This Week in Regulation for Broadcasters:  January 29, 2024 to February 2, 2024

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 announced the circulation for Commissioner review and approval of two decisions of interest to broadcasters, signifying that we may soon see FCC action on these matters:
    • FCC Commissioners Carr and Starks released a joint statement supporting FCC Chairwoman Rosenworcel’s action circulating an order resolving the FCC’s long-pending proceeding about whether to authorize “zonecasting” or “geo-targeting” for FM stations.  This proceeding considers allowing FM broadcasters to use on-channel FM boosters to originate limited amounts of programming, presumably allowing different commercials in different parts of a station’s service area.  The Commissioners suggested that giving FM stations the option to air geotargeted content would allow broadcasters to reach targeted audiences more cost effectively.  For further discussion of this zonecasting issue and why many broadcasters oppose the idea, see the article we posted this week on our Broadcast Law Blog, here.
    • In this week’s list of tentative written decisions circulating among the Commissioners for review and a vote, a new item was added – a decision on petitions for reconsideration of the Commission’s 2020 decision to abolish the rule prohibiting two commonly owned radio stations serving the same area in the same service (AM or FM) from duplicating more than 25% of their programming (see our article here on that 2020 decision).  While the tentative decision on the reconsideration petitions is not yet public, we note that FCC Chairwoman Rosenworcel and Commissioner Starks dissented from the 2020 decision, arguing that only AM radio should have been freed from the duplication restrictions. Now that there are three Democratic commissioners, could that 2020 decision, when there was a majority Republican commission, be changed?  Watch for further action on this item.
  • This week, there were also actions on Capitol Hill of interest to broadcasters:
    • Congressman Josh Gottheimer (D) sent a letter to the National Highway Traffic Safety Administration (NHTSA) requesting NHTSA to require manufacturers to display a safety warning on the car window “sticker price” when a vehicle does not have an AM radio.  The warning would be required until the AM Radio for Every Vehicle Act is passed by Congress.  As we discussed here, the Act has not yet passed in either House of Congress.  Gottheimer states that such a warning is necessary because AM radio forms the backbone of the Emergency Alert System and provides broadcasts that reach remote areas of the country – making AM radio a more reliable means of communication than FM or satellite radio during emergencies.  See our discussion here regarding the bill, and its importance to AM broadcasting.
    • On January 31, the House Subcommittee on Commerce and Technology held a hearing titled “TV Timeout: Understanding Sports Media Rights,” which focused on how streaming services have disrupted the media marketplace.  Television and media representatives were witnesses at the hearing (see here, here, here, and here for each witnesses’ written testimony).  Key lines of questioning included: streaming services, retransmission consent and TV blackouts, local broadcasting, media rights, and regional sports networks.  The House staff memo outlining the issues to be discussed at the hearing can be viewed here, and a video of the hearing can be viewed here.  
    • Also on January 31, the Senate Judiciary Committee held a hearing “Big Tech and the Online Child Sexual Exploitation Crisis,” where the CEOs of many of the largest social media companies testified on ways to protect children when they use these online platforms.  Discussions included ways Congress could act to regulate social media.  Testimony from the witnesses and a video of the hearing is available on Judiciary Committee website, here.
  • The FCC’s Media Bureau released a Public Notice in which it summarized the processing procedures for the 1,336 applications filed during the December 2023 LPFM filing window, and announced that the temporary freeze on filing amendments to new LPFM station applications was lifted at 6:00 p.m. EST on January 31, 2024, meaning that such applications can now be updated.  The Bureau also noted that new LPFM station applicants may now communicate and collaborate with other applicants to enter into voluntary time-share agreements to resolve their mutual exclusivities (where two or more applications cannot all be granted under the FCC’s technical rules).  See our article here for a discussion of the filing window and how the Bureau evaluates applications filed in the window if there are no voluntary agreements to resolve mutually exclusive situations. 
  • The FCC announced that March 4 is the effective date of rules adopted in its September 2023 Report and Order, which revised many rules for full power and Class A television stations, particularly those that no longer have any practical effect given the transition from analog to digital-only operations and the post-incentive auction transition.  For the most part, these changes did not make substantive changes in rules governing station operations.  As the FCC notes in its announcement, however, certain rules adopted in the Order will not become effective until after they receive approval by the Office of Management and Budget.  The FCC’s Media Bureau will announce when those rules have become effective.

On our Broadcast Law Blog, summarized upcoming February regulatory dates for broadcasters.  We reminded commercial radio stations of the April 1 deadline to report their 2023 revenue to ASCAP, BMI, and SESAC as that information is needed for computing 2024 royalty fees.  We also looked at the legal issues in Super Bowl advertising and promotions with our resident trademark specialist, Mitchell Stabbe.