An auction of construction permits for 27 new TV stations is scheduled to occur in June 2022, as we noted in one of our weekly updates on regulatory activities for broadcasters.  This auction will be the first auction of new TV channels in over a decade – and the first in over a decade and a half that includes UHF channels that are considered better suited for digital transmissions.  In the interim, freezes for the digital television transition and the incentive auction have put new applications on hold, with that freeze only thawing last year (see our article here).

But this window is not one that will likely excite most broadcasters, as the channels that are available are primarily in small markets, mostly in western states.  Following the DTV transition and the incentive auction, the TV band has shrunk in size, leaving little spectrum availability anywhere near major markets.  Only one channel in the eastern US is proposed to be auctioned –in Syracuse, New York – and that channel carries a proposed minimum bid of $1,000,000.  The other channels are all in smaller markets, with proposed minimum bids of $200,000, even though some of the channels proposed in these smaller markets are VHF (see the list of channels to be auctioned here).  With these high minimum bids, we wonder how many parties will be interested in these stations.  While some might be interested in a TV station to reach these rural areas, how many are willing to put up the substantial bid before even reaching the costs of building the station?  We noted a similar issue in the recent FM auction, where channels in seemingly attractive communities went unsold, seemingly because of the high minimum bid in the auction.  Comments on the proposed procedures for this TV auction are due today, December 13, with reply comments due on December 23.  We will see if any of the proposals are modified as a result of the comments that are submitted.

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 was confirmed by the Senate to serve a new, five-year term. (Rosenworcel Statement)  She will continue to lead an agency split along partisan lines with two Commissioners from each party until a third Democratic Commissioner is confirmed.  Gigi Sohn, a public interest lawyer and former FCC senior staffer under Chairman Tom Wheeler, has been nominated for that third seat, but her nomination has faced resistance.  Her nomination is not scheduled to be considered at a December 15 Senate Commerce Committee meeting which will consider other nominations.  Further action on that nomination may be delayed until the New Year.
  • The FCC’s Media Bureau denied a request by the NAB and two other industry groups to delay implementation of the FCC’s new sponsorship identification rules for programming financially supported by a foreign government entity. The industry groups wanted the FCC to let the court challenge the groups filed play out before allowing the rules to become effective. (Order) Even though the FCC denied this request, the rules are not yet effective as they are undergoing a Paperwork Reduction Act review.  Once effective, the new rules will require broadcast licensees to air specific disclosures for programming that is paid for by any foreign government-backed entity.  Licensees also will be required to take steps to determine if any buyer of block programming on their stations, including existing programmers who seek to renew their agreements, have ties to a foreign government entity.
  • The FCC dismissed 75 technically defective applications filed in the recent window for new noncommercial educational FM stations. Some of the defects appear minor, while others are more significant.  These applicants have one opportunity to file an amendment that clears up the technical defect with a petition for reconsideration of dismissal.  The amendment can only propose a minor change and cannot create any new conflicts with other already-submitted applications.  The amendments and petitions must be filed by January 7, 2022.  (Public Notice) (Dismissed Applications List)
  • A Las Vegas radio station faces a $20,000 fine for apparently transmitting EAS Tones during a block of leased time used by a local radio host, when no emergency or EAS test had occurred. This is a reminder that the FCC takes seriously any unauthorized use of EAS tones and will issue fines or take other enforcement actions against a station licensee, even if the violation occurred during a block of leased time. Part of this fine was for the broadcast of the programming containing the EAS tone on a multicast channel of an FM station, making clear that these channels are just as subject to FCC rules as are a station’s main channel.  (Notice of Apparent Liability for Forfeiture)

Looking ahead to next week, the FCC will hold its last regular monthly Open Meeting of the year.  The Commissioners are expected to vote to open a rulemaking to examine whether to require that a predetermined script be used for visual display of EAS messages, and to require that stations, whenever they receive an alert (including state and local alerts) from their legacy (over-the-air) EAS alerting system, check their IPAWS Internet-delivered CAP (Common Alerting Protocol) based system to see if additional visual information about the alert has been provided, as that IP-based system allows for alerts containing more visual information.  The FCC also asks for suggestions on how the current, legacy EAS can be updated to make those systems more robust in providing visual information. (Fact Sheet and Draft Notice of Proposed Rulemaking).  Tune it at https://www.fcc.gov/live at 10:30 am Eastern on December 14 to watch the meeting.

On December 2, 2021, the FCC held a forum on the accessibility of video programming delivered through online platforms (a recording of the event is available on the FCC website, here).  What is perhaps most notable about this forum is that it looked at whether the FCC could extend its authority over online platforms to include accessibility obligations which, thus far, have only been implicated when a broadcaster already subject to FCC accessibility obligations repurposes its programs for Internet use (see, for instance, the FCC’s significant fine imposed in a consent decree when Pluto TV, which is owned by Viacom CBS, rebroadcast certain content that had already been broadcast on television with captions).  One of the questions identified in the Public Notice announcing the Forum is whether the FCC has the authority to expand accessibility obligations to online platforms.

The seeming importance of the session could be seen from the introductory remarks by FCC Chairwoman Jessica Rosenworcel and Senator Ed Markey.  Senator Markey was one of the proponents of the Twenty First Century Communications and Video Accessibility Act of 2010 (CVAA).  In his remarks, he discussed the importance of taking the reforms that have been adopted for television programming and extending them to the Internet, given that so much video programming and viewership is now migrating to those platforms. Continue Reading FCC Forum on Accessibility of Online Video Programming – Looking Beyond the Regulation of Broadcasters 

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’s nomination for another five-year term at the agency was approved by the Senate Commerce Committee. The final step in the consideration of her nomination is for the full Senate to vote to confirm that nomination before the end of the year when her current term expires.
  • The Senate Commerce Committee also held a hearing on the nominations of Gigi Sohn for a position as a Democratic FCC Commissioner and of Alan Davidson as NTIA Administrator. Sohn was pressed by senators on her past public interest work and some of her tweets and other public statements made in connection with that work, her time advising FCC Chairman Tom Wheeler, and her role as a board member for now-shuttered local TV streaming service Locast. Sohn expressed general support for local broadcasting but suggested that she would favor rolling back some recent relaxations of the media ownership rules. Davidson’s questioning focused on broadband issues and overall federal spectrum policy.  We took a look at some of the issues that would be waiting in Commissioner Sohn’s inbox if she were to be confirmed.
  • Parties interested in the FCC’s rulemaking to consider allowing FM broadcast license applicants to verify directional antenna patterns through computer modeling instead of real-world testing should file their comments by December 30. Reply comments are due by January 14, 2022.  (Public Notice)
  • The FCC finished its review of the applications filed during last month’s noncommercial educational FM radio station filing window. The review found 231 groups of mutually exclusive (MX) applications.  The FCC opened a settlement window through January 28, 2022 for parties to submit technical amendments or work with others in their MX group to enter into settlement agreements or otherwise resolve conflicts.  Applicants in an MX group that have not submitted a settlement agreement or technical amendment by the January 28 deadline will have their application undergo a comparative analysis to determine which of the mutually exclusive applications should be granted.  Thirteen applications were deemed defective and dismissed.  (Public Notice) (MX Groups) (Dismissed Applications)
  • The FCC reminded stations in DMAs 71-80 affiliated with one of the top four TV networks that they must comply with the FCC’s audio description rules beginning January 1, 2022. The audio description (formerly known as video description) rules make video programming more accessible to blind or visually impaired persons by requiring the use of an audio subchannel to provide descriptions of the visual action in a TV program that is occurring on screen. The affected DMAs are Omaha, Wichita-Hutchinson Plus, Springfield, MO, Charleston-Huntington, Columbia, SC, Rochester, NY, Flint-Saginaw-Bay City, Huntsville-Decatur, Portland-Auburn, and Toledo.  (Public Notice)
  • FCC fee filers take note. By December 15, the FCC will close its current fee filer payment system and open a new payment system within its CORES platform.  The Red Light Display system, which allowed users to view and clear financial holds on their account, will also be closed.  Past due fee information will be available only through CORES.  (Public Notice)
  • The licensee of two Mississippi Class A TV stations faces a combined $38,000 in fines over the company’s failure to upload quarterly issues/programs lists on time and for failing to disclose to the FCC in the stations’ license renewal applications that the lists were uploaded late. The stations’ renewal applications certified that all documents had been timely uploaded to its public file, as required by FCC rules, when more than three dozen issues/programs lists had not been timely uploaded.  (Notice of Apparent Liability for Forfeiture – W34DV-D) (Notice of Apparent Liability for Forfeiture – W39CA-D). These actions once again emphasize the importance of timely uploads of all documents to the online public file.
  • The FCC proposed a $6,000 fine for a TV station that uploaded issues/programs lists to its online public file late and admonished the same station for displaying during its children’s programming the URL for a website that contained a “shop” button. The FCC’s children’s TV rules prohibit stations from displaying on-screen during programs directed to children the URL for websites that have a commercial purpose, including e-commerce or advertising.  The programming was supplied by a TV network, but the station is ultimately responsible for its programming content. (Notice of Apparent Liability for Forfeiture and Admonishment)
  • The Copyright Royalty Board announced the that royalties for streaming music on the Internet will increase in 2023 from the $.0021 per performance royalty rate recently sent by the CRB for the period from 2021 to 2025. The rates were subject to cost-of-living increases – and the rise in the cost-of-living index triggered the increase for 2022. The cost-of-living increase will increase the royalties for non-subscription, non-interactive streaming, like simulcasting a radio station on the Internet including through a mobile app, to $.0022 per performance (a performance occurs each time any song is streamed to a single user – so, for example, a station that plays 10 songs in an hour and had 10 listeners throughout the hour must pay for 100 performances in that hour). (CRB Notice) (Summary of new royalties for 2021-2025). Some of the rates set last year are still under review.  Appeals of last year’s CRB decision setting these rates were filed on November 26. We will have more on those appeals in our Broadcast Law Blog soon.
  • With TV’s Dr. Mehmet Oz declaring his candidacy for nomination to run for an open US Senate seat in Pennsylvania, we wrote on our Broadcast Law Blog about what a station should do to avoid issues under the FCC’s political broadcasting rules, including the equal time rule when one of its on-air employees decides to run for public office.

For a look at regulatory dates ahead for the rest of December and early January, see our Broadcast Law Blog article, here.

On Tuesday, we were deluged with press inquiries about Dr. Oz’s declaration that he was going to seek the open US Senate seat in Pennsylvania – with many questions as to whether his syndicated television program would subject stations that aired it to equal time obligations.  The Doctor avoided issues for stations by immediately terminating his participation on the program, but the events of this week highlight that, with 2022 expected to be a very busy election season that will soon be upon us, many stations may be facing the question of what to do when an on-air employee decides to seek election to a public office.

We have written about this issue many times before, including coverage of when well-known local or national personalities have contemplated runs for office – see our stories here, here and here. In 2017, we wrote another article here, updating prior articles on the same subject.  While the rules have not changed in the 15 years that we have been writing about it, it seems that there are always questions, so it is worth revisiting the issues again. Continue Reading Dr. Oz Decides to Run for the Senate – What to Do When Your On-Air Employee Decides to Run for Public Office

While Thanksgiving is in the rearview mirror and the holiday season is upon us, broadcasters cannot ignore the regulatory world until the new year, as much is going on in December.  Below are some of the several important regulatory dates and deadlines in the coming month that you may need to deal with before the celebrations begin.

By December 1, all licensees of commercial and noncommercial full power TV, Class A TV, low power TV, AM radio, and FM radio stations must submit an ownership report that details the licensee’s ownership structure as of October 1, 2021.  The FCC has warned that there will be penalties for stations that do not file these reports.  Licensees with ownership structures that include parent entities must also file a report for each of those entities.  An informational session run by FCC staff is archived, here, and answers to frequently asked questions are available, here.  See our blog post covering ownership reporting, here. Continue Reading December Regulatory Dates for Broadcasters: Ownership Reports, License Renewal Filings, EEO Filings and Reporting, Ancillary or Supplementary Service Fees, Political Advertising Reports, and More

At this time last year, we noted Giving Tuesday and decided to depart from our usual coverage of legal and policy issues and talk about something else – broadcasters giving back.  And we decided to do it again.  Broadcasters have long been known for their service to their communities, service benefitting individuals and groups across the country.  While broadcasters are always giving back to their communities and should be celebrated for that, those of us who make our living in some aspect of the industry should recognize that there are plenty of ways for us to give back as well – both to those associated with the industry who have fallen on hard times, and to those who need assistance in obtaining education and training to enter the media industry we so appreciate.

During the last two years when normal routines have been upended, those of us who have remained healthy and employed are truly blessed. We should all be thankful for jobs, friends, and good fortune. But we should also ourselves give back where possible.  In the broadcast industry itself, there are many groups doing good work. One that bears mention is the Broadcasters Foundation of America, which provides relief to broadcasters and former broadcasters who have, for one reason or another, fallen on hard times – whether that be for health reasons or because of some other disaster that has affected their lives. The Foundation deserves your consideration. More about the Foundation and its service, and ways to contribute, can be found at their website, here. Continue Reading Broadcasters Giving Back – Thoughts for the Upcoming Giving Tuesday

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.

  • In the last two weeks, many stations have discovered that links to their FCC-hosted online public inspection file no longer work after an FCC update to its website and file-hosting system. It appears that the issue is that, after the update, for the link to work, station call letters in the link need to be in capital letters, when capitalization had not been required in the past.  As stations are required to have a working link to their online public file on the homepage of their website, and in certain public notices related to FCC applications, check your website to make sure that links to your station’s online public file are working.
  • The FCC released a draft Notice of Proposed Rulemaking and Notice of Inquiry that, if adopted, will start a rulemaking that looks at making visual EAS messages delivered by TV broadcasters and cable systems clearer and more accessible. The FCC proposes to require a predetermined script be used for visual display of EAS messages, and to require that stations, whenever they receive an alert (including state and local alerts) from their legacy (over-the-air) EAS alerting system, check their IPAWS Internet-delivered CAP (Common Alert Protocol) based system to see if additional visual information about an alert has been provided, as that IP-based system allows for alerts containing more visual information.  The FCC also asks for suggestions on how the current, legacy EAS can be updated to make those systems more robust in providing visual information.  This draft will be voted at the FCC’s December 14 regular monthly Open Meeting.  The comment and reply comment periods will be set after the notice is approved and published in the Federal Register.  (EAS Accessibility NPRM and NOI)
  • The FCC released a reminder that it will hold a video programming accessibility forum on December 2 from 1:00-3:45 pm Eastern. The panelists will explore the state of closed captioning availability for online video programming and discuss ways to enhance accessibility, including inquiring as to whether the FCC has authority to adopt new rules that would apply to online video providers.  (Event Reminder)  (Public Notice)
  • The Copyright Royalty Board released a notice alerting college radio stations that are not affiliated with NPR or the Corporation for Public Broadcasting that there will be a cost-of-living increase in 2022 for their royalties due to SESAC. Royalties will increase from $164 per year to $174.  (Federal Register Notice)

Looking ahead to next week, FCC Commissioner nominee Gigi Sohn will visit the Senate Commerce Committee on December 1 for her confirmation hearing to be the third Democratic Commissioner.  During the same hearing, the committee will vote on advancing FCC Chairwoman Jessica Rosenworcel’s nomination to the full Senate for a final confirmation vote.  Alan Davidson, President Biden’s nominee to lead NTIA, which oversees federal spectrum policy, will also be considered by the committee.  The hearing begins at 10:15 am Eastern on December 1 and can be viewed at www.commerce.senate.gov.  (Nominations Hearing)

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 Senate Commerce Committee this week held a hearing on the nomination of FCC Chairwoman Jessica Rosenworcel for another five-year term at the agency. The Chairwoman’s opening remarks focused on broadband availability and called communications technologies “the infrastructure of opportunity.”  Her opening comments included no mention of broadcast issues (Rosenworcel Remarks).  Senators’ questions were also light on broadcast issues, though the Chairwoman voiced her support for tax credits for journalism operations that would be made possible by a bill being considered by Congress and for bringing back the Minority Media Tax Credit.  She said the FCC will find ways to encourage broadcasters to use their FCC license to support local communities.  A hearing on fellow Democrat Gigi Sohn’s nomination to fill a vacant FCC seat hearing has been delayed, which may be a signal that Sohn’s nomination is more controversial than Rosenworcel’s.  In case you missed it, we posted on the Broadcast Law Blog an article highlighting the broadcast issues that a full-strength, five-Commissioner FCC might try to tackle.
  • FCC Commissioner Nathan Simington has started to make known his positions on broadcast issues, addressing a Massachusetts Association of Broadcasters awards program and sharing his thoughts. Simington joined the FCC in December 2020 in the closing days of the Trump Administration and broadcast issues were not covered deeply during his confirmation hearing.  The Commissioner called broadcasting the tentpole of American media and something that must be preserved.  He remarked that broadcasting is a “window into what’s happening where we live, a tether to our civic and cultural identities, and a check against political corruption.”  He will encourage the Commission to consider broadcasting’s role in the media marketplace and further relax broadcast ownership regulations in the face of explosive growth and competition from Big Tech companies like Facebook and Google.  (MAB Remarks)
  • The FCC opened a rulemaking to consider allowing FM broadcast license applicants to verify directional antenna patterns through computer modeling instead of physical testing.  Current FCC rules require applicants to provide measurements using either a full-size mockup or scale model of the antenna and supporting structures to measure the pattern generated. The proposed rule changes would put FM and LPFM applicants on equal footing with their AM radio and television counterparts, which are already permitted to rely on computer modeling to verify directional antenna patterns.  The comment period will be set when the Notice of Proposed Rulemaking is published in the Federal Register.  (Notice of Proposed Rulemaking)
  • The FCC announced that it will hold Auction 112 in June 2022 to award construction permits for 27 full-power TV stations. It released a Public Notice with proposed procedures for the auction (Public Notice).  If you are interested in bidding for a new TV station, take a look at the list of available construction permits.  Most of the channels are in smaller communities in western states (Construction Permit List). Comments on the proposed auction procedures are due by December 13.  Reply comments are due by December 23.
  • A Florida college TV station faces a $6,000 fine in connection with its license renewal application for failing to upload its quarterly issues/programs lists on time. The station uploaded four lists more than one year late, four lists between one month and one year late, and three lists between one day and one month late.  The station also noted in its renewal application that a handful of quarterly lists were mistakenly posted to the station’s website instead of its public file.  Even though the lists eventually made their way to the public file, the Video Division reminded the station that “employee acts or omissions, such as clerical errors in failing to file required forms, do not excuse violations.”  Pay close attention to filing dates and deadlines, so you do not find your operation looking at a monetary penalty.  (Notice of Apparently Liability for Forfeiture)
  • In other confirmation news, Jonathan Kanter was confirmed by a bipartisan vote of the Senate to lead the Department of Justice’s antitrust division. The division examines transactions and mergers that could affect competition in the marketplace (including in the broadcast industry) and provides opinions on broadcast marketplace competition.  The division also oversees the ASCAP and BMI consent decrees. (Vote Summary)

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 Senate Commerce Committee announced this week that it will hold a hearing to consider FCC Chairwoman Jessica Rosenworcel for another five-year term at the agency. Fellow Democratic Commissioner-nominee Gigi Sohn’s confirmation will not appear at the hearing, suggesting to some that her nomination is likely to have more problems being confirmed. Tune in to the livestream at commerce.senate.gov at 10 a.m. Eastern on November 17 to watch the Rosenworcel hearing. If Chairman Rosenworcel receives a majority vote of the committee members, her nomination will move to the full Senate for final approval. (Nominations Hearing Notice). See the article on our Broadcast Law Blog on the issues for broadcasters that the Commission will likely consider when it is back at full strength (Article).
  • The FCC’s filing window for applications for new noncommercial FM stations closed on Tuesday, November 9, with over 1000 applications having been filed. The FCC released a Public Notice announcing the closing of the window and stating that no amendments to applications filed in the window will be permitted until after November 29 at 6 p.m. Eastern. The FCC staff will take that time to evaluate the submitted applications and identify which applications are mutually exclusive with other applications that were filed in the window. More information explaining the procedures for filing settlement agreements and technical amendments to resolve conflicts between applications will be forthcoming. (Public Notice)
  • An AM radio tower owner entered into a consent decree and was fined $1,400 for its failure to properly maintain its tower lights and to report a change in the ownership of the tower. The fine would likely have been higher but the owner made a financial showing to the FCC that it could not afford to pay more. Under the FCC’s rules, owners of FCC-registered lighted antenna structures must confirm at least once every 24 hours that the tower’s lights are functioning properly or connect the lighting system to an alarm that notifies the owner in the event of a malfunction. If ownership of a registered tower is changed, the FCC must be notified of that change. In this case, under the consent decree, the tower owner must appoint a compliance officer, follow a compliance plan, and file compliance reports for three years in addition to paying the fine. (Consent Decree)
  • The FCC continued to enter into consent decrees with broadcasters for violations of the FCC’s requirements for the prompt upload of political advertising orders to a station’s online public inspection file, releasing a number of such decrees this week (Sample Consent Decree). David Oxenford will be conducting a webinar on Thursday, November 18, with members of the FCC’s Political Broadcasting Office to remind broadcasters of the rules in preparation for the expected rush of political advertising in connection with 2022 elections. Check with your state broadcast association to see if this webinar is available to stations in your state.