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.
- Since the February 24 hearing designation order (HDO) from the FCC’s Media Bureau referring questions about Standard General Broadcasting’s proposed acquisition of the TEGNA broadcast stations to an Administrative Law Judge (ALJ) for an evidentiary hearing, many of our weekly updates have highlighted the attempts of the parties to have the HDO overturned (see, for instance, our articles here, here and here). Congressional representatives are now looking into this unusual HDO. In a joint joint letter to FCC Chairwoman Rosenworcel, Senator Ted Cruz (Ranking Member of the Senate Committee on Commerce, Science and Transportation) and Rep. Cathy McMorris Rodgers (Chair, House Energy and Commerce Committee) asserted that the HDO “violates Commission rules and precedents in several ways,” and asked the Chairwoman to provide, by April 19, responses to fourteen questions concerning the facts surrounding the decision to issue the HDO and the Bureau’s legal theories supporting it. At the same time, the United States Court of Appeals for the D.C. Circuit dismissed Standard’s direct appeal of the HDO (finding that there was not yet a final FCC action for Standard to appeal) but set for expedited briefing Standard’s request for a writ of mandamus (a Court order forcing the FCC to act on the pending application). Such requests are rarely granted but, if granted here, might require the FCC to approve the transaction before the current May 22 date that the parties allege is the deadline for the transaction to close. And, notwithstanding all of this, the hearing designated by the Bureau continues before the ALJ, who has issued an initial case order establishing the date by which parties should submit proposed schedules (April 19) and the date of the initial status conference (April 26).
- In Congress, the Journalism Competition and Preservation Act has been reintroduced in Congress (Press Release). That Bill, if adopted, would allow traditional media outlets, including broadcasters, to jointly negotiate for compensation for the use of their content by Big Tech platforms. While the Bill passed out of a Senate committee in the last session of Congress, it never came to a vote before the full House or Senate.
- Late on March 31, Chairwoman Rosenworcel released a letter responding to Senator Grassley’s request that the FCC take action on a long-pending FCC proceeding regulate video streaming services that carry broadcast TV signals as MVPDs subject to FCC rules, such as must carry and retransmission consent (see our Broadcast Law Blog article on the FCC’s 2015 proceeding). Many televisions station owners have been requesting action by the FCC. The Chairwoman’s response said that she did not believe that the FCC had jurisdiction to regulate virtual MVPDs, and suggested that Congress would first need to amend the Communications Act to refine the definition of an MVPD before the FCC could consider such regulation.
- After conducting a “paper” hearing that had been initiated by the Media Bureau, an ALJ issued a decision finding that an AM station’s license had not expired automatically under the provisions of Section 312(g) of the Communications Act which automatically cancels a broadcast station’s license if it had been silent for more than12 consecutive months. The record was confusing, but the ALJ found that the licensee had demonstrated by a preponderance of the evidence that its station had not been silent for more than 12 consecutive months, even though, in the ALJ’s view, it would have been helpful if the licensee had submitted more written evidence confirming that it had resumed operations at its authorized site in a timely manner. The ALJ did, however, find that the station merited only a one-year renewal, as the station had been silent for about 80% of the prior license term and been deficient in its recordkeeping.
- The Bureau denied two closely-related petitions for reconsideration filed by the permittee of two FM translator stations in Puerto Rico, protesting the Bureau’s refusal to toll the stations’ construction deadlines and the Bureau’s subsequent grant of a third party’s application for facilities for an FM translator on the same channel as one of its translators. The Bureau found that the petitioner’s request for tolling had not been filed in accordance with the special procedures that applied when the FCC’s headquarters were closed during the pandemic, so the request never was officially on file. Thus, it was not in the FCC’s database to preclude the third’s filing of the application that conflicted with one of the permits. The Bureau also rejected the petitioner’s other arguments in support of tolling, including its contention that it qualified for tolling or waiver based on new local land use procedures in Puerto Rico and purported lingering “bureaucratic” delays in issuing local permits following hurricanes and COVID, as no specific showing was made that any delays that might have occurred were outside the control of the permittee.
- Consistent with the FCC’s policy of relative leniency in resolving first-time paperwork violations of FCC requirements by student-run noncommercial educational stations, the Bureau entered into a consent decree with a Massachusetts FM station that had filed its renewal application three and a half months late, The decree mandates that the licensee adopt a compliance plan to ensure that no such violations occur in the future and pay a $500 civil penalty to the U.S. Treasury.
- The Bureau dismissed a petition for reconsideration of its decision to cancel an AM license that had been surrendered by the station’s licensee. The petitioner was a listener of the station and resident of its community of license and asked the Bureau to reinstate the license so that it could be assigned to someone else. The Bureau rejected the request as it could not grant the petitioner’s requested relief, as the Bureau has no power to require the licensee to resume broadcasting or to require it to seek out and enter into an agreement with another party to assign the station’s license.
- This week, on our Broadcast Law Blog, we published an article on the legal issues of using Artificial Intelligence to create synthetic voices of celebrities and using such voices on the air or online.
Courtesy Broadcast Law Blog
