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.
- On March 16, the Federal Trade Commission (“FTC”) held an open meeting at which it voted to issue “6(b) orders” to eight social media and video streaming platforms (specifically Meta, Instagram, YouTube, TikTok, Snap, Twitter, Pinterest and Twitch) requesting information on how they monitor and review deceptive advertising on their platforms. “6(b) orders” are issued pursuant to the FTC’s authority under Section 6(b) of the FTC Act to compel information so that the FTC can investigate businesses and business practices. The FTC at the same time announced that it will conducting a study of the social media and video streaming platforms’ policies and practices to detect, prevent, and reduce deceptive commercial advertising and online shopping fraud, including the platforms’ maintenance and enforcement of advertising standards; verification and authentication of advertisers; screening for misleading, deceptive, and fraudulent ads; and use of disclosures and other techniques to ensure commercial messages are identifiable as advertising. The FTC also announced that it would issue a 6(b) order to five business credit reporting agencies (Dun & Bradstreet, Experian Information Solutions, Equifax, Ansonia Credit Data, and Creditsafe USA) requesting information on how they collect and report data about small businesses, and how they market their business credit reporting products. It will also conduct a study of the credit reporting agencies to bring more transparency to how algorithms and alternative data are utilized in the small business credit reporting market and whether there are disparities that disadvantage small business owners. Press releases announcing the FTC’s actions are available here and here; models of the 6(b) orders sent by the FTC are available here and here.
- The Florida Association of Broadcasters this week filed a Petition for Declaratory Ruling asking the FCC to declare that political ads run by committees and organizations which are not a candidate’s official campaign committee, but are “authorized” by the candidate, are not entitled to lowest unit rates. There has been a dispute over that question in the last few election cycles. The FCC has not yet announced whether it will take comments on this petition.
- As expected, the FCC, at its March 16 open meeting, adopted a Further Notice of Proposed Rulemaking (the full text of which is available here) seeking comment on whether to apply its audio description requirements to the TV markets where those requirements do not already apply (i.e., DMAs 101 through 210). Audio description inserts narrated descriptions of a television program’s key visual elements during natural pauses in the program’s dialogue, for the benefit of individuals who are blind or visually impaired. The FCC proposes that, if it determines that the costs are reasonable, the phase-in of the requirements will begin with DMAs 101 through 110 on January 1, 2025, and extend to an additional 10 DMAs per year, concluding with DMAs 201 through 210 on January 1, 2035. Comments and reply comments on the Further Notice will be due 30 and 45 days, respectively, after it is published in the Federal Register.
- As we’ve reported in previous weekly updates, the FCC’s Media Bureau has issued a hearing designation order referring questions about Standard General Broadcasting’s proposed acquisition of the TEGNA broadcast stations to an Administrative Law Judge (ALJ) for an evidentiary hearing. In response, the parties filed a Motion asking the ALJ to certify this designation to the FCC Commissioners for a determination as to whether the case really should have been designated for hearing. The ALJ this week denied that Motion. Because the FCC’s rules do not permit the parties to appeal the ALJ’s ruling, the hearing ordinarily would proceed before the ALJ as scheduled. The parties have nonetheless responded by filing an Application for Review, asking the Commission to overturn the Media Bureau’s decision to designate the transaction for hearing. At this time, it is unclear what if any impact this filing will have on the conduct of the hearing.
- The FCC released two Notices of Apparent Liability proposing to impose big fines on two pirate radio operators (the Notices are available here and here). Using the enforcement tools – particularly the higher fines – authorized by the PIRATE Act passed by Congress in 2020, the FCC proposed a to impose a fine of $2,316,034 on one alleged operator of a pirate radio station in the New York City area, and a fine of $80,000 fine on another operator of a pirate station in Oregon. As the FCC noted in its press release, this is the first time since the adoption of the PIRATE Act that the FCC has gone beyond the warning phase to issue notices of “forfeitures” (fines) on pirate operators and, in the New York case, use the full force permitted by the law to levy a multimillion dollar fine. For more details about these cases, see our Broadcast Law Blog article here.
- The Media Bureau denied a broadcaster’s petition for reconsideration asking for reinstatement and an 18-month extension of a construction period for a new FM in Florida. The decision highlights Section 73.3598(a) of the FCC’s rules, which states that an “eligible entity” buying a construction permit for a new station will be afforded an 18-month period to construct, beginning on the consummation date of its acquisition of the permit. The effect of that rule, which can extend the length of construction permits that would otherwise expire, had been suspended by a Court of Appeals decision in 2011 when the Court overturned the “eligible entity” definition. An eligible entity is one that qualifies as a “small business” until Small Business Administration rules. While the FCC eligible entity definition and its rule on the extension of construction permits was reinstated by the FCC in 2021, because the permit in this case expired in 2014 and that expiration was final before the policy was reinstated, the Commission declined to reinstate the construction permit.
- Via its “points system” for selecting among mutually exclusive applicants for NCE FM stations filed in the 2021 window for new NCE stations, the FCC’s Media Bureau awarded a construction permit to an applicant for a new station at Bernardsville, New Jersey. The Bureau did so notwithstanding an informal objection by one of the competing applicants, contending that the winning application should have been dismissed because it did not include a showing demonstrating the applicant’s compliance with the spacing requirements in Section 73.525 of the Commission’s rules to two television stations operating on Channel 6 (Channel 6 being adjacent to the NCE band). The winning applicant eventually amended its application to include the required showing. The Bureau ruled that the applicant’s initial failure to include the required showing was a curable defect, and the applicant’s showing demonstrated compliance with the rule.
- The Bureau entered into a Memorandum of Understanding (MOU) with an FM station that acknowledged that it had failed to timely place records in its online public inspection file. The MOU included a commitment from the station to implement a compliance plan to ensure compliance with its online public inspection file obligations.
- The Bureau proposed to impose a $1,500 fine on a low power television (LPTV) station that without explanation filed its license renewal application six weeks late. Ordinarily, the FCC’s rules require a $3,000 fine for such a violation. The Bureau reduced the fine $1,500 in recognition of the fact that LPTV stations only provide a secondary service.
- The Media Bureau proposed to substitute Channel 256A for vacant Channel 288A at Tecopa, California, to accommodate a proposed upgrade of an existing FM station from channel 290C1 to channel 291C at Amargosa Valley, Nevada. Channel 288A at Tecopa became vacant due to the Bureau’s cancellation of the license of the station that previously occupied that channel and will be available for application in a future FM auction window.
- The Bureau issued a Report and Order granting a noncommercial educational television station’s request that the FCC substitute noncommercial VHF channel 13 for noncommercial VHF channel 3 at Roanoke, Virginia, to address signal quality issues. For similar reasons, the Bureau substituted UHF channel 35 for VHF channel 11 at Hampton, Virginia. These decisions recognize the industry consensus that UHF channels, and even high VHF channels, provide better reception of digital television transmissions than do low VHF channels.
- The Bureau, jointly with the FCC’s Managing Director, issued an Order to Pay or to Show Cause to an AM station that had failed to pay or only partially paid its annual regulatory fees for 2012, 2015, 2016, 2017, 2018, 2019, 2020, and 2021. The Order directs the station to either provide the Bureau with evidence of full payment in 60 days or risk revocation of its license. While this is an extreme case, it is a reminder that the FCC takes unpaid regulatory fees seriously, and that licensees must ensure that such fees are paid in a timely manner.
Courtesy Broadcast Law Blog