This Week in Regulation for Broadcasters: November 28, 2020 to December 4, 2020

Here are some of the regulatory developments of the last week of significance to broadcasters, with links to where you can go to find more information as to how these actions may affect your operations.  Also, we include a look at actions to watch in the week ahead.

  • FCC Chairman Ajit Pai announced his intention to leave the FCC by January 20, the day that President-Elect Joe Biden is inaugurated. Pai has been at the Commission since 2012 and has led the Commission as Chairman since President Trump elevated him in 2017.  The news release announcing his departure highlights some of the issues he hopes will be part of his legacy.  (News Release)
    • In other FCC personnel news, Nathan Simington’s nomination to fill the Commission seat now held by Michael O’Rielly moved ahead after the Senate Commerce Committee, along party lines, voted to advance his nomination. The next—and final—step is a vote by the full Senate which would have to be done before the current Senate session adjourns at the beginning of January.  If not completed by the end of the session, the nomination and confirmation process would have to begin again.  Senate Majority Leader Mitch McConnell (R-KY) plans to take up the nomination soon, but certain Democratic senators have indicated they may try to delay or derail a vote on Simington’s nomination.  Should Simington be confirmed, the agency, with the departures of Chairman Pai and Commissioner O’Rielly, would be deadlocked at two Democratic and two Republican Commissioners in the early months of the Biden Administration until a new Democratic Commissioner is nominated and confirmed.  We wrote about Simington’s nomination, here.
    • Commissioner Michael O’Rielly sent a farewell email and video to FCC staff on Friday afternoon that recognized that his departure from the agency is imminent. O’Rielly can serve only until the adjournment of the current congressional session in early January or until his successor is confirmed and sworn in, whichever comes first.
  • The Commission released a Notice of Proposed Rulemaking that seeks comment on allowing FM boosters to originate a limited amount of programming that is different from the programming being aired on their primary station. Proponents of this “zonecasting” idea believe that boosters could deliver hyper localized news, weather, emergency alerting, and advertising.  Interested parties should review the NPRM, consult with their technical experts, and begin drafting their comments as the FCC wants detailed input on the technical and operational aspects of the proposal.  Comments will be due 30 days after the NPRM is published in the Federal Register.  See our blog post, here, for a detailed look at the proposal.  (Notice of Proposed Rulemaking)
  • The FCC’s International Bureau issued an updated list of C-band incumbent earth station lump sum reimbursement elections, showing that nearly 98% of lump sum elections were accepted. The Bureau also released an updated list of incumbent earth stations eligible for reimbursement.  Operators of earth stations should carefully review these documents to make sure that their operations are properly reported so that any reimbursement to which they are entitled will not be jeopardized.
  • The FCC announced that television stations in DMAs 61 through 70 that are covered by the expanded audio description rules should be preparing to comply with the new rules beginning January 1, 2020. (Public Notice).  We noted the FCC decision to expand the obligations to provide audio descriptions of certain broadcast TV video programming here and here.
  • A Florida FM licensee will pay a $125,000 fine after admitting to failing: (i) to conduct the required daily inspection of an antenna structure’s lighting system, (ii) to notify the FAA about a lighting failure, (iii) to register an antenna structure with the FCC, (iv) to conduct two contests in a manner substantially as announced by pre-selecting the winners in those contests, and (v) to disclose that programming broadcast over the station during a supposedly live call-in contest was prerecorded. (Order)
  • A West Virginia TV station was admonished for its failure to comply with the FCC’s rules for commercial limits in children’s programming. The station disclosed in its license renewal application that a website URL was displayed for about a half of a second during the closing credits of a program directed at children 12 years or younger.  Stations cannot include in children’s programming the URL of a website whose primary purpose is to sell merchandise related to the program.  In this case, the Video Division found that that the website was not primarily noncommercial in nature.  The Division also noted stations are ultimately responsible for the programming on their air, even if the program was, as it was here, supplied by a network or other programmer.  See the FCC’s letter for more details on these issues.
  • The FCC rejected a petition by a party asking the Commission to reconsider its policy against awarding “secondary” grants in groups of mutually exclusive noncommercial educational FM applications. (Order on Reconsideration).  We wrote here about the FCC’s reasoning for maintaining its processing policies that exclude such secondary grants.
  • The FCC finalized rulemaking proceedings amending the TV Table of Allotments to change the channels of three TV stations from VHF to UHF channels. The FCC had agreed to start processing these requests several months ago despite a freeze on channel changes and other coverage modifications for TV stations (see our article here).  These orders noted that the recent FCC decision to lift the filing freeze on TV technical applications that expand a station’s service area, making any waiver of that freeze unnecessary. (FCC Orders granting requests for channel changes in Mesa AZ, Minneapolis MN and Portland OR).  As the lifting of the TV freeze has now become effective, expect more changes in the technical facilities of TV stations soon.

Next week, on December 10, the FCC will hold its last Open Meeting of 2020 at which it will vote on new rules for Broadcast Internet (ATSC 3.0) services.  The new rules will clarify how the Commission will calculate the annual ancillary and supplementary fees owed by broadcasters that lease their spectrum to third parties and, if the FCC’s tentative order is adopted, will reduce the fees owed by noncommercial broadcasters that offer noncommercial Broadcast Internet services.  Unchanged in the new rules is the requirement that broadcasters providing these ancillary services must continue to offer at least one standard-definition over-the-air signal.  We are also watching a late addition to the meeting agenda—an Order that will require electronic payment of fees for activities administered by the Media Bureau.  No additional details are currently available, but most broadcasters already pay their fees by credit card and electronic wire transfer.

Courtesy Broadcast Law Blog