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.  Also, we include a quick look at some important dates in the future.

  • The Enforcement Bureau advised broadcasters (and other participants) of their Emergency Alert System obligations, including the requirement to make EAS messages accessible. The advisory provides a good reminder of a broadcaster’s EAS obligations. (Advisory)
  • The FCC issued a status report on the incentive auction repack and announced that it has sufficient funds available for the reimbursement of costs incurred by LPTV and TV translator stations because of the repacking to increase their payments from 85% of verified estimates to 92.5%. According to the status report, all of the stations repacked as part of the incentive auction have vacated their pre-auction channels and, as of this week, over 95% of the stations are operating with their final technical facilities.  (Public Notice)
  • The FCC released its count of broadcast stations as of year-end 2020, finding more than 33,500 stations, including more than 15,000 full-power radio stations and nearly 1,200 full-power TV stations. (Broadcast Station Totals)
  • The FCC submitted its annual report to Congress on the implementation of the PIRATE Act and the enforcement actions it has taken over the last year. The report notes that COVID-19 and the lack of congressionally-appropriated funds in FY 2020 for the Act have limited implementation and enforcement activities.  (Report)
  • Four low power FM stations in Iowa and Missouri failed to file license renewal applications by their October 1, 2020 filing deadline and are in danger of seeing their licenses expire. This serves as a reminder to television stations in Arkansas, Louisiana, and Mississippi and radio stations in Kansas, Nebraska, and Oklahoma to file their renewal applications, due by February 1, 2021.  (Public Notice)
  • In the copyright world, the Copyright Office released a Notice of Inquiry to review changes to the copyright license granted to satellite TV providers under 2019’s Satellite Television Community Protection and Promotion Act to provide local-into-local retransmission of television stations. The review seeks comments by March 8 as to how the new law impacts affected parties including consumers and stations.  Read more about the inquiry, here.
  • A handful of large radio groups and webcasters will be audited by SoundExchange over their compliance with their copyright licenses for the public performance of sound recordings required when they transmit their programming on the Internet.  Read more about this and other music licensing audits, here.

To help you stay on top of the many scheduled regulatory dates for the rest of the year, we published our Broadcaster’s Regulatory Calendar for 2021, which sets out many of the broadcast regulatory dates and deadlines in 2021.  (Broadcast Law Blog)

Looking ahead, on Monday, a notice is scheduled to appear in the Federal Register announcing the comment period for the FCC’s FM booster rulemaking (we covered the “zonecasting” proposal in more detail, here).  The proceeding asks if boosters should be allowed to originate hyperlocal program that is different from the programming carried on the station they rebroadcast.  Comments will be due by February 10, 2021 and reply comments will be due 30 days later on March 12, 2021.  On Wednesday, the FCC will hold the first of its required monthly Open Meetings of 2021.  After releasing a tentative agenda with only bureau and staff presentations about the FCC’s accomplishments during his term, Chairman Pai, who will preside over his last Open Meeting, added three items for Commissioners to vote on – none of which directly impact broadcasters.  The meeting will be streamed live, here, at 10:30 pm Eastern on January 13.

The Copyright Royalty Board today published a Federal Register notice announcing that SoundExchange was auditing a number of broadcasters and other webcasters to assess their compliance with the statutory music licenses provided by Sections 112 and 114 of the Copyright Act for the public performance of sound recordings and ephemeral copies made in the digital transmission process by commercial webcasters. A separate notice to audit the company Music Choice, which also provides a digital music service usually delivered with cable or satellite television services, was also issued to audit their compliance both on webcasting and on their subscription music service which is subject to separate royalty rules set out in a different part of the same section of the Copyright Act and set through a different Copyright Royalty Board proceeding. A third audit notice has gone out to a company called Rockbot, a Business Establishment Service whose royalties are exclusively paid under Section 112 of the statute (see our article here about the CRB-set royalties for these services that provide music played in various food and retail establishments and other businesses).

SoundExchange may conduct an audit of any licensee operating under the statutory licenses for which it collects royalties.  Such audits cover the prior three calendar years in order to verify that the correct royalty payments have been made. The decision to audit a company is not necessarily any indication that SoundExchange considers something amiss with that company’s royalty payments – instead they audit a cross-section of services each year (see our past articles about audits covering the spectrum of digital music companies audited by SoundExchange here, here, here and here).  Audits are conducted by outside accounting firms who, after they review the books and records of the company being audited, issue a report to SoundExchange about their findings.  The company being audited has the right to review the report before it is issued and suggest corrections or identify errors.  The reports are then provided to SoundExchange and, if they show an underpayment, it can collect any unpaid royalties, with interest.  While, by statute, the notice of the royalty must be published in the Federal Register, the results of the audit and any subsequent resolution usually are not made public. Continue Reading Copyright Royalty Board Announces SoundExchange Audits of Royalty Payments for Webcasters (Including Broadcast Simulcasts) and Other Digital Music Services

A Notice of Inquiry from the Copyright Office was published today in the Federal Register, announcing the initiation of an inquiry into the effects of the 2019 changes in the statutory license under Section 119 of the Copyright Act for satellite television providers to retransmit local television stations.  Pursuant to that license, a satellite carrier can retransmit local television stations into their own markets without having to negotiate with each copyright holder in the programming carried by local stations.  Instead, the satellite carrier pays a license fee set by the statute and the proceeds of that license are redistributed through proceedings held by the Copyright Royalty Board to the copyright holders.  As part of that license, satellite carriers can import signals of distant network television stations into a market in certain circumstances – circumstances that were greatly limited by the Satellite Television Community Protection and Promotion Act (the “STCPPA”) in 2019.  As part of that statute, Congress instructed the Copyright Office to conduct this study to review the impact of the 2019 changes.

The 2019 changes eliminated the ability of satellite carriers to import distant network signals to households in a market where:

  • The households could not receive a local over-the-air signal via an antenna;
  • The household received a waiver from a local network affiliate to receive a distant signal;
  • “Grandfathered” households that received distant signals on or before October 31, 1999; and
  • Households eligible for a statutory exemption related to receiving “C-Band” satellite signals.

These exceptions were problematic to broadcasters as they introduced a distant network affiliate into a television market, encouraging viewers to watch that distant station at the expense of the local affiliate.  Congress was concerned that these situations encouraged viewers to watch distant news rather than the local news and information provided by in-market stations.  Many of these provisions were also hard to implement and enforce.  For instance, the question of whether a household could receive an over-the-air signal could often be a contentious question.  Waivers also were problematic, as a local station could feel pressure to give a waiver to a local resident to avoid bad will within the community.  Thus, in 2019, all of these exceptions were abolished. Continue Reading Copyright Office Begins Review of Changes in Satellite Television Statutory License for Carriage of Local Television Stations

Here we are, in a new and hopefully more “normal” year – wondering what will be ahead.  Each year, at about this time, we put together a look at the regulatory dates ahead for broadcasters – or at least the primary ones that we already know.  This year is no different – and we offer for your review our Broadcaster’s Regulatory Calendar for 2021.  While this calendar should not be viewed as an exhaustive list of every regulatory date that your station will face, it highlights many of the most important dates for broadcasters in the coming year – including dates for license renewals, EEO Public Inspection File Reports, Quarterly Issues Programs lists, children’s television obligations, annual fee obligations and much more.  This year, for LPTV and TV translator operators, there are also dates associated with this summer’s deadline for all such stations to be operating digitally (see our article here).

While this likely will not be a big political advertising year like 2020, there will be some state and local races – so we note the start of the Lowest Unit Charge window for this year’s November election – relevant in states like New Jersey and Virginia where there are races for governor and state legislature, and to the many locations across the country that will have mayor’s races and other state and local political contests.  Look for local information about the dates for any primary elections for these elections – as those primaries have their own LUC windows for the 45 days preceding the primary.  See our article here on how the other political broadcasting rules apply to state and local elections. Continue Reading A Broadcaster’s 2021 Regulatory Calendar – Looking at Some of the Important Dates for the Year Ahead

Here are some of the regulatory developments in the last two weeks 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 released an order revising its fees for broadcast applications and other filings. The fees were adjusted to reflect the Commission’s accounting of the amount of legal, engineering, and supervisory resources spent on reviewing the filing.  For the first time, the fees will include payments for FM translator minor changes.  The new fee schedule will go into effect after the FCC has updated its internal systems and notice is published in the Federal Register. (Report and Order)
  • The FCC announced that, beginning January 15, it will marginally increase its fines for rule violations to adjust for inflation. (Order)
  • For broadcasters who use drones (“unmanned aircraft systems” or “UAS”), the Federal Aviation Administration released two lengthy decisions amending its regulations governing their operations. The new rules mandate a “digital license plate” to identify most drones to enhance security in the industry and pave the way for expanded operations that are currently allowed only through special waivers or exemptions. At the same time, the FAA modified its rules for small UAS, i.e., those weighing less than 55 pounds, to permit qualified operators to fly them over people and moving vehicles and at night without waivers, provided certain conditions are met. An FAA press release with links to the decisions is available here.
  • The Federal Trade Commission announced consent decrees with six companies over their marketing of CBD products, finding the advertising of specific health benefits of CBD to be deceptive (FTC Press Release). For more information on these decrees and other cannabis advertising issues for broadcasters, see our blog article here.
  • The FCC’s Media Bureau granted a waiver allowing the common ownership of two TV stations in the Lubbock, Texas market even though there would not be eight independent operators in the market after the combination, as required under current FCC ownership rules. The Commission justified the waiver on its “failing station” standard, finding that the acquired station had “been struggling for an extended period of time both in terms of its audience share and in its financial performance.” See the FCC’s letter for the criteria a station must meet to be considered failing and the Video Division’s analysis of this particular transaction.
  • In two decisions, the FCC approved foreign ownership of broadcast companies in excess of 25%. Specific FCC approval is required when foreign ownership in a company holding broadcast licenses is proposed to exceed 25%, with the FCC and other government agencies reviewing the national security and public interest implications of the foreign ownership (decisions on Estrella Broadcasting, Inc. and Univision Holdings, Inc.)
  • In a reminder to pay attention to filing deadlines, eleven low power TV stations in Florida and Puerto Rico failed to submit renewal applications by their October 1, 2020 filing date and are now in danger of their licenses expiring. (Public Notice)  Television stations in Arkansas, Louisiana, and Mississippi and radio stations in Kansas, Nebraska, and Oklahoma are next due to file their license renewals, with a deadline of February 1, 2021.
  • The FCC released its biennial Communications Marketplace Report that analyzes, among other things, the state of the radio and TV marketplaces. The report is provided to Congress to advise it on economic and competitive trends in regulated industries to provide information for any legislation that it may consider.  (2020 Communications Marketplace Report)

For a look ahead, we posted on our blog a review of some of the regulatory dates and deadlines in January and early February of which broadcasters should be aware.  In the coming month, among other things, look for a new FCC administration, quarterly issues/programs lists, KidVid reports, comment deadlines for two proceedings, the Supreme Court’s oral argument on multiple ownership issues and, in a number of states, February 1 license renewal and EEO public file report deadlines.  (Blog)

Just before Christmas, the Federal Trade Commission issued consent decrees with six companies resolving proceedings alleging that their marketing of CBD products was deceptive.  The consent decrees included monetary penalties as high as $80,000 and compliance plans to ensure that the named companies would not engage in future marketing of unproven health benefits of CBD products.  The FTC issued a press release on the consent decrees (links to the decrees and related documents can be found on the same webpage as the press release).

Some of the health claims that the FTC found problematic were very specific, suggesting that CBD could aid in the treatment of specific diseases and medical conditions.  Other claims found to be improper included more general claims that CBD was effective for “pain relief” and that the products are safe for all users.  As noted in the FTC documents, only proven health claims for CBD can be included in marketing material – and so far, the proven health benefits have been limited to those provided by specific FDA-approved anti-seizure medications.  While these decrees were with companies selling CBD products, rather than media companies that ran their ads, as we have noted before, broadcasters and other media companies should be alert to advertising messages that exceed permissible guidelines.  While the FDA has promised further guidance on the sale and marketing of CBD products, action has likely been stalled by the agency’s concentration on pandemic-related issues.  Continue Reading More FTC Consent Decrees Emphasize Prohibitions on Advertising of Unproven Health Benefits of CBD Products

The holiday season is nearly behind us and many are looking forward to putting 2020 in the rearview mirror with a hopeful eye on 2021.  The new year will bring big changes to the Washington broadcast regulation scene, with the inauguration of a new President and installation of a new FCC chair who will make an imprint on the agency with his or her own priorities.  And routine regulatory dates and deadlines will continue to fill up a broadcaster’s calendar.  So let’s look at what to expect in the world of Washington regulation in the coming month.

On the routine regulatory front, on or before January 10, all full-power broadcast stations, commercial and noncommercial, must upload to their online public inspection files their Quarterly Issues Programs lists, listing the most important issues facing their communities in the last quarter of 2020 and the programs that they broadcast in October, November and December that addressed those issues.  As we have written before, these lists are the only documents required by the FCC to demonstrate how stations served the needs and interests of their broadcast service area, and they are particularly important as the FCC continues its license renewal process for radio and TV stations.  Make sure that you upload these lists to your public file by the January 10 deadline.  You can find a short video on complying with the Quarterly Issues/Programs List requirements here. Continue Reading January Regulatory Dates for Broadcasters – A New FCC Administration, Quarterly Issues Programs Lists, KidVid, Comment Deadlines and a Supreme Court Oral Argument on Ownership Issues

Last week, Chairman Pai gave a speech to the Media Institute in Washington, talking about his deregulatory accomplishments during his tenure as FCC Chairman.  Central to his speech was the suggestion that the broadcast ownership rules no longer made sense, as they regulate an incredibly small piece of the media landscape, while digital competitors, who are commanding a greater and greater share of the market for audience and advertising dollars, are essentially unregulated.  Not only are they unregulated, but the digital services that compete with broadcasting are owned and financed by companies who are the giants of the US economy.  In his speech, he noted that the company with the most broadcast TV ownership is dwarfed in market capitalization by the companies offering competing video services.

While the Chairman’s speech concentrated on television, mentioning radio only in passing, we note that many of these same issues are even more at play in the audio entertainment marketplace.  When the Chairman two months ago offered remarks on the hundredth anniversary of the first commercial radio station in the US, he recognized that radio has played a fundamental role in the communications world over the last century.  But that role faces more and more challenges, perhaps exaggerated by the pandemic when in many markets listeners are spending less time in cars where so much radio listening takes place.  There are many challenges to over-the-air radio as new sources of audio entertainment that sound and function similarly are more and more accessible to the public and more and more popular with listeners.  Over-the-air radio is already less a distinct industry than a part of the overall audio entertainment marketplace competing with streaming services, podcasts, satellite radio and other audio media.  These changes in listening habits are coupled with a change in the advertising marketplace, as the digital media giants now take over 50% of the local advertising market that was once the province of radio, television and newspapers. Continue Reading Outgoing FCC Chairman Pai Calls for Modernization of Media Ownership Rules – Audio Competition Issues for the New FCC To Consider  

Here are some of the regulatory developments in the last week of significance to broadcasters -and a few dates to watch in the week ahead – with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC issued an order that locks in its authority to assess higher penalties against pirate radio operators and allows those penalties to be levied more quickly as the FCC does not need to first issue notice to the suspected pirate of its violation before imposing a fine. Under this authority granted by the PIRATE Act, operators of stations that do not have an FCC license could face fines of $100,000 per day, up to a total of $2 million.  Landlords who are found to have “willfully and knowingly” allowed pirates to broadcast from their properties can also be subject to penalties.  Two New York landlords this week received notices of illegal pirate radio broadcasting.  Read the letters, here.  We wrote about the PIRATE Act, here.  (Order)
  • The FCC’s new rules for voluntary all-digital AM radio, except new procedures for notifying the Commission of a station’s intent to transition from analog to all-digital operations which still need Paperwork Reduction Act approval, will go into effect on January 4, 2021. We looked at the new rules, here.  (Public Notice)
  • Nathan Simington was sworn in virtually by Chairman Ajit Pai as the newest FCC Commissioner. His term runs through June 30, 2024.  Commissioner Simington joins Ajit Pai and Brendan Carr to form the Republican majority that will hold until Pai leaves the agency on January 20, 2021.  Not much is known about the new Commissioner’s views on broadcast matters, but it is thought that he will favor deregulation.  The broadcast industry will be watching closely to see who he names to his staff and how familiar those people are with broadcast issues.  Simington can be found on Twitter at @SimingtonFCC.  (Commission Simington Bio)
  • Commissioner Pai, in a virtual speech to the Media Institute, reviewed the changes made during his watch in FCC broadcast regulations. He also called for further relaxation of the broadcast ownership rules.  He said these rules no longer make sense, as they restrict the growth of broadcasters, making it harder to compete for audience and advertisers with broadcasters’ new adversaries – the essentially unregulated tech giants.  These digital competitors are some of the biggest companies in the US economy and dwarf the size of the biggest broadcast company. (Pai Speech).  Look for our thoughts on those issues, particularly for the radio industry, on our blog on Monday.
  • In the latest step in the Supreme Court’s review of the FCC’s 2017 media ownership rules, Prometheus Radio Project and its partners submitted their reply brief arguing for the Court to uphold the Third Circuit Court of Appeals’ rejection of the 2017 rule changes. The Court will hear oral argument on January 19.  (Prometheus Brief).
  • In connection with the Supreme Court’s review, which could reinstate the FCC’s 2017 abolition of the newspaper-broadcast cross-ownership rules (a decision overturned by the Third Circuit’s opinion), the FCC extended Fox’s authority to operate two TV stations in New York City where a commonly controlled company operates a daily newspaper. The continuing authority would stay in effect at least until the Supreme Court releases its decision and, if the Court does not resolve the issue, until the FCC completes its next Quadrennial Review of the ownership rules assessing whether there is a continuing need for the newspaper cross-ownership rule. (Order)
  • New procedural rules for filing carriage complaints against multichannel video programming distributors (MVPD) go into effect on January 19, 2021. The new rules require a carriage complaint to be filed within one year of the event that triggers the complaint, not within one year of a party notifying the MVPD of its intention to file a complaint.  (Federal Register)

Looking ahead to next week, we will learn what items will be on the agenda for the Commission’s January 13, 2021 meeting and should see drafts of those items.  The January meeting will be Chairman Pai’s final Open Meeting and Commissioner Simington’s first.  There are also comments due by December 24 in two proceedings. By that date, interested parties should submit their comments on the FCC’s plan to enhance and standardize on-air sponsorship identification of programming provided to US stations by foreign governments.  Also due on December 24 are comments in the proceeding that seeks to clarify which TV licensee is legally responsible when simulcast programming from one licensee is broadcast on the subchannel of a station owned by another licensee, including programming that airs on a host station’s subchannel as the ATSC 1.0 “lighthouse” signal of another station that has converted to NextGen TV (ATSC 3.0).  We covered this issue in more detail, here.

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, at the last of its monthly open meetings of 2020, voted to adopt new rules for Broadcast Internet (datacasting) services. The FCC clarified its rules for the annual ancillary and supplementary fees of 5% of a TV broadcaster’s revenue for leasing their spectrum to third parties.  The lessee’s revenue will not be included as part of the revenue subject to the fee unless the broadcaster and lessee are affiliated.  The Commission also decided to reduce the fees to 2.5% of the revenue from any noncommercial educational Broadcast Internet services that are provided by a noncommercial licensee.  Finally, the Commission retained its requirement that TV broadcasters who offer Broadcast Internet services offer at least one, free, over-the-air standard definition video signal.  (Report and Order)
  • At the same meeting, the FCC also voted to require electronic payment of fees for activities administered by the Media Bureau. Noting infrequency of payments by check and the cost savings of eliminating processing those payments, the Commission will phase out its lockbox used to accept manual payments and will instead require payment of Media Bureau fees by credit card or electronic wire transfer.  This rule change takes effect 30 days after it is published in the Federal Register, though the lockbox will remain open for 90 days past that effective date.  (Order)
  • The FCC terminated its proceeding that asked if a TV channel in each market should be set aside for use by unlicensed wireless devices and wireless microphones. Microsoft and others argued for a vacant channel in each market, saying that the certainty of available spectrum would spur innovation and development of wireless devices.  Television broadcasters argued against the proposal, saying that losing another channel in the UHF band would harm broadcasters’ ability to deliver new services and roll out NextGen TV (ATSC 3.0).  The Commission acknowledged that due to the reduction of channels after the incentive auction and because of other actions it has taken over the last few years making spectrum available for unlicensed wireless uses, setting aside a vacant channel in every market was not necessary.  See our post, here.  (Report and Order)
  • The Senate voted this week to confirm Nathan Simington as the newest FCC Commissioner. Simington takes Commissioner Michael O’Rielly’s spot.  When Chairman Ajit Pai leaves the agency on Inauguration Day, the FCC will stand at two Democrats and two Republicans, depriving President Biden of a majority at the agency until a new Democratic Commissioner is confirmed, potentially delaying action on controversial matters that the a Chairman may want to pursue.  See our post on Commissioner Simington, here.
  • Two actions this week by the FCC give examples of the circumstances under which construction permit extensions will be granted or denied.
    • The Audio Division dismissed a petition filed by a California AM permittee that sought to have its construction permit deadline extended. After extensions in the construction deadline due to COVID-19 issues, the permittee asked the FCC to further pause the deadline due to continuing COVID issues and the poor air quality from wildfires that the permittee claimed interfered with construction.  The FCC found that the station had not submitted any proof of any construction progress, and it could not tie that lack of progress to any of the causes that it cited.  The Commission noted that COVID did not justify additional extensions as the State of California considers broadcast services and construction essential critical infrastructure not subject to COVID restrictions.  As the permittee could not show that there were extraordinary circumstances that prevented all construction progress, the FCC found that the construction permit has expired.  (Letter)
    • The FCC dismissed a petition by a Florida noncommercial permittee that asked for its construction permit to be reinstated after several extensions had been granted and passed without the station being constructed. Since 2015, the permittee received construction extensions based on hurricanes and the elimination of the main studio rule.  The permittee asked for a further extension to review new construction plans.  The FCC denied that further extension as the permittee, despite requests from the FCC to tie the potential change in construction plans to hurricane-caused delays, never did so.  As the permittee could not show that it had been making real efforts to construct the station or that its efforts were delayed by extraordinary circumstances, the FCC refused to reinstate the permit.  (Order on Reconsideration)
  • The House of Representatives passed the Marijuana Opportunity Reinvestment and Expungement Act (MORE Act), which would decriminalize marijuana at the federal level. To become law, the bill would also have to pass the Senate and be signed by the President before the end of the current Congressional session in early January—which appears unlikely.  Thus, broadcast stations should continue to think twice about running any marijuana advertising on the air.  We wrote about the MORE Act, here.