This Week in Regulation for Broadcasters: August 28 to September 8, 2023

Here are some of the regulatory developments of significance to broadcasters from the past two weeks (including events that occurred during our hiatus for the Labor Day holiday), with links to where you can go to find more information as to how these actions may affect your operations.

  • The Senate approved Anna Gomez to be a new FCC Commissioner, filling the open Democratic seat that has been vacant since the start of the Biden Administration.  Gomez is experienced in government circles, having worked at NTIA (a Department of Commerce agency dealing with federal spectrum use and other communications matters) and recently at the State Department preparing for international meetings about communications issues.  She also has a history in private law firm practice.  Together with her nomination, the President renominated Commissioners Starks and Carr for new terms as Commissioners, but those nominations remain pending – not having been approved this week with the Gomez nomination.  As Democratic Commissioner Starks’ term has expired and he can only serve through the end of this year, there is speculation that these nominations may be approved in combination with nominations for vacancies at other government agencies so as to avoid returning the FCC to a partisan deadlock in January.  See our Broadcast Law Blog article here for a review of broadcast issues the FCC might address now that there is a full Commission.
  • The FCC has announced via Public Notice that Annual Regulatory Fees must be paid through its CORES database by 11:59 PM Eastern Time on September 20.  The FCC also issued a second Public Notice explaining the filing procedures and methods for making payments, including limits on credit card payments, available here. For broadcasters, a third document, a Fact Sheet called “What Your Owe – Media Services Licensees for Fiscal Year 2023,” sets out specific information as to what is owed by commercial broadcasters and restates some of the information from the Notice on filing procedures.  This broadcast-specific Fact Sheet is available here.  The FCC also released a Fact Sheet setting forth the details of who is exempt from regulatory fees, including Noncommercial Educational stations and commercial stations whose total fee obligations are “de minimis,” i.e., they total $1000 or less.  That Fact Sheet is here.  Another Fact Sheet setting out the procedures for seeking a waiver or deferral of the fees is available here.  Paying regulatory fees late can bring substantial penalties (25% penalty plus interest), so commercial broadcasters should immediately review these documents and prepare their fees so that they can be submitted before the September 20 deadline.  For more details on these fee notices, see our blog article here.
  • The FCC’s Public Safety and Homeland Security Bureau (Bureau) issued a Public Notice to remind Emergency Alert System (EAS) participants of their obligation to ensure that EAS alerts are accessible to persons with disabilities.  The Federal Emergency Management Agency (FEMA) has scheduled a nationwide EAS test for October 4, 2023, at approximately 2:20 pm EDT, using the Internet-based Integrated Public Alert and Warning System (IPAWS).  The Public Notice also reminded EAS Participants that they must file ETRS Form Two after the nationwide EAS test no later than October 5, 2023, and they must file ETRS Form Three on or before November 20, 2023. For TV stations, to be visually accessible, the EAS text must be displayed as follows:
    • At the top of the television screen or where it will not interfere with other visual messages (e.g., closed captioning),
    • In a manner (i.e., font size, color, contrast, location, and speed) that is readily readable and understandable (see below),
    • Without overlapping lines or extending beyond the viewable display (except for video crawls that intentionally scroll on and off the screen), and
    • In full at least once during any EAS message. Text should scroll at a speed that allows viewers to read the crawl as if they were going to read it aloud.
    • The background and text colors should sufficiently contrast to allow for readability. For example, a bright green background with white text may not provide sufficient contrast. Green and red should also be avoided as viewers who are color blind have difficulty seeing these colors.
    • In addition, the audio portion of an EAS message must be played in full at least once to ensure it is accessible to viewers who are blind or have low vision and should be spoken at a pace that allows for a listener to understand the content. 
  • The FCC’s Wireless Telecommunications Bureau, in coordination with the Media Bureau, issued a Public Notice which (1) provides detailed instructions for 12.7-13.25 GHz (12.7 GHz) band Broadcast Auxiliary Service (BAS) licensees to file certifications confirming the accuracy of their licensing information in the Universal Licensing System (ULS); and (2) establishes a window for the filing of these certifications.  The FCC directed this updating of ULS in its Notice of Proposed Rulemaking and Order where it has proposed to repurpose some or all of the 12.7 GHz band for mobile broadband or other expanded use, and grandfather, relocate, and/or repack existing 12.7 GHz licensees (we referenced this proceeding in our blog article here).  BAS licensees, who may include satellite communications and mobile TV pickup operations, should take care to comply with this obligation, as the FCC has also proposed to limit eligibility for incumbent status to those licenses for which the licensee has filed the required certification, meaning that if the certifications are not filed, there may be no reimbursement for any required channel moves or no protection from future interference. Review the Public Notice carefully, as there are instructions for licensees that filed applications on or after January 1, 2021, for a new or modified BAS license, and for those that file a modification application correcting license information on or before November 29, 2023. If a licensee is unable to make the certification for a license for reasons including that the required technical data is inaccurate, missing, or incomplete; the license has terminated automatically; or the facilities are not operating as authorized, the licensee must cancel the license or file a modification application to correct the data reflected in the license no later than November 29, 2023.  BAS licensees must file their certifications in ULS using the online portal for non-docketed Pleadings, which can be accessed here.  Read the Public Notice carefully and consult with your legal and technical advisors for more details about these requirements.   
  • The FCC announced that the agenda for its September 21 regular monthly open meeting will include consideration of a Report and Order that would implement proposals to comprehensively delete, update, and revise Commission rules for full power and Class A television stations where those rules no longer have any practical effect given the transition from analog to digital-only operations and the completion of the post-incentive auction transition to a smaller television band with fewer channels.  The proposed rule changes are mostly non-substantive and do not materially change the regulatory obligations of full power and Class A stations.  For more details, see the FCC’s Notice of Proposed Rulemaking here.
  • The Audio Division of the FCC’s Media Bureau entered into a Consent Decree with the licensee of an AM station in Alaska and an associated FM translator, in which the licensee acknowledged that it had violated the FCC’s rules by reducing daytime power and being silent for periods exceeding 30 days without seeking FCC approval, as required by the rules, and for originating programming on its translator while its AM station was silent.  An FM translator for an AM station cannot continue operations if the AM has not operated within the last 24 hours.  In reaching this decree, the Division reduced the licensee’s proposed fine from $7,000 to $4,000, citing the licensee’s showing of financial hardship and indicating that the money that would otherwise go to the higher fine would better be spent on the equipment necessary to repair the station’s transmitter.
  • The FCC’s Video Division issued a Forfeiture Order imposing a $1,500 per station fine on the licensee of four TV translator stations in Colorado for failing late license renewals.  For the same reason, the Division issued three Forfeiture Orders (here, here and here) imposing fines on a licensee of 27 TV translators in Nevada, but reduced the fines from $1,500 per station  to $209 per station.  While declining to find that the initial fines of $1,500 per station were excessive (notwithstanding the licensee’s showing of financial hardship), the Division found that reduction of the fines was warranted “based on the Licensee’s history of compliance and the unique facts and circumstances presented, notably the fact that the Stations are community translators serving rural areas that would otherwise have limited, if any, over-the-air television service.”  The Division also proposed to assess a $37 per station fine against the licensee of three Montana TV translators for failing to timely file “license to cover” applications and engaging in unauthorized operation of the stations after their construction permits had expired.  In substantially reducing the fine normally required by the FCC in this kind of case, the Division cited the licensee’s documented financial inability to pay, its history of compliance, and the fact that the stations provided service to rural areas that has that otherwise had no off-air television service.
  • The Audio Division proposed to allot FM channel 225A at Lac du Flambeau, Wisconsin, as a Tribal Allotment and the community’s first local service.  Comments are due October 30, 2023; reply comments are due November 15, 2023.   The Tribal Allotment is being proposed pursuant to the FCC’s priority established under Section 307(b) of the Communications Act favoring the provision of radio service to tribal lands by stations owned by tribal governments.
  • The Video Division requested comment on a Notice of Proposed Rulemaking proposing to substitute noncommercial channel 34 for noncommercial channel 11 at Des Moines, Iowa and to substitute the allotment of noncommercial channel 21 for noncommercial channel 34 at  Ames, Iowa.  The proponent of this proposal has asserted that the substitution of channel 34 for channel 11 at Des Moines is necessary to overcome signal difficulties associated with digital operation on VHF channels.  Comments and reply comments will be due 30 and 45 days, respectively, from publication of the Notice of Proposed Rulemaking in the Federal Register.  For similar reasons, the Division also approved the substitution of noncommercial UHF channel 27 for noncommercial VHF channel 12 at Lincoln, Nebraska.

Courtesy Broadcast Law Blog