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.

  • FCC Chairwoman Jessica Rosenworcel announced several leadership changes at the FCC. The changes include a new head of the Media Bureau, which oversees policies and licensing for broadcasters. The new Chief will be Holly Saurer, who has much experience in supervisory roles at the Bureau and has also served as an advisor on media matters to two FCC Commissioners.  The Enforcement Bureau, which enforces FCC rules (including EEO) and oversees operation of the FCC field offices, will be headed by Loyaan Egal, a former federal prosecutor who was most recently at the Justice Department overseeing foreign investment issues.  The Chairwoman’s News Release sets out details of these and other appointments.
  • The Senate Judiciary Committee’s Subcommittee on Competition Policy, Antitrust, and Consumer Rights held a hearing examining the impact of Big Tech on local journalism and the merits of the Journalism Competition and Preservation Act. That Act, which we summarized here, would allow traditional media companies to jointly negotiate with tech platforms to set rates for the use by the platforms of content from these media companies.  Joel Oxley of Hubbard Radio’s WTOP News Radio represented the NAB and broadcasters in arguing in favor of the legislation, and representatives of other traditional media companies also spoke in support of the legislation.  They argued that tech platforms were building their businesses by distributing media company content without adequate consideration, and the preservation of local journalism required fair compensation to the local media outlets creating the content.  Other participants countered that the proposed legislation would infringe on the tech platforms right to make “fair use” of content from traditional media and argued that the legislation would allow big traditional media companies to get bigger while not benefitting small local outlets.  More information on the hearing and the arguments that were made, including archived video, can be found here.
  • On the other side of Capitol Hill, the House Judiciary Committee held a hearing examining the American Music Fairness Act, which proposes to impose a sound recording performance royalty on over-the-air radio, to be paid to SoundExchange. We wrote about that legislation when it was introduced, here.  NAB CEO Curtis LeGeyt represented radio broadcasters and urged the committee to reject the legislation, defending radio’s role in local communities, and discussing the importance of not upending the structure of music licensing that has developed over the last century. He also reiterated the radio industry’s willingness to negotiate with the recording industry on these royalties but stated that the music industry has refused to participate in such discussions.  Music industry representatives, pushing for a Congressional vote on the royalty, emphasized how the US is one of the few countries in the world to not have a sound recording performance royalty on broadcasters, and argued that broadcasters no longer provided the promotional value to musicians that they once did, with digital platforms (which do pay these royalties) now playing that role. Witness testimony and video of the hearing are available, here.
  • As a follow-up to what we wrote last week, the Senate Commerce Committee pulled consideration of Gigi Sohn’s nomination to be an FCC Commissioner from its February 2 session, and will now have a further hearing on the nomination on February 9 (Executive Session agenda). A vote on her nomination is likely delayed further if no Republican support for her nomination materializes as, due to New Mexico Senator Ben Ray Lujan’s current absence while recovering from a stroke, there will be insufficient votes for the committee to approve the nomination and pass it on to the full Senate for consideration.
  • A $7000 fine was imposed on a Mississippi AM licensee for not filing its license renewal application until after its license had expired and continuing to operate the station without permission (Notice of Apparent Liability for Forfeiture). The final radio license renewal applications for the current cycle will be filed by radio stations in Delaware and Pennsylvania on or before April 1 (with the TV license renewal cycle running a year behind).  If your station has not yet filed its renewal application, this case reminds you of the penalties for not filing on time.
  • The licensee of a Florida translator station faces a $3,500 fine for failing to timely file a license to cover application after constructing a new facility. Stay in touch with your engineering and legal advisors after completing construction of a new facility to be sure you are filing all necessary applications and documents to inform the FCC of the changes in your operations.  (Notice of Apparent Liability for Forfeiture)

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 adopted two items of interest to broadcasters that were on the agenda for its January 27 Open Meeting.
    • Broadcasters will have to consider social media activity and a campaign website when determining if a write-in candidate has made a “substantial showing” that they are a “legally qualified candidate.” Legally qualified candidates receive the benefits and protections of the FCC’s political broadcasting rules.  The FCC also brought its rules in line with existing federal statutory requirements that require stations to upload to their political file information about advertising on federal issue ads.  Broadcasters are already required by the statute to do this, so the adoption of this rule does not change a station’s recordkeeping obligations.  For more information, see our blog post on these issues, here, and the Report and Order, here.
    • The FCC modified its rules to allow for better protection of wireless microphones from the use of “white space” spectrum (portions of the broadcast TV bands at locations where frequencies are not being used by TV broadcasters). When the new rules become effective, they will require fixed and 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 current rule that has not been enforced requiring the databases to push information to white spaces devices whenever there is new wireless microphone use in the area.  The FCC also opened a rulemaking that seeks comment on how often white space devices should be required to check white space databases.  Comments and reply comments on the rulemaking will be due 30 days and 60 days, respectively, after publication in the Federal Register.  The new rules will become effective 30 days after publication in the Federal Register.  (Second Order on Reconsideration, Further Notice of Proposed Rulemaking, and Order)
  • The FCC sent notices to broadcasters who had not filed their required Biennial Ownership Reports by the December 1, 2021 deadline that they needed to do so by March 1. As we wrote on the Broadcast Law Blog this week, these notices may be a last chance for AM, FM, TV and LPTV broadcasters to comply with the Biennial Ownership Report filing requirement before penalties are imposed.  (Broadcast Law Blog article)
  • The FCC told the owners of land in Arkansas on which an abandoned tower sits to dismantle the tower within 90 days. The tower was at one time was used for an FM station but has been neglected for years and has not been properly illuminated since 2005, posing a hazard to aircraft.  The ownership of the tower was unknown as the FM station with which it was associated had its license cancelled and the company that owned the station was long ago dissolved (the tower was still registered to a prior owner of the FM station, which had also been dissolved).  The landowner feared dismantling the tower without authority, which the FCC provided in this Order.  The decision reminds broadcasters to update tower registrations and to either continue to light towers or dismantle them when they are no longer in use. (Order)
  • The FCC issued further guidance on its termination of filings in its old broadcast application database, CDBS. CDBS had until January 12 still been used for filings of a limited number of applications not yet migrated to the newer LMS database, including many AM technical applications and STA requests for all broadcast services.  The further guidance addresses the process for the payment of filing fees and the submission of Anti-Drug Abuse Act certifications with the applications that are now filed through emails to FCC staff.  (Public Notice).  For more on this further notice, see our Blog article here, and our article here on the end of CDBS filings.
  • The FCC released a draft Report and Order that, if adopted at its regular monthly open meeting for February to be held on the 18th, will update several technical radio rules. The changes correct inconsistencies in some FCC rules and clarifies the wording of others.  The changes also clarify city-coverage requirements for NCE FM stations, lessen second-adjacent channel interference protections to Class D NCE FM stations, and update some FM spacing requirements in border areas to conform to treaty obligations.  (Draft Report and Order)
  • The Senate Commerce Committee on February 2 will vote on the nomination of Gigi Sohn to be an FCC Commissioner (Executive Session agenda). If Sohn’s nomination is voted out of committee, it will advance to the full Senate for consideration.  Sohn has agreed to recuse herself for three years from retransmission consent and TV copyright issues and for four years from matters arising under a retransmission consent rules docket.  New NAB President & CEO Curtis LeGeyt said the recusal promise satisfies NAB.

On the Broadcast Law blog: Our law partner Mitch Stabbe refreshed his yearly reminder on staying out of trouble when running Super Bowl advertising and promotions, addressing trademark and copyright issues that can arise from the use of the term “Super Bowl” and other associated NFL brands.

As we noted two weeks ago, the FCC has stopped accepting new filings through its CDBS database.  This week, the FCC released a Public Notice which provides further details on how filings that were made in CDBS should now be submitted.  As we noted when the announcement of the end of submissions to the database was made , most application filings had already transitioned into a new FCC database, LMS.  But CDBS was still used in some instances, including for many AM technical applications, requests for Special Temporary Authority and silent authority, and for filings that related to applications that had been made in CDBS on matters that were still active.  The new Public Notice notes a few other limited instances where CDBS had still been used (principally related to issues around the closing of transactions approved by applications that had been filed in CDBS for assignment or transfer of stations before the forms for such approval moved to LMS).  The Notice also addresses the process for the submission of Anti-Drug Abuse Act certifications and filing fees in connection with applications that had still been filed in CDBS and are now to be submitted by email.  Read the Public Notice for more detail.

The FCC sent out a flurry of reminders to broadcasters who did not file their Biennial Ownership Reports by the December 1, 2021 deadline.  As we wrote in our reminder in November, these reports were to be filed by licensees of all full-power radio and TV stations (commercial and noncommercial), as well as by LPTV and Class A TV station owners, reporting on their attributable owners as of October 1, 2021.  The notices this week, from Form323@fcc.gov, went out to stations that had not filed these required reports.  It gives these stations until March 1, 2022 to submit their reports.  The FCC warned back in November that “enforcement action” would follow if stations did not file their reports.  This likely means monetary fines.  These emails seem to be a last warning – so if you did not file your biennial report before the December 1 deadline (whether or not you heard from the FCC this week), get those ownership reports on file now!

There was record viewership for the last-second victories in each of the 2022 NFC and AFC Divisional Round games.  Thus, the interest in this year’s Super Bowl game may be unprecedented and advertisers may want to take advantage.  For the last six years, I have posted guidelines about engaging in or accepting advertising or promotions that directly or indirectly reference the Super Bowl without a license from the NFL.  Here is an updated version of my prior posts, which may be particularly useful to potential advertisers and broadcasters who may be asked to carry their ads.

The Super Bowl means big bucks.  It is estimated that each of the three television networks that broadcasts the Super Bowl paid the NFL over $1 billion per year for the right to broadcast NFL games through this season, including the right to broadcast the big game on a rotating basis once every three years.  In addition, the NFL has entered into a new contract that goes through 2033, for a reported total of $100 billion, under which CBS, ESPN/ABC and Fox, will have television rights for three Super Bowls and NBC will have the rights to broadcast two Super Bowls.

The investment seems to pay off for the networks.  Reportedly, it cost $6 M for a 30-second spot during last year’s Super Bowl broadcast, up from $5.6 M the prior year, and national advertising revenue totaled $545 M (up from $448.7 M the prior year) and these figures do not include income from ads during any pre-game or post-game programming.  (In addition to the sums paid to have their commercials aired, some advertisers spend millions of dollars to produce an ad.)  In addition, the NFL receives hundreds of millions of dollars from licensing the use of the SUPER BOWL trademark and logo. Continue Reading The Clock is Ticking Towards the Super Bowl:  2022 Update on Super Bowl Advertising and Promotions

Before we jump into February dates, let’s take a look at some important dates still to come in January.  Noncommercial radio applicants whose applications were found to be mutually exclusive (MX) with one or more other applications filed in the reserved band window have through January 28 to submit technical amendments or work with others in their MX group to enter into settlement agreements or otherwise resolve conflicts.  See the MX groups, here, and the Public Notice setting out the details of the settlement window and filing procedures, here.

By January 31, television stations must fulfill their now-annual obligation to prepare and file a  Children’s Television Programming Report (Form 2100, Schedule H).  Also due to be uploaded to the online public file is a certification of compliance with commercial limits in children’s programming.  Schedule H would normally be due to be filed by January 30 but, as that date is a Sunday this year, the filing deadline is the next business day—January 31.  Records documenting compliance with the limits on the number of commercial minutes that stations can allow in children’s programming are also due to be uploaded to each full-power and Class A TV station’s public file by January 31—another January 30 deadline pushed to the next business day.  As a reminder, the quarterly filings were replaced with annual filings as part of the 2019 KidVid rule changes (we summarized those changes, here). Continue Reading February Regulatory Dates for Broadcasters: Children’s TV Reporting, License Renewals, EEO Filings, FCC Proceedings, 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 issued a Public Notice urging all communications companies to take steps to ensure the security of their facilities and operating systems. The Notice points to an advisory, Understanding and Mitigating Russian State-Sponsored Cyber Threats to U.S. Critical Infrastructure, authored by the Cybersecurity and Infrastructure Security Agency (CISA), Federal Bureau of Investigation (FBI), and National Security Agency (NSA), setting out threats and steps to take to mitigate risks.  As several broadcast companies, large and small, have suffered from cyber attacks in recent years, broadcast companies should carefully review this notice.
  • The FCC reminded full power and Class A TV stations that were assigned transition completion dates in phases 6-10 of the incentive auction repack that they must submit all remaining invoices and documentation for reimbursement by March 22, 2022. FM stations and LPTV/translator stations seeking repack reimbursement must submit all remaining invoices and documentation by September 6, 2022.  (Public Notice)
  • The FCC issued a reminder that broadcasters who need help initiating, resuming, or maintaining service as a result of winter weather (or other emergencies) can contact the FCC Operations Center for assistance at 202-418-1122 or by e-mail at FCCOPS@fcc.gov. (Public Notice)
  • The FCC released the final Agenda for its upcoming required monthly open meeting.  Two items on the agenda are of particular interest to broadcasters.  Tune in to the live stream on January 27 at 10:30am Eastern to watch the meeting where these topics will be discussed:
    • The first item is two minor changes to the political broadcasting rules. The first change is to include social media activity and a campaign website in the criteria that broadcasters must consider when determining if a write-in candidate has made a “substantial showing” that they are a legally qualified candidate.  Legally qualified candidates receive the benefits and protections of the FCC’s political broadcasting rules.  The second change brings the FCC’s rules in line with existing federal statutory requirements by requiring stations to upload to their political file information about advertising on federal issue ads.  Broadcasters are already required to do this, so this rule change does not change a station’s recordkeeping obligations.  For more information, see our blog post, here.
    • The second item modifies the FCC’s rules to allow for better use of “white space” spectrum (portions of the VHF and UHF broadcast TV bands at locations where frequencies were not being used by TV broadcasters). The FCC plans changes to how white space devices would receive operational information from white space databases about the use of wireless microphones in the areas where the devices operate.  The new rules would require that the devices check the databases at least once per hour, replacing a current rule that has not been enforced which requires the databases to push information about wireless microphone use whenever there is new microphone use in the area.  The FCC believes this will better protect wireless microphones (used for newsgathering and other unplanned purposes) as push notifications might not be received by all the white spaces devices (and verifying receipt of such notices might not be technically feasible).
  • On the Broadcast Law Blog: Our law firm colleague Jonathan Cohen wrote about the state of play in tech regulation and what to watch for in 2022 from the Biden Administration and Congress. Read his post for updates on the likely areas of legislative and regulatory action.  (Hot Topic for 2022: Tech Regulation)

My law firm partner, Jonathan Cohen, has been closely monitoring the developments in the regulation of social media and other big tech platforms by the current administration.  He offers these thoughts on likely areas of legislative and regulatory action in this area in the coming year. 

Many nights, the last thing I do before falling asleep is put down my phone, and the first thing I do upon waking is pick it up.  I know I’m not alone in this.  And how many times have we made an online purchase from bed?  Internet-enabled digital technologies seem to have transformed life for most Americans, changing how we conduct business, connect with each other, and receive information and entertainment.  The advent of these technologies in recent years is what former FCC Chairman Tom Wheeler, in his 2019 book From Gutenberg to Google, calls the “third major network revolution,” after the invention of movable-type printing and the innovations in travel and communications brought about by railroads and the telegraph.  This new revolution is rapidly changing our information ecosystem.

Beyond the commercial opportunities and challenges presented for tech, media, and telecom companies, as well as content creators, the societal impact of this third major network revolution is fascinating and wide-ranging, but also potentially troubling.  Illustrating the power that tech platforms exert over us, Taylor Lorenz of The New York Times recently reported on a conversation she’d had with a 10-year-old boy who was disappointed that no photos were available when he Googled himself.  The boy felt that he wasn’t a real person until his photo came up in a Google search.  Leaving aside the numerous sociological implications of the tech revolution, the tech sector is under scrutiny as never before.  Its business model of tracking users’ online actions and using the data to sell targeted advertising and feed algorithmic amplification has been described by Harvard professor emerita Shoshana Zuboff as “surveillance capitalism.”  Others call it the “attention economy.” Continue Reading Hot Topic for 2022: Tech Regulation

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 announced that CDBS, the database where all broadcast applications were filed before most migrated to the newer LMS database, would stop accepting new applications as of last Wednesday, January 12. CDBS was, until being shut down for new filings, still being used for STAs, address changes, and a number of AM applications.  These submissions not yet migrated to LMS will now be filed through emails to the FCC (Public Notice).  For more information, see our article here.
  • A California low power FM station received a Notice of Violation for not monitoring the sources it was assigned to monitor in the State EAS plan. The Enforcement Bureau’s review of the station’s EAS log showed that the station was not monitoring the two EAS sources designated for it in the State EAS Plan but was instead monitoring only an optional monitoring point.  No financial penalty was proposed, but the station must submit a response explaining its violations, with a timeline for coming into compliance.  (Notice of Violation).  This is a good reminder to make sure that your stations are monitoring the sources assigned in your state plan.  The decision also emphasizes that LPFM stations are part of the EAS system and must monitor assigned stations for emergency alerts and pass through such alerts when they are received.
  • A consent decree released this week is a good reminder that, even though the radio license renewal cycle is winding down, FCC staff are still reviewing pending applications and stations’ online public files for completeness. Make sure your online public file holds all of the necessary documents and that those documents are uploaded on time.  (Consent Decree)
  • Now that the repacking of the TV spectrum has been completed and changes to the TV Table of Allotments are permitted, the FCC this week asked for comments on several proposals for existing stations operating on VHF channels to move to UHF (Portland, OR; Henderson, NV; Monroe, LA; Albany, NY), and a proposal for a new TV channel allocation to be reserved for noncommercial operations (Ft. Bragg, CA).
  • The FCC’s Audio Division fined an FM translator operator for not filing a license application when it completed construction and for operating the new translator after its construction permit expired. (Order and Notice of Apparent Liability)  This is another reminder that, when a broadcaster completes construction of any new facility, it must file a license application so that the FCC can confirm that the station was constructed as authorized.
  • The US Senate confirmed Alan Davidson to be head of the National Telecommunications and Information Administration (NTIA). Davidson will be in charge of billions of dollars designated for broadband infrastructure investment and will work closely with the FCC on broadband and spectrum policy.  Read FCC Chairwoman Rosenworcel’s congratulatory statement, here.  In other confirmation news, now that President Biden has re-nominated Gigi Sohn to be an FCC Commissioner, watch for the Senate Commerce Committee to further consider her nomination in the next few weeks.

In Case You Missed It: We published our 2022 calendar of important dates for broadcasters.  In addition to outlining the political windows for the year, it highlights many of the most important dates for broadcasters in the coming year – including dates for license renewals, EEO Public Inspection File Reports, Quarterly Issues Programs lists, children’s television obligations, annual fee obligations, political windows, and much more.  (2022 Broadcasters’ Calendar)

2022 has begun – and we are all wondering what will lie ahead in the New Year.  Each year, at about this time, we put together a look at highlights of the regulatory dates ahead for broadcasters.  This year is no different – and we offer for your review our Broadcaster’s Regulatory Calendar for 2022.  While this calendar should not be viewed as an exhaustive list of every regulatory date that your station will face, it highlights many of the most important dates for broadcasters in the coming year – including dates for license renewals, EEO Public Inspection File Reports, Quarterly Issues Programs lists, children’s television obligations, annual fee obligations and much more.

2022 will likely be a big election year, with all of the US House of Representatives seats and a third of those in the US Senate being contested, as well as many governor’s seats as well as state and local elections.   Our calendar provides the lowest unit charge periods for the primaries and general election as they were available to us last month when this calendar was prepared.  But check locally as these dates can change – and there can be additional local and special elections which are not included here.  See our article here on how the other political broadcasting rules apply to state and local elections, and our article here on what you should be doing to prepare for these elections.

Certainly, as the year progresses, there will be plenty more dates to note.  We have already seen some big news in the first weeks of the year, as the Radio Music License Committee and performing rights organization Global Music Rights, have reached a settlement of their long-running litigation, to which broadcasters must opt in by January 31.  The FCC has also announced likely changes (though minor ones) to its political broadcasting rules, and closed as of yesterday its old database, CDBS, that had been used for many years for the filing of broadcast applications.  Follow our blog where we weekly post a summary of the prior week’s regulatory actions relevant to broadcasters and a look ahead prior to the start of each month at the regulatory dates in the coming month, read other newsletters and trade publications, and consult your own attorney to stay on top of the regulatory obligations that apply to your stations.  We hope that this 2022 Broadcasters Regulatory Calendar will give you a good start on spotting some of the important dates that may be ahead and affect your operations.