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 US Court of Appeals for the Eighth Circuit has scheduled for March 19 the oral argument on the appeals of the NAB and various radio and television companies to the FCC’s December 2023 decision in its 2018 Quadrennial Review of the local broadcast ownership rules. As you will recall, the 2023 decision made no substantial changes to the rules (see our Broadcast Law Blog article here). Parties challenging the decision are arguing that the statute that requires the FCC conduct Quadrennial reviews of the ownership rules compels the FCC to make changes in the rules based on competition, and competition has certainly changed since 1996 when the current rules were adopted (see, for instance, our articles here and here), so some relaxation of the rules is necessary. We will be looking at the extent to which the FCC defends its 2023 decision, given that Chairman Carr and Commissioner Symington both dissented from that decision. Any full decision from the Court on the appeals likely will come months after the oral argument.
- In actions by the new Chairman, Carr sent a letter to Comcast and NBCUniversal informing them that the FCC’s Enforcement Bureau will investigate their DEI programs to see if they promote “invidious forms of discrimination in violation of FCC regulations and civil rights laws.” Carr also stated that this investigation was the FCC’s first step in ensuring that every FCC-regulated company ends their DEI initiatives, citing President Trump’s Executive Order directing federal agencies to enforce civil rights laws by combatting private-sector DEI initiatives. FCC Commissioner Starks released a statement indicating that the action gave him “grave concern,” quoting Carr’s 2023 concern about actions that give “the FCC a nearly limitless power to veto private sector decisions,” and stating that the investigation announced by the letter appeared “out of our lane and out of our reach.”
- In reference to other actions taken by the new Chairman, Senators Markey (D-MA), Lujan (D-NM), and Peters (D-MI) sent FCC Chairman Carr a letter urging him to close the FCC’s reopened investigations of ABC, CBS, and NBC regarding aspects of their coverage of the 2024 presidential campaign (see our discussion here) and its investigations into NPR and PBS regarding their alleged violations of the FCC’s underwriting rules (see our discussion here). The Senators state that the investigations appear to be politically motivated (noting that the FCC reopened its investigations of ABC, CBS, and NBC, but not Fox), were intended to punish and censor broadcasters based on a disagreement with their editorial choices, and threatened the freedom of the press.
- Two bills were introduced in Congress that propose ending NPR, PBS, and the Corporation for Public Broadcasting’s federal funding due to alleged political bias in their programming. The Defund Government-Sponsored Propaganda Act proposes to end PBS and NPR’s federal funding, and the No Propaganda Act proposes to end the Corporation for Public Broadcasting’s federal funding.
- The FCC’s Media Bureau granted a South Dakota AM station and its FM translator’s assignment application over an informal objection based on comments made by one of Buyer’s controlling principals on social media alleging that “journalism is dead” due to its liberal bias. The Bureau found that the objection raised no provision in law, regulation, or policy that would indicate that the principal’s social media posts were relevant to assessing the applicant’s qualifications to be a licensee. The decision noted that “licensees have broad discretion based on their First Amendment right to free speech to choose, in good faith, the programming they believe serves the needs and interests of their communities. Indeed, the Commission does not interfere with the programming decisions of licensees, nor does it consider issues of programming choice when reviewing an application for the assignment or transfer of a broadcast license…. the Commission will not take adverse action on an application based upon the subjective determination of a listener or group of listeners as to what constitutes ‘good’ programming.”
- The Media Bureau entered into a Consent Decree with a group of Kansas, Missouri, and Oklahoma radio stations to resolve its investigation into a series of unauthorized transfers of control following the death of the stations’ majority owner. The Consent Decree requires that the stations pay an $8,000 penalty and enter into a compliance plan to ensure that future violations of the FCC’s transfer of control rules do not occur.
- The Media Bureau made several updates to the FM Table of Allotments. The Bureau reinstated the following channels in the FM Table of Allotments as vacant due to either the cancellation of the associated station licenses or the dismissal of winning auction applications: Channel 254C1 at Loleta, California; Channel 285A at Adamsville, Texas; Channel 276A at Fabens, Texas; Channel 227A at Pearsall, Texas; and Channel 248C1 at Basin City, Washington. The FCC will announce in the future filing windows for broadcasters to file for permission to construct new stations on these vacant allotments. The Bureau also removed 61 vacant allotments from the FM Table of Allotments as these channels are no longer vacant because they are now occupied by licensed FM stations.
- The Media Bureau released a Notice of Proposed Rulemaking seeking comment on a TV station’s proposed community of license change from Silver City, New Mexico, to Truth or Consequences, New Mexico, and its proposed substitution in the TV Table of Allotments of Channel 12 at Silver City with Channel 12 at Truth or Consequences to reflect this change. The Bureau notes that the station’s community of license change would add a first local service to Truth or Consequences, while another TV station licensed to Silver City would continue serving that community.
- The Media Bureau dismissed an application for a construction permit for a new Iowa LPFM station for failure to comply with the LPFM minimum power and spacing rules. The applicant requested a waiver of the rules to allow it to amend its application to a second-adjacent channel change to resolve the short-spacing in the original application (the amendment would need a waiver as the proposed site would still be short-spaced to another station, though the applicant claimed it would cause no real interference), or alternatively to grant it a waiver of the LPFM processing rules to permit it to file a major amendment to move to a non-adjacent channel. The Bureau found that the applicant failed to cite any unique circumstances justifying either waiver, citing reasons including that either waiver would be a broad change in the application processing policies potentially affecting many LPFM applicants that failed to file acceptable applications, and such a policy change should not be made in the context of an individual application.
On our Broadcast Law Blog, we discussed the FCC Enforcement Advisory released last week warning of payola concerns in coercing bands to play at station events with threats of decreased airplay, and how that advisory serves as a reminder for broadcasters about issues that can arise under the FCC’s payola and sponsorship identification policies. We also discussed the U.S. Copyright Office’s Notice of Inquiry regarding the complicating effects on music licensing created by the proliferation of performing rights organizations, and the specific issues that music users, including broadcasters, face in dealing with the increasing number of PROs.
