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 Statement, Simington 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 21^st 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

The FCC released a Public Notice last week setting the date for comments on the results of GeoBroadcast Solutions tests of their “zonecasting” system that would allow FM boosters within a primary FM station’s protected contour to originate limited amounts of programming different than that carried on the main station. Comments on the tests are due by June 6, with replies to the comments due by June 21.

The zonecasting proposal has been pitched as a way to allow FM stations to localize their content – making it possible for one FM station to use FM boosters to run different commercials or news inserts in different parts of their service area.  The hope of supporters is that adoption of this proposal would give broadcasters a tool to fight back at the targeting of listeners that can be done by online audio services.  While some stations and groups have seen this as a potential positive, others, including the NAB, have been more critical of the proposal.

Those in support of the idea see it as a way of increasing revenues by geotargeting consumers through different commercials targeted to different neighborhoods in an urban environment, or different communities in a more rural area. But other broadcasters worry about the impact on the economics of smaller stations dependent on local advertising dollars to support their local service.  If a big central-city station can originate unique ads in different outlying parts of its metropolitan area, will these ads impinge on the ability of stations providing service only to these outlying communities to support their locally-targeted programming?  Will big regional stations in more rural areas be able to do the same thing – compete for local dollars in each smaller community in its service area – dollars that currently go to stations that just serve those smaller communities? We wrote more about other issues raised in this proceeding here.

These competing positions have already been staked out in comments filed last year on the rulemaking proposal.  The new comments are merely to address the results of field tests done to look at the interference that would be caused when a primary FM station and its same-frequency boosters are originating different content at the same time.  Again, there are different views.  Supporters of the idea think that interference can be minimized so as to be relatively imperceptible to listeners, while opponents worry that any interference will degrade the FM listening experience.  Parties will no doubt contest the meaning of degrees of interference and what that means to listener’s experiences.

Many FM broadcasters are watching this proceeding carefully to see where the FCC ultimately comes out.  Review the comments – and let the FCC know your position by the newly established comment deadlines.

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.

• Follow field testing by GeoBroadcast Solutions of its zonecasting system, the FCC opened a new comment period for interested parties to weigh in on the test results released by the company. Zonecasting technology allows FM boosters to originate some local programming so an FM broadcaster can provide different commercials or news inserts to different parts of its service area.  Comments and reply comments on the test results are due by June 5 and June 21, respectively.  (Public Notice)
• The FCC announced that more radio applications would soon be migrated from the now-shuttered CDBS application platform to the Licensing and Management System (LMS). Starting May 17, broadcasters must use LMS to file requests for Special Temporary Authority (STA) and extensions of STAs, among other filings.  We wrote about this announcement on our Broadcast Law Blog, here. Review the full Public Notice for additional information and filing procedures.  (Public Notice)
• The FCC released a Notice of Illegal Pirate Radio Broadcasting to four separate property owners warning them that FCC agents, acting on complaints, determined that unauthorized radio broadcast signals were originating from their properties. Under the 2020 PIRATE Act, property owners can be held liable for pirate radio broadcasts, even if they are not involved in the broadcasts themselves.  The property owners could face penalties of up to $2 million if they continue to allow any individual or entity to engage in pirate radio broadcasting from the property that they own or manage (Summerville, Oregon) (Baltimore, Maryland) (Kissimmee, Florida) (Philadelphia, Pennsylvania). We covered these FCC actions in more detail on the Broadcast Law Blog, here.
• The FCC resolved another 13 groups of mutually exclusive applicants from last year’s window for filing for new noncommercial FM stations, selecting the tentative winner in each group based either on a preference for coverage proposed to areas underserved by noncommercial stations or on one applicant’s significantly greater proposed coverage area (Memorandum Opinion and Order). The FCC has yet to process mutually exclusive applications that cannot be resolved based on technical coverage.  These applications will instead be processed based on the “point system” analysis that applies to NCE applications.  See our articles here and here on the point system.
• In remarks to the American Association of People with Disabilities Tech Forum, FCC Chairwoman Jessica Rosenworcel, in highlighting the FCC’s accomplishments in advancing accessibility to various channels of communications, promised to hold additional forums on the accessibility of video programming – including looking at the accessibility of video programming delivered online (Remarks). We wrote about the forum held last year by the FCC to consider these issues and the jurisdictional questions raised about the FCC’s review of the activities of online platforms, here.
• A Petition for Rulemaking was filed by Fuse LLC, backed by Common Cause, National Hispanic Media Coalition, Public Knowledge, and United Church of Christ Media Justice Ministry, asking the FCC to establish an annual program diversity reporting requirement for broadcast, cable and satellite television providers and their affiliated online platforms. Fuse asks that this annual report detail the diversity of the vendors of content to these video providers – including reporting on the diversity of their full-time employees and of the leadership of networks and studios.  (Petition for Rulemaking).  This is merely an initial proposal for the FCC’s consideration.  Several rounds of public comment would be required if the FCC decides to further consider this proposal.
• In response to the suggestion of a public interest group that the FCC block the takeover of Twitter by Elon Musk, both Republican Commissioners released statements questioning the authority of the FCC to review this merger. (Carr Statement, Simington Comments)

Broadcasters may also be interested in our summary of regulatory dates and deadlines for May and early June, which we published this week on our Broadcast Law Blog.

Courtesy Broadcast Law Blog

The FCC yesterday made public four letters to landowners warning them that there were unlicensed FM radio operations coming from their properties and warning that, if the transmissions continued past the 10-business day response period, the landowners could be held liable for penalties up to $2,000,000 for the unlicensed operations coming from their properties.  The letters were sent to landowners in Summerville, Oregon; Baltimore, Maryland; Kissimmee, Florida; and Philadelphia, Pennsylvania.

These actions follow the 2020 enactment of the federal PIRATE Act which increased potential fines on operators of unlicensed radio stations to up to $100,000 per day, and up to $2,000,000 in the aggregate.  The act authorized fines not only on pirate radio operators themselves, but also on anyone who “knowingly does or causes or suffers to be done any pirate radio broadcasting,” which seemingly authorizes the types of fines threatened in yesterday’s notices directed to the landowners where pirate radio stations operate.  As operators may be hard to identify, the ability to seek penalties against landlords, who are readily identifiable from local land records, gives the FCC a much stronger tool with which to combat pirate radio operators.  We last wrote about FCC actions against pirate radio in connection with settlements with operators in mid-2020, so these actions may signal that the FCC is again looking to enforce the prohibitions against unlicensed operations.

Courtesy Broadcast Law Blog

The FCC this week released a Public Notice (that we mentioned in our update on regulatory dates for May) announcing that, on May 17, many new applications and other filings will be migrating to the FCC’s newer LMS filing platform.  These include many of the documents that had been until recently filed in the FCC’s old CDBS platform.  These applications had, since CDBS was closed for new filings, been submitted through emails to the FCC (see our articles here and here).

Most notably, the new LMS filings will include requests for Special Temporary Authority – and future requests for extensions of STAs.  The FCC notes that for STAs that had originally been filed in CDBS, rather than filing an extension request for such STAs, applicants should initially file for a new STA in LMS and indicate in an exhibit that the request is for an extension of an existing STA that was filed in CDBS (or by email in the interim processing period).  The full list of applications that will, as of May 17, be filed in LMS is as follows:

• FM Engineering Special Temporary Authorizations (STAs)
• Request for Silent STA
• Extension of STA – Silent
• Extension of STA – Engineering
• Suspension of Operations Notification
• Resumption of Operations
• AM/FM Digital Notification
• Modulation Dependent Carrier Level (MDCL) Notification
• Change of Primary Station Notification
• Tolling Notification
• Reduced Power Notification
• Withdraw Pending Applications

The Public Notice also provides instructions on filing extensions, tolling requests and requests to withdraw pending applications – where the new LMS filings need to begin by accessing the submitted application in LMS that is being affected by one of these actions (e.g., an applicant requesting tolling of an FM construction permit will first need to find the submitted construction permit application in LMS and then will be given the option to request tolling of that permit).  Other details of the filing process are noted in the Public Notice, so be sure to review it before filing any of these applications after the May 17 effective date.

This continues the migration of broadcast applications to LMS.  With these changes, most broadcast applications will have moved to the new system with the principal exception of technical applications dealing with AM stations, which still must be emailed to FCC staff.  Be alert for these new filing requirements and watch as the FCC makes further changes to its filing procedures in the future.

Courtesy Broadcast Law Blog

May is one of the few months on the calendar where there are not routine FCC regulatory deadlines.  Yet there are still a number of important dates and deadlines this month (and early next) that broadcasters should note.  Some of those dates and deadlines are below.

On March 17, the migration of applications and forms from the FCC’s legacy filing portal CDBS to its newer portal LMS will continue. The FCC has announced the transition of many of the forms that had been filed in CDBS, but are now filed by email, to LMS.  Perhaps most significantly, this includes filings for Special Temporary Authority (and extensions to such authority and notices of the resumption of authorized operations.  See the FCC’s Public Notice on the transition for a complete list of the transitioning forms, notes on the procedures to be used for extensions of applications previously filed in CDBS, and other details.

Throughout May, broadcasters in several states should be aware of the opening of political windows tied to June and early July primary elections.  As a refresher, in the forty-five days before a primary election, broadcasters must extend to legally qualified candidates their lowest unit rate and continue to follow all other applicable political broadcasting rules.  So the lowest unit rate period will be in effect at some point this month for stations serving states that have primary elections in June and early July (and is already open for states with May primaries).  For a deeper dive on how to prepare for the political primary election season, see our post, here, which also includes a link to our comprehensive Political Broadcasting Guide.  Take a look at our 2022 Broadcasters’ Calendar to see if your state has an upcoming primary election (though confirm these dates locally as some dates have changed since the calendar was prepared – for instance, just this week, a court ordered the congressional primaries in New York state be postponed from June until August).

Radio and TV stations that received letters telling them that they have been randomly selected for an audit of their EEO performance have through May 5 to post their audit responses to their online public file.  As explained in the audit letter (available here), station employment units (a station or stations that share at least one full-time employee, are in the same geographic area, and are under common control) with five or more full-time employees must provide their last two EEO annual public file reports and supporting data that details their compliance with the EEO rules, including documentation of employment outreach efforts to fill full-time openings and information on the non-vacancy specific outreach initiatives they did, like attending job fairs, hosting interns, educating the community about broadcast employment, and training employees to assume more responsibility at their stations.  Outreach initiatives must be conducted even if the employment unit had no employment vacancies.  If you are required to respond to the audit, make sure you have organized your materials and posted your response by May 5.  We took a deeper look on the Blog at the audits and EEO compliance, here.

May 6 at 6 p.m. Eastern is the deadline for entities that filed short-form applications in Auction 112 to submit their upfront payments to the FCC and, if necessary, to correct any problems with their applications.  Fourteen applications were filed for the 27 available full-power TV construction permits, with seven applications deemed complete.  Six applications were incomplete and must be corrected by 6 p.m. Eastern on May 6.  One application was rejected for indicating that the station would be used as a noncommercial educational and, because it was mutually exclusive with an application for a commercial station, the application violates FCC rules.  For more information on the auction, see the Public Notice, here, and the lists of accepted, deficient, and rejected applications, here.  Bidding will begin on June 7.

At its May 22 Open Meeting, the FCC will vote on updating its rules to allow FM and LPFM license applicants to submit FM antenna directional pattern verification by computer modeling.  Under the current rules, the “measured relative field pattern” must be shown by building a full-size mockup of the antenna and supporting structures or by building a scale model of the antenna and structures on a test range or in an anechoic chamber.  Read the draft Order, here, and tune in on May 22 to watch the vote.

While not directly a broadcast matter, broadcasters may be interested in watching developments that will follow an oral argument on May 9 when a Texas federal appeals court will consider a Texas state law that prohibits social media platforms from censoring users based on the user’s viewpoint and requires the platforms to publish an acceptable use policy and remove content that violates the policy.  The law gives the Texas Attorney General or an individual user the right to bring a legal action against a platform.  Tech trade associations NetChoice and CCIA, representing social media companies, have claimed the law violates the US Constitution and various federal laws.  Though the law would only be applicable in Texas, if it survives the court challenge, other states could look to pass similar laws.  This decision (and decisions already under consideration in states like Florida) could have broader implications on a state’s rights to pass laws trying to guarantee access to media platforms, and even a limited decision could affect broadcast stations active on platforms like Twitter, Facebook, and Instagram.

Looking ahead to early June, license renewal applications for TV stations in Arizona, Idaho, Nevada, New Mexico, Utah, and Wyoming are due by June 1.  Stations should be reviewing their operations and online public files over the next few weeks to ensure that they are complying with all applicable FCC rules and regulations and that their online public files are complete and all documents were uploaded on time.  Renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for TV translators).  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 (TV) and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.

Also, on or before June 1, all radio and TV station employment units 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.

Talk with your station’s legal and technical advisors and make sure to stay on top of the dates and deadlines applicable to your operations.  And watch our Broadcast Law Blog for other dates that may arise in the coming month – including upcoming but thus far unannounced deadlines for comments on the testing of GeoBroadcast Solution’s zonecasting system for originating limited amounts of programming on FM boosters (see our reference to those dates in our weekly update, 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.

• FEMA officials announced at the NAB Show that there will be no national EAS test in 2022. FEMA is planning for the next test to occur in the early part of 2023.
• The FCC released a draft Order that, if adopted, would allow FM and LPFM broadcasters using directional antennas to use computer modeling to verify the antennas’ directional patterns. The current requirement is that an FM or LPFM directional antenna’s performance measured relative field pattern must be verified using either a full-scale mockup or a scale model on a test range or in an anechoic chamber.  The proposed rule change would bring the FM rules in line with those for AM and DTV directional antennas.  Watch for a vote on this item at the FCC’s May 22 Open Meeting.  (Draft Order)
• The chief of the Media Bureau’s Audio Division, Al Shuldiner, told NAB Show attendees that the migration of applications and forms from the FCC’s legacy filing portal CDBS to its current portal LMS will continue next month. LMS users should watch for a Public Notice in mid-May.  This will include moving STA requests, now submitted by email, to LMS.  In the same session, Video Division chief Barbara Kreisman encouraged licensees and their attorneys to ensure that their LMS contact information is correct so that the FCC can contact the proper person when necessary, particularly to resolve issues with pending renewal applications.  Media Bureau Chief Holly Sauer urged broadcasters to respond to FCC inquiries about Biennial Ownership Reports, as the FCC staff has been reviewing the reports filed at the end of last year and identifying corrections that are necessary, and it wants to complete that review shortly.  She also indicated that the FCC would be bringing back the FCC Form 395, annually reporting the breakdown by race and gender of each station’s employees.  That form has not been used for the last two decades.  We wrote about the proposal for the return of that form, and the issues the FCC is considering, in an article on our Broadcast Law Blog, here.
• The FCC announced the status of the fourteen applications submitted in Auction 112, the June auction of construction permits for 27 new full-power TV stations. Seven applications are complete, and those applicants can move forward and submit their upfront payments.  Six applications are incomplete and need to be amended, and one application was rejected because it proposed a noncommercial educational station and the auction rules do not allow for the inclusion of noncommercial applications in a commercial auction where there are commercial applicants for the same channel.  To continue in the auction, those with incomplete applications must submit amendments, and all participating parties must make upfront payments, both to be submitted by 6 p.m. Eastern on May 6.  Bidding will begin on June 7.  See the Public Notice for more details.  (Complete Applications) (Incomplete Applications) (Rejected Application)

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 released a Public Notice announcing that it is soliciting public comment on the recent tests of GeoBroadcast Solution’s zonecasting system, which proposes to allow FM boosters to originate some local programming so an FM broadcaster can provide different commercials or news inserts to different parts of its service area. Comment dates will be announced after this notice is published in the Federal Register (Public Notice). One party, NABAB (National Association of Black Owned Broadcasters), wasted no time, meeting with FCC staff to support the deployment of the zonecasting system, arguing that it would give smaller stations a new tool with which to compete in their markets (NABOB ex parte). This position is contrary to that taken by the NAB, which we noted last week.
• Another presentation on a controversial issue was made to FCC decision-makers last week when the organizations representing the affiliates of the four major television networks asked that the FCC adopt rules to treat for purposes of the retransmission consent rules virtual cable systems delivering multichannel video programming through online platforms like cable and satellite television providers. The affiliates suggested that this would be so that local TV stations can guide retransmission consent negotiations (Affiliates ex parte).  When the FCC 7 years ago last asked for comments on treating online linear video programming providers as MVPDs for purposes of the FCC rules, it noted many issues raised by the proposal, issues we summarized here.
• The FCC Commissioners this week upheld a Media Bureau decision to grant an application for a new FM translator near San Diego, California after an opposing party filed for review and dismissal of the application. The application was granted after the applicant had been given an opportunity to amend its application to resolve a perceived interference issue.  The FCC determined that applicants in translator windows should be able to amend their applications to non-adjacent channels to resolve interference issues, as long as the applicant specified a new channel that was open in the area that the applicant planned to serve. The FCC also determined that, in allowing such an amendment, the alternative channel must not only have no current stations operating on it, but there cannot be any dismissed applications for new stations on that channel if an appeal of the dismissal is still pending, as resolution of such an appeal could result in the amended translator application having no viable channel. (Order)
• The FCC resolved another group of mutually exclusive applications filed in last year’s window for new reserved-band noncommercial stations. One of the applicants, Southern California Tribal Chairmen’s Association (“SCTCA”) proposed to serve Tribal lands and was tentatively selected to receive the construction permit as the FCC gives a preference to a federally recognized Native American Tribe or Alaska Native Village proposing to serve Tribal land.  In selecting SCTCA, the FCC waived the requirement that, to qualify for the preference, at least 50% of the proposed 60 dBµ contour be comprised of the applicant’s Tribal Lands and that at least 50% of the population covered must be members of the tribes.  Because the tribal areas were so diffuse, and the population of the area so great, the FCC waived the rule on population coverage to allow the numerous small Southern California reservations to receive this tribal service.  (Order)
• Following last month’s filing of applications that would transfer control of dozens of TEGNA stations to Standard General, the FCC set the pleading cycle deadlines. Interested parties must file comments by May 23, 2022.  Oppositions to those comments are due by June 7, 2022.  Replies to those oppositions are due by June 17, 2022.  (Public Notice)
• On our Broadcast Law Blog, we provided more context on the FCC’s recent decision determining that a purported write-in candidate for a US Congressional seat was not entitled to reasonable access to buy advertising time for his campaign on a local radio station as the candidate had not made a “substantial showing” of his candidacy entitling his to be treated as a “legally qualified candidate.” (Blog Article)

Courtesy Broadcast Law Blog

Last week, much was made of an FCC Media Bureau decision rejecting the “reasonable access” claim of a write-in candidate for a Congressional seat in Ohio against radio stations which, after initially running his spots, decided to pull those spots because he had not made a “substantial showing” of his candidacy.  Candidates for federal office (the US House of Representatives, the US Senate and for President) are entitled to buy reasonable amounts of commercial time on all broadcast stations, once those candidates are “legally qualified.”  In other words, commercial broadcast stations cannot refuse to run any ads for candidates for any federal elective office.  We wrote more about reasonable access here, including the considerations about how much time is “reasonable.”

In most cases, the question of whether a candidate is legally qualified for FCC purposes is a relatively simple one.  A station looks to see if that candidate has filed the required paperwork and qualified for a place on the election ballot in the district in which they are seeking office.  The case decided last week was one of the hard cases, where the candidate did not qualify for a place on the ballot but argued that he was a write-in candidate for the congressional seat.  The FCC has recognized that write-in candidates can be legally qualified so as to be guaranteed reasonable access and other protections afforded to candidates under FCC rules, including the right to not have their commercial messages censored by the station (see our posts here and here on the no censorship rule) – but they must make a substantial showing that their candidacy is legitimate.  The FCC has recognized that it would put broadcasters in an untenable position if anyone could, on a whim, declare that they are a write-in candidate and therefore be entitled to buy uncensored advertising time (at lowest unit rates in the 45 days before a primary or the 60 days before a general election – see our post here on lowest unit rates) on any commercial broadcast station that they wanted to.  So the FCC requires this substantial showing – and the adequacy of that showing was the issue in last week’s decision, and has been a question that other write-ins have faced in other elections in the past.

The FCC has a list of criteria that they look at to determine if a candidate has made this substantial showing, criteria just recently updated by the FCC to include more digital and social media activities (see our post here on the recent update).  The criteria include:

• making campaign speeches,
• distributing campaign literature,
• issuing press releases,
• maintaining a campaign committee,
• establishing campaign headquarters (even though the headquarters in some instances might be the residence of the candidate or his or her campaign manager),
• creating a campaign website, and
• using social media for the purpose of promoting or furthering a campaign for public office.

Not every one of these boxes needs to be checked – and even showing that one of these criteria was met in some way is not necessarily sufficient if the cited activity was not serious in nature.  For instance, in the case decided last week, the candidate had not demonstrated that he made any campaign speeches or appearances in the district in which he was purportedly running.  The Media Bureau concluded that doing normal daily activities, such as shopping or attending religious services or visiting friends in the district were not in and of themselves campaign activities. The Media Bureau also concluded that the candidate had not distributed campaign literature in the district (handing out a few business cards and a few brochures from a previous campaign was not enough), and had really done very little concrete activities showing that he was trying in a substantial way to reach voters in the congressional district.  While the candidate argued that his advertising on the radio represented a substantial way to reach voters in the district, the Media Bureau indicated that the other activities listed above must come first before a radio station is required to sell the candidate time.  The decision is worth reviewing to see the FCC staff’s analysis of the various facts in the case leading to a finding that the station was justified in determining that the candidate’s showing was not substantial.

One fact omitted in most of the reports on this decision is that it related to the 2020 election – not to the current campaign.  This decision was one that sought to punish the radio station for denying the purported candidate access, not one that would have given him access for a pending race.  The candidate appears to have learned from his experience, and in 2022 it appears that he has qualified for a place on the ballot, rendering this analysis of a substantial showing unnecessary.  What he will do with any advertising time that he buys is a subject for another post…

Courtesy Broadcast Law Blog