest.

Continue Reading March Madness and Advertising: Use of NCAA Trademarks (2023 Update – Part 1)

Yesterday’s big news across the broadcast press was that Gigi Sohn, who had for well over a year been the nominee of the Biden administration to fill the open seat at the FCC, withdrew her name from consideration.  This may have been in reaction to circulated stories that there were several Democratic Senators who still were not committed to vote for her nomination without whose support she could not have been confirmed.  Until the Biden administration can make another nomination and have that nominee go through the confirmation process in the Senate, the FCC will continue to have two Democratic Commissioners and two Republican ones, potentially stalling action on some rulemaking matters where there is a partisan split on the pending issue.  We wrote in January in our look at the issues pending before the FCC about some of the issues that the FCC could face in 2023.  In light of the seeming extension of the partisan divide on the FCC, we thought that we would again highlight some of the issues likely to be affected by the current state of the Commission. 

But it is first worth noting that, merely because there is a partisan split among the Commissioners, this does not mean that nothing of significance will happen at the FCC.  As we wrote yesterday, the TEGNA merger was designated for hearing, potentially leading to its demise.  This was done not by an action of the Commissioners, but instead by its Media Bureau.  Interpretations of FCC authority in specific cases by the Media Bureau, the Enforcement Bureau or other lower-level bureaus and offices within the Commission can be just as impactful on any specific company as are the big policy decisions made by the Commissioners themselves.  Just as the TEGNA designation could have significant ramifications for broadcast dealmaking if its conclusions are taken to their logical ends, Bureau-level decisions can set day-to-day policy on many issues if the Commission itself cannot make broader decisions through their rulemaking process.

Continue Reading Gigi Sohn Withdraws from Consideration for Open Seat as FCC Commissioner – What that Means for Broadcast Regulation

Last week, broadcasters and broadcast journalists were abuzz with discussions of the FCC’s Media Bureau issuing a hearing designation order referring to an Administrative Law Judge questions about the proposed acquisition of the TEGNA broadcast stations by Standard General Broadcasting.  This week brings news that the parties have filed a Motion asking that the Judge certify this designation to the FCC Commissioners to determine whether the case really should have been designated for hearing.  The request that the case be referred to the Commissioners notes that the designation would have the effect of terminating the transaction, as the contract provides the parties only until May to close, and the buyer cannot get the agreement extended.  With so many questions about the TEGNA deal and its designation for hearing, we thought that we would review the hearing designation process and look at the inherent delays in the process which led to the parties’ contention that the designation, if not reviewed by the Commission, will effectively kill the deal.  In a subsequent article, we will look at some of the substantive issues raised by the hearing designation order.

Five years ago, we wrote about the hearing designation process in connection with the last major case where a proposed broadcast transaction was designated for hearing, i.e., Sinclair Broadcast Group’s proposed acquisition of the television stations owned by Tribune Media.  The TEGNA case differs from the Sinclair case in one significant manner, namely that the hearing designation order in the TEGNA case was issued by the Chief of the FCC’s Media Bureau, not by the Commissioners themselves.  In the Sinclair case, the Commissioners issued the hearing designation order, meaning there was no opportunity to ask for the review now being sought by the parties to the TEGNA deal.  When a designation order is issued by a Bureau, the party whose application was designated for hearing can, as in the TEGNA case, ask the presiding Administrative Law Judge to certify the case to the Commissioners before starting the hearing process, if there are questions of law that suggest that the case should not have been set for hearing.  While the Judge can decide to seek the guidance of the full Commission through this kind of certification, the full Commission need not take up the case even if the Judge decides to certify it to them.  Instead, the Commissioners can decide that the hearing should move forward, and that the legal issues can be considered later after the full hearing has taken place.  While that is the procedure set out in the FCC’s rules,  the TEGNA parties argue that were the Judge to certify the case and the Commission did take action, then they intend to directly appeal the matter to the Courts for review (which is normally not allowed until a decision is reached by the ALJ) because the designation for hearing by itself, issued after the application was pending for a year, equates to a the denial of the application.  What in the process for a case once designated for hearing that leads to that conclusion?  Let’s look at the process of setting a case for hearing.

Continue Reading Parties to TEGNA Deal Seek Full Commission Review of Hearing Designation Order – Looking at the Process They are Trying to Avoid 

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 Commissioner Simington issued a statement supporting a recent letter from former FEMA leaders to the Department of Transportation highlighting AM radio’s importance for public safety.  The letter was to address the concern about AM radios being left out of electric cars.  He said that the issue “deserves urgent attention”; that “as adoption of electric vehicles increases, we must not leave behind those in rural areas who depend upon radio for their news and alerts”; and that the FCC must “be good stewards of the AM radio band” by “safeguarding reception of AM radio from arrogation by incidental and unintentional radiation.”
  • The FCC’s Media Bureau proposed to assess a fine of $3,000 against the licensee of a full power television station that, without explanation, filed its license renewal application five weeks late ($3,000 is the base fine in the FCC’s rules for an untimely renewal application).  At the same time, the Bureau proposed to assess a fines of $1,500 against each of two low power television stations, in one case for filing the license renewal applications nearly four months late (two days before the license expiration date), and over six weeks late in the other case. In both cases, the Bureau reduced the proposed fine to $1,500 from the $3000 base fine because the stations were LPTV stations and thus only provided a secondary service.
    • The Bureau also entered into a Consent Decree with an AM station to resolve the station’s admitted failure to timely file its renewal application (the licensee filed five months late) and timely upload any issues and program lists to its online public inspection file.  The Bureau did not impose a fine, citing difficult economic circumstances within the radio industry generally and the illness and death of the station’s sole owner.  Instead, the Bureau mandated that the licensee implement a compliance plan to ensure the station’s compliance with the FCC’s rules pertaining to filing deadlines and the online public inspection file.
  • The Bureau proposed to fine an LPTV station $3,500 for its failure to file an application for a “license to cover” its construction permit until over a year after its displacement construction permit had expired and almost nine months after commencing operations.  As we’ve noted before, upon completion of the construction of new technical facilities authorized by a construction permit, a station must file a license application specifying details of the facilities that were built and certifying that those facilities align with those authorized by the construction permit.  The station also had engaged in unauthorized operation on two separate occasions for a cumulative period of approximately 14 months for operations after the construction permit expired and before the license application was filed.  The Bureau rejected the licensee’s claim that its violations were due to “administrative oversight.”  The base forfeiture in the FCC’s rules for the licensee’s violations was $10,000, but the Bureau reduced the proposed fine to $3,500, citing the fact that, as an LPTV facility, the station only provided a secondary service.
  • The Bureau continues to substitute UHF channels for VHF channels in local markets to improve reception of over-the-air television channels, recognizing the preference for UHF channels for digital operations, the most recent examples being its proposed substitution of channel 17 for channel 9 at Kalispell, Montana; its substitution of channel 31 for channel 7 at Odessa, Texas; its substitution of channel 24 for channel 9 at Lufkin, Texas; and its proposed substitution of channel 20 for channel 10 at Elko, Nevada.
    • In another allocations decision, the Bureau issued a Report and Order amending the FM Table of Allotments (section 73.202(b) of the FCC’s rules) by allotting a new FM channel, Channel 233C, at Ralston, Wyoming as its first local service.  Ralston is listed in the 2020 U.S. Census as a census-designated place having a population of 240 persons, although the Bureau also noted that Ralston has its own post office, zip code, and a variety of local and area businesses and event venues.  This channel will be available for application in a future window for filing applications to be considered in an auction for new FM stations. 
  • Via its “points system” for selecting among mutually exclusive applicants for NCE FM stations filed in the 2021 window for new NCE stations, the Bureau awarded a construction permit to an applicant for a new station at Willows, California.  The Bureau did so notwithstanding a petition to deny filed by one of the other mutually exclusive applicants, which alleged that the winning applicant’s application should have been denied for reasons including diversity of ownership; whether the winning applicant was an “established local applicant”; public inspection file and local public notice requirements; and violation of the FCC’s technical rules. The Bureau conducted a factual analysis of the claims of the petitioner as to the localism of the application and found them to not be sufficiently supported by the facts, and it found the technical and application preparation issues to be insubstantial, not justifying the denial of the application.

March may not have any of the regular FCC filing deadlines, but there are still plenty of regulatory activities going on this month that should grab the attention of any broadcast or media company. Initially, there are several FCC proceedings in which there are dates in March worth noting.

Initially, there are comments in the 2022 Quadrennial Review of the FCC’s ownership rules.  As we wrote in our summary of the issues on which comments are requested when it was released in late December, the proceeding is to look at rules including the local radio ownership rules, the dual network rule (prohibiting the combination of two of the big four TV networks), and other rules not yet resolved.  The FCC is charged with determining every four years whether these rules continue to be in the public interest.  Even though the FCC has never finished the 2018 Quadrennial Review examining these same issues, the FCC nevertheless asks for comments on how these rules affect FCC policies including competition, localism, and diversity.  Comments in this proceeding are due March 3, with reply comments due March 20. 

Continue Reading March Regulatory Dates for Broadcasters – Comment Dates on FCC Ownership Rules, FTC Proposed Ban on Noncompete Agreements, and TV Captioning Rules; Higher FCC Application Fees; Daylight Savings Time Adjustments for AM Stations; 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’s Media Bureau designated for evidentiary hearing a series of applications that, if granted, would transfer control of TEGNA Inc. to SGCI Holdings III LLC.  TEGNA is the parent company of the licensees of 64 full-power television stations, two full-power radio stations, and other related Commission licenses.  In its Hearing Designation Order, the Bureau directs an FCC Administrative Law Judge to resolve questions regarding (i) whether the transactions are likely to trigger a cable or satellite rate increase harmful to consumers because of increases in retransmission consent fees, and (ii) whether the transactions will reduce or impair localism, including whether they will result in fewer employees and less local content at the stations.  In a news release, FCC Chairwoman Rosenworcel stated that “[t]he additional review will allow us to make a more informed assessment on whether proposed safeguards [related to the transactions] are sufficient to protect the public interest, and we will take the time needed to address these critical questions.”  From the Republican side, Commissioners Carr and Simington issued a joint statement that was less enthusiastic: “[T]he FCC should be working to encourage more of the investment necessary for . . . local broadcasters to innovate and thrive. . .  After a protracted, nearly yearlong review, the Commission should be providing the parties with a decision on the merits—not an uncertain future.”
  • The FCC released a draft Further Notice of Proposed Rulemaking (“FNPRM”) that, if adopted as scheduled at the FCC’s March 16 open meeting, would formally propose to extend the FCC’s existing audio description requirements for broadcast television to DMAs below the top 100 (i.e., DMAs 101-210).  Audio description makes video programming more accessible to individuals who are blind or visually impaired by inserting, using a secondary audio stream, narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue. Audio description is already required in DMAs 1 through 90, and these requirements will go into effect in DMAs 91 through 100 on January 1, 2024.  In these markets, “Big Four” stations (ABC, NBC, CBS, and Fox) are required to provide 50 hours of audio description per calendar quarter, either during prime time or in children’s programming, and 37.5 additional hours of audio description per calendar quarter between 6 a.m. and 11:59 p.m. local time.  The FCC proposes to extend these requirements to DMAs 101-210 by phasing in 10 DMAs per year starting on January 1, 2025, meaning that the bottom 10 DMAs would not be phased in until January 1, 2035.  The draft FNPRM asks for comment on, among other things, the cost implications of imposing audio description requirements on stations in DMAs below the top 100; the appropriate compliance deadlines for those stations; how the FCC’s proposals may affect advances in diversity, equity, inclusion, and accessibility; and the FCC’s legal authority to extend the audio description rules as proposed.  If adopted, comments and reply comments on the FNPRM will be due 30 days and 45 days, respectively, after its publication in the Federal Register.
  • The FCC recently released a new 2023 version of the EAS Operating Handbook.  A copy of the Handbook must be located at normal duty positions of station operators or at the location of EAS equipment where it can be immediately available to staff responsible for authenticating messages and initiating actions. The handbook provides duty operators information about what to do when EAS alerts (tests or real activations of the system) are received by the station.  The new handbook updates the old handbook in a limited fashion, but it also provides stations an opportunity to update their own practices as the Handbook requires that the broadcaster provide information in spaces provided as to the broadcaster’s specific equipment and procedures at their stations.  Stations should download this Handbook and make sure that it is available as required.
    • Stations are reminded that the deadline for filing EAS Test Reporting System (ETRS) Form One is February 28, 2023.  Filing instructions are provided in the Public Notice issued by the FCC earlier this year.  All EAS Participants – including Low Power FM stations (LPFM), Class D non-commercial educational FM stations, and EAS Participants that are silent pursuant to a grant of Special Temporary Authority – are required to register and file in ETRS, with limited exceptions.  See our recent Broadcast Law Blog article for more information. 
  • The Media Bureau entered into a Consent Decree with the licensee of a noncommercial low power FM (LPFM) station to resolve the licensee’s admitted failure to comply with Section 73.850(d) of the FCC’s rules, which requires a station to notify the FCC within ten days that it has gone silent and request special temporary authority (STA) to remain silent for more than 30 days.  The licensee admitted that the station had discontinued operations for 61 days (from May 26, 2021, to July 25, 2021), that it failed to comply with the 10-day notice rule, and that it failed to request an STA after 30 days of silence.  The licensee also inaccurately certified in its renewal application that it had complied with Section 73.850(d), thus violating the FCC’s rule prohibiting inaccurate certifications.  The Bureau directed the licensee to pay a civil penalty of $500 to the U.S. Treasury and to adopt a compliance plan to ensure future compliance with the rules that it violated.  The Bureau also rejected a third-party objector’s claims relating to the station’s ownership, the station’s alleged unauthorized operation as a translator for another LPFM station, the station’s alleged airing of commercial advertising, and the station’s alleged failure to air local programming, finding that the objection did not provide specific allegations sufficient to support the claims made.
  • The Bureau proposed to assess a fine of $13,500 against the licensee of nine digital television translator applications (i.e., $1,500 per station) because the licensee had without explanation filed the renewal applications for the stations over two months late.  The Bureau noted that the base fine under the FCC’s rules for this type of violation is $3,000, but that it was reducing it to $1,500 because the stations provide a secondary service and were providing important “fill-in” service to areas that otherwise may be unable to receive over-the-air television signals.
  • The Bureau continues to substitute UHF channels for VHF channels in local markets to improve reception of over-the-air television channels, the most recent example being its substitution of channel 27 for channel 11 at Yuma, Arizona.