It’s a new year, and as has been our custom at the beginning of each year, we dust off the crystal ball and take a look at what we think may be some of the significant regulatory and legislative issues that broadcasters will be facing in 2025. This year, there is an extra layer of uncertainty given a new administration, both in the White House and at the FCC. Already, it appears that a new administration will bring new priorities – some barely on the radar in past years – to the top of the list of the issues that broadcasters will need to be carefully monitoring.
One of those issues has been a possible FCC review of the meaning of the “public interest” standard under which all broadcasters are governed. As we wrote when President-Elect Trump announced his pick for the new FCC Chair starting on Inauguration Day, Chair-Designate Brendan Carr has indicated that this public interest proceeding will be a high priority. In his opinion, broadcasters, or perhaps more specifically the news media, have suffered from an erosion of trust, and it has been his expressed opinion that a reexamination of the public interest standard might help to restore public trust. We noted in our article upon his selection that this is not the first time that there has been a re-examination of that standard. It has traditionally been difficult to precisely define what the standard means. In the coming days, we will be writing more about this issue. But suffice it to say that we are hopeful that any new examination does not lead to more paperwork obligations for broadcasters, as seemingly occurred whenever any broadcast issue was addressed by the current administration. As we note below, there are several paperwork burdens that we think may disappear in the new administration, so we are not expecting more paper – but we will all need to be carefully watching what develops from any re-examination of the public interest standard.
Another issue seems to grow out of this concern about the public interest – and that is the relationship between broadcast networks and their affiliates. Chair-Designate Carr has been expressing concern that networks have been abusing their power in negotiations over affiliations and retransmission consent, leading some to expect that these issues will be on the table – including reviewing the recent absence of any FCC activity to review the must carry/retransmission consent framework in connection with “virtual MVPDs,” i.e. streaming services that bundle multiple programming networks to offer a cable-like service. While there have been calls for almost a decade to look at the negotiations with these virtual MVPDs (see our 2015 article here), the FCC has thus far not found reason (and has questioned its authority) to act. Might that change this year? It will certainly be an issue that we will be watching.
Both Carr and others in the incoming administration have also expressed concerns about what they see as the media “censorship cartel,” suggesting that conservative voices have been stifled by media outlets. Carr has already reached out to Big Tech companies and a fact-checking organization, raising questions about whether they have been conspiring to limit certain viewpoints from reaching the public. While the fact-checking organization responded with a letter suggesting that Carr’s factual premises were mistaken, this may be another area where an FCC examination may follow (though we are currently unsure of what form such an examination would take, as the FCC generally is not seen as having significant authority over Internet-delivered services). Carr has suggested that the CBS-Paramount transfer may be subject to additional scrutiny on allegations of news distortion – a type of issue rarely considered substantively by the FCC in the last 50 years. Lawsuits against media organizations about their news coverage – and even a suit against a newspaper and political pollster about the publication of an Iowa Presidential poll that proved wrong – also suggest a much more aggressive posture of this administration against certain media outlets. Again, these are all issues worth watching.
In the last Trump administration, the President asked the FCC to review Section 230 of the Communications Decency Act which insulates big tech platforms from liabilities for posts on their platforms that come from third parties (see our articles here and here). Both political parties have questioned the breadth of Section 230, though there have been questions as to whether the FCC has jurisdiction to review these platforms. But the complaints about Big Tech and its unregulated nature raise questions about how a new administration will satisfy these concerns (see our article here about issues with regulating “Big Tech”). Whether it is through a re-examination of Section 230, or in some other ways, we will be watching how these issues develop.
There are also many decisions made by the current FCC that may prompt the new administration to take another look. There are two issues presently before the courts where the current Republican Commissioners dissented from the decisions which led to the current appeals. The FCC’s December 2023 multiple ownership decision (see our summary here) is being appealed by both radio and television interests, arguing that the FCC did not properly relax the existing ownership rules in light of competition from digital media, as required by Congress when it established the requirement for Quadrennial Reviews to review the impact of competition and assess whether existing radio and TV ownership rules remain “necessary” in the public interest. Briefs have already been filed in that case, but oral argument has not yet been scheduled. It will be interesting to see how the new administration deals with the issues raised, as both sitting Republican Commissioners argued that the FCC should have considered digital competition in substantially relaxing its broadcast ownership rules (see Carr dissent here and Simington dissent here). Even if the change in administration does not change the Commission’s position in court, the 2022 Quadrennial Review has already been initiated (see our article here), so a new administration already has an open proceeding to revisit those rules.
Similarly, the FCC’s reinstatement of the Form 395-B annual report on the race, ethnicity, and gender of all broadcast employees was also opposed by the two Republican commissioners (see our article here on the reinstatement of the form). Issues have been raised as to why, after 20 years of inaction, the FCC decided that it had to quickly reinstate the form and make the form a public document when, for the decades when it was not in use, the FCC was trying to craft a way to collect general information on industry employment trends without requiring that the information be made public on a station-specific basis. Challenges to that decision are already pending in the courts with an oral argument set for early February, and the NAB has sought reconsideration of the Commission decision. One way or another, it would appear that a review of the Commission’s action is likely, perhaps even before the Form 395-B receives OMB approval (which is currently holding it up from being effective). Chair-Designate Carr has already indicated that DEI efforts by the FCC will not be a priority in his administration.
There are many other pending issues at various stages of review that may also be affected by a new FCC. The FCC currently has a proceeding pending on whether to impose a requirement on broadcasters to disclose when artificial intelligence is used in political advertising (for details, see our article here). That proposal was opposed by the Republican Commissioners, questioning whether the FCC had the jurisdiction or expertise to impose these requirements. In a Republican administration, it may well be that this proceeding will not advance any further.
The enhanced sponsorship identification required for programing sponsored by a foreign government was a bipartisan effort that, since 2022, has required broadcasters to obtain certifications from the buyers of program time on their stations confirming that the programmers are not representatives of foreign governments. While the initial rules were bipartisan, the recent extension of the rules to cover spot advertising that is not for a commercial product or service or for a political candidate (including paid PSAs and non-candidate political ads) (see our article here) was opposed by the Republican Commissioners as being beyond the scope of the rulemaking itself. As various requests for review of that decision are pending, perhaps this regulatory expansion is another issue that will be re-examined by a new Commission.
The NAB also has a pending petition for reconsideration of the FCC’s decision to reinstate the FM non-duplication rule (see our article here). This rule prohibits commercial FM stations from duplicating more than 25% percent of the programming of a commonly owned or brokered station, if the stations’ contours overlap by more than 50%. The NAB argues that the FCC had no basis for reinstating the rule and failed to seek public comment to determine if, in the 4 years when the rule was not in effect, any real public interest issues developed from its absence. We anticipate that a Republican-led Commission will likely look more favorably on the NAB’s petition, given that both Republican Commissioners dissented from the FCC’s decision to reinstate the rule.
Commissioner Simington has also been concerned about the FCC’s continued authority to issue fines following a Supreme Court decision last term that suggested that there were limits on an agency’s ability to impose fines without a jury trial. The Commissioner has been seeking a Commission review of its power to issue “forfeitures,” i.e., fines, and how that power may be affected by this court decision, so it would not be a surprise if such an examination took place.
There are a host of other pending technical issues which, while not necessarily partisan, have nevertheless been languishing in the current FCC. This includes the television transition to ATSC 3.0, including whether there should be a sunset date for the current ATSC 1.0 transmission system. Proposals for technical reforms of AM and FM rules – including the possibility of a Class A10 FM station – are on the table, and these issues are not necessarily partisan. Nevertheless, they could possibly advance in a new administration.
Beyond these specific areas, new Commissions can change broadcast regulation by the processing of routine applications and through their general attitude toward regulation and enforcement. Often the FCC wants to solve perceived issues through more paperwork – but the last Republican administration conducted a concerted push to abolish unnecessary broadcast regulations (see our articles here and here). Many broadcasters would welcome the reinstitution of that effort, and have the FCC look at abolishing other rules that impede the functioning of an efficient market (see, for instance, our article here on the rural radio rules) or that impose unnecessary “gotcha” paperwork obligations or fines. Aggressive enforcement of vague or unclear broadcast regulations (see, e.g., the fines we noted here imposed on broadcasters who purchased network affiliations when there were no rules against doing so, or the fine noted here based on interpretations of the rules on “sidecar” arrangements) are also a matter of regulatory attitude at an administrative agency. We will all be looking at how these matters will be handled in a new administration.
Congress will also be facing many issues that have been pending for quite some time. As the AM Radio for Every Vehicle Act was not adopted in 2024, expect it to be reintroduced the new Congress. The broadcast performance royalty arguments will likely arise once again. Congress also needs to reauthorize the FCC’s auction authority which has been languishing for over a year, preventing commercial broadcast filing windows as well as filing windows for other non-broadcast services (see our article here). With some spectrum issues that Congress needs to address, a Congressional bill addressing many aspects of the FCC’s operations is not out of the question. So, Capitol Hill will need to be watched too.
As is clear, it will likely be an interesting, and potentially very busy, year. We will be writing about many of these issues on this Blog as they develop. We will also be watching routine regulatory actions at the FCC through our weekly and monthly summaries of regulatory activity. And, for the year ahead, we expect to soon be publishing our Broadcasters Calendar with those regularly scheduled regulatory dates for the year ahead. So be prepared for all that 2025 may bring. Happy New Year!
