This Week in Regulation for Broadcasters: April 24 to April 28, 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.

  • The FCC’s Enforcement Bureau issued the first of its Equal Employment Opportunity (EEO) audit letters for 2023 to randomly selected radio and television stations. Each year, approximately five percent of all radio and television stations are selected for EEO audits. A list of the radio and television stations included in this audit as well as the text of the April 24, 2023 audit letter is available here and at the Enforcement Bureau’s EEO headline page on the FCC website at:  The deadline for the selected stations to upload responses to their FCC-hosted online public inspection file is June 8, 2023.
  • The NAB filed a petition with the US Court of Appeals for a “writ of mandamus” to force the FCC to resolve its 2018 Quadrennial Review.  As we wrote on our Broadcast Law Blog, the FCC started its 2022 Quadrennial Review in December despite not having concluded its 2018 review.  The 2018 Review addresses issues including whether to relax the local radio ownership rules, whether to provide specific guidance as to when one entity can acquire two TV stations in the same market (rather than the ad hoc waiver standard currently in effect), and whether to abolish the rule that prohibits an ownership combination of any two of the Top 4 TV networks. Even if successful, the Court’s mandamus order likely would not require that the FCC reach a particular decision in the 2018 review.  Instead, an order would just require that the Commission reach a conclusion in the proceeding. 
  • The Enforcement Bureau issued sixteen warnings to New York City and New Jersey landowners for allegedly allowing pirate radio broadcasts from their properties.  These Notices of Illegal Pirate Radio Broadcasting (available here) target properties identified by Bureau field agents as sources of pirate radio transmissions during the Bureau’s 2022-2023 New York Pirate Sweeps. Under the PIRATE Act adopted in 2020, the FCC must conduct an annual sweep looking for offenders in the top 5 most active markets for pirate radio.  The Notices formally notify landowners of the illegal broadcasting activity purportedly occurring on their property; inform them of their potential liability of over $2 million for permitting such activity to occur on their properties; demand proof that the illegal broadcasting has ceased; and request identification of the individual(s) engaged in the illegal broadcasting.
  • The FCC will consider at its May 18 monthly open meeting its 2022 Notice of Inquiry that explores opportunities to open the 12.7-13.25 GHz (12.7 GHz) band for next-generation wireless services. This week, the FCC released a draft of the Notice of Proposed Rulemaking and Order stemming from the Inquiry to be considered at that May 18 meeting.  Licensed services currently in the 12.7 GHz band whose operations could be affected include satellite communications and mobile TV pickup operations (for more background, see our articles here and here).  The FCC’s draft would formally propose and seek comment on rules that would authorize mobile broadband and other expanded uses in some or all of the 550 MHz of spectrum in the 12.7 GHz band.  If the NPRM is adopted as drafted, it would, among other things, propose to grandfather, relocate, and/or repack incumbent non-federal licensees in the 12.7 GHz band.  In addition, the Order would direct fixed and mobile Broadcast Auxiliary Service (BAS) licensees in the 12.7 GHz band to certify the accuracy of all information reflected on each license, including whether the facilities are operating as authorized.
  • The Media Bureau rejected one of two mutually exclusive applications for a construction permit for a new NCE FM station at Ketchum, Idaho, and granted the surviving application.  The applications were filed during the November 2021 NCE FM filing window.  Last year, the Bureau identified numerous defects in one application and offered the applicant 30 days to submit a corrective filing.  In response, the applicant revised its application to specify new coordinates for the proposed station’s transmitter.  The Bureau found the amendment was unacceptable because it was a major amendment (since its revised 60 dBu contour did not overlap the 60 dBu contour in its original application) and created additional overlap with the other application with which it was already in conflict.  Because the applicant did not remedy all the deficiencies in its application with the sole opportunity to file a corrective amendment that the FCC allows mutually exclusive applicants, the FCC dismissed that application. The opposing application thus became a “singleton,” and the Bureau granted it.
    • In a similar case, the Media Bureau affirmed the grant of an application for a new NCE FM construction permit at Central Gardens, Texas and dismissed three mutually exclusive applications.  In so doing, the Bureau found that even after recalculating the coverage area proposed by each applicant, none of the applicants were eligible for points under “the best technical proposal” criterion because no applicant proposed to serve at least 10% more area and population than the next best proposal, as required to gain such a preference.  The decision on other comparative criteria was thus upheld.
  • We have been reporting on the continuing battle by Standard General to acquire TEGNA’s television stations (find previous updates on this proceeding on our Broadcast Law Blog noted here), including the FCC’s designation of the associated assignment/transfer applications for hearing before an Administrative Law Judge (ALJ).  That hearing (which has proceeded while Standard simultaneously pursued relief, thus far unsuccessfully, in court and before the full FCC) took a turn on April 27 when the ALJ issued an order suspending the hearing, finding that the hearing required discovery that, along with resolving the parties’ access to confidential information, would extend the proceeding well beyond Standard’s May 22, 2023 deadline for action.  Thus, rather than requiring the parties to spend time and resources on a potentially moot proceeding, the ALJ suspended the hearing.  If Standard finds a way to keep the transactions alive past May 22, then, presumably, the ALJ will resume the hearing.  The ALJ ordered Standard/TEGNA to file a status report on or before June 1, 2023, to update the record.  In the interim, various Congressional leaders and interest groups have weighed in (see the NAB blog here), urging the FCC to act on the application before the May 22 deadline rather than requiring the hearing. 
  • Shifting to must-carry issues, the Media Bureau denied a market modification petition filed by a commercial television station licensed to Fort Bragg, CA.  Market modification is the statutory process by which, as in this case, a commercial television station may seek to add communities to its DMA and thereby expand the zone where it may assert must-carry rights.  Fort Bragg is in the San Francisco-Oakland-San Jose, CA DMA, and the station sought in its petition to add Santa Rosa, CA to that DMA so it could compel the cable operator there to carry it.  After reviewing the petition according to the statutory market modification criteria and reviewing the evidence required under the FCC’s market modification rules, the Bureau denied the petition, weighing factors including that (i) the station’s historic carriage by other MVPDs in Santa Rosa only entitled it to a slight preference; (ii) Fort Bragg is 110 road miles from Santa Rosa; (iii) the station’s 41 dBu noise limited service contour did not reach Santa Rosa, and the station’s translator coverage cannot compensate for this in a market modification case; (iv) the station had failed to demonstrate meaningful economic connections between Fort Bragg and Santa Rosa; and (v) the station’s local programming was not sufficient enough to qualify as “coverage or other local service” to Santa Rosa.
  • The Media Bureau entered into a consent decree with an AM station to resolve the station’s repeated failure to timely place records in its online public inspection file.  The consent decree requires the station to adopt a public file compliance plan but does not impose a fine.

On our Broadcast Law Blog, this week we published our monthly look ahead to the regulatory dates of importance to broadcasters in May and early June. 

Courtesy Broadcast Law Blog