This Week in Regulation for Broadcasters: August 7 to August 11, 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 released its Report and Order setting the annual regulatory fees that broadcasters must pay for 2023. The Order confirmed the FCC’s preliminary conclusion from its May Notice of Proposed Rulemaking to reallocate the costs of some of its employees who did not perform services that affected broadcasting away from broadcast services, thus substantially lowering broadcast regulatory fees for 2023.  TV stations will pay approximately 12% less than last year.  Radio fees will also decrease.  Radio stations with the smallest service areas will see the biggest decreases, as the FCC added a new lower tier of fees for the radio stations covering the fewest people (those serving fewer than 10,000 people).  We summarized the FCC’s preliminary conclusions in the Notice of Proposed Rulemaking in our Broadcast Law Blog article, here.  We expect that, in the next few days, the FCC will issue a Public Notice announcing the dates for the payment window.  We also expect that, as in the past, the Media Bureau will release a fee filing guide for the broadcast services.
  • The Federal Election Commission voted to open for public comment the question of whether to start a rulemaking proceeding to declare that “deepfakes” or other AI technology used to generate false images of a candidate doing or saying something, without being labeled as not being true images of the candidate, violate the FEC’s rules against fraudulently issuing a statement on behalf of a candidate or committee.  The FEC approved the Draft Notice of Availability to initiate the request for public comment on a rulemaking petition asking for this policy to be adopted.  Comment dates will be announced in a future Federal Register notice.    
  • In separate decisions (available here and here), the FCC’s Media Bureau found that a licensee of two FM stations in Florida had failed to satisfy the FCC’s criteria for changing the stations’ communities of license from small communities within urbanized areas to the central city in their urbanized area.  While the stations’ current communities had no other services licensed to them, in prior cases, the FCC had approved intra-urbanized area city of license changes, finding that all stations in the urbanized area really served the entire urbanized area so a move from one community in the area to another was inconsequential (see our article here).  Here, the FCC distinguished those past cases, finding them different because there was improvement in population coverage from technical changes included in the proposals that had been approved, while the applicants here proposed no change in their technical facilities.  Thus, the Media Bureau concluded that without such a public service benefit, these city of license changes, even though they were within an urbanized area, would not be a preferred arrangement of FM allotments, and asked the applicants for more information on any benefits that would accrue from the proposed changes. 
  • The FCC’s Media Bureau entered into a Consent Decree with an Oklahoma FM station to resolve the station’s failure to seek FCC authorization to remain silent for more than 30 days.  The station had been silent for nearly twelve months, but failed to timely notify the FCC that it had discontinued operations and did not timely seek special temporary authority to remain silent.  The station also conceded that it had failed to timely upload material to its online public inspection file.  The station agreed to pay a civil penalty of $5,000 to the US Treasury and implement a compliance plan to guard against future violations of its public file obligations.
  • The Media Bureau issued two decisions resolving mutually exclusive applications in its 2021 reserved band NCE FM filing window.
    • In one, it reaffirmed its selection of the tentative selectee for a construction permit for a new NCE FM station at Grand Forks, North Dakota, and its rejection of a competing applicant for that facility.  The Bureau found that the competing applicant had failed to claim points under the NCE comparative criteria at the time it filed its application, as required for any such claims to be credited.  The Bureau also found that the winning applicant had properly certified that there was no contour overlap between its proposed facility and its other stations, even though one exhibit in its application with a sentence that contradicted that claim, finding that the contradictory statement should be ignored as it was a scrivener’s error that was itself contradicted not only by the certification but by other maps and statements in the application.  Thus, the applicant was entitled to points under the diversity of ownership criterion and to be preferred over the applicant whose points claims came after the time for making such claims had passed.
    • In another case, the Bureau rescinded its selection of the tentative selectee for a construction permit for a new NCE FM station at West Lake, Florida and instead selected a competing applicant for the same facility at Cross City, Florida, who had petitioned the FCC to deny the West Lake application.  The Bureau found that the competing applicant was not entitled to the preference with which it had previously been credited for providing a first NCE service to a greater portion of its coverage area than competing applicants because it had failed to account for an FM station at Live Oak, Florida that was operating on commercial channel that had actually been reserved for NCE operation (in an NCE 307(b) coverage analysis, a preference is given to an applicant providing greater first NCE coverage it an area. In determining whether there is other NCE service in the area, only reserved-noncommercial stations are counted as providing such service).  The Live Oak station, even though it was operating on a commercial frequency, was operating on a channel that had been specifically reserved by the FCC for noncommercial use, and thus should have been counted in the analysis of other NCE stations in the service area of the applicant).
  • In separate decisions (available here, here, here, here, and here), the Bureau proposed to impose fines ranging from $1,500 to $3,000 on licensees of low power television stations and television translators in California, Michigan, Montana and Oregon for failing to timely file their license renewal applications.
  • The FCC issued a Public Notice seeking public comment on a petition for declaratory ruling filed by the licensee of three El Paso, TX radio stations, asking the FCC to find that it would serve the public interest to allow the licensee to accept foreign investment in excess of the 25% benchmarks set forth in section 310(b)(4) of the Communications Act by permitting a Mexican citizen to hold 100% of the equity and voting interests in the licensee’s controlling U.S. parent company. 
  • The Bureau issued a Hearing Designation Order to commence a hearing before an Administrative Law Judge to determine whether Antonio Cesar Guel, the former president and 100% direct owner of Hispanic Christian Community Network, Inc. (HCCN), the prior licensee of a total of seven low power television stations in five different states, misrepresented material facts and orchestrated an illusory transaction to transfer the stations to his niece.  The Order states that the record developed thus far “raises substantial and material questions” as to whether Guel’s niece really controls the stations or whether HCCN and/or Guel actually exercise control over the stations, and whether HCCN, Guel, and Guel’s niece engaged in misrepresentation and/or lack of candor before the FCC.  The Order ultimately seeks to determine (a) whether the licenses of the stations should be revoked; (b) whether the applications for renewal of the licenses of the stations should be granted, dismissed or denied; and/or (c) whether a fine should be assessed against Guel’s niece.

Courtesy Broadcast Law Blog