This Week in Regulation for Broadcasters: February 5, 2022 to February 11, 2022

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

  • Global Music Rights (GMR) and the Radio Music Licensing Committee (RMLC) announced that enough broadcasters had agreed to GMR licensing terms to make the negotiated settlement between these groups effective. As we wrote here in early January, GMR and RMLC entered into a conditional settlement to end their long-running court battle over music royalty rates, but enough radio stations had to agree to the licensing terms set by GMR before the settlement would become effective.  Now that the threshold has been reached and the deal is effective, GMR has extended through March 31 the sign-up period for its license agreements for commercial radio stations.  By that date, commercial stations either need to sign the agreement, purge GMR music from their stations, or negotiate a different deal with GMR, or they will be subject to infringement actions.  See our post on the Broadcast Law Blog for more information.
  • The FCC announced that Auction 112, an auction for the rights to build new full-power TV stations in 27 markets, will move ahead with the initial “short-form applications” (FCC Form 175) necessary to participate in the auction due between 12pm EST on March 17 and 6pm EST on March 30. Bidding will begin on June 7.  See the Public Notice for details on the filing window, upfront payments, and bidding procedures.  The list of channels available in the auction on which new TV stations can be built is available, here.
  • The FCC announced that, in 27 communities, FM channels in the commercial band that had been reserved for noncommercial use will no longer be reserved. Applications or authorizations for those reserved channels did not result in the construction of new noncommercial stations, so the FCC has decided to remove the noncommercial reservation and make those channels available for commercial use in a future FM auction.  The FCC’s Order, including a list of the vacant channels that will be auctioned, is available here.
  • Gigi Sohn went before the Senate Commerce Committee for questioning for a second time as senators continue to consider her nomination for the last open Commissioner’s seat on the FCC. Sohn was questioned about her role as a board member for Locast (the now-defunct TV streaming service that was found to have violated copyright law by rebroadcasting TV stations without permission), her decision to recuse herself from certain matters if she is confirmed, and how her past work as a public interest advocate would influence her decisions on the Commission.  Her nomination must clear the committee before it can be taken up by the full Senate, and the timing of any action is uncertain.  See archived video of the hearing, here.
  • A Federal Register notice announced that starting March 14, broadcast stations, in assessing political advertising from purported write-in candidates, will need to include in their review the candidate’s social media presence and creation of campaign website when determining if the candidate has made a “substantial showing” of a bona fide candidacy. If a write-in candidate can make the substantial showing, he or she is considered a “legally qualified candidate” entitled to all the benefits and protection of the FCC’s rules, including equal opportunities, lowest unit rates and, for candidates for federal office, reasonable access to buy advertising time on commercial stations.  A second rule change that requires broadcasters to upload documentation about federal issue ads to their public file will be effective after additional review to assess the rule’s compliance with the Paperwork Reduction Act.  Broadcasters already upload this information to their public file, and this update merely brings the FCC’s rules in line with the requirements of federal statute and thus has no practical effect on a station’s political file obligations.  We wrote in more detail about these changes, here.  (Federal Register)
  • Comment dates are now set on FCC proposals to reform certain EAS rules. These include a Notice of Proposed Rulemaking that seeks to enhance visual EAS messages to assist people who are deaf or hard of hearing and a Notice of Inquiry that asks for suggestions on how to improve the current EAS daisy chain architecture to better deliver alerts.  Comments and reply comments on the NPRM are due by March 11 and March 28, respectively.  Comments and reply comments on the NOI are due by April 11 and May 10, respectively.  (Federal Register)
  • The US Court of Appeals for the DC Circuit set April 12 as the date for the FCC and NAB to present oral arguments over the FCC’s new rules on sponsorship identification for programming provided by a foreign governmental entity. Under the new rules, stations will have to disclose when certain programming has been provided by a foreign governmental entity and take investigatory steps whenever they sell any blocks of program time to determine if any of buyer of program time is a representative of a foreign government.  The NAB has argued that the new rules exceed the FCC’s authority and that the required disclosures violate the First Amendment.
  • The FCC has designated for a hearing the renewal application of an Idaho radio station based on the station’s record of extended silence and operation at significantly reduced power. The FCC found that the station was silent for 80% of the time from the current licensee’s acquisition of the station in February 2018 through present day.  The hearing will determine if the station adequately served the needs of its community in light of the extended silent periods, if the station’s license expired due to its prolonged silence (licenses expire if a station is silent for over a year unless a public interest showing is made that the license should be preserved), and ultimately if the renewal should be granted.  Whenever a station goes silent, minimize the period when it is not operating to avoid these issues.  (Hearing Designation Order)
  • The FCC’s Audio Division released three decisions dealing with various issues that come up in connection with FM stations changing channels to improve their facilities.
    • In the first, the Division’s decision shows the difference in treatment between commercial FM stations that change their city of license and translators and other stations who take the same action. The change in a city of license for a commercial FM station granted through a minor change application is effective immediately upon the grant of the construction permit, even before the station has built the new facilities to serve its new community.  Until it builds the new facilities, the permit holder operates from its original community under an “implied STA” which can be revoked if it delays building its new facilities.  In contrast, a change in the city of license for an FM translator (as well as AM and reserved-band noncommercial FM stations) is not effective until it has constructed the new facilities and filed a license to cover those changes.  (Letter Decision #1)
    • A second case dealt with an FM station that was ordered to change channels to accommodate the channel change of another broadcaster. To allow for new FM stations or station upgrades of their facilities, another station can be forced to change its channel of operation if the forced change is to a channel that allows an equivalent power operation from the station’s existing transmitter site. The broadcaster seeking the change must agree to reimburse the station that is being forced to change its reasonable costs incurred in the change.  In a decision released this week, the Commission ordered a station that did not cooperate in changing its channel after having been ordered to do so to cease operations as the station that had sought the changes was ready to commence its operations.  (Letter Decision #2).
    • The third case considers also considers a forced channel change but focuses on the reimbursement due to the station being forced to change channels to accommodate the upgrade of another station. In most cases, the parties come to an agreement as to the reasonable costs for the channel change.  This was one of the rare cases where the Commission had to intervene to determine the proper amount of the reimbursable costs, ordering the upgraded station to pay the station that was forced to change channels $96,566.58, about $60,000 more than the upgraded station argued was reasonable.  The FCC determined that a costs of a new transmitter and for extensive legal fees incurred to collect the reimbursement were legitimate costs that should be paid by the benefitting station.  (Letter Decision #3)
  • With Spotify and Joe Rogan’s podcast (and Neil Young’s decision to remove his music from the platform) in the news over the last couple of weeks, we wrote on the Broadcast Law Blog about some of the rights and royalty issues behind the story. Read the post for some insight into why Spotify has poured money into podcasting and why it may be reluctant to drop Rogan, even if some of his content is objectionable.  (Broadcast Law Blog)

Courtesy Broadcast Law Blog