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

  • The FCC Enforcement Bureau this week announced its latest round of random EEO audits. More than 250 radio and TV stations were randomly selected for an audit of their EEO performance.  These stations have until May 5, 2022 to prepare and upload their responses to their online public files.  The response from stations with five or more full-time employees in their station employment unit (commonly owned stations serving the same area) must include copies of their last two annual EEO Public File Reports, documentation of their recruitment efforts to fill full-time positions, and documentation to back up their non-vacancy specific recruitment initiatives.  Station employment units with fewer than five full-time employees are generally exempt from EEO recordkeeping and can respond to the audit with an upload that confirms their status by listing the unit’s full-time employees by job title and number of hours worked per week.  See our post on the Broadcast Law Blog for more information, and read the audit letter setting out all the requirements for the audit response and the list of audited stations, here.
  • The FCC announced that one of its Administrative Law Judges will hold a hearing to determine if a Tennessee AM station’s license should be revoked after the sole principal of the licensee, a former state senator, was convicted in 2016 of fraud for making false statements in his federal tax return. The FCC’s Character Qualifications Policy Statement sets out criteria to determine if non-broadcast misconduct is serious enough to warrant a penalty including the possible loss of the broadcast license.  A felony conviction involving lying to another government agency will normally trigger such a review.  The FCC suggested that the criminal violation for not being truthful to another government agency might be more serious in this instance as that conviction was not reported timely (a broadcast licensee must report to the FCC a felony conviction of any of its principals by the next anniversary date of the filing of the station’s license renewal application – the licensee’s notice here came a few weeks late) and because other required station documents were not timely uploaded to the station’s public file.  (Hearing Designation Order)
  • The FCC denied an appeal of a Media Bureau decision rejecting an objection to a proposed assignment of a broadcast station. The objector argued that they had a contractual right to acquire the station, and that the sale of the station would not be in the public interest because the petitioner would be a better licensee as it was controlled by minorities not well represented in station ownership in the market where the station operated.  The FCC denied the objection as there was no local court adjudication of the claims of the third-party to its rights to acquire the station (in fact, allegedly, no claim had even been filed in local courts).  The FCC itself will not routinely assess contract claims, leaving those determinations to state courts.  The FCC also denied claims that the petitioner would be a better licensee than the actual buyer, as the Communications Act forbids the FCC rejecting a proposed sale where the buyer is otherwise qualified to own a station just because there might be some allegedly better buyer.  The FCC also did not find any evidence of actual discrimination in the sale to the proposed buyer. (Order)
  • The FCC released its second order resolving conflicts between groups of mutually exclusive applications filed during last year’s filing window for new noncommercial FM stations in the reserved band. 19 groups of mutually exclusive applications were resolved, again based on a determination that the winning applicant was preferred because of its greater service to areas where there were few other noncommercial stations (Order). Read more about the mutually exclusive noncommercial applications resolved in the first group and the standards used by the FCC in making these determinations in our post on the Broadcast Law Blog.
  • In response to a recent NPR article that suggested that advertisers could lie in political advertisements, we posted on the Broadcast Law Blog an article that looks at the restrictions on a broadcast licensee censoring the political message of a candidate. However, those same restrictions do not apply to ads from a non-candidate group – meaning that stations must assess the truth of ads from PACs, political parties and similar organizations, particularly when the truth of those ads is challenged, as station can have liability if the ads are found to be defamatory. (Broadcast Law Blog)

Looking ahead to next week, March 31 is the deadline for commercial radio stations that have not already signed a music licensing agreement with Global Music Rights (GMR) to either sign the agreement offered as part of GMR’s settlement of its litigation with the Radio Music License Committee (RMLC), negotiate a different deal with GMR, or to make sure that they are not playing any music in the company’s catalog.  Continuing to play GMR music without a license risks a copyright infringement action and significant liability.  Read more about the GMR license agreement, here.

For television operators, 6 pm Eastern on March 30 is the deadline for filing short-form applications to participate in Auction 112, an upcoming auction of 27 construction permits for new full-power TV stations.  Read the auction procedures and see the list of available construction permits, here.

Last week, NPR ran a story with the provocative headline – “The Truth In Political Advertising – You’re Allowed to Lie.”  The story talked about how the FCC does not regulate candidate advertising to decide the truth of political ads, and then quoted a former FCC Chair to say that candidates can “lie” in their ads and the FCC will do nothing about it.  The Chairman was then quoted to say that the FCC had been considering proposals to require greater sponsorship identification in political advertising during the last Democratic administration so that the individuals and groups backing various political advertisers would be better identified as to who is actually behind efforts to convince the public of the positions advocated in such ads.  While the basic premise of the NPR story—that the FCC cannot censor candidate ads—is true, the story conflates the law with respect to candidate ads and the rules governing non-candidate groups that buy political time.  As a short radio story, it also misses some important caveats on the premises it advances.  So let’s take a deeper look at those issues.

First, on candidate ads, we’ve written many times before that Section 315 of the Communications Act prohibits broadcasters from censoring the content of candidate ads.  That has been interpreted to mean that an ad sponsored by a legally qualified candidate for public office must be run by a station as presented to the station, absent the ad itself violating some federal criminal statute (e.g., a station might be able to reject an ad if it was legally obscene – a caveat that was widely discussed when Larry Flynt, the publisher of the notorious Hustler magazine, threatened to run for President so he could run obscene political ads without censorship).  Just because a candidate ad may give rise to some civil liability (e.g., for defamation) does not allow a broadcaster to block the ad. But because a broadcaster must run the candidate ad as presented, the station cannot be held liable for the ad’s contents, as the Supreme Court held in a 1959 decision, Farmers Educational and Cooperative Union of America, North Dakota Division v. WDAY, Inc..

As we wrote here, that protection applies only to broadcast and local cable ad sales, so online platforms are not shielded from liability by Section 315.  Whether there are protections for platforms under Section 230 of the Communications Decency Act, which protects online platforms from liability for material provided by third parties, is a question for another article.

But this prohibition on censoring candidate ads applies only to ads purchased by legally qualified political candidates.  It does not apply to ads from non-candidate groups like PACs, political parties (except when their spending is “coordinated” with a candidate), corporations and other interest groups.  Those are the groups to which the enhanced sponsorship identification referenced in the NPR article would apply.  Ever since the Citizens United v. FEC decision in 2010 (see our articles here and here), these third-party ad buyers have formed a bigger and bigger percentage of the buyers of political ads – and they are often the ones who buy the most aggressive attack ads.  But these groups, contrary to the implication of the NPR article, are not shielded by Section 315.  As the NPR article acknowledges, stations can reject ads from non-candidate groups.  Because broadcast and cable outlets can reject these ads, they can be held responsible for the content of these ads.  Thus, to avoid potential liability, broadcasters and local cable operators must review these ads, particularly when there are claims by candidates being attacked alleging that the content of the ads is false and defamatory.  Thus, the implication that anyone can “lie” in a political ad is incorrect.  While the standard for finding that a “public figure” (like a political candidate) has been defamed is very high, stations have been sued for running allegedly defamatory ads (see, for instance, our articles here and here) and, even if the station is able to prevail when a case is brought, they can still face significant legal fees fighting off the claims.

The NPR story itself contains a link to a story done by another public broadcaster, which more thoroughly explains the differences between candidate and non-candidate ads (and which quotes me for the discussion of those issues).  But neither story mentions another limitation on the ability of a candidate to “lie” in a political ad – though one that is seldom if ever used.  While the broadcaster is shielded from liability for the content of a candidate ad, theoretically the candidate who produces an attack ad that contains a real “lie” could themselves be sued by the individual being attacked.  If the content of an ad contains a “lie” that could really give rise to liability for the broadcaster if they were not protected by Section 315, that same content would give rise to liability against the candidate who produced and distributed the ad.  That route is rarely if ever pursued, but it is open to a candidate that has been attacked by an opposing candidate.  Beyond issues of bad publicity, attacked candidates are often reluctant to sue because of the New York Times v Sullivan standards that make it hard to prove defamation of a public figure.  However, as we wrote here, there have been calls to revisit those standards which, if these reforms were ever implemented, might change the calculation of when candidates sue each other for libel or slander on the campaign trail.

The NPR article also expresses surprise that the FCC itself does not regulate the truth of candidate ads the way that the FTC regulates false and deceptive commercial advertising.  As we have written before (see our articles here and here), do we really want a government agency deciding the truth or falsity of political speech?  While the article links to an academic article that suggests that some independent, non-partisan commission could be established to act as the arbiter of truth in these ads, any government agency, no matter how non-partisan it may seem, can either be subject to political bias or—as is the case with the Federal Election Commission, where each political party has equal representation—hopelessly deadlocked on important issues.  With our tradition of the First Amendment keeping government out of the business of regulating speech, do we really want to create a government agency that somehow tries to regulate one of the most protected forms of speech –political speech?

Of course, any short radio article cannot go into depth on these issues – just as this article glosses over many very important nuances of the issues it discusses.  And the suggestion of a former FCC Chair for more enhanced disclosure of those behind third-party ads will be one that we discuss in a future article (though it is also one that we have discussed in the past, here, here, and here).  Just remember, the rules governing political ads are not as clear as they may seem, so broadcasters, during election season, should keep their lawyers on speed-dial!

The FCC yesterday released another of its regular EEO audit notices (available here), this time targeting over 250 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 posting the information in their online public inspection file) their last two year’s 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 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 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. Stations that are listed in the audit notice have until May 5, 2022 to upload this information to their online public file. Continue Reading FCC Releases First EEO Audit of 2022 – Notices Sent to Over 250 Radio and TV Stations

Here are some of the regulatory developments of significance to broadcasters from the last week, and a look ahead at an important deadline next week, with links to where you can go to find more information as to how these actions may affect your operations.

  • New FCC sponsorship identification rules that impose obligations on almost all broadcast licensees took effect on March 15. The new rules require that programming that has been sponsored, paid for, or furnished by a “foreign governmental entity” include a clear, standardized disclosure. The rules also set “reasonable diligence” steps a broadcaster must take to determine whether a foreign government entity is the source of programming aired pursuant to a “lease agreement.” This includes asking program suppliers if they are representatives of foreign governments and confirming their answers by checking specified government websites.  The new rules are now effective for all new or updated leases of program time.  Stations have six months to review existing contracts for the sale of program time to determine if there is foreign-government involvement and to come into compliance with the disclosure requirements.  Short-form advertising, like 30- and 60-second spots, is exempt from the rules.  Stations with questions on the new rules should read our post at the Broadcast Law Blog and reach out to their FCC attorney.  (News Release) (Public Notice) (Report and Order)
  • The FCC rejected an appeal of $512,228 fines it imposed on 18 different TV stations for violations of the FCC’s rules requiring “good faith negotiation” of retransmission consent agreements. The fines were originally handed down in September 2020 after the Media Bureau found that the stations, through a shared consultant, had not operated in good faith in negotiating retransmission consent agreements with a satellite TV provider. The penalties were based, among other things, on the stations’ failures to meet and negotiate the terms of these agreements and to respond to proposals of the other party, including providing the reasons for the rejection of any such proposal.  The decision implied that the negotiations for these stations were put on hold until some other agreement was reached, when the FCC requires each station to negotiate in good faith.  This week’s order found that the parties had fair notice of how the FCC would enforce the good faith negotiation standards and how much of a financial penalty could be imposed. We wrote more about the earlier stages of this proceeding, here.  (Order and Order on Reconsideration).
  • Several changes to the FCC’s radio technical rules that clean up inconsistent, outdated, or inaccurate rules will take effect on April 18. The changes eliminate the rule on the maximum rated power of AM transmitters, clarify city-coverage requirements for NCE FM stations, lessen second-adjacent channel interference protections for Class D NCE FM stations, and update some FM spacing requirements in border areas to conform to Mexican and Canadian treaty obligations.  See more on these changes in this article on our Broadcast Law Blog.  (Federal Register)
  • The Media Bureau fined the licensee of a Chicago FM translator $8,000 for failing to request special temporary authority when it discontinued operations, failing to notify the FCC of changes to the primary station the translator was rebroadcasting, and for failing to update its pending license renewal application with accurate information. The failures were raised in an objection filed against the renewal application. (Notice of Apparent Liability for Forfeiture)
  • The FCC announced that it would be holding a forum on March 28 to discuss the accessibility of online programming, this time to discuss whether audio description requirements, like those that apply to television stations and MVPDs, could or should be extended to online video programming. Audio description requires that television stations provide audio descriptions of the principal visual elements of a television program during natural breaks in dialog in the program.  Details for online viewing of the forum are in the FCC’s Public Notice (Public Notice).  More on the latest expansion of those audio description rules for television stations and MVPDs is available in articles on the Broadcast Law Blog, here and here.  We looked at the FCC’s authority over online video in a blog post here when the FCC hosted another forum last year on other accessibility issues for that programming.
  • A Media Bureau Order announced that certain cable systems have been requested to provide information on the prices paid by consumers for cable television services, and the costs the systems incurred in providing those services, including the amount of retransmission consent fees paid to broadcast stations for the rebroadcast of their signals. This information is required so that the FCC can provide its annual report to Congress on the state of the communications marketplace.  (Order)

As a reminder for the coming week, full power and Class A TV stations that were assigned repacking completion dates in phases 6-10 following the incentive auction must submit all remaining invoices for reimbursement by March 22.  See a reminder about this deadline, here.

The FCC this week announced that broadcasters must now comply with new rules designed to identify when programming is run on U.S. stations that was provided by a foreign governmental entity pursuant to a lease of airtime.  While this seems like a narrow purpose, the new rules will impose a burden on broadcasters.  Because of First Amendment considerations, the FCC cannot totally prohibit the broadcast of such programming, but it adopted this rule to ensure that audiences are informed about programming backed by a foreign government.  The NAB and other groups have appealed the FCC’s rules, and that appeal is pending.  The court also denied a request to delay the requirements of the new rules from going into effect.  Thus, broadcasters must begin to comply with the rules now.

The FCC’s rules require broadcasters to make a very specific sponsorship identification disclosure in programming aired under an agreement for the lease of airtime if that programming has been supplied by a “foreign governmental entity” (defined in the rule), or if anyone involved in the production or distribution of that programming aired pursuant to the lease agreement (or a sub-lease) qualifies as a foreign governmental entity.  A foreign government entity is defined by the FCC rule (Section 73.1212(j)) to “include governments of foreign countries, foreign political parties, agents of foreign principals, and United States-based foreign media outlets.”  The rule goes on to give other specific definitions of these terms. Continue Reading New Rules on the Identification of Foreign Government-Provided Programs Affects All Broadcasters – Now in Effect  

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

  • The Media Bureau this week released the first of what will likely be a series of decisions resolving conflicts between mutually exclusive applications for new noncommercial FM stations filed during last year’s filing window. Mutually exclusive applicants are those that, because of interference considerations, cannot both be granted. These applicants did not enter into settlement agreements when the FCC provided a window for voluntary resolutions of conflicts earlier this year.  Because there was no voluntary resolution offered to the FCC, the applications underwent comparative consideration by the FCC.  The 15 groups of mutually exclusive applicants analyzed this week were all resolved through a “307(b) analysis,” a technical review as to whether one of the applicants will provide substantially more first or second noncommercial radio service than the other applicant (see our article describing the application of the 307(b) analysis here).  As a result of this analysis, fifteen applicants were tentatively selected to be awarded construction permits (Memorandum Opinion and Order).  These were relatively easy conflicts to resolve, as each group had only two mutually exclusive applicants.  The FCC is analyzing other groups of mutually exclusive applicants, some including groups of many conflicting applications where only one will be selected.  Where the 307(b) analysis of the relative coverage areas does not find meaningful differences between mutually exclusive applicants, the FCC will conduct a “point system” analysis of other attributes of the applicants.  See our article here for more information on the FCC selection criteria for mutually exclusive noncommercial applications.
  • A consent decree requiring a company to pay a $250,000 penalty and surrender about 100 LPTV authorizations shows the FCC’s insistence that LPTV applicants filing construction permits for changes in their transmitter site locations have a serious intent to permanently construct the proposed new facilities and to continuously serve the public in the area authorized by the permits. In this decree, the FCC explained that the company had abused FCC processes by filing for and receiving construction permits for changes in at least 30 of its stations and only operating those stations for a matter of days before taking them silent and filing applications to move to yet another transmitter site.  The FCC found that the company tried to use a series of “minor” changes (which can be filed at any time) to accomplish a “major” change in the stations, when major changes are only permissible during rare filing windows.  The company also used the serial minor changes to “hop” signals closer to urban areas, when many of the permits for the stations were awarded as of a result of a filing window designed to authorize new stations to serve rural areas (Order and Consent Decree). This decision mirrors similar decisions from the Media Bureau in connection with FM translators.  We wrote more about this week’s decision on our Broadcast Law Blog, here.
  • The Office of Management and Budget approved the paperwork collection aspects of the FCC’s new rules on enhanced sponsorship identifications required for broadcast programming paid for by foreign governments and their agents. These rules also require that broadcasters, when selling any block of program time, investigate the buyer to make sure that it is not a foreign agent.  These rules will become effective on a date to be announced by the Media Bureau – an announcement that is expected soon.
  • Our law partner Mitch Stabbe wrote a two-part article on the Broadcast Law Blog about legal concerns that stations should keep in mind when designing advertising or promotions using March Madness, the Final Four, and many other trademarks associated with the upcoming NCAA basketball tournaments. (Part 1, Part 2)

Looking ahead to next week, March 14 is the effective date for a new FCC requirement that stations consider a write-in candidate’s social media and online presence when deciding if the candidate is a “legally qualified candidate” entitled to the protections of the FCC’s political broadcasting rules.  See our article on this rule change here.  March 14 is also the deadline to submit reply comments in the ATSC 3.0 licensing rulemaking.  In that proceeding, the FCC proposes to determine that the station originating the programming is responsible for legal and regulatory compliance when their programming is “hosted” on the multicast stream of another station as part of the Next Gen TV transition.  Read the comments submitted in that docket, here.  And with the March 13th start of Daylight Saving Time, operators of AM daytime-only stations and stations with pre-sunrise and/or post-sunset authorizations should confirm that they are operating with the proper sign-on and sign-off times specified on their current FCC authorizations, as these times are usually specified in “standard time.”

In a Consent Decree released earlier this week, the FCC showed how serious it is about requiring that when a broadcaster applies for and receives authority to construct a new station or a modification of an existing station, it really plans to construct the station and operate on a permanent basis. In this case, a company called Lowcountry Media agreed to pay $250,000 to the government and surrender FCC authorizations for about 100 LPTV stations to resolve allegations that it had abused FCC processes by filing for and receiving construction permits for changes in at least 30 of its stations without a serious intent to permanently construct and operate each station to serve the public in the area authorized by the permits.  After Lowcountry agreed to these penalties, the FCC allowed the sale of numerous other Lowcountry stations, and gave Lowcountry additional time to construct other new stations whose authorizations it retained.

The FCC explained its concerns leading to the penalties in the following language:

While some Stations were constructed with temporary facilities because of Lowcountry’s alleged difficulty obtaining permanent equipment as a result of supply chain issues….. at least 30 of Lowcountry’s stations were constructed with temporary facilities and only operated for a limited duration (a matter of days) with no apparent intention to provide permanent programming to viewers.

Lowcountry’s business plan apparently was to utilize the Commission’s minor modification application process to relocate the facilities distances greater than 30 miles, without contour overlap, and never permanently operate them at the location specified in the construction permits it acquired from prior licensees and in some cases applied for itself. The Bureau believes that Lowcountry’s actions and filings amounted to an abuse of the Commission’s licensing processes…..

In the LPTV service, the holder of a license or permit for a station can file a “minor change” application at any time.  A minor change is a change in the power or location of a station where some portion of the station’s existing service area overlaps with the area proposed to be served in the newly proposed facilities.  However, in no event can a minor change move a station more than 30 miles.  A major change is one does not fit within the definitions of a minor change.  Major changes can only be filed only when the FCC opens a major change window – which rarely happens (and is usually accompanied by the opportunity to file for new stations – as a major change in an existing facility would preclude the opportunity for someone else to file for a new station).  The FCC is concerned about a broadcaster using multiple “hops” of an LPTV which is not tied to any specific city to accomplish, through serial minor modifications what should only be permitted by a major change – and by doing so cutting off other applicant’s opportunity to file for a new station at some point in the future when a new window does in fact open.  The FCC had a secondary concern that many of these permits were received in a window almost 15 years ago when applicants were restricted to filing for stations in rural areas and, through multiple hops, some of these stations were moved into metropolitan areas. Continue Reading $250,000 Fine and Surrender of 100 LPTV Authorizations Shows FCC Insistence on Permanent Construction of Stations Authorized by Construction Permits – “Serial Moves” Can Be Abuse of Process

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.  But, first, I will discuss yet one more issue that should be considered.

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.

Now, back to the game … Continue Reading NCAA Tournament Advertising:  Use of Trademarks and … One More Thing (2022 Update – Part 2)

With the 2022 NCAA Collegiate Basketball Tournament 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 (see, for instance, our articles last year about this same time, here and here).  In addition, starting this year, there is another issue to consider, which I will discuss tomorrow.

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®.

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 NCAA Tournament Advertising:  Use of Trademarks and … One More Thing (2022 Update – Part 1)

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’s Enforcement Bureau issued a Notice of Apparent Liability proposing a $20,000 fine on an iHeart radio station for violations of the broadcast contest rules. The FCC found that a station contest was not conducted in accordance with its written rules – as an ambiguity in the rules would be construed strictly against the station. The rules stated that no one who had won another station contest in the 30 days prior to the start of the contest could win again.  Here, an apparent winner was disqualified as he had won another station contest about two months after the start of the contest in question.  The FCC said that, as the language of the rule could be read to only prohibit winners who had won in the 30 days before the start of the contest, and this contestant won the other contest after the start of the contest, the winner should not have been blocked from winning.  In addition, the FCC found that its rules had been violated because the contest rules were removed from the station’s website immediately after the contest ended, when the FCC rules require that contest rules be maintained on the website at least 30 days after the end of the contest (Notice of Apparent Liability for Forfeiture). Taken together with a proposed EEO fine noted in our summary of regulatory actions last week, it seems the FCC is becoming more aggressive in enforcing its rules.  Be sure you are reviewing all aspects of your operation to ensure compliance with applicable FCC rules.  We wrote in greater detail about both of these cases and what they may signal, here.
  • A Nevada AM station received a Notice of Violation after enforcement agents out of the FCC’s Los Angeles field office inspected the station’s transmitter site and found the tower fence gate unlocked. Under FCC rules, AM antenna towers having the potential for high levels of RF radiation at their base (including series fed, folded unipole, and insulated base antennas) must be enclosed within effective locked fences or other enclosures.  The licensee has 20 days to submit a written statement explaining the circumstances behind the unlocked gate and any corrective actions it will take and when it will take those actions.  (Notice of Violation)
  • The FCC continues to enter into consent decrees with stations over public file violations. In one case, a California noncommercial FM station appears to have not uploaded any quarterly issues/programs lists since the current licensee took over the station in late 2019.  In another case, an American Samoa noncommercial FM station appears to have uploaded all of its quarterly issues/programs lists on the same day it filed its license renewal application.  There were no fines tied to the violations, but the stations must follow a compliance plan that includes training and reporting obligations.  We’ve noted that fines have been imposed on TV stations for this kind of violation, and the FCC is omitting language about economic hardship caused by the pandemic from many radio consent decrees, so don’t expect the FCC to avoid fines for radio violations in the future.
  • Gigi Sohn’s months-long bid for confirmation for the last open seat on the FCC took a step forward this week when the Senate Commerce Committee voted on her nomination, splitting evenly along party lines. Because of the deadlocked committee vote, the full Senate must first vote to bring her nomination to the Senate floor, and then to end floor debate on her nomination, before it can actually vote on her confirmation.  Some Republican Senators have suggested that they could try to block some of these procedural votes.  If she is confirmed by the full Senate, her term will run through 2026.
  • The FCC posted an online tutorial for Auction 112, an upcoming auction of construction permits for 27 new full-power TV stations. If you are interested in bidding on any of the 27 permits, view the tutorial and file your initial “short-form application” (FCC Form 175) between March 17 at 12pm ET and March 30 at 6pm ET.  Bidding will begin on June 7.  Read more about the auction procedures, here.  (Tutorial)
  • CNN reported last week that the FCC, in partnership with the Departments of Justice and Homeland Security, opened a probe into companies it regulates to find possible ownership links to Russia, with an eye toward possible enforcement actions. Also this week, RT America, a Russian state-sponsored cable network, laid off most of its staff and ended production due to “unforeseen business interruption events.”  In light of these developments and the international tensions following the recent military actions by Russia, it is worth taking another look at the FCC’s warning to communications companies to step up protection of their networks and operating systems and other critical digital infrastructure and to stay vigilant against cyber threats.