This Week in Regulation for Broadcasters:  August 5, 2024 to August 9, 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’s Public Safety and Homeland Security Bureau announced that October 4 is the deadline for EAS Participants to file their annual Emergency Alert System Test Reporting System (ETRS) Form One – which requires EAS Participants, including broadcasters, to provide information regarding their EAS equipment and monitoring assignments along with other relevant data.  While there is no nationwide EAS test scheduled for this year, the FCC requires all EAS Participants to annually update their EAS information in the ETRS database by filing an ETRS Form One.
  • In other EAS news, the FCC adopted a Report and Order establishing a new Emergency Alert Service event code for persons over the age of 17 who are missing or abducted from states, territories, or tribal communities (known as Ashanti Alerts).  To allow time for implementing the Ashanti Alerts, the new event code will not become effective until twelve months after the Order’s publication in the Federal Register. 
  • The National Association of Broadcasters filed pleadings with the FCC asking for reconsideration of the reinstatement of the FM nonduplication rule and asking for more time to comment on the FCC’s proposed AI disclosure requirement for political advertising:
    • The NAB filed a petition for reconsideration of the FCC’s June decision to reinstate the rule prohibiting the duplication of programming on commercial FM stations serving the same area.  The reinstatement the was the result of a petition filed by music industry groups and an LPFM advocacy group asking for reconsideration of a 2020 FCC decision that had abolished the rule.  The rule prohibits commonly owned or operated commercial FM stations with overlapping 70 dbu service contours from duplicating more than 25% of their programming.  The NAB argues that the FCC had no basis for reinstating the rule and failed to seek public comment to determine if, in the 4 years when the rule was not in effect, any real public interest issues developed from its absence.  See the article on our Broadcast Law Blog on the specific requirements of the rule, the issues raised by the NAB’s petition for reconsideration, and the music industry’s recent activity seeking more broadcast regulation, possibly as a reaction to broadcast radio not paying a performance royalty for the broadcast of sound recordings.
    • The NAB, along with the Motion Picture Association, filed a request to extend the comment and reply deadlines for the FCC’s Notice of Proposed Rulemaking proposing that broadcasters and cable operators be required to disclose, both on the air and in their Online Public Inspection Files, the use of AI-generated content in political advertisements.  The NAB and MPA seek to delay the NPRM’s comment and reply comment deadlines to October 4 (currently September 4) and November 4 (currently September 19) to ensure that the public has sufficient time to provide a meaningful response to the proposals, noting that there is no need for the FCC to rush the proceeding as new rules cannot be effective in time for the November election.
      • Also on the topic of AI in political advertising, the Federal Election Commission’s Republican Commissioners circulated a draft decision that will be considered at the agency’s next Open Meeting on August 15, proposing to reject a petition for rulemaking to initiate a rulemaking proceeding on the use of AI in campaign communications due to their belief that the FEC lacked authority to make rules about such uses.  We will have more on the FEC’s decision on our Broadcast Law Blog on Monday.
  • The FCC’s Office of Communications Business Opportunities announced the FCC’s plan to review rules adopted in 2013 to determine whether such rules should be amended, repealed, or continued without change.  Under the Regulatory Flexibility Act, the FCC is required to review all rules after they have been in effect 10 years to determine if they are still necessary.  The Public Notice lists the rules subject to review, which includes several rules applicable to broadcast stations, including rules on LPFM allocations, interference to AM stations from other Commission licensees operating near an AM tower, and mandating accessibility to emergency information.  Comments in the proceeding will be due 60 days after the notice’s publication in the Federal Register.
  • The FCC’s Enforcement Bureau proposed a $14,000 fine against a group of radio stations for allegedly failing to conduct a nationwide contest as advertised.  Specifically, the Bureau found that the stations failed to select and notify 50 out of the 297 contest’s winners on a timely basis as promised by the contest rules.
  • The FCC reversed the Media Bureau’s dismissal of a modification application for an LPFM station and grant of mutually exclusive FM translator modification application.  The Bureau had dismissed the modification application of a St. Louis Park, Minnesota LPFM and granted the mutually exclusive modification of a Plymouth, Minnesota FM translator station because the St. Louis Park station failed to protect a short-spaced LPFM station in St. Paul, Minnesota, finding that the LPFM had filed its application prematurely, hours before St. Paul station’s license was to expire instead of after its expiration, and that its proposed facilities created impermissible short-spacing to the Plymouth translator.  The FCC found that the Bureau’s dismissal of the St. Louis Park application conflicted with agency policy against dismissing an application for technical defects (the failure to protect the St. Paul station) if the defect is eliminated before a staff decision on the application (here, the St. Paul station’s license expiration).  Consistent with agency policy, the FCC also found that the St. Louis Park station could file an amendment to resolve its Plymouth translator short-spacing issue – which the applicant now has 30 days to do.
  • The Media Bureau granted TBS and TNT’s request for a three-year waiver of the audio description rules which require the top five cable networks to air 87.5 hours of audio described programming per quarter.  In one of our weekly summaries earlier this summer, we noted that the networks claimed that their inability to count “repeats” of described programming kept them from meeting the requirements of the rule, even though they transmitted far more than the minimum amounts of such programming. The Bureau granted the request with certain conditions for each cable network, including that TBS and TNT must air a minimum amount of audio-described programming per quarter and must describe all newly produced, non-live programming aired between 6:00 a.m. and midnight. 
  • The Media Bureau also released a Report and Order substituting Channel 285C1 for vacant Channel 235C1 at Canadian, Texas to allow an FM station in Panhandle, Texas to move from Channel 291C3 to Channel 235C3.  The Bureau found that granting the channel substitution was in the public interest because it will enable the FM station to enhance service to its community of license and the surrounding areas.  In the future, the Bureau will announce the opening of a filing window for construction permit applications for a new station on vacant Channel 285C1 at Canadian. 
  • The Media Bureau denied a request to reinstate an Arizona AM station’s license that expired pursuant to Section 312(g) of the Communications Act, but agreed to reinstate its FM translator.  The Bureau previously ordered the station and its translator to cease operations after finding that their licenses were cancelled automatically pursuant to Section 312(g) because the AM station operated for more than one year from a site without authorization after its Special Temporary Authority had expired, and the FM translator could only rebroadcast the AM station due to a condition on its license.  The Bureau rejected the station’s argument that the cancellation of its license was an excessive penalty for its failure to request an STA extension, finding that FCC precedent supported that decision.  The Bureau did, however, agree to reinstate the translator’s license if it rebroadcast another primary station because the FCC has misinterpreted the condition on its license, and the translator was not permanently tied to the AM station.  The translator now has 60 days to notify the FCC that it has a new primary station. 
  • The Media Bureau also entered into a Consent Decree and proposed a fine for two broadcast stations’ failure to comply with their Online Public Inspection File requirements:
    • The Bureau entered into a Consent Decree with a Texas FM station to resolve its investigation of the station’s purported failure to comply with its OPIF requirements.  The FCC’s release does not specify the station’s OPIF violations, but its renewal application indicated that Quarterly Issues Programs lists had not been timely filed.  The Consent Decree requires that the station implement a compliance plan to ensure future violations do not occur, without having to pay a civil penalty which often accompanies such a Consent Decree.
    • The Bureau also imposed a $6,000 fine on a Florida TV station for its late upload of seven Quarterly Issues/Programs Lists to its OPIF during its last license period.  The Bureau originally imposed a fine of $9,000 against the station for its late upload of ten Issues/Programs Lists but reduced the fine to $6,000 after the station showed that only seven Issues/Programs Lists were uploaded late.

On our Broadcast Law Blog, we discussed how the FCC’s recent Declaratory Ruling approving the acquisition by a company owned by a Canadian citizen of 100% of the ownership interest in a company that owns an AM radio station in Seattle illustrates the approval process for foreign ownership in US broadcast stations and the FCC’s openness to such foreign investment.