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 announced that regulatory fees must be submitted by 11:59 PM Eastern Time on September 28. In addition, the Media Bureau’s guide to fee filing for broadcasters was released and is available here (the Bureau also separately issued a listing of TV stations by call sign, identifying their population count and fee amount). Note that the FCC’s fee look-up database for radio does not reflect the exempt status of some noncommercial stations – particularly those that do not operate in the reserved FM band. Noncommercial licensees with stations that do not show their exempt status should discuss with their FCC counsel how to correct that information to properly reflect their exempt status.  There are significant penalties for late payment, so it is a good idea to file before the September 28 deadline to avoid any last-minute issues that, if they result in a fee being late, can result in a 25% late fee penalty.
  • The FCC has released a draft Notice of Proposed Rulemaking (NPRM), available here, proposing to update the FCC’s rules for full power TV and Class A TV stations. The draft NPRM, which is tentatively on the FCC’s agenda for the September 29, 2022 monthly open meeting, indicates that a review and update of these rules is necessary due to the digital transition, the incentive auction repack, current technology, and changes in Commission practices.  Assuming the FCC adopts the NPRM as scheduled, it will seek comment on, among other things, whether to eliminate rules that relate to analog operating requirements, and to similarly eliminate language in rules to remove references to digital television or DTV service; whether to delete outdated rules that are no longer valid given changes in Commission-adopted policy, such as the elimination of the comparative hearing process to award and renew broadcast licenses; and whether to make other updates to the Commission’s rules.  Comment dates will be announced when the final version of the NPRM is released (probably on or shortly after September 29).
  • FCC Chairwoman Rosenworcel has circulated a Notice of Proposed Rulemaking (“NPRM”) to bolster the security of the nation’s public alert and warning systems, the Emergency Alert System (“EAS”) and Wireless Emergency Alerts (“WEA”). If adopted by a vote of the full Commission, the NPRM would seek comment on, among other things, ways to improve the operational readiness of the EAS, including the amount of time that broadcasters, cable providers, and other EAS participants may operate before repairing defective EAS equipment; requiring EAS participants to report compromises of their EAS equipment; and requiring EAS participants to employ sufficient security measures to ensure the confidentiality, integrity, and availability of their respective alerting systems and to annually certify to having a cybersecurity risk management plan in place.
  • The decision of the United States Court of Appeals for the D.C. Circuit in NAB v. FCC became effective on September 6, meaning that the requirement that broadcasters check Justice Department and FCC websites to verify the foreign governmental entity status of lessees of their airtime is no longer in effect. The FCC still has the option of petitioning by October 11, 2022 the Supreme Court to review the D.C. Circuit decision.  For more details about this case, see our Broadcast Law Blog here. The requirement that broadcasters receive a verification directly from program suppliers that they are not representatives of foreign governments remains in place.  Broadcasters should have written verification by September 15 from all parties buying program time on broadcast stations (or supplying programming for free) certifying that they are not representatives of foreign governments, and that have not been paid by foreign governments to supply their programming to a station.

 

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

  • On September 2, the FCC released a Report and Order (“R&O”) and Notice of Inquiry adopting the regulatory fee schedule for fiscal year 2022 and seeking comment on issues related to the FCC’s allocation of indirect “full time equivalents” for its employees. Allocation of the FCC’s employees is important because the number of its employees allocated to particular tasks is used as the basis for allocating regulatory fees among the various industries regulated by the FCC.  The R&O largely adopts the proposals from the FCC’s Notice of Proposed Rulemaking  (“NPRM”) released on June 2, 2022 but, notably for radio broadcasters, fees will increase by 7-8% compared to the 12-13% increase proposed in the NPRM.  And for full power TV broadcasters, the R&O adopts a factor of .84 of one cent ($.008430) per person served compared to the .88 of one cent proposed in the NPRM.  The R&O declined to adopt other broadcaster-specific relief proposals from the National Association of Broadcasters and others, rejecting proposals including one to raise the de minimis threshold above $1,000 and another to exempt broadcasters from the costs associated with the FCC’s broadband data mapping work.  The regulatory fees adopted in the R&O will be due in late September 2022 on a date to be announced in a soon-to-be-released public notice.
  • On August 31, the FCC’s Media Bureau entered into two consent decrees in connection with its review of the renewal applications of a group of commonly owned FM stations in California. In the first consent decree,  five of the six stations conceded that they failed to timely place issues and program lists in their online public inspection files.  The Bureau granted the stations’ renewal applications but required that the licensee adopt a comprehensive Compliance Plan to prevent future violations of the FCC’s public file rule.  For the same reason, the Bureau entered into a similar separate consent decree consent decree with the sixth station, but also denied an informal objection against the station’s renewal application.  The objection alleged that the station had been off the air for 18 months, which would have required the cancellation of the license (required for stations silent for more than a year without a rarely granted public interest exception).  The Bureau found that there was insufficient evidence to support this allegation, and instead relied on the station’s certification that it had remained on the air for the requisite period of time.
  • On our Broadcast Law Blog, we published our monthly look ahead at the regulatory dates and deadlines for broadcasters in September, including the deadlines for filing for reimbursement of expenses incurred because of the TV incentive auction by radio, LPTV and TV translator stations and the date by which broadcasters are required to have received assurances from all buyers of program time that they are not foreign governments or agents of such governments.

As summer begins to wind down, just like the rest of the world, the FCC and other government agencies seem to pick up speed on long delayed actions.  Broadcasters can anticipate increased regulatory activity in the coming months.  For September, there are a few dates to which all broadcasters should pay attention, and a few that will be of relevance to a more limited group.  As always, pay attention to these dates, and be prepared to address any other important deadlines that we may have overlooked, or which are unique to your station.

All commercial broadcasters will need to pay attention to actions which will likely come in rapid fire in the next two weeks, setting the deadlines for payment of the Annual Regulatory Fees that must be paid before the October 1 start of the next fiscal year for the FCC.  Look for an Order very soon deciding on the final amounts for those fees.  That Order will be quickly followed by a Public Notice setting the payment dates and procedures.  Then watch for fact sheets from each of the Bureaus at the FCC.  The Media Bureau fact sheet will cover the fees to be paid by broadcasters.  Be ready to pay those fees by the announced September deadline, as the failure to pay on time brings steep penalties. Continue Reading September Regulatory Dates for Broadcasters:  Reg Fees, Foreign Government Program Certifications, Final Chance to Claim Reimbursement for Repacking Expenses, Comments on ATSC 3.0 and FTC Advertising Inquiry, 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.

  • Revisions to the pending Journalism Competition and Preservation Act were released to the public this week (revised draft bill). The bill is designed to provide an antitrust exemption to media companies to jointly negotiate with the big tech platforms over the terms on which the platforms can distribute their content.  We wrote on our Broadcast Law Blog about the original bill when it was introduced last March.  The new draft makes a number of changes, including providing more details on the mechanics for forming negotiating groups of traditional media companies to qualify for the antitrust exemption.  It also contains provisions to prevent the online platforms from refusing to deal with a media negotiating group based on the political leanings of its members, and it provides for groups of publishers (apparently not including broadcasters) to force arbitration if their negotiations with the tech platforms are unsuccessful.  The bill has bipartisan political support (see the press release listing Democratic and Republican co-sponsors).  Additional actions to move this legislation in Congress are expected after the end of the summer recess.
  • The FCC’s Media Bureau entered into a consent decree with a New Jersey noncommercial FM station to allow the grant of the station’s license renewal despite its failure to timely place material in its online public inspection file. As has been the case during this radio renewal cycle, no fine was imposed but the station was required to implement a comprehensive Compliance Plan to ensure future compliance with the public file rules (contrast this with the TV renewal cycle where fines have been imposed for similar violations – see, for instance, the last item on another of our recent weekly summaries, here).  The Consent Decree serves as a reminder to all stations that the FCC takes its public file rule seriously and thus stations must remain diligent in ensuring that their online public inspection files are properly maintained.
  • The Federal Trade Commission announced that it is seeking additional public comment on how children are affected by digital advertising and marketing messages that may blur the line between ads and entertainment. The FTC is seeking public input in conjunction with an October 19, 2022 event that will examine this topic. The public will have until November 18, 2022 to submit comments. Information on how to submit comments is available on the event page.
  • The FCC allotted a new FM channel to Big Coppitt Key, Florida. This Class C3 FM channel will be available in a future FCC auction window when parties interested in starting a new radio station to serve that community can bid on the channel.
  • On our Broadcast Law Blog, this week we wrote about the legal issues that may arise where broadcasters air “franking” ads from Congressional representatives running for reelection. Congress each year allows its members to spend certain amounts of money to communicate with their constituents.  When these ads are voiced by a Congressional representative running for reelection, FCC equal time and political file issues can be raised, as described in the article.  In addition, we wrote about the FCC’s second EEO audit notice for 2022 and the implications for stations selected for audit (we also covered this in last week’s weekly update of regulatory actions), the copyright issues raised by a Texas church’s performance and YouTube transmission of their adapted version of the musical Hamilton, and about the different political broadcasting rules that cover broadcasters, cable and satellite television providers, and online companies which allow online providers to reject candidate ads that a broadcaster would have to air.

Watch our Broadcast Law Blog next week for our monthly look ahead at regulatory dates of importance to broadcasters in September, and for likely news about the final amounts for the broadcast regulatory fees due in September.

Facebook will disable “new” political ads the week before this year’s November mid-term election (see its post on this policy here), just as many broadcast stations will be struggling with commercial inventory issues, trying to get last minute political ads on the air without having to dump all of their regular commercial advertisers who will be just starting to ramp up their commercial campaigns for the holiday season.  We’ve written previously about how the legal policies that govern Facebook and other online platforms are different than those that govern broadcast, local cable, and direct broadcast satellite (DBS) political ad sales.  Many of the policies adopted by these online platforms could not be adopted by broadcasters, local cable and DBS companies.  In light of Facebook’s recent announcement and the upcoming election, we thought that we would recap some of our previous reviews of this issue.

In June 2021, we wrote about Facebook’s plans to end its policy of not subjecting posts by elected officials to the same level of scrutiny by its Oversight Board that it applies to other platform users.  Facebook’s announced policy has been that the newsworthiness of posts by politicians and elected officials was such that it outweighed Facebook’s uniform application of its Community Standards – although it did make exceptions for calls to violence and questions of election integrity, and where posts linked to other offending content.  Just a year before, there were calls for Facebook to take more aggressive steps to police misinformation on its platforms. These calls grew out of the debate over the need to revise Section 230 of the Communications Decency Act, which insulates online platforms from liability for posts by unrelated parties on those platforms (see our article here on Section 230). Continue Reading Facebook to Reject New Political Ads the Week Before the November Election – Why Broadcasters Can’t Do That

We have been receiving numerous calls from broadcasters about “franking” ads from Congressional representatives running for reelection.  Congress each year allows its members to spend certain amounts of money to communicate with their constituents.  This was traditionally done through mailings, which Congressional representatives could send through the US mail without any postage charges (hence the name “franking” deriving from a French word for “free”).  This privilege was later extended to allow the representatives to use broadcast media, but stations are paid for such spots.  These franking messages cannot be used for political messages, and the messages cannot be run during the 60 days before any election.  They tend to talk about how Congressional staff can help constituents with problems accessing government benefits or about how government programs can help residents in their districts.  But just because the messages are not in and of themselves political does not mean that the messages do not have implications under the FCC’s political broadcasting rules.

These franking ads are almost always voiced by the representative (for radio) or have a visual appearance of the representative (for TV).  If the representative is running for reelection, and has qualified for a place on the ballot (for a primary or general election) or will run as a bona fide write-in candidate (see our post here about write-in candidates), then the ads can have FCC political broadcasting implications.  As with any other appearance of a legally qualified candidate on the air outside an exempt program (exempt programs being news or news interview programs or documentaries not about the candidate – see our article here), the recognizable voice or image of a candidate is a “use” by that candidate that triggers equal opportunities for opposing candidates. As we wrote here about advertisers who appear in their company’s commercials and then decide to run for political office, those uses need to be noted in a station’s political file (providing all the information about the sponsor, schedule and price of the ad, as you would for any pure political buy). The use would also trigger equal opportunities, meaning that any opposing candidate can request an equivalent amount of airtime.  But that does not necessarily mean that a station needs to reject these franking ads. Continue Reading Watch for Congressional “Franking” Ads in the Last Weeks Before the Pre-Election Period – The FCC Political Broadcasting Implications

Recent press reports have talked much about a Texas church that decided to put on a production of the musical Hamilton – both live and streamed via YouTube.  The church not only put on the performance of the musical, but also adapted the script to include material with religious themes not included in the original version.  Lin-Manual Miranda, the creator of the musical, was reported to say that, following the discovery of the unauthorized performances, “now the lawyers do their work.”  But just what did the church do wrong?  This case serves as an illustration of how copyright issues pervade society – and these issues are often ignored until an improper use is discovered by a rightsholder or their representative. At that point, the user often gets a quick education in the significant potential penalties they face from ignoring the law.

Like all other copyrighted works, among the rights given to creators of a musical like Hamilton is the right to consent to the public performance of that work.  We have written how that right to consent to public performances is in some cases restricted by statutory or blanket licenses, where the government (either directly, through the Copyright Royalty Board for public performances of sound recordings and the use of musical compositions by noncommercial broadcasters, or indirectly through antitrust consent decrees or settlement agreements that apply to ASCAP, BMI and, in some instances, SESAC – see our article here on some of the issues with these rights).  There are other statutory licenses giving, for instance, cable and satellite television providers the rights to retransmit broadcast stations in exchange for the payment of statutorily set fees (see our articles here and here for some examples of the issues with these statutory licenses). For most other copyrighted works, like plays and musicals, that right to restrict the public performance of a work is not restricted by statutory licenses.  And the writers of theatrical works are diligent in enforcing their copyrights.  So every junior high school performance of The Music Man, or community theater performance of Rent, should be licensed by the representatives of the copyright holders in these works. Continue Reading A Church Gets Called Out for Adaptation of “Hamilton” – Looking at the Copyright Issues

The FCC last Friday released its second EEO audit notice for 2022 (available here), this time targeting approximately 130 radio and TV stations.  Those stations, and the station employment units (commonly owned stations serving the same area) with which they are associated, must provide to the FCC (by uploading the information to their online public inspection file) their last two years of EEO Annual Public File reports, as well as backing data to show that the station in fact did everything that was required under the FCC rules.

Audited stations must provide sample copies of notices sent to employment outreach sources about each full-time vacancy at the stations, as well as documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed, for example, to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide, in response to the audit, information about how they self-assessed the performance of their EEO program. Information about any pending or resolved proceedings involving discrimination claims must also be reported.  Stations that are listed in the audit notice have until October 7, 2022, to upload this information and other specified information about their EEO program to their online public file.  One new note on this audit – the FCC will not inform audited stations that their EEO performance was found satisfactory, but the Commission’s staff will inquire if they have questions or concerns about the performance of any employment unit. Continue Reading FCC Releases Second EEO Audit Notice for 2022 – Reviewing a Broadcaster’s EEO Obligations

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

  • On August 19, 2022, the FCC’s Enforcement Bureau issued the second set of Equal Employment Opportunity (EEO) audit letters for 2022. Each year, approximately five percent of all radio and television stations are randomly selected for EEO audits. A list of the radio and television stations included in this audit as well as the text of the audit letter, setting out the requirements for the responses from the stations selected, is available here.  The deadline for stations to upload their responses to their FCC-hosted online public inspection file is October 7, 2022.  Note that, in contrast with past practice, the Enforcement Bureau will no longer issue letters to licensees upon completion of its review of the audit responses. If questions arise during staff review, the Enforcement Bureau will contact the licensee.
  • The FCC maintains a list of “Items on Circulation” – decisions that have been drafted by the FCC staff for consideration, revision, and review by the Commissioners before those decisions are adopted. On August 18, a new item was added to the list of matters being reviewed by the Commissioners – a Report and Order and Notice of Inquiry on the Annual Regulatory Fees.  As the FCC must adopt a decision soon so that fees can be paid before the start of the FCC’s new fiscal year on October 1, we can expect a quick review by the Commissioners.  Broadcast interests continue to lobby for reduced broadcast fees, including a letter from 92 Congressional representatives opposing increased fees sent this week to the FCC Chair.  As we wrote here, broadcasters have suggested that technology companies should pay a share of the regulatory fees as they benefit from FCC decisions.  Now, only licensees pay for the cost of FCC regulation.  But, given the need for immediate adoption of the fees for this year, the NAB has recognized that the extension of the obligation to pay fees may need to wait for future years.  The Notice of Inquiry may well ask questions as to how such a policy could be implemented in future years consistent with the provisions of the Communications Act.
  • On our Broadcast Law Blog, this week we wrote more about the $60,000 penalty imposed on an LPTV station for violations of the FCC sponsorship identification and political broadcasting rules. We mentioned that case in last week’s summary of regulatory actions.  Our article this week details the legal issues raised in that case where the broadcaster sold advertising packages that included not only spots but also an interview in what was seemingly a local interest news interview program, without identifying the interview segments as having been sponsored.

 

Last week, the FCC entered into a consent decree with the operator of a low power TV station, where the broadcaster admitted to violating FCC rules by selling advertising packages that included guaranteed appearances of the advertiser on a local news and information program, without any notice to viewers that the programming was sponsored.  The decree imposed a 5-year compliance plan on the licensee, requiring the training of employees on sponsorship identification requirements of the FCC rules, the adoption of plans to ensure that the issue does not arise again, and the reporting to the FCC of any similar issues that arise in the future.  In addition, the licensee had to pay a $60,000 penalty – and the language of the decree suggests that this fine would have been significantly larger had the licensee been able to pay more (as it was, the licensee is allowed to pay off the penalty in $1000 per month increments). This penalty should not be a surprise, as the conduct raises significant sponsorship identification issues, as well as a host of issues under the FCC’s political broadcasting rules.

Having paid appearances in local programming without a sponsorship identification has in the past been a source of FCC concern – and has resulted in big penalties where a sponsor is not disclosed to the public.  For instance, we wrote here about a fine of more than $13 million imposed on Sinclair Broadcasting for running feature stories about a local cancer institute that had been promised to the institute as part of a paid advertising package, without disclosing the payment on-air.  Any time a broadcaster receives anything of value in exchange for saying something on the air, the broadcaster needs to disclose that consideration and who provided it.  Even program suppliers need to disclose that they have been paid when they have been paid to say something on the air.  For more information, see, for example our article here where a TV political commentator was required to disclose that he was being paid to support certain political positions, and our article here on requiring program syndicators to make clear when programming they provide has been sponsored.  The FCC’s recent rules about the disclosure of foreign government-sponsored programming (see our articles here and here) also require that broadcasters assure that any buyer of program time on the station has not itself been paid by a foreign government or their agent to say something in their programming. Continue Reading $60,000 Fine on LPTV Station For Political Broadcasting and Sponsorship Identification Issues with Ad Packages Containing News Program Appearances