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Here are some of the regulatory developments of significance to broadcasters from the last week, with links to where you can go to find more information as to how these actions may affect your operations.

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

Courtesy Broadcast Law Blog

The FCC announced on Friday that it will be hosting a symposium on the state of the broadcast industry on November 21.  On that day, there will be a panel in the morning on the state of the radio industry and one in the afternoon on television.  The Public Notice released Friday lists a diverse group of panelists, but says little beyond the fact that the forum will be occurring.  What could be behind the Commission’s decision to host this session?

The FCC is working on its Quadrennial Review of its ownership rules (see our articles here and here).  There were many who expected that review to be completed either late this year or early next, with relaxation of the radio ownership rules thought to be one of the possible outcomes.  Of course, quick action may have been derailed by the decision of the Third Circuit Court of the Appeals to vacate and remand the Commission’s 2017 ownership order.  The court’s decision unwinds the FCC’s 2017 order which included abolition of the broadcast newspaper cross-ownership rule and the rule that limited one owner from owning two TV stations in the same market unless there were 8 independent television operators in that market – see our article here on the 2017 decision and our article here on the Third Circuit’s decision.  The basis of the Third Circuit decision was that the FCC did not have sufficient information to assess the impact of its rule changes on minority ownership and other potential new entrants into broadcast ownership.  If the FCC did not have enough information to justify the 2017 decisions, many believe any further changes in its rules are on hold until the FCC can either satisfy the court’s desire for more information on minority ownership or until there is a successful appeal of that decision.  Even though FCC changes to its ownership rules may be in abeyance, the November 21 forum can shed light on the current state of the industry and why changes in ownership rules may be justified.

As we wrote here, the Department of Justice a few months ago held its own listening session on the impact of digital media on broadcasting – specifically TV.  Almost all of the participants in that session testified that digital advertising was competing with television, though there was disagreement on the severity of the impact of digital on the television industry.  But even with this widespread agreement on the existence of competition from digital advertising, in approving the acquisition of the Tribune Company stations by Nexstar, the DOJ continued to treat broadcasting and digital media as operating in separate product markets, finding that television offered unique benefits to advertisers (see the complaint filed following that review here at paragraphs 37-38).

The FCC’s November 21 session may look at some of these issues so that the FCC, when it next reviews the ownership rules, can make an independent assessment as the expert agency on communications matters of the impact that digital has had on radio and television.  In comments filed in the Quadrennial Review assessing potential changes to the radio ownership rules, a group of radio owners with whom I worked submitted expert statements to show that digital advertising comprises more than 50% of local advertising in every local market.  One expert stated that local advertisers are now inundated with advertising choices and are unsure of what kind of advertising really works, so they are testing all different forms of advertising – essentially seeing digital as interchangeable with traditional broadcast and print media advertising.  With the explosion of media outlets of all kinds in the last 20 years, advertisers are trying to figure out what works – and exploring all media in doing so.  Economist Mark Fratrik of BIA/Kelsey, who provided evidence on the impact of digital on broadcasting in the NAB’s comments filed in the Quadrennial Review proceeding, will be on the panel discussing radio issues at the FCC’s November symposium.

Assessing the impact of digital competition on traditional media is fundamental to understanding today’s media marketplace, and the regulation of that marketplace.  In recent decisions, the FCC has looked to digital media in assessing the degree of effective competition with cable to determine when relaxation of cable rate regulation was appropriate.  This same analysis needs to occur with broadcasting in assessing the regulatory approach best suited to the industry.  While some have called for more regulation of digital media, that approach may well lead to unintended consequences when one does not understand the impact of regulation on industries currently subject to it (see, for instance, our article on the call to impose political advertising regulations on Facebook).  This November 21 forum may be a good start in the FCC’s development of a real understanding of the state of the media marketplace.  Of course, a single symposium lasting but a few hours cannot provide a full understanding of all of the dynamics of the media marketplace, but it is certainly a welcome addition to that process.

Courtesy Broadcast Law Blog

By John Eggerton
Broadcasting & Cable

A politically divided FCC has voted to eliminate the main studio rule. The vote was 3-2 with the two Democrats strongly dissenting.

That was the almost eight-decade old requirement that broadcasters, radio and TV, maintain a main studio in or near their community of license.

The FCC voted unanimously last May to propose eliminating the almost eight decades old rule. FCC Chairman Ajit Pai had said it had become outdated because in the digital age the community has access and can engage with stations via social media or email without having a physical studio nearby.

He also said maintaining a physical address is an expense better put to other uses, like adding more local programming. Broadcasters have said that expense can range from $20,000 a year to several hundred thousand dollars.

Stations are still required to have a local, toll-free telephone number, and to maintain any portion of their public files that is not online at a publicly accessible location within their community of license.

Click HERE to read the full article

Click HERE to go to the FCC’s topic page

In the aftermath of the terrible shootings in Las Vegas, the broadcasters of the great state of Nevada are asking you to join them for “Broadcasters Unite Nevada Day”. This Friday, October 6th we are asking the entire state to show their unity by wearing our state colors of Silver and Blue. Change your Facebook profile picture to represent you are Nevada Proud and Las Vegas Strong.  #NevadaProud #VegasStrong #BroadcastersUniteNV

Nevada Broadcasters Foundation Scholarship Fund