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.

• At its September 29 regular monthly open meeting, the FCC adopted a Notice of Proposed Rulemaking (NPRM) proposing to update the FCC’s technical rules for full power TV and Class A TV stations. The FCC determined that a review and update of these rules is necessary due to the digital transition, the incentive auction repack, current technology, and changes in Commission practices.  The NPRM seeks comment on, among other things, whether to eliminate rules that relate to analog operating requirements, and to similarly eliminate language in rules to remove references to digital television or DTV service (as all TV service is now digital); whether to delete outdated rules that are no longer valid given changes in other Commission-adopted policy, such as the elimination of references to the comparative hearing process to award and renew broadcast licenses which was eliminated by Congressional and FCC action over 25 years ago; and whether to make other updates to the Commission’s rules.  Comments and reply comments will be due 60 days and 75 days, respectively, after the NPRM is published in the Federal Register.
• Also at its September 29 open meeting, the FCC adopted a Report and Order updating its Emergency Alert System, aiming to make alerts delivered over television and radio more informative and easier to understand by the public, particularly people with disabilities. The updated rules require broadcasters, cable systems, and other Emergency Alert System participants to transmit the Internet-based version of alerts when available, rather than transmitting the legacy version of alerts which often contain less information or information of lower quality.  The updated rules will also replace the technical jargon that accompanies certain alerts, including test messages, with plain language terms so that the visual and audio messages are clearer to the public.  The new rules will go into effect 30 days after the Report and Order is published in the Federal Register and provide a transition period for EAS participants to implement some of the required technical changes.
• The FCC announced a virtual event, the “Video Programming Accessibility Forum – Emergency Information,” to be held on October 6, 2022, from 1:00 pm to 3:00 pm ET.  The forum will focus on accessibility issues surrounding emergency information in video programming, as well as advancements that may occur in the future.  The Forum will include two panels that will feature speakers representing television companies and consumer groups.  The agenda for the Forum is available here.
• The Media Bureau issued a Memorandum Opinion and Order granting the request of an Iowa television station to determine that a Minneapolis television station was no longer “significantly viewed” in a television market that included counties in southern Minnesota and northern Iowa.  This order provided a good example of the issues that must be addressed in any petition to change the designation of a station as being significantly viewed.  That designation can be important as significantly viewed stations are not subject to the network nonduplication and syndicated exclusivity rules, meaning that cable systems in a market carrying the significantly viewed station might be duplicating the programming that is also carried by an in-market station.

Our Broadcast Law Blog last week published its monthly look ahead at the regulatory dates of importance to broadcasters coming up in October.  Also on the Blog, we published an article highlighting some of the state regulations that govern political advertising on digital and online platforms and another article looking in more detail at the significant proposed fines issued in the previous week to TV stations for running prohibited “program length commercials” in programming directed to children 12 and under.

Courtesy Broadcast Law Blog

With regulatory fees due today, September 30, 2022 (extended from September 28 because of the effects of Hurricane Ian and some other technical issues with fee payment by this FCC Public Notice, with the date for waiver requests similarly extended by this Public Notice), it is time to look ahead to October and some of the regulatory dates and deadlines that broadcasters have coming in the month ahead.

October starts with the TV license renewal deadlines for Television, Class A, LPTV, and TV Translator Stations in Alaska, American Samoa, Guam, Hawaii, N. Marianas Islands, Oregon and Washington State.  The deadline for filing is October 3 as the 1^st of the month falls on a Saturday, thus extending the deadline to the next business day.  As we have previously advised,  renewal applications must be accompanied by FCC Form 2100, Schedule 396 Broadcast EEO Program Report (except for LPFMs and TV translators).  Stations filing for renewal of their license should make sure that all documents required to be uploaded to the station’s online public file are complete and were uploaded on time.  Note that your Broadcast EEO Program Report must include two years of Annual EEO Public File Reports for FCC review, unless your employment unit employs fewer than five full-time employees.  Be sure to read the instructions for the license renewal application and consult with your advisors if you have questions, especially if you have noticed any discrepancies in your online public file or political file.  Issues with the public file have already led to fines imposed on TV broadcasters during this renewal cycle.

October 3 (also extended as the 1^st is a weekend day) is also the deadline by which radio and television station employment units with five or more full-time employees licensed to communities in Alaska, American Samoa, Florida, Guam, Hawaii, Iowa, Missouri, N. Mariana Islands, Oregon, Puerto Rico, and Washington must upload Annual EEO Public File Reports to station online public inspection files.  This annual report covers hiring and employment outreach activities for the prior year.  A link to the uploaded report must also be included on the home page of a station’s website, if it has a website.

For those stations that are subject to the FCC’s EEO Audit Notice released in August, they have until October 7 to respond to that notice by uploading the required information into their online public inspection file.  For more on that audit notice, see our article here.

Because of the federal holiday on October 10, October 11 is the deadline for all full-power broadcast and Class A TV stations to upload their Quarterly Issues Programs lists to station online public inspection files.  The lists should identify the issues of importance to the station’s community and the programs that the station aired in July, August and September that addressed those issues.  As you finalize your lists, do so carefully and accurately, as they are the only official records of how your station is serving the public and addressing the needs and interests of its community.  See our post here for more on the importance of the Quarterly Issues Programs list obligation.  Also, as we noted here, the FCC has given stations in Puerto Rico an extension until November 14 to upload their Quarterly Issues Programs lists because of the effect of Hurricane Fiona.  Watch to see if the FCC gives stations in states affected by Hurricane Ian a similar extension.

Other quarterly public file obligations for that October 11^th date include the dates by which Class A TV stations should upload to their public file documentation of Class A Television Continuing Eligibility for July 1, 2022 through September 30, 2022 and the date by which noncommercial educational broadcast stations provide documentation of any on-air fundraising they conducted that interrupted normal programming to benefit third parties in the period from July 1 through September 30.  See our articles here and here about that obligation.

With election season now in full swing, stations should remember their obligations to give all candidates – federal, state, and local – lowest unit rates when they buy advertising for their campaigns (see our articles here and here).  Similarly, stations need to remember to be uploading to their public file information about the price, schedule and class of time purchased by any candidate or any federal issue advertiser to their online public file within one business day of the date on which the order for that time was received.  For more on political file issues, see this article with a link to a video of a training session that I conducted explaining all of these political file requirements.

October also brings the date for comments in certain FCC rulemaking proceedings.   Comments are due October 26, with reply comments due November 25, 2022 on the FCC’s request for comment on the methodology that it uses to allocate its employees to determine annual regulatory fees. This proceeding is important, as the allocation of FCC employees determines the regulatory fees paid by each industry regulated by the FCC.  The fees are established to reimburse the government for the costs of FCC operations, allocated by the percentage of FCC employees whose time is spent regulating a particular industry.  The proceeding raises issues as to how FCC’s employees who perform functions that are not industry specific should be allocated to specific fee payers, including broadcasters.

Comments are due on October 24, and reply comments are due November 7, 2022, on the FCC’s Order and Sixth Notice of Proposed Rulemaking (on which we previously reported) to delete or revise analog rules for LPTV and television translator stations that no longer have any practical effect or that are otherwise obsolete or irrelevant after the transition of these stations to digital operation.

Under the John S. McCain National Defense Authorization Act for Fiscal Year 2019, United States-based foreign media outlets providing video programming must submit by October 12 their next semi-annual report disclosing their relationships with their foreign principals, including a description of the legal structure of such relationships and any funding the outlets receive from their foreign principals.  See the reminder issued by the Media Bureau for more information as to who is covered by this requirement and the specific means to be used by such outlets to provide these reports.

The Federal Trade Commission has an ongoing proceeding seeking additional public comment on how children are affected by digital advertising and marketing messages that may blur the line between ads and entertainment (see their announcement about the proceeding). The FTC has an October 19, 2022 virtual event that will examine this topic. The public will have until November 18, 2022 to submit comments. Information on how to submit comments is available on the event page.

As always, this list of dates is not exhaustive and comment 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.  While the year may be winding down, regulatory obligations never stop, so remember to be alert to the ones that may affect your operations.

Courtesy Broadcast Law Blog

In a recent state court decision, a King County judge in Washington State concluded that Facebook violated state political disclosure rules by not publicly providing information about the sale of political ads relating to state elections and ballot issues, as required by state law.  While there does not yet appear to be a written decision in the case, according to trade press the judge’s ruling rejected motions by Facebook parent Meta to have the law declared unconstitutional and to have penalties asserted by the State attorney general thrown out (see attorney general’s statement here).  We have written much on this blog about FCC regulations relating to political advertising and have noted how those rules do not apply to online platforms.  This case is but one example of how state laws are filling in some of the gaps in the regulation of political advertising.

As we wrote several years ago, the Federal Election Commission has only general rules requiring that paid online political advertising for federal offices have some identification of the sponsors of the advertising.  The FEC in 2018 started a rulemaking proceeding to determine if the “stand by your ad” certifications required in most federal broadcast and cable candidate advertising (the requirement which obligates the federal candidate to say “I’m X and I approved this message”) should carry over into the online world.  That proceeding has never been resolved – likely held up both because of the difficulty of resolving sensitive political issues at the FEC, and because of the inherent difficulty of adopting one-size-fits-all disclosure obligations for online media, where ads can range from TV-style videos to short tweets and textual messages to images displayed in virtual reality worlds.  Carrying over broadcast-style regulation to these diverse platforms is a tricky fit.

But many states have jumped into the fray, with Washington State having the most robust and detailed disclosure and recordkeeping rules. These rules require platforms running state and local political ads to retain information about the ads, for longer periods of time than what is required for broadcast and cable entities under FCC rules.  Without going into every aspect of the Washington State rules, the obligations include the requirement for all platforms that distribute state and local political messages (including broadcasters, print, billboards and online companies) to make information about the buyers of political advertising available to the public on demand, and to keep those records for 5 years from the date of the election. (FCC rules, in contrast, require that public file documents be maintained only for two years from the date that the document was created).  Washington State also requires the public disclosure of a copies of each ad and a description of any other work provided by the seller of the advertising (e.g., did they film or edit the ad, did they help write the copy, did they distribute it to other media outlets, etc.) — obligations not imposed by FCC rules.  The name and address of the sponsor, and the name of the candidate or the issue addressed, also must be disclosed, along with the price paid by the ad sponsor and when and how it was paid (e.g., cash, check, wire, trade, etc.), and the dates that the ads were presented to the public.  FCC rules require broadcasters and cable entities to disclose the sponsor, the price paid (but not how the payment was made), and the ad schedule for all candidate ads and for ads on federal issues (see our articles here and here on federal issue advertising disclosure obligations).

Washington State also requires additional disclosures by online companies. The rules require a description of the demographics targeted by the political ads, and the total number of impressions generated by these ads.

While Washington State might currently has the most detailed rules for political disclosure, it is not the only state that has rules that govern political advertising beyond the broadcast world, including online advertising.  California, for example, has extensive disclosure obligations for paid social media advertising, but it regulates online video political advertising that resemble television ads with rules that are similar to TV ad rules — just requiring a sponsorship identification disclosure in the ad.  In our article about the FEC rules, we wrote about New York State’s laws that require disclosure of information about political advertising sponsors – but in most cases that disclosure is to a state commission, and media selling the advertising need only verify that the advertiser has registered.  Issue advertisers in Massachusetts have similar obligations to make disclosures to a state commission, and to provide the URL in their ads for the state database of information about political ad sponsors.  Other states, including Nevada and New Jersey, have rules requiring that the media outlet make disclosures about certain political advertising information to the public on request.  Other states have recordkeeping or public disclosure obligations for media companies in more limited circumstances.

Sponsorship identification is also an area in which states have become active.  We have written from time to time about federal efforts to impose obligations on political advertisers to disclose who is funding those ads, either through regulatory complaints (see for instance our article here) or through legislation (see our articles here and here), but for the most part these efforts have not been successful.  In many states, issue advertisers do have to disclose not only the ad sponsor, but also the two or three largest contributors to the sponsor, in some cases requiring the disclosure of who contributed to those contributors, when the ad sponsor is a company and not an individual.

This complex web of conflicting state obligations imposes real difficulties on national media platforms, particularly online platforms which can be accessed across the country and can have advertising placed on those platforms to target an audience in various states.  We wrote about our concerns with programmatic ad platforms and the ability to police many legal issues – including these political obligations.  While some online platforms have developed systems to gather this information, these systems are only as good as the information provided by those using the systems.  Where users of a programmatic system don’t provide the required information, the data that the platform has may not meet the requirements under these various and complex state laws.

Facebook raised these concerns about the difficulty of complying with myriad regulatory structures in their motion for summary judgment in the Washington State proceeding.  Facebook also pointed to the Fourth Circuit Court of Appeals’ decision from 2019 throwing out Maryland’s political disclosure rules, which were similar in scope to those in Washington.  The Fourth Circuit’s decision, about which we wrote here, rejected as unconstitutional Maryland’s requirements that media outlets reveal this information about their ad buyers, concluding that the requirements violated the media companies’ First Amendment rights, when a less restrictive means of informing the public about the identity of political speakers was available by requiring the political actors to themselves reveal the information (perhaps like the requirements under New York and Massachusetts laws).  Facebook’s arguments have been rejected by the Washington State court, at least for now, and a trial is scheduled to begin on November 14, 2022.

With these detailed and conflicting obligations imposed on media companies and political advertisers by the various states, the difficulty of compliance is obvious.  We will be watching as challenges to these rules play out, particularly if there are enforcement actions against media companies brought in other states under their state laws.  In the interim, we are monitoring these rules to help our clients keep abreast of their obligations, and all media companies providing political advertising services should be monitoring these developments closely.

Courtesy Broadcast Law Blog

We kicked off our summary of last week’s regulatory actions for broadcasters with the news of several millions of dollars in fines imposed on over 100 television stations for apparent “program-length commercials” in children’s programming.  Last week’s Notice of Apparent Liability, a unanimous decision by all four FCC Commissioners, stemmed from a Hot Wheels Super Ultimate Garage ad that was aired a total of 11 times during a Team Hot Wheels TV program which ran 8 times during November and December of 2018.  The same programming was provided by Sinclair Broadcast Group to both commonly owned stations and stations owned by other companies.  Two years ago, the same program was the subject of a $20,000 fine on a station in Baltimore, apparently when the issue was first discovered and reported to the FCC (see our article about that fine here).  Given the number of stations on which the proposed fines were imposed last week, and the number of issues discussed in the Notice, we thought that we should give the Notice a more extensive look.

First, it is worth discussing the FCC’s concerns with what they term “program-length commercials.”  The Commission has, for almost 30 years, had a policy against “program-length commercials” – programs that feature characters who are also featured in a commercial that runs during the program.  The FCC has been concerned that children may not perceive the difference between a program and a commercial that runs in that program if both feature the same characters.  The entire program can be perceived as a commercial for the product.  If the whole program is perceived as promoting the product, then the program would exceed the commercial limits in children’s programming as set by Congress and incorporated in Section 73.670 of the rules – 10.5 minutes per hour on weekends and 12 minutes per hour on weekdays.

A decade ago, program-length commercials were a significant issue and the subject of many FCC fines.  On one day in 2010, the FCC issued seven Notices of Apparent Liability, seeking fines of as much as $70,000 for these violations (see our article here).  Even before that, we noted how stations can inadvertently find themselves in these situations when featured characters unexpectedly pop up in commercials for products other than those that are directly for products featuring those characters.  So, where a cartoon character appears on an ad for a video game, that can make the entire program a commercial – even though the broadcaster may not have realized until after the fact that the character would be featured in the video game commercial.  These cases emphasize the care that TV broadcasters need to exert to ensure that nothing is aired that could make a program into a program-length commercial.

The Commission considers these program-length commercials to be more serious than a simple overage above the limits for commercial matter in children’s programs, as the commercial featuring a character from the show makes the whole program, in the Commission’s eyes, into one big commercial.  That means that the program is considered a 30-minute commercial, thus far exceeding the limits imposed by the rule.  Because of the FCC’s perception that these are serious matters and because they persisted over multiple airings of the program over more than a month, the base fine of $8,000 that would apply to a simple overage above the commercial limits was significantly increased in last week’s decision.  The failure of the stations to catch the violations was, in the FCC’s view, evidence that the stations did not have an effective compliance plan in place.  Thus, single-station owners were fined $20,000 each for the violation.

Nexstar Broadcasting’s stations were fined $26,000 per station for the same reasons, with the fines increased even higher because, according to the Notice, Nexstar is “a large, publicly traded company with significant revenue comparable to that of Sinclair. As we have previously noted and ‘as Congress has stated, for a forfeiture to be an effective deterrent . . . [it] must be issued at a high level . . . to guarantee that forfeitures issued against large or highly profitable entities are not considered merely an affordable cost of doing business.’”

Sinclair’s per-station fines were even higher, $32,000 for each station that had aired the program all 8 times.  The per-station “upward adjustment” was justified for the same reason as the adjustments for Nexstar, plus a further upward adjustment to due to Sinclair’s prior history of FCC penalties and admonitions for the same type of violation over the last 17 years.  In light of these past violations, the FCC saw the failure to catch the problem as even more significant.  The fines imposed on Sinclair totaled $2,652,000.

There were several other issues worth noting in the Notice issued last week.  The FCC rejected arguments from the non-Sinclair stations that they should have lessened responsibility because the commercials came embedded in the programming delivered to them by Sinclair – the stations had no control over their insertion.  The Commission rejected that argument, finding that each station has the responsibility to ensure that the programming it broadcasts meets FCC rules.

On a few of the stations, the programming ran on a digital subchannel rather than on the station’s main channel.  The FCC noted that in 2004 it made clear that digital multicast streams (free or paid) were subject to the same children’s television rules as the main program stream, and thus the violations counted just as much as if they had been on a primary stream.

The Commission also said that, in computing the proposed fines, the base fine was adjusted upward based on the factors described above.  The decision suggests that the Commission could have imposed the base fine for each time the program aired on each station with the related commercial but, based on past precedent, it decided not to do so.  However, the decision contained a warning to:

broadcast television licensees, satellite providers, and cable operators that the Commission may revise our approach to forfeiture calculations under the Children’s Television Act in future cases. Assessing forfeitures on a per-violation basis is supported by the language of the statute as well as the text of our rules setting forth base forfeiture amounts, and that approach also would reflect the fact that the regulations are of long standing and so should be well understood by television broadcasters, satellite providers, and cable operators.

Broadcasters – take note – you have been warned!

Finally, the FCC noted that, while most of the stations covered by the Notice had reported the overages in their license renewal applications, some television stations had not done so and had instead certified that they were in compliance with the commercial limits on children’s television programming.  As to these stations, the FCC stated: “We will address any licensee non-compliance with our renewal reporting and certification requirements separately when reviewing the renewal application.”  So these stations may face further scrutiny based on these program-length commercials.

The Notice should serve as a clear warning to television broadcasters that the commercial limits in programming directed to children 12 and under must be carefully observed, and that stations need to be monitoring all programming that they broadcast to ensure that it meets these limits.  The fines can be large, and the Notice warns that they may be even larger in the future, so be vigilant in FCC compliance in children’s programming.

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 issued a Notice of Apparent Liability proposing to fine licensees of over 100 television stations for exceeding the limits on commercialization in programming directed to children of ages 12 or under.  The FCC found that these stations aired “program length commercials” by running ads for Hot Wheels toys during a Hot Wheels program, which under FCC precedent makes the entire program into a commercial. Fines ranged from $20,000 for single station licensees up to $2,652,000 to Sinclair Broadcasting for running these commercials on 83 stations.  The licensees have 30 days to pay the proposed fines or to file a written statement either disputing the fine or seeking a reduction in the proposed amount.
• The FCC issued an Order that denied a request for review of a Media Bureau decision rejecting an objection to the grant of a construction permit for a new FM translator to rebroadcast an AM station.  The objection argued that the FCC’s windows that authorized new FM translators for AM stations violated the Local Community Radio Act of 2010 (LCRA) by awarding construction permits for new FM translators without considering their effect on the potential for new LPFM stations. The Commission upheld the Bureau’s conclusion that the LCRA did not require that each new translator application be required to demonstrate that it did not preclude LPFM opportunities.  Instead, efforts by the FCC to limit translator applications, and a prior LPFM window, provided adequate LPFM opportunities.  Similar objections have been rejected by the FCC in the past (see our Broadcast Law Blog article on this issue).
• The FCC’s request for comment on the methodology that it uses to allocate its employees to determine regulatory fees was published in the Federal Register, setting the dates for the comments. This proceeding is important as the allocation of FCC employees determines the regulatory fees paid by each industry regulated by the FCC.  The fees are set to reimburse the government for the costs FCC operations, allocated by the percentage of FCC employees whose time is spent regulating a particular industry.  The proceeding raises issues as to how FCC’s employees who perform functions that are not industry specific should be allocated to specific fee payers, including broadcasters.  Comments are due October 26, with reply comments due November 25, 2022.
• The Commission issued a Public Notice announcing the dates for comments and replies on the FCC’s proposals for updating its rules for LPTV and TV translators.  These comments are on the FCC’s Order and Sixth Notice of Proposed Rulemaking (on which we previously reported) to delete or revise analog rules for LPTV and television translator stations that no longer have any practical effect or that are otherwise obsolete or irrelevant after the transition of these stations to digital operation.  Comments are due on October 24, and reply comments are due November 7, 2022.
• The FCC’s Video Division issued a Forfeiture Order reducing a proposed fine on an LPTV station licensee that had constructed its station and commenced operations without filing until after its construction permit for the station had already expired an application for license to inform the FCC of the completion of construction.  The Division agreed to reduce the proposed fine from $6500 to $1300 based on the licensee’s ability to pay. The Division looked at precedent as to when fines are excessive, stating that fines should not exceed 8% of a licensee’s gross revenue and should normally not exceed approximately 5% of revenues, or lower when a licensee is losing money.  The $1300 fine was about 5% of the licensee’s revenue.
• The Commission issued a Public Notice imposing a 180-day freeze on applications in the 12.7-13.25 GHz band.  This includes applications for new earth stations and applications for new stations or modifications to fixed or mobile BAS (broadcast auxiliary) stations to operate in the 12.7 GHz band.  The freeze was imposed while the Commission considers changes in the band to make more effective uses of this spectrum. There are limited exceptions to the freeze, including one for changes to broadcast auxiliary stations that can be shown to have no effect on reimbursement costs for any future user of any cleared spectrum.
• In response to Hurricane Fiona and its impact on Puerto Rico, the FCC issued a Public Notice extending to September 30 the due date for Puerto Rico stations to file their 2022 regulatory fees.  All other stations still must pay their fees by September 28, 2022.  Another Public Notice gives Puerto Rico stations until November 14 to upload their Quarterly Issues Programs Lists for the third quarter of 2022 to their online public inspection file (for all other stations, those reports should be uploaded by October 11 as the normal October 10 deadline is a Sunday).
• The Senate Judiciary Committee passed the Journalism Competition and Preservation Act designed to allow news creators, including broadcasters, to negotiate jointly without antitrust concerns with big Tech Platforms over the rates and terms by which those platforms use the news creators’ content.  A summary of the bill that was passed is available on Senator Klobuchar’s website.  To become law, the bill still must be passed by the full Senate and the House of Representatives before the current session of Congress ends in January.

Courtesy Broadcast Law Blog

As we wrote in several of our recent weekly summaries of regulatory issues for broadcasters, the FCC released a Public Notice the week before last announcing that regulatory fees must be submitted by 11:59 PM Eastern Time on September 28. This public notice set the deadline for the payment of fees established in the FCC’s Report and Order released just before Labor Day, which resolved objections to the higher fees that had been proposed for broadcasters by reducing those proposed fees somewhat (while still raising broadcaster’s fees on average about 8% over fees paid in prior years).  Since the Public Notice setting the fee payment deadline, the FCC has been busy issuing numerous notices, providing guides, and launching web pages with information about the fees and the procedures for paying those fees.

A notice that should be reviewed by all broadcasters owing fees is one issued on Friday when the FCC released another Public Notice setting the specifics for payment of the fees.  This notice details the payment process and requires that all payments be made through the FCC’s CORES database.  The notice also states that payments can only be made by credit cards, VISA or Mastercard debit cards, ACH transfers or wire transfers.  No cash or checks will be accepted.

For broadcasters, the Media Bureau also issued a guide to fee filing which is available here.  The FCC also announced that broadcast licensees can look up their Fiscal Year (FY) 2022 regulatory fee amounts by logging onto the FCC’s website at http://fccfees.com and clicking on the “View Fee Information and Exempt Status for any Broadcast Property” link.  The Bureau also separately issued a listing of TV stations by call sign, identifying their population count and fee amount. For radio, it also has a look-up database  reflecting the fees that each station must pay.

Also released was a Public Notice setting out the categories of broadcasters that are exempt from paying fees.  Noncommercial broadcasters are exempt.  Note, however, that in some cases, that look-up database for radio stations has been slow to recognize the exempt status of some nonprofit licensees – particularly those that operate noncommercial stations in the commercial FM band or on AM frequencies. Noncommercial licensees with stations that do not show their exempt status should discuss with their FCC counsel how to correct that information to properly reflect their exempt status.  The FCC also recognizes that licensees that owe “de minimis” amounts, less than a total of $1000 for all fees on a per-licensee basis, are also exempt.  For broadcasters, this exemption will usually apply only to small stand-alone AM stations or licensees of secondary stations (e.g., LPTV, FM translators, TV translators, and FM boosters).

Finally, the FCC released another Public Notice setting out the process for requesting waivers, reductions or exemptions from regulatory fees.  Any request for a reduction or waiver of the fees must be submitted by the September 28 due date and must state specifics about the reasons for the waiver.  Financial hardship waivers require the submission of documentation showing the finances of the licensee and why the payment of fees would be an issue in the current circumstances.  In most cases, unless it can be show that there is a financial hardship in paying, the request for waiver must include the payment (and ask for a refund).  Read the Public Notice for more information on waiver requests.

There are significant penalties for late payment, so it is a good idea to file before the September 28 deadline to avoid any last-minute issue.  If filed late, the FCC will assess a 25% late fee penalty.  The FCC has provided plenty of information about filing requirements.  Review these resources carefully, discuss with counsel as needed, and be sure to meet the September 28 deadline.

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 released additional public notices in connection with the upcoming September 28 deadline for submission of annual regulatory fees. Specifically, the FCC issued a Public Notice setting out the procedures for paying the fees. The Notice addressed matters including the required use of the CORES system and the permissible methods of payment.  The FCC also announced that broadcast licensees can look up their Fiscal Year (FY) 2022 regulatory fee amounts by logging onto the FCC’s website at http://fccfees.com and clicking on the “View Fee Information and Exempt Status for any Broadcast Property” link. In some instances, it may be necessary to clear your browser before logging onto the website. After clicking on this link, licensees will be able to view their fee amounts, fee codes, facility identification numbers, and other information pertinent to the filing of their FY 2022 regulatory fees.  Another Public Notice announced that, as it did for FY2020 and FY2021, it is streamlining and easing its processes through which fee payors suffering pandemic-related financial hardship may request and obtain waiver, deferral and installment payment relief for FY 2022 regulatory fees.  Further details about this process, the required showings, and the evidence that must be submitted when requesting relief are provided in the Public Notice.  The FCC also issued a Fact Sheet providing information about those entities, including noncommercial broadcasters, that are exempt from payment of regulatory fees.
• The FCC’s Media Bureau issued a decision in which it determined whether certain expenses were reimbursable to an FM station moved to a new channel to facilitate the upgrade of another station. To make it possible to upgrade a station, one licensee can force another station to change channels if it reimburses the station that is forced to move for the reasonable expenses of the move, and as long as the new channel is technically equivalent and can work at the station’s current transmitter site.  Noting that the station seeking reimbursement bears the burden of proving whether an expense is legitimate and prudent, and whether its cost is reasonable, the Bureau conducted a detailed analysis of the extent to which the station in question’s engineering and equipment expenses, legal fees, printing expenses, promotional expenses (including those for promoting the station’s new frequency), and miscellaneous expenses.  For further details on how the Bureau resolved these matters, see the Bureau’s decision available here.
• The Media Bureau issued a reminder that, as required under the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (“NDAA”), United States-based foreign media outlets providing video programming must submit by October 12 their next semi-annual report disclosing their relationships with their foreign principals, including a description of the legal structure of such relationships and any funding the outlets receive from their foreign principals.  The reminder sets out who is covered by this requirement and the specific means to be used by such outlets to provide these reports.
• The FCC’s Media Bureau issued an Order granting the license renewal of an FM station is Arizona for only one year, instead of the normal eight year period, because the station had been silent for extended periods. The Bureau found that the station was silent for 27% of its license term and 33% of its extended term (the license term plus the period after the license expired while the renewal was pending).  This is another case where the Bureau has concluded that it needs a shorter term to assess whether the station will continue to operate and serve the public, which it cannot do when silent.  For more on the Media Bureau’s emerging policy on renewals for stations that had been silent for extended periods, see our article
• In a major First Amendment decision, the 5^th Circuit Court of Appeals upheld a Texas law forbidding large social media platforms from censoring speech based on the viewpoints of the individuals posting on the site. The Court determined, among other things, that regulating censorship is not subject to the same First Amendment protections as regulating speech and that Texas was justified in concluding the platforms were “common carriers” required to allow all people to access their services without discrimination.  This decision seems to contradict that of the 11^th Circuit finding a similar Florida statute to be unconstitutional (which we mentioned in a prior weekly summary here). These contradictory holdings may well lead to the Supreme Court resolving the extent to which states can regulate the content moderation policies of tech platforms.
• On our Broadcast Law Blog, we wrote about the bill introduced in Congress by Senator Rand Paul to eliminate the FCC’s multiple ownership rules that limit the number of broadcast stations that one company can own in any market. This bill would also require that, in any antitrust review of a broadcast merger, the reviewing authority recognize that tech companies provide many of the same services as broadcasters and are increasingly becoming competitors with broadcasters, and that the impact of any broadcast merger be assessed in the broader media marketplace, rather than in isolation by looking solely at broadcasting as a stand-alone market that is immune from broader marketplace competition.

Courtesy Broadcast Law Blog

Kentucky Senator Rand Paul has introduced a bill to repeal all broadcast ownership limitations including the radio and television local ownership rules (see the draft bill, the Local News and Broadcast Media Preservation Act, here, and the Senator’s press release, here).  As we have noted before (see, for instance, our article here), the FCC is currently considering changes to the radio ownership rules but the proposals, first advanced in late 2018, remain stalled in the current FCC seemingly because of its current political deadlock with two Republicans and two Democrats.  The current pending proposal at the FCC (see our summary here) is also considering allowing combinations of two of the top 4 TV stations in a market based on certain defined parameters (such combinations being allowed now only when justified based on an ill-defined case by case public interest analysis).  The Paul legislation would essentially pre-empt this review by abolishing the FCC’s ownership rules.  Of course, being introduced so late in the Congressional session with no other declared political support, the bill has little chance of becoming law in this session of Congress.

The Paul legislation is designed to allow broadcasters to compete with big tech companies that have seriously eroded the advertising and audience shares of broadcast stations over the last decade (see our article here).  According to Paul’s press release, his bill “would give local broadcasters and newspapers much-needed relief from outdated government restrictions that are currently threatening their ability to succeed in an evolving media environment.”  As the broadcast media is the only media subject to such ownership restrictions, many have argued that, for a truly level playing field in today’s media landscape, a significant relaxation of the rules is warranted.

The bill goes further, preventing the Department of Justice and other antitrust authorities in any review of a broadcast merger or acquisition, from considering broadcasting to be a unique market.  This has long been a concern that the DOJ has looked at broadcasting as being unique and a different market from the broader media market that includes many other diverse players including, most significantly, the big tech platforms (see our articles here and here).  This bill would recognize that tech companies provide many of the same services as broadcasters and are increasingly becoming competitors with broadcasters, by requiring that broadcast mergers be assessed in the broader media marketplace, rather than in isolation by looking solely at broadcasting as a stand-alone market that is immune from broader marketplace competition.

Finally, the bill would allow broadcasters and other “news content creators” to jointly negotiate with big tech companies over the use of their material by these companies.  This provision is similar to the provisions of the Journalism Competition and Preservation Act (see our articles here and here) that recently stalled in Congress over issues as to whether censorship and content moderation by tech platforms should be considered in the context of the bill.  We will discuss the status of the JCPA in a separate article in the near future.  The Paul bill is a very simplified version of the JCPA draft that was recently considered by a Senate committee.

Given the timing, this bill likely will not move in the current Congress, but it does put the issues on the table for consideration in the future.  Watch for these debates to continue in the coming years.

Courtesy Broadcast Law Blog

With so much focus on the upcoming regulatory fee deadline, broadcasters may well overlook another more imminent deadline – Thursday, September 15 is the deadline for broadcasters to have assured themselves that no buyer of program time on their stations is a foreign government or an agent of a foreign government.  As we wrote here, the NAB successfully obtained a court decision eliminating the obligation for broadcasters to verify that no buyer of program time is listed in the Department of Justice’s Foreign Agents Registration Act database or on the FCC’s database of foreign government video programmers.  However, the underlying obligation of licensees to obtain certifications from buyers of program time on their stations confirming that they are not a foreign government, or an agent of a foreign government, remains in place.

New agreements for the sale of program time should have, since March 15, contained representations from the program buyer that they are not a foreign government or a representative of a foreign government, and that no foreign government has paid the programmer to produce the programs or to place it on broadcast stations.  Programming provided to the station for free with the expectation that it will be broadcast should also be confirmed as not coming from a foreign government or an agent of a foreign government.  By this Thursday (September 15), stations need to verify that the providers of programming under agreements that were in existence before March 15 are not foreign governments or their agents.

For any programs that are provided by a foreign government or their agents, an enhanced sponsorship identification is required.  For more on the specific definitions used in the FCC rules on this requirement (Section 73.1212(j)) can be found in our article here.  One question that we have been asked repeatedly is whether network and barter programs, where the station gives a programmer advertising time in exchange for the programming, is covered by this requirement to obtain a certification.  In its Order adopting the rule, the FCC stated that it considered barter programming to be programming bought by the station, not programming that the programmer pays for or donates for free in exchange for its airing.  The FCC stated:

In barter-type arrangements, which can include network affiliation agreements, the program supplier provides the station its program, which the station purchases by allowing the program provider to use some or all of the station’s advertising airtime during the program. Thus, in barter arrangements the broadcaster effectively purchases programming in exchange for valuable consideration in the form of advertising time, thereby immunizing the exchange from the sponsorship identification requirement.

But other program providers who buy program time, or provide programming for free to a station, need to be verified immediately.  For example, churches that buy an hour on Sunday morning, or a real estate agent that buys a half hour to show the homes that they have for sale, and other similar program buyers need to provide the station with certifications as to whether or not they are backed by a foreign government or foreign governmental agent.  Contact your legal adviser to make sure that you have the information that you need to meet this upcoming deadline.

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 announced that regulatory fees must be submitted by 11:59 PM Eastern Time on September 28. In addition, the Media Bureau’s guide to fee filing for broadcasters was released and is available here (the Bureau also separately issued a listing of TV stations by call sign, identifying their population count and fee amount). Note that the FCC’s fee look-up database for radio does not reflect the exempt status of some noncommercial stations – particularly those that do not operate in the reserved FM band. Noncommercial licensees with stations that do not show their exempt status should discuss with their FCC counsel how to correct that information to properly reflect their exempt status.  There are significant penalties for late payment, so it is a good idea to file before the September 28 deadline to avoid any last-minute issues that, if they result in a fee being late, can result in a 25% late fee penalty.
• The FCC has released a draft Notice of Proposed Rulemaking (NPRM), available here, proposing to update the FCC’s rules for full power TV and Class A TV stations. The draft NPRM, which is tentatively on the FCC’s agenda for the September 29, 2022 monthly open meeting, indicates that a review and update of these rules is necessary due to the digital transition, the incentive auction repack, current technology, and changes in Commission practices.  Assuming the FCC adopts the NPRM as scheduled, it will seek comment on, among other things, whether to eliminate rules that relate to analog operating requirements, and to similarly eliminate language in rules to remove references to digital television or DTV service; whether to delete outdated rules that are no longer valid given changes in Commission-adopted policy, such as the elimination of the comparative hearing process to award and renew broadcast licenses; and whether to make other updates to the Commission’s rules.  Comment dates will be announced when the final version of the NPRM is released (probably on or shortly after September 29).
• FCC Chairwoman Rosenworcel has circulated a Notice of Proposed Rulemaking (“NPRM”) to bolster the security of the nation’s public alert and warning systems, the Emergency Alert System (“EAS”) and Wireless Emergency Alerts (“WEA”). If adopted by a vote of the full Commission, the NPRM would seek comment on, among other things, ways to improve the operational readiness of the EAS, including the amount of time that broadcasters, cable providers, and other EAS participants may operate before repairing defective EAS equipment; requiring EAS participants to report compromises of their EAS equipment; and requiring EAS participants to employ sufficient security measures to ensure the confidentiality, integrity, and availability of their respective alerting systems and to annually certify to having a cybersecurity risk management plan in place.
• The decision of the United States Court of Appeals for the D.C. Circuit in NAB v. FCC became effective on September 6, meaning that the requirement that broadcasters check Justice Department and FCC websites to verify the foreign governmental entity status of lessees of their airtime is no longer in effect. The FCC still has the option of petitioning by October 11, 2022 the Supreme Court to review the D.C. Circuit decision.  For more details about this case, see our Broadcast Law Blog here. The requirement that broadcasters receive a verification directly from program suppliers that they are not representatives of foreign governments remains in place.  Broadcasters should have written verification by September 15 from all parties buying program time on broadcast stations (or supplying programming for free) certifying that they are not representatives of foreign governments, and that have not been paid by foreign governments to supply their programming to a station.

Courtesy Broadcast Law Blog