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

  • The FCC issued its Notice of Proposed Rulemaking proposing the annual regulatory fees to be paid by September 30, the end of the government’s fiscal year, by broadcasters and others regulated by the FCC. Public comment on the FCC’s proposal is due July 5, 2022, with replies due by July 18 (Notice of Proposed Rulemaking). The NAB issued a statement attacking the proposed 13% increase in the fees to be paid by radio stations as “an unjustified increase” that would be “devasting” to local radio services (NAB Statement).  A decision on the final amount of the proposed fees is routinely released in late August or very early September so that fees can be paid before the October 1 start of the new fiscal year.
  • In connection with the proposed acquisition of the Tegna TV stations by Standard General, L.P., the FCC issued a letter request asking for significant additional information about the pending application – including documents submitted to the Department of Justice in connection with the Hart-Scott-Rodino filing that seeks antitrust approval for the deal. The HSR documents include internal memos and documents submitted to funding sources that outline the competitive impact of the proposed transaction. The FCC request also asks for a description of the public interest benefits of the proposed transaction, and the impact it would have on employment at the stations to be acquired (FCC Request).  This is information not routinely sought by the FCC in the assessment of a broadcast acquisition.
  • The FCC’s Enforcement Bureau issued another letter to a landowner in Baltimore whose property was believed to be home to a pirate radio operation. The letter gives the property owner 10 days to respond, and notes that hosting a pirate radio station can lead to a $2,000,000 fine (Letter).  We recently wrote on our Broadcast Law Blog, here, about other landowners who received similar letters when they were identified as hosting pirate radio operations.
  • Following Federal Register publication, new FCC rules became effective, making it clear that broadcasters and cable companies have obligations to post information to their online public file about advertising that runs on their stations addressing federal issues (Public Notice). As we wrote here when these rule changes were initially announced, they have little practical effect as their requirements were already spelled out in the Communications Act, and the FCC already enforced the Act’s requirements.  The changes just made the FCC’s rules conform to the language of the Act.
  • The FCC’s Further Notice of Proposed Rulemaking on unlicensed “white spaces” devices that operate in the TV Band was published in the Federal Register, setting the deadline for public comment as July 1, with reply comments due August 1 (Federal Register). The FCC earlier this year adopted new rules that require fixed and certain personal/portable white space devices to check white space databases at least once per hour for other spectrum users to be protected from interference, replacing a prior rule that had not been enforced requiring the databases to push information to white spaces devices whenever there was a new wireless microphone or other protected use in the area in which the white space device was operating.  This Further Notice seeks comments on whether “unlicensed narrowband white space devices” should be subject to the same hourly requirement to check white space databases as other users or whether some other monitoring obligation should apply.

With the traditional beginning of summer upon us, there is no vacation from the regulatory actions of importance to broadcasters.  Let’s start with the routine actions for the upcoming month.  With the radio license renewal cycle having ended with the filing of the last set of renewal applications in April, we enter the last year of the cycle for television.  Renewals applications for Full-Power Television, Class A, LPTV and TV Translator Stations in Arizona, Idaho, Nevada, New Mexico, Utah and Wyoming are due on June 1.  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.  Note that your Broadcast EEO Program Report must include two years of annual EEO public file reports for FCC review, unless your employment unit employs fewer than five full-time employees.  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 already led to fines imposed on TV broadcasters during this cycle.

Also, on or before June 1, all radio and TV station employment units (a station employment unit is a station or stations that are under common control, share at least one full-time employee, and are in the same geographic area) with five or more full-time employees licensed to communities in Arizona, District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming must upload to their online public inspection file an Annual EEO Public File report.  This report covers hiring and employment outreach activities for June 1, 2021 through May 31, 2022.  These licensees must also post on the homepage of their station website (if they have one) a link to the most recent report. Continue Reading June Regulatory Dates for Broadcasters:  TV Renewals, EEO Public File Reports, Comments on Zonecasting, Start of Channel 6 FM Rulemaking and More

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

  • The FCC has requested comments on a proposal for a new Content Vendor Diversity Report. A public interest group has asked the Commission to require this report to gather information on the race and ethnicity of employees and senior leadership of vendors of video content to both traditional media and streaming services.  The requested comments are meant to inform the FCC as to whether it should move forward to review this proposal.  A formal Notice of Proposed Rulemaking would be necessary before any final rules are adopted.  Comments are due July 22, with replies due August 22. (Request for Comments)
  • In a major First Amendment decision, the 11th Circuit Court of Appeals issued an injunction prohibiting the State of Florida from enforcing its laws that would have limited social media platforms from various forms of content moderation. The law had provisions including forbidding the “deplatforming” of any candidate for public office, limiting the platforms’ ability to favor or disfavor content about any candidate, restricting any actions favoring or disfavoring content from any “journalistic enterprise,” and requiring the release of a “thorough rational” for every content moderation decision made by the platforms.  The Court determined that, as private companies, these platforms could make such decisions without government intervention, and the state cannot penalize them for the content moderation decisions that they make. (Opinion of the Court)
  • The FCC issued fines to two companies whose broadcast stations were silent for extended periods without requesting FCC approval. In one case, a translator operator was fined $4000 for being silent for over 11 months without requesting FCC approval, and for failing to notify the FCC that the translator has changed its primary station.  This fine was reduced from a proposed fine of $8000 upon the licensee’s showing of economic hardship (Forfeiture Order).  In another case, the Media Bureau fined a broadcaster $17,500 for the silence of an AM station and associated translator that was only brought to the FCC’s attention by informal objections to the licensee’s license renewal application.  The fine also covered the failure to report the silence in connection with the renewal application (where the licensee had certified that the station had not been silent for more than 30 days) and for public file violations (Forfeiture Order)
  • The Media Bureau denied a request for an extension of the deadline for comments on the tests of GeoBroadcast Solutions system of using FM boosters to originate limited amounts of programming different from that provided by their primary stations. We wrote about this request for comments on our Broadcast Law Blog, here.  The Bureau denied the extension request filed by the NAB and NPR which had asked for an additional two weeks to review the technical showings.  The Bureau said that extensions are not routinely granted, and no good cause had been shown for an extension in this case (Order).  The comment date remains June 6 with replies due June 21.
  • The FCC’s Office of Managing Director announced that the “legacy CORES” database will be decommissioned on July 15. A new system, CORES2 has been active since 2016.  To manage their FCC Registration Numbers (FRNs) needed for many FCC filings, including the resetting of passwords, any FCC user who has not registered in the new CORES2 system should do so to avoid delays in future FCC filings (Public Notice).
  • In allocations proposals, the FCC proposed substituting channel 22 for channel 9 at Orono, Maine for WMEB-TV (Notice of Proposed Rulemaking). The FCC also allocated a new FM channel, 263A, to Hamilton, Texas, which will be available in a future FM auction (Report and Order).

 

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

  • The FCC issued a draft Notice of Proposed Rulemaking to be considered at its required monthly open meeting on June 8 that asks for public comment on its proposal to authorize LPTV stations operating on TV channel 6 to continue to provide an analog audio stream that can be received on FM radios at 87.7. Its proposal would limit that authorization in many ways, including suggesting that the authority would be restricted to those LPTV Channel 6 stations already providing such an audio service.  The Notice also asks for comments as to whether Channel 6, in geographic areas where it is not currently used for TV services, should be repurposed for FM use (a proposal that has previously been advanced by the FCC, see our Broadcast Law Blog article here on previous FCC requests for comment on this issue).  If the FCC adopts this Notice at its June meeting, comment dates will be announced by a Federal Register publication (draft Notice of Proposed Rulemaking).
  • The FCC, at its May open meeting held Thursday, adopted its order approving the use of computer modeling for FM directional antenna – eliminating the need under current rules for a measured relative field pattern verified through either a full-scale mockup or a scale model on a test range or in an anechoic chamber. The Order will be effective at a later date after publication in the Federal Register (Report and Order).
  • The FCC’s Office of Economics and Analytics issued the FCC’s annual call for comments on the State of Competition in the Communications Marketplace. Comments are due July 1 with reply comments due August 1.  These comments are used to prepare a report to Congress on communications competition issues and are sometimes referenced by the FCC itself in proceedings dealing with competition issues.  The FCC seeks comments on a list of questions about competition in both the Video and Audio marketplaces, including the impact of digital competitors on traditional providers and the role that regulation plays in the competitive landscape (Public Notice).
  • In its continuing review of applicants for new noncommercial FM stations filed during the filing window in 2021, the FCC reversed a decision granting an application for a new station in Mississippi based on its proposed coverage. The decision was reversed as the FCC found that a showing of the populations covered by the proposed new station, which supported the claims for that preference, was not filed by the deadline date for the filing of applications.  As the FCC procedures for the filing window required all claims for preferences be filed by the application deadline, the grant was rescinded, and another application was granted instead (Letter Decision).
  • In Auction 112, the sale of construction permits for 27 new full-power TV stations, mostly in rural western markets, the FCC announced that there were 10 qualified applicants who had paid their upfront fees to participate in the auction where bidding is scheduled to begin on June 7, 2021. (Public Notice)(List of Qualified Bidders)
  • On Capitol Hill, a bipartisan group of 4 senators introduced legislation which, if adopted, would force large online platform to own only one of the three parts of the digital ad ecosystem – they could only be a Supply-side ad provider (bundling advertising availabilities to provide them to an ad exchange), an Advertising Exchange (where buyers and sellers are matched), or a Demand-side provider (where those buying advertising come to buy ads on the exchanges). Smaller digital advertising platforms would also be regulated to require more transparency and to avoid internal conflicts of interest.  The proposed legislation is intended to boost competition in digital advertising sales and to lower the costs allegedly imposed by the overlapping interests of companies with interests in multiple aspects of the digital ad sales process.  (Press Release)(Summary)(Text of Proposed Legislation)
  • At a meeting this week, the Federal Trade Commission announced that it is considering changes to its endorsement guidelines which regulate false and misleading reviews of products and services, and which require disclosure of anything that the endorser receives in exchange for its review. While principally targeted to online marketing, these rules also apply to endorsements on more traditional media platforms.  (Press Release)(Notice of Proposed Changes and Request for Comments)

 

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

  • The FCC rejected a request that it reconsider its December 2020 decision to end a proceeding to set aside one vacant TV channel in each market for exclusive use by unlicensed wireless microphones and white space devices. The Commission concluded that, following the incentive auction and repacking, there was insufficient television spectrum left for there to be a set-aside channel in every market, and there were other ways to accommodate wireless microphones and other unlicensed users (Order on Reconsideration).  Read our blog post about the December 2020 decision, here.
  • Legislation has been introduced in Congress to update the CALM Act. The proposed legislation, if adopted, would eliminate the safe harbor that TV broadcasters currently enjoy if they use approved technology to prevent loud commercials. Instead, that technology would not shield a video provider from possible liability if there was evidence that significant violations were occurring, a determination to be made based on factors including the number of complaints pending and the nature of those complaints.  The legislation would also extend the applicability of the act beyond broadcast and cable to cover streaming video providers.  (Press Release)(CALM Modernization Act).
  • On our Broadcast Law Blog, we wrote last week about the FCC’s current role in regulating the Internet (Blog Post). On the same day we published our article, it was announced that Senator Bennett from Colorado introduced legislation in Congress to create a Federal Digital Platform Commission to regulate Internet platforms. If adopted, the new commission would regulate online platforms to achieve many goals including consumer protection, transparency in moderation policies, ensuring robust competition, and increased educational and public interest content. (Press Release)(Section by Section summary)(Text of Legislation)
  • Following a “paper hearing” designed to speed FCC decisions when cases require fact finding by an FCC administrative law judge, a judge found that a convicted felon’s crimes were not serious enough to warrant his company’s losing its radio licenses. In the case of a felony conviction, the FCC analyzes whether the crimes are so serious that the licensee does not have the character to serve the public as well as whether the crime is indicative of the licensee’s likelihood of not being truthful and forthcoming with the FCC.  In this case, the sole shareholder of the licensee, a former speaker of the Alabama House of Representatives, was convicted of crimes relating to improper use of his office for private gain. The judge determined that those crimes were not predictive of his likelihood to be truthful with the FCC, especially given the station’s history of FCC compliance.  Nor were the crimes deemed so morally reprehensible that they demanded that the license be forfeited (Decision). We took a deeper look at this case and the FCC’s character policies when the hearing in this case was first announced, here.
  • The Media Bureau deleted FM channels at Millerton, Oklahoma; Powers, Oregon; Mount Enterprise, Texas; Paint Rock, Texas; Hardwick, Vermont; and Meeteetse, Wyoming. These channels had been included in multiple FM auctions without being sold and no party expressed an interest in bidding on those channels in a future action.  But, because a party pledged to file for it in the next FM auction filing window, the FCC did not delete a vacant allotment at Snowflake, Arizona. (Order)
  • The Audio Division of the Media Bureau rejected a request to cancel the license of a station that went silent and failed for more than a year to notify the FCC that it had gone back on the air. Under Section 312(g) of the Communications Act, a station that is silent for more than a year will have its license automatically canceled unless it can show that the public interest requires the license be extended.  In this case, as the licensee showed that it had in fact returned to operations within the one-year period, the license was not cancelled.  However, because the station was silent for 248 days out of the two years that it was licensed to operate, it was given only a short-term license renewal for only one year, instead of the normal eight years, as the FCC found that prolonged periods of silence did not serve the public.  The short term renewal will allow the licensee to demonstrate that it would in fact serve the public in the future.  (Order and Consent Decree)

In our summary of last week’s regulatory actions, I was struck by a common thread in comments made by several FCC Commissioners in different contexts – the thread being the FCC’s role in regulating Internet content companies.  As we noted in our summary, both Republican commissioners issued statements last week in response to a request by a public interest group that the FCC block Elon Musk’s acquisition of Twitter.  The Commissioners stated that the FCC had no role to play in reviewing that acquisition.  Twitter does not appear to own regulated communications assets and thus the FCC would not be called upon to review any application for the acquisition of that company.  The Commissioners also noted concerns with the First Amendment implications of trying to block the acquisition because of Musk’s hands-off position on the regulation of content on the platform, but the Commissioners’ principal concern was with FCC jurisdiction (Carr Statement, Simington Comments).  In the same week, FCC Chairwoman Jessica Rosenworcel, in remarks to a disability rights organization, talked about plans for more FCC forums on the accessibility of Internet content to follow up on the sessions that we wrote about here.

The ability of the FCC to regulate internet content and platforms depends on statutory authority.  In holding the forums on captioning of online video content, the FCC could look to the language of the 21st Century Communications and Video Accessibility Act, which included language that asked the FCC to look at the accessibility of video content used on internet platforms.  In other areas, the FCC’s jurisdiction is not as clear, but calls arise regularly for the FCC to act to regulate content that, as we have written in other contexts, looks more and more like broadcast content and competes directly with that content. Continue Reading Does the FCC Regulate Internet Content and Companies? 

The FCC released a Public Notice last week setting the date for comments on the results of GeoBroadcast Solutions tests of their “zonecasting” system that would allow FM boosters within a primary FM station’s protected contour to originate limited amounts of programming different than that carried on the main station. Comments on the tests are due by June 6, with replies to the comments due by June 21.

The zonecasting proposal has been pitched as a way to allow FM stations to localize their content – making it possible for one FM station to use FM boosters to run different commercials or news inserts in different parts of their service area.  The hope of supporters is that adoption of this proposal would give broadcasters a tool to fight back at the targeting of listeners that can be done by online audio services.  While some stations and groups have seen this as a potential positive, others, including the NAB, have been more critical of the proposal. Continue Reading Comments on Tests of GeoBroadcast Solutions Zonecasting System Due June 6 – What Are the Issues?

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

  • Follow field testing by GeoBroadcast Solutions of its zonecasting system, the FCC opened a new comment period for interested parties to weigh in on the test results released by the company. Zonecasting technology allows FM boosters to originate some local programming so an FM broadcaster can provide different commercials or news inserts to different parts of its service area.  Comments and reply comments on the test results are due by June 6 and June 21, respectively.  (Public Notice)
  • The FCC announced that more radio applications would soon be migrated from the now-shuttered CDBS application platform to the Licensing and Management System (LMS). Starting May 17, broadcasters must use LMS to file requests for Special Temporary Authority (STA) and extensions of STAs, among other filings.  We wrote about this announcement on our Broadcast Law Blog, here. Review the full Public Notice for additional information and filing procedures.  (Public Notice)
  • The FCC released a Notice of Illegal Pirate Radio Broadcasting to four separate property owners warning them that FCC agents, acting on complaints, determined that unauthorized radio broadcast signals were originating from their properties. Under the 2020 PIRATE Act, property owners can be held liable for pirate radio broadcasts, even if they are not involved in the broadcasts themselves.  The property owners could face penalties of up to $2 million if they continue to allow any individual or entity to engage in pirate radio broadcasting from the property that they own or manage (Summerville, Oregon) (Baltimore, Maryland) (Kissimmee, Florida) (Philadelphia, Pennsylvania). We covered these FCC actions in more detail on the Broadcast Law Blog, here.
  • The FCC resolved another 13 groups of mutually exclusive applicants from last year’s window for filing for new noncommercial FM stations, selecting the tentative winner in each group based either on a preference for coverage proposed to areas underserved by noncommercial stations or on one applicant’s significantly greater proposed coverage area (Memorandum Opinion and Order). The FCC has yet to process mutually exclusive applications that cannot be resolved based on technical coverage.  These applications will instead be processed based on the “point system” analysis that applies to NCE applications.  See our articles here and here on the point system.
  • In remarks to the American Association of People with Disabilities Tech Forum, FCC Chairwoman Jessica Rosenworcel, in highlighting the FCC’s accomplishments in advancing accessibility to various channels of communications, promised to hold additional forums on the accessibility of video programming – including looking at the accessibility of video programming delivered online (Remarks). We wrote about the forum held last year by the FCC to consider these issues and the jurisdictional questions raised about the FCC’s review of the activities of online platforms, here.
  • A Petition for Rulemaking was filed by Fuse LLC, backed by Common Cause, National Hispanic Media Coalition, Public Knowledge, and United Church of Christ Media Justice Ministry, asking the FCC to establish an annual program diversity reporting requirement for broadcast, cable and satellite television providers and their affiliated online platforms. Fuse asks that this annual report detail the diversity of the vendors of content to these video providers – including reporting on the diversity of their full-time employees and of the leadership of networks and studios.  (Petition for Rulemaking).  This is merely an initial proposal for the FCC’s consideration.  Several rounds of public comment would be required if the FCC decides to further consider this proposal.
  • In response to the suggestion of a public interest group that the FCC block the takeover of Twitter by Elon Musk, both Republican Commissioners released statements questioning the authority of the FCC to review this merger. (Carr Statement, Simington Comments)

Broadcasters may also be interested in our summary of regulatory dates and deadlines for May and early June, which we published this week on our Broadcast Law Blog.

The FCC yesterday made public four letters to landowners warning them that there were unlicensed FM radio operations coming from their properties and warning that, if the transmissions continued past the 10-business day response period, the landowners could be held liable for penalties up to $2,000,000 for the unlicensed operations coming from their properties.  The letters were sent to landowners in Summerville, Oregon; Baltimore, Maryland; Kissimmee, Florida; and Philadelphia, Pennsylvania.

These actions follow the 2020 enactment of the federal PIRATE Act which increased potential fines on operators of unlicensed radio stations to up to $100,000 per day, and up to $2,000,000 in the aggregate.  The act authorized fines not only on pirate radio operators themselves, but also on anyone who “knowingly does or causes or suffers to be done any pirate radio broadcasting,” which seemingly authorizes the types of fines threatened in yesterday’s notices directed to the landowners where pirate radio stations operate.  As operators may be hard to identify, the ability to seek penalties against landlords, who are readily identifiable from local land records, gives the FCC a much stronger tool with which to combat pirate radio operators.  We last wrote about FCC actions against pirate radio in connection with settlements with operators in mid-2020, so these actions may signal that the FCC is again looking to enforce the prohibitions against unlicensed operations.

 

The FCC this week released a Public Notice (that we mentioned in our update on regulatory dates for May) announcing that, on May 17, many new applications and other filings will be migrating to the FCC’s newer LMS filing platform.  These include many of the documents that had been until recently filed in the FCC’s old CDBS platform.  These applications had, since CDBS was closed for new filings, been submitted through emails to the FCC (see our articles here and here).

Most notably, the new LMS filings will include requests for Special Temporary Authority – and future requests for extensions of STAs.  The FCC notes that for STAs that had originally been filed in CDBS, rather than filing an extension request for such STAs, applicants should initially file for a new STA in LMS and indicate in an exhibit that the request is for an extension of an existing STA that was filed in CDBS (or by email in the interim processing period).  The full list of applications that will, as of May 17, be filed in LMS is as follows:

  • FM Engineering Special Temporary Authorizations (STAs)
  • Request for Silent STA
  • Extension of STA – Silent
  • Extension of STA – Engineering
  • Suspension of Operations Notification
  • Resumption of Operations
  • AM/FM Digital Notification
  • Modulation Dependent Carrier Level (MDCL) Notification
  • Change of Primary Station Notification
  • Tolling Notification
  • Reduced Power Notification
  • Withdraw Pending Applications

Continue Reading More FCC Broadcast Applications Moving to LMS – Including Requests for STAs