Expecting quiet weeks, we took the holidays off from providing our weekly summary of regulatory actions of interest to broadcasters. But, during that period, there actually were many regulatory developments. Here are some of those developments, with links to where you can go to find more information as to how these actions may affect your operations.
- The biggest news from the holiday period was that FCC finally released a Report and Order concluding its long-delayed 2018 Quadrennial Review of the broadcast ownership rules. The FCC had until December 27 to conclude the overdue 2018 Review in order to comply with an order of the U.S. Court of Appeals for the District of Columbia (see our article for more on the Court order). The FCC released its decision the day before the deadline, making no significant changes to its local radio ownership rule, its rules that generally prohibit ownership combinations of two of the Top 4 ranked TV stations in any market without a special public interest showing (and refusing to offer any specific circumstances in which Top 4 waivers would be routinely granted), or its rule that prohibits one party from having interests in two of the Top 4 TV networks. The FCC generally found that, despite increased competition from digital media, broadcasting remained a unique market where any further consolidation of ownership should be prohibited. The only change the FCC did make was to extend a prohibition on one network-affiliated Top 4 station acquiring the top-four network programming of another station in the market and moving that programming to a full-power station commonly owned by the acquiring party. The FCC’s order extends that prohibition to situations where the acquiring party would move the acquired network programming to a commonly controlled LPTV or Class A TV station, or to a multicast stream of one of its stations. For more on the FCC’s decision, see our Broadcast Law Blog article here.
- The FCC’s December 29 report listing the items on circulation (those orders or rulemaking proposals that have been drafted and are currently circulating among the Commissioners for review and a vote) included an Order and Further Notice of Proposed Rulemaking in the proceeding proposing to reinstate the FCC’s Form 395-B. That form was once filed yearly by each broadcaster and detailed the gender, race, ethnicity, and job function of all station employees. The filing requirement was suspended over 20 years ago when a court suggested that its use was discriminatory because the FCC was penalizing stations that did not meet specific racial or gender quotas in their workforce (see our article here for more on the proposal to bring back the Form 395-B). In December, Commissioner Starks and members of Congress called (see here, here, and here) for the Form 395-B’s reinstatement – so apparently there is now an order seeking to do just that (though the draft is not available for public review). We will be watching for more information as it becomes available.
- The Copyright Royalty Board published in the Federal Register a notice asking for Petitions to Participate in the next proceeding to determine the royalties to be paid to SoundExchange for the performance of sound recordings in the period 2026-2030. These royalties are paid by webcasters who provide a non-interactive music service, which includes broadcasters who stream their signals on the internet or through mobile apps. Parties interested in participating in the proceeding to determine the royalties for 2026-2030 must file a petition with the CRB by February 6, 2024, with a $150 filing fee. Watch our Broadcast Law Blog on Monday, January 8, for an article with more information about this proceeding.
- The FCC also acted in a number of other rulemaking proceedings, or took actions to make routine updates to rules already in place, including the following:
- FCC released a Notice of Proposed Rulemaking, in which it proposes to require multichannel video programming distributors (MVPDs) (cable and satellite television providers) to notify the FCC when a blackout of a television station results from a breakdown in retransmission consent negotiations between the station and the MVPD. The FCC proposes to require MVPDs to notify the FCC within 48 hours of the commencement of any blackout lasting more than 24 hours, and to then notify the FCC of the resolution of any blackout within 48 hours of resumption of carriage of the affected stations.
- The FCC released a draft Notice of Proposed Rulemaking (NPRM) in which it proposes to require TV and radio stations to file reports with the FCC regarding station outages and their operating status during disasters. Cable and telephone providers must report on network outages in the FCC’s Network Outage Reporting System (NORS) database and on their operational status during disasters in the FCC’s Disaster Information Reporting System (DIRS) database (reporting in the DIRS database is currently optional for broadcasters). In the NPRM, the FCC proposes to mandate NORS and DIRS reporting requirements for broadcasters in an unspecified “simplified” manner – the nature and scope of which the FCC will formulate based on comments submitted in the proceeding. The FCC contends that expanding the reporting requirement to broadcasters is essential given their role in the national Emergency Alert Service and the continued reliance on the broadcast service by underserved and non-English-speaking communities for emergency and weather-related information. The FCC is slated to vote on the draft NPRM at its January 25th regular monthly open meeting.
- The FCC announced that comments responding to the FCC’s Notice of Proposed Rulemaking (NPRM) – which proposes to eliminate video service “junk fee” practices by cable and direct broadcast satellite (DBS) service providers – will be due February 5, 2024, and reply comments will be due March 5, 2024. As we discussed here and here, the NPRM proposes customer service protections that include prohibiting cable operators and DBS providers from imposing a fee for the early termination by a subscriber of their service contract.
- The FCC’s Enforcement Bureau released an Order adjusting for inflation the maximum penalties that can be assessed for FCC rule violations – which will become effective upon publication in the Federal Register. After the effective date, the fine for most violations will not exceed $61,238 for each violation or each day of a continuing violation, with a maximum total fine for any continuing violation not to exceed $612,395. Fines involving indecency will now be up to $495,500 for each violation or each day of a continuing violation, with a maximum of $4,573,840 for any single act. Fines for violations of the rules prohibiting pirate radio operations will now be as much as $119,555 per day not to exceed a total of $2,391,097. We’ll let you know when the new fines take effect.
- The FCC’s Media Bureau announced that all rules and filing requirements for FM6 LPTV stations adopted by the FCC in July 2023 were effective as of December 28, 2023, and that all FM6 LPTV stations must notify the Bureau by January 29, 2024 of their intent to continue providing FM radio service and to confirm their operational parameters. As we previously discussed here and here, in July 2023, the FCC permitted a limited group of fourteen LPTV Stations operating on TV channel 6 (which is adjacent to the FM band) to continue providing analog FM service on 87.7 MHz – even though these stations have converted to digital operations for their video programming.
- The FCC’s Media Bureau granted a petition for declaratory ruling filed by a New York FM station’s licensee to exceed the 25% limit on foreign investment established by Section 310(b)(4) of the Communications Act. As we wrote here, the petition asked for approval of a transfer of 100% control of the station’s licensee to a Delaware corporation whose sole shareholder is a Canadian corporation, which is in turn owned by two Canadian citizens and their respective family trusts. The Bureau concluded that it was in the public interest to grant the declaratory ruling – noting that no oppositions were filed against the petition and that all Executive Branch agencies involved in broadcast station foreign ownership reviews had no objections to the proposed transaction. We wrote more about the FCC’s process of approving foreign ownership of U.S. broadcast stations on our blog here and here.
- The FCC’s Media Bureau took several actions dealing with stations that had a history of long periods where they were silent, including:
- The Bureau denied a petition for reconsideration of its earlier decision finding that a Florida FM station’s license expired as a matter of law under Section 312(g) of the Communications Act because it had either been silent or was operating from an unauthorized site for over one year. Section 312(g) states that the license of a broadcast station that has not operated as authorized for a full year is automatically cancelled, unless the FCC makes an affirmative determination that there are public interest factors warranting the preservation of the license. In this case, the Bureau previously concluded that the station failed to provide documentation refuting the Bureau’s conclusion from its investigation that the station was not operating from an authorized site for over one year. The station also failed to provide any evidence that its unauthorized operations were due to factors beyond its control – which could have enabled the Bureau to exercise its discretion in reinstating its license.
- The Bureau granted the renewal application of an Oklahoma AM Station for a one-year license term because the station had been silent for more than four months during the station’s previous one-year license term (a short license term that was imposed, as we discussed here, because the station had been repeatedly silent in the prior license term). As the station continues to operate at reduced power, the Bureau warned the licensee that, if it did not return to full power during this new one-year renewal period, the FCC could take further actions including potentially holding a hearing as to whether the license should again be renewed.
- The Bureau also granted a California FM station a one-year license renewal because the station: (1) was silent for over half of its preceding license term; (2) failed to timely upload issues/programs lists to its public inspection file for several quarters during the preceding license term; and (3) failed to provide sufficient information in several of its issues/program lists demonstrating that the station provided public service programming to its community of license. The Bureau also conditioned the renewal grant on the station coming into compliance with its outstanding public inspection file obligations by March 1, 2024. The Bureau also noted that, for any quarter where the station was silent and thus broadcast no issue-responsive programming, it should have noted that fact in its online public inspection file to explain the absence of a quarterly issues programs list.
- The FCC’s Media Bureau also had a flurry of cases dealing with fines on stations for improper operations. These include the following:
- The Bureau proposed a $3,500 fine on a Texas LPTV station for operating for almost seven months after it completed construction of new facilities without filing a license application notifying the FCC of the completion of construction authorized by its construction permit.
- The Bureau proposed a $9,500 fine against another Texas LPTV station that failed to file its license application after it completed construction of new facilities and did not do so until four months after its construction permit had expired, and then it operated at reduced power for almost eight months without authorization.
- The Bureau imposed a $12,500 fine on a Louisiana FM translator station for: (1) failing to obtain FCC consent to change antennas; (2) constructing and operating with an unauthorized antenna for approximately two months; and (3) inaccurately certifying that the station was constructed as authorized.
- In another case involving unauthorized operations and false construction certifications, the FCC’s Media Bureau cancelled a $20,000 fine proposed by the Bureau against the licensee of an Olympia, Washington FM translator station. As we discussed here, the fine had been imposed because the station was not rebroadcasting its authorized primary station and because the licensee falsely certified in the license application that the translator was constructed and operating as authorized. The Bureau cancelled the fine because the licensee could not pay it due to financial hardship as the fine was more than 20 times the station’s annual income. Instead, the Bureau admonished the licensee and warned that future violations would result in financial penalties regardless of the licensee’s financial status.
- The FCC was also busy with orders dealing with fines and penalties for other violations of its rules, including:
- The FCC’s Media Bureau entered into a Consent Decree with a group of Illinois radio stations requiring an $8,000 penalty to resolve issues arising from the Bureau’s investigation involving unauthorized transfers of control of the stations’ licensee. The Bureau found that the stations’ licensee failed to seek FCC consent prior to the transfer of voting stock of the licensee’s sole shareholder to a trust – of which the sole shareholder was also the trustee; and also failed to get FCC consent after the shareholder’s subsequent resignation as trustee. This is one of several cases that show that changes in the trustee, the death of a controlling owner, or even changes in estate planning by station owners can trigger FCC requirements for approval of changes in control of an FCC licensee, and the penalties that can result when such approvals are not obtained (see, for instance, the cases we noted here, here, here, and here).
- The FCC’s Enforcement Bureau issued four Notices of Illegal Pirate Radio Broadcasting to landowners Lake Forest, California, Sweet Home, Oregon, and Brooklyn, New York for apparently allowing illegal broadcasting from their properties. The Bureau warned each landowner that the FCC may issue fines of up to $2,316,034 under the PIRATE Radio Act if the FCC determines that the landowner continues to permit any individual or entity to engage in pirate radio broadcasting from their property. The notices are available here, here, here, and here.
- The FCC’s Media Bureau proposed a $9,000 fine against a California TV station for failing to timely upload its quarterly issues/programs lists to its online public inspection file. The Bureau alleged that the station had failed to timely upload copies of these lists for a total of sixteen quarters, i.e., five lists more than one year late, six lists between one month and one year late, and five lists between one day and one month late.
- The FCC’s Media Bureau also dealt with FM allocations issues, including:
- It issued a Report and Order allocating FM Channel 225A at Lac du Flambeau, Wisconsin, as a Tribal Allotment and a first local Tribal-owned service to the community. As we previously discussed here, the Tribal Allotment was proposed by a local tribal-affiliated entity pursuant to the FCC’s allotment priority established under Section 307(b) of the Communications Act favoring the provision of radio service to tribal lands by stations owned by tribal governments. The Bureau will release a public notice in the future announcing when eligible applicants (tribal governments and affiliated entities) may file a construction permit application for the new Tribal Allotment.
- The Bureau dismissed a Wyoming FM station’s application to change its community of license to Horse Creek, Wyoming. The Bureau determined that Horse Creek was not a community deserving of an FM allotment as it is not incorporated or listed in the U.S. Census; the applicant did not provide any reliable evidence from residents of the locality demonstrating that they consider themselves to be a cohesive community; and it did not otherwise provide any other evidence that Horse Creek was a real community. Finding that some of the information from websites submitted by the applicant was misleading or inaccurate, in a warning to future applicants seeking community of license changes, the Bureau said that, if the applicant relies on online sources for information about their proposed community, they must ensure that the online information is accurate, and they must provide additional information to corroborate the online sources. In addition, the Bureau noted that applicants must use 2020 U.S. Census data to support their applications.
- The FCC’s Public Safety and Homeland Security Bureau granted a request filed by a group of Illinois radio stations for an extension of time to comply with the FCC’s requirement that broadcasters prioritize the Internet-based Common Alerting Protocol (CAP) version of an Emergency Alert Service (EAS) message when a station receives both a legacy version and a CAP-formatted version of the same alert. As we discussed here and here, all EAS Participants should have complied with the CAP prioritization requirement by December 12, 2023 – except for EAS Participants using Sage manufactured EAS equipment, which have until March 11, 2024 to comply; or those who otherwise obtained a waiver (see, for example, waivers granted here, here, and here). The Illinois stations claimed that they could not comply with the December 12 deadline because their vendor had not fulfilled their new EAS equipment order – despite timely ordering the equipment. The Bureau cited the stations’ diligence in seeking EAS equipment upgrades and granted the stations until March 11, 2024, to comply with the new EAS rules.
- The FCC’s Media Bureau designated as mutually exclusive (both could not be granted consistent with FCC’s technical rules preventing interference) two minor modification applications filed on the same day by LPFM stations licensed to Tulsa and Broken Arrow, Oklahoma. The applications both proposed to move to recently vacated Channel 211. FCC policy is that minor changes are granted on a first-come, first-serve basis, but no preference is given if two applications are filed on the same day. Thus, the Bureau rejected the Tulsa station’s contention that its earlier filed application should receive first-in-time priority – finding that, as both applications were filed on the same day, no priority is given to an applicant that filed earlier in the day. The Bureau also rejected the Broken Bow applicant’s assertion that the Tulsa applicant had not shown reasonable assurance of its transmitter site availability, which the Bureau said was not necessary as that applicant is proposing to continue to use its existing licensed site. The Bureau directed the applicants to find an engineering solution to their mutual exclusivity.
- The FCC’s Space Bureau announced that it will host an open house on January 10 to discuss earth station licensing for new applicants and entrants. The event will include an overview of the FCC’s earth station licensing process and timelines, and a review of frequently asked questions as well as answers to pre-submitted questions. Interested parties may register and submit questions in advance by sending them to satinfo@fcc.gov. Additional registration information for the event is available here.
- The FTC announced that it will hold a virtual summit on January 25 to discuss key developments in artificial intelligence (AI). The summit will include a discussion among stakeholders regarding the state of technology, emerging market trends, and real-world impacts of AI. See here for the summit’s agenda and participation information. The FTC also announced that it began accepting submissions for its Voice Cloning Challenge. The contest, as we discussed here, is intended to promote the development of ideas to protect consumers from the misuse of AI-enabled voice cloning. Finally, the FTC released a report detailing key takeaways from an October 2023 public virtual roundtable which, as we discussed here, examined how generative AI is being used and is affecting professionals in music, filmmaking, software development, and other creative fields. The report states that, although many of the concerns raised during the event are beyond the FTC’s jurisdiction, the agency can use its existing enforcement authority to help protect fair competition and prevent unfair or deceptive acts or practices in the generative AI market.
On our Broadcast Law Blog, we summarized the upcoming regulatory deadlines for broadcasters in January, and also looked ahead to deadlines for the entire 2024 calendar year with special attention to lowest unit charge political windows. We also took a look at what matters affecting broadcasters the FCC, as well as the courts and other federal agencies, are likely to act upon in the new year.
