This Week in Regulation for Broadcasters: January 30, 2023 to February 5, 2023

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 American Music Fairness Act, proposing to enact a sound recording performance royalty for over-the-air broadcasters, was introduced in in both the House and Senate this past week.  Last year, a similar bill was approved by the House Judiciary Committee but did not advance further before the last Congress adjourned, requiring it to be reintroduced in the new Congress that began in January. SoundExchange issued a press release supporting the new bill, while the NAB issued a statement opposing it and urging the record labels to negotiate with the NAB to try to reach a compromise.  We wrote about last year’s version of the bill on our Broadcast Law Blog when it was being considered by the Judiciary Committee.
  • The NAB submitted a filing urging the FCC to complete its 2018 quadrennial review of the broadcast ownership rules by the end of the first quarter of 2023.  NAB also urged the FCC to toll the 2022 quadrennial review (including the upcoming March comment deadlines) until the 2018 review is completed.  The 2018 review, among other issues, proposed to revise the local radio ownership rules, to review the dual network rule, and to consider an objective formula for considering any proposal for the combination of two Top 4 television stations in any market. The Public Notice beginning the 2022 review essentially asks for an update of the 2018 record.  For more on the 2018 review and the 2022 notice, see our article here. It is unclear at this time when or how the FCC will handle the NAB’s request.
    • Related to the ownership review, the FCC released a Public Notice announcing the agenda for the Communications Equity and Diversity Council (CEDC)’s “Expanding Digital and Media Ownership opportunities for Women and Minorities,” symposium on February 7, 2023, from 9:30 am to 4:45 pm, ET. The CEDC is an advisory council of the FCC. The goal of the symposium is to explore the challenges as well as possible solutions for increasing ownership opportunities for women and people of color in all facets of media – TV, radio, cable, and streaming.
  • Notwithstanding “a long history of rule violations” and a third-party objection, the FCC’s Media Bureau renewed the license of a noncommercial educational (NCE) FM station, conditioned on the licensee’s continued compliance with a September 2020 consent decree with the Bureau.  After a probationary period under a new Board of Directors, and the licensee having taken steps to resolve complaints of “blanketing interference,” the Bureau renewed the license subject to future FCC oversight of the resolution of additional interference complaints and the licensee’s maintaining an accurate public file.  Blanketing interference, which led to the objection to the renewal, is interference to RF devices owned by consumers in the area within an FM station’s 115 dbu contour.  Within one year of starting operations with any new facility, broadcasters must resolve all complaints of blanketing interference (with certain limited exceptions).  This includes the broadcaster having to buy a consumer new equipment if the interference cannot otherwise be resolved.  After one year of operations, the station must still assist consumers in resolving such complaints, though the station no longer has financial responsibility.    
  • In another decision dealing with NCE stations and interference, the Bureau weighed the application of one NCE station to increase its facilities even though the proposal would increase existing areas where the station caused interference to another station, and increase the areas where the upgrading station would receive interference within its protected contour from the other station.  The FCC has a policy of granting a so-called “Raleigh waiver” to allow an NCE station to increase facilities and receive interference where the received interference is from second- or third- adjacent channel stations, is in a small area (an area less than 10% of the proposed service area), and where the benefit of increased NCE service heavily outweighs the predicted interferenceIn this case, as the received interference was proposed to occur in less than 5% of the applicant’s proposed new service area, the Bureau found that the Raleigh standard was met.The application would also cause increased interference to the other station, but the FCC found that the small area of possible new interference to the other station was insignificant, particularly as the other station had itself been allowed many years ago to increase facilities by accepting the interference that it receives from the station now proposing to upgrade, so a small increase in that area of interference should not be prohibited. 
  • The FCC’s Enforcement Bureau issued a Notice of Violation to an FM translator for purportedly violating the FCC’s rules that (1) prohibit FM boosters and translators from operating during extended periods when signals of the primary station are not being retransmitted, and (2) require that station employees maintain station logs.  The station’s licensee was given 20 days to respond to the Notice.
  • The Media Bureau issued a Declaratory Ruling permitting Spanish Broadcasting System, Inc. (SBS) to exceed the 25% benchmark for foreign equity investment set out in section 310(b)(4) of the Communications Act.  The FCC is permitted to allow foreign entities to own more than 25% of the equity of the parent company of an FCC licensee if that ownership would not harm the public interest.  That evaluation is made by looking at factors including whether there are any national security concerns about the proposed foreign ownership.  Here, proposed ownership by foreign investors of up to 49.99% of SBS’s equity was found not to harm the public interest, as the company would still be controlled by a US citizen and the investments by funds organized in foreign countries but controlled by US and Canadian entities were found by executive agencies to not pose any security risk. For more information on the FCC’s process of approving foreign investment in companies owning US broadcast stations, see our articles here and here.
  • The Media Bureau issued a Public Notice setting comment dates as to whether, in determining if specific closed captioning display settings are readily accessible, the FCC should consider the following factors: proximity, discoverability, previewability, and consistency and persistence.  Comments are due March 3, and reply comments are due March 20.  The request for comments is an offshoot of the FCC’s ongoing rulemaking on requiring manufacturers of video displays, including television sets, to make closed captioning display settings readily accessible to individuals who are deaf and hard of hearing. 

Courtesy Broadcast Law Blog