This Week in Regulation for Broadcasters: April 10 to April 14, 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 has requested comments on NAB’s petition asking the Commission to grant a two-year extension of the May 26, 2023 deadline by which broadcasters must comply with Section 79.2(b)(2)(ii) of the Commission’s rules, which requires television broadcasters to provide an aural description of visual, non-textual emergency information, such as radar maps or other graphics, on the station’s SAP channel, i.e., a secondary audio stream.  The FCC has already issued such an extension three times since the initial compliance deadline of May 26, 2015, as the NAB contends that there still is no workable technology that can perform the functions required by the rule (see our Broadcast Law Blog article here from the last extension 5 years ago).  NAB asserts that the waiver will allow it to explore other possibilities to develop a system to provide accurate audio descriptions of pictures and graphics about emergency situations, solutions possibly including those afforded by artificial intelligence (AI)-based systems.  NAB further claims that the impact of the waiver will be mitigated by the fact that critical details of an emergency will usually be provided in accompanying textual crawls, which are already aurally described and accessible. Comments are due April 24, reply comments are due May 1. 
  • As we’ve previously reported, the FCC has issued a Notice of Proposed Rulemaking (NPRM) requesting comment on a variety of proposed rules implementing the Low Power Protection Act (LPPA).  The LPPA provides certain low power television stations in small markets with a “limited window of opportunity” to apply to become Class A television stations with primary status, protecting them from interference from new or improved full-power stations.  The FCC is seeking comment on interpreting the eligibility requirements for stations seeking this status. The FCC this week issued a Public Notice confirming that, by virtue of the NPRM’s publication in the Federal Register, comments and reply comments on the NPRM will be due May 15 and June 13, respectively.
  • The FCC issued an Order on Reconsideration, Report and Order and Memorandum Opinion and Order addressing some of the rules that permit unlicensed wireless devices to operate in TV “white spaces” (i.e., portions of the TV broadcast bands where frequencies are not in use by licensed services or other protected entities).  In the Order on Reconsideration, the FCC upheld its prior decision (see our articles here, here and here) to permit mobile white space devices to operate at 16 watts EIRP and narrowband white space devices to operate in all areas rather than limiting them to “less congested” areas.  In the Report and Order, the FCC (i) permits mobile white space devices to comply with the same hourly interval for rechecking the database of protected users that the Commission recently required for most other white space devices, and (ii) continues to require narrowband white space devices to re-check the white space database once per day rather than once per hour.  The Commission also refused to allow the white space database to use terrain-based models, such as the Longley-Rice Irregular Terrain Model (Longley-Rice) to determine which TV channels are available for white space device operation at a particular location. Instead, the Commission will require that white space databases continue to use only the current model for determining TV channel availability.
  • The FCC’s Enforcement Bureau issued a Revocation Order revoking the license of an FM station in Pennsylvania.  The licensee had pled guilty to five crimes, consisting of one felony (criminal use of a communications facility) and four related misdemeanors, but received probation instead of a prison sentence.  The Media Bureau subsequently initiated a hearing before an FCC Administrative Law Judge (ALJ) to determine whether, based on these crimes, the licensee’s license should be revoked.  The licensee, who chose to represent himself, repeatedly failed to comply with the hearing’s procedural requirements so the Judge found that he had waived his right to a hearing and terminated that hearing.  In this Order, the Enforcement Bureau revoked the licensee’s license finding that the criminal convictions and the licensee’s disregard for the hearing rules supported a finding that the licensee lacked the character qualifications to hold a Commission license.
  • As it has over the past several weeks with respect to various television translator licensees that filed their renewal applications late, the Media Bureau, in two separate decisions, has proposed to fine a Nevada translator licensee a total of $32,000 ($1,500 per license) for late-filed renewals.  The Bureau noted that its rules specify a base fine of $3,000 for such violations, but in this case (as in the other recent cases) decided to reduce the fine to $1,500 because translators only provide secondary service and provide important “fill-in” service to areas that otherwise may be unable to receive over-the-air television service.   For similar reasons, the Bureau also proposed to fine an Oregon LPTV station $1,500 for failing to file a timely license renewal application.
  • The Media Bureau reinstated FM channel 290A at Hardwick, Vermont to the FM Table of Allotments.  This channel had previously been deleted as it received no bids in previous FM auctions, and no one expressed an interest when the FCC asked if the channel should be retained.  However, one company expressed late interest in the Hardwick allotment.  That party subsequently filed a petition for reconsideration of the deletion, repeating its interest in the allotment and primarily citing the COVID pandemic as the reason why it did not participate in competitive bidding for the Hardwick channel and why it failed to file its expression of interest in time.  In this week’s decision, the Bureau accepted the party’s late expression of interest (noting that the proceeding was uncontested, and no prejudice would occur to other parties) and reinstated the Hardwick allotment, which will be available for application in a future FM window.
  • The Media Bureau also allotted FM channel 272A to Dennison, Ohio as its first local service.  The Bureau found that Dennison, population 2,709, qualified as a “community” for allotment purposes (it has, for example, a mayor, city council, fire and police departments, zoning board, finance, public safety, economic development, and human resources committees).  The Bureau rejected objections to the allotment based on claims that the allotment would displace a co-channel LPFM station operating in a neighboring community, notwithstanding the many letters of support filed by the LPFM station’s listeners.  The FCC pointed out that LPFM stations are deemed secondary to “drop-in” FM allotments under Section 5(3) of the Local Community Radio Act of 2010.  The Bureau also noted that “[w]hile we recognize the valuable service being provided by LPFM stations, these facilities are secondary FM services and must protect subsequently authorized full-service primary stations.”  This channel will also be available for application in a future FM window.

Courtesy Broadcast Law Blog