This Week in Regulation for Broadcasters:  June 17, 2024 to June 21, 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 asked for comments on a petition for rulemaking proposing the creation of a new class of FM stations – Class A10.  These stations would operate with a power of up to 10,000 watts at no more than 100 meters height above average terrain.  Authorizing this new class of stations would require amending the minimum distance separation requirements for various classes of FM stations.  This petition asks that the Class A10 rulemaking supersede the pending proposal for a new FM Class C4 (see our article here regarding that 2018 proposal).  Unlike the Class C4 proposal, the proposed Class A10 stations would be available nationwide (the Class C4 would have been permitted only in certain parts of the country).  Comments on the petition are due July 22, and reply comments are due August 21.  This is a preliminary step to determine if the FCC should consider this proposal.  If the FCC decides to do so, additional public comment would be required following the issuance of a Notice of Proposed Rulemaking. 
  • The Bureau granted the assignment of several TV and LPTV stations located in the Cheyenne-Scottsbluff, WY-NE DMA from Gray Television to Marquee Broadcasting West.  One of the stations involved, KGWN, has two top-four broadcast TV network affiliations (CBS and NBC).  The review of this case focused on an application of the FCC’s December decision in the 2018 Quadrennial Review holding that one owner of a TV station affiliated with a Top 4 network cannot acquire the network affiliation of a second station in the market and put it on a digital subchannel (see our article here).  The Commission in this case states that any sale of a station that already has two Top 4 network affiliations also requires FCC approval to ensure that continued dual-network operation is in the public interest.  The FCC found that it was in the public interest for KGWN to maintain both its CBS and NBC network affiliations under Marquee’s ownership due to the market’s small size and large geographic area which make operations of a standalone top-four network affiliated TV station difficult, requiring a broadcaster to have multiple facilities to cover the market’s dispersed population centers.  The FCC also noted that the market’s ABC and Fox affiliated stations are operated as satellites of out-of-market stations, and the declaration of a media broker that said that no independent operator would be interested in starting an affiliated station in this small market.  The FCC concluded that the acquisition of KGWN’s two network affiliations would preserve local news service and network-affiliated programming in the market. 
  • The Bureau also seeks comment on a petition for waiver of the FCC’s audio description rules filed by TBS and TNT.  The cable networks request a three-year waiver of the FCC’s audio description rules which requires the top 5 cable networks to air 87.5 hours of audio described programming per quarter, with no program allowed to be counted more than twice (“the repeat rule”), no matter how often the program is aired in the quarter.  The networks claim that, because of their large amount of live or near live programming (which is not audio described) and many repeat programs, it is extremely difficult, if not impossible, for these networks to comply with the “repeat rule.”  To justify the waiver, the networks promise extensive description of repeated programming, which would result in TBS offering at least 1,000 hours of described programming per quarter and TNT providing 2,500 hours of described programming per year.  It would also quickly add descriptions to other newly produced, non-live programming aired between 6:00 a.m. and midnight ET during the waiver period and include audio described programming on a commonly owned smaller network not otherwise subject to the requirements.  Comments on the petition are due June 28, and reply comments are due July 5. 
  • The Commission’s staff took the following actions concerning LPFM stations:
    • The Enforcement Bureau denied a Florida LPFM station’s request for reconsideration of a $25,000 fine imposed by the Bureau in 2022 for the station’s unauthorized operations, failure to cooperate with FCC field agents, and failure to maintain Emergency Alert Service equipment.  The station sought cancellation of the fine due to an inability to pay, which it supported by providing a declaration of its president, a list of non-cash assets, and copies of bank statements.  The Bureau rejected the request because the FCC requires financial statements or tax returns to justify a conclusion that the licensee has an inability to pay a proposed fine, and because the station again failed to cooperate with FCC field agents during an April 2024 inspection. 
    • The Media Bureau affirmed its dismissal of a Florida LPFM construction permit application for failure to adequately support a waiver of the second-adjacent channel spacing requirements necessary to protect nearby broadcast stations.  Continuing the hardline approach we have noted in many recent weekly updates, the Bureau rejected the applicant’s claim that its singleton status warranted allowing it to amend to provide the required technical showing, again holding that the initial application filed during any LPFM window must provide all of the technical information needed to justify a waiver or the application will be dismissed with no opportunity to amend. 

On our Broadcast Law Blog, we discussed how the Media Bureau’s admonishment of three TV stations (actions noted in our update last week) for failing to include non-discrimination clauses in their advertising sales agreements serves as a warning to broadcasters.  Over a decade ago, the FCC adopted these rules to stop “no urban, no Spanish” advertising dictates.  These cases noted that, in the future, fines will be imposed for such violations, showing that the FCC still takes the rule seriously.