This Week in Regulation for Broadcasters: July 31 to August 4, 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.

  • FEMA and the FCC announced that this year’s Nationwide EAS Test is scheduled for October 4, 2023 (with a back-up date of October 11 in case there is a real or threatened emergency event around October 4).  FEMA will transmit the nationwide test of the EAS at 2:20 pm EDT on October 4, 2023, using the Integrated Public Alert and Warning System (IPAWS), the Internet-delivered warning system that has been required for broadcasters for about a dozen years. The test will be disseminated in English and Spanish as a Common Alerting Protocol (CAP) message using the Nationwide Test of the Emergency Alert System (NPT) code.  FEMA issued a Release announcing the test.  The FCC issued a much more extensive Public Notice which includes a list of recommended steps that broadcasters should take to prepare for the test.  The FCC Public Notice also reminds broadcasters that, by September 15, 2023, they should review and update, if necessary, their Form One information in ETRS.   Form One should have been filed by all broadcasters by February 28, 2023 (with some limited exemptions for translators and satellite stations) to provide the FCC with basic identifying information about the broadcaster and its EAS equipment.  The FCC Public Notice provides more details on ETRS filings, including the Form Two and Form Three filings due after the test to report on its results.  For more information, see our Broadcast Law Blog article here.
  • The FCC adopted its Order and Notice of Proposed Rulemaking (“NPRM”) proposing changes to the digital audio broadcasting rules to facilitate greater digital FM radio coverage.  The NPRM was issued in response to two petitions for rulemaking filed jointly by NAB and other parties (available here and here), asking the FCC to permit increased FM digital effective radiated power beyond the existing levels and to allow a digital FM station to operate with asymmetric power on the digital sidebands (for more details about these petitions, see our article here).  The FCC has tentatively concluded that both proposals have merit, and thus seeks comment on a number of specific questions including when a station can seek higher digital power without submitting a contour analysis or otherwise seeking Commission prior approval; whether stations planning asymmetrical side bands need to give notice to adjacent channel stations; whether there is a risk of interference to lower powered FM stations, secondary stations (LPFMs and translators), and even broadband operators who suggest possible interference to equipment that they operate on FM channels; and whether any potential interference calls for limits on the proposed rule changes.  Comments and reply comments on the NPRM will be due 30 days and 45 days, respectively, after the item is published in the Federal Register. 
  • The FCC’s Media Bureau announced the rules for the application filing window for new LPFM stations that is to open on November 1, 2023.  These rules will govern the processing and preparation of the applications.  Importantly, the Bureau also stated in the same announcement that, beginning September 1, 2023, it will impose a freeze on the filing of applications for changes in the facilities of FM translators and existing LPFM stations.  The freeze is meant to provide a stable database so that applicants in the LPFM window can accurately determine where there are available channels, and where there are stations or applications that need to be protected from interference.  The freeze will remain in effect at least until the end of the LPFM window on November 8, 2023. See our blog article here for more information.
  • The Media Bureau issued an Order and Notice of Apparent Liability for Forfeiture proposing to fine a Louisiana FM translator licensee $12,500 for purportedly failing to file the form required to obtain consent to change antennas, constructing and operating with an unauthorized antenna for approximately two months, and falsely certifying to construction as authorized.  The station had commenced operations with an antenna that had not been authorized by its construction permit and filed a license application certifying that the station had been built with the technical specifications in that permit. The Bureau was not persuaded to excuse the conduct by the licensee’s explanation that its originally authorized directional antenna arrived damaged, and, believing the repairs would not take long, it commenced operation with an unauthorized omnidirectional antenna at the same site at substantially lower power, not recognizing the legal significance of substituting the antenna even for a relatively brief period of time.
  • The Federal Election Commission announced its agenda for its August 10, 2023 meeting where it will consider whether to ask for public comment on a proposal to require the labeling of political ads that use Artificial Intelligence.  For more information, see its staff’s proposal on the matter.  We recently wrote on our blog about regulation of the use of Artificial Intelligence in political advertising.
  • On our blog this week, we provided more details of the Court of Appeals decision rejecting appeals of the Copyright Royalty Board’s 2021 decision setting webcasting royalty rates for 2021-2025.  We also posted our look at the regulatory dates of importance to broadcasters in August and early September.  

Courtesy Broadcast Law Blog