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 FCC released a draft Report and Order that, if adopted at its next regular monthly Open Meeting on December 18, would modify its rules governing Class A TV, LPTV, and TV translator stations. The draft Order, if adopted, will make several modifications to its rules including updating rules for displacement and channel sharing applications; establishing a maximum relocation distance of 49.1 kilometers from a station’s current antenna reference coordinates for all minor modification applications; establishing a formal method for these stations to change their communities of license (and a requirement that a station’s protected contour overlap a boundary of its community of license – and requiring all stations to file for a community of license compliant with this requirement within 6 months of the effective date of this new rule); requiring Class A and LPTV stations to use a call sign matching their service designation (“-LD” for LPTV and “-CD” for Class A) while grandfathering existing call signs; requiring that all LPTV stations broadcast a video programming signal to be considered as operational (test patterns and still pictures with unrelated audio are insufficient for a station to be considered operating); and establishing a formal process to change a station’s classification from LPTV to TV translator (or vice versa).
- The FCC’s Public Safety and Homeland Security Bureau released a Public Notice reminding broadcasters to ensure that they comply with cybersecurity best practices to prevent cyberattacks to their broadcasts. The Notice was issued in response to recent cyberattacks against broadcasters that resulted in the airing of obscene materials and misuse of the EAS signal. The Bureau states that the recent hacks were caused by compromised STL links accessed through improperly secured Barix equipment, giving the attackers control of the station’s audio and allowing the attackers to broadcast actual or simulated Attention Signals and EAS alert tones, obscene language, and other inappropriate material. The Bureau urges all broadcasters, especially those using Barix equipment, to adopt network security practices including installing software security patches and making equipment firmware and software upgrades as soon as they become available; adopting robust passwords for accessing their devices; installing EAS, Barix, and other equipment connected to the broadcast signal behind network firewalls; and monitoring EAS equipment and software to detect and report unauthorized access. Broadcasters can be sanctioned by the FCC if improper security systems allow actors to access their networks and broadcast obscene or other inappropriate material. See our article here about prior FCC warnings about vulnerabilities in broadcast station transmission systems that could allow a takeover of a station’s programming.
- The FCC adopted a Direct Final Rule eliminating certain public safety and homeland security rules that it identified in the Delete, Delete, Delete proceeding as obsolete, outdated, or unnecessary. The FCC repealed several rules pertaining to the Emergency Alert System that are no longer used in practice by the FCC or EAS participants, including broadcasters. Some of the eliminated EAS rules include a rule describing nonbinding procedures for voluntary EAS participations, a rule describing nonbinding local area EAS plans that would otherwise exist as part of the state EAS plan, a rule specifying that entities may contact the FCC for guidance on EAS participation (which the FCC deemed not to need codification), and a rule authorizing broadcast stations to transmit EAS alerts using subcarriers (which the Commission said is not used in practice). As we noted here, the direct final rule process allows the FCC to delete a rule without prior public comment, but allows for a 10 to 20-day comment period after the order’s publication in the Federal Register (in this case, 20 days). If substantive negative comments are filed against the deletions, the FCC will implement regular notice and comment procedures before the deletions take effect.
- The Media Bureau released its quarterly Broadcast Station Totals. The release shows that, compared to the same release from a year ago, there are 57 fewer AM stations and 24 fewer commercial FM stations, but 353 more noncommercial FM stations. There were also 11 more commercial UHF TV stations but 6 fewer commercial VHF TV stations; and 1 more noncommercial UHF TV stations and 4 more noncommercial VHF TV stations.
- President Trump posted on Truth Social an article by Newsmax titled, “Newsmax CEO Ruddy: FCC Lifting TV Cap ‘Disaster’ for Conservatives.” The post stated, “If this would also allow the Radical Left Networks to ‘enlarge,’ I would not be happy. ABC & NBC, in particular, are a disaster – A VIRTUAL ARM OF THE DEMOCRAT PARTY. They should be viewed as an illegal campaign to the Radical Left. NO EXPANSION OF THE FAKE NEWS NETWORKS. If anything, make them smaller!” Some worried that this indicated that the President was opposed to the FCC relaxing the 39% national television ownership cap as currently being considered (see our article here) – a relaxation necessary for the approval of the currently pending acquisition of TEGNA by Nexstar. However, several commentators suggested that the President’s concerns were directed only at acquisitions by the television networks, not local television operators like Nexstar (see, e.g., articles here and here).
- The FCC’s Media Bureau denied an appeal filed by a New Jersey AM station of the Bureau’s decision to revoke its license under Section 312(g) of the Communications Act because the station was off the air for more than a year. Section 312(g) provides that a station’s license is automatically cancelled if a station has been silent for 12 consecutive months, but the FCC may reinstate the license to “promote equity and fairness.” The station argued that the expiration of its transmitter site lease, its inability to secure an alternate site, and disruptions caused by the COVID-19 pandemic justified the Bureau’s exercise of its discretion to reinstate the Station’s license. The Bureau rejected the arguments, concluding that the station failed to demonstrate that its silence was the result of circumstances beyond its control – noting the FCC’s longstanding policy of declining to reinstate station licenses under Section 312(g) where the station failed to operate due to its licensee’s own action or inaction, finances, or business judgements.
- The Media Bureau released an Order dismissing a petition proposing the substitution of Channel 26 at West Point, Mississippi for Channel 16 to address potential interference issues caused by the proposed antenna sharing by petitioner’s TV station and another station. The petitioner requested that its proposed substitution be withdrawn because its station no longer needed to modify its facilities to share an antenna with another TV station.
On our Broadcast Law Blog, we posted our monthly look ahead at the regulatory dates and deadlines for broadcasters falling in December and early January.
