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.

• The FCC’s Media Bureau released a Public Notice reminding commercial and noncommercial broadcasters of their upcoming obligation to file biennial ownership reports.  The ownership report filing window opens on October 2, 2023, and all reports must be submitted by December 1, 2023. Licensees of commercial and noncommercial full power television, Class A television, low power television, and AM/FM radio stations are required to file biennial ownership reports.  The Notice explains that the FCC is seeking accurate ownership information: (1) to ensure that the public knows who owns, operates, and controls broadcast stations; and (2) to understand the levels of diversity in the broadcast industry.  The FCC’s staff may pursue enforcement action against licensees that fail to file their biennial ownership reports in a timely or complete manner.  For more on this requirement, see our Broadcast Law Blog article here.
• The House of Representatives this past week again failed to decide how to address the funding of the federal government after the September 30 end of the current fiscal year.  Government agencies were, at the end of the week, told to begin to make plans for a potential government “shutdown” as of October 1.  If these funding issues are not resolved in the coming days, watch for FCC guidance on how a shutdown will affect filing deadlines and other FCC operations after October 1.  
• There were two announcements concerning the government’s review of artificial intelligence.  The Copyright Office announced an extension in the date for comments on its Notice of Inquiry asking for comment on the copyright issues triggered by the use of AI, including the question of whether machine-generated content is entitled to copyright protection and the copyright implications of AI’s use of copyrighted materials (including books and music) to “learn” how to perform certain tasks.  Comments are now due on October 30, 2023, with Reply Comments due by November 29.  Also, the Federal Trade Commission announced that, on October 4, 2023, it would hold a virtual roundtable discussion on AI issues that can be viewed online by the public.  The session will consider how AI may impact open and fair competition or enable unlawful business practices across markets, including in creative industries. The listening session will focus on different issues posed by generative AI, including concerns raised by musicians, actors, and other content creators about the use of AI to create entertainment and other content.
• The FCC issued a Report and Order updating its rules for full power and Class A stations to reflect their transition from analog to digital-only operations and the post-incentive auction transition to a smaller television band with fewer channels (for more background on this proceeding, see our Blog article here). The Report and Order restructures a portion of the rules largely dealing with the technical licensing, operating, and interference rules for full power television. The updated rules, which for the most part do not change substantive requirements, are scheduled to go into effect 30 days after their publication in the Federal Register, except those involving paperwork changes which require Office of Management and Budget (OMB) approval under the Paperwork Reduction Act.
• The Bureau also announced that changes in its rules for LPTV and translator stations which imposed new paperwork requirements requiring Paperwork Reduction Act approval went into effect on September 19.  These rule changes, like the TV rule changes mentioned above, were largely non-substantive amendments to reflect the transition of these services to digital operation and the termination of their analog operations (we reported on these changes earlier this year when the FCC issued its Report and Order).  Most of the amended rules went into effect on June 12, 2023. 
• The Media Bureau proposed to assess a $1,500 fine against a low power television (LPTV) station for failing to file a timely license renewal application.  The FCC’s rules normally require a base fine of $3,000.  However (consistent with recent practice), the Bureau reduced the proposed fine to $1,500, citing the fact that the LPTV station provided a secondary service. 
• The Bureau also entered into separate consent decrees (available here and here) with the licensee of an AM/FM combination, in which the licensee agreed to pay (1) a $3,000 penalty because the FM station had failed to upload material to its online public inspection file, failed to include a link to its online public inspection file on its website, and falsely certified that its online public inspection file contained the documentation required by the Online Public Inspection File Rule; and (2) a $6,000 penalty for the AM station because it committed the same violations in addition to operating at a variance from its licensed daytime and nighttime parameters for more than 30 consecutive days without FCC approval.  The licensee was also directed to adopt compliance plans to ensure that the stations do not commit similar violations in the future.
• The Media Bureau proposed to assess a $6,000 fine against a full power television station for by 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 12 quarters, i.e., two lists more than one year late, six lists between one month and one year late, and four lists between one day and one month late.
• The Media Bureau tentatively awarded a construction permit to an applicant for new NCE FM station at Riesel, Texas, instead of a mutually exclusive applicant for an NCE FM station at Golinda, Texas.  Both applications had been filed in the FCC’s November 2021 window for new NCE FM facilities.  The decision largely deals with procedural issues concerning how the FCC interprets the limited one-time opportunity for an applicant in a filing window for new stations to correct certain initial defects in its application.
• With the 2024 election looming, broadcasters are already receiving requests for political advertising time, from candidates, PACs and other issue groups trying to make an early impression on voters.  Some of these potential buyers advance unique policy positions and, sometimes, unusual ad buying strategies.  See our Broadcast Law Blog article published last week for a discussion of the legal issues and courses of action broadcasters need to consider when handling such inquiries.

Courtesy Broadcast Law Blog

With the 2024 election looming, broadcasters are already receiving requests for political advertising time, from PACs and other issue groups, and from both established candidates and newcomers eager to make an early splash to enhance their public standing.  Some of these potential buyers advance unique policy positions and, sometimes, unusual ad buying strategies.  How are broadcasters to deal with these early political ad buyers? 

Each broadcaster needs to discuss the issues that arise with these early political ads, both internally with their business teams and with their outside FCC counsel or in-house legal advisor.  The first question to ask is whether a station even wants to run these ads.  Ads from non-candidate buyers do not need to be run by stations but, if run, will likely impose some political file obligations on stations to the extent that they discuss candidates, potential candidates, or electoral and political issues (for more on political file issues, see our articles here, here, and here, and this video discussion that I did for the Indiana Broadcasters Association). 

Ads from purported candidates can also raise other issues.  First, are the ads for candidates for federal office, or only for state and local office?  Only federal candidates have reasonable access rights – meaning that stations are only mandated to take ads from federal candidates (see our article here on reasonable access considerations).  If stations do take ads from state and local candidates, they must treat all legally qualified candidates for the same office in the same way.  See our articles here and here on some of the differences between the treatment of state and local candidates under FCC rules. 

That raises the question of who are “legally qualified” candidates at this point in the election season?  Generally, a legally qualified candidate is one who has qualified for a place on the ballot (which, in most states, likely has not happened as the local filing window for requests for ballot access has not yet opened for the 2024 elections) or one who has made a substantial showing that they are running as a write-in candidate.  There are special rules for a Presidential candidate similarly premised on a place on the ballot or a substantial showing of their candidacy.  Once a Presidential candidate is qualified in 10 states, they are generally considered, for FCC purposes, to be qualified in all states.  

What is a substantial showing to determine that a candidate is qualified?  In the jurisdiction in which they are running (or the jurisdictions, in the case of a Presidential candidate), the test is to look at the actions of the candidate to see if they really are conducting a campaign – it is more than simply asking for airtime to run political ads on a broadcast station.  The factors to be considered include the following:

• Is the candidate making campaign speeches,
• Have they been distributing campaign literature,
• Have they been issuing press releases,
• Are they maintaining a campaign committee,
• Have they established campaign headquarters in the jurisdiction,
• Did they create a campaign website, and
• Are they using social media for the purpose of promoting or furthering a campaign for public office?

No one factor alone is sufficient – they all must be weighed to determine if the candidate really is conducting substantial campaign activity in the jurisdiction where they are seeking to claim that they are qualified, and the burden is on the purported candidate to show that they are legally qualified.  See this article on a recent FCC decision on the weighing of these factors.  This is a somewhat subjective determination that a broadcaster should make, based on all the facts, consulting with their attorney.  For some candidates who are not running in a primary, or are running in primaries later in 2024, there may not even be a campaign that has truly started – so for FCC purposes, those seeking to buy time now may not be “candidates” yet, and thus stations may have the option as to whether they need to accept their ads.  For major party presidential candidates in states with early primaries, many candidates may well be able to demonstrate that they meet the criteria for being legally qualified candidates, at least in some states, so that if they are federal candidates they will be entitled to reasonable access. A detailed analysis of these considerations is required – so contact your counsel for assistance in making this determination. 

If the station has determined that a federal candidate is legally qualified so that reasonable access applies, or if the station is willing to sell time to the candidate even if the candidate does not meet the test of being legally qualified, the station should also look at other issues in considering any political advertisements that early buyers may want to start running now.  For ads that are not from candidates, or from potential candidates who are not yet legally qualified, there are some business considerations.  Does a station want to disrupt regular ad buyers or provoke the negative reactions from audience members who may react to political ads running outside of election season? 

Other issues relate to the precedential nature of what you are doing.  These are questions to discuss with legal counsel.  By accepting ads from potential candidates before they are legally qualified, there may be an argument that you have conceded that there is an election, opening you to more requests for political airtime from other candidates.  Other issues may include novel requests for purchase – for instance, proposals that the candidate only pay after the spots have run, or that a candidate pay a station based on a percentage of funds raised in a candidate’s broadcast appeals.  On the latter request, check on campaign finance ramifications.  The FCC does not require that stations sell to political buyers per inquiry, or other ads where payment is based on the response that the buyer receives.  On the issue of not paying in advance, advancing credit to a candidate may set a precedent that could be applied to other political candidates later in election season.  The FCC allows stations to apply their normal credit policies to candidates.  The FCC has said the following about extending credit to candidates:

If a station’s credit policies would, for example, require advance payment from a commercial entity that has been established only for a temporary time or purpose (e.g., a seasonal fireworks merchant or a concert promoter), has an uncertain credit history with the station (e.g., a company that is new, advertising with the station for the first time, or advertises with the station only occasionally), or has an unstable financial condition, then the station can require advance payment from a political advertiser that falls within one or more of these categories. If, however, a station’s policy is to extend credit to commercial advertisers no matter what their nature, credit history, or financial condition, then the station would be required to extend credit to political candidates.

The FCC recognized that, under this standard, most candidates will not be extended credit and,  seemingly most stations do not routinely extend credit to candidates absent a guarantee of payment by an agency with an established credit history.  If that policy is not observed in one case, it could set a precedent for the future.  Thus, the ramifications of any credit extended to a political advertiser should be discussed with counsel, as extending credit to one candidate may require that it be extended to all candidates.

These are but some of the considerations for early season political ads.  We have written about other issues in the past (see for instance, our articles here and  here), and likely will be covering other issues in the near future.  Start your planning now – set political policies internally and discuss those policies with counsel so that you are familiar with all the ramifications of political sales throughout the coming election season.  Review your political disclosure statement and update it as necessary.  Educate your staff dealing with political issues, including those who post political information to the online public inspection file.  While many stations appreciate the boost that political money provides to ad sales, these sales also impose legal obligations that, if not observed, can result in serious consequences.  So be prepared! 

Courtesy Broadcast Law Blog

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.

• The FCC’s Media Bureau entered into a Consent Decree with the licensee of an Illinois Class A television station in which the licensee agreed to pay a $97,000 penalty for filing its license renewal application late and for failing to fully disclose in its license renewal application that it did not properly place all of its required documents into the station’s online public inspection file in a timely manner.  In fact, the licensee had missed uploading virtually all of the required regular public inspection file documentation including 28 Quarterly Issues Programs Lists, all its records concerning its compliance with the commercial limits in children’s programming, all of its children’s television programming reports on the educational and informational programming, and other documentation.  This case shows that repeated paperwork failures, even for a Class A TV station, can result in substantial fines.
• The Media Bureau also entered into a Consent Decree with the licensee of two Florida AM stations and three FM translator stations for a transfer of control of the licensee without FCC approval.  One of its LLC members had acquired the 40.5% interest of another member, giving the acquiring party 81% of the company, without seeking prior FCC approval.  In a subsequent application to approve that transfer, the licensee acknowledged the violation, and it agreed to pay an $8,000 penalty.  FCC approval is required whenever an owner is to assume a controlling position in a company, even if that owner had been approved on prior FCC applications.
• An FCC Administrative Law Judge determined that a felony conviction of the owner of a Tennessee AM station did not warrant the revocation of the station’s license.  In 2007, the owner (who was a member of the Tennessee legislature at the time) failed to report on his federal income tax return $330,0000 in profits from his sale of cigarette tax stamps (a felony under the IRS code), and he was convicted of a felony for that failure in 2016.  The Media Bureau subsequently initiated a license revocation hearing, as “it is Commission policy that any felony conviction of a licensee raises the question of whether that licensee possesses the requisite character to continue to hold a Commission license.”  While conceding that the principal had committed a “serious felony,” the ALJ was persuaded that the principal’s crime was “an isolated occurrence that does not suggest a likelihood of future violations; that “enough time had elapsed to show that the principal had remediated his wrong”; that the principal enjoyed significant support from the station’s local community; and that the station had an overall positive record of public service notwithstanding its previous alleged violations of FCC rules.  This case shows that a felony conviction of the principal of a broadcast station does not necessarily result in the loss of a license if the principal can show that the felony was unrelated to broadcast operations and did not suggest that the principal would be an untrustworthy licensee. 
• The FCC issued a Public Notice reminding broadcasters that the Communications Act requires all “United States-based foreign media outlets” to submit a report containing: 1) the name of such outlet; and 2) a description of the relationship of such outlet to the foreign principal of such outlet, including a description of the legal structure of such relationship and any funding that such outlet receives from such principal.  For purposes of this filing requirement, the term “United States-based foreign media outlet” means an entity that (A) produces or distributes video programming (as defined in section 602 of the Communications Act) that is transmitted, or intended for transmission, by a multichannel video programming distributor (as defined in such section) to consumers in the United States; and (B) would be an agent of a foreign principal for purposes of the Foreign Agents Registration Act of 1938. The Communications Act defines the term “video programming” as “programming provided by, or generally considered comparable to programming provided by, a television broadcast station.”

This coming week, Annual Regulatory Fees must be paid by commercial broadcast stations through the FCC’s CORES database by 11:59 PM Eastern Time on September 20 (see the FCC’s Public Notice announcing the September 20 deadline).  Late payment of regulatory fees will generally result in a 25% penalty plus interest, so commercial broadcasters should be preparing their fee submissions now to be sure to meet the September 20 deadline. For more on the deadline, and on the other FCC notices that were released to detail the filing obligations, see our Broadcast Law Blog article here.

Courtesy Broadcast Law Blog

On the anniversary of September 11, it seems appropriate to highlight the upcoming October 4 Nationwide Test of the EAS system.  While EAS was not activated during the September 11 emergency, the events of that date have provided much impetus for federal emergency authorities to strengthen the EAS system.  Part of that effort has been the regular testing of the Nationwide EAS alert system.  As we wrote in August, the Federal Emergency Management Agency (FEMA) has scheduled a nationwide EAS test for October 4, 2023, at approximately 2:20 pm EDT, using the Internet-based Integrated Public Alert and Warning System (IPAWS) (with a back-up date of October 11 if necessary).  In a Public Notice released in August, the FCC set out steps that broadcasters should take to prepare for that test.

Just last week, the FCC’s  Public Safety and Homeland Security Bureau released a further Public Notice to remind Emergency Alert System participants of their obligation to ensure that EAS alerts are accessible to persons with disabilities.  For TV stations, to be visually accessible, the EAS text must be displayed as follows:

• At the top of the television screen or where it will not interfere with other visual messages (e.g., closed captioning),
• In a manner (i.e., font size, color, contrast, location, and speed) that is readily readable and understandable (see below),
• Without overlapping lines or extending beyond the viewable display (except for video crawls that intentionally scroll on and off the screen),
• In full at least once during any EAS message. Text should scroll at a speed that allows viewers to read the crawl as if they were going to read it aloud, and
• The background and text colors should sufficiently contrast to allow for readability. For example, a bright green background with white text may not provide sufficient contrast. Green and red should also be avoided as viewers who are color blind have difficulty seeing these colors.

In addition, the audio portion of an EAS message must be played in full at least once to ensure it is accessible to viewers who are blind or have low vision and should be spoken at a pace that allows for a listener to understand the content. 

Last week’s Public Notice also reminded EAS Participants that they must file ETRS Form Two after the nationwide EAS test no later than the day after the test (October 5 if the test is held as scheduled).  This form provides immediate information to the FCC as to whether or not a station received the EAS alert.  ETRS Form Three must be filed on or before November 20, 2023, providing the FCC more details as to any issues that arose in the receipt of the test.

The most recent Public Notice did not remind broadcasters of their obligation, by September 15, to file any necessary updates to ETRS Form One, which provides general information about each EAS participant and the EAS equipment that they are using.  Form One was required to have been filed by all broadcasters by February 28, 2023 (with some limited exemptions for translators and satellite stations).  The FCC previously issued a reminder about that filing deadline, urging any broadcaster who did not timely file Form One to do so immediately.  This September 15 deadline is for updates that result from station sales, moves, or other changes since Form One was filed. So, if you acquired your station since the end of February or have changed locations, be sure to update that form by the end of this week.

As noted above, there is a back-up date of October 11 for the Nationwide Test in case there is a real or threatened emergency event that occurs around October 4.  None of these notices mention any potential delay of the test that could occur should there be no government funding bill in place by October 4, resulting in a full or partial federal government shutdown.  Watch for more information on how a shutdown would affect the test – but review all of the FCC Notices on the test and your EAS operations so that you are prepared to participate if all goes forward on time. 

Courtesy Broadcast Law Blog

Here are some of the regulatory developments of significance to broadcasters from the past two weeks (including events that occurred during our hiatus for the Labor Day holiday), with links to where you can go to find more information as to how these actions may affect your operations.

• The Senate approved Anna Gomez to be a new FCC Commissioner, filling the open Democratic seat that has been vacant since the start of the Biden Administration.  Gomez is experienced in government circles, having worked at NTIA (a Department of Commerce agency dealing with federal spectrum use and other communications matters) and recently at the State Department preparing for international meetings about communications issues.  She also has a history in private law firm practice.  Together with her nomination, the President renominated Commissioners Starks and Carr for new terms as Commissioners, but those nominations remain pending – not having been approved this week with the Gomez nomination.  As Democratic Commissioner Starks’ term has expired and he can only serve through the end of this year, there is speculation that these nominations may be approved in combination with nominations for vacancies at other government agencies so as to avoid returning the FCC to a partisan deadlock in January.  See our Broadcast Law Blog article here for a review of broadcast issues the FCC might address now that there is a full Commission.
• The FCC has announced via Public Notice that Annual Regulatory Fees must be paid through its CORES database by 11:59 PM Eastern Time on September 20.  The FCC also issued a second Public Notice explaining the filing procedures and methods for making payments, including limits on credit card payments, available here. For broadcasters, a third document, a Fact Sheet called “What Your Owe – Media Services Licensees for Fiscal Year 2023,” sets out specific information as to what is owed by commercial broadcasters and restates some of the information from the Notice on filing procedures.  This broadcast-specific Fact Sheet is available here.  The FCC also released a Fact Sheet setting forth the details of who is exempt from regulatory fees, including Noncommercial Educational stations and commercial stations whose total fee obligations are “de minimis,” i.e., they total $1000 or less.  That Fact Sheet is here.  Another Fact Sheet setting out the procedures for seeking a waiver or deferral of the fees is available here.  Paying regulatory fees late can bring substantial penalties (25% penalty plus interest), so commercial broadcasters should immediately review these documents and prepare their fees so that they can be submitted before the September 20 deadline.  For more details on these fee notices, see our blog article here.
• The FCC’s Public Safety and Homeland Security Bureau (Bureau) issued a Public Notice to remind Emergency Alert System (EAS) participants of their obligation to ensure that EAS alerts are accessible to persons with disabilities.  The Federal Emergency Management Agency (FEMA) has scheduled a nationwide EAS test for October 4, 2023, at approximately 2:20 pm EDT, using the Internet-based Integrated Public Alert and Warning System (IPAWS).  The Public Notice also reminded EAS Participants that they must file ETRS Form Two after the nationwide EAS test no later than October 5, 2023, and they must file ETRS Form Three on or before November 20, 2023. For TV stations, to be visually accessible, the EAS text must be displayed as follows:
  • At the top of the television screen or where it will not interfere with other visual messages (e.g., closed captioning),
  • In a manner (i.e., font size, color, contrast, location, and speed) that is readily readable and understandable (see below),
  • Without overlapping lines or extending beyond the viewable display (except for video crawls that intentionally scroll on and off the screen), and
  • In full at least once during any EAS message. Text should scroll at a speed that allows viewers to read the crawl as if they were going to read it aloud.
  • The background and text colors should sufficiently contrast to allow for readability. For example, a bright green background with white text may not provide sufficient contrast. Green and red should also be avoided as viewers who are color blind have difficulty seeing these colors.
  • In addition, the audio portion of an EAS message must be played in full at least once to ensure it is accessible to viewers who are blind or have low vision and should be spoken at a pace that allows for a listener to understand the content. 

• The FCC’s Wireless Telecommunications Bureau, in coordination with the Media Bureau, issued a Public Notice which (1) provides detailed instructions for 12.7-13.25 GHz (12.7 GHz) band Broadcast Auxiliary Service (BAS) licensees to file certifications confirming the accuracy of their licensing information in the Universal Licensing System (ULS); and (2) establishes a window for the filing of these certifications.  The FCC directed this updating of ULS in its Notice of Proposed Rulemaking and Order where it has proposed to repurpose some or all of the 12.7 GHz band for mobile broadband or other expanded use, and grandfather, relocate, and/or repack existing 12.7 GHz licensees (we referenced this proceeding in our blog article here).  BAS licensees, who may include satellite communications and mobile TV pickup operations, should take care to comply with this obligation, as the FCC has also proposed to limit eligibility for incumbent status to those licenses for which the licensee has filed the required certification, meaning that if the certifications are not filed, there may be no reimbursement for any required channel moves or no protection from future interference. Review the Public Notice carefully, as there are instructions for licensees that filed applications on or after January 1, 2021, for a new or modified BAS license, and for those that file a modification application correcting license information on or before November 29, 2023. If a licensee is unable to make the certification for a license for reasons including that the required technical data is inaccurate, missing, or incomplete; the license has terminated automatically; or the facilities are not operating as authorized, the licensee must cancel the license or file a modification application to correct the data reflected in the license no later than November 29, 2023.  BAS licensees must file their certifications in ULS using the online portal for non-docketed Pleadings, which can be accessed here.  Read the Public Notice carefully and consult with your legal and technical advisors for more details about these requirements.   

• The FCC announced that the agenda for its September 21 regular monthly open meeting will include consideration of a Report and Order that would implement proposals to comprehensively delete, update, and revise Commission rules for full power and Class A television stations where those rules no longer have any practical effect given the transition from analog to digital-only operations and the completion of the post-incentive auction transition to a smaller television band with fewer channels.  The proposed rule changes are mostly non-substantive and do not materially change the regulatory obligations of full power and Class A stations.  For more details, see the FCC’s Notice of Proposed Rulemaking here.
• The Audio Division of the FCC’s Media Bureau entered into a Consent Decree with the licensee of an AM station in Alaska and an associated FM translator, in which the licensee acknowledged that it had violated the FCC’s rules by reducing daytime power and being silent for periods exceeding 30 days without seeking FCC approval, as required by the rules, and for originating programming on its translator while its AM station was silent.  An FM translator for an AM station cannot continue operations if the AM has not operated within the last 24 hours.  In reaching this decree, the Division reduced the licensee’s proposed fine from $7,000 to $4,000, citing the licensee’s showing of financial hardship and indicating that the money that would otherwise go to the higher fine would better be spent on the equipment necessary to repair the station’s transmitter.
• The FCC’s Video Division issued a Forfeiture Order imposing a $1,500 per station fine on the licensee of four TV translator stations in Colorado for failing late license renewals.  For the same reason, the Division issued three Forfeiture Orders (here, here and here) imposing fines on a licensee of 27 TV translators in Nevada, but reduced the fines from $1,500 per station  to $209 per station.  While declining to find that the initial fines of $1,500 per station were excessive (notwithstanding the licensee’s showing of financial hardship), the Division found that reduction of the fines was warranted “based on the Licensee’s history of compliance and the unique facts and circumstances presented, notably the fact that the Stations are community translators serving rural areas that would otherwise have limited, if any, over-the-air television service.”  The Division also proposed to assess a $37 per station fine against the licensee of three Montana TV translators for failing to timely file “license to cover” applications and engaging in unauthorized operation of the stations after their construction permits had expired.  In substantially reducing the fine normally required by the FCC in this kind of case, the Division cited the licensee’s documented financial inability to pay, its history of compliance, and the fact that the stations provided service to rural areas that has that otherwise had no off-air television service.
• The Audio Division proposed to allot FM channel 225A at Lac du Flambeau, Wisconsin, as a Tribal Allotment and the community’s first local service.  Comments are due October 30, 2023; reply comments are due November 15, 2023.   The Tribal Allotment is being proposed pursuant to the FCC’s 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 Video Division requested comment on a Notice of Proposed Rulemaking proposing to substitute noncommercial channel 34 for noncommercial channel 11 at Des Moines, Iowa and to substitute the allotment of noncommercial channel 21 for noncommercial channel 34 at  Ames, Iowa.  The proponent of this proposal has asserted that the substitution of channel 34 for channel 11 at Des Moines is necessary to overcome signal difficulties associated with digital operation on VHF channels.  Comments and reply comments will be due 30 and 45 days, respectively, from publication of the Notice of Proposed Rulemaking in the Federal Register.  For similar reasons, the Division also approved the substitution of noncommercial UHF channel 27 for noncommercial VHF channel 12 at Lincoln, Nebraska.

Courtesy Broadcast Law Blog

The Senate this week approved Anna Gomez for the open Democratic FCC seat that has been vacant since the start of the Biden Administration.  As we wrote in May when the President first nominated her, Gomez is experienced in government circles, having worked at NTIA (a Department of Commerce agency dealing with federal spectrum use and other communications matters) and recently at the State Department preparing for international meetings about communications issues.  She also has a history in private law firm practice. 

Together with her nomination, the President renominated Commissioners Starks and Carr for new terms as Commissioners, but those nominations remain pending – not having been approved this week with the Gomez nomination.  Democratic Commissioner Starks’s term has already expired but he continues to serve under the allowable one-year carry-over which ends at the beginning of January 2024.  Republican Commissioner Carr’s term will expire at the end of this year, but he would be able to serve through the end of 2024 if his renomination is not confirmed.  There is some speculation that these nominations will be packaged with other pending nominations for positions at other government agencies to avoid having the FCC return to a partisan stalemate again in January if the Starks’ renomination is not approved by then. 

In January, we looked ahead at some of the regulatory issues that are unresolved for broadcasters, and in May when Gomez was first nominated, we speculated as to the broadcast issues that a full Commission might address.  Many of these issues have yet to be resolved, so let’s look again at the issues that remain on the table.  Perhaps the most significant issue is the resolution of the 2018 Quadrennial Review to assess the current local broadcast ownership rules and determine if they are still in the public interest.  As we wrote in December, the FCC has already started the 2022 review, as required by Congress, even though it has not resolved the issues raised in the 2018 review.  This has brought a rebuke from the NAB, which has sought a “mandamus” from the US Court of Appeals – mandamus being an order from the court telling the FCC to fulfill its statutory obligation to complete the Quadrennial Review that should have been done by the end of 2022.  The court has asked the FCC and NAB for briefing on the issue as to whether the court should order the FCC to act – and we are now waiting on a court decision.  Even if such an order is granted, the court will not tell the FCC how or what to decide, but only to decide the issues.  So, no matter which way the court rules on the mandamus request, a new FCC would sooner or later have to review the open issues.  What are those issues?

For the radio industry, they include the potential relaxation of the local radio ownership rules.  As we have written, some broadcasters and the NAB have pushed the FCC to recognize that the radio industry has significantly changed since the ownership limits were adopted in the Telecommunications Act of 1996, and local radio operators need a bigger platform from which to compete with the new digital companies that compete for audience and advertising in local markets.  Other companies have been reluctant to endorse changes to the ownership rules – but even many of them recognize that relief from the ownership limits on AM stations would be appropriate.  Those positions were echoed in the comments filed in the newly started 2022 Quadrennial Review filed back in March. 

The Quadrennial Review also looks at the dual network rule that currently forbids the common ownership of two of the Top 4 TV networks.  This issue has taken on added significance recently, as there has been some speculation that some of the companies controlling the top broadcast networks may be interested in exiting the linear TV business, but this rule might limit the options available to such companies. Also under consideration is the potential for the combination of two of the Top 4 television stations in any local market.  Common ownership of such stations is only permitted now through what is essentially a waiver process.  The FCC has asked if there are specific criteria that could be adopted to evaluate those requests (e.g., a combination of the 3^rd and 4^th stations would be allowed if their market share did not exceed a specific percentage of the market – or the share of the higher rated stations in the market) so that applicants would have more certainty about whether a proposed combination would be allowed.  These issues are all fully briefed and argued to the FCC and are just awaiting an FCC decision. 

While not directly part of the Quadrennial Review process, the question of the national cap on television ownership could be a subject that a new FCC could review.  Television companies are limited from having an attributable interest in television stations reaching more than 39% of national television households.  There are several television companies that have exceeded that threshold by relying on the “UHF Discount” that counts UHF stations as reaching only half the households in their markets, a legacy from the days of analog television broadcasting, when VHF stations (those operating on Channels 13 and below) were the preferred means of transmission.  Once the conversion to digital occurred, the tables were reversed, as UHF channels are generally acknowledged to have superior transmission capabilities, an advantage that continues in the new ATSC 3.0 “Next Gen TV” transmission standard. 

Recognizing that reversal, the last Democratic Commission abolished the UHF discount (see our article here) only for that action to be reversed by the Pai administration (see our article here).  The Commission under Republican Chairman Pai questioned whether the FCC had the authority to repeal the UHF discount, as that discount had been in place when Congress enacted the 39% cap.  The Pai administration also started a proceeding to review the national ownership cap for television companies, asking if the FCC could amend that cap on its own (or whether it needs authority from Congress) and, if the FCC has such authority, what the limits on national ownership should be.  That proceeding has never been resolved, and this new Commission has not yet been faced with a large acquisition that would for the first time put any company over the limit that would exist but for the UHF discount.  The recent TEGNA case, controversial for other reasons, did not raise this issue.  With a full Commission, this issue may well be considered. 

EEO issues for both radio and TV also could be considered by a full-strength FCC.  The FCC has requested comments on bringing back the annual EEO Form 395, which has been suspended for more than 20 years and would report on the race and ethnicity of broadcast employees (see our article here).  A rulemaking initiated by the last Commission looking at broader reform of the EEO rules is also still outstanding and could be given further consideration (see our article here). 

The FCC Chairwoman has also circulated a proposal for the Commission to conduct a review of the video programming marketplace, looking at the obstacles faced by independent programmers seeking carriage by multichannel video programming distributors and on online platforms, how this impacts consumers, and whether there are actions the Commission could take to alleviate such obstacles. The FCC regularly assesses the state of competition in the Media Marketplace for its required annual report to Congress, and has been asking about the impact of online video providers in those annual reviews for over a decade (see our article here).  Even though this proposal for a rulemaking proceeding was announced in early July, it has not yet been adopted and the text of the proposal is not publicly available.  A full commission might look at this issue. 

Also potentially on the table is a review of the status of “virtual MVPDs” – online offerings of cable and broadcast programming that appear very similar to packages offered by cable and satellite TV providers, but which are not currently covered by the must carry/retransmission consent rules.  Some broadcast companies have urged such a review, while the broadcast networks generally oppose further review.  While the Chairwoman has indicted that she did not think that the FCC had jurisdiction to review this issue without Congressional action (see the reference to her letter to Senator Grassley on this issue in our weekly update, here), the push by some prominent Democrats in Congress for a review of this question (see our reference to a request by Senator Cantwell asking that the FCC consider this matter) could lead to some FCC inquiries on the issue now that there is a full FCC. 

Political broadcasting is always an issue.  The requirement for quicker disclosure of advertising orders placed by political candidates and issue advertisers has been brought to the foreground by the hundreds of consent decrees signed by broadcasters across the country in the past two years (see our articles here and here).  Disclosure requirements about the funding of political advertising backers has also been considered in previous administrations – and could make a return in this one (see our articles here and here). Watch for other clarifications of the political broadcasting rules that could come this year in the relative lull between election years.

For radio, there are various technical proposals that are still on the table for possible consideration.  Proposals for a Class C4 FM service (here) and the limited origination of programming on FM boosters through “zonecasting” (here) are pending and could be given further consideration.  The C4 proposal is only at the Notice of Inquiry stage, so any final rules, before being adopted, would have to be put out for public comment in a Notice of Proposed Rulemaking. In contrast, the zonecasting proposal has already been the subject of a Notice of Proposed Rulemaking.  The FCC’s zonecasting proposals have been vigorously contested, opposed by many prominent broadcast companies while aggressively supported by the company that developed the system.  This proceeding could be considered by the Commission this year.  Proposals for increased power for HD subchannels for FM radio are also on the table for possible action later this year.

Enhanced public file obligations have also been proposed to obligate broadcasters to use a standard certification form for buyers of program time on a station to assess whether those buyers are acting as agents of a foreign government, with the FCC proposing that these certifications be added to the public file regardless of whether the programmer indicates that it has any connection to a foreign government (see our article here).  The FCC is also considering requiring broadcasters to certify regularly as to the cybersecurity steps they are taking to secure their EAS systems from hacking and other online breaches (see our articles here and here). 

These are just some of the issues that could be considered by a full-strength FCC.  As we’ve seen in the past, new issues that we have not even considered could pop up at any time.  So, with a full Commission now in place, keep watching to see which of these issues may move forward! 

Courtesy Broadcast Law Blog

The FCC issued its Public Notice announcing that Annual Regulatory Fees must be paid by 11:59 PM Eastern Time on September 20, 2023.  As we noted two weeks ago, the FCC earlier this month released its Report and Order setting the amount of the annual regulatory fees that broadcasters must pay, but the Commission had not, until yesterday, followed up on that Order by issuing a Public Notice setting the dates for payment.  Yesterday’s Public Notice, and a set of other Public Notices and Fact Sheets issued yesterday, establishes the payment deadline and announces other procedures for payment. Unlike in past years when the payment window was a limited period, the Public Notice announced that the FCC’s CORES database, through which the fees must be paid, is now available for this payment. 

The FCC issued additional notices detailing various aspects of the fee filing process.  One Public Notice sets out the general filing procedures for making the fee payments.  That Notice makes clear all fees must be paid through CORES.  No checks, money orders, or other forms of payment will be allowed.  Payment must be made either by wire transfers, ACH electronic payments or by credit card.  Credit card payments are limited to $24,999.99.  The Notice tells broadcasters that they will receive an email confirming that they have submitted something through the CORES system – but that email does not confirm that the payment has actually been received by the FCC or debited to a broadcaster’s account.  Broadcasters need to confirm with their banks that the FCC has in fact debited their accounts for the fees. Pay early to make sure that you have time to confirm that the FCC has in fact received the fees by the deadline.

For broadcasters, a third document, a Fact Sheet called “What Your Owe – Media Services Licensees for Fiscal Year 2023,” sets out specific information as to what is owed by commercial broadcasters – i.e., the fees set out in the FCC’s Report and Order released earlier this month. That notice says that radio broadcasters can confirm the amount of their fees by accessing CORES at https://apps.fcc.gov/cores/userLogin.do.  Another Public Notice points to www.fccfees.com for lookup information on radio and TV stations.   

Certain broadcasters are exempt from paying fees.  Noncommercial stations that are fully operated and licensed as noncommercial are exempt, as are broadcasters whose total fee obligations are “de minimis,” i.e., they total $1000 or less.  The FCC also released a Fact Sheet setting out the details of these exemptions. 

Finally, a Fact Sheet setting out the procedures for seeking a waiver or deferral of the fees was also released by the FCC. The FCC can waive or defer fees for licensees who can prove that payment would cause a financial hardship.  Set out in the Fact Sheet are detailed requirements for submitting the financial information necessary to prove that hardship. Parties seeking a waiver or deferral must do so by the September 20 deadline.  Carefully review these procedures as the failure to follow the obligations set out by the FCC can cause a request to be dismissed.

Being late with regulatory fees can bring substantial penalties.  A late payment automatically brings a 25% late fee. Thus, commercial broadcasters should immediately review these documents and prepare their fees so that they can be submitted before the September 20 deadline.  Review this flurry of notices and fact sheets, and consult with your attorneys and advisors, to make sure that your payments are made and properly reflected in your bank account by the upcoming deadline. 

Courtesy Broadcast Law Blog

On the surface, September appears to have few scheduled regulatory filing dates and deadlines.  But it is period in which many broadcasters will be busy with deadlines that occur in early October and into the rest of the Fall.  TV stations should be finishing their decision-making on must-carry/retransmission consent elections, which need to be in their public files by October 2 (as the 1^st is a holiday).  In preparation for the early November filing window for new LPFM stations (see our article here), potential applicants should be determining if a station can technically “fit” in their area without prohibited shortspacings to other stations; if one can be located in their area, they need to locate a transmitter site; and they need to take all the steps other steps needed to be ready to file their application in the early November window.  One of the first regulatory dates of note in September is the freeze on FM translator modification applications that goes into effect on September 1 in anticipation of the LPFM window.  The freeze will be in effect at least through the end of the LPFM filing window on November 8. 

September will also bring the date for the filing of annual regulatory fees by commercial stations.  We recently noted that the FCC earlier this month released its Report and Order setting the amount of the annual regulatory fees that broadcasters must pay, but the Commission has not yet followed up on that Order by issuing a Public Notice setting the dates for payment.  As these payments must be made before the federal government’s October 1 start of the new fiscal year, we expect that Public Notice any day.  We also expect that, as in the past, the FCC’s Media Bureau will release a fee filing guide for the broadcast services.  Licensees should continue to monitor this item closely so that they are ready to pay those fees in a window that will open in September, as the failure to timely pay regulatory fees will result in substantial penalties.

Early October will also bring the first Nationwide EAS test in two years, scheduled for October 4 (with a back-up date of October 11 if there is a real or threatened emergency near the October 4 scheduled date).  In anticipation of that test, by September 15, 2023, broadcasters are to review and update, if necessary, their Form One information in ETRS (see our post here about the FCC’s Public Notice setting this deadline to update Form One and providing other information about the test).  ETRS is the FCC filing system where stations report on the results of the EAS test.  Form One is filed before the Test to provide the FCC with basic identifying information about the broadcaster and their EAS equipment.  Form One was required to have been filed by all broadcasters by February 28, 2023 (with some limited exemptions for translators and satellite stations).  The FCC has previously issued a reminder about that filing deadline, urging any broadcaster who did not timely file Form One to do so immediately.  This September 15 deadline is for updates that result from station sales, moves, or other changes since Form One was filed. 

Comments are due by September 21, 2023 (with reply comments due by October 6) on the FCC’s Order and Notice of Proposed Rulemaking (“NPRM”) proposing changes to the digital audio broadcasting rules to facilitate greater digital FM radio coverage.  The NPRM tentatively concludes that there is merit to two petitions for rulemaking filed by NAB and other parties (available here and here), asking the FCC to permit increased FM digital effective radiated power beyond the existing levels and to allow a digital FM station to operate with asymmetric power on the digital sidebands (for more details about these petitions, see our article here).  The FCC seeks comment on a number of specific questions including when a station can seek higher digital power without submitting a contour analysis or otherwise seeking Commission prior approval; whether stations planning asymmetrical side bands need to give notice to adjacent channel stations; whether there is a risk of interference to lower powered FM stations, secondary stations (LPFMs and translators), and even broadband operators who suggest possible interference to equipment that they operate on FM channels; and whether any potential interference calls for limits on the proposed rule changes. 

Another action we could quite well see in September is the confirmation of Anna Gomez to fill the long-vacant fifth seat on the FCC.  Her nomination was approved by the Senate Commerce, Science, and Technology Committee in early July (see our note here) but has not yet been confirmed by the full Senate. The nomination is not effective until the full Senate approves it. Press reports indicate that this may well happen in September soon after Congress returns after Labor Day from their August recess.  We wrote here about some of the broadcast issues that a full Commission could consider. 

Looking at other coming attractions in October, October 1 is the “snapshot” date for broadcast ownership.  All licensees of commercial and noncommercial full-power stations, and of low-power TV stations, must file an ownership report by December 1, 2023, reflecting their ownership as of October 1 (see our article here on the FCC’s recent reminder about these reports). These Biennial Ownership Reports are filed every other year, and they are used by the FCC to track the composition of those who own broadcast stations in the US.  These reports not only detail ownership and control of broadcast stations, but also report on the race and gender of station owners, and their other broadcast interests (see our article from 2021 about the importance the FCC attaches to these filings).  The LMS system was designed to track attributable owners through all of their broadcast holdings. Thus, each individual and entity who has an interest in your station needs to obtain its own FCC Registration Number (FRN).  The FRN is used in the reports of all stations in which that individual or entity has any interest.  Additional reports also need to be filed for each entity that has an attributable interest in any licensee.  The process of preparing these reports for entities with interests in an licensee and of obtaining FRNs for all attributable entities and individuals can take time (e.g., you need the social security number for all individuals with interest in commercial licensees and the EIN for all entities – see this article for special rules for certain board members of noncommercial licensees), so you should start  to gather this information early. 

October 2 is the deadline by which radio and television Station Employment Units in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Missouri, N. Mariana Islands, Oregon, Puerto Rico, and Washington with 5 or more full-time employees in their station employment unit must upload their Annual EEO Reports to their online public inspection files (OPIFs) and station websites.  A station employment unit is a station or cluster of commonly controlled stations serving the same general geographic area having at least one common employee.  For employment units with 5 or more full-time employees, the annual report covers hiring and employment outreach activities for the prior year.  

October 10 is the deadline to upload to the online public inspection files of all full-power broadcasters and Class A TV stations Quarterly Issues Program lists for the third quarter of 2023.  The lists should identify the issues of importance to the station’s community and the programs that the station aired in July, August, and September that addressed those issues.  As you finalize your lists, do so carefully and accurately, as they are these lists are only official records of how your station is serving the public and addressing the needs and interests of its community of license.  See our article here for more on the importance of the Quarterly Issues Programs list obligation.

Note that there is one other regulatory deadline that could affect many of these October deadlines.  As we noted in the discussion of regulatory fees, October 1 is the start of the federal government’s fiscal year.  This is also the date by which budgets must be adopted to fund the federal government for the coming year (or “continuing resolutions” adopted to allow government agencies to function at their current levels).  There are many in Washington who are concerned that this may not happen by October 1 and could lead to a government shutdown which could affect many of these October dates.  Watch for more news on this as we approach the October 1 deadline.

 As always, this list of dates is not exhaustive.  Also note that deadlines can change.  Always review these dates with your legal and technical advisors, and note other dates not listed here that may be relevant to your operations. 

Courtesy Broadcast Law Blog

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.

• The FCC’s Order and Notice of Proposed Rulemaking (“NPRM”) proposing changes to the digital audio broadcasting rules to facilitate greater digital FM radio coverage was published in the Federal Register this week, setting the date for comments.  Comment are due by September 21, 2023 with reply comments due by October 6 (FCC Public Notice).  The NPRM tentatively concludes that there is merit to two petitions for rulemaking filed by NAB and other parties (available here and here), asking the FCC to permit increased FM digital effective radiated power beyond the existing levels and to allow a digital FM station to operate with asymmetric power on the digital sidebands (for more details about these petitions, see our article here).  The FCC seeks comment on a number of specific questions including when a station can seek higher digital power without submitting a contour analysis or otherwise seeking Commission prior approval; whether stations planning asymmetrical side bands need to give notice to adjacent channel stations; whether there is a risk of interference to lower powered FM stations, secondary stations (LPFMs and translators), and even broadband operators who suggest possible interference to equipment that they operate on FM channels; and whether any potential interference calls for limits on the proposed rule changes. 
• The FCC’s Audio Division of its Media Bureau proposed a $20,000 fine for unauthorized operations and false certifications in connection with a license application for changes in the facilities of an FM translator.  The translator had been authorized to rebroadcast an LPFM station, but received a construction permit to increase power and change its primary station to rebroadcast an AM station.  As the permit was about to expire, the licensee filed a covering license application certifying that the new facilities had been constructed in accordance with its construction permit.  In fact, the translator continued to rebroadcast the LPFM station for at least 6 months after the grant of the license for the new facilities.  As the translator was not rebroadcasting the station specified in the license application, the Division found its operations to be unauthorized and the certification in the license application that it was operating in accordance with the construction permit to be false, warranting the fine.
  • In another interesting aspect of this decision, the Division rejected claims that the licensee, a nonprofit organization governed by its Board, had undergone an unauthorized transfer of control because its Board members were different from those at the time it received its initial license, with no FCC approval having been sought.  The decision noted the FCC’s policy that gradual changes in a non-profit organization’s governing Board do not constitute a transfer of control.  Thus, as the Board changes in this case were gradual, no FCC approval was required even though the current Board was completely different from that which had initially been approved by the FCC.    
• The FCC’s Video Division issued three forfeiture orders (here, here and here) issuing fines to licensees of TV translators for filing late license renewals.  These decisions reduced the fines of $1500 per station that had been initially issued to these licensees (and were issued to other stations in similar situations in the recent past), to $99 per station, based on showings by the licensee that the higher fines would have caused the licensee substantial financial hardship.  Financial hardship showings must include tax returns or other detailed records showing the revenues of a licensee.  When the proposed fines exceed a percentage of the licensee’s revenue that has in prior cases been found to be excessive (generally, fines in excess of 8% of revenue have been found excessive, while those below 5% are not), the FCC will consider reducing them, as they did in the cases decided this week. 
• In the continuing efforts of television broadcasters to convert their VHF stations to the UHF frequencies seen as more advantageous for digital broadcasting, the FCC asked for public comment on proposals for TV stations in Winnemucca, Nevada and Idaho Falls, Idaho to make such changes.   

With the Labor Day holiday next week, unless the FCC is very active, we will not publish this update next weekend.  If we do not, we will include any actions taken this coming week in our next weekly update on September 10.  In the interim, watch for an announcement of the deadlines for the payment of Annual Regulatory Fees (we expect to cover any announcement on our Broadcast Law Blog).  We recently noted on our blog that the FCC earlier this month released its Report and Order setting the amount of the annual regulatory fees that broadcasters must pay, but the Commission has not yet followed up on that Order by issuing a Public Notice setting the dates for payment, which must be made before the federal government’s October 1 start of the new fiscal year.

Courtesy Broadcast Law Blog