This Week in Regulation for Broadcasters:  July 15, 2024 to July 19, 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 Media Bureau announced that August 15 is the effective date of the FCC’s expanded foreign government sponsorship identification rules.  In a June Second Report and Order, the FCC expanded broadcasters’ existing obligations to verify whether lessees of program time on their stations are foreign governments or their agents (who have enhanced sponsorship identification requirements).  The Commission expanded the obligation to include, starting on August 15, an additional verification requirement for issue advertisers and paid PSA sponsors (but not sponsors of ads promoting a commercial product or service or ads from a political candidate or their authorized campaign committee).  Under other new rules that will be effective at a later date, broadcasters make this verification either by: (a) the station and the lessee signing an FCC-approved certification form or (b) the lessee providing the station with screenshots of the search results for the lessee’s name in the Department of Justice’s Foreign Agent Registration Act database and the FCC’s most recent U.S.-based foreign media outlet report.  Until the new verification requirements are effective, stations need to obtain certifications that the buyer of these ads are not foreign governments or their agents, just as they do for buyers of program time.   This week on our Broadcast Law Blog, we discussed the impact of the new foreign sponsorship identification rules will on broadcasters, and note that challenges to the expansion of the obligations to cover spot time may be filed before the August 15 effective date, so be on the alert for developments.
  • The FCC announced that it will vote at its August 7 Open Meeting on a draft Report and Order which, if adopted, would establish a new Emergency Alert Service event code for messages to the public about persons who are missing or abducted from states, territories, or tribal communities (known as Ashanti Alerts).  The draft order states that the Ashanti Alerts apply to missing and endangered persons over the age of 17 who are outside of the scope of AMBER alerts (missing and endangered persons 17 years of age and younger) and Silver Alerts (missing and endangered senior citizens with Alzheimer’s disease, dementia, or other mental disabilities).  If adopted, EAS alert originators and participants, including broadcasters, will have 12 months from the effective date of the adopted rules to implement the new EAS alert code. 
  • The FCC took two actions concerning closed captioning of video programming:
    • The FCC released a Report and Order requiring that device manufacturers and Multichannel Video Programming Distributors make closed captioning display settings “readily accessible” to individuals who are deaf or hard of hearing.  The requirement applies to all U.S.-manufactured devices using a picture screen that are designed to receive or play back video programming simultaneously with sound (such as televisions, smartphones, tablets, and computers).  MVPDs must comply with the requirement if they provide their customers with covered devices to use their services.  The FCC will determine whether a device is readily accessible using the following factors: proximity (all settings in one place, accessible by button or key); discoverability (the settings can be easily found by the user); previewability (the user can see what the settings will look like on their screen when changing settings); and consistency and persistence (the settings can be used for all accessible applications on the device).  The only major change from the draft order (which we discussed here) was to exempt preinstalled apps from the new requirement.  The readily accessible requirement will not become effective until the later of either approval by the Office of Management and Budget or 2 years after publication of the Order in the Federal Register. 
    • The FCC also released a Further Notice of Proposed Rulemaking proposing to exempt certain video programming providers from its closed captioning registration and certification requirements.  Specifically, the FCC proposed exempting video programmers from the closed captioning registration and certification requirements if they provide programming to public, educational, and governmental access channels (PEG channels) or to nonbroadcast networks for distribution by a cable operator or other MVPD if the PEG channels or the network are exempt from, or have certified compliance with. the captioning rules.    
  • Briefs were filed last Monday in the US Court of Appeals for the Eighth Circuit, seeking review of the FCC’s December decision in the 2018 Quadrennial Review to retain the current local ownership rules for radio and television and the rule precluding any party from having an attributable interest in more than one of the Top 4 TV networks.  The NAB and other broadcasters challenged the December decision, arguing that the Quadrennial Review process required deregulation of local ownership if there was new competition in the radio or television marketplace – and there assuredly has been much new competition since the rules were adopted in 1996, so that deregulation is warranted.  A group of radio operators intervened to detail in a separate brief the impact of digital competition on radio, and TV network affiliates filed a separate brief detailing the impact on the television industry.  The FCC will respond to these arguments in a brief due in September, the challengers can reply in briefs due in October, and the Court will likely decide the challenge very late this year or in 2025.
  • Comments were due July 15 in response to the FCC’s June NPRM regarding the 2024 annual FCC regulatory fees in which it sought comment on a number of fee-related issues, including whether to end its temporary regulatory fee relief measures implemented during the COVID-19 pandemic as well as ending its presumption that silent stations are entitled to fee waivers without providing evidence of financial hardship.  The National Association of Broadcasters urged the FCC to maintain these policies as they enable struggling broadcasters to avoid costly collections processes and regulatory consequences while preventing loss of service to local communities.  The State Broadcasters Associations also oppose ending these relief measures and, along with the NAB, urge the FCC to expand its regulatory fee payor base to include regulated entities that benefit from the FCC’s work but do not pay these fees (such as equipment manufacturers that must obtain FCC certifications to sell and operate equipment in the United States).  Other entities regulated by the Commission have taken issue with the proposed allocation of this year’s fees (a proposed allocation which would reduce broadcasters’ fees from the amount paid last year).  Watch for a final resolution on the payment of these fees by the end of next month, so that the fees can be paid in September before the end of the government’s current fiscal year.
  • The Media Bureau entered into a Consent Decree with the licensee of two Colorado radio stations requiring payment of a $3,400 fine to resolve the Bureau’s review of an unauthorized transfer of control.  The Bureau found that the licensee failed to seek FCC consent before transferring 50% of its membership interests in the licensee’s LLC to a third party because the sales agreement stated that the buyer became a member when the agreement was executed, instead of after obtaining FCC consent through grant of a transfer application.