Discussion of FCC, copyright, advertising and other legal issues of importance to radio and television broadcasters and other media companies
Here are some of the regulatory developments of significance to broadcasters from the past week, with links to where you can go to find more information as to how these actions may affect your operations.
Last week, as we noted in our weekly summary of regulatory actions of importance to broadcasters, the US Court of Appeals for the D.C. Circuit issued an Order directing the FCC to complete its 2018 Quadrennial Regulatory Review of its broadcast ownership rules by December 27, 2023, or show cause why the National Association of Broadcasters’s (NAB) Petition for Writ of Mandamus should not be granted. The NAB’s petition, filed in April 2023, requests that the D.C. Circuit compel the FCC to conclude the agency’s still-pending 2018 review. Neither last week’s order, nor any mandamus order that could be issued by the Court should the FCC fail to finish its review by December 27, will compel any particular decision. Instead, such an order would only require that the FCC finish the review started in 2018 (see our article here on the start of that review process).
The Quadrennial Review process is mandated by Congress. Every four years, the FCC is required to review its local ownership rules and determine which ones remain in the public interest. The NAB’s argument to the Court has been that the FCC failed to meet its statutory obligation by not completing the 2018 review last year. In December, we wrote about the FCC’s failure to complete the Quadrennial Review, and how the inaction has forestalled any review of the issues that were teed up in that review. What were those issues?Continue Reading Court Orders FCC to Complete Quadrennial Review by December 27 – What are the Issues for Review by the Commission?
Here are some of the regulatory developments of significance to broadcasters from the past two weeks, with links to where you can go to find more information as to how these actions may affect your operations.
With the holidays upon us and the end of the year fast approaching, the FCC took care of one piece of business required by statute as it released a Public Notice announcing the start of the 2022 Quadrennial Review of the FCC’s ownership rules. The FCC is required, once every four years, to review their local ownership rules to see if they remain in the public interest. The Notice starts the review required for this year even though the 2018 review remains pending with seemingly little likelihood of any action as long as the FCC remains politically divided (currently two Republicans and two Democrats with one open seat).
So, unless the 2018 review is decided and finds that some existing rule is no longer in the public interest and abolishes it, the just announced new review (the “Quad,” as those in DC communications regulatory circles call it) will look at the same issues as the last one did. Ownership rules governing the limits on radio ownership in each market, largely unchanged since they were first adopted in 1996, are probably the issue that could potentially affect the largest number of broadcasters (see our articles here and here on proposals for change in the radio ownership rules). Also under review will be issues including the Dual Network Rule, which prohibits combinations of two of the Top 4 TV networks, and a possible clarification of the Top 4 rule on local TV ownership. The Top 4 rule generally prohibits combinations of two of the Top 4 rated TV stations in any television market. In 2017, the FCC voted to allow parties to seek a waiver of that prohibition. Such waiver requests are evaluated on a case-by-case basis. The proposal raised in the 2018 proceeding was to adopt some bright line tests as to when waivers would be permitted (e.g., allowing combinations of the two lowest rated stations if their audience share did not equal that of the first or second ranked station in the market).
Continue Reading FCC Starts 2022 Quadrennial Review Before the 2018 Review is Complete – Time for Another Look at Radio and TV Local Ownership Rules
Kentucky Senator Rand Paul has introduced a bill to repeal all broadcast ownership limitations including the radio and television local ownership rules (see the draft bill, the Local News and Broadcast Media Preservation Act, here, and the Senator’s press release, here). As we have noted before (see, for instance, our article here), the FCC is currently considering changes to the radio ownership rules but the proposals, first advanced in late 2018, remain stalled in the current FCC seemingly because of its current political deadlock with two Republicans and two Democrats. The current pending proposal at the FCC (see our summary here) is also considering allowing combinations of two of the top 4 TV stations in a market based on certain defined parameters (such combinations being allowed now only when justified based on an ill-defined case by case public interest analysis). The Paul legislation would essentially pre-empt this review by abolishing the FCC’s ownership rules. Of course, being introduced so late in the Congressional session with no other declared political support, the bill has little chance of becoming law in this session of Congress.
The Paul legislation is designed to allow broadcasters to compete with big tech companies that have seriously eroded the advertising and audience shares of broadcast stations over the last decade (see our article here). According to Paul’s press release, his bill “would give local broadcasters and newspapers much-needed relief from outdated government restrictions that are currently threatening their ability to succeed in an evolving media environment.” As the broadcast media is the only media subject to such ownership restrictions, many have argued that, for a truly level playing field in today’s media landscape, a significant relaxation of the rules is warranted.
Continue Reading Senator Rand Paul Introduces Bill to Repeal Broadcast Ownership Limits and Allow Joint Negotiations with Big Tech Companies
The Newspaper Broadcast Cross-Ownership Rule is Finally Dead – And More Ownership Rule Changes – Including for Radio – Are to be Considered
Last Friday, the FCC took two actions on broadcast ownership resulting from the recent Supreme Court decision (about which we wrote here) upholding changes to the ownership rules that the FCC adopted in 2017. Those 2017 changes (summarized here) and any additional changes to the rules, including changes to the radio ownership rules that have not been substantially reviewed since 1996, have been held up by the 2019 decision of the Court of Appeals for the Third Circuit. That Court reversed the FCC’s 2017 decision which had relaxed many ownership rules, notably including the abolition of the newspaper-broadcast cross-ownership rule and some of the local television ownership restrictions.
The Third Circuit found that the FCC had done an inadequate job of assessing the impact of the 2017 changes (and past ownership changes) on the diversity of broadcast ownership. Until such a historical review could be conducted, all FCC ownership proceedings were put on hold. This hold was finally lifted by the Supreme Court’s decision reversing the Third Circuit and reinstating the 2017 FCC decision. On Friday, the FCC issued an Order that formally reinstated the rules that had been overturned by the Third Circuit and also took some tentative steps toward restarting its regular review of broadcast ownership rules, including the local radio ownership rules that were largely unaffected by the 2017 FCC rule changes. The FCC issued a Public Notice that asked for an update on comments they filed on the 2018 Quadrennial Review of the ownership rules (see our article here) in 2019.
Continue Reading FCC Implements Supreme Court Order Reinstating 2017 Ownership Rule Changes, and Asks for Updating of Record of 2018 Quadrennial Review
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.
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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.
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The United States Supreme Court yesterday released its decision upholding the FCC’s 2017 changes to its ownership rules in the FCC v Prometheus Radio Project case (see our summary here). Those rules had been put on hold in 2019 by a decision by the Third Circuit Court of Appeals which held that the FCC had to develop a more detailed record on the impact of rule changes on minority ownership before making any such changes (see our summary of that decision here). The Supreme Court did not issue a sweeping decision evaluating the competitive landscape for the broadcast industry, nor was it expected to. Instead, the Court decision was a narrow legal one, looking at whether the decision of the FCC was entitled to traditional judicial deference to expert administrative agencies.
The Supreme Court was reviewing the legal question of whether the FCC’s 2017 review of diversity was adequately justified. In 2017, the FCC determined that that no substantial impact on diversity was proven by any party who filed comments in the media ownership proceeding and, to the extent that there was an impact, the benefits of making broadcast companies stronger competitors in today’s media marketplace outweighed that impact. The Third Circuit would have had the FCC conduct a sweeping historical analysis of the impact of past instances where the ownership rules were relaxed to see the impact on minority ownership so that the FCC could judge the likely impact of new changes to the rules. The Supreme Court found that the FCC had no obligation to conduct its own studies into that issue and, based on the evidence before the FCC, its decision to relax the rules was not an arbitrary one. Thus, it was entitled to the deference given to decisions of expert regulatory agencies (see our article here on the deference given to administrative agency decisions). In essence, this was a narrow decision based on principles of administrative law to which all nine Justices, liberal and conservative, could agree.
Continue Reading Supreme Court Reinstates 2017 FCC Changes to Broadcast Ownership Rules Including the End to Newspaper-Broadcast Cross-Ownership Ban – But Radio Changes Yet to Come
After a long winter, spring has finally arrived and has brought with it more daylight and warmer temperatures—two occurrences that do not necessarily pair well with keeping up with broadcast regulatory dates and deadlines. Here are some of the important dates coming in April. Be sure to consult with your FCC counsel on all other important dates applicable to your own operations.
On or before April 1, radio stations in Texas (including LPFM stations) and television stations in Indiana, Kentucky, and Tennessee must file their license renewal applications through the FCC’s Licensing and Management System (LMS). Those stations must also file with the FCC a Broadcast EEO Program Report (Form 2100, Schedule 396).
Both radio and TV stations in the states listed above with April 1 renewal filing deadlines, as well as radio and TV stations in Delaware and Pennsylvania, if they are part of a station employment unit with 5 or more full-time employees (an employment unit is a station or a group of commonly controlled stations in the same market that share at least one employee), by April 1 must upload to their public file and post a link on their station website to their Annual EEO Public Inspection Report covering their hiring and employment outreach activities for the twelve months from April 1, 2020 to March 31, 2021.
Continue Reading April Regulatory Dates for Broadcasters: License Renewal, Issues/Programs Lists, EEO, Webcasting Royalties and More
