At its March 17 monthly Open Meeting, the FCC will consider a Notice of Proposed Rulemaking seeking to modify certain aspects of the Emergency Alert System used by many of those regulated by the FCC including broadcasters, cable companies, and wireless communications devices such as mobile phones.  The FCC is reviewing these issues as required by the National Defense Authorization Act, passed by Congress at the end of 2020.  As part of its mandate, Congress also asked that the FCC review whether it would be possible to require “streaming services” to become EAS participants.  A Notice of Inquiry asking that question is included with the Notice of Proposed Rulemaking, asking specific questions about the feasibility of that extension of EAS requirements.  A draft of the proposals to be considered by the FCC at the March meeting is available here (the draft is subject to change before the meeting).

The proposed changes include some that may be relevant to broadcasters.  These include the requirement that State Emergency Communications Committees meet at least yearly to review state EAS plans and certify to the FCC each year that they have in fact met.  The FCC will consider and approve all changes to state EAS plans but will no longer make those plans public on the FCC website, as there is a fear that publication of these plans could be used to subvert the emergency alerts. Continue Reading FCC To Consider Emergency Alert System Changes and Evaluate the Ability of Streaming Services to Participate in EAS

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

  • About 200 radio and television stations have been randomly selected to be audited by the FCC for their EEO compliance. The FCC audits about five percent of all broadcast stations each year, requesting documentation of an audited station’s hiring practices.  Stations on the audit list have until April 26 to upload their audit response to their public file.  (Audit Notice and Station List)  (Broadcast Law Blog)
    • A draft of a proposal for changing the broadcast EEO rules is circulating for review among the Commissioners. It appears that this proposal will seek public input on changes arrived at after the Commission’s review of the comments in its 2019 rulemaking that looked at how to make the EEO program more effective.  See our article here on that 2019 rulemaking proceeding.
  • The FCC’s Wireless Telecommunications Bureau reminded parties of their obligation to report in the Antenna Structure Registration system all transfers of ownership of registered towers. The Bureau notes that accurate records are necessary to protect aircraft navigation safety.  (Public Notice).  See our articles here and here about past FCC fines for companies who forgot to update this information.
  • Beginning March 26, broadcasters will no longer have the option of submitting checks or other “manual” payments for fees due for applications processed by the FCC’s Media Bureau. With the closure of Lockbox 979089, all application fee payments must be electronic.  (Federal Register)
  • At the FCC’s March 17’s FCC monthly Open Meeting, the Commissioners will consider an Emergency Alert System proposal for new rules to keep the public safe and informed during emergencies and disasters, including an inquiry as to whether it is possible to deliver emergency alerts through the internet, including over streaming services. (Meeting Details) (Emergency Alert NPRM and NOI)
  • Comments are due by March 29 on the FCC’s proposal to use a terrain-based methodology (such as Longley-Rice) for determining where white space devices can operate in the television band. Reply comments are due by April 26.  The Further Notice of Proposed Rulemaking was released in October.  (Federal Register)
  • Anna Eshoo (D-CA) and Jerry McNerney (D-CA) sent letters to the heads of the country’s biggest cable, satellite, and streaming platforms requesting information on how they intend to police misinformation disseminated by certain news networks they carry. As the inquiry targeted conservative networks and alleged misinformation about the presidential election and the pandemic, Republican objections, including statements from FCC Commissioners Carr and Simington, were swift.  It is likely that the Congressional letter, this week’s congressional hearing on misinformation in the media, and other efforts to address media bias will keep the First Amendment and the Fairness Doctrine in the news.  We wrote about these debates in the context of the Fairness Doctrine, here, and NAB CEO Gordon Smith wrote an op-ed about broadcasters’ dedication to reporting facts, here.
  • The FCC announced the winning bidders of the C-Band auction that raised more than $81 billion selling off spectrum made available, in part, by relocating broadcasters. This moves the FCC another step closer to releasing reimbursement payments to affected broadcasters.  (Public Notice) (Bidding Summary)
  • We published our monthly look at the upcoming regulatory dates and deadlines coming in March and early April. We covered comment periods in rulemaking proceedings, application filing deadlines, and other regulatory dates for the coming month.  Read our blog post, here.

 

Yesterday the FCC  released another of its regular EEO audit notices (available here), asking over 200 radio and TV stations, and the station employment units with which they are associated (i.e., commonly owned stations serving the same area) , provide to the FCC (by posting the information in their online public inspection file) their  EEO Annual Public File reports for the last two years, as well as backup data showing  that the station in fact did everything that was required under the FCC rules.

To lighten the burden on stations due to the pandemic, certain requirements usually associated with these audits have been adopted.  Audited stations must provide representative copies of notices sent to employment outreach sources about each full-time vacancy as well as some documentation of the supplemental efforts that all station employment units with 5 or more full-time employees are required to perform (whether or not they had job openings in any year). These non-vacancy specific outreach efforts are designed to educate the community about broadcast employment positions and to train employees for more senior roles in broadcasting. Stations must also provide information about how they self-assessed the performance of their EEO program. Answers to certain other questions are also required.  Stations that are listed in the audit notice have until April 26, 2021 to upload this information into their online public file. Continue Reading FCC Issues First Broadcast EEO Audit of 2021– Reviewing the Basics of the FCC’s EEO Rules

March brings springtime and, with it, a likely reprieve from the cold and extreme weather much of the country has been suffering through.  As noted below, though, March brings no reprieve from the routine regulatory dates and deadlines that fill a broadcaster’s calendar.

TV operators have until March 8 to file comments in the Copyright Office’s Notice of Inquiry looking to assess the impact of the abolition of the statutory copyright license that allowed satellite television operators to import distant network signals into TV markets where there were households arguably not being served by a local network affiliate (see our article here). Continue Reading March Regulatory Dates for Broadcasters: Copyright, White Spaces, and Zonecasting Comments; LPTV and Translator Analog-to-Digital Extension; Emergency Alerting for Streaming Companies, and More.

At the end of last week, the FCC’s Audio Division released a letter decision denying a Class A FM station licensee (limited in power to 6 KW) a waiver that would have allowed it to upgrade its facilities to those that would be equivalent to what would be permitted if the Commission was to establish a Class C4 FM.  The Division found that granting such a waiver would prejudge the FCC’s pending proceeding looking at whether the FCC should approve Class C4 stations.  Where does that proceeding stand?

The pending proposal to create a Class C4 FM station, i.e., one operating with maximum effective radiated power of 12 kw (essentially midway between the power limits of the current Class A stations and Class C3 FMs that are limited to 25 kw), has been advocated at the FCC for several years.  Sponsors contend that it would allow Class A stations to not only solidify and expand their coverage, but also to overcome some of the building penetration issues that are alleged to occur when reception is limited inside buildings constructed of certain materials.  The proposal for this new class of FM station has not been unanimously supported by other broadcasters. Continue Reading No Class C4 FM To Be Permitted By Waiver – Where Things Stand on Proposal for New Class of FM Stations

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

  • The FCC has started planning for its next AM/FM radio auction (Auction 109) scheduled to begin on July 27.  Four AM construction permits in the St. Louis area and 136 FM construction permits across the country will be available, with minimum opening bids ranging from $750 to $75,000.  Comments and reply comments on the proposed bidding procedures are due by March 15 and March 22, respectively.  More details about the auction and proposed bidding procedures can be found, here, and the list of permits to be auctioned is available, here.  For more on the filing process and issues to consider, see our article here.
    • In preparation for Auction 109, the FCC froze any FM filing that proposes to change one of the available allocations’ channel, class, community of license or reference coordinates.  (Public Notice)
  • The renewal applications for seven FCC authorizations in Alabama were designated for hearing to determine if their licensee possesses the basic character qualifications to hold an FCC license.  The licensee’s principal was convicted of six felonies and imprisoned for these crimes he committed while in the Alabama House of Representatives.  This decision serves as a good reminder that, under the FCC’s Character Qualifications Policy Statement, non-FCC misconduct can be grounds to deny FCC licenses and can even prevent a licensee from selling a station as FCC precedent is that someone without the requisite character should not be able to profit from the sale of a government-granted broadcast license (Order).  We took a closer look on our blog at some of the FCC’s considerations in enforcing this policy.
  • Many television stations took advantage of the FCC’s lifting of its freeze on television applications, including channel changes.  This week, numerous proposals for changes in the operating channel of television stations, most proposing changes from VHF to UHF channels better able to operate in a digital environment, were put out for public comment.  Notices of nine channel-change proposals filed immediately after the freeze was lifted were included on the FCC’s Daily Digest of its actions on Friday.
  • The FCC’s Audio Division denied the application of an FM station seeking a waiver of Commission rules to upgrade its facilities to those that would be allowed under the pending proposal to create a new class of FM stations – Class C4.  The letter denying the application said that a waiver for this station would pre-judge the current FCC proceeding which is trying to determine whether to authorize this new class of FM stations (Letter Decision).  For more about the proposed Class C4 for FM stations, see our blog article here.
  • As the FCC reviews radio license renewals filed in recent months in various midwestern states, this week we have again seen a flurry of consent decrees with broadcasters who could not certify compliance with the political broadcasting rules.  These consent decrees require the broadcaster to engage in training for its staff on political broadcasting issues and to report to the FCC for two years on its compliance with the political file rules.  See our article here for more information about these consent decrees.
  • With Democrats in control of the White House, Congress, and the FCC, we have noted increased interest in the Fairness Doctrine.  In light of the many recent articles on the topic, we wrote about the history of the Doctrine and what its reinstatement, however unlikely, would mean for broadcasters.  (Blog)

 

This week, the FCC designated for hearing the license renewal applications for a number of Alabama radio stations because of their owner’s conviction on felony ethics violations, stemming from misconduct while he served in the Alabama legislature.  The hearing is to determine the effect of those felony convictions on the character of the licensee to hold a broadcast license.  The Communications Act requires that a broadcast licensee (and its owners) must have the requisite character to operate the station.  Character is reviewed whenever a party seeks to acquire a broadcast license, including when they file for the renewal of that license.  In egregious circumstances, the FCC can even move to revoke the licenses held by a licensee outside of the license renewal process.  Even the sale of a license by a party without the required character qualifications may be prohibited by the FCC, as the Commission does not want to see a wrongdoer profit from the disposition of what is seen as a government asset – the FCC license.

Character has been defined by the FCC through numerous policy statements issued periodically over the last 50 years, and has been further refined by precedents established in individual cases.  This week’s case gives us the opportunity to look at what conduct the FCC considers in assessing the character of any broadcast application, and the factors that are reviewed in determining the impact of bad conduct on the ability of the applicant to hold an FCC license. Continue Reading FCC to Hold Hearing to Determine What Felony Conviction of Station Owner Means for License Renewal – What Does the FCC Character Policy Require of Broadcast Applicants?  

It seems like whenever Democrats are elected to serve as President and take control of Congress, there is talk about the revival of the Fairness Doctrine as some panacea for restoring balance and civility to political debate.  In recent weeks, we have seen many articles blaming conservative talk radio for the current divisions in the country and for the widespread belief in discredited claims about political and social topics.  This same debate arose almost exactly 12 years ago following the election of President Obama (see our articles here and here about that debate).   In coming days, we will write about a new round of legislative proposals looking to impose content moderation rules on digital media (including a Florida proposal to essentially block social media platforms from de-platforming one candidate, while allowing another candidate access, and a recent Congressional proposal removing Section 230 immunity from digital platforms for certain kinds of speech).  But, given the discussion of reviving the old Fairness Doctrine, we thought it worth taking a look back at just what that Doctrine required, the reasons for its demise, and some of the issues that would surround any attempt to bring it back.

First, it is important to understand what the Doctrine covered and what it did not.  It was a broadcast doctrine adopted in 1949, in an era that pre-dated the political talk that we now see dominating so many cable networks.  It also was different from the Equal Time Rule which is still in effect for candidate appearances on broadcast stations.  The Fairness Doctrine required that stations provide balanced coverage of all controversial issues of public importance.  The Fairness Doctrine never required “equal time” in the sense of strict equality for each side of an issue on a minute-for-minute basis.  In talk programs and news coverage, a station just had to make sure that both points of view were presented in such a way that the listener would get exposure to them.  How that was done was left to the station’s discretion, and the FCC intervened in only the most egregious cases. Continue Reading The Return of the Fairness Doctrine – What it Was and Why it Won’t Return

The FCC yesterday announced plans to hold an auction to award construction permits allowing the winners to build new radio stations. The auction notice includes 136 FM channels and, in a new wrinkle, 4 AM opportunities, for which bids will be able to be placed once the auction commences.  The list of channels to be auctioned is here – with many channels being in the state of Texas, with an assortment of others around the country. These channels are mostly those that had been included in an auction scheduled for last July which was cancelled because of COVID-19 (see our articles here and here).  In addition, a few newly available FM channels have been added to the list, as well as 4 AMs in the St. Louis area that are available because a licensee surrendered those licenses after a license renewal challenge.

The notice released yesterday asks for comments on the auction procedures to be used in awarding these channels, proposing procedures that are generally familiar to those who have participated in FM auctions in the past.  The auction is tentatively scheduled to begin on July 27. Working backward, that would mean that the initial “short-form” applications required for parties who want to participate in the auction would likely be due sometime in May.  Upfront payments equal to or greater than the minimum payments for the channels that an applicant ultimately wins in the auction will probably be due in June.  Continue Reading Want a New Radio Station? FCC Proposes Procedures for a July 2021 Auction, Lists Channels to be Sold, and Imposes a Freeze on Certain Applications