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.

  • Because of the Supreme Court’s decision earlier this year upholding the Commission’s 2017 relaxation of certain media ownership rules, the FCC reinstated those rule changes. Rules reinstated include the elimination of the Newspaper/Broadcast Cross-Ownership Rule, the Radio/Television Cross-Ownership Rule, the Local Television Ownership Rule’s “eight-voices” test (which prohibited the ownership of two TV stations in one market unless there would be 8 independent TV operators in the market after the proposed combination) and the Television Joint Sales Agreement Attribution Rule (which counted a station receiving sales services under a JSA as if the station was owned by the party providing those services).  The absolute ban on top-four television station combinations was also eliminated, returning to the case-by-case assessment adopted in 2017 for those proposals.  See the FCC’s order, here.
  • As the Supreme Court decision cleared the way for the FCC to resume its review of its ownership rules, the FCC announced that it would open a new comment window to refresh the record established when it began a new Quadrennial Review of these rules in 2018. This review features possible changes to the local radio ownership limits were little affected by the rule changes made in 2017.  The Commission asks for comments on industry developments since parties submitted their views in this Quadrennial Review in 2019, including how the COVID-19 pandemic changed the broadcast industry.  Comments will be due 30 days after the FCC’s notice asking for these comments is published in the Federal Register.  Read the entire Public Notice to learn more, and watch for our thoughts on the issues raised in the open Quadrennial Review on our Blog this week.
  • The FCC announced the status of the 158 short-form applications it received for Auction 109, the upcoming auction of 136 FM and 4 AM construction permits for new radio stations. Of the 158 applications, 107 were classified as complete, 50 were classified as incomplete, and one was rejected.  (Complete applications, incomplete applications, rejected application).  To become a qualified bidder, upfront payments are due by June 16, as are corrections to any application found to be incomplete.  See the Public Notice, here.
  • As we previewed in last week’s regulatory update, we took a longer look at the various LPFM proposals being considered by the FCC. We wrote about two of the technical proposals that are likely to be rejected by the Commissioners at their June 17 meeting and a new proposal that seeks an increase in maximum power of LPFM stations to 250 watts – all looking forward to a future window for the filing of applications for new LPFM stations.  (Broadcast Law Blog)
  • Just before Facebook announced that it would continue its suspension of former President Trump from its platform for at least another two years, we published a blog article about a related move by Facebook: its decision to subject politicians to the same Community Standards that it enforces against other users. The company had said previously that posts by politicians were especially newsworthy and therefore should receive less scrutiny and censorship.  Our article highlights the different legal standards that apply to broadcasters and online platforms in dealing with content from political candidates.  (Broadcast Law Blog)

According to press reports (see this story in Verge and this one in the Washington Post), Facebook will end its policy of not subjecting posts by elected officials to the same level of scrutiny by its Oversight Board that it applies to other users of its platform.  Facebook’s announced policy has been that the newsworthiness of posts by politicians and elected officials was such that it outweighed Facebook’s uniform application of its Community Standards – though it did make exceptions for calls to violence and questions of election integrity, and where posts linked to other offending content.  Just a year ago, there were calls for Facebook to take more aggressive steps to police misinformation on its platforms. These calls grew out of the debate over the need to revise Section 230 of the Communications Decency Act which insulates online platforms from liability for posts by unrelated parties on those platforms (see our article here on Section 230). Last year, we compared Facebook’s policy with the laws that apply to other communications platforms, including broadcasters and cable companies.  In light of the potential change in Facebook’s policy, we thought it would be worth revisiting that analysis now.  Here is what we wrote last year:

[In January 2020], the New York Times ran an article seemingly critical of Facebook for not rejecting ads  from political candidates that contained false statements of fact.  We have already written that this policy of Facebook matches the policy that Congress has imposed on broadcast stations and local cable franchisees who sell time to political candidates – they cannot refuse an ad from a candidate’s authorized campaign committee based on its content – even if it is false or even defamatory (see our posts here and here for more on the FCC’s “no censorship” rule that applies to broadcasting and local cable systems).  As this Times article again raises this issue, we thought that we should again provide a brief recap of the rules that apply to broadcast and local cable political ad sales, and contrast these rules to those that currently apply to online advertising. Continue Reading Reports that Facebook Will End Policy of Not Censoring Politician’s Posts – How Other Communications Platforms are Regulated on Political Speech

Low Power FM is back in the news this week.  As we noted a week ago in our summary of FCC regulatory actions, a Petition for Rulemaking has been filed by REC Networks asking that the maximum authorized power for LPFM stations be raised from 100 to 250 watts.  The hope among LPFM advocates is that an increase in power will allow such stations to increase service in their communities.  REC asks that this proposal be adopted based entirely on mileage separation rules (i.e., how far these stations would have to be spaced from other stations operating on the same or an adjacent channel), even while recognizing that, in some cases, the mileage separations could create interference to existing FM stations or FM translators.  This is just an initial proposal asking the FCC to start a rulemaking to further consider this power increase.  Comments on this proposal are due June 21, 2021.

In addition, in an article published last week, Acting FCC Chairwoman Rosenworcel set out the items to be considered on the agenda for the FCC’s June monthly open meeting.  One of the items to be considered is a review of two petitions for reconsideration of the FCC’s 2020 Order which changed some of the technical rules for LPFM stations (see our article here).  In announcing this draft reconsideration action, the Chairwoman stated that the resolution of these technical issues would bring the FCC one step closer to opening a window for the filing of applications for new LPFM stations. The last such window was in 2013.  While no dates have been provided, in previous announcements, the FCC has indicated that this window would follow the noncommercial FM window that is scheduled for November of this year. Continue Reading Low Power FM Back In Front of FCC – Another Proposal to Raise Power and Word of a New Filing Window

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.

  • New rules went into effect on May 24 that are designed to give broadcast TV stations greater flexibility in the placement of transmitters in Distributed Transmission Systems (DTS, also known as Single Frequency Networks). DTS is seen as important as many stations convert to the ATSC 3.0 transmission standard.  For more on the new rules, see our blog article here.  While these rules have become effective, Microsoft has asked the FCC to reconsider them claiming, among other things, that the new rules harm the ability to deploy white space devices.  The FCC will be soliciting public comment on the Microsoft petition in the near future.  (Petition for Reconsideration)
  • The FCC announced this week that, at its June 17 meeting, it will vote on two petitions asking the FCC to reconsider LPFM technical rules that were issued in April 2020 which, among other things, permitted greater use of directional antenna by LPFM stations. In its draft order on those petitions, the Commission appears ready to reject them which, according to Acting Chairwoman Rosenworcel, will help pave the way for a window for the filing new LPFM applications in the near future.  (Draft Order on Reconsideration).  Look for more details on these LPFM issues in an article that should be posted on our blog on Tuesday.
  • At the same June 17 meeting, the Commissioners will vote on updates to its Emergency Alert System (EAS) and Wireless Emergency Alerts rules that it proposed in February, including introducing a new class of alerts called “National Alerts” and updating the process for reviewing and approving state EAS plans and for reporting false alerts. We wrote at length about the draft rules, here.  The Commissioners will also vote on a request for comments on whether certain irrelevant EAS event codes should be deleted, changed, or replaced and whether EAS should support “persistent” display and notification of severe threats to loss of life.  (Draft Report and Order and Further Notice of Proposed Rulemaking). The February FCC notice also asked whether emergency alerts can and should be delivered via streaming services The FCC is still accepting reply comments on its inquiry into that issue through June 14.

As the calendar flips to June, pandemic restrictions across the country continue to loosen, and we inch closer to summer.  Broadcasters could be forgiven for not having regulatory dates and deadlines on the top of their minds.  There are, however, many important dates and deadlines to keep track of during June – we provide details of some of them below.  As always, be sure to stay in touch with your FCC counsel for the dates and deadlines applicable to your operations.

Radio stations in Arizona, Idaho, Nevada, New Mexico, Utah, and Wyoming and television stations in Michigan and Ohio should be putting the final touches on their license renewal applications, which are due by June 1.  See our article, here, about preparing for license renewal.  These stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396) and, if they are part of a station employment unit (a station or a group of commonly owned stations in the same market that share at least one employee) with 5 or more full-time employees, upload to their public file and post on their station website a link to their Annual EEO Public Inspection File report covering their hiring and employment outreach activities for the twelve months from June 1, 2020 to May 31, 2021. Continue Reading June Regulatory Dates for Broadcasters: License Renewal and EEO Filings, Comments and Replies, Auction Upfront Payments, Streaming Rates Announcement, and More

The Copyright Royalty Board decision on the rates to be paid in the next 5 years by webcasters, including broadcasters who simulcast their programming on the internet, to SoundExchange for the digital public performance of sound recordings is supposed to be released by June 14.  These royalties are collected by SoundExchange from noninteractive webcasters (see our articles here, here and here on the difference between interactive and non-interactive webcasters) and are distributed to the artists who perform on recordings and to the copyright holders of those recordings – usually the record labels.  The CRB sets these rates in 5-year increments.  The rates at issue in the current proceeding are for 2021-2025.  As we wrote here and here, these rates would normally have been determined before the end of the last rate period at the end of 2020 but, as the trial to determine the rates was postponed by the pandemic, the CRB has been given to June 14 to announce the new royalties, presumably to be made retroactive to January 1.

The proposals made in this proceeding vary widely.  SoundExchange and its associated record labels are arguing that the rates should substantially increase, from their current level of $.0018 per performance (per song per listener – see our article here) for nonsubscription streams to rates of $.0028 per performance for 2021, with cost of living increases each succeeding year.  For subscription webcasting, SoundExchange proposes that the rates increase from $.0024 to $.0031.  In these cases, each party makes arguments as to what a willing buyer and willing seller would pay in a marketplace transaction for such rights.  The parties introduce expert witnesses to testify as to what that rate would be, usually by looking at other similar marketplace transactions.  To arrive at its proposed rates, SoundExchange introduced experts who looked at the market price for the use of music by interactive services.  These prices are set by direct negotiations.  From those prices, the experts attempted to calculate an appropriate adjustment to remove the value of the interactivity to determine the rates that a noninteractive service would pay.  This proposed increase in royalties was, of course, countered by representatives of the services who will pay the royalties to SoundExchange. Continue Reading Copyright Royalty Board Decision on Webcasting Royalties Expected by June 14 – What Will the Streaming Rates for 2021-2025 Be?

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 asked for public comment on a proposal to increase from 100 to 250 watts the maximum power allowed for Low Power FM stations. This proposal has previously been raised by LPFM advocates many times, and thus far it has been rejected by the FCC (see our article here on a prior attempt).  Comments on this updated petition to raise the allowable power for LPFMs are due by June 21, 2021.  (Public Notice)(Petition for Rulemaking and Appendix)
  • As we noted in updates over the last three weeks (here and here), the FCC released a Notice of Proposed Rulemaking that sets out its tentative plan for assessing broadcast regulatory fees to be collected before October 1 of this year. Broadcasters can file comments now through June 3, with reply comments due by June 18.  (Federal Register). As the FCC’s proposal includes increases in some broadcast fees for the third year in a row, the proposal has met resistance from the National Association of Broadcasters.  Members of the NAB staff talked with FCC to voice their concern about the fee increases, especially in light of broadcast revenue decreases due to COVID.  The NAB argued that the FCC’s costs, used to determine the fees each regulated industry pays, were improperly allocated and that the fees for other industries, which were not as hard-hit by the pandemic, should bear a bigger burden in paying these costs.  (NAB Letter)
  • The FCC this week extended by two weeks the dates by which interested parties can submit comments on the FCC’s rules which arose after the passage of the Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). The CVAA was designed to make broadcasts and other communications channels more accessible.  It has resulted in requirements including audio description of television programming and captioning of TV programming delivered over the internet.  Comments on whether any of these rules should be modified are now due on June 7, 2021 with replies due by July 6.  We wrote more about the CVAA and the request for comments, here.  (Public Notice)
  • This week, in ten separate actions, the FCC either changed, or proposed to change, the channel of a full-power television station from a VHF to a UHF channel. Since the FCC late last year lifted its freeze on channel changes by TV stations (see our article here), a freeze that had largely been in place for over a decade, many stations operating on VHF channels (13 and below) have requested to change their channels to UHF.  UHF channels (14 and above) are subject to less interference and provide better building penetration for digital operations, and these channels are also seen as superior for ATSC 3.0 operations (see our article here).
  • In legislative developments, we wrote on our blog this week about a congressional effort to establish a “Future of Local News Committee” that would be tasked with examining the state of local news in the United States. The committee would ultimately deliver a report to Congress with recommendations for protecting and enhancing local news operations, and potentially the federal funding of newsrooms.  (Future of Local News Committee Bill)

 

Under the Twenty-First Century Communications and Video Accessibility Act of 2010 (commonly called the CVAA), the FCC has adopted many rules designed to enhance accessibility to broadcast communications, particularly those provided by television broadcasters.  In a recent Public Notice, the FCC asked for comments as to how the implementation of the CVAA has worked in the decade that it has been in effect, and what changes (if any) need to be made to reflect current technologies.  The FCC this week announced an extension of the comment dates.  Comments are now due on June 7, 2021 with replies due by July 6.

The adoption of the CVAA led to the FCC adopting many different rules that are designed to enhance accessibility to television programming.  These rules include the requirements for Audio Description of video programming (formerly referred to as “video description”) where the FCC required that larger market network TV stations pass through a certain amount of programming with a secondary audio channel that describes the action on the screen (see our article here on a recent expansion of that requirement).  The FCC also adopted requirements for the captioning of video programming that TV broadcasters post on the Internet that was initially broadcast over the air, with captioning, and then repurposed for online use (see our articles here, here and here).  Rules requiring TV stations to use their secondary audio channels (their “SAP” channels often used for second-language audio for TV programs) to broadcast audio versions of alerts provided by a TV station during non-news programming have also been adopted pursuant to the CVAA (see our articles here and here, here on this requirement).  And, while mandated prior to the CVAA, closed captioning requirements for TV stations and other video programmers have been reviewed in light of CVAA concepts, including the adoption of closed captioning quality standards such as accuracy and delay (see for instance, our articles here, here and here).

Given the broad reach of these obligations, broadcasters should be tracking the FCC’s actions in this proceeding and watching the comments filed to assess how their operations may be impacted by any suggested changes to these rules.  With the extended comment period, broadcasters also have the opportunity to suggest changes of their own to make these rules operate more effectively.

There can be no doubt that local newspapers have been significantly impacted over the last two decades by the ascent of the Internet.  And, as we have written before (see, for instance, our article here), digital media has also had a significant impact on the local revenues of broadcasters, who also have traditionally specialized in covering local events.  To study the effect of the decline in local news sources, legislation has been introduced in both the House and Senate to create a government committee to look at various aspects of this issue. The “Future of Local News Committee” would include individuals appointed by the majority and minority in the House and Senate, as well as individuals selected by the Corporation for Public Broadcasting, The National Endowment for the Humanities, and the US Agency for Global Media.  Each appointee is to be someone experienced in some aspect of local media.  The committee would have one year to deliver a report to Congress.

What would they study?  The legislation suggests that the committee would have broad investigatory powers to review how the change in local media has affected local communities.  The bill’s preface includes language stating that over 2000 newspapers have gone out of business since 2004, and that of the 6,700 remaining, 1000 could be classified as “ghost newspapers” whose staffs have been so reduced that they cannot effectively cover local events.  The bill also cites a Pew Research study that shows that local newsroom employees at newspapers, broadcast outlets and digital sources dropped 25% from 2008-2018.  Perhaps most startling is the statement that newspapers alone lost more than $35,000,000,000 in revenue between 2004 and 2018.  All these factors, and many others cited in the bill, are alleged to show that local media can no longer effectively cover local events. Continue Reading Does Local News Need Government Assistance to Survive – Legislation Proposed to Set Up Commission to Study the Impact of Changes in Local Media on Local Communities  

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 speech to the Media Institute, FCC Commissioner Starks spoke of the importance of diversity in media ownership and how it should be considered in making any decisions on revisions to the media ownership rules. In addition, the Commissioner stated that a proposal is now circulating among the Commissioners to regularly gather details from broadcasters on the race and gender of their employees.  That information has not been collected for almost 20 years after questions were raised about the constitutionality of the use of such data in assessing broadcasters hiring practices.  The text of the Commissioner’s speech is here.
  • Commissioner Carr issued a statement arguing that the Commission should not interfere with a broadcast station’s newsroom decisions following a complaint filed by the Baltimore City State’s Attorney’s Office about a TV station’s coverage of its office. [Complaint and Carr Statement]. We looked at this complaint and similar cases and the role of the First Amendment in broadcast regulation, here.
  • The NAB released a study prepared by BIA Advisory Services finding that social media and other online platforms underpay broadcasters by billions of dollars each year for use of their content, undermining the economic support for local news that these stations provide. [NAB Statement and Study].  NAB President Gordon Smith at the NAB Leadership Conference this week mentioned this report and Congressional proposals to remedy this situation. [Smith Statement].  We wrote here about the details of the pending legislative proposal to give broadcasters more bargaining power with tech platforms.
  • The regulation of online platforms was much discussed at the Leadership Conference and has otherwise been in the news. In another article, we wrote about how this regulation (including reforms of Section 230 which insulates online platforms from liability for content posted by others) could affect advertising on such platforms.
  • As we noted in last week’s update, the FCC released a Notice of Proposed Rulemaking that sets out its tentative plan for assessing broadcast regulatory fees to be collected before October 1 of this year, with comments due on or before June 3 and reply comments due by June 18. (Federal Register). The FCC’s proposals include increases in some broadcast fees and questions as to whether the Commission needs to accommodate broadcasters and other regulated companies who experienced economic hardship because of the pandemic.  The Commission this week released several decisions by its Office of Managing Director on individual requests for waivers of the payment of annual regulatory fees – decisions that made clear the high burden that an applicant faces in receiving such a waiver. [Summary of denials, full decisions available at links in FCC’s Daily Digest]
  • The FCC’s Media Bureau this week released announcements of consent decrees with nine different radio broadcasters over late uploads to their online political file disclosed in their license renewal applications. The FCC in the previous week announced ten additional consent decrees with other broadcasters.  The consent decrees mandate training programs for station employees on political file obligations and two years of regular reporting requirements where these broadcasters must provide specifics on their compliance to the FCC.  These consent decrees show just how seriously the FCC takes violations of a broadcaster’s obligations to immediately upload information about political advertising orders to their online public inspection files.  We wrote about political consent decrees and what they require here.