This Week in Regulation for Broadcasters: March 6 to March 10, 2023

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.

  • As widely reported, Gigi Sohn has asked President Biden to withdraw her nomination to become the third Democratic FCC Commissioner (her statement to the Washington Post about her withdrawal is available here).  Had it been successful, Sohn’s nomination would have eliminated the 2-2 deadlock between Republicans and Democrats that has existed at the FCC for over two years.  Sohn’s withdrawal came shortly before Sen. Joe Manchin of West Virginia became the first Democrat to formally oppose her confirmation.  As of the date of publication of this article, the White House had not provided any updates regarding potential replacement nominees.  For a further discussion of Sohn’s withdrawal and its implications for broadcast regulation, see the article on our Broadcast Law Blog, here.
  • As we reported in our weekly update the week before last, the FCC’s Media Bureau issued a hearing designation order referring to an Administrative Law Judge for an evidentiary hearing questions about the proposed acquisition of the TEGNA broadcast stations by Standard General Broadcasting.  This week brings news that the parties have filed a Motion asking that the Judge certify this designation to the FCC Commissioners for a determination as to whether the case really should have been designated for hearing.  For more details on this matter and the legal issues associated with it, see our Blog article here.
  • The FCC issued an Order temporarily staying the March 6, 2023 sunset of the requirement that television station’s that convert to the new ATSC 3.0 transmission standard must maintain their primary broadcast streams in accord with the ATSC A/322 standard, which defines the waveforms that ATSC 3.0 signals must take.  In June 2022, the FCC issued a Third Further Notice of Proposed Rulemaking (Third FNPRM) seeking comment on, among other things, whether to retain the requirement that broadcasters comply with the ATSC A/322 standard and, if so, for how long.  The Order leaves the requirement in place indefinitely (thus maintaining the status quo) until the Third FNPRM is resolved.  In support, the Order notes that virtually all who commented on the Third FNPRM supported at least a temporary extension of the requirement; that it is unclear whether any consumer receive equipment could display 3.0 signals that are noncompliant with A/322; and that there is no information in the record indicating that any party would be harmed by the grant of an interim stay.
  • The FCC issued its Application Fee Filing Guide for its Media Bureau.  The Guide, which provides fee amounts and instructions for paying those fees, covers applications filed by, among others, commercial television stations, commercial AM and FM stations, TV translators and LPTV stations, FM translator stations, Class A television stations, and FM booster stations.  The FCC’s Managing Director subsequently issued an Erratum correcting the fees for certain types of AM applications.
  • The FCC’s Public Safety and Homeland Security Bureau issued a Public Notice encouraging broadcasters who did not file their Form One in the EAS Test Reporting System (ETRS) by the February 28, 2023 deadline to do so now. The Public Notice also provided information about FCC assistance that is available for applicants who have not yet filed this Form One which provides basic information about EAS participants and the EAS equipment that they use.  As we noted in an article on our Blog, the FCC has made clear that this filing is mandatory for virtually all broadcast stations and suggested that there may be consequences for those who have not filed.  This form is the first of three used to report on the results of Nationwide EAS tests – one of which is expected to be conducted later this year.  If your station has not filed the ETRS Form One yet, you should do so immediately. 
  • The FCC’s International Bureau released a Public Notice and a list of the C-Band earth stations that it has found to be “incumbent earth stations” entitled to reimbursement as part of the repurposing of part of this spectrum for wireless uses.  As set out in the Notice, all earth stations continuing to operate in the C-Band are required to register with the International Bureau’s filing system, and any earth stations that are deactivated must also be reported.  If you have C-Band earth stations, review this notice for more details. 
  • With the NCAA Basketball Tournaments for both men and women set to start this coming week, we published on our Broadcast Law Blog a two-part article (here and here) about the NCAA’s trademarks, how it protects those marks, and the legal issues that can arise in broadcast advertising and promotions tied to the tournaments. 
  • Via its “points system” for selecting among mutually exclusive applicants for NCE FM stations filed in the 2021 window for new NCE stations, the Bureau awarded a construction permit to an applicant for a new station at Baker City, Oregon.  The Bureau did so notwithstanding an informal objection by a third party alleging that the winning application should have been dismissed because its proposed directional antenna radiation pattern varied more than 2 dB per 10 degrees of azimuth in violation of section 73.316(b)(2) of the FCC’s rules.  The winning applicant subsequently amended its application to bring its antenna pattern into compliance with the rules.  The Bureau ruled that the antenna pattern was a curable defect and thus the winning applicant’s amendment was permissible, thus mooting the third party’s objection.  The Bureau also found that the winning applicant remained the winner on points even though its amendment resulted in reduced coverage that rendered it ineligible for a point under the “best technical proposal.”
  • The Bureau proposed to substitute Channel 287A for vacant Channel 280A at Peach Springs, Arizona to accommodate a proposed upgrade of an existing FM station from channel 280A to channel 280C2  at Fort Mohave, Arizona.  Channel 280A at Peach Springs became vacant due to the Bureau’s cancellation of the license of the station that previously occupied that channel.
  • The Bureau entered into a consent decree with a student-run NCE FM station that filed its license renewal application nearly four months late.  Consistent with the FCC’s policy for treating first-time violations of FCC “paperwork” rules by student-run NCE radio stations more leniently than violations by other stations, the licensee agreed to implement a compliance plan to prevent future untimely renewals, and make a civil penalty payment to the United States Treasury in the amount of $500.

Courtesy Broadcast Law Blog