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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.

  • The FCC has released a draft Notice of Proposed Rulemaking that, if adopted at the FCC’s July 14, 2022 regular monthly open meeting, would seek comment on whether to update its rules to identify a new publication for determining a television station’s designated market area (“DMA”) for satellite and cable carriage purposes. Current FCC rules direct commercial TV stations to use Nielsen’s annual Station Index Directory and Household Estimates to determine their DMA, and stations rely on these determinations when they seek carriage on cable and satellite systems.  The proposed rule changes would remove references to the now defunct annual Station Index and Household Estimates and instead direct broadcasters to Nielsen’s Local TV Report.
  • The FCC released a Third Further Notice of Proposed Rulemaking in which it seeks comment on the state of the Next Generation Television, or ATSC 3.0, transition and on the scheduled sunsets of two rules adopted in 2017. First, the FCC seeks comment on the progress of broadcasters’ voluntary, market-driven deployment of ATSC 3.0 service and the current state of the ATSC 3.0 marketplace. The first rule on which the FCC seeks comment is the scheduled 2023 sunset of the requirement that a Next Gen TV station’s ATSC 1.0 simulcast primary video programming stream be “substantially similar” to its 3.0 primary programming stream. The FCC also seeks comment on the scheduled 2023 sunset of the requirement that a Next Gen TV station comply with the current ATSC A/322 technical standard.  Additionally, the FCC seeks comments on whether the technology for ATSC 3.0 has been made available on fair terms by the patent holders for that required technology.  Comments and reply comments will be due 30 and 60 days, respectively, after publication of the Third Further Notice of Proposed Rulemaking in the Federal Register.
  • In an Order released on June 22, 2022, the FCC restores clarifying language that was inadvertently eliminated almost 40 years ago from section 73.3527 of the FCC’s rules. The clarification relates to applicants, permittees, or licensees whose existing or prospective facilities are Class D FM stations or other educational stations that are wholly “instructional” in their programming.  Class D stations are noncommercial stations that operate with 10 watts on commercial channels.  Instructional stations are those used by schools wholly for student instruction or teacher training. This clarification makes clear that Class D and Instructional stations are exempt from the obligation to complete Quarterly Issues Programs Lists.
  • The FCC has released a draft Order and Sixth Notice of Proposed Rulemaking, which, if adopted at the FCC’s July 14, 2022 open meeting, would update the FCC’s rules to reflect the recent termination of analog operations by LPTV and television translator stations. The Order would (i) delete or revise rules that no longer have any practical effect given the completion of the LPTV/translator digital transition, or that are otherwise obsolete or irrelevant, and (ii) make certain ministerial changes, for example, to delete analog rules that were found in Part 74, and to add definitions and other information previously adopted in prior rulemaking proceedings. The Sixth Notice of Proposed Rulemaking would seek comment on updates to rules which reflect the digital transition, current technology, and/or Commission practices.
  • In a Memorandum Opinion and Order, the FCC’s Media Bureau entered into a Consent Decree, which included a $1500 monetary penalty, with a licensee who admitted that it had transferred control of its station to a time broker during the course of a time brokerage agreement. The licensee admitted in FCC filings that there were times when it was unfamiliar with the programming and operations of the station.  FCC rules require that a licensee maintain ultimate control of all aspects of a station’s operations, even if another entity is providing programming and sales services.
  • The FCC announced the winners of the auction of construction permits for 18 new full-power television stations. The highest winning bid was just over $6.4 million for a new station at Grand Forks, ND. Winning bids of over $4 million were received for construction permits authorizing new stations at Freeport, IL; Alexandria, MN; and Flagstaff, AZ.  The full list of winning bids is available here, and the FCC public notice setting out the post-auction proceedings that are required before permits are issued is available here.

Courtesy Broadcast Law Blog

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.

  • Comment dates have been announced in the Federal Register for the FCC’s Notice of Proposed Rulemaking proposing to authorize LPTV stations operating on TV channel 6 to continue to provide an analog audio stream that can be received on FM radios at 87.7. Comments are due July 18, 2022; reply comments are due August 1, 2022.  The proposal would limit that authorization in many ways, including suggesting that the authority would be restricted to those LPTV Channel 6 stations already providing such an audio service.  The Notice also asks for comments as to whether Channel 6, in geographic areas where it is not currently used for TV services, should be repurposed for FM use (a proposal that has previously been advanced by the FCC, see our Broadcast Law Blog article here on previous FCC requests for comment on this issue).
  • The Radio Music License Committee has asked a single court to decide what a reasonable license fee would be for royalties owed by commercial broadcasters to both ASCAP and BMI. Both the ASCAP and BMI licenses with the radio industry expired at the end of 2021.  As both ASCAP and BMI routinely argue in license proceedings that they have the largest share of the music played by radio stations, RMLC suggests that a combined case, arguably permitted for the first time by the Music Modernization Act, would allow for this issue to be decided in a uniform way by a single judge.  See the RMLC press release for more information.
  • The FCC’s Video Division proposed to fine a television translator permittee $6500 for filing an application for a license to cover its displacement construction permit over three years after completing construction and nearly six months after its permit expired. As no license had been filed before the permit expired, this fine also covered the unauthorized operation of the station during the six months after the permit expired. The mere fact that the FCC’s database did not reflect the cancellation of the permit after its expiration did not excuse the late filing.  When completing construction of new facilities authorized by a construction permit, a broadcaster must file a license application demonstrating that construction was completed as authorized by the permit.
  • Issues with a license application resulted in the FCC’s Audio Division rescinding the license of an FM translator. The FCC found that the licensee had falsely stated in its license application that it had completed construction at its authorized location.  The licensee had instead constructed its facilities in a recreational vehicle (“RV”) park approximately 30 yards away from its authorized site, receiving power through a permanent electric outlet shared with an RV.  The FCC emphasized that “[c]onstruction permits expire automatically and are forfeited if the facilities authorized therein are not completed by the established deadline; use of an alternate site or construction of temporary facilities does not prevent such forfeiture.” As an alternate basis for rescission, the FCC also found that the licensee had failed to comply with a condition in its license requiring continuous operation for the first year and establishing that station silence within that period evidenced unlicensable, temporary construction (the Media Bureau has placed this condition on all new radio broadcast licenses since 2015 to address perceived abusive practices in the industry).  As evidence of the temporary construction, the FCC cited, among other things, the fact that RVs are inherently mobile and also noted the absence of any written lease with the RV owner or any agreement with the landowner of the RV park.
  • The FCC’s Video Division also proposed to fine a full power television licensee $6,000 for failing to timely file its quarterly issues/programs lists and failing to report these violations in its license renewal application. Specifically, the licensee uploaded one list to its online public inspection file more than one year late, and seven lists between one month and one year late. The FCC also found, however, that the licensee’s violations did not constitute a “serious violation” warranting designation of the license renewal application for hearing, it would grant the license renewal application at the conclusion of the forfeiture proceeding if there were no other issues with the application.
  • The FCC’s Enforcement Bureau issued Notices of Illegal Pirate Radio Broadcasting to two property owners for allegedly hosting unlicensed FM broadcast stations in Queens, New York and Newark, New Jersey, respectively. The Notices each included the following language: “[Y]ou are hereby notified and warned that the FCC may issue a fine of up to $2,000,000 if, following the response period set forth below, we determine that you have continued to permit any individual or entity to engage in pirate radio broadcasting from the property that you own or manage.”

Courtesy Broadcast Law Blog

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 this week announced that in-person meetings at its new headquarters building will now be allowed – though only when scheduled in advance and subject to COVID protocols. (Public Notice of Reopening and Public Notice on COVID Protocols).  The FCC had been closed to outside visitors since March 12, 2020.  In the interim, it moved to a new building.  The FCC plans its first in-person meeting open to the public in July.
  • The FCC announced that requests for changes in the call letters of broadcast stations, previously requested in a stand-alone database, will be requested through the LMS database as of June 22, 2022. The old call letter reservation system will be decommissioned.  Procedures for using LMS to request call letter changes are set out in the FCC’s Public Notice released this week (Public Notice).
  • The FCC adopted the Notice of Proposed Rulemaking asking for public comment on a proposal to authorize LPTV stations operating on TV channel 6 to continue to provide an analog audio stream that can be received on FM radios at 87.7. Its proposal would limit that authorization in many ways, including suggesting that the authority would be restricted to those LPTV Channel 6 stations already providing such an audio service.  The Notice also asks for comments as to whether Channel 6, in geographic areas where it is not currently used for TV services, should be repurposed for FM use (a proposal that has previously been advanced by the FCC, see our Broadcast Law Blog article hereon previous FCC requests for comment on this issue).  Comment dates will be announced by a Federal Register publication (Notice of Proposed Rulemaking).
  • The FCC issued a reminder that all invoices for amounts that can be reimbursed from the TV Broadcaster Relocation Fund for costs incurred because of the incentive auction must be filed by September 6. These remaining requests are due from LPTV stations, MVPDs, and FM stations affected by the repacking of the television band following the incentive auction (FCC Reminder).
  • The FCC’s new rules authorizing computer modeling for FM directional antennas was published in the Federal Register. Those rules go into effect on July 11, 2020.
  • EAS rules adopted last year, providing for the regular filing of updated state EAS plans and their approval by the FCC, became effective earlier this week after approval of their paperwork collection requirements. State EAS committees should review and update their plans as required by these new rules (Public Notice).
  • In a decision released this week in a dispute between two radio companies over the appropriate compensation due to a broadcaster who was forced to change channels on its FM station to accommodate the upgrade in the facilities of another broadcaster’s FM station, the FCC clarified what expenses were appropriately the subject of a reimbursement request. The FCC allows one FM broadcaster who wants to upgrade its facilities to obtain an FCC order changing the channel of another broadcaster (at its same site and power) as long the upgrading broadcaster pays the reasonable costs of the broadcaster being forced to change channels.  This decision helps to clarify what expenses are considered reasonable.  (Decision)
  • The FCC proposed to fine a public broadcasting company for incomplete public inspection files at four of its television stations. These deficiencies were discovered by the FCC during the license renewal process.  They had not been reported by the broadcaster even though the renewal application asks for a certification as to whether the broadcaster was timely in uploading materials to its public file.  Two of the broadcaster’s stations are proposed to receive fines of $6000 for the violations, and two would receive $9000 fines.  The deficiencies that were identified by the FCC included instances where a station had three Quarterly Issues Programs lists that were uploaded over a year late and four lists uploaded between one month and one year late ($9000 fine, $6000 fine).  These decisions demonstrate that the Video Division is fining stations for violations of its public file rules, where the Audio Division, for the most part dealt with such violations discovered during the license renewal process through consent decrees.
  • The Federal Trade Commission initiated a proceeding to update its guidelines on preventing digital deception. The proceeding looks at issues including online sponsorship identification and other disclosures in advertising, with the FTC fearing that disclosures often were not evident to consumers when available only though multiple hyperlinks or otherwise did not provide clear information to consumers.  Comments are due by August 2, 2022. (Press Release, Request for Comments)

Courtesy Broadcast Law Blog

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 issued its Notice of Proposed Rulemaking proposing the annual regulatory fees to be paid by September 30, the end of the government’s fiscal year, by broadcasters and others regulated by the FCC. Public comment on the FCC’s proposal is due July 5, 2022, with replies due by July 18 (Notice of Proposed Rulemaking). The NAB issued a statement attacking the proposed 13% increase in the fees to be paid by radio stations as “an unjustified increase” that would be “devasting” to local radio services (NAB Statement).  A decision on the final amount of the proposed fees is routinely released in late August or very early September so that fees can be paid before the October 1 start of the new fiscal year.
  • In connection with the proposed acquisition of the Tegna TV stations by Standard General, L.P., the FCC issued a letter request asking for significant additional information about the pending application – including documents submitted to the Department of Justice in connection with the Hart-Scott-Rodino filing that seeks antitrust approval for the deal. The HSR documents include internal memos and documents submitted to funding sources that outline the competitive impact of the proposed transaction. The FCC request also asks for a description of the public interest benefits of the proposed transaction, and the impact it would have on employment at the stations to be acquired (FCC Request).  This is information not routinely sought by the FCC in the assessment of a broadcast acquisition.
  • The FCC’s Enforcement Bureau issued another letter to a landowner in Baltimore whose property was believed to be home to a pirate radio operation. The letter gives the property owner 10 days to respond, and notes that hosting a pirate radio station can lead to a $2,000,000 fine (Letter).  We recently wrote on our Broadcast Law Blog, here, about other landowners who received similar letters when they were identified as hosting pirate radio operations.
  • Following Federal Register publication, new FCC rules became effective, making it clear that broadcasters and cable companies have obligations to post information to their online public file about advertising that runs on their stations addressing federal issues (Public Notice). As we wrote here when these rule changes were initially announced, they have little practical effect as their requirements were already spelled out in the Communications Act, and the FCC already enforced the Act’s requirements.  The changes just made the FCC’s rules conform to the language of the Act.
  • The FCC’s Further Notice of Proposed Rulemaking on unlicensed “white spaces” devices that operate in the TV Band was published in the Federal Register, setting the deadline for public comment as July 1, with reply comments due August 1 (Federal Register). The FCC earlier this year adopted new rules that require fixed and certain personal/portable white space devices to check white space databases at least once per hour for other spectrum users to be protected from interference, replacing a prior rule that had not been enforced requiring the databases to push information to white spaces devices whenever there was a new wireless microphone or other protected use in the area in which the white space device was operating.  This Further Notice seeks comments on whether “unlicensed narrowband white space devices” should be subject to the same hourly requirement to check white space databases as other users or whether some other monitoring obligation should apply.

Courtesy Broadcast Law Blog

With the traditional beginning of summer upon us, there is no vacation from the regulatory actions of importance to broadcasters.  Let’s start with the routine actions for the upcoming month.  With the radio license renewal cycle having ended with the filing of the last set of renewal applications in April, we enter the last year of the cycle for television.  Renewals applications for Full-Power Television, Class A, LPTV and TV Translator Stations in Arizona, Idaho, Nevada, New Mexico, Utah and Wyoming are due on June 1.  Renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for LPFMs and TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Note that your Broadcast EEO Program Report must include two years of annual EEO public file reports for FCC review, unless your employment unit employs fewer than five full-time employees.  Be sure to read the instructions for the license renewal application and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.  Issues with the public file have already led to fines imposed on TV broadcasters during this cycle.

Also, on or before June 1, all radio and TV station employment units (a station employment unit is a station or stations that are under common control, share at least one full-time employee, and are in the same geographic area) with five or more full-time employees licensed to communities in Arizona, District of Columbia, Idaho, Maryland, Michigan, Nevada, New Mexico, Ohio, Utah, Virginia, West Virginia, and Wyoming must upload to their online public inspection file an Annual EEO Public File report.  This report covers hiring and employment outreach activities for June 1, 2021 through May 31, 2022.  These licensees must also post on the homepage of their station website (if they have one) a link to the most recent report.

June 6 brings the date for comments on the field testing done by GeoBroadcast Solutions of its “zonecasting” system proposed to allow FM boosters to originate limited amounts of programming different than their primary stations for the insertion of targeted ads or news.  We wrote about the request for comments on the study, and the issues in the proceeding, here.  As we noted in this week’s summary of broadcast regulatory news, the FCC denied the request of NAB and NPR for an extension of the comment dates.  Thus, the comments remain due on June 6, with reply comments due June 21.

Bidding is set to begin on June 7 in Auction 112, the sale of construction permits for 27 new full-power TV stations.  These new stations are mostly located in rural western markets (although a channel in Syracuse, New York is among those being sold).  The FCC previously announced that there were only 10 qualified applicants who had paid their upfront fees to participate in the auction.

At its June 8 regular monthly open meeting, the FCC will vote on a Notice of Proposed Rulemaking that asks for public comment on its proposal to authorize digital LPTV stations operating on TV channel 6 to continue to provide an analog audio stream that can be received on FM radios at 87.7 MHz. In the draft of the NPRM released earlier this month, the channel 6 stations authorized to provide the FM service would be limited, including a proposal that the authority would be restricted to those LPTV Channel 6 stations already providing such an audio service.  The Notice also asks for comments as to whether Channel 6, in geographic areas where it is not currently used for TV services, should be repurposed for FM use (a proposal that has previously been advanced by the FCC, see our article here on previous FCC requests for comment on this issue).  If the FCC adopts this Notice at its June meeting, comment dates will be announced by a future Federal Register publication.

Looking ahead to early July, on July 1, comments are due on the FCC’s Office of Economics and Analytics annual call for comments on the State of Competition in the Communications Marketplace (see the Public Notice calling for these comments). These comments are used to prepare a report to Congress on communications competition issues and are sometimes referenced by the FCC itself in proceedings dealing with competition issues.  The FCC seeks comments on a list of questions about competition in both the Video and Audio marketplaces, including the impact of digital competitors on traditional providers and the role that regulation plays in the competitive landscape.  Reply comments are due August 1.

For all full-power broadcast and Class A TV stations, July 10 is the deadline for Quarterly Issues Programs lists to be uploaded to station online public inspection files.  The lists should identify the issues of importance to the station’s community and the programs that the station aired in April, May and June that addressed those issues.  As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its community.  Note that, because the July 10 deadline falls on a weekend, there is FCC precedent that indicates that the deadline is extended to the next business day, which is Monday, July 11.  However, stations are encouraged to upload in advance of the deadline to account for any upload delays or errors.  See our post here for more on the importance of the Quarterly Issues Programs list obligation.

Also, as we noted in our regulatory dates reminder as May began, this is political season in many states.  Remember to observe lowest unit charge windows and other political obligations if you state has any primary elections in these summer months.  And, as always, review these dates with your legal and technical advisors, note other dates not listed here that may be relevant to your operations, and otherwise stay on top of all of your regulatory obligations.

Courtesy Broadcast Law Blog

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 has requested comments on a proposal for a new Content Vendor Diversity Report. A public interest group has asked the Commission to require this report to gather information on the race and ethnicity of employees and senior leadership of vendors of video content to both traditional media and streaming services.  The requested comments are meant to inform the FCC as to whether it should move forward to review this proposal.  A formal Notice of Proposed Rulemaking would be necessary before any final rules are adopted.  Comments are due July 22, with replies due August 22. (Request for Comments)
  • In a major First Amendment decision, the 11th Circuit Court of Appeals issued an injunction prohibiting the State of Florida from enforcing its laws that would have limited social media platforms from various forms of content moderation. The law had provisions including forbidding the “deplatforming” of any candidate for public office, limiting the platforms’ ability to favor or disfavor content about any candidate, restricting any actions favoring or disfavoring content from any “journalistic enterprise,” and requiring the release of a “thorough rational” for every content moderation decision made by the platforms.  The Court determined that, as private companies, these platforms could make such decisions without government intervention, and the state cannot penalize them for the content moderation decisions that they make. (Opinion of the Court)
  • The FCC issued fines to two companies whose broadcast stations were silent for extended periods without requesting FCC approval. In one case, a translator operator was fined $4000 for being silent for over 11 months without requesting FCC approval, and for failing to notify the FCC that the translator has changed its primary station.  This fine was reduced from a proposed fine of $8000 upon the licensee’s showing of economic hardship (Forfeiture Order).  In another case, the Media Bureau fined a broadcaster $17,500 for the silence of an AM station and associated translator that was only brought to the FCC’s attention by informal objections to the licensee’s license renewal application.  The fine also covered the failure to report the silence in connection with the renewal application (where the licensee had certified that the station had not been silent for more than 30 days) and for public file violations (Forfeiture Order)
  • The Media Bureau denied a request for an extension of the deadline for comments on the tests of GeoBroadcast Solutions system of using FM boosters to originate limited amounts of programming different from that provided by their primary stations. We wrote about this request for comments on our Broadcast Law Blog, here.  The Bureau denied the extension request filed by the NAB and NPR which had asked for an additional two weeks to review the technical showings.  The Bureau said that extensions are not routinely granted, and no good cause had been shown for an extension in this case (Order).  The comment date remains June 6 with replies due June 21.
  • The FCC’s Office of Managing Director announced that the “legacy CORES” database will be decommissioned on July 15. A new system, CORES2 has been active since 2016.  To manage their FCC Registration Numbers (FRNs) needed for many FCC filings, including the resetting of passwords, any FCC user who has not registered in the new CORES2 system should do so to avoid delays in future FCC filings (Public Notice).
  • In allocations proposals, the FCC proposed substituting channel 22 for channel 9 at Orono, Maine for WMEB-TV (Notice of Proposed Rulemaking). The FCC also allocated a new FM channel, 263A, to Hamilton, Texas, which will be available in a future FM auction (Report and Order).

Courtesy Broadcast Law Blog

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 issued a draft Notice of Proposed Rulemaking to be considered at its required monthly open meeting on June 8 that asks for public comment on its proposal to authorize LPTV stations operating on TV channel 6 to continue to provide an analog audio stream that can be received on FM radios at 87.7. Its proposal would limit that authorization in many ways, including suggesting that the authority would be restricted to those LPTV Channel 6 stations already providing such an audio service.  The Notice also asks for comments as to whether Channel 6, in geographic areas where it is not currently used for TV services, should be repurposed for FM use (a proposal that has previously been advanced by the FCC, see our Broadcast Law Blog article here on previous FCC requests for comment on this issue).  If the FCC adopts this Notice at its June meeting, comment dates will be announced by a Federal Register publication (draft Notice of Proposed Rulemaking).
  • The FCC, at its May open meeting held Thursday, adopted its order approving the use of computer modeling for FM directional antenna – eliminating the need under current rules for a measured relative field pattern verified through either a full-scale mockup or a scale model on a test range or in an anechoic chamber. The Order will be effective at a later date after publication in the Federal Register (Report and Order).
  • The FCC’s Office of Economics and Analytics issued the FCC’s annual call for comments on the State of Competition in the Communications Marketplace. Comments are due July 1 with reply comments due August 1.  These comments are used to prepare a report to Congress on communications competition issues and are sometimes referenced by the FCC itself in proceedings dealing with competition issues.  The FCC seeks comments on a list of questions about competition in both the Video and Audio marketplaces, including the impact of digital competitors on traditional providers and the role that regulation plays in the competitive landscape (Public Notice).
  • In its continuing review of applicants for new noncommercial FM stations filed during the filing window in 2021, the FCC reversed a decision granting an application for a new station in Mississippi based on its proposed coverage. The decision was reversed as the FCC found that a showing of the populations covered by the proposed new station, which supported the claims for that preference, was not filed by the deadline date for the filing of applications.  As the FCC procedures for the filing window required all claims for preferences be filed by the application deadline, the grant was rescinded, and another application was granted instead (Letter Decision).
  • In Auction 112, the sale of construction permits for 27 new full-power TV stations, mostly in rural western markets, the FCC announced that there were 10 qualified applicants who had paid their upfront fees to participate in the auction where bidding is scheduled to begin on June 7, 2021. (Public Notice)(List of Qualified Bidders)
  • On Capitol Hill, a bipartisan group of 4 senators introduced legislation which, if adopted, would force large online platform to own only one of the three parts of the digital ad ecosystem – they could only be a Supply-side ad provider (bundling advertising availabilities to provide them to an ad exchange), an Advertising Exchange (where buyers and sellers are matched), or a Demand-side provider (where those buying advertising come to buy ads on the exchanges). Smaller digital advertising platforms would also be regulated to require more transparency and to avoid internal conflicts of interest.  The proposed legislation is intended to boost competition in digital advertising sales and to lower the costs allegedly imposed by the overlapping interests of companies with interests in multiple aspects of the digital ad sales process.  (Press Release)(Summary)(Text of Proposed Legislation)
  • At a meeting this week, the Federal Trade Commission announced that it is considering changes to its endorsement guidelines which regulate false and misleading reviews of products and services, and which require disclosure of anything that the endorser receives in exchange for its review. While principally targeted to online marketing, these rules also apply to endorsements on more traditional media platforms.  (Press Release)(Notice of Proposed Changes and Request for Comments)

Courtesy Broadcast Law Blog

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 rejected a request that it reconsider its December 2020 decision to end a proceeding to set aside one vacant TV channel in each market for exclusive use by unlicensed wireless microphones and white space devices. The Commission concluded that, following the incentive auction and repacking, there was insufficient television spectrum left for there to be a set-aside channel in every market, and there were other ways to accommodate wireless microphones and other unlicensed users (Order on Reconsideration).  Read our blog post about the December 2020 decision, here.
  • Legislation has been introduced in Congress to update the CALM Act. The proposed legislation, if adopted, would eliminate the safe harbor that TV broadcasters currently enjoy if they use approved technology to prevent loud commercials. Instead, that technology would not shield a video provider from possible liability if there was evidence that significant violations were occurring, a determination to be made based on factors including the number of complaints pending and the nature of those complaints.  The legislation would also extend the applicability of the act beyond broadcast and cable to cover streaming video providers.  (Press Release)(CALM Modernization Act).
  • On our Broadcast Law Blog, we wrote last week about the FCC’s current role in regulating the Internet (Blog Post). On the same day we published our article, it was announced that Senator Bennett from Colorado introduced legislation in Congress to create a Federal Digital Platform Commission to regulate Internet platforms. If adopted, the new commission would regulate online platforms to achieve many goals including consumer protection, transparency in moderation policies, ensuring robust competition, and increased educational and public interest content. (Press Release)(Section by Section summary)(Text of Legislation)
  • Following a “paper hearing” designed to speed FCC decisions when cases require fact finding by an FCC administrative law judge, a judge found that a convicted felon’s crimes were not serious enough to warrant his company’s losing its radio licenses. In the case of a felony conviction, the FCC analyzes whether the crimes are so serious that the licensee does not have the character to serve the public as well as whether the crime is indicative of the licensee’s likelihood of not being truthful and forthcoming with the FCC.  In this case, the sole shareholder of the licensee, a former speaker of the Alabama House of Representatives, was convicted of crimes relating to improper use of his office for private gain. The judge determined that those crimes were not predictive of his likelihood to be truthful with the FCC, especially given the station’s history of FCC compliance.  Nor were the crimes deemed so morally reprehensible that they demanded that the license be forfeited (Decision). We took a deeper look at this case and the FCC’s character policies when the hearing in this case was first announced, here.
  • The Media Bureau deleted FM channels at Millerton, Oklahoma; Powers, Oregon; Mount Enterprise, Texas; Paint Rock, Texas; Hardwick, Vermont; and Meeteetse, Wyoming. These channels had been included in multiple FM auctions without being sold and no party expressed an interest in bidding on those channels in a future action.  But, because a party pledged to file for it in the next FM auction filing window, the FCC did not delete a vacant allotment at Snowflake, Arizona. (Order)
  • The Audio Division of the Media Bureau rejected a request to cancel the license of a station that went silent and failed for more than a year to notify the FCC that it had gone back on the air. Under Section 312(g) of the Communications Act, a station that is silent for more than a year will have its license automatically canceled unless it can show that the public interest requires the license be extended.  In this case, as the licensee showed that it had in fact returned to operations within the one-year period, the license was not cancelled.  However, because the station was silent for 248 days out of the two years that it was licensed to operate, it was given only a short-term license renewal for only one year, instead of the normal eight years, as the FCC found that prolonged periods of silence did not serve the public.  The short term renewal will allow the licensee to demonstrate that it would in fact serve the public in the future.  (Order and Consent Decree)

Courtesy Broadcast Law Blog

In our summary of last week’s regulatory actions, I was struck by a common thread in comments made by several FCC Commissioners in different contexts – the thread being the FCC’s role in regulating Internet content companies.  As we noted in our summary, both Republican commissioners issued statements last week in response to a request by a public interest group that the FCC block Elon Musk’s acquisition of Twitter.  The Commissioners stated that the FCC had no role to play in reviewing that acquisition.  Twitter does not appear to own regulated communications assets and thus the FCC would not be called upon to review any application for the acquisition of that company.  The Commissioners also noted concerns with the First Amendment implications of trying to block the acquisition because of Musk’s hands-off position on the regulation of content on the platform, but the Commissioners’ principal concern was with FCC jurisdiction (Carr StatementSimington Comments).  In the same week, FCC Chairwoman Jessica Rosenworcel, in remarks to a disability rights organization, talked about plans for more FCC forums on the accessibility of Internet content to follow up on the sessions that we wrote about here.

The ability of the FCC to regulate internet content and platforms depends on statutory authority.  In holding the forums on captioning of online video content, the FCC could look to the language of the 21st Century Communications and Video Accessibility Act, which included language that asked the FCC to look at the accessibility of video content used on internet platforms.  In other areas, the FCC’s jurisdiction is not as clear, but calls arise regularly for the FCC to act to regulate content that, as we have written in other contexts, looks more and more like broadcast content and competes directly with that content.

Calls for the FCC to regulate internet content and the companies that provide that content are certain to multiply.  In another of our weekly summaries of regulatory actions of interest to broadcasters, we noted recent meetings with FCC Commissioners’ offices by representatives of the TV affiliates organizations, in which they asked that the FCC consider regulation of linear programming services delivered through internet platforms in the same way that they regulate cable and satellite multichannel video providers, including the possibility of adopting a system of must-carry and retransmission consent.  This is not at all a new idea, having been raised in 2014 in an FCC proceeding that asked for public comment on the question of whether to subject online video providers to MVPD regulation – a proceeding that never resulted in any action (see our articles here and here).

The FCC, of course, already is involved to some degree in internet content regulation.  It deals with transmission paths, both wired and unwired, and has wrestled with the questions of “net neutrality” over the last decade.  Even in content areas, it imposes some obligations.  But these are in areas ancillary to its broadcast regulation.  For instance, it has rules dealing with broadcast content exported to internet platforms – including obligations to export captions to those platforms when video programming is repurposed by a broadcaster to the internet.  See our article on captioning such programming here and here, and we noted in one of our weekly summaries of the FCC actions, here, there was recently a multi-million-dollar consent decree between the FCC and a media conglomerate which exported broadcast network programming without captions to an online platform owned by an affiliated company.  In the area of children’s television, there are limits on commercial content on landing pages of URLs displayed on television programming directed to children.  We also wrote about an apparent allusion of the FCC to penalties for the online use of fake EAS tones – or real tones where there was no emergency.

But these are the exception, not the rule.  For the most part, the FCC has been careful to stay out of internet content regulation where it does not have a clear statutory mandate to intervene.  In some areas, that can result in frustration over the lack of clear online standards.  For instance, in the political broadcasting arena, a broadcaster knows the rules for candidate rates, sponsorship identification, and public disclosure of broadcast political content, because those issues are all governed by FCC rules.  But comparable rules for those issues for online political advertising are, for the most part, set by a patchwork of state laws that are obscure and sometimes impose different and even contradictory obligations (see our articles here and here).

Sponsorship identification for broadcasters is also governed by the FCC. In an online world, the FTC enforces guidelines similar (and in some cases more stringent) than those imposed by the FCC (see our posts here and here).  But there have been questions of whether all payments for sponsored content are apparent to online consumers – and even what practices should be disclosed or permitted (see, for instance, the recent letter from some congressional representatives to Spotify complaining about a program to offer artists more exposure for their music in return for lower royalties).

And bigger issues of moderation of online content have been at the forefront of recent political debate. There were questions raised prior to the last election as to whether the FCC had jurisdiction to review the application of Section 230 of the Communications Decency Act that gives online platforms immunity for content that is posted by third parties – and the degree to which that content can be moderated by these platforms (see our articles here and here).  These issues are sure to become even more common as Congress and others in the political realm consider the power of online platforms and whether there should be governmental limitations on that power (see, for instance, our articles here,  here and here).  Will the FCC have a role in enforcing any laws that are ultimately adopted?  We can only wait and see.

Each of these areas demands much greater consideration, and we will, of course, from time to time be looking at them all.  But it is an area of much controversy, and that controversy is sure to grow as online content plays an ever-larger role in society.

Courtesy Broadcast Law Blog