With the Administration’s decision to renominate Jessica Rosenworcel for another term on the FCC and to select her as the permanent chair of the Commission, and the nomination of Gigi Sohn to fill the vacant seat on the FCC, and assuming both are confirmed by the Senate (though the Wall Street Journal noted that there could be some objections to the Sohn nomination), the FCC could be back at full strength by the first of the year.  As Chairwoman Rosenworcel’s current term ends at the end of this year, Senate confirmation hearings for these nominees are expected shortly with a vote to follow.  What are the broadcast issues that a full FCC Commission will be facing?

During the Pai administration at the FCC, there was a constant stream of media regulatory reforms, particularly as part of his Modernization of Media Regulation initiative.  While many of the rule changes were small, there were significant changes as well, including changes to the media ownership rules that were affirmed by the Supreme Court earlier this year (see our article here), revisions to the children’s television rules (see our article here), the adoption of rules for Next Gen TV (ATSC 3.0 – here and here), and the relaxation of the public file and local main studio rules (here and here).  Some of these changes have drawn some concerns from public interest advocates, so there is a chance that some of these matters will be revisited by a new FCC.  We did note, for instance, that the FCC is looking at accessibility and captioning of children’s programs on multicast channels as perhaps one place where a reexamination of the children’s television rules could occur.  What other issues are pending?

For the radio industry, the outstanding Quadrennial Review looks at the potential for relaxation of the local radio ownership rules.  As we have written, some broadcasters and the NAB have pushed the FCC to recognize that the radio industry has significantly changed since the ownership limits were adopted in the Telecommunications Act of 1996, and local radio operators need a bigger platform from which to compete with the new digital companies that compete for audience and advertising in local markets.  Other companies have been reluctant to endorse changes – but even many of them recognize that relief from the ownership limits on AM stations would be appropriate.

The Quadrennial Review also looks at the dual network rule that currently forbids the common ownership of two of the Top 4 TV networks.  Also under consideration is the potential for the combination of two of the Top 4 television stations in any local market.  Common ownership of such stations is only permitted now through what is essentially a waiver process.  The FCC has asked if there are specific criteria that could be adopted to evaluate those requests (e.g., a combination of the 3rd and 4th stations would be allowed if their market share did not exceed a specific percentage of the market – or the share of the higher rated stations in the market) so that applicants would have more certainty about whether a proposed combination would be allowed.  Look for possible resolution of these issues in 2022.  In addition, because 4 years have passed since the 2018 Quadrennial Review began, we may see the initiation of a new Quadrennial Review process in 2022 as well.

For TV, the FCC last week released a Further Notice of Proposed Rulemaking seeking comment on the interplay between multicast channels and the ASTC 3.0 conversion – particularly in the context of the responsibility for “lighthouse” ATSC 1.0 programming streams left behind on a host station by a station that has converted to the new transmission standard.  Other Next Gen TV issues, including the expansion of single-frequency networks will likely be on the FCC’s agenda (see our article here on an FCC action approving these distributed transmission services – that decision is still subject to FCC review because of reconsideration filings).  Issues of TV white spaces devices and other unlicensed uses of the television spectrum also are under FCC consideration.

Enforcement issues affecting both radio and TV also could be considered by a full-strength FCC.  The FCC has recently requested comments on bringing back the annual EEO Form 395, reporting on the race and ethnicity of broadcast employees (see our article here).  A rulemaking looking at broader reform of the EEO rules is also still outstanding and could be given further consideration (see our article here).  If passed by Congress, the FCC would also have a role to play in drawing up rules for the implementation of the return of the minority tax certificate (here and here).

Political broadcasting is always an issue.  The requirement for quicker disclosure of advertising orders placed by political candidates and issue advertisers has been brought to the foreground by the hundreds of consent decrees signed by broadcasters across the country in the last 15 months (see our articles here and here).  But there are also reconsideration requests pending seeking clarification of the FCC’s order mandating more fulsome disclosure of the issues discussed in non-candidate ads on matters of national importance (i.e., federal issue ads – see our articles here and here).  Disclosure requirements about the funding of political advertising backers has also been considered in previous administrations – and could make a return in this one (see our articles here and here). Watch for developments in the political broadcasting area, especially in light of the wave of political advertising expected for the 2022 election.

For radio, there are various technical proposals that are still on the table for possible consideration.  Proposals for a Class C4 FM service (here) and the limited origination of programming on FM boosters (here) are pending and could be given further consideration, though any resolution is unlikely in 2022 given the procedural status of these proposals.

And, of course, the debate over regulation of tech platforms is an issue affecting the media industry generally.  The FCC’s involvement in this area may grow in the future, either through Congressional delegation of specific powers or the FCC’s own actions on issues including the review of Section 230 (see our article here) or net neutrality.

These are only some of the potential policy issues affecting broadcasters that could be on the plate of a full Commission in 2022. Watch as the nominations progress to see what other issues of importance to broadcasters come up in the discussions on Capitol Hill.  Be prepared for change of some sort – though it may well be in some area that we haven’t even mentioned here.  The FCC adapts to the issues of the day, and broadcasters need to be prepared for whatever comes their way from the new Commission.

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 a Further Notice of Proposed Rulemaking released Friday, the FCC proposed new rules to deal with the responsibility for multicast programming streams as TV stations transition to ATSC 3.0 (Next Gen TV). The FCC proposes to include programming that is broadcast on the multicast channels of host stations continuing to operate in ATSC 1.0 within the license of an ATSC 3.0 station originating that programming.  Comment is also sought on whether to include the programming steam of an ATSC 1.0 host station within the license of that station when its programming is included as a multicast channel on a station that has already converted to Next Gen TV.  The rulemaking is in response to an NAB petition asking the FCC to clarify its rules for licensing these multicast streams during the Next Gen TV transition.  Look for more details on this proceeding on the Broadcast Law Blog later this week.  Comments and reply comments on the proposals will be due 60 days and 90 days, respectively, after publication in the Federal Register.  (Further Notice of Proposed Rulemaking)
  • A Florida radio and TV licensee entered into a consent decree and will pay a $20,000 penalty for violating the FCC’s environmental rules. In this case, the licensee proposed construction of a tower within a designated habitat of the Florida bonneted bat, an endangered species.  The licensee began to clear vegetation from the site before an environmental assessment was completed and before the FCC approved construction.  The consent decree comes with the naming of a compliance officer, implementation of a compliance plan that includes employee training, filing of four compliance reports, and the monetary penalty.  Be sure you complete all necessary environmental reviews before starting the construction of any new facilities.  (Consent Decree)
  • An Alabama FM translator operator entered into a consent decree with the FCC and will pay a $13,000 fine for, among other things, changing transmitter sites without FCC permission, operating the translator at times when its primary station was off the air, and failing to notify the FCC as required when the translator was silent for more than 10 consecutive days. (Consent Decree).
    • In another FM translator matter, a translator in Colorado was sent a Notice of Violation for commencing operations on a new channel without filing a license application on Schedule 350. Translators are not to commence operations with newly authorized facilities without first filing an application for a license once construction of the new facilities has been completed.  (Notice of Violation)
  • The FCC reminded potential applicants that applications for new noncommercial educational FM stations are due by 6 p.m. Eastern on Tuesday, November 9. Applicants in this NCE window may submit up to ten applications for consideration by the FCC.  If you have not yet submitted your application(s), read the Public Notice that sets out the filing procedures and our blog post on the matter.  (Public Notice)
  • Stations that have not yet made progress preparing their biennial ownership report should not rely on an extension of the December 1 filing deadline and should aim to file their report before the deadline to allow for FCC database slowdowns. We wrote more about this reporting obligation, and the potential for penalties for stations that don’t meet the deadline, here.
  • FCC staff will have the option of returning to their new headquarters beginning December 1, according to industry publications. This is apparently a voluntary return – with a full return by FCC staff not likely until sometime in 2022.  FCC staffers in Washington DC have been required to telework since March 19, 2020.  When they go back to the office, staff will be working for the first time from the FCC’s new building that “opened” in October 2020.

On December 1 of this year, Biennial Ownership Reports are due to be filed at the FCC by all full-power radio and TV stations, commercial and noncommercial, as well as from Class A TV and LPTV operators.  These reports are due every two years.  While the last two biennial reports that had been due in December 2019 and in December 2017 had their deadlines extended to early the next year because of issues with the FCC forms that were at that point still being refined, no such issues are expected this year. In fact, a month ago when the window opened for filing these reports, the FCC released a Public Notice reminding broadcasters of the filing deadline, emphasizing its importance, and issuing this warning that there may well be fines or other penalties for stations that do not timely file this required report:

Consistent with the importance of this information, Commission staff intends to pursue enforcement actions against licensees that fail to file their biennial ownership reports in a timely or complete manner. 

Why does the Commission collect this information?  Biennial ownership information not only keeps track for the public of who owns broadcast properties, but it also allows the Commission to track broadcast ownership.  In recent years, the reports ask for the gender and race/ethnicity of owners of stations (and control parties of noncommercial stations), and the Commission plans to use this information to track industry ownership trends.  This was an issue in the most recent change in the broadcast ownership rules, where the Third Circuit, before being overturned by the Supreme Court, had wanted the FCC to determine the impact of past changes in its ownership rules on minority and female ownership – and the FCC fought back, claiming that it did not have that information (see our article here).  These reports are one way in which such information is supposed to be provided by the FCC. Continue Reading Less than a Month to Go – Reminder to Broadcasters to File Biennial Ownership Reports by December 1 or Potentially Face Penalties

Last week, the Australian Competition & Consumer Commission approved an application for Commercial Radio Australia to collectively bargain with Google and Facebook over the carriage by these tech platforms of news content from Australian radio broadcasters (press release here, application and approval here).  This approval is an outgrowth of the adoption of the Australian News Media and Digital Platforms Bargaining Code, which authorized bargaining between traditional news media outlets and tech platforms and, if the bargaining is not successful, a mandatory arbitration process to set appropriate royalties to be paid by the tech companies for the use of the news provider’s content.  These actions could be a preview of what could happen in the United States at some point in the future if pending legislation known as The Journalism Competition and Preservation Act, which we wrote about here, is adopted.

There are, of course, differences between the Australian approach and what has been proposed thus far in the United States. The US bill, while providing an antitrust exemption that would permit collective bargaining with tech companies by groups of traditional media companies, does not provide for any mandatory arbitration process for setting rates if no agreement is reached as to the rates and terms of content carriage by the tech companies.  Without providing any mandatory rate-setting process, if negotiations are not successful, the most significant bargaining chip in the US would be for the local media companies to withhold consent to the use of their content by the tech platforms.  It is interesting to note that, in the application by the Australian broadcasters’ organization for a waiver from their competition (antitrust) laws to allow the collective bargaining, the broadcasters disavowed any boycott of the tech platforms, which presumably would be unnecessary with mandatory arbitration waiting if a voluntary agreement cannot be reached.  In the US, a threat to pull content off tech platforms could become more important, though perhaps more difficult to achieve because of antitrust laws (which may allow collective bargaining but may not permit collective boycotts) and other US laws and policies. Continue Reading Could Australian Decision Giving Broadcasters the Right to Collectively Bargain with Tech Companies Be a Preview of Things to Come in the US?

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.

  • President Joe Biden made official his permanent FCC Chair – selecting Acting Chairwoman Jessica Rosenworcel to fill that position. He also re-nominated her for another five-year term, as her current term on the FCC ends at the end of this year.  The President also nominated Gigi Sohn, a former FCC senior staffer under Chairman Tom Wheeler, to be the fifth Commissioner and third Democrat.  Both nominations must be approved by the Senate before Congress adjourns at the end of the year, or the nominees will need to be re-nominated.  (White House Release)
  • The FCC released an advance text of a proposal that would change how FM and LPFM license applicants verify directional antenna patterns, using computer modeling rather than real-world testing. This proposal will be considered by the Commission at its next monthly open meeting on November 18.  Under current rules, FM and LPFM applications must provide real world 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 can already use computer modeling to verify directional antenna patterns.  (Draft Notice of Proposed Rulemaking)
  • The C-Band Relocation Payment Clearinghouse (RPC), which is responsible for the processing of claims for reimbursement and lump sum payments associated with the C-band relocation, has begun to pay claims filed by earth station operators.  In a press release, RPC noted that some entities potentially eligible for reimbursement or lump sum payment have not yet filed claims and urged these entities to visit cbandrpc.com/resources to set-up an account and file their claim. (Press Release)
  • The decision of the Copyright Royalty Board raising the royalties for 2021-2025 to be paid to SoundExchange by webcasters for the digital transmission of sound recordings was published in the Federal Register. (Federal Register publication).  The notice makes clear that the rates are now effective, and webcasters need to start paying at the new rates.  Participants in the proceeding have 30 days to decide if they will appeal the CRB decision to the US Court of Appeals.  We wrote more about this decision here.  Look for more on this action later this week on our Broadcast Law Blog.
  • Locast, the service that had been retransmitting local TV signals over the internet, will pay the big broadcast networks $32 million to settle copyright infringement claims tied to the service’s retransmission of television programming without consent. The service has now been terminated.  We wrote more about some of the issues in the case, here.  (Consent Judgment)
  • In other confirmation news, Jonathan Kanter, President Biden’s choice to lead the Department of Justice’s Antitrust Division, was approved by the Senate Judiciary Committee. 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.  Kanter’s nomination will be considered by the full Senate at a later date.  (Committee Action)

With FCC Acting Chair Jessica Rosenworcel now appointed permanent chair of the FCC, and with a fifth FCC Commissioner now having been nominated (Gigi Sohn), the FCC may soon be back to normal strength.  Even before that though, the FCC and other government agencies remain busy, with many important regulatory dates and deadlines in the coming weeks.  We have highlighted some of those dates below.  Pay close attention to these dates, especially the December 1 deadline to file biennial ownership reports that is applicable to all broadcasters.

Reply comments on the FCC proposal to bring back FCC Form 395-B are due by November 1 (comments were due by September 30 and can be read here).  Following the FCC’s review of comments and reply comments on the issue, enhanced equal employment opportunity data collection could again be a reality for broadcasters more than 20 years after the FCC suspended the form’s use.  Form 395-B was an annual report intended to gather information about the race and gender of broadcast employees, thrown out by the courts over fears of the unconstitutional use of the data to force broadcasters to make hiring decisions based on these factors.  We wrote more about the possible resurrection of Form 395-B, here. Continue Reading November Regulatory Dates for Broadcasters: Reply Comments on EEO Reporting and KidVid Accessibility; New Noncommercial FM Filing Window; Biennial Ownership Reports; License Renewals; and More

In a Federal Trade Commission notice published last week, the agency warned the advertising industry that penalties could be coming for the use of deceptive endorsements.  The FTC not only released the notice, but it also sent a letter (a version of which is available here) to hundreds of businesses (a list is here) – advertisers, advertising agencies, and a few media companies – reminding them of the FTC’s concerns about deceptive endorsements in advertising.  While the FTC makes clear that this list of recipients of the letter does not indicate that any of them did anything wrong, it does make clear that the FTC takes this issue very seriously and wants to highlight the issue for the entire advertising ecosystem.  The letter reminds businesses that violations can lead to fines of up to $43,792 per violation and other penalties.

What are the FTC concerns?  The FTC said that prohibited practices “include, but are not limited to: falsely claiming an endorsement by a third party; misrepresenting whether an endorser is an actual, current, or recent user; using an endorsement to make deceptive performance claims; failing to disclose an unexpected material connection with an endorser; and misrepresenting that the experience of endorsers represents consumers’ typical or ordinary experience.”  In other words, when an endorser says something about a product, the FTC is expecting that the endorser used the product and the statements that it makes about the product are accurate and reflect what consumers can expect from that product.  This is not the first time that the FTC has raised these issues. Continue Reading FTC Reminds Advertisers That Deceptive Endorsements in Advertising Can Lead to Penalties

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 Federal Trade Commission issued a press release which warns advertisers to avoid misleading endorsements. The FTC also sent a warning letter to hundreds of advertisers, advertising agencies, and media companies setting out its concerns, and the potential penalties, for misleading endorsements in advertising, including those by endorsers who had not actually used a product or ads that create unrealistic expectations for the products being advertised.  (Press Release and Warning Letter).  Watch our Broadcast Law Blog on Monday for more on this warning and its impact on broadcasters.
  • A recent court case is a good reminder that political attack ads can subject broadcast stations to defamation claims. While broadcast stations are generally immune from liability for the content of candidate advertising, they can have liability if they air an attack ad from a non-candidate group (e.g., a PAC or political party), knowing that the content is false or with notice that the ad might be false.  See our blog post on this issue, here.
  • In last week’s update, we noted that the Copyright Office opened a study to examine the rights and protections of news publishers under copyright and related laws.  We took a longer look at the study this week on the Broadcast Law Blog, including the study’s potential impact on news content produced by broadcasters or news content produced by other outlets and reproduced by broadcasters.  Comments on the notice of inquiry are due November 26, 2021 (Notice of Inquiry).
  • In a reminder that non-broadcast conduct of owners of a company can affect the company’s qualifications to hold a broadcast license, the FCC this week issued an order announcing that they will hold a hearing to determine whether a Pennsylvania FM station licensee who was convicted of a felony and multiple misdemeanors is qualified to continue holding an FM station license. FCC licensees are required to meet certain character qualifications set out in its Character Qualification Policy Statement.  The FCC could determine that the criminal conduct requires a revocation of the station’s license.  (Hearing Designation Order)  See our blog post, here, for a longer discussion of the FCC’s character policy and how it has been used in the past.
  • The FCC entered into a number of consent decrees with broadcasters whose license renewal applications revealed untimely uploads to their online political files (see examples of the FCC orders here and here) or other untimely actions, including other late non-political uploads to online public files (see the orders here and here). For more details on the consent decrees for untimely uploads to the political file, see our articles here and here.  For more on FCC actions for other violations of the public file rules, see our articles here and here.

The Copyright Office, at the request of Congress, has initiated a study to examine the rights and protections of news publishers under copyright and related laws.  The Office issued a Notice of Inquiry seeking public comment on a variety of issues that could extend new protections to “press publishers” and perhaps other content creators that go beyond those accorded by traditional principles of copyright law.  The Office terms these protections “ancillary copyright protections.”  The Notice of Inquiry tees up several specific proposals for consideration, asks many specific questions, and solicits additional ideas that should be considered to protect publishers.  Comments are due November 26, 2021.  The Copyright Office will also hold a virtual public roundtable on December 9 to consider these issues.  This study could have an impact both on traditional media outlets who produce content, and on digital media that shares those comments.

The impact of digital media on traditional publishers of content – especially news content – was the trigger for this review.  The Notice begins with a recitation of the financial impact that the growth of the internet has had on newspapers and other publishers (“publication” under the Copyright Act is the distribution of a copy or recording of a work to the public by sale, rental, lease, or lending.  While a pure public performance does not constitute publication, digital subscription services and similar on-demand uses of content would likely fit within this definition).  In its opening paragraphs, the Notice focuses on digital “news aggregators” and their impact on publishers.  The Notice takes a broad view of the term aggregator – talking not just of headline clipping sites devoted to specific topics, but also to broader digital media sites like Facebook and Google that feature content from a variety of other sources.  While recognizing that aggregators can drive traffic to publisher’s digital content, the Copyright Office seeks comment on whether these aggregators also harm publishers by sending traffic only to specific articles and not to an index or home page for a publisher where a viewer might be inclined to view more content (and perhaps more of the publisher’s own ads).  From that opening discussion of news aggregators, the Notice looks at possible “ancillary” rights that may assist publishers in overcoming any negative impact of aggregators. These are discussed below. Continue Reading Copyright Office Initiates Study of “Ancillary Copyright Protections” Accorded to Publishers – Reviewing News Aggregation and Digital Media’s Use of News Content from Traditional Sources

A recent controversial court of appeals decision on a defamation claim brought by Congressman Devin Nunes sends a signal to broadcasters about the care they need to give to reviewing commercial messages – particularly political attack ads – when questions are raised as to the truth of the assertions made in those ads.  As we have written before, broadcasters are immune from civil liability for defamation claims when they broadcast an ad from the campaign of a legally qualified candidate, as a station cannot censor a candidate ad.  Because broadcasters must transmit the ad as produced, they are immune from liability for its content.  But ads from non-candidate groups, including political parties and PACs, can be censored by stations – so stations that decide to run such ads are subject to liability for their content.  Under Supreme Court precedent, defamation of a public figure (like a political candidate) is found when material is transmitted to the public that is false and results in injuries to the candidate plus, unique to public figures, the ad was transmitted with “actual malice.” Malice means that it was transmitted either knowing that the ad was false or having reason to believe that it was false.  See our article here about the analysis of this issue in other cases.  When a broadcaster receives objections alleging that content in the ad is false, it can be argued that the station has been put on notice that it has an obligation to assess the truth of the ad, and thus would need to take it down if the ad includes defamatory claims being made.

We recently wrote about the opinions from two Supreme Court justices suggesting that it should be easier for public figures to prove defamation claims. The case that led to the recent court of appeals decision began when Congressman Nunes brought a defamation lawsuit in response to a magazine’s publication of allegations that his family’s farm used illegal migrant labor and suggested that his political positions against immigration were thus hypocritical.  That lawsuit urged the same change in defamation law suggested in the Supreme Court opinions, and also alleged that the implications in the article were false, as Nunes know nothing about the migrant laborers.  A few months later, a reporter tweeted a link to the article, suggesting that his twitter followers look at the allegations in the article.  While the court found that the article itself was not defamatory (since the publisher had no reason to believe the information in the article was false at the time of publication, and thus acted without malice), it also found that the reporter’s tweet was potentially defamatory since, after the article was published, Nunes had filed his lawsuit against the magazine claiming that the article’s suggestion that he knew about the illegal workers was false.  The court held that a summary decision in favor of the reporter was not proper, finding that a jury could determine that the reporter’s tweet was defamatory even though the underlying article was not, as the tweet came after the claim by Nunes that he knew nothing about the illegal workers. Continue Reading Defamation by Tweet – Court Case Reminds Broadcasters to Take Cease and Desist Requests about Attack Ads Seriously