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 released a Notice of Proposed Rulemaking proposing that broadcasters and cable operators make on-air disclosures regarding the use of AI-generated content in political advertisements, and upload notices to their Online Public Inspection Files regarding such disclosures. Comments and reply comments on the NPRM will be due 30 and 45 days, respectively, after the NPRM’s publication in the Federal Register. Since the NPRM’s comment cycle will run through at least September, it is unlikely that any new disclosure requirement or new OPIF reporting obligation will be effective before the November election. We plan to provide more details about this NPRM on our Broadcast Law Blog this coming week.
- Contrary to earlier reports, the August 15 effective date for broadcasters’ expanded foreign government sponsorship certifications apparently does not apply to issue ads and paid PSAs. As we discussed here, in a June Second Report and Order, the FCC expanded broadcasters’ existing obligations to verify whether lessees of program time are foreign governments or their agents (who have enhanced sponsorship identification requirements) to include an additional verification requirement for sponsors of issue ads and paid PSAs (but not sponsors of ads promoting a commercial product or service or ads from a political candidate or their authorized campaign committee). It now appears that the FCC considers the rule’s expansion to issue ads and paid PSAs to require approval from the Office of Management and Budget before becoming effective. OMB approval will take at least several months, so it appears that stations do not need to implement this verification obligation just as we are entering into the heart of election season. For more information on the delay in the implementation of this requirement, see our article posted Friday on our Broadcast Law Blog.
- A US District Court in Pennsylvania issued an order refusing to stay the effect of the FTC adoption of a rule banning non-compete agreements for all employees in the United States. The Court found that the FTC’s order was not likely to be overturned after the Court’s final review, a decision contrary to that reached by a US District Court in Texas (in one of several cases challenging the FTC’s Non-Compete Rule) which did grant a preliminary injunction to the parties appearing before that Court. The Texas Court promised to decide on whether to institute a wider ban by the end of August, before the September 4 effective date of the FTC rule. Expect further litigation to reconcile these conflicting decisions.
- The FCC’s Enforcement Bureau issued a Notice of Illegal Pirate Radio Broadcasting to an Oregon landowner for allegedly allowing a pirate to broadcast from its property. The Bureau warned the landowner that the FCC may issue fines of up to $2,391,097 under the PIRATE Radio Act if the FCC determines that the landowner continues to permit pirate radio broadcasting from its property after receiving this notice.
- The FCC’s Media Bureau granted the substitution of UHF channel 33 for VHF channel 13 at Jacksonville, Florida. The Bureau also found that the change would not result in the loss of the NBC service provided by this station as NBC service is provided in the loss area created by the channel change (which proposes a reduction in the number of viewers in the station’s service area) by other stations affiliated with the network. This permission to change from a VHF to UHF channel serves as another example of the FCC’s recognition of the superiority of UHF channels for the transmission of digital TV signals.
- The Media Bureau proposed two $6,500 fines against Tennessee and Mississippi FM translator operators for failing to timely file their license renewal applications and operating without authorization after their licenses had expired. The Tennessee translator’s renewal was filed in February 2024 – almost four years after its April 1, 2020 deadline, and after its license expired on August 1, 2020. The Mississippi translator’s renewal was filed in April 2024 – over four years after its February 3, 2020 deadline, and after its licensed expired on June 1, 2020. The Bureau reduced the proposed fines from the $13,000 base fine due to the secondary nature of FM translators.
- The Bureau also took two actions dealing with potential dismissals of applications for construction permits for new LPFM stations:
- The Bureau reinstated an Iowa LPFM construction permit application, which the Bureau dismissed in January 2024 for failing to meet the minimum distance separation requirements necessary to protect a nearby co-channel vacant allotment. The applicant requested reinstatement of its application and an opportunity to amend, arguing that the FCC’s LPFM application rules do not prohibit curative amendments for failing comply with the minimum distance separation requirements for vacant allotments. The Bureau agreed, finding that the prohibition on curative amendment applied only to spacing issues to applications and facilities existing as of July 31, 2023 (the date of the LPFM filing window procedures Public Notice).
- The Bureau granted another Iowa LPFM construction permit application over an objection claiming that the application should be dismissed because its signatory did not have authority to sign the application (as an officer) and failed to include a pledge to divest a commonly owned LPFM station. The Bureau rejected the objector’s arguments, finding that the divestiture pledge was included in the technical exhibit to the application (as opposed to a separate exhibit) and although the application did not identify the signatory as an officer of the applicant, the Iowa Secretary of State’s website showed that the signatory was a director of the applicant at the time the application was filed, and prior FCC precedent allows a director of a non-profit applicant to sign on its behalf.
On our Broadcast Law Blog, we provided guidance for broadcasters on accepting advertising or conducting promotions that directly or indirectly allude to the 2024 Paris Olympics – including a discussion of the enhanced legal protections that the U.S. Olympic and Paralympic Committee has from trademark infringement.
