This Week in Regulation for Broadcasters:  August 12, 2024 to August 16, 2024

Here are some of the regulatory developments of significance to broadcasters from this past week, with links to where you can go to find more information as to how these actions may affect your operations.

  • The FCC announced that oppositions are due August 27 in response to the National Association of Broadcasters’ petition for reconsideration of the FCC’s June decision to reinstate the rule prohibiting programming duplication by commonly owned or operated commercial FM stations serving the same area.  The NAB argues that the FCC had no basis for reinstating the rule and it failed to seek public comment to determine if there were any real public interest issues that developed during the four years that the rule was not in effect.  See last week’s article on our Broadcast Law Blog for more on the nonduplication rule and the issues raised by the NAB’s petition.  Replies to oppositions to the petition are due September 6.
  • The FTC announced a final rule prohibiting the purchase and sale of fake reviews and testimonials concerning products and services, and allowing the agency to seek civil penalties against knowing violators.  Among other things, the rule prohibits activities including the selling or purchasing of fake consumer reviews or testimonials, buying positive or negative consumer reviews, certain insiders creating consumer reviews or testimonials without clearly disclosing their relationships, creating a company-controlled review website that falsely purports to provide independent reviews, certain review suppression practices, and selling or purchasing fake indicators of social media influence. The FTC also stated that the FTC Act prohibits any deceptive or unfair practice involving reviews or testimonials that are not covered by the rule.  In discussing the prohibited acts, the FTC specifically noted the penalties it imposed in 2022 on Google and a large broadcaster when Google paid the broadcaster to have its radio DJs promote their use of the Pixel 4 phones when they had not in fact used those phones (see our article on that case for more details).
  • There was activity in both the FCC and the Federal Election Commission proceedings about requirements for labeling the use of Artificial Intelligence in political advertising.
    • A group of 40 public interest groups signed on to a letter urging the FCC to adopt the rules it proposed that would require broadcasters and other FCC regulated entities to include disclosures, both on the air and in their public files, of political ads using AI. The letter (available here on the website of one group, but not yet included in the FCC docket file for this proceeding) suggests that the rule be applied to mandate disclosures in both candidate and issue advertising, but the letter includes no analysis of the Communications Act ban on broadcasters censoring a candidate ad.  See our Broadcast Law Blog article for a discussion of this and other issues arising from the FCC proposal.
    • The FEC meeting scheduled for August 15 was cancelled.  At that meeting, the FEC was scheduled to consider a Notification of Disposition circulated by the Republican Commissioners proposing to reject a Petition asking that the FEC start a rulemaking to consider restrictions on the use of AI in political ads.  A new FEC meeting is now scheduled for August 29, at which time the Republican proposal may be discussed.  See our Blog article summarizing the impact of this proposed Notification. 
  • The FCC announced that its July Report and Order requiring that device manufacturers and Multichannel Video Programming Distributors make closed captioning display settings “readily accessible” to individuals who are deaf or hard of hearing will be effective September 16.  We noted some of the findings as to what is readily accessible in our weekly summary when the FCC’s Order was first adopted.  The requirement applies to all U.S.-manufactured devices using a picture screen that are designed to receive or play back video programming simultaneously with sound (such as televisions, smartphones, tablets, and computers).  MVPDs that provide their customers with covered devices to use their services must comply with the requirement.  MVPDs, however, are not required to comply with the new rules until the later of August 17, 2026 (two years after the Order’s publication) or after the Office and Management Budget finishes its review of the new rules.
  • The FCC’s Media Bureau, along with the FCC’s Managing Director, issued an Order to Pay or to Shaw Cause to an AM and an FM station in Mississippi proposing to revoke the stations’ licenses unless, within 60 days, the stations pay their delinquent regulatory fees and interest, administrative costs, and penalties, or to show that the debts are not owed or should be waived or deferred.  The FM station has an unpaid regulatory fee debt totaling $9,062.22 for fiscal years 2013 through 2020, 2022, and 2023.  The AM station has an unpaid regulatory fee debt totaling $9,825.07 for those fiscal years.
  • The Media Bureau fined a Tennessee FM translator $4,875 for filing its license renewal application almost four years late and engaging in unauthorized operations after its license had expired.  In July, the Bureau proposed a $6,500 fine against the translator, but reduced the fine to $4,875 due to its licensee’s long history of compliance with FCC rules.
  • The Media Bureau also acted on three LPFM construction permit applications:
    • The Bureau granted a Michigan LPFM construction permit application over allegations that the proposed LPFM station failed to protect a proposed FM translator station and that the applicant failed to meet the LPFM localism requirement because neither its headquarters nor 75% of its board members’ residences were within required radius of its proposed LPFM station’s transmitter site.  The Bureau found that protecting the proposed translator was not required because LPFM applicants’ obligation to protect proposed stations only extends to applications filed prior to the release of the LPFM filing window procedures Public Notice on July 31, 2023.  The Bureau also found that there was no credible evidence that the applicant’s headquarters and its board members’ residences were not local.
    • The Bureau dismissed a Louisiana LPFM construction permit application for its applicant’s failure to meet the LPFM localism requirement because its headquarters was roughly 148 miles from its LPFM station’s proposed transmitter site, and therefore beyond the 20-mile radius limit to qualify as local. 
    • The Bureau dismissed a Texas LPFM construction permit application because its applicant failed to provide evidence of its eligibility to be an LPFM licensee as a nonprofit educational institution or organization under Texas law. 

On our Broadcast Law Blog, we discussed the obligation of EAS Participants, including broadcasters, to file their EAS Test Reporting System (ETRS) Form One by October 4, 2024, even though there is no nationwide EAS Test scheduled for this year.