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

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